‘Due process’ is a central concept in Anglo-American criminal justice that safeguards the rights of those subject to the criminal process and guides state officials, vital to the authority of the criminal law and the legitimacy of the legal system. Comparison reveals what is distinctive about Anglo-American and German conceptions of due process, and how far their development is the product of their legal history and local legal culture. As Galligan observes of dispute over ‘whether the adversarial nature of the trial at common law is to be preferred to the more inquisitorial procedures of continental Europe … the real debate in comparing the two approaches is not about which will lead to more correct outcomes, but rather what values are relevant’. Comparative analysis permits a better understanding of what is distinctive in the respective systems. It reveals what commonalities exist and to what extent international developments, not least the important jurisprudence on the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR), foster convergence among signatory states.

It seems obvious that the presence or absence of consent can make all the difference between, on the one hand, a meaningful and loving sexual act between two people and, on the other, a serious violation of the human dignity and personal autonomy of one of those people. Yet, there is a surprising degree of uncertainty as to the precise circumstances in which a person can genuinely be treated as consenting. This is scarcely a satisfactory state of affairs in an era where there is a growing and welcome emphasis internationally on the importance of the right to sexual autonomy. The comparative analysis we undertake in this chapter will reveal parallels between the British and Irish jurisdictions and Germany insofar as the meaning and scope of consent are concerned. It will also show that certain situations are evaluated quite differently, with the English-speaking jurisdictions tending to be more restrictive when it comes to accepting the presence of valid consent. Recent developments in German criminal law may, however, point in the direction of a rapprochement between the two sets of jurisdictions. It may well be that global tendencies toward stronger protection of the interests of women in particular overshadow the formerly more ‘liberal’ instincts of German law.

In the United States, the Supreme Court recently acknowledged that ‘criminal justice today is for the most part a system of pleas, not a system of trials’. More than 95 per cent of convictions in the federal and state systems are the product of negotiated guilty pleas. In England and Wales, that number is about 90 per cent.

The prosecutor’s position within the criminal justice system cannot be overstated. Robert Jackson, former United States Attorney General, who gained worldwide reputation through his role as Chief United States Prosecutor at the International Military Tribunal in Nuremberg, remarked fully seventy-five years ago that: ‘The prosecutor has more control over life, liberty, and reputation than any other person in America.’ Prosecutors are ‘the criminal justice system’s real lawmakers’ and ‘the gatekeepers to the justice system’ system’, insofar as they make the crucial decisions about which individuals enter the criminal justice system and under what conditions they move through it.

How should the criminal law respond to the threat of terrorism? One possible answer is that no special response is needed. Legal systems around the world already criminalise such acts as killing, maiming and causing explosions, as well as attempting, inciting or conspiring to do any of these things. Another possible answer is that the criminal law has a role to play in pre-empting terrorist attacks. Since these attacks can cause such severe and extensive harm, the criminal law is justified in intervening at an earlier stage than usual, in order to ensure that they are not carried out. This second answer has recently proved the more popular among legislators in many jurisdictions, including Germany and the UK.

To establish the importance of ‘preparatory offences’ to a book of this sort, it is necessary to define that concept. ‘Preparatory offences’ is not a formal category in English or German criminal law. At the most general level, preparatory offences criminalise conduct perceived to carry the risk that, in the future, a ‘completed’ crime will be committed. Preparatory offences move criminal responsibility back from the actual occurrence of harmful conduct to the planning and preparation stage – conduct that ‘pre-dates’ the completed offence, and is often quite remote from the threatened harm.

From a naturalistic perspective, omission is the opposite of action – it is non-action (not-doing), absence of action. From this perspective, an act or active conduct can be easily identified because of the expenditure of energy it generates, for example, through a bodily movement causing a certain result in the empirical world. In contrast, an omission lacks a physical reality; it does not display any (causal) energy; it is, in this sense, simply non-existent. As a consequence of such a naturalistic approach, it has been argued that omissions cannot actually cause any result and thus cannot have any legal relevance, let alone create criminal liability.

