The leading ruling in English law, and the most famous in Anglo-American law on this subject, was handed down in the year 1850 in the case of Dadson.904The accused was a police officer who was guarding a grove from which trees had been stolen. When he noticed a thief carrying wood, and after the latter refused to stop, the accused shot him and wounded him. The accused was charged with the offence of illegal shooting with the intention of causing severe bodily injury. In those days, it was legal to shoot an escaping felon with the purpose of stopping him. According to the law of theft that was then in existence, the theft of wood was not a felony unless the thief had two previous convictions for the same offence. In fact, that offender had the required previous convictions, so that he was a ‘felon’, but the accused Dadson of course did not know about these convictions. Consequently, it was decided that in the absence of his awareness of the justifying circumstances, the justification was not established, and the accused was convicted.
English scholars paid considerable attention to this ruling. Williams claimed, for example, that the verdict was mistaken, for if it had been correct, a British sol- dier who killed an enemy soldier in a military action believing that he had killed
903This is the place to note that the decisive majority of scholars agree that at a minimum, aware- ness of the actor of the justifying circumstances should be required. Apart from the scholars that I noted above, see also, eg, Hall, n 13 above, at 228–34; Perkins and Boyce, n 85 above, at 1114;
Heberling, n 62 above, at 917ff; La Fave and Scott, n 43 above, at 655; Greenawalt,, n 37 above, at 294;
Smith and Hogan, n 284 above, at 34–35, 259.
904See the ruling, Dadson (1850) 4 Cox CC 358. Although this does not involve private defence but another justification—the use of force in order to perform an arrest—the ruling was addressed exten- sively in legal literature, including in discussions of private defence.
his own commander would be guilty of murder.905In Williams’ opinion, this con- clusion would be ridiculous. However, I do not see what is ridiculous in such a conviction, especially given the rule that is recognised currently regarding trans- ferred intention.906 Smith, who refers to the above-mentioned example of Williams, claims that it is not relevant to our discussion. Yet his reasoning is weak, since it is based on the fact that murder is traditionally defined in English law as
‘killing of a person under the queen’s peace’, while the enemy soldier who goes to war against the queen is not under the queen’s peace, so that an element of the definition of the offence is missing.907To Smith’s credit, it should be noted that apart from this very formal reasoning for the negation of Williams’ example, he also later presents substantive reasoning: the behaviour of the actor does not improve only because justifying circumstances exist of whose existence the actor is unaware, since this involves pure chance.908
The legal situation in England is that the Dadsonjudgment (according to which awareness of the justifying circumstances is required) applies to private defence, but until recently the detention rules were interpreted to the effect that the Dadson judgment did not apply to the use of force for the performance of an arrest.909
The majority of the members of the English committee that stood behind the Draft Criminal Code of 1989 supported the Dadsonrule and asserted that it was desirable to require a certain mental element for the establishment of private defence. Nevertheless, because of considerations of consistency with the existing English law regarding arrest (with regard to which they thought that objective cir- cumstances were sufficient in and of themselves), the Draft English Code defined private defence in such a way, that no mental element of any sort was required in order to establish it.910 The phrase that was provided is ‘in the circumstances which exist or which he believes to exist’. In the explanatory wording, the drafters clarified that they included the alternative of (subjective) belief in the existence of circumstances in this section only in order to emphasise the independence of the alternative of (purely) objective existence of the circumstances.911Thus, to speak metaphorically, the members of the committee added a ‘sin’ to a ‘crime’. The
905 See Williams, n 13 above, at 22.
906 With regard to transferred intention (generally) see, eg, Williams (1983), n 1 above, at 907–8.
907 See Smith, n 91 above, at 30–31.
908 Ibidat 31–32.
909 See 6th edn of JC Smith and B Hogan, Criminal Law, at 38, 245ff, who also support this rule. In the 9th edn of their book, Smith and Hogan, n 284 above, from 1999, a new interpretation of the English detention rules is suggested, according to which awareness of the justifying circumstances is required not only for private defence, but also when use of force for the performance of an arrest is involved—see ibid, at 34, 259. For further support of the Dadsonruling see Christopher, n 76 above.
