5.4 Situation of Private Defence Caused by the
5.4.7 The Actio Libera in Causa Doctrine
As is known, the most common use of this doctrine is for the imposition of crim- inal responsibility on an actor, who, although his act did not satisfy the require- ment of volition (control) at the time of commission of the offence (ie, he was unable to choose another behaviour), at an earlier stage—with regard to which control existed—he, however, performed an act that caused the situation in which he later performed the factual element of the offence without control. It is possible, for example, to use this doctrine in order to impose responsibility on a person who drove his car with excessive speed in the rain, slid, and while in a state of lack of control over the skidding car, crossed a junction on a red light. Without the use of the doctrine, an acquittal from the offence of crossing the red light would be obligatory, since at the time of the commission of this offence, the requirement for control was not satisfied: the actor did not control his relevant behaviour (the
1268 SZ Feller, ‘Concerning the Right of Self-Defence: Signs of Heresy in the Horowitz Rule (CA 298/88 Twito v. State of Israel)’ LS 15 (1990) 189 (Hebrew).
1269 The end of s 34j of the Penal Code 1977 (‘however a person does not act in self-defence if his own improper behaviour led to the attack, while he foresaw the development of the affair in advance’).
continuation of the driving), or—in other words—at this stage his behaviour was no longer voluntary.1270
The accepted condition for the imposition of responsibility is that at the preliminary stage (at which the actor acted under control) he had the required mental element for the establishment of the offence, including its (concrete) process of causation. It is also possible to establish such a systematic arrangement by applying the doctrine to the issue of the causation by the actor of the situation of a criminal law defence in general, and private defence in particular. This possi- bility was suggested by several scholars internationally,1271and as will be shown below—was also adopted by the drafters of a few draft laws (although not fully).
The more detailed conditions of the doctrine for our discussion are as follows:
(1) At the second stage—at which the offence was committed in a situation of compulsion—the necessary conditions for the establishment of private defence, must, evidently, exist.
(2) At the early stage—at which the actor caused the creation of the situation of compulsion—the following conditions must exist: (a) control, and absence of a defence to criminal responsibility; (b) the mental element required for the estab- lishment of the offence, with consideration of the entire process of causation.
Thus, for example, when an offence of regular mens rea(awareness) is con- cerned, it is required that the actor, at the early stage, foresaw the possibility that his behaviour would cause a situation in which his legitimate interest would be endangered by an attack, and also foresaw that in order to prevent this danger he would have to injure the aggressor and thus to perform the fac- tual element of the offence;
(3) Between these two stages there must be a causal connection, ie: the behaviour at the early stage is required to be a causa sine qua nonfor the creation of the situation of private defence. A further requirement that is occasionally added to the doctrine is that the danger that the actor takes upon himself at the previous stage (for our matter—the risk that he would commit the factual element of the offence in order to defend himself) was, in the circumstances of the case, an unreasonable risk, if we accept the general principle that risk-taking, even in awareness, only produces criminal responsibility if in the circumstances of the case it was an unreasonable risk.1272
1270 Another possible use of the doctrine concerns the imposition of responsibility on a person who has of his own free will become intoxicated and afterwards commits an offence while in a state of ine- briation.
1271 Miriam Gur-Arye, ‘Actio Libera in Causa and Private Defence’ (1985) 15 Mishpatim 145 (Hebrew); Gur-Arye, n 336 above, at 78–100; Gur-Arye, n 13 above, at 224. See also Robinson, n 1194 above, at 695ff; Robinson (1984), n 37 above, vol 2 at 38ff, 564.
1272 The main consideration that is accepted for the assessment of the reasonability of the risk is the utilitarian consideration—Gur-Arye, n 1271 above, at 155–56. For another delineation of the condi- tions of the doctrine under discussion, which does not include a requirement of unreasonableness of the risk, see Robinson (1984), n 37 above, vol 2 at 564.
The central idea that underlies the application of the doctrine for our matter is, that with regard to the second stage, there should be no imposition of criminal responsibility on the actor, and this is in order to enable him to perform the justified and desirable behaviour—for society also—of private defence given the justifying circumstances. However, in order to deter people from creating such dangerous situations, criminal responsibility should be imposed upon the actor, focusing on the early stage of the creation of the justifying circumstances. In other words, there is an attempt here to transmit two different messages: with regard to the situation of private defence—if the actor already finds himself in such a situa- tion it is justified for him to act, whereas with regard to the prior behaviour that caused this situation—the actor must avoid performing such behaviour.
