5.4 Situation of Private Defence Caused by the
5.4.5 Arrangements in Different Legal Systems 1230
The accepted approach is to deny private defence in certain cases—either com- pletely or partially, while imposing diminished responsibility. The case for which such a denial is very common is the case of ‘The Grand Scheme’, that was discussed above and that does not raise any particular difficulty. Consequently, I shall focus attention on the framework for the issue with regard to other cases. It should be noted that this issue is not usually arranged in legislation at all,1231and conse- quently the search for its arrangement must take place in case law. Parenthetically, it is noted that this situation is undesirable, since a general issue is concerned whose arrangement—at least at a basic level—is the function of the legislature, and this is in light of, inter alia, the principle of legality1232; 1233.
It is interesting to note that other criminal law defences, and particularly ‘neces- sity’ and ‘duress’, actually enjoyed many more statutory arrangements of the issue under discussion.1234One interpretation that was suggested for this legislative dis- tinction is that the legitimacy of private defence is absolute, and there can be no derogation from it even when the malicious attack against which private defence is used happened because of prior awareness and improper behaviour of the defender or protector.1235However, this explanation overlooks the fact that in the
1229 See Robinson (1984), n 37 above, vol 2 at 44.
1230 Given the limited scope and the great variety of arrangements—mostly too casuistic—that have been specified for this issue in various legal systems, and also in light of the lack of necessity for this matter for the purposes of this book, I shall avoid a detailed survey of the legal situation of the issue in different legal systems that were examined, while attempting instead to identify different attitudes with regard to this issue within them.
1231 From amongst more than twenty existing penal codes that were surveyed, an explicit arrange- ment for this issue was only found in three of them—s 24 of the Greek Penal Code (1950); s 34(6)(c) of the Argentinian Penal Code (1921); and s 8 of the Spanish Penal Code (1944; 1963). This issue is also arranged similarly in the legislation of a number of states in the United States—see the surveys given in La Fave and Scott, n 43 above, at 658ff; Kadish and Schulhofer, n 640 above, at 884ff; Robinson, n 1194 above, at 660ff. See also n 1233 below.
1232 See the consideration of this basic principle (legality) in Ch 1.2 above.
1233 It should be noted that the Israeli legislator fulfilled this function and provided explicit consid- eration for our issue in the Penal Code, at first in Amendment no 37 (1992) and later in Amendment no 39 (1994)—see the end of s 34j of the Penal Code, 1977 (quoted at n 1269 below.)
1234 See, eg, Gur-Arye, n 336 above, at 82.
1235 Feller, n 14 above, vol 2 at 472.
case law of different legal systems this issue was also arranged with regard to private defence.1236
A significant question, dealt with widely in various legal systems, is what should be considered as relevant causation, ie,: which prior actions of the actor that caused the creation of the situation of compulsion can negate private defence for him or—at least—impose additional limitations on him. One mistaken tendency is to focus on the (prior) attack alone (by the actor towards his future aggressor), while ignoring the possibility of causation due to other behaviours.1237Another common tendency is to determine many casuistic rules, which relate to typical behaviours that may be considered relevant. These rules mainly involve the carry- ing of arms, going to a certain place despite the expectation that a conflict will arise there (or remaining in a certain location despite such an expectation), actions which go against the biblical commandment ‘Thou shalt not covet’, and partici- pation in a duel or fistfight.
Without drowning in the ocean of the existing rules regarding these typical cases, it seems that certain short remarks are nevertheless required. Firstly, a gen- eral determination should be preferred over casuistic rules with regard to the nature of the relevant prior behaviour. The main options are—from the lighter (for the actor) to the more serious—concentration solely on illegal behaviours;
sufficing with improper behaviours; and a complete lack of a limitation on the nature of the prior relevant behaviour. These possibilities will be addressed below in full.
A second remark relates to the carrying of arms. Indeed carrying a weapon may serve as an evidentiary indication of the actor’s mental element, such as the fact that the actor planned the entire series of events in advance, or the fact that he foresaw the possibility that if he should be attacked he would react with deadly force.
However, carrying arms should not be seen, by itself, as prior behaviour that negates private defence, even if the weapon was carried without a licence. Even when there is room to impose specific criminal responsibility for the carrying of an unlicensed weapon, this does not necessarily negate the justification of the weapon’s use when the conditions for private defence exist. Nevertheless, in various court rulings, the carrying of a weapon, especially without a licence, occasionally operates improperly to negate the justification of the actor’s defensive action.1238
A third remark relates to the actor remaining in his present location, despite his knowledge that the potential aggressor is on his way there, and the actor proceeding to a certain location despite his knowledge that the potential aggressor is present
1236 See, eg, Robinson (1984), n 37 above, vol 2 at 30.
1237 See, eg, the wording of the drafters of the MPC Tentative Draft No 8 (Philadelphia, 1958), at 21–23; and the consideration of American case law in Perkins and Boyce, n 85 above, at 1128.
1238 See the discussion in the text accompanying nn 523–26 above; the similar opinion in Williams (1983), n 1 above, at 508–9 (noting the prejudice that judges often hold against the actor because he carried a weapon); and compare to the different opinion of Ashworth, n 183 above, at 297–99.
there.1239These cases should also be arranged according to the general principle established for this issue, and not casuistically. Their fate should be decided accord- ing to the mental element of the actor that accompanies his behaviour, and in addi- tion—at least according to some of the approaches—according to the quality of the behaviour, ie, whether it is illegal or improper. Fitting for this matter are the words of Beale, according to which a person does not have to measure his actions accord- ing to fear of his opponent’s actions, and he is entitled to assume that the threats of his opponent will not be realised and to continue with his legitimate activities with- out change.1240It is interesting to note that English case law devoted much attention to this situation.1241
The fourth remark deals with the American case law, which being very con- cerned about the cases relating to the biblical order ‘Thou shalt not covet’, con- structed many rules that distinguish between a relationship with a married woman and a relationship with an unmarried woman; between sexual intercourse and a platonic meeting; between defensive behaviour against the betrayed husband that ends with his death and more moderate defensive behaviours; etc.1242However, here too, there is no room for a deviation from the general principle adopted in that same legal system for the general issue under discussion.
The fifth and last remark on this matter concerns the actor’s participation in a duel or a fistfight. English, American and Israeli case law all focused on the impact of the consent (or even the initiative) of the actor to participate in a duel or a fight on his right to self-defence.1243In such a case, the imposition of a heavy duty to
1239 I have already noted two frequent mistakes regarding this matter—the unsubstantiated dis- tinction between an omission (remaining in the location) and an action (going to another place) and the identification of the question as apparently stemming from the duty to retreat—see Ch 3.9.7 above.
1240 See Beale, n 656 above, at 543–44. An exception to this is, in my opinion, the special situation of ‘The Grand Scheme’, which was discussed above. Given intention and prior planning, there is no requirement for the illegality of the action at the first stage (the causation of the situation) in order to impose criminal responsibility.
1241 The main rules were laid down in the cases of Beatty v Gillbanks(1882) 9 QBD 308—where it was determined that the use of a public way is illegal when it is used despite (illegal) threats that create a reasonable likelihood of a disturbance of the peace; R v Browne (1973) N I 96—where a similar general principle was established; and R v Field (1972) Crim L Rev 435—where the Beatty v Gillbanks principle was denied. See, eg, Smith and Hogan, n 284 above, at 258ff; the explanatory wording of the English Draft Code (Law Commission, Legislating the Criminal Code: Offences against the Person and General Principles, no 218 (London, 1993)) at 77; Ashworth, n 183 above, at 295–96.
1242 See, eg, Beale, n 656 above, at 535; Baum and Baum, n 1 above, at 14; Kadish and Schulhofer, n 640 above, at 884; Perkins and Boyce, n 85 above, at 1132; American Jurisprudence, n 500 above, vol 40 at 621–22 and vol 6 at 71.
Another type of case that has bothered American courts in the last years is, oddly, possession of cocaine. Thus, eg, possession of cocaine qualifies as a ‘forcible felony’ under the Kansas statutory scheme for felony murder and therefore precludes the defendant from asserting self-defence—see the 2002–3 Supplementation to Robinson (1984), n 37 above, vol 2 at 27–28 fn 7. In my opinion, crime control should not be mixed with self-defence.
1243 See, eg, American Jurisprudence, n 500 above, vol 40 at 614; Beale, n 40 above, at 575; CA 410/71 Horowitz v The State of Israel PD 26(1) 624, at 629; and CA 298/88 Twito v The State of Israel PD 44(1) 151.
retreat on both sides to the conflict is widely accepted. A reasonable explanation that was given for this is that by his retreat, one of the sides revokes his consent to fight, so that from that same moment it is justified to view him as the person attacked and to see his opponent as an aggressor. Thus too, it is common to deny the right to self-defence for a person who participates in a duel—with certain exceptions. In Israel an attempt was made—to which I shall refer later—in the Twitoruling,1244to predicate the entire rule with regard to the issue under discus- sion on the element of participation in a fight. In my view, cases of duels and fistfights should also be subject to the general arrangement that should be estab- lished for the entire issue under discussion.
In effect, the above-mentioned rules, as well as many other rules, are the result of the lack of a general principle for the arrangement of the issue in some legal systems. In English case law, the very rigid Browne rule (1973) is well known, determining that:
The need to act must not have been created by conduct of the accused in the immediate context of the incident which was likely or intended to give rise to that need.1245 This rigid rule, which in effect suffices with negligence for the negation of private defence, evoked wide and justified criticism. As expected, it was not followed con- sistently.1246
As to American law, Robinson located no less than six different approaches for the treatment of this subject.1247The accepted approach, in any case, is that one who by his own guilt causes the situation has no right to private defence, with recognised exceptions—to be discussed below (at 5.4.6) of ‘withdrawal’ and a sur- prising alteration in the rules of the game1248; 1249.
1244 CA 298/88 Twito v The State of Israel PD 44 (1) 151.
1245 See the ruling R v Browne (1973) NI 96, and see also the discussion of the holding in Smith and Hogan, n 284 above, at 258.
1246 See, eg, Smith and Hogan, n 284 above, at 244–45.
1247 (1) Withholding a defence upon any causal contribution.
(2) Withholding a defence upon a minimum culpability as to causing the defence conditions.
(3) Imposing reduced liability upon a minimum culpability as to causing the defence condi- tions.
(4) Imposing a degree of liability corresponding to the level of culpability as to causing the defence conditions.
(5) Inconsistent approaches within the same jurisdiction.
(6) Failure to consider an actor’s culpability in causing the conditions of his defence.
(See Robinson, n 1194 above, at 660–94).
1248 See eg, Perkins and Boyce, n 85 above, at 1115, 1127–42; American Jurisprudence, n 500 above, vol 40 at 618–23; the encyclopedia ed by Kadish, n 96 above, vol 3 at 948.
1249 Such a general approach has been adopted in the Israeli Law—CA 410/71 Horowitz v The State of Israel PD 26(1) 264; CA 88/83 Shukrun v The State of Israel PD 38(2), 617; see as well the discussion of these cases later in this chapter (at 5.4.6). For a different opinion—according to which these rules constitute an adoption of the doctrine of actio libera in causa—Gur-Arye, n 336 above, at 82, 97.
I will reiterate here the distinction recognised in American law that was noted in Section 5.3.4 between a perfect right of self-defence and ‘imperfect self-defence’.
The traditional and most accepted flaw, for which it is recognised in the American case law that the actor is entitled only to a mitigating circumstance of ‘imperfect self-defence’, is the guilt in creating the situation of private defence.1250A princi- pal implication of this distinction is that a person who enters by his own guilt into a situation of private defence has a duty to make a ‘withdrawal’, including an announcement to his opponent of his honest desire to cease the conflict before he turns to the use of force.1251
A certain elaboration is necessary here—both with regard to the regular retreat and with regard to withdrawal—in the special context under discussion. The main case, in which it is accepted by all—even in legal systems where no retreat is required at all—that the attacked person must exhaust the possibility of retreat (sometimes—even if it is not safe) before resorting to the use of defensive force (sometimes—even if it is not deadly force), is when the attacked person by his own guilt caused the situation in which he has to defend himself.1252The duty to retreat is occasionally perceived as almost the sole consequence of the prior guilt of the actor. Only against this background is it possible to understand the words of the drafters of the Model Penal Code, according to which given the fact that they had established a general requirement of retreat before the exercise of deadly defensive force, they no longer saw a need for an arrangement for the issue under discussion apart from consideration of the special case that we have above dubbed ‘The Grand Scheme’.1253
In distinction to the regular duty to exhaust any possible avenue of safe retreat, as I noted above in another context,1254it is common to impose a stronger duty on one who by his guilt caused the situation to perform what is known as ‘with- drawal’. The important implication of the performance of withdrawal by the actor is that even if the opponent insists on persisting with the conflict, the actor is freed—at least partially—from the responsibility for the situation (even though at the first stage he caused it by his guilt). In effect, the withdrawal creates a sort of severance1255between the actor’s actions, which led to the situation, and his defen- sive action in the situation of the compulsion itself.
1250 See, eg, the explanatory wording of the MPC (Tentative Draft No 8 (Philadelphia, 1958)) at 29.
1251 See the text that begins with the reference to n 841 above.
1252 See ibid.
1253 See the explanatory wording of the American MPC (Tentative Draft No 8 (Philadelphia, 1958)) at 21–23.
1254 See the text that begins with the reference to n 841 above and the references that appear there.
1255 This involves a legal severance, since the factual chain of causation, evidently, continues to exist.
An explicit determination in the law that the use of defensive force after a ‘withdrawal’ is justified despite the prior guilt of the actor, was suggested in s 603 of the American Federal Draft Code (National Commission on Reform of Federal Criminal Laws, Study Draft of a New Federal Criminal Code (1970)).
Here a certain clarification is necessary of the one-directional relationship between prior guilt and the duty to retreat. While prior guilt of the actor may impose a stronger duty of retreat upon him, a breach of the duty to retreat should not be viewed as prior guilt of the actor, since the duty to retreat is not a per se duty that exists for its own sake, but rather constitutes part of the conditions of private defence. Consequently, when a person goes to a place in which danger to him is anticipated, against which it is reasonable to assume that he will have to defend himself by the use of force, there is no1256room for a discussion of the duty to retreat, but rather—if at all—a discussion of the prior guilt of the actor. There is only room for a duty to retreat in the situation of compulsion itself.1257