The Distinction between an Offence and a Defence

No less important for the subject of our discussion than the distinction between justification and excuse, which we have described above, is the distinction between the definition of an offence and the definition of defence in general and a justification in particular. This distinction also warrants a complete and com- prehensive research of its own,76which it is not possible to include within the framework of this book. Nevertheless, it is important to explain the principles of

74See George P Fletcher, ‘The Right to Life’ (1979) 13 Georgia Law Review1371, and also Dressler, n 32 above, at 71ff.

75See George P Fletcher, ‘Should Intolerable Prison Conditions Generate a Justification or an Excuse for Escape?’ (1978–79) 26 University of California at Los Angeles Law Review1355, and also Dressler, n 32 above, at 74ff.

76See, eg, Fletcher (1978), n 1 above, at 552, 579; Fletcher, n 74 above, at 1383, 1388; Robinson (1975), n 37 above; the responding article by Fletcher, n 72 above; M Giles, ‘Self-Defence and Mistake:

A Way Forward’. (1990) 53 MLR 187; SMH Yeo, ‘The Element of Belief in Self-Defence’ (1989) 12 Sydney Law Review132; NJ Reville, ‘Self-Defence: Courting Sober but Unreasonable Mistakes of Fact’

(1988) 52 Journal of Criminal Law84; RL Christopher, ‘Unknowing Justification and the Logical Necessity of the Dadson Principle in Self-Defence’ (1995) 15 OJLS 229; Fletcher, n 46 above, at 93ff.

this distinction because of its great importance for the subject of private defence.

Naturally—because of the classification of private defence as justification—we shall concentrate on the distinction between the definition of an offence and a specific area of the defences—the justifications.

The problem of classification that causes significant difficulty with respect to the distinction between justification and excuses is, in my estimation, less problematic with regard to the distinction between the definition of an offence and the definition of defences in general (and in particular the justifications). The main reason for this is that while the law does not usually determine the first distinction, and its interpreters have to define it by themselves, the second distinction is deter- mined quite clearly by the legislator himself. Although the legislator also faces difficulties in deciding whether to include certain components in the definition of the offence or in the definition of the defence, from the moment that the penal code is enacted, most of the outlines of the distinction are already provided in the penal code itself, so that at least from a formal normative point of view, the code distinguishes clearly between offences and defences.

Specific difficulties of classification are raised by expressions that are included in the definitions of certain offences—expressions such as ‘illegal’, ‘unlawful’, etc.

One possible approach is to assign minimal significance to these archaic expres- sions, and even to practically ignore them.77A similar result is also attained by determining that such a circumstance that is part of the definition of the offence subsumes the relevant defence within the offence, together with all its components (including any mental element that may be required for the establishment of the defence).78However, if we ascribe content to the element ‘unlawfully’, and the defence accordingly becomes an integral part of the definition of the offence itself, then the distinction between the offence and the defence fades significantly. The implications of the blurring of this distinction are not only theoretical.79

The distinction that is the subject of our discussion has crucial importance for four principal topics: the application of the principle of legality on defences; the burden of proof of defences and its degree; the mental element required for the establishment of the defence; and the reasonability of the mistake that creates a putative defence. It is interesting to note that even though there are connections between the various approaches with regard to each of the four above-mentioned

77See, eg, Williams (1983), n 13 above, at 27ff.

78See, eg, the opinion of Leigh that is described, without any reference being given, in Giles, n 76 above, at 194 fn 63. And see also the English ruling that was determined in the holding, in the case of Albert v Lavin[1981] 1 All ER 628.

79See, eg, the courts’ rulings in Gladstone Williams[1983] 78 Cr App R 276, and Beckford v the Queen[1987] 3 WLR 611, 3 All ER 425—that a mistake with regard to a defence is not subject to the requirement of reasonability—in exactly the same way as a mistake regarding an element in the definition of the offence itself—a decision that the courts in England actually based on the word

‘unlawfulness’, although it can be justified on grounds of principle. For a detailed discussion of these court-generated rules see, eg, Reville, n 76 above; Giles, n 76 above.

issues, there is no theoretical necessity to hold an identical approach for all four topics that either denies the implications of the distinction between an offence and a defence or derives implications from the distinction between an element of the offence and an element of the defence. And indeed, most of the scholars hold com- plex views with regard to this distinction. Thus, for example, while there is a near consensus among scholars that no significant distinction should be made with regard to the matter of proof, between the elements of the offence and the justification80, at the same time there is also a near consensus among scholars that a distinction should be made between them in the matter of the mental element required in general, and concerning the requirement for awareness of the justify- ing circumstances in particular.81

A similar situation exists—as described above—with regard to the distinction between justification and excuse: it seems that nobody would dispute that the dis- tinction under discussion here (offence/defence) has great theoretical importance.