910 See the explanatory wording of the Draft English Criminal Code of 1985 (Law Commission, Codification of the Criminal Law, no 143 (London, 1985) at 123); the explanatory wording of the Draft Code of 1989 (Law Commission, A Criminal Code for England and Wales, no177 (London, 1989), at 231ff); 6th edn of Smith and Hogan, Criminal Law, at 38, 245ff; Smith, n 91 above, at 32–41.
911 See s 44 of the Draft English Criminal Code (Law Commission, A Criminal Code for England and Wales, no 177 (London, 1989)), and also the explanatory wording, ibidat 231ff.
‘crime’ was the lack of a requirement of a mental element of any sort for the estab- lishment of private defence, in contradiction to the committee members’ own opinion of what would be the suitable law for this issue. The ‘sin’ is adding puta- tive defence (since this is the meaning of the alternative regarding belief (alone) in the existence of the circumstances) and placing it on an equal footing with real pri- vate defence.912 If the members of the committee wished to shape a consistent framework, they could have done so by establishing a requirement of a mental element in all the justifications.913It should be noted that the members of the committee did, indeed, eventually take this preferred path, within the framework of the ‘Consultation Paper’ of 1992, in which they proposed changes to their Draft of 1989, and subsequently also in the 1993 version of the Draft Code.914
In American law also, as in English law, a mental element is required for the establishment of private defence. Moreover, the actor’s awareness of the justifying circumstances is usually insufficient, and a purpose of self-defence or protection is also required.915In this matter, the Model Penal Code reflects the existing law.916
912A mistake that I already noted—see Ch 2.2.1 above. See also Ch 5.2.2 below.
913Moreover, although consistency is a positive approach, especially in legislation, this is not the case when it is forcibly imposed on two matters that are substantively different, such as private defence and arrest. Smith noted this substantial difference that deviates from the scope of our discussion, in light of the ruling in Thain (1985) Northern Ireland Law Reports Bulletin 31—see Smith, n 91 above, at 34ff; the 6th edn of the book, Smith and Hogan, Criminal Law, at 246. As Smith noted, if this Draft Law had been legislated, this would be—both in his opinion and in the opinion of most of the mem- bers of the Legislative Committee—a change for the worse with regard to the law on the issue of the subject under discussion; a change that was considered to be positive by one member of the commit- tee, Williams—see Smith, n 91 above, at 41.
914See the explanation regarding the new requirement of the actor’s awareness of the justifying cir- cumstances, in s 20.9 (beginning at p 64) of the ‘Consultation Paper’, Law Commission, Legislating the Criminal Code: Offences against the Person and General Principles, no 122 (London, 1992). It should be noted that the version of this s of the law that is presented there (at 88) does not restrict itself to awareness, but also requires a certain purpose (‘28.–(1) The use of force by a person for any of the pur- poses specified’). See also s 27 of the Draft Code of 1993, Law Commission, Legislating the Criminal Code: Offences against the Person and General Principles, no 218 (London, 1993).
915See, eg, Fletcher (1978), n 1 above, at 557; Silving, n 1 above, at 304; Perkins and Boyce, n 85 above, at 1114; La Fave and Scott, n 43 above, at 655; Heberling, n 62 above, at 917–18; Baum and Baum, n 1 above, at 27; Greenawalt, n 37 above, at 281. It should be noted that this relatively long list of references is presented in order to illustrate the lone nature of the only scholar who asserted that there are also author- ities in American law for the lack of a requirement of a mental element, which are even comparable in number to those which support the requirement—see Robinson (1975), n 37 above, at 290 (the reader’s attention is drawn to the limited number of authorities that he brings to support his claim that American case law also exists which holds that there is no requirement for a mental element of any sort); Robinson (1984), n 37 above, vol 2 at 13 (where Robinson claims an almost equal split between the authorities).
916The version that determined it is: ‘the actor believes that such force is immediately necessary for the purpose of protecting.
This wording does not literally demand that the actor should have a protective purpose, but it appears to be sufficient if he believes that the force is necessary for the purpose of protecting. Yet, from the explanatory wording it appears that the drafters intended to require a purpose as a mental element of the actor. However, despite the intention of the drafters, the section may be interpreted differently. See s 3.04 of the MPC and the explanatory wording of the Tentative Draft No 8 (Philadelphia, 1958) at 17. Here, too, Robinson stands alone with his different interpretation, according to which there is no requirement—
pursuant also to the MPC—for a certain purpose—see Robinson (1984), n 37 above, vol 2 at 18, 21.
