As the title of this section indicates, it concerns a possible area of private defence that constitutes a hybrid of two of its other recognised segments: the defence of another person and the defence of property. At least on the face of it, given the accepted recognition of the applicability of private defence to the defence of another person, it seems appropriate that the same conditions that apply to the defence of the actor’s property should also apply to the defence of another person’s property. Such an approach, that does not distinguish between the property of the actor and the property of another person (so that the discussion of another per- son’s property as a separate area of private defence is rendered superfluous) is well accepted and is reflected in both the majority of scholars’ writings—which do not address the subject of our present discussion separately—and also in the decisive majority of the existing penal codes1033and draft laws internationally,1034that were surveyed during this study. Nevertheless, given the conflicting positions that are reflected in Anglo-American law, the justification for these positions will be briefly examined here.
The traditional limitation was derived directly from the limitation of the defence of another person that was common in the past, and has already been dis- cussed above. But it is interesting to note another limitation here concerning the defence of property of another person in particular. Such a limitation was very common in American law and its vestiges exist to this day. The most common of its variations is the limitation to property that is in the actor’s (defender’s) owner- ship, possession or control. Another variation is a demand for a special nexus, such as a legal obligation, a request for assistance from the owners or a
1033 Apart from the penal codes of Greenland (1954) and Norway (1902; 1961), which require inter- pretation with regard to the defence of another (not only in the context of property) (see n 948 above) and the Penal Code of Sweden (1962; 1972), which needs construction with regard to defence of prop- erty (not of another person in particular) (see n 1000 above), then in all the other approximately 20 penal codes that were examined in this study, the rule of private defence is applied—either explicitly or implicitly—for the defence of another person’s property as well.
1034 While the old version of s 22 of the Israeli Penal Code 1977, limited the defence of another’s property to ‘property that was deposited in the actor’s hands’, there is no distinction between the prop- erty of the actor and the property of another person in the new version of the section regarding self- defence—s 34j—which was established in Amendment no 39 (1994)—‘or to his property . . . his or of another person’.This is also the general picture that is created by the draft law of New Zealand (The Crimes Bill of New Zealand (Wellington, 1989) (s 48)); USA—the MPC (s 3.06); and USA—the Federal Draft (1970) (s 606). The above-mentioned draft of New Zealand, limits the defence of prop- erty to the holder of the property and the person who assists him. As mentioned, the defence of another person is wider than the scope of activities that fall within the boundaries of complicity in the perfor- mance of an offence. However it seems that this is simply an unsuccessful formulation and not an intention to restrict. A similar situation exists with regard to the American MPC—see, with respect to this, n 1036 below.
family kinship.1035However, following the Model Penal Code, which takes the approach that there is no room for the said limitation,1036the American legislators in the various states of the United States also tend to remove these limitations.1037 The principled discussion of the issue at hand raises exactly the same consider- ations that fuelled the discussion of the defence of another person. Firstly, the justified nature of private defence of property leads to the conclusion that there is no room to distinguish between the defence of property of the actor himself and the defence of property of any other person.1038If private defence concerns an excuse that is provided out of consideration by society for the actor’s special situ- ation, or a pardon that is granted because of understanding of his emotions, there might be room to limit the defence of property to relatives of the owner or pos- sessor, for example. But such limitations have no place when a justified, appropri- ate, correct and desirable action is involved. The full justification of defence of property negates the relevancy of the identity of the owner who has rights in it, and his relationship to the actor. An examination of the factors of the autonomy of the person attacked, the guilt of the aggressor and the social-legal order within the rationale for private defence, also leads to the same conclusion that was reached above with regard to the defence of another person; ie, its non-restriction in com- parison with self-defence. With regard to the protection of the social-legal order, for the realisation of this purpose, the need for defence of property of another is even likely, in a certain sense, to surpass the need for the defence of the body of another. Since when the other person himself is attacked he can often defend his body by himself, while when an attack on property is involved, there are very often situations in which the attacked person (the property’s owner or possessor) is not present at all in the place of the event, for example when there is a burglary at his place of business. Although it should not be forgotten that the interest at stake in the latter case (property) is of lesser value than the interest that is at risk in the former case (the physical integrity and even the life of the person), this difference
1035 See La Fave and Scott, n 43 above, at 673–75; Robinson (1984), n 37 above, vol 2 at 89; Perkins and Boyce, n 85 above, at 1158; Heberling, n 62 above, at 940. See also s 27(1)(d) of the English Draft Law (Law Commission, Legislating the Criminal Code—Offences against the Person and General Principles, no 218 (London, 1993)) that adds a condition requiring permission from the owners, to the defence of the property of another person against a tort of trespass (as distinct from a defence against a criminal offence).
1036 It is interesting to note that although in the explanatory wording of the American MPC such an explicit intention to permit the use of force for the defence of property of another appears to the same extent and without any special restriction in comparison to the defence of property of the actor him- self (see the explanatory wording of the MPC, Tentative Draft No 8 (Philadelphia, 1958) at 37), never- theless this intention is not fully expressed in the formulation that is determined in s 3.06 of the Code, that deals with the defence of property. It is possible to find a slight limitation that stems from the restriction of the defence to the following cases: the asset is in the possession of the actor or another for whose defence he acts; the actor acted with the authorization of another or that his right is derived from the right of another.
1037 See the references in n 1035 above.
1038 For a similar opinion see Robinson (1984), n 37 above, vol 2 at 90.
is given full expression in the strong substantive restrictions that apply to the defence of (any sort of) property, and especially the restriction dictated by the principle of proportionality.
The central and almost exclusive argument that supports the restriction on defence of another person’s property is the fear that the actor will make a mistake.
For a stronger foundation for this argument in comparison to the corresponding argument regarding the defence of another person, it is possible to point to two unique characteristics of the issue under discussion. The first: the protected interest, ie, a possessory right in the property—is less in value than the defended interest that might be injured when the actor is mistaken—the person’s (the aggressor’s) health. The second: the decision as to whether there is room for defence of property is complex in comparison to defence of the body. It occasion- ally includes the consideration of laws that arrange rights in property (laws of possession) and are dependent on the non-existence of the owner’s consent.
Accordingly, there is a greater risk that the actor will indeed make a mistake.
The main answer to the argument of the possibility of a mistake is that this pos- sibility cannot negate the real defence of another person’s property, but at most is liable to dictate a certain caution in considering the actor’s mistake within the framework of putative private defence. Such caution may be expressed, for exam- ple, in the requirement that the mistake should be reasonable. Beyond this, several matters should be noted. Firstly, a mistake is also possible with regard to bodily defence. Moreover, it would then involve a significantly greater defensive force that is even liable to be deadly (as opposed to property—given the principle of proportionality). Secondly, in the frequent and realistic cases of defence of prop- erty alone—theft and damage to property—there is less likelihood of mistakes, especially if the use of force for the defence of property is conditioned upon a pre- ceding demand to the aggressor to cease—a demand that enables him to explain the reason for his actions and thus to prevent mistakes.1039
In conclusion, with regard to the question about the appropriate conditions for justified private defence of the property of another person, all the conditions and limitations that apply to the defence of the property of the actor himself must be applied to it, and primarily the restrictions—which are very significant when defence of property is concerned—dictated by the principle of proportionality.
1039 For a similar opinion see Heberling, n 62 above, at 940ff.