In the ancient English common law, self-defence was viewed solely as an excuse and not as a justification. It is therefore only natural that the excuse was then allowed to the attacked person alone and, at most, to his relatives who came to defend him.968 An additional factor that made the acceptance of defence of another person difficult was the terminological barrier constituted by the then accepted term ‘self-defence’—a term that at least literally speaking only embraces defence of the self.969 It is interesting that historically, the defence of another apparently developed within the common law, not from self-defence (of the actor for his life and body) but, strangely enough, from the defence of property. In ancient times, when the wife, children and servants of a man were perceived as his property, the defence of property also included them. Later, defence of the man by his wife, children and servants was permitted—in order to create mutuality.
Gradually the defence of another was widened to also include more distant rela- tives, until the defence of strangers was also finally recognised.970The first known authority for recognition of the defence of any other person—including a stranger—was the 1634 decision of Walter v Jones.971
964CA 89/78 Affangar v the State of IsraelPD 33 (3) 141, at 149–55.
965Such a view may indeed support an undesirable limitation of the defence to the relatives of the person attacked alone. See nn 954–55 above and accompanying text. See also Ch 1.4 above.
966For this point see Kremnitzer, n 10 above, at 183; Omichinski, n 31 above, at 1460 fn 77. See also Ch 1.5.4 above.
967For this point see Omichinski, n 31 above,at 1460 fn 77, Enker, n 89 above, at 237. See also Ch 1.5.7 above.
968See, eg, Williams (1982), n 1 above, at 738; and also Chs 1.4 and 1.3 above.
969See n 950 above and accompanying text and also n 1 above.
970See Perkins and Boyce, n 85 above, at 1144ff; vol 3 of the encyclopedia ed by Kadish, n 96 above, at 951.
971See Williams (1982), n 1 above, at 738 fn 21 (Walter v Jones, 2 Rolle’s Abridgement, 526(c)(3)).
An additional English ruling that deserves mentioning since it reflects a trend that existed in the recent past—is the 1967 ruling of Duffy.972The Court of Appeal avoided reaching a decision regarding the restriction of the defence of another by a requirement of a certain kinship between the actor (the defender) and the per- son attacked, and preferred to base its decision on another defence that exists in English law—the prevention of a crime. Today, pursuant to section 3 of the Criminal Law Act 1967, the defence is no longer restricted to offences of the
‘felony’ type, but encompasses the prevention of all types of offences.973In any case, it is currently recognised in English law that the defence of another person is not limited to relatives alone.974
In English law it is possible to find cautious consideration of the possibility that the actor, who comes to the defence of another, may make a mistake in his evalu- ation of the situation. Such consideration is expressed in the determination that the actor acts ‘at his own peril’, so that if he was mistaken in his estimation of the situation, he will not be entitled to the defence, but criminal responsibility will be imposed upon him. In passing, it should be noted that this is substantively a situ- ation of putative defence. However, in light of the existing tendency in Anglo- American law to combine putative defence with real private defence, this issue is not addressed there as an issue of putative defence but as an issue of private defence.975
Some commentators find current authority for such an approach in the 1971 decision of Fennell.976The accused attacked a police officer in order to save his son from an arrest, which the accused deemed to be illegal (the accused mistakenly thought that his son had not taken part in the fight, the participants in which were arrested by the police officers). The Court of Appeal held that one who saves another from police arrest does so on his own responsibility, and if he was mis- taken, his mistake cannot exempt him from responsibility. However, this ruling cannot serve as a ‘clean’ (unbiased) authority for our discussion, since it concerns the use of force against law enforcement officers, and this is an issue in which weighty policy considerations operate, as mentioned earlier,977to negate the right to private defence even when the arrest is illegal.
The rule according to which the defender of another person acts ‘at his own peril’, is expressed more strikingly in American law. Several courts have taken an approach called the ‘alter ego’; according to this approach the right to defend another is united with the right of the other (the person attacked) to defend him-
972 See the ruling R v Duffy (1967) 1 QB 63, (1966) 1 All ER 62, CCA.
973 See, eg, Smith and Hogan, n 284 above, at 257.
974 See, eg, vol 11(1) of the encyclopedia Halsbury, n 730 above, at 350; S, n 91 above, at 123–124;
Williams (1983), n 1 above, at 501. See also s 305 (private defence) of Stephen’s Digest, n 228 above.
975 See Ch 2.2 above and Ch 5.2.2 below.
976 See the ruling R v Fennell (1971) QB 428.
977 See Ch 3.4.3 above. For a discussion of the ruling in Fennell, see the references in nn 586–87 above and accompanying text.
self with real self-defence (as distinct from putative),978as though the actor were placed in the shoes of the other person whom he defends. The famous ruling in this matter was handed down in 1962 in the case of Young.979The accused came to the rescue of a young person who was being beaten by two men. To assist him, the accused attacked the two men. It later became clear that they were detectives in civilian attire who were making a legal arrest.980In the first legal proceeding, the accused was convicted of assault. The appellate court overturned the conviction, while repudiating the doctrine of the ‘other person’s shoes’. In a subsequent appeal, the ruling was again reversed, by the Appeals Court of the State of New York, which determined that a person who assists another does so ‘at his own peril’, since the right to defend another should not exceed the right to self-defence.
Subsequently, the New York legislator had the last word, by determining that if the actor (the defender) himself believes in the existence of the elements of the defence, this is sufficient for the defence to apply to him. In other states of the United States there was also much deliberation concerning this issue, and various frameworks were established there, although it may definitely be possible to point to a trend in new statutes to abandon the ‘alter ego’ approach.981
The possibility that a person who comes to the defence of another—and espe- cially a stranger—could be mistaken in his evaluation of the situation, engendered two problematic arrangements in American law: the first—the limitation of the defence of another to relatives alone. The assumption is that when a person comes to rescue his relative, he is usually aware of the development of the situation and can accurately evaluate the situation, so that he knows whether his relative is the person attacked or the aggressor. By contrast, if he comes to defend a stranger, it is very probable that he will be mistaken. Even if this factual assumption is true (and this may be questionable982), it does not provide sufficient support for the
978See, eg, Perkins and Boyce, n 85 above, at 665.
979See the ruling in People v Young, 12 NYS 2d 358 (1961), 11 NY 2d 274, 183 NE 2d 319 (1962).
980Apparently the case of Youngcan also be viewed, as can the case of Fennellwhich I mentioned above, as influenced by reasonable policy considerations with regard to resistance to arrest. However, it should be remembered that there is no reason for a prohibition of resistance to arrest when the actor was—as Youngwas—totally unaware that it concerned law enforcement officers.
981See, eg, Kadish and Schulhofer, n 640 above, at 874–75; Vol 3 of the encyclopedia, ed. by Kadish, n 96 above, at 952; La Fave and Scott, n 43 above, at 665; Perkins and Boyce, n 85 above, at 1148. In the last edition of their book (2001), Kadish and Schulhofer give an updated picture of American law, as follows: the instance of strict liability is now rejected by many jurisdictions, which grant a defence to the mistaken third party on the condition that he holds a reasonable belief in the facts necessary to sup- port the use of defensive force. An example is the case of State v Beeley653 A 2d 722 (RI 1995).
Conversely, if the third party knows that deadly force is in fact unnecessary (eg, if he knows that the aggressor’s weapon is unloaded), then he is not justified in killing the assailant, even if the person attacked might be justified in doing so—see Kadish and Schulhofer, n 38 above, at 782.
982Given the emotionality with which a relative acts, doubt should be cast on such an assumption.
Nevertheless, it may be claimed that the chances of deterring a person from defending a stranger—if indeed there is a desire to do so—are higher in comparison to the case of defence of a relative. But here there is already a hint of a mistaken consideration of private defence, as if it were an excuse instead of
limitation of private defence of another to relatives alone.983Firstly, if a person comes to rescue a stranger and does not make a mistake but does indeed save the person attacked from the hands of his aggressor, there is no logic in negating the defence only because of the hypothetical possibility that he might be mistaken.
Secondly, the rationale of private defence and the desirable social policy make it necessary to encourage the law-abiding citizen to come to the defence of others, also—and perhaps principally—when a stranger is involved. Consequently, such an arrangement, that leaves attacked persons who do not have (strong) relatives or whose relatives are not present at the scene of the event, defenceless, (except for the rare cases when the police are present at the location), ought to be rejected.