The requirement of a purpose of self-defence or protection as a condition for the establishment of private defence also exists in German law917and is recognised as the existing law in many additional legal systems.918In modern proposals for legislative reform overseas, it is also common to require a purpose. This is the situation in all the Israeli draft laws,919 in the draft laws of England and New- Zealand,920in the Model Penal Code of the American Law Institute and in the American Federal Draft.921 The exceptional drafts—in which the objective approach is taken, according to which the existence of justifying circumstances themselves suffice—are a previous English draft from 1989 that was noted above922and the (separate) private proposals of Robinson and Silving.923
917 See, eg, HH Jescheck, Lehrbuch des Strafrechts(Berlin, 1988) at 307 (consideration of private defence) and at 294–95 (consideration of justifications in general), Hermann, n 342 above, at 750 (‘In German law, intent to defend is a necessary requirement of self-defense’); Silving, n 1 above, at 304;
Fletcher (1978), n 1 above, at 557; Robinson (1984), n 37 above, vol 2 at 23.
918 With regard to Western legal systems, see Fletcher (1978), n 1 above, at 557 and Fletcher, n 75 above, at 1363–64. As to the penal codes of various states, while in some of them the requirement is not explicit but needs interpretation, in six of the twenty penal codes that were examined in this study there are strong indications of a requirement of a purpose of defence or protection (this concerns the penal codes of Finland (1889; 1996) (s 6); China (1979) (s 17); Rumania (1968; 1973) (s 44); Sweden (1962;
1972) (s 24(1)); Korea (1953) (s 21) and Queensland (Australia) (ss 271–73).
919 Thus, in s 35 of the Draft of the General Part of the Penal Code (Prepared by the Expert Committee under the Chairmanship of the Former President of the Supreme Court, Justice Agranat, (1980) 10 Mishpatim203 (‘an action that he performed in order to repel’); in s 46 of the Draft Penal Code (Preliminary Part and General Part) (1992) by Feller and Kremnitzer as it was tabled in the
‘Knesset’ (Parliament) (‘an action that he performed in order to repel’) and in s 38 of the Draft Penal Code (General Part) (1986) by Enker and Karp (Parts of this draft were published in A Enker and R Kannai, ‘Self-Defence and Necessity after Amendment 37 to the Penal Code’ (1992) 3 Plilim 5 (Hebrew) (‘ an action that he performed . . . in order to repel or avoid’). Thus too—apparently—in the new version (Israeli Penal Code (Amendment no 39) Preliminary Part and General Part (1994)) of s 34j of the Penal Code—‘An action that was required . . . in order to repel’. ‘Apparently’—because the version of this s may also be subject to another interpretation, according to which the words ‘in order to repel’ are part of the description of the necessity for the action (‘an action that was required . . . in order to repel’).
920 See s 27 of the English Draft Law (Law Commission, Legislating the Criminal Code: Offences against the Person and General Principles, no 218 (London, 1993)); s 41 of the New Zealand Draft (The Crimes Bill of New Zealand (Wellington, 1989)).
921 See s 3.04 of the MPC and n 916 above; ss 603, 604, 606 of the American Federal Draft Code (1970).
922 See nn 910–11 above and accompanying text.
923 See s 3–3 (at 565) and also s 3–18 in Robinson (1984), n 37 above, vol 2 at 571; s 134 (at 390) and the explanatory wording in Silving, n 45 above, at 394.
It should be noted that the Canadian Draft Laws do not allow for any kind of generalisation. For while the Draft from 1987 (Law Reform Commission of Canada, Report Recodifying Criminal Law, rev and enl edn, no 31, (Ottawa, 1987)) requires a purpose with regard to protection of the body but does not require a purpose with regard to the protection of property, in the Draft from 1993 (Government of Canada, Proposals to Amend the Criminal Code (General Principles) (Ottawa, 1993) (‘White Paper’)) the situation is exactly the opposite (a purpose is required for protection of property but no purpose is required for the protection of the body)—see ss 3(10), 3 (11), 3(12) of the 1987 Draft ibid and ss 37, 38 of the 1993 Draft ibid.This does not appear to be a novel principled approach but rather a problem of formulation.
3.10.5 The Content of the Requirement for a Mental Element: