The question of the scope of application of private defence is divided into two prin- cipal sub-questions: the first—to which offences does it apply, thereby constituting an exception to criminal responsibility for them; and the second—its application
to omissions. I shall begin with the first. As mentioned, a very important feature of private defence that constitutes a basic foundation for its underlying rationale is that the injury by the actor (the attacked person who defends himself or the one who defends the attacked person) is to the aggressor himself, who perpetrates a cul- pable attack. Indeed, even when the injury by the attacked person is not to the aggressor but to an innocent third party, there is an injury to the autonomy of the attacked person—as a result of the attack. However, in this case, the guilt of the aggressor is not weighed in favour of the attacked person in the balance of interests (which must be carried out here not between the attacked person and the aggres- sor, but between the attacked person and the innocent third party). Nor does the social-legal order weigh to his benefit. On the contrary, the social-legal order is actually harmed when the attacked person’s injury is not to the aggressor himself.
When an injury to the aggressor himself is involved, the rationale of private defence does not dictate the restriction of this defence to certain types of offences that are performed by the actor. This characteristic—injury to the aggressor—nat- urally implies that the offences that are usually relevant to private defence are offences against the human body: murder, manslaughter, attempted murder, assault, battery, wounding, etc. However, in principle, there is no room for the prior limitation of the defence to a certain type of offence. The responsibility for each offence whose elements are carried out by the actor in circumstances of pri- vate defence that constitute an injury to the aggressor may be negated by the defence of private defence. Thus, for example, the act of private defence may estab- lish the elements of other offences, such as false imprisonment, threats and offences of damage to property (of the aggressor). In addition, the usual placement of private defence is in the general section of the penal code, as is fitting for a crim- inal law defence with general application that applies—in the absence of any other explicit determination—to all offences.
One can therefore find, for example, broad definitions of private defence—
which are unlimited in terms of their application to one offence or another—in the general section of the decisive majority of the penal codes that were examined within this study.516
Despite what is set forth above, and although scholars agree that there is no point, in principle, to limit the scope of application of the defence,517nevertheless in Anglo-American law private defence is sometimes considered not as a general
516 See, eg, s 17 of the Chinese Penal Code (1979); s 32 of the Penal Code of the (former) West Germany(1871; 1975); s 6 of the Finnish Penal Code (1889; 1986); s 52 of the Italian Penal Code (1930, 1977); ss 271–73 of the Queensland (Australia) Penal Code; s 44 of the Rumanian Penal Code (1968;
1973); s 22 of the Polish Penal Code (1969); s 24 of the Swedish Penal Code (1962; 1972); s 25(2) of the Columbian Penal Code (1936); s 34(6) of the Argentinian Penal Code (1921); s 48 of the Norwegian Penal Code (1902); s 21 of the Korean Penal Code (1953); s 33 of the Swiss Penal Code (1937); s 8 of the Spanish Penal Code (1944; 1963); and s 13 of the Penal Code of the (former) USSR (1958).
517 See, eg, Williams (1983), n 1 above, at 501; Card, Cross and Jones, n 180 above, at 626; Smith and Hogan, n 284 above, at 260.
defence, but as a defence to certain offences. Thus it is possible in some books to find double reference to private defence: on one occasion within the framework of the discussion of the offences related to the killing of another, and on another occasion within the framework of the discussion of the offences of assault, battery and injury.518Such consideration of private defence is undesirable, because there is no principled reason to alter the conditions of private defence with regard to dif- ferent offences. As I have mentioned, the defence is singular, and accordingly the results of such differentiation are, at best, exhaustive repetitions of matters that have already been stated, and, at worst, create unfounded substantive distinctions.
