How do criminal lawyers sequence and give shape to their reasoning about criminal liability? Why do they ‘structure’ it as they do? This chapter looks at structure within legal reasoning as a means of understanding the law in the minds of criminal lawyers. It seeks to better understand how structures function and interact. One benefit of doing so is to help lawyers foreign to the legal systems analyse liability as a native might. Another benefit is that, by looking at two paradigmatic orchestrations of the many substantive, organisational and practical issues within criminal legal reasoning, the interconnectedness, priority and valuing of those elements can be revealed and made comparable.

In addition to traditional criminal sanctions, a criminal conviction can trigger a wide variety of supplementary ramifications, further burdening individuals found guilty of a criminal offence. These have become known, especially in the United States, as ‘collateral consequences’ of conviction. The label is used, in particular, to refer to those civil sanctions and disabilities – that is, not formally designated as criminal punishment – activated by a criminal conviction, but not forming part of the direct consequences of it. Examples of collateral consequences include disenfranchisement, denial of government benefits, deportation, licensing or employment restrictions in a variety of occupations, and, for certain sexual offences, registration on a sex offender registry.

Within the criminal justice system, the presence or absence of discretion is one of the most important determinants of whether or not the system secures justice for all parties and participants. The question is where justice lies on the spectrum running between criminal law by rules and criminal law by decision. Prosecutors in German and Anglo-American criminal law occupy distinctive roles, as decision-makers, due to both the institutional and normative framework, and the presence of both role duality and role ambiguity. Since prosecutorial discretion in the context of an investigation cannot be separated from police discretion, this chapter covers all discretionary decisions during the proceedings by prosecutors and the police. The chapter thus only deals with discretionary decisions of other agents (such as judicial discretion) from a conceptual perspective since the particular, constitutionally protected position of judges affects their discretion considerably. In the words of the German Constitutional Court: ‘Police forces and public prosecutors do not enjoy independence and cannot be expected – with regard to their investigatory powers and duties – to show the same strict neutrality as judges do.’

Criminal law and criminal justice are becoming increasingly globalised. In open societies, the era in which individual jurisdictions developed their own codes, statutes and systems of justice with no regard to other systems and countries is long over. There is a growing desire to develop common approaches to common problems and to learn from the diversity of current practice in different countries. This development has been reinforced by the internationalisation of criminal justice in international and mixed criminal tribunals. However, attempts at trans-jurisdictional discourse are often hampered by mutual misunderstandings. Some problems are linguistic: although English is the new lingua franca of international and comparative criminal law, not all foundational concepts of criminal law and justice originate in the English-speaking world; some of them are rooted in civil law jurisdictions, such as France, Germany and Italy. The translation of these concepts into English is subject to ambiguity and potential error: the same term may assume different meanings in different legal contexts.

In recent years, the question of arrest has been at the forefront of global attention, with mass protests across the world against the inappropriate, discriminatory and brutal exercise of this formidable coercive power.1 At the same time, research in some jurisdictions has revealed a progressive ‘de-coupling’ between the practice of arrest and the core objectives of criminal justice2 so that in many countries arrest has instead become associated with mere intimidation, summary punishment or satisfying the public enraged by a crime.3 The selection of candidates for arrest by some forces seems to be based more on ‘people with particular appearances, behavior and demeanor’4 than on suspicion of offending or culpability5 and recent studies, which we will review below, have also demonstrated gross inequalities in terms of ethnicity and social class.

Much has been written about guilty pleas and plea bargaining in common law countries and German confession bargaining,1 yet there has been relatively little comparative analysis of cooperation agreements, a form of negotiated resolution of mainly serious criminal cases, which, unlike plea bargaining, has as its goal the securing of investigative help and trial testimony theoretically aimed at bringing leading players in organised crime to justice.

When a crime contains a result element – as, for example, the crime of homicide contains the element of a human death – the law needs to connect this result to the relevant agent. Not all crimes contain a result element; some are simply conduct offences (e.g. rape or trespass). But when there is a result element, the criminal law (from here on, we use ‘law’ to mean ‘criminal law’) uses causation as a necessary, though not sufficient, part of establishing criminal responsibility for the result.1

Perhaps more than any other area of criminal law, the imputation of responsibility for intoxicated offending has been subject to and evolved with changes in social and cultural attitudes, advances in medicine and psychology, and shifts in the principles and aims of punishment. The result has been a technically complex and often contradictory set of prescriptions that specify what counts as intoxication, when an intoxicated person may be held criminally responsible for an alleged offence (and on what basis), and how to measure the degree and extent of their responsibility. This chapter analyses the law of intoxicated offending as a site for exploring the boundaries of, and exceptions to, principles comprising the ‘General Part’ in both common law (with a focus on the United States and England and Wales) and civil law (with a focus on Germany and Switzerland) systems.

Witness evidence continues to occupy a central place in criminal trials. Laypersons who have witnessed crimes are called to narrate their experiences in court and experts are frequently called as witnesses to explain, interpret and justify an ever-expanding range of different types of forensic evidence collected before trial.1 Given concerns about the reliability of witness evidence, it is not surprising that it has been much discussed and is specially mentioned in the various conventions and constitutional provisions guaranteeing a fair trial.2 Much attention has focused on the different methods for controlling the manner in which such evidence is heard and challenged through the lens of the adversarial and inquisitorial categories that have long dominated and polarised comparative scholarship.3 More recently, however, it has been argued that although the methods for questioning witnesses still differ greatly, a convergence between common law and civil law systems is occurring as systems adapt towards adversarial influences and human rights requirements.4

‘Implementation of sentences’ is a broad term, encompassing the judicial supervision of sentencing, as well as the management, execution and enforcement of sentences. This analysis focuses not on the breadth of possible sentences which may be handed out by the courts, but on the consequences of the sentence imposed.

Criminal laws typically contain a wide variety of offences that target dangerous behaviour. Our goal in this chapter is to compare the ways in which German and English criminal law deal with these kinds of offence; to clarify some distinctions that need to be drawn (and that can be discerned, more or less explicitly, in existing laws) if we are to understand the logic and rationale of such offences; and to note some of the normative issues that such offences raise. To that end, we begin (in section II) by distinguishing endangerment offences in a narrower sense from another important category of dangerous conduct without harmful outcome, that is, attempts. If one speaks of endangerment in a wider sense, attempts would fall into this category, but we will limit our analysis to endangerment offences in the narrower sense.