Table Of ContentFault in Criminal Law
This volume presents a comparative examination of the issue of fault in criminal
law. Extant law reveals significant problems in adoption of consistent approaches to
doctrinal and theoretical underpinnings of fault liability and culpability thresholds
in criminal law. This has been exemplified by a plethora of recent jurisprudential
authorities revealing varying degrees of confusion and vacillation. This collection
focuses on fault liability for inculpation with contributions from leading specialists
from different jurisdictions presenting alternative perspectives. The book addresses
three specific elements within the arena of fault, embracing an overarching synergy
between them. This structure facilitates an examination of UK provisions, with
specialist contributions on domestic law, and in contrasting these provisions against
alternative domestic jurisdictions as well as comparative contributions addressing a
particularised research grid for content. The comparative chapters provide a wider
background of how other legal systems treat a variety of specialised issues relating
to fault elements in the context of the criminal law. With contributions from
leading experts in the field, the book will be an invaluable resource for researchers,
academics, and practitioners working in this area.
Alan Reed is a professor of criminal and private international law at Northumbria
University, and Deputy Faculty Pro Vice-Chancellor (Research and Knowledge
Exchange) in the Faculty of Business and Law. He is Editor of the Journal of
Criminal Law, and an Advisory Board Member of the Journal of International
and Comparative Law.
Michael Bohlander holds the Chair in Comparative and International Criminal
Law at Durham University.
Bethany Simpson is a lecturer in criminal law and social justice at Newcastle
University. Her research explores modern-day slavery and human trafficking.
Verity Adams is a barrister at Trinity Chambers in Newcastle. Her research interests
are in criminal law and evidence, immigration and public international law.
Substantive Issues in Criminal Law
Series Editors:
Alan Reed and Michael Bohlander
Substantive Issues in Criminal Law presents a series of volumes that systematically
address areas of the criminal law that are in need of reform or which belong to
the core areas of law where doctrinal abstraction or greater analysis is required.
One part of each book is dedicated to an in-depth look at the situation in the UK,
with individual chapters analysing points of current interest. A second feature of
each volume is a major comparative section of other domestic jurisdictions. These
international contributions are written to a uniform research grid provided by
the editors in order to ensure a maximum degree of ease of comparison. The key
purpose of the series is to produce a major library of reference works to which
all actors in the wider criminal justice and policy community in the UK and
elsewhere will have recourse for academic, judicial and policy purposes.
Other titles in this series:
General Defences in Criminal Law
Domestic and Comparative Perspectives
Edited by Alan Reed and Michael Bohlander with Nicola Wake and Emma Smith
Consent
Domestic and Comparative Perspectives
Edited by Alan Reed and Michael Bohlander with Nicola Wake and Emma Smith
Homicide in Criminal Law
A Research Companion
Edited by Alan Reed and Michael Bohlander with Nicola Wake, Emma Engleby
and Verity Adams
Fault in Criminal Law
A Research Companion
Edited by Alan Reed and Michael Bohlander with Bethany Simpson and
Verity Adams
For more information about this series, please visit: www.routledge.com/
Substantive-Issues-in-Criminal-Law/book-series/ASHSER1396
Fault in Criminal Law
A Research Companion
Edited by Alan Reed and Michael
Bohlander with Bethany Simpson
and Verity Adams
First published 2023
by Routledge
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© 2023 selection and editorial matter, Alan Reed and Michael
Bohlander with Bethany Simpson and Verity Adams; individual
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British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
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ISBN: 978-1-032-24536-2 (hbk)
ISBN: 978-1-032-24539-3 (pbk)
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DOI: 10.4324/9781003279181
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Contents
List of Contributors vii
Preface xii
Introduction 1
PART 1 7
1 The Fault Requirement of Indecent Photographs of Children 9
ALISDAIR A GILLESPIE