It should be noted that the source of these distinctions is not to be found in the imagination of the authors, but is embedded in the common law, where there was no wide application of the defence. This restricted application stemmed from his- torical fears that are also expressed in contemporary English law, that general compulsion defences will curtail existing prohibitive norms and detract from their validity.519
An additional phenomenon—the creative product of the English legislator—is an additional defence, apart from private defence—relating to defence of property by damaging the property of another. This separate defence, which is established in section 5(2)(b) of the Criminal Damage Act 1971,520is superfluous, and leads not only to unnecessary repetitions but also to unjustified distinctions and to a real anomaly.521
Legislative difficulties were also created by the drafters of the Model Penal Code (MPC), who instead of relating generally, as is common, to ‘conduct’ or to an ‘act’
of the actor, actually chose the term ‘force’. This restriction created difficulties, for the solution of which the drafters were forced to explicitly consider the possibility of defensive action by means of imprisonment; a possibility which should also, without any reason to the contrary, be covered by private defence.522
518Consideration of this sort is given to private defence, eg, in the encyclopedias American Jurisprudence, n 500 above, and Corpus Juris Secundum, n 500 above.
519See, eg, Smith and Hogan, n 284 above, at 260–62.
520See the consideration of this in Cowley, n 475 above and in Smith and Hogan, n 284 above, at 253.
521See nn 476, 477 above and accompanying text. Also in the Draft English Law of 1989—for some reason—room was found for such an additional exception—see art 185 (Law Commission, A Criminal Code for England and Wales, no 177 (London, 1989)).
522See s 3.04(3) of the American MPC. The strange reasoning of the drafters of the MPC in their specific reference to imprisonment as defensive force is interesting: according to them, this is per- formed by an analogy to the inclusion of imprisonment as well, within the definition of ‘unlawful force’
in s 3.11(1) (this concerns the illegal force that is used by an aggressor and that is required as a condi- tion for permitting a response by the attacked person or one who defends him—clarification by the author) (see the explanatory wording of the Draft, American Law Institute Model Penal Code, Tentative Draft No 8 (Philadelphia, 1958) at 27). In my view, there is no necessary connection between the definition of the attack by the aggressor (to which I will relate in section 3.4.2 below) and the offences to which the defence applies (that the actor seemingly performs in private defence). Certainly there is no room for the above-mentioned ‘analogy’.
It should also be noted regarding the matter of illegal arrest, that even when defensive behaviour that includes illegal arrest is permitted, the length of time of the detention—since this concerns a continuing
As mentioned, on the one hand we learn from the rationale of private defence that the defence should not be restricted merely to certain offences, and on the other hand that it should be limited to an injury to the aggressor himself.
Nevertheless, offences that are not injuries to the aggressor are sometimes also considered within the framework of private defence. This is the approach most frequently used with regard to preparatory acts (preceding private defence) in gen- eral and with regard to the possession of a weapon in particular.523My opinion is that since these are not injuries to the aggressor, the criminal responsibility for such acts may be negated within the framework of ‘necessity’, but not within the framework of private defence.524This is the place to note a typical mistake, accord- ing to which the illegal possession of a weapon (ie, without a licence) negates the right of private defence for the person attacked. Therefore, if it is desirable to allow him to defend himself, he must also be held exempt—by means of private defence—from the offence of possession of a weapon. A clear distinction should be made between two different matters: the first—possession of a weapon, and the second—the use of it. It may definitely be that the use of a weapon whose posses- sion is forbidden (and accordingly constitutes an offence) will be permissible within the framework of private defence. In such a case the actor will only bear the responsibility for the offence of possession (or bearing a weapon—as the case may be) without a licence. It may also be that he will not bear any responsibility at all—
if the possession of the weapon is included within the bounds of the ‘necessity’
defence (for example, if severe and immediate injury was to be expected and possessing a weapon would be the reasonable way to deal with it). It may even be possible that the act will be justified—in the sense of a justification and not merely an excuse—but within its appropriate category, namely, the ‘necessity’ defence.
For the very definition of private defence (that is derived from its substance) negates treatment of such cases within its framework, since the injury is not to the aggressor. However, there is nothing in the fact of illegal possession of a weapon to negate private defence with regard to the injury to the aggressor, just as there is nothing in private defence (as distinct from ‘necessity’) to negate criminal respon-
offence—must be subject to the requirement of necessity. Finally, Robinson sees the reference to a threat of deadly force in s 3.11(2) of the MPC as deriving from the restricted term ‘force’—see Robinson (1984), n 37 above, vol 2 at 3 fn 2. However, in my opinion, the source of this reference is completely different, and is embedded in the desire to clarify that a threat (alone) of lethal force does not constitute ‘lethal force’.
523 This consideration was also expressed in art 44(5) of the English Draft Law, Law Commission, A Criminal Code for England and Wales, no 177 (London, 1989) that deals with such preparatory acts that precede the use of defensive force. According to the explanatory text of this draft law (see at 233) the classic example of such acts is the possession of a weapon. See also the similar phrasing of art 29(2) of the Draft Law, Law Commission, Legislating the Criminal Code: Offences against the Person and General Principles, no 218 (London, 1993).
524 For a similar opinion see Perkins and Boyce, n 85 above, at 1160 fn 5. For a different opinion—
according to which the application of private defence should be widened to include preparatory acts—
see Smith, n 91 above, at 117ff and Smith and Hogan, n 284 above, at 261.
sibility for an offence of arms possession.525However, the possession of a weapon may, in certain circumstances, influence the right to private defence, if it was carried out in circumstances in which the actor should be seen as the one who, by his fault, caused the situation in which he was forced to defend himself.526
At the end of this discussion regarding the question of the applicability of pri- vate defence to different offences, the possibility that despite the generality of the application of the defence, the legislator will negate its application for certain offences, should be noted. In my view, there is no substantial reason for such a restriction of private defence, but as is known, the legislator can establish other- wise at his discretion. Thus, for example, the Israeli legislator negated the applica- tion of the former section 22 of the Penal Code (that in the past bound together the defences of private defence and ‘necessity’) in such a way that it would not apply to various offences against the security of the state, offences of termination of pregnancy and offences under the laws concerning the crime of genocide, and the crimes of the Nazis and their collaborators.527These restrictions were appar- ently intended for ‘necessity’ and not for private defence. In any case, even if they had been applied to private defence, they should be seen as exceptions to the rule that affirm the rule itself: the general applicability of private defence.
This brings us to the second question that was presented at the beginning of this section—the application of private defence to omissions. It appears that this ques- tion does not raise any difficulty. Although—naturally—the decisive majority of actions of private defence are active actions, in principle there is no reason to negate its application to cases in which a non-action is involved.528It is, indeed, recognised in various legal systems—both in the literature and in the legislation—
that the application of private defence is not limited to active actions alone.529A possible example of an irregular situation in which private defence is performed by omission: A is responsible for shifting the railway tracks. B is driving alone in a solitary locomotive through the intersection for which A is responsible and aims a
525For similar opinions see Perkins and Boyce, n 85 above, at 1131; Perkins, n 40 above, at 148; La Fave and Scott, n 43 above, at 650 fn 2. For a relatively detailed discussion of this issue see Diamond, n 30 above, at 693–99.
526However, this special issue deviates from the subject of our present discussion. I shall return to consider it in Ch 5.4 below.
527See (correspondingly) ss 93 and 319 of the Israeli Penal Code 1977; s 6 of the Law for the Prevention and Punishment of the Crime of Genocide 1950; and ss 8 and 10(b) (an exception con- cerning ‘a pursued person’) of the Law for Doing Justice to the Nazis and their Collaborators 1950.
528For a general opinion (that was expressed with regard to another subject), according to which in the absence of a special reason, no distinction should be made between an active action and an omis- sion that is accompanied by a duty to act—Boaz Sangero, ‘Solicitation by Omission: Is it Indeed Impossible?’ (1987) 16 Mishpatim482 (Hebrew).
529See, eg, s 34j of the Israeli Penal Code 1977, in conjunction with s 18(b) of that law that defines
‘an action’ as also including an omission. Robinson suggests the term ‘conduct’ instead of the term
‘force’ that appears in the MPC, and expresses his opinion that this term will suitably encompass omis- sions and also possession (which is sometimes uncertainly considered as ‘an action’ and sometimes as
‘an omission’)—see Robinson (1984), n 37 above, vol 2 at 3 fn 2.
revolver at him with a clear intention to kill A. A, who notices this at the last pos- sible moment, avoids fulfilling his duty to re-route the tracks as necessary, and as a result of this B does not pass close to A but continues on an alternative track, crashes into a parked train (that is empty) and is injured.530
Finally, an additional significant question exists that can be considered as belonging to the subject under discussion, namely, the scope of the application of the defence, and this is: which are the values that it is justified to defend within the framework of private defence? The following section is devoted to this important question.