However, just as beyond the wide agreement with regard to the importance of the distinction between justification and excuse there is a dispute with regard to the implications that may be derived from it; thus too with regard to the distinction between the offence and the defence. The opinions of the scholars are divided. We shall therefore proceed to a discussion of the various implications that may be drawn from this distinction.

A basic principle in the field of criminal law, the importance of which cannot be underestimated, is the principle of legality, according to which there is no offence, and no punishment for an offence unless determined by law or pursuant to the law and that there is no retroactive punishment82. The legality principle has several accumulative central explanations. One of these explanations—granting fair warn- ing to the individual—concerns the freedom of action of an individual, based on his knowledge of the prohibition at the time of the action. A central function of the criminal law is to prevent offences. Other main explanations refer to the stability of social norms, the equal enforcement of the law, and the separation between gov- ernment authorities and the distribution of authority between them. The principle of legality has several important implications, and principal among them are: the requirement of making criminal law public, and of providing a clear and detailed definition of the prohibition; the rules concerning strict interpretation that narrow

80See, eg, Fletcher (1978), n 1 above, at 545ff. Although it is accepted that a certain burden is imposed on the defendant with regard to the defence—to point out the possibility of its existence—

however, this burden does not create a significant distinction, since the prevalent opinion is that from the moment that the defendant raises this light burden, the rule applies that the prosecutor must negate the existence of the defence beyond all reasonable doubt. See also below n 1097; nn 114–15 and accom- panying text; and compare these to n 50 above.

81In this matter, it appears, that it is preferable, for reasons of efficiency, to refer to the writings of the scholars who hold the exceptional and unaccepted view that objective justifying circumstances suffice for establishing the justification—see Williams (1982) n 1 above, at 741; and Robinson (1984), n 37 above, vol 2 at 7–29. See also Ch 3.10 below.

82See, eg, Williams (1983), n 1above, at 11ff.

the scope of the prohibition, and concerning the ban on retroactive application of a criminal norm.

In modern criminal law there is no dispute today that the principle of legality reigns supreme, at least regarding offences. A serious question is whether it should also be applied to defences. This question focuses on two principal aspects: the clarity of the criminal norm and the authority of the court. We shall begin with the authority of the court. The central questions within the framework of this issue are how should the court interpret an existing defence that is determined by law, and whether it is authorised to create new defences on its own initiative. With regard to the interpretation of existing defences, we should consider the rule that is accepted in modern criminal law according to which criminal norms should be strictly interpreted in a way that restricts the scope of the prohibition83. This rule does not indicate a choice of tenuous interpretation, the product of acrobatic interpretation that makes a mockery of the prohibition as determined by law.

Instead, it asserts that between two reasonableinterpretations of a norm, the one that restricts the scope of the offence should be chosen, or to state it more gener- ally in a way that may also encompass the defences, the interpretation that leads to greater reduction of the scope of criminal responsibility (and thus causes less restriction of an individual’s liberty) must be selected.

As was clarified by Robinson, who supported the application of ‘the rule of strict interpretation’ to defences as well, this rule actually means wide interpretation with regard to defences (since wide interpretation of a defence—one which negates criminal responsibility—is the one in particular that narrows the scope of the criminal prohibition). Accordingly, he suggested the use of the term ‘inter- pretation in favor of the accused’ instead. In his opinion, the annulment of a defence or its narrow interpretation (which enlarges the scope of the prohibition) constitutes a clear and forbidden infringement upon the right of the individual, as expressed in the principle of legality, to receive fair warning prior to the imposi- tion of punishment.84

This is essentially the prevalent view among scholars.85 The Israeli Supreme Court, for example, addressed the issue accordingly in the case of Affangar86:

