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The Structure of Criminal Liability: Complicity*
Published online by Cambridge University Press: 04 July 2014
Extract
The notion of “wrongdoing” is not recognized by the Draft Code. Nor does it classify the criminal law defences as either justification or excuse. Rather, the Draft Code distinguishes between “an offence” and “an act”. The term “offence” is used to cover cases where the actus reus is committed with the mental state required by the definition of the offence, by an offender who is criminally liable. An offender who has a defence, even a personal one, such as insanity, mistake, or duress, commits “an act”. The term “act” is used to indicate that defences negate the criminal nature of the act.
I have elsewhere elaborated on the question whether or not a criminal code which aims to reform the criminal law should distinguish between justification and excuse. There I have both discussed and evaluated, inter alia, the proposals of the Draft Code in this context. Therefore, I shall not elaborate on this subject any further. I shall rather focus on the law of complicity and shall discuss three main issues.
- Type
- Research Article
- Information
- Israel Law Review , Volume 30 , Issue 1-2: Reform of Criminal Law , Spring Winter 1996 , pp. 146 - 153
- Copyright
- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1996
Footnotes
**
Professor of Law, The Hebrew University of Jerusalem.
References
1 See Gur-Arye, M., “Should a Criminal Code Distinguish between Justification and Excuse?” (1992) 5 The Canadian Journal of Law and Jurisprudence 215 CrossRefGoogle Scholar.
2 Secs. 29-39.
3 Under section 29(c) of the Draft Code. I have elsewhere elaborated on the meaning of commission of an offence by another. See: Gur-Arye, M., “Commission of an Offence by Another”, in Festschrift in Memory of Judge Sussman (1984, in Hebrew) 319 Google Scholar; Gur-Arye, M., “Modes of Commission of an Offence”, (1990) 1 Plilim 29 Google Scholar. See also, Kremnitzer, M., “The Perpetrator in Criminal Law”, (1990) 1 Plilim 65 Google Scholar.
4 As was previously defined in section 21 of the Penal Law.
5 As was defined in section 22 of the Penal Law.
6 No such restriction is mentioned in secs. 47-48 of the Draft Code where necessity and duress are defined.
7 Sec. 29(c) of the Draft.
8 Supra n. 1.
9 There is only one exception to this rule laid down by the Supreme Court in the case of Illuss and Alias v. The State of Israel, (1969) 23(i) P.D. 377; Alias v. The State of Israel, (1969) 23(i) P.D. 561. In that case the court found the principal liable for murder while his accomplice was held guilty only as an aider and abettor to manslaughter. The hidden motivation, I think, was that under the present law an aider and abettor is liable to the same penalty as the principal; and in cases of murder, life imprisonment must be imposed. The Draft Code would change this result. According to sec. 32 of the Draft the penalty for aiding and abetting is less severe than that for actual commission.
10 For an elaboration on that subject see: Gur-Arye, M., “The Influence of Aggravating or Mitigating Personal Characteristics on the Liability of the Participants”, (1984) 19 Is. L.R. 253 CrossRefGoogle Scholar; Feller, S.Z., Elements of Criminal Law, Part II, (Jerusalem, in Hebrew) 296 Google Scholar.
11 Draft Codes 2098, at 160.
12 Ibid.
13 Ibid.
14 (1980) 34(i) P.D. 361.
15 See sec. 391 of the Penal Law.
16 See sec. 384.
17 As hinted by Feller, supra n. 10, at 312-316.
18 Secs. 28-29 of the Penal Law.
19 There was a debate whether the aider and abettor are also liable for additional offences. See: Dahan and Ben-Harush v. The State of Israel, (1969) 23(i) P.D. 197; Feller, S.Z., “Section 24 of the Criminal Law Ordinance — Is it Indeed Aimed at the Aider and Abettor?”, (1976) 6 Mishpatim 275 Google Scholar.
20 Defined in sec. 304 of the Penal Law, the maximum penalty for which is three years imprisonment.
21 See Draft Codes No. 2098, at 133.