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Aspects of Negligence in Israeli Criminal Law

Published online by Cambridge University Press:  04 July 2014

Eliezer Lederman
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Extract

The Israel Penal Law, 1977, which is deeply rooted in English common law, contained, until recently, very few definitions of basic criminal concepts. Negligence was one of the definitions lacking. The law seldom used this term explicitly when defining specific offenses in the code. The newly enacted General Part of the Criminal Law, as part of its systematic treatment of essential criminal notions, is the first piece of Israeli legislation to cope with this term.

The various aspects of negligence have been developed in Israeli criminal law since the early 50's, mainly through Supreme Court decisions, first and foremost with reference to negligent homicide. This mode of development of law has inherent limitations, since its shaping depends on occurrences of events and the consequent raising of relevant questions of law in the courtroom. However, in the Israeli case, this evolutionary process has not hindered the development of the status and importance of the said mode of fault.

Type
Research Article
Information
Israel Law Review , Volume 30 , Issue 1-2: Reform of Criminal Law , Spring Winter 1996 , pp. 126 - 139
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1996

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Footnotes

*

Dean, Tel-Aviv University Faculty of Law. I would like to thank my assistant, Oren Bar-Gill, for his contribution and devotion.

References

1 Azulai v. State of Israel (1983) 37(ii) P.D. 565. See also Howard, , ’Strict Responsibility in the High Court of Australia” (1960) 76 L.Q. Rev. 547, at 566 Google Scholar; Smith, J.C. and Hogan, B., Criminal Law (London, 7th ed., 1992) 96 Google Scholar et seq.

2 Kremnitzer, , “On Criminal Negligence — A Mental Element, A Factual Element or Both?” (1994) 24 Mishpatim 71, at 76–78 Google Scholar.

3 And contrary to the condition with regard to mens rea offenses.

4 Levy, Y. and Lederman, E., Principles of Criminal Responsibility (Tel-Aviv, 1981) 504–512 Google Scholar.

5 See e.g., Feller, S.Z., Elements of Criminal Law, Vol. 1 (Jerusalem, 1984) § 745 Google Scholar et seq.; Feller, , “The Correlation Between the Civil Tort of Negligence and the Concept of Negligence in Criminal Law?” (1993) HaPraklit Jubilee Book 53 Google Scholar.

6 Sections 20-22 of the Penal Law, 1977, which are part of the newly enacted General Part of the Israeli Criminal Code underline this structure.

7 Turner, , “The Mental Element in Crimes at Common Law”, in The Modern Approach to Criminal Law (London, ed. by Radzinowicz, and Turner, , 1945) 195, at 211 Google Scholar. See also Doitch v. A.G. (1954) 8 P.D. 456, at 462-463; Kenny, C.S., Outlines of Criminal Law (London, 19th ed., ed. by Turner, , 1965) 39 Google Scholar.

8 Doitch v. A.G., ibid.; Smith and Hogan, supra n. 1, at 95; Silving, H., Constituent Elements of Crime (Springfield, Illinois, 1967) 211 Google Scholar, sec. 83(2)(a).

9 Negligence offenses are typically limited to the most serious kinds of danger and protect the most important social values. This is due to the heavy burden that these offenses place on the potential perpetrator relative to the burden placed by mens rea offenses. See Kremnitzer, supra n. 2, at 73.

10 Hart, H.L.A., Punishment and Responsibility (Oxford, 1968) 149 Google Scholar; Silving, supra n. 8, at 211; Hall, J., General Principles of Criminal Law (Indianapolis, 2nd ed., 1960) 116 Google Scholar; Mewett, A.W. and Manning, M., On Criminal Law (3rd ed., 1994) 195 Google Scholar; Gur-Arye, , “The Offense of Negligent Homicide and its Relationship to the Tort of Negligence” (1982) 12 Mishpatim 257, at 260 Google Scholar. These parameters also prevail in the Law and Economics analysis of negligence — see Posner, R., Economic Analysis of Law (4th ed., 1992) 163 Google Scholar et seq.; Calabresi, G., The Cost of Accidents — A Legal and Economic Analysis (New Haven and London, 1970) 26 Google Scholar et seq.

11 See in this connection Urowsky, , “Negligence and the General Problem of Criminal Responsibility” (1972) 81 Yale L.J. 949, at 956–957 Google Scholar.

12 For a thorough analysis of the civil tort of Negligence, see Porat, , “The Tort of Negligence in the Rulings of the Israeli Supreme Court — A Theoretic Perspective” (forthcoming in the Israeli Law Yearbook 1994-1995, ed. by ProfRozen-Zvi, )Google Scholar; Gilad, , “On the Elements of the Tort of Negligence in Israeli Tort Law” (1989) 14 Iyunei Mishpat 319 Google Scholar. Some writers, however, stress the differences between negligence in tort law and in criminal law. See Kremnitzer, supra n. 2, at 74-76; Gur-Arye, supra n. 10, at 262-263.

13 These requirements were established in the early 50's. See e.g., Rotenshtrych v. A.G. (1953) 7 P.D. 58. Though the definition of this offense, in sec. 304 of the Penal Law, 1977, has been recently modified, it seems that its basic structure remained untouched.

14 For a different view, distinguishing between negligent behavior as a physical elements, on the one hand, and breach of a duty of care, on the other hand, see Porat, supra n. 12, at 16 et seq.

15 Note, however, that this criminal law interpretation to the civil tort of negligence is not necessarily in accord with the elements of the civil action. In particular, the tort of negligence conceptually captures also acts or omissions based on subjective mens rea. See e.g., Kremnitzer, supra n. 2, at 77; Gur-Arye, supra n. 10, at 261.