2 Defining Fault in Loss of Control: Determining Culpability
Through Excuse Theory 30
AMANDA CLOUGH
3 Strict Liability Crimes: The Contours of Liability and
Crimogenic Impact 44
ALAN REED
4 Causation, Fault, and Responsibility 67
GR SULLIVAN AND AP SIMESTER
5 Understanding the ‘Fault’ in Prior-Fault Intoxication:
Insights From Behavioural Neuroscience 86
HANS S CROMBAG, JOHN J CHILD, AND RUDI FORTSON
6 Ages of Consent and Responsibility in Criminal Law:
Should They Be the Same? 113
JONATHAN HERRING
vi Contents
7 Fault, Article 7, and the Courts’ Development of the
Criminal Law 132
JEREMY HORDER
8 ‘Crimes of Passion’: Emotion, Fault, and the Criminal Law 149
JOHN E STANNARD
PART 2 167
9 Germany 169
KAI AMBOS AND STEFANIE BOCK
10 Australia 189
MIRKO BAGARIC
11 The United States of America 210
VERA BERGELSON
12 Russia 243
GLEB BOGUSH
13 Islamic Law 264
MOHAMMAD HEDAYATI-KAKHKI
14 Africa 288
GERHARD KEMP AND BERNARD NTAHIRAJA
15 China 310
ANDRA LE ROUX-KEMP
Index 333
Contributors
Kai Ambos holds the Chair for Criminal Law, Criminal Procedure, Compara-
tive Law, International Criminal Law, and Public International Law, at the
Faculty of Law, Georg August Universität Göttingen, Germany. He is Direc-
tor ‘Centro de Estudios de Derecho Penal y Procesal Penal Latinoamericano’
(CEDPAL), Judge Kosovo Specialist Chambers, The Hague, Netherlands,
and Advisor (amicus curiae) of the Colombian Special Jurisdiction for Peace.
Mirko Bagaric is the Dean of Law at Swinburne University, Melbourne. He is
the author or co-author of over 30 books and 150 articles which have been
published (or accepted for publication) in leading Australian and international
journals. His main area of research is punishment and sentencing. His articles
have been cited in over 100 court judgments, including the High Court of
Australia and superior courts in Canada, Singapore, New Zealand, the United
States, and Ireland. Professor Bagaric has extensive legal experience. He is a
former member of the Migration and Refugee Tribunal and as a lawyer has
appeared at courts at all levels of the judicial hierarchy including the High
Court of Australia.
Vera Bergelson is a distinguished professor of law and Robert E. Knowlton
Scholar at Rutgers University School of Law, USA. She specializes in criminal
law theory and has written widely about consent, provocation, self-defence,
necessity, duress, strict liability, and victimless crime. Her book Victims’ Rights
and Victims’ Wrongs: A Theory of Comparative Criminal Liability raises ques-
tions about comparative liability in criminal law. Vera Bergelson has served
as a chair of the section of jurisprudence of the Association of American Law
Schools. She is on the editorial boards of BdeF and Edisofer (Buenos Aires and
Madrid), Law and Philosophy, and The Journal of Criminal Law.
Stefanie Bock holds the Chair for Criminal Law, Criminal Procedure, Inter-
national Criminal Law and Comparative Law at the Philipps-Universität
Marburg, Germany, and is the Director of the International Research and
Documentation Centre for War Crimes Trials. Her main fields of research
are international criminal law, European criminal law, and comparative
criminal law.
viii Contributors
Dr Gleb Bogush is a postdoctoral researcher at the University of Copenhagen
(Denmark). He is also a visiting lecturer at the University of Luxembourg.
His research interests include international public law, international criminal
law, Russian criminal law. His most recent publications and talks deal with the
issues of criminal responsibility for core international crimes, national imple-
mentation of international law in the Russian legal order, and the history of
international criminal justice. Prior to March 2022 Gleb Bogush taught law in
Russia. He holds his law degree from Moscow State University and defended
his PhD on the UN Convention against Corruption in 2004. In 2012-2015
he was an Alexander von Humboldt Fellow at the Max Planck Institute for
Foreign and International Criminal Law. He is included in the list of assistants
to counsel before the International Criminal Court. He is an editorial board
member at Revue International de Droit Penal, and Criminal Law Forum.
John J. Child is a reader in criminal law at Birmingham Law School, UK;
Co-Director of the Criminal Law Reform Now Network; and Co-Director of
the University Centre for Crime, Justice and Policing. John’s research inter-
ests centre on criminal law theory, and particularly the internal structuring of
offences and defences within the general part, where he has published widely.
Amanda Clough is a senior lecturer in law at Northumbria University, UK. She
teaches in the areas of criminal and gender law and works with Northumbria
Police to deliver modules on policing. Her research focus is on criminal and
comparative law, with a particular interest in the areas of murder and sexual
offences.
Hans S. Crombag is professor of behavioural neuroscience in the School of
Psychology & Sussex Neuroscience, and he is a co-director of the Crime
Research Centre (CRC), at the University of Sussex, UK. His research aims to
understand the psychological and neurobiological underpinnings of motivated
action, the role of learning and memory in motivation, substance addiction
and mental health, and applications of such understanding to criminal law and
justice.
Rudi Fortson, QC, is an independent practising barrister at 25 Bedford Row,
London and a visiting professor of law at Queen Mary, University of London,
UK. He is a member of the Criminal Bar Association (England and Wales), the
Forensic Science Society (Great Britain), the British Academy of Forensic Sci-
ence, the Proceeds of Crime Lawyers Association, and the Financial Services
Lawyers Association. He is noted for his work in relation to serious crime,
including fraud, confiscation, asset-recovery, money-laundering, drug law, law
of evidence, homicide, and weapons.
Alisdair A. Gillespie is a professor of criminal law and justice at Lancaster Uni-
versity, UK. His primary research interest is cybercrime, particularly in respect
of child sexual exploitation facilitated by Information and Communication
Technologies. He has particular expertise in the law relating to child sexual
Contributors ix
abuse images and the solicitation of children (aka ‘grooming’). Alisdair has
secondary research interests in covert surveillance and the English legal sys-
tem. He regularly advises law enforcement, lawyers, and the judiciary on mat-
ters relating to cybercrime.
Dr Mohammad Hedayati-Kakhki is an Iranian attorney and lecturer at Dur-
ham Law School, sitting on the editorial board for the Manchester Journal
of Transnational Islamic Law & Practice (MJTILP). He was the Co-Founder
and the Associate Director of the Islam, Law & Modernity (ILM) research
group at Durham University and continues to act as a special advisor on mat-
ters pertaining to Islamic law and associated jurisprudence. He is also a spe-
cial advisor to the Centre for Criminal Law and Criminal Justice at Durham
University. He studied law at Shahid Beheshti University in Tehran, and holds
a master’s degree in International Law from the University of Shiraz. He com-
pleted his PhD in Politics and Law at Durham University and has continued
to teach at this University since 2009. Alongside his academic and research
work, Dr Kakhki continues his legal practice by acting as a Legal Consult-
ant on Islamic criminal law and jurisprudence for hearings in the UK and
internationally.
Jonathan Herring is the DW Wolf-Clarendon Fellow in Law at Exeter College
and professor of law at the Faculty of Law, University of Oxford, UK. He has
written extensively on issues around family law, medical law and ethics, care
law, and criminal law. His books include Law Through the Life Course; Law and
the Relational Self; Caring and the Law; Older People and the Law; and (with
Shazia Choudhry) European Human Rights and Family Law.
Jeremy Horder, LLD; FBA is a professor of criminal law at London School
of Economics, UK; Emeritus Fellow, Worcester College, Oxford; Honor-
ary Bencher, Middle Temple; Law Commissioner for England and Wales
(2005–2010).
Gerhard Kemp is a professor of international criminal justice at the University
of Derby in the United Kingdom and extraordinary professor of public law at
Stellenbosch University, South Africa. He holds an Alexander von Humboldt
Stiftung research fellowship in Germany and is a fellow of the Stellenbosch
Institute for Advanced Study, South Africa. He serves on the board of direc-
tors of the Institute for Justice and Reconciliation, Cape Town and is a fellow
of the Royal Society for Arts in London. He also serves on the editorial boards
of various scientific journals, including: Criminal Law Forum, The Journal of
Criminal Law, and Zeitschrift für Internationale Strafrechtsdogmatik.
Bernard Ntahiraja is an associate professor of human rights law at the Univer-
sity of South-Eastern Norway (USN) and a research fellow at the Norwegian
Centre for Human Rights of the University of Oslo. He has previously taught
criminal law, criminal procedural law, and human rights law at the University
of Burundi. He is the editor of International Criminal Justice in Africa, an