83On the tremendous logic that underlies this basic rule of criminal law, see: Mordechai Kremnitzer, ‘Interpretation in Criminal Law’ (1986) 21 Israel Law Review358 at 370–73; Boaz Sangero,

‘Interpretational Acrobatics in Criminal Law and a Quiet Death to the Rule of Restrictive Interpretation? (More on ‘With Intent to Injure’ in the Offence of Defamation)’ (1998) 29 Mishpatim 723 (Hebrew); Sangero, n 61 above, at 339–43; and Boaz Sangero, ‘Broad Construction in Criminal Law?! On the Supreme Court Chief Justice as a Super Legislator and Eulogizing the “Strict Construction Rule” ’ (2003) 3 Alei Mishpat165 (Hebrew).

84See Robinson (1984), n 37 above, vol 1 at 159ff.

85See, eg, RM Perkins and RN Boyce, Criminal Law, 3rd edn (Mineola, NY, 1982) at 1143; and Perkins, n 40 above, at 161.

86CA 89/78 Affangar v the State of IsraelPD 33(3)141. A separate question is whether the inter- pretation of Justice Elon, to which the above quotation of his words relates, constitutes legitimate legal interpretation.

Although it is a criminal order, the purpose of wide and liberal interpretation is intended to enlarge the scope of application of private defence and to increase the possibility of acquitting a person who has come to the defence of another.

Another approach, which is accepted by only a few scholars, restricts the applica- tion of the principle of legality so that it cannot be applied to the interpretation of defences87. According to this school of thought, the defences in particular and the general norms in the Penal Code in general, are not part of the guiding message of criminal laws, and are not intended to direct individual behaviour, but are designed solely to direct court rulings.

A third possibility proposed herein, is to distinguish, for the purpose of appli- cation of the principle of legality on defences, between defences of the justification type and defences of the excuse type. Such a distinction can be based on the asser- tion that excuses are not part of the guiding message of the legislator to individu- als, while justifications do constitute part of this message, along with the criminal offences. My suggested distinction is inspired by the famous distinction of Dan- Cohen between ‘decision rules’ and ‘conduct rules’ in criminal law.88Thus, just as the legislator directs the individual to avoid certain behaviour when he enshrines an offence in law, he similarly instructs the individual when he establishes a legal justification that in these special circumstances it is desirable that the individual should perform the prima facie prohibited act. By way of illustration: just as by means of the offence of false imprisonment the legislator directs the individual to refrain from denying liberty to others, so in a similar fashion, by way of the justification defence that is based on a duty or authority determined by law, the legislator directs the police officer to arrest the suspect in accordance with the law. In contrast to this, defences of the excuse type are not intended to direct behaviour, but are only applied retroactively and direct the judge not to convict the accused. For example, the legislator does not intend by establishing the defence of ‘duress’ to direct the person under threat to fulfil the demands of the one who threatens him and to harm an innocent third party, but he does intend to direct the judge not to convict the one who was threatened and who committed the crime by surrendering to the threat. This is because society understands the difficult situation in which the threatened individual finds himself and forgives him. In accordance with this distinction between justification and excuse, the rule of ‘interpretation in favour of the accused’ should apply to justifications, which direct behaviour, in order not to infringe upon the right of the individual to fair warning, but not to excuses, since they are not intended to direct an individual’s behaviour at all.

87See the approach that exists in German law as it is described in Fletcher (1978), n 1 above, at 574ff.

88See M Dan-Cohen, ‘Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law’

(1984) 97Harvard Law Review 625.

As to the issue of creation of new defences by the court, here there is much dis- pute. According to one approach89, there is a need to distinguish between the determination of new offences and the determination of defences that are not mentioned in the law. Granting authority to judges to create offences would vio- late the principle of legality. The citizen who stands in danger of losing his liberty has a right to have the basis for this denial of freedom predefined in the law. But granting authority for judges to create defences would not injure this basic princi- ple. Such creation does not harm the defendant; on the contrary, it benefits him.