An obvious advantage of the use of the doctrine is the creation of a correlation between the guilt of the actor and his criminal responsibility. Thus, in order to attribute an offence of intent to the actor, it is insufficient that he foresaw the course of events at the previous stage. There is an additional requirement of his intention to harm the aggressor in circumstances of private defence.1273 This, then, is the way in which the supporters of the doctrine overcome the obvious defect that frequently appears in other arrangements whose substance is the nega- tion of private defence, given the prior guilt of the actor. By contrast, even if the actor was only negligent at the previous stage (only foresaw the development of matters constructively, ie, it was possible to foresee it) it would still be possible to impose corresponding criminal responsibility—for an offence of negligence—if in that same legal system a corresponding offence exists for this case (such as causa- tion of death by negligence—if the aggressor was killed).1274
It should be noted further that there is also nothing to hinder the application of the doctrine to the causation of a situation of putative private defence, as well as to
1273 It should be noted that an opinion exists that foresight (alone) is sufficient at the stage of cau- sation of the situation in order to impose criminal responsibility for an offence of intent committed in a situation of compulsion. This position—with which I disagree given the fact that it does not com- pletely comply with the principle of guilt—is expressed in s 34j of the Israeli Penal Code 1977, as amended in Amendment No. 39 (1994). It is interesting to note that with regard to the defences of ‘lack of control’, ‘necessity’ and ‘duress’, the responsibility for offences of intent was conditioned, in this new statute, upon the existence of a mental element of intention already at the first stage—s 34n of the Penal Code 1977. See also the text accompanying n 1278 below.
1274 It should be noted that these last two implications of the doctrine for offences of intent and for offences of negligence are sufficient to negate the interpretation given in Israel (and mentioned above) to the Israeli rule determined in the Horowitzand Shukrun rulings, according to which the doctrine was apparently applied therein, since the rule that was therein provided is a negation of private defence in the face of an entry ‘knowingly and illegally’ into the situation of compulsion.
If, nevertheless, a desire exists to find a connection between the Israeli rule and the doctrine of actio libera in causa, then the two exceptions to the rule can be seen as corollaries to the doctrine: the excep- tion of breach of ‘the rules of the game’, especially if it is expanded to become ‘an exception of surprise’, points to a lack of foresight of the chain of events, and the exception of ‘withdrawal’ may point to the lack of such foresight, at least regarding the process of causation. However, even if the exceptions to the rule are viewed in such a manner, the rule is still, in my estimation, far from the doctrine.
the situation of causing another person to commit an offence in circumstances that justify private defence—although in the latter case the criminal responsibility can also be based on the general doctrine of performance by means of another (‘innocent agent’) (indirect performance).
This leads us to difficulties raised by the doctrine and its shortcomings. As noted, the doctrine is based on the idea that at the second stage (of the compulsion situation) the actor should be allowed to act in private defence, and accordingly the defence against criminal responsibility should not be denied to him, but he should, rather, be deterred at the first stage from creating the circumstances of the situation. This bears merit on the face of it, especially in light of the fact that while at the second stage—the situation of compulsion—it is difficult to direct the behaviour of the actor (especially when he is in a state of severe danger to his life or body), at the first stage, it is nevertheless possible and necessary to direct his behaviour so that he will avoid creating the danger. However, this complicated structure of responsibility creates not a few difficulties.
The first difficulty is theoretical and moral. The arrangement that the doctrine sketches is—in the best case—vague, since it is difficult to comprehend how a per- son can be justified in killing another person (given the recognition of private defence) and simultaneously guilty of killing him (given the application of the doctrine), ie, justified and guilty for the same killing. In other words: how can a person be morally guilty of performing an action, when this action itself is morally justified? Montague, who noted this difficulty,1275 concentrated on the moral aspect, with a certain acceptance of the fact that, legally, there could be such con- tradictions . . . however, it appears that even in the eyes of the jurist it is difficult to imagine a situation in which the person’s right is recognised, and he uses it, and nevertheless a criminal offence is established.
Moreover, I am of the opinion that contrary to the assumption of those who support the doctrine, which permits private defence and does not deter the per- formance of a desirable and justified action at the second stage (the situation of compulsion), the imposition of criminal responsibility via this doctrine is actually akin to negation of private defence and to deterrence of the defensive action (or the protection). For although the first stage is emphasised within the framework of the doctrine (the earlier behaviour that caused the creation of the situation and the mental element that accompanied it), the fact that the criminal responsibility is also determined by what happened in practice at the second stage cannot be overlooked. Consequently, if the actor, while in the situation of compulsion itself, avoids acting in private defence, no kind of criminal responsibility is imposed upon him, since he does not cause an injury to the aggressor. By contrast, if he acts in private defence and injures the aggressor, criminal responsibility will be imposed upon him that will increase according to the severity of the injury to the
1275 See Montague (1989), n 211 above, at 81–87.
aggressor. What then is the message and guidance for behaviour that is provided for the actor who already finds himself in a situation of compulsion?—‘Your action—subject to the conditions of private defence—is justified, so that it may even be justified for you to use deadly force; however, you should know that if you injure the aggressor, criminal responsibility will be imposed upon you, and this responsibility will grow to the extent that the injury is more severe!’
The supporters of the doctrine were aware of this possibility of deterring the actor from the performance of justified action at the second stage given the responsibility that the doctrine imposes, and they articulated the following answer: despite the imposition of responsibility by means of the doctrine, it is still preferable for the actor to perform the justified action in a situation of compul- sion—in order to reduce his responsibility—and therefore the doctrine does not deter its performance. Is this in fact so? The example given for this matter—and not by chance—is that of the defence of justified ‘necessity’, based on choice of the lesser evil. If the actor created a danger of injury X, whose neutralisation would require a justified action of injury Y, as the argument goes, it is preferable for the actor to perform the action, for then he would bear the responsibility for the injury Y instead of the injury X, when by definition (of choice of the lesser evil injury) Y is less than the injury X.1276However, I think that this explanation is restricted to the defence of justified necessity, and is not valid with regard to private defence.
Firstly, in the frequent case, in which the actor who caused, with guilt, the creation of the situation is also the person attacked, there is no doubt that the criminal responsibility will be less if he avoids carrying out private defence—since if he does no harm at all to the aggressor, no criminal responsibility is imposed upon him.
Secondly, in the less frequent case, in which the actor by his own guilt caused a sit- uation in which another person was attacked, the application of the doctrine is cer- tainly liable to deter him from any action, since there is a possibility that in order to avoid a certain injury to the person attacked it is necessary to inflict a greater justified injury on the aggressor. For private defence is not based—as is the justified ‘necessity’ defence—on the causation of evil to the aggressor that is less than the evil that the aggressor is liable to cause to the person attacked.1277True, when the actor (who by his guilt caused the creation of the situation) is also the person attacked, there is less fear that he will be deterred from committing the justified action of private defence, since a person is concerned for himself and it is reasonable to assume that he will act according to his instinct for survival.
However, when the actor by his own guilt has created a situation in which another person is attacked, the application of the doctrine is liable to deter him from saving the person attacked, although society would desire him to do so.
1276 Such an explanation was provided by Robinson, in Robinson (1984), n 37 above, vol 2 at 41;
and by Gur-Arye, n 13 above, at 224.
1277 There is, however, a requirement of proportionality, yet there is no requirement for a com- pletely equal balance—see Ch 3.8.1 above.
Consequently, I propose that even if the doctrine is adopted, it should be improved by the addition of a mitigating circumstance that the court must con- sider when another person is attacked.
This last difficulty stems from a main difference that exists between the issue under discussion and the case in which the doctrine is frequently used—lack of control. For when a person acts without control (insofar as it is possible to say that he ‘acts’) and commits a criminal offence, his action is undesirable and it is also impossible to direct his behaviour (at the second stage). In contrast, when a per- son acts within the framework of private defence, his action is both justified and desirable and it is also possible to direct his behaviour—although sometimes only in a restricted manner, given the situation of compulsion and the survival instinct.
Thus it is necessary with regard to the matter under discussion to note the possi- bility that the imposition of responsibility by means of the doctrine, even if it is only meant to direct the earlier behaviour (that causes the situation), will also influence (in the direction of deterrence) the behaviour in the situation of compulsion.