16 Sec. 17 of the Civil Wrongs Ordinance (New Version) 1968 (2 L.S.I.[N.V.] 5).

17 See, for example, Hall v. Brooklands Auto Racing Club (1933) 1 K.B. 205, 224.

18 See Winfield, P.H. & Jolowicz, J.A., On Tort (London, 14th ed., ed. by Rogers, W.V.H., 1975) 50–51 Google Scholar.

19 A.G. v. Segal (1955) 9 P.D. 393, at 432; Shmulevitz v. The State of Israel (1973) 27(ii) P.D. 598, at 601; Azuales v. The State of Israel (1996) (unpublished).

20 Shachar, , “The Reasonable Person and Criminal Law” (1989) 39 HaPraklit 78 Google Scholar; Fletcher, , “The Right and the Reasonable” (1984–1985) 98 Harv. L.R. 949 CrossRefGoogle Scholar.

21 For a general discussion of the difficulties encountered, when the legal system attempts to set standards in a multi-cultural society, see L. Shelef, The Future of Tradition — Customary Law, Common Law and Legal Pluralism (forthcoming).

22 See Tzur v. The State of Israel (1979) 33(iii) P.D. 626. A similar trend can be found in some English decisions. See McCrone v. Riding (1938) 1 All E.R. 157, 158; Williams, G., Textbook of Criminal Law (London, 2nd ed., 1983) 43 Google Scholar. (1978, p. 43).

23 Avnat v. The State of Israel (1992) 46(i) P.D. 1, at 6 et seq. See also Endel v. The State of Israel (1991) 45(v) P.D. 276, at 288 et seq.

24 For a similar approach in Anglo-American law see Fitzgerald, , “Crime, Sin and Negligence” (1965) 79 L.Q.R. 351, at 363–364 Google Scholar; Note, (1936) 52 L.Q.R. Google Scholar The American Law Institute, Restatement of the Law of Torts (St. Paul, 1934) vol. 2, p. 769 Google Scholar.

25 See, for example, Brashi v. A.G. (1955) 19 P.E. 80; A.G. v. Bash (1964) 18(iv) P.D. 568.

26 Tzur v. The State of Israel, supra n. 22, at 631.

27 It is worth mentioning, that this term has been adopted by the Supreme Court in Azuales v. The State of Israel, supra n. 19, with regard to the objective facet of the term provocation.

28 E.g., involuntary manslaughter as a result of unpermited use of the said car.

29 See in this connection the tort law case Agbarya v. HaMeiri (1972) 26(i) P.D. 743, at 750.

30 Lichtenstein v. The State of Israel (1986) 40(iii) P.D. 141, at 153.

31 In other scenarios, however, the two elements — negligence and causation — should be distinguished, e.g., had the cause of the said accident been a sudden brake failure that would not have permitted a safe full stop even had the distance standard been maintained, then lack of causation would prevent the conviction of the driver, though his conduct would still be defined as negligent.

32 See Justice Holmes's exceptions to the general objective negligence standard: Holmes, O.W., The Common Law (Boston, 1881) (Boston, Little Brown ed., 1946) 109 Google Scholar. See also R. v. Hudson (1965) 1 All E.R. 721; Husak, D.N., Philosophy of Criminal Law (1987) 65–66 Google Scholar.

33 Weingarten v. The State of Israel (1978) 32(ii) P.D. 29; Smith and Hogan, supra n. 1, at 92-93.

34 Arutz and Lupo v. The State of Israel (1980) 34(i) P.D. 679. See also Kremnitzer, supra n. 2, at 91-92.

35 See Holmes, supra n. 32, at 108-109.

36 See Hart, supra n. 10, at 152 et seq.; Brady, , “Punishment for Negligence: A Reply to Professor Hall” (1972) 22 Buffalo L.R. 107, at 113–115 Google Scholar. See also Husak, supra n. 32, at 132-136; Fletcher, , “The Theory of Criminal Negligence” (1971) 119 U. Pa. L.R. 401, at 426 Google Scholar; Levy and Lederman, supra n. 4, at 517 et seq.

37 For a review of the continental approach see Kremnitzer, supra n. 2, at 79-80; Fletcher, ibid.

38 Kremnitzer, supra n. 2, at 88 et seq. Kremnitzer further alleges that in light of the new Basic Law: Human Dignity and Liberty it is difficult to accept an objective negligence criterion. See p. 36 in this issue. Prof. Burkhardt also sees the principle of culpability as demanding an individualistic standard (p. 82 in this issue).

Anglo-American courts have rejected the individualistic approach. See State v. Williams 484 P. 2d. 1167 (Washington, 1971); Edgmon v. State 702 P. 2d. 643, 645 (Alaska, 1985). The court here held that individual capabilities would have to be considered in assessing recklessness (necessary in Alaska for a manslaughter conviction) but that “[i]n contrast, peculiarities of a given individual — his or her intelligence, experience, and physical capabilities — are irrelevant in determining criminal negligence [necessary for the lesser negligent homicide offense] since the standard is one of a reasonably prudent person”. See also Kadish, S.H., Blame and Punishment (1987) 96–97 Google Scholar.

39 Williams, G., Criminal Law: The General Part (2nd ed., 1961) 122–123 Google Scholar.

40 Fletcher, supra n. 36, at 426.

41 The validity of this argument depends on the assumption that the engagement in the said activity by itself will not be considered negligence. See Kremnitzer, supra n. 2, at 91-92.