This leads to the other arrangement—the determination that the defender of another does so ‘on his own responsibility’. This is a negation of the relevancy of the actor’s mistake—a negation that is unjustified. General principles that condi- tion criminal responsibility on the existence of guilt necessitate the consideration of mistakes (at least factual mistakes). Just as a person who mistakenly thinks that he is attacked illegally and thus injures his putative aggressor should be excused, so too should the actor who mistakenly determines that a person who he comes to assist is being attacked illegally by another towards whom the actor exercises defensive force. A separate question—that involves serious policy considera- tions—is what the conditions should be for the said excuse. When the mistake is made by the attacked person himself, who acted in putative self-defence, there are two principal approaches. According to the first, the factual mistake itself is sufficient. According to the second, it is required that the mistake should also be reasonable.984 If it is desirable for society to reduce interventions and to deter people from coming to the rescue of others, then it is possible to establish an arrangement that is far more rigid with regard to the defence of another (for exam- ple: if the very fact of the mistake is sufficient for putative self-defence, it is also possible to demand reasonability of the mistake for the purpose of putative defence of another). In contrast, if society is willing to encourage people to come to the defence of others, a less restrictive arrangement may be established with regard to the defence of another (for example: even if reasonability of the mistake is required for putative self-defence, it is possible to rely on the mere fact of the mistake for the putative defence of another). In my opinion, the preferable approach lies between these two. According to this approach, putative defence of
a justification. Moreover, as I will argue below, it is actually desirable to encourage the defence of another and not to deter it.
983 A similar opinion—Enker, n 89 above, at 1199ff (claiming that it would be absurd to say that a stranger is forbidden to rescue a pursued person from death in these circumstances. The saving of life is a supreme value and one who harms the pursuer in order to save another’s life performs an action that should be encouraged and blessed.); see also Robinson (1984), n 37 above, vol 2 at 88–89.
984 See Ch 5.2.3 below.
another should be arranged in the same way as putative self-defence, since they both have identical central considerations.985
To complete the picture of the position of contemporary American law with regard to the defence of another, the framework that is established in the Model Penal Code should be noted. Firstly, the most outstanding feature of this arrange- ment is its separation (at least physically) from the arrangement that is provided for self-defence. While the latter (self-defence) is determined in section 3.04 of the MPC, the defence of another is arranged in a separate section—3.06. The basis for such a separation must be the existence of significant differences between the sub- jects. However, there are no such differences between self-defence and the defence of another. This separate arrangement is even stranger given what was said in the explanatory wording of the MPC. In their consideration of statutes in which odd distinctions were established, such as the limitation of the defence of another to cases in which the attack is a ‘felony’, the drafters of the MPC wrote that this has no place, and that ‘The simple solution of the whole problem is to embed the defence of strangers in the defence of oneself ’.986However, they themselves did not act according to this recommendation, since they arranged the defence of another separately. If that arrangement had been identical to that of self-defence, my criticism would be restricted to the superfluous duplication. And even this duplication may perhaps be explained in light of the general policy of the MPC—
restriction of the permissible force to the prevention of a crime and the enforce- ment of the law, while shifting the emphasis to the defence of another.987 However, the defence of another was provided with a different framework from that which was established for self-defence. Section 3.05(1) determines, as follows:
Section 3.05 Use of Force for the Protection of Other Persons.
(1) Subject to the provisions of this Section and of Section 3.09, the use of force upon or toward the person of another is justifiable to protect a third person when:
(a) the actor would be justified under Section 3.04 in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect; and
(b) under the circumstances as the actor believes them to be, the person whom he seeks to protect would be justified in using such protective force; and
(c) the actor believes that his intervention is necessary for the protection of such other person’.
985See alsoibid.
986See the explanatory wording of the MPC (Tentative Draft No 8 (Philadelphia, 1958)) at 31.
987This is the policy that Perkins and Boyce attribute to the MPC—see Perkins and Boyce, n 85 above, at 1148. Another possible explanation for the separation of defence of another from self-defence is the complexity of the rules that were provided for the possibility of retreat in defence of another (see s 3.05(2) of the MPC). It should be noted that these rules are complex and complicated to the extent that the guidance that can be derived from them is doubtful. See also Robinson’s criticism in Robinson (1984), n 37 above, vol 2 at 104, and Ch. 3.9.4.5 above.
Beyond my opposition in principle to the mixture of putative defence with real defence while considering the belief of the actor instead of the objective circum- stances,988two superfluous and unjustified conditions that were determined for the defence of another stand out clearly. I have already noted the lack of justification for the above condition (b).989There is no room to condition the right to defend another upon the right to self-defence of the person attacked him- self.990As for the above condition (a), it too is undesirable, since a situation might occur in which a force that the actor is not justified in using for his own defence should be justified for the defence of another. Such is the situation when the weapon of the aggressor is short range (a stick, for example) and the actor is able to run fast, so that if the actor were himself to be attacked, the option of a safe retreat would be available, while the person who is actually attacked is slow and incapable of retreating, but needs the defence of the actor.991