Extending criminal liability in the case of street violence
Does tackling street violence require the introduction of strict liability? Some hints for the political debate.
Serious street violence has become a major social issue in the Netherlands, once again. Various recent incidents, like the project X riots in Haren (near Groningen) on September 21st 2012 and the assault on a 22-year-old man by a group of nine men on January 4th 2013, caused much political and social upheaval.
Street violence is punishable under article 141 of the Dutch Penal Code. According to this article, a person can be held criminally liable when he or she has delivered a sufficiently substantial and fundamental contribution to the violence, without him or her having actually committed a violent act. Being part of a group that commits violence in public can be enough to be held criminally liable under article 141.
If, as a consequence of street violence, another person’s property is damaged, another person is (severely) injured, or even dies, a person can only be held criminally liable for these consequences if he or she has caused that harm (article 141 paragraph 2 Dutch Penal Code). This honours an old principle in criminal law, namely that one can only be held criminally liable for one’s own acts. Legal practice shows that in the case of street violence it is very difficult to prove which person caused a particular damage or injury. As a consequence, article 141 paragraph 2 of the Dutch Penal Code is hardly ever used.
According to Lilian Helder, a member of parliament in the Netherlands, this needs to change. In a bill introduced in 2012, she proposes to extend criminal liability in the case of street violence. A person that has delivered a sufficiently substantial and fundamental contribution to the violence (liable under paragraph 1 of article 141), should also be held accountable for all harm that is caused by that violence, irrespective of whether that person caused that harm. As Helder acknowledges, this means the introduction of strict liability in article 141 paragraph 2. If the bill is adopted, this could mean that a person that is part of a group, say the nine men that assaulted the 22-year-old man, but who did not commit any violence could be held accountable for the serious injuries that resulted from that violence, for example. Then, every member of the group of nine could be sentenced to a maximum of nine years imprisonment.
However, the bill received much criticism from both the Council of State and various political parties in the Dutch parliament. It is not clear whether this bill will get enough votes in parliament. Various political parties placed critical comments on the bill, but were not against the idea of introducing strict liability in article 141. My view is that a legislator can only allow strict liability in criminal law when it provides an answer to at least the following (more fundamental and practical) issues:
1) An argument for strict liability is that potential offenders are deterred from taking certain risks and that they will exercise a certain amount of care to prevent harm (in the case of street violence: a person will leave the group before it commits violent acts). However, critics of strict liability claim that tailor-made punishment is not possible, and that therefore deterrence cannot be achieved. In that case an important argument on which strict liability is based is not so strong as it is presented to be. A legislator should then argue why introducing strict liability is still acceptable and will help to deter people that remain part of violent groups.
2) Strict liability means no guilt has to be established, only the fact that some form of damage or injury was caused. This contradicts the principle that no man should be held criminally liable without guilt, which is part of the retribution argument. This, however, is not a very strong argument, because Dutch law already recognizes that in certain cases it is not necessary to establish guilt when an intentionally committed act resulted in some serious (bodily) harm or death. The fact that no guilt has to be established helps the prosecution service to prosecute not just for the intentionally committed act (for example being part of a group that commits violence in public). This is an important argument to introduce strict liability. On the other hand, that could lead to prosecutions of persons who obviously did nothing more than just being part of a group, and perhaps encouraging others to commit violent acts. This raises questions of proportionality and a more careful use of the criminal justice system. In the case of street violence, it runs the risk of obstructing the already overstretched criminal justice system with the prosecution of persons who have done very little. That could result in not prosecuting street violence all together, because if everybody is equal, one cannot decide to prosecute just a few members of a group (present-day legislation makes that possible very easily). Overstretched as our criminal justice system already is, it is more easy to take the decision not to prosecute the ones who have done nothing more than encouraging others to commit violence. The question then is how to prevent the criminal justice system from becoming even more overstretched than it is already.
3) One could respond to this by stating that strict liability is cost effective. It saves time and manpower, because no investigation on who caused the harm is necessary to convict a person if that person can be convicted of street violence (article 141 paragraph 1 Dutch Penal Code). But this could lead to an influx of cases. We already spend billions of Euros on our criminal justice system. How much more do we want to spend?