¹ See, generally, Glueck, , Mental Disorder and the Criminal Law (1925)Google Scholar, a treatise which systematically differentiates between the distinct “procedural” and “substantive” sets of problems enumerated. (Here referred to as Glueck, Mental Disorder.)

² See Williams, Glanville, Criminal Law, General Part (1961), sec. 146, p. 442Google Scholar.

³ In the words of a prominent American psychiatrist, “Criminology today, like demonology of yesterday, is a battlefield for the possession of which the psychiatrist is still fighting”: Zilboorg, , A History of Medical Psychiatry (1941) 419Google Scholar.

Professor Ehrenzweig on his part contends that “a reconciliation, let alone an alliance, between the lawyer and the physician is likely to remain impossible as to the formulation of the crucial question of legal insanity.” This view is in keeping with his thesis that when the question of the accused's sanity is raised, we do not really want to learn whether the accused was mentally ill but rather want to have the psychiatrist resolve for us the question whether the offender's punishment is preferable to his release. Thus, both judge and psychiatrist misstate their question (phrased in pseudo-medical language) and answer (phrased in pseudo-legal language), since the real answer should lie in our ability to determine whether and how the defendant ought to be punished. This determination would have to vary from crime to crime, and hence the definition of insanity must vary from crime to crime.

See Ehrenzweig, , “A Psychoanalysis of the Insanity Plea—Clues to the Problems of Criminal Insanity in the Death Cell” (1964) 73 Yale L.J. 425, 426, 440–41CrossRefGoogle Scholar.

For the highly controversial view of a psychiatrist who submits that psychiatrists are no more than therapists who may be helpful to people who want to be helped, and urges that the legal issues involved in the case of offenders be left solely to lawyers and judges, see Szasz, Thomas S., Psychiatric Justice (1965)Google Scholar reviewed by Cummings, F. in (1966) 66 Colum. L.R. 212, 221CrossRefGoogle Scholar.

⁴ Hence the realization by some psychiatrists that from the professional point of view, the question of criminal responsibility is immaterial. See Zilboorg, , “Misconceptions of Legal Insanity” (1939) 9 Am. J. Orthopsychiatry, 540, 522CrossRefGoogle Scholar; Wigmore, , The Deranged and Defective Delinquent in Illinois Crime Survey (1929) 737, 743Google Scholar, emphasizing that from the psychiatrist's point of view the issue is not one of abolishing responsibility but of ignoring it and planning treatment to fit the offender rather than his offence. Responsibility is a concept of law and ethics, not of science. Oppenheimer, The Criminal Responsibility of Lunatics (1909) Ch. 1.

A most instructive description of the basic conflict between psychiatrists and the legal profession appears in Berman and Hunt, “Criminal Law and Psychiatry; The Soviet Solution” (1949/50) 2 Stanford L.R., 635, 636–39. See, generally, Glueck, , “A Tentative Programme of Cooperation Between Psychiatrists and Lawyers” (1925) Mental Hygiene, 686Google Scholar.

⁵ Dession, in “Psychiatry and the Conditioning of Criminal Justice” (1938) 47 Yale L.J. 319, expresses belief that this infiltration will one day probably be recognized as overshadowing all other contemporary phenomena in its influence on the evolution of criminal justice.

Glueck in his Law and Psychiatry (1962), carefully points out the vital significance of adequate procedural provision in the administration of the tests of irresponsibility, and the great emphasis put by the draftsmen of the American Law Institute's Model Penal Code (4.05(1), Official Draft 1962), upon progressive procedures in respect to psychiatric examination and testimony. Glueck believes that such work and the increasing recognition of the relevancy of psychiatry to the problems encountered in the administration of justice indicate a thaw in the cold war between the legal and psychiatric professions, which “gives promise of ripening in the not too distant future into an entente cordiale”. See ibid., 74–75, 173–74.

⁶ See Weihofen, , Mental Disorder as a Criminal Defence (1954) 388Google Scholar, and Weihofen, , “Procedure for Determining Defendant's Mental Condition under the American Law Institute's Model Penal Code” (1955/1956) 29 Temple L.Q. 235Google Scholar. Thus for instance when the celebrated case of Durham v. United States, United States Court of Appeal, D.C. Circuit, 1954, 214, F. 2d 826, 45 A.L.R. 2d 1430, 94 U.S. App. D.C. 228, was decided widely enlarging the scope of mental irresponsibility the commitment of defendants acquitted by reason of insanity in the Courts of the District of Columbia was discretionary. Fear that the number of acquittals as a result of the decision would greatly increase, and that these defendants would be set loose, led to legislation which, in providing for automatic and mandatory hospitalization procedurally counteracted much of the effect of the substantive rule. See D.C. Code Ann. 24–301(a) (Supp. VIII, 1960) reenacting a 1955 provision, and also Krash, , “The Durham Rule and Judicial Administration of the Insanity Defence in the District of Columbia (1961) 70 Yale L.J. 905, 941–42CrossRefGoogle Scholar; Goldstein, and Katz, , “Dangerousness and Mental Illness: Some Observations on the Decision to Release Persons Acquitted by Reason of Insanity” (1960) 70 Yale L.J. 225CrossRefGoogle Scholar; “A Logical Analysis of Criminal Responsibility and Mandatory Commitment” (1961) 70 Yale L.J. 1354; Glueck, , Law and Psychiatry, 120, ftn. 55Google Scholar.