In fact, a difficulty exists in the very turning of the criminal responsibility of the actor, who guiltily causes the situation of private defence, into a function of his action in the situation of compulsion and of its results. For if we accept the assumption that his prohibited behaviour and guilt are only to be found at the ear- lier stage when the situation is caused, then what is the justification for increasing his responsibility in accordance with his justified action in the situation itself? If it is accepted that the action in the later defensive situation is justified, there is no reason—at least prima facie—to restrict the action by attributing its damaging results to the actor and imposing responsibility for them. I shall discuss below such a possibility, of determining the criminal responsibility of the actor already at the earlier stage, so that his justified actions in the situation of compulsion would not matter—while considering a possible arrangement of this issue by means of a specific offence of endangerment.
An additional argument against the doctrine is that at the earlier stage the actor usually has no real intention, but, rather, he performs complicated assessments of risks, and, accordingly, the doctrine does not allow an offence of intent to be attributed to him. My opinion is that this argument lacks merit, since if this were the factual situation, then indeed the guilt of the actor would not justify attribut- ing to him an offence of intent, and it would be possible and necessary to rely on an offence of regular mens rea (awareness; recklessness).1278
An interesting utilitarian reasoning for the negation of the doctrine that is set forth in the philosophical literature by Wasserman, is that it would be a waste to permit the provoker to defend himself and to save his life by killing the aggressor, since in any case he is expected (because of the provocation that caused the situa-
1278 See also n 1273 above.
tion) to receive a life sentence.1279I think that this reasoning lacks substance even on the limited utilitarian level. For in the situation described of ‘a life for a life’, the alternative—the killing of the provoker who is prevented from defending himself by the aggressor—will also lead to a long imprisonment for the survivor, since by the very definition of private defence, the attack which the aggressor performs is illegal.
Another disadvantage of the application of the doctrine to the issue under dis- cussion, which is reparable, concerns insufficient restriction of the nature of behaviour required at the earlier stage (when the situation is created). Obviously, there is no room for casuistic limitation of the sort that we have noted before (such as the consideration of attack, bearing of arms, going to a certain place, etc).
However, there is definitely a need for a general limitation. In draft laws inter- nationally, in which the doctrine was partially adopted, a requirement was usually added with regard to the nature of the earlier behaviour. It is common to require illegal behaviour,1280or to suffice with ‘improper’ behaviour1281. When the Israeli legislator arranged the issue under discussion in the new definition of self-defence, he sufficed with ‘improper’ behaviour’.1282With the exception of the special case of ‘The Grand Scheme’,1283it is my opinion that in the remaining cases improper behaviour should not be sufficient, but there should be a requirement for real ille- gal behaviour. Firstly, the (new) use of the term ‘improper behaviour’ is, in my view, very problematic in the criminal field. The term is not defined (it is appar- ently dependent on social evaluation) and it therefore raises inherent interpreta- tive difficulties, vagueness and a lack of sufficient guidance—not only for the public but also for trial judges. In the criminal law, it is highly desirable to avoid—
insofar as this is possible—such general and vague terms.1284 Secondly—and mainly—I maintain that given a legal behaviour (even if it is ‘improper’) of the actor at the earlier stage, there is no room to assign him any sort of criminal
1279 See Wasserman, n 181 above, at 370.
1280 This is so in s 44(6) of the 1989 English Draft Law (Law Commission, A Criminal Code for England and Wales, no 177 (London, 1989)), despite the fact that it relates to the special case of ‘The Grand Scheme’, with regard to which I think that the imposition of responsibility should not be lim- ited by any sort of requirement on the nature of the behaviour (it should be noted that a later version of the English Draft omitted the superfluous requirement for illegal behaviour—see s 27(7) of the 1993 Draft Law (Law Commission, Legislating the Criminal Code: Offences against the Person and General Principles, no 218 (London, 1993)). This is also, in my opinion, the correct interpretation of the Horowitzrule, which deals with ‘a person who knowingly and illegallyplaced himself in the situation ’ (emphasis added—see n 1259 above and accompanying text.)
1281 This is so in s 46 of the Israeli Draft (Proposal for the Penal Code (Preliminary Part and General part) 1992).
1282 The present version of s 34j of the Israeli Penal Code 1977 as established in Amendment no 39 (1994).
1283 With regard to this—as mentioned—my opinion is that given the very serious guilt of the actor, his intention and advance planning of the whole sequence of events, there is no need for a limitation of any sort on the nature of his previous behaviour.
1284 See with regard to this matter the discussion in Ch 1.2 above.