One of the most broadly accepted principles of punishment is that the severity of criminal sanctions should be proportional to the seriousness of the offence being punished. But proportionality requires a normative frame of reference – proportional relative to what underlying legal or normative values? Retributivists believe that punishment should be proportional to the offender’s degree of blameworthiness for the act(s) being punished. There are also several consequentialist (utilitarian) principles, which assess the proportionality of a penal measure relative to the expected benefits to be achieved by applying that measure. This chapter examines each of these meanings of proportionality in punishment, identifying the key elements of each concept, their similarities and differences, the ways in which common law legal systems and the German system have applied them and the possibilities for accommodating all of these principles in a single punishment model.

What consequences should state wrongdoing in the course of gathering evidence in a criminal investigation have on its admissibility in the criminal trial or usability as a foundation for the criminal judgment? Answering these questions sheds much light on the core features of criminal justice and its theoretical as well as constitutional underpinnings. In this chapter, we will compare the approach to exclusion or non-use of evidence taken in the predominantly English-speaking world of the common law with that taken in Germany. Under the common heading ‘exclusionary rules’ or ‘exclusion of evidence’ we will address both the common law perspective of excluding evidence ex ante (i.e. by declaring it inadmissible) and the German perspective of taking evidence first, but not using (‘excluding’) it for the evaluation of the merits of the case (Beweisverwertungsverbote). After laying out the theoretical framework, we focus on the development of balancing tests and the factors which may and may not be taken into account, and come to some comparative conclusions. We will, however, need to omit a discussion of specific grounds for excluding evidence as well as some other important issues: (1) whether judges and juries, who are aware of excluded evidence, actually are able to ignore this knowledge in passing judgment; (2) the extent to which exclusions actually lead to dismissals or acquittals, or whether they are mainly used by the defence to obtain a mitigated sentence.

Questions of criminal participation arise when more than one person is in some way involved in the commission of a crime. In some cases, there may be no single individual who, in his own person, fulfils all the definitional elements of the criminal offence. Even where there is one such individual, the criminal law may want to tie other persons to the commission of the offence as well, on the basis that these other persons are complicit in and therefore share responsibility for its commission. What rules and principles do – and which ones should – govern the ascription of criminal responsibility to different agents in multi-party settings is the theme of this chapter. The answer to the should-question is approached with a view to the general aims of the criminal law regarding parties to crime. These are understood to be the following: (i) to guide judges and other decision-makers towards fair responsibility-attributions for criminal norm-violations and their outcomes; (ii) to ensure that the conviction offence fairly reflects the gravamen of the accused’s criminal conduct; and (iii) to facilitate accurate reflection of different degrees of responsibility in sentencing decisions.

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 misunderstanding. Some problems are linguistic: although English is the new lingua franca in 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 thus subject to ambiguity and potential error: the same term may have different meanings in different legal contexts. As a consequence, critical and theoretical discussions too often take place within the different legal traditions rather than between them: Anglo-American scholars talk to each other, as do those taught in Continental European criminal law traditions; too rarely do they engage seriously with each other across these jurisdictional borders.

A defendant’s prior crimes affect decision-making throughout the criminal process, from decisions taken by the police, prosecutors and investigating magistrates (bail), through to prison and parole authorities considering whether to release prisoners. It is at sentencing however, that criminal history has the greatest impact on decisions and the lives of defendants. Of all the aggravating factors, a criminal record is the most commonly invoked, the most powerful and also the most controversial. In general, people with prior convictions are treated more harshly in all criminal justice systems, civil and common law. This near-universal sentencing policy is variously described as a Recidivist Sentencing Premium, a Prior Record Enhancement, or Criminal History Enhancement; the German term is Strafschärfung für Rückfalltäter or, briefer, Rückfallschärfung. The penologist Nigel Walker referred to prior convictions as ‘the most obvious example of aggravation’ and Hessick and Hessick described the recidivist sentencing premium as ‘one punishment issue on which everyone seems to agree’. In this chapter, we argue that it is neither as obvious nor as consensual as these quotes suggest. Other authors seem closer to the truth when they describe ‘the controversial question of sentencing repeat offenders’.