Possession as a Criminal Offence and the Function of the Mental Element: Reflections from a Comparative Perspective
Suzannah Linton, Gerry Simpson & William A Schabas (eds), 'For the sake of present and future generations': Essays in Honour of Roger Clark, Brill, 2015, p. 391.
24 Pages Posted: 23 Nov 2014 Last revised: 14 Sep 2015
Date Written: 2015
Possession offences present many problems in terms of their foundation and their compatibility with a liberal and fair system of criminal law. I will examine in this little study the structure, rationale and concept of these offences, including their subjective side. I will draw on the relevant Anglo-American and German writings on the matter which, as is mostly the case, mutually ignore each other. The paper will be structured as follows: I will first inquire into the structure and rationale of ‘possession offences’, and highlight some of the ensuing conceptual problems. I will then take a closer look at the concept of possession with regard to the conduct requirement in criminal law and the functions accorded to the mental element. Finally, I will propose a concept of possession offences compatible with a liberal system of criminal law.
Keywords: Possession offences, mental element, conduct requirement, culpability
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