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Mistake of Law

Published online by Cambridge University Press:  04 July 2014

Dan Bein
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Extract

Generally speaking, the definition of the mental element in crime does not even strive to encompass all the varieties of the psychological processes which accompany the commission of an offence, but sorts out only such components of it which legal policy dictates to be useful and workable. For instance, generally speaking, no notice is taken of the motive or of the intensity of passion, or whether the mental element was spontaneous or premeditated. In sorting out what parts of the psychological process should form part of the definition of the mental element, many considerations come into play, such as the ability to verbalize and define such processes, difficulties of proof, etc. One of the components of the psychological processes which is disregarded in the definition of the mental element is knowledge of the existence and scope of the criminal norm, and the existence and scope of “defences” (as they were called in the old Penal Law, 1977) or “limitations to penal liability” as they are now called in the new Preliminary Part and General Part of Penal Law (hereinafter the New Code).

Type
Research Article
Information
Israel Law Review , Volume 30 , Issue 1-2: Reform of Criminal Law , Spring Winter 1996 , pp. 214 - 221
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1996

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Footnotes

*

Judge of the District Court of Haifa, Teaching Fellow, Faculty of Law, University of Haifa.

References

1 There are exceptions as in premeditated murder, but at least in Israel the court decisions tend to “sterilize” premeditation of any real meaning (see Naim Beno v. A.G. (1967) 21(i) P.D. 561).

2 Penal Law 1977 as amended by amendments 39 to 45, Chap. 6 (hereinafter the New Code).

3 See infra.

4 The so called “insanity defence” (Sec. 19 of the Penal Law 1977 and Sec. 34 H of the New Code.)

5 See supra n. 4 and Mandelbrot v. A. G. (1956) 10 P.D. 281, now sec. 34H(2) of the New Code.

6 Which formed the basis according to which the New Code was enacted. See the Penal (Preliminary Part and General Part) Bill 1992 (H.H. No. 2098, p. 115) sec. 49, in this issue, at p. 5.

7 Sec. 49 of the Draft Code.

8 See Hall, J., General Principles of Criminal Law (2nd ed., 1960) 383 Google Scholar.

9 Mizrahi v. State of Israel (1981) 35(iv) P.D. 421.

10 The relevant provision is sec. 34U which reads as follows: “If a Law is capable of being reasonably interpreted in various forms according to its aim the matter will be decided according to the interpretation most favourable to the person who may be liable according to such law”.

11 Sec. 1 of the Interpretation Ordinance (New Version) (1 L.S.I. [N.V.] 5).

12 Sec. 14 of the Penal Law 1977.

13 Sec. 383 of the Penal Law 1977.

14 See sec. 402 of the Penal Law.

15 State of Israel v. Peretz (1975) 29(ii) P.D. 544.

16 Peretz (ibid). It should be noted that if the defendant acted with a view to defraud or injure, the defence was denied him: Kirsh and Segal v. A.G. (1963) 17 P.D. 1996.

17 Weinberg v. A. G. (1965) 19(i) P.D. 150; Isaacs v. State of Israel (1973) 27(i) P.D. 371.

18 See Bein, D., “Mistake as to Penal and Extra-Penal Law: Setting the Border or Eliminating the Distinction?” (1976) 30 HaPraklit 106 Google Scholar.

19 Feller, S.Z., “The Border between Mistakes in the Criminal and the Extra-Criminal Law” (1974) 5 Mishpatim 508 Google Scholar.

20 Bein, supra n. 18. The test has been adopted by Justice G. Bach in the Supreme Court decision of Weismark v. State of Israel (not yet published).

21 But in Israeli Criminal Law a special concept of “Marriage for the Purpose of Bigamy” was created, (see Weinberg, supra n. 17).

22 Shapira v. State of Israel (1982) 36(i) P.D. 337, at 373 (per Ben Porat); Buronovsky v. Chief Rabbis of Israel (1971) 25(i) P.D. 7, at 21.

23 At least if the offence requires mens rea and is not an offence of strict liability.

24 (1994) S.H., no. 1481, p. 348.

25 Sec. 34S of the new Code.

26 Sec. 34R of the new Code.

27 Sec. 17 of the Penal Law 1977.

28 Sec. 34R of the new Code.

29 See also Weismark, supra n. 20.

30 Sec. 383 of the Penal Law.

31 Sec. 34S of the new Code.

32 Sec. 22 of the new Code.