⁷ See Hall, and Glueck, , Criminal Law and Enforcement (1958) 306, note 17Google Scholar.

⁸ In Saof v. United States, United States Court of Appeals, Ninth Circuit, 1957. 241 F. 2d 640. Certiorari denied, 1957 (354 U.S. 940, 1 L. Ed. 2d 1539, 77 S. Ct. 1405), the Court was urged to modify the existing laws regarding responsibility and instruct the jury in accordance with instructions suggested in the Durham Case. One of the reasons put forward by the court in refusing the application of the modifying substantive rule was the absence of appropriate federal procedure for the confinement of the accused, if acquitted on the ground of irresponsibility. The same argument was put forward by the United States Court of Military Appeal in United States v. Smith (1954) 5 USMCA 314, 17 CMR 314.

⁹ In England, when the McNaghten rules are not literally satisfied but the evidence of mental aberration is so strong that the jury nevertheless wish to find insanity, there is nothing to prevent them from doing so. On the other hand, in the case of Rivett v. Reg. (1950) 34 C.A.R. 87, the court upheld a jury's verdict of guilty in the face of practically unanimous medical evidence that the accused was irresponsibly insane. The English Court of Criminal Appeal has power to find insanity where the jury has rejected the defence. The power previously derived from sec. 5(4) of the Criminal Appeal Act, 1907, and is now based on sec. 5(b) of the Criminal Procedure (Insanity) Act, 1964, but exercise of this power is rare.

Similar practice obtains in the United States, see State v. Moore, Sup. Ct. of New Mexico (1938) 42 N.M. 135, 76 P. (2d) 19, a murder trial where the Court of Appeal refused to disturb the jury's findings, remarking that the jury was entitled to disregard completely the medical evidence. The procedural aspect of a jury trial in the United States is closely linked with constitutional issues and both in turn may influence the substantive law. See Weihofen, op. cit., 476–82. The Committee on Jurisprudence and Law Reform of the American Bar Association recommended taking the issue from the jury (1926) 51 A.B.A. Reports, 428, 435. See White, , Insanity and the Criminal Law (1923) 171, 271Google Scholar; Glueck, op. cit., 259: “If the jury are to decide this question of innocence or guilt, as they do in ordinary cases, should they be given carte blanche to decide not only the presence of symptoms of mental disease, but in addition whether they are so marked as probably to indicate that the act was, in the legal sense, the deed of an irresponsible person? If they are given this leeway, their conception of responsibility will be the conception of the man in the street, and other influences such as public opinion, prejudice, etc. will be even more often mingled with the determination of the pure question of fact, than they are today, where the legal tests afford at least some guidance to juries, however imperfect this guidance may be.”

¹⁰ Until the passage of the English Homicide Act, 1957, the death penalty was mandatory to all persons convicted of murder. Hence persons charged with lesser offences were willing to chance the possibility of conviction and its attendant definite prison term, rather than raise the plea of insanity and risk an indefinite period of confinement. By the 1860 Criminal Lunatic Asylum Act, a special institution known as Broadmoor Asylum came into existence; committal to Broadmoor is ordered under sec. 2 of the Criminal Lunatics Act, 1800, now replaced by sec. 5 of the Criminal Procedure (Insanity) Act, 1964, and Schedule I of the said Act. See generally Jackson, , “A note on Broadmoor Patients” (1951) 11 Cambridge L.J. 57CrossRefGoogle Scholar. Broadmoor detention was regulated by sec. 62(2) of the Criminal Justice Act 1948. Under sec. 97(2) of the Mental Health Act, 1959, detention may now be in a “special hospital”, Broadmoor being one such hospital. Only two other “special hospitals”— Rampton and Moss Side—offering full security facilities, were instituted in addition to Broadmoor. See Thomas, , “Sentencing the Mentally Disturbed Offender” (1965) Crim. L.R. 691, n. 21Google Scholar.

¹¹ Since under English procedure the plea of insanity can only be raised by the