Prior-fault Blame in England and Wales, Germany and The Netherlands

© 2021, Sweet and Maxwell-Thomson Reuters. All rights reserved.This article explores the contested legal conceptualisation and application of “prior-fault” rules in England and Wales, Germany and the Netherlands. Prior-fault rules operate as an exception to the traditional application of criminal offences and defences, allowing a defendant’s previous conduct outside of an offence or defence definition to directly affect his or her liability. The paradigm example of this is prior-fault intoxication, where an intoxicated defendant is found liable for an offence despite lacking mental fault at the time of causing harm; with the missing mental fault effectively substituted by their previous choice to become intoxicated. However, as we discuss, prior-fault is not necessarily limited to such examples and has the potential to operate across a broad range of criminal rules. Through the comparison of jurisdictions, each with varying doctrinal applications of prior-fault, the article seeks both to better understand the concept as well as to analyse the most effective and defensible methods for its application in practice.