Robinson, as mentioned above, also applies the rule of legality to the interpreta- tion of defences and derives the rule regarding wide interpretation of defences from this principle. He also expresses his opinion that as opposed to the situation with regard to offences, the rule that prohibits judicial creation does not apply to defences, since the rationale of fair warning does not exist90. Other scholars have expressed similar opinions.91

In opposition, an approach exists that adopts an uncompromising application of the principle of legality to negate the creation of new defences by the court. It was argued, for example, that the principle of legality in criminal law, which not only requires that a prohibition and a punishment should be determined accord- ing to the law, but also, to the same extent, requires that even a defence can only be set forth by law, compels us to attribute tremendous significance to the above limitation.92It was therefore called ‘[the] other facet of the principle of legality in the criminal law’.93

This approach was also expressed in the draft proposal for the Israeli Penal Code (Preliminary Part and General Part) 1992.94Section 40 of this draft, whose title is

‘Defences According to the Law’, establishes the following rule: ‘there is no defence to criminal responsibility except in the cases and under the circumstances that are determined by law’. In the explanation for this section, it is written that:

The state of the defences in modern criminal law, as distinguished from the past, has reached a stage of maturity and consolidation that is similar to that of the criminal pro- hibitions; it is therefore proposed not to allow the development of defences by judicial ruling. Section 40 expresses the recognition of this situation. The determination that there are no defences except those established by law grants a degree of certainty and decisiveness to criminal prohibitions that they deserve.

89Arnold N Enker, Duress and Necessity in the Criminal Law(1977) (Hebrew) at 103.

90See Robinson, (1984), n 37 above, vol 1 at 159ff.

91See, eg, JC Smith, Justification and Excuse in the Criminal Law (London, 1989) at 126; Gardner, n 37 above, at 126.

92Feller, Elements of Criminal Law(1984), n 14 above, vol 2 at 422.

93SZ Feller, ‘Application of the “Foundations of Law Act” in Criminal Law’ in Essays in Honour of Justice Zussman(1984) 345 (Hebrew) at 351.

94See Draft Penal Code (Preliminary Part and General Part) (1992) at 134.

It should be noted that the proposal that appears in the draft was omitted from the General Part of the Penal Code as enacted in 1994 by The Knesset (the Israeli par- liament).

The insistence on the application of the legality principle for the negation of the authority of the court to create defences does not stem from the need for fair warn- ing to the individual (since in creating a defence the court reduces the criminal responsibility and does not widen it), but from rationales that relate to the stabil- ity of social norms, to the separation of powers between the state authorities, and also perhaps, to a lack of bias in the enforcement of the law. Therefore, in my estimation, the power of the principle of legality with regard to the negation of creating defences by adjudication is weaker than its power with regard to the nega- tion of creating offences by adjudication.95

Fletcher96suggested an explanation for these two differing views by comparing Anglo-American law to German law. In the first, there is a tendency to see the leg- islator as the supreme authority, and the court as devoid of authority, both for the creation of offences and for the creation of defences. In contrast, in German law, despite the general commitment to the principle of legality (that is established by the Constitution itself), the court is seen as authorised to create defences, and even does so in practice based on the requirement of proof of the general element of

‘illegality’ or ‘wrongdoing’—a requirement that exists in German law but not in Anglo-American law. In Fletcher’s opinion, this is in effect the difference between a positivist conception (in the common law) and a non-positivist conception (on the Continent). As he notes, the difference is not so sharply polarised since there is a general principle in American law that was established by legislators in various states, of ‘the lesser evils’ (following section 3.02 of the MPC), and the court infuses it with content.

As stated above, the question regarding the application of the principle of legal- ity to defences has another facet—the clarity of the criminal norm. One of the implications of the principle of legality is the requirement for a detailed and clear definition of the prohibition—a requirement that is intended to ensure fair warn- ing for the individual. This requirement has great weight in legal systems that have a Constitution that allows the court to repeal legislation that does not conform to this requirement. Such authority exists in the American system, and in relation to this system Robinson suggests the application of the principle that invalidates a vague prohibition even for the formulation of defences.97

95Silving stood firm on the danger of abuse of authority by the court in renewing defences as a usage that would thwart the instruction of the legislator—see Silving, n 45 above, at 386ff.

96See Fletcher, n 72 above, at 316ff; Stanford H Kadish (ed) Encyclopedia of Crime and Justice(New York and London, 1983) vol 3 at 945ff, (it is worth noting that the entry ‘justification-theory’ that appears on these pages is written by Fletcher); Fletcher (1978), n 1 above, at 573ff.

97See Robinson (1984), n 37 above, vol 1 at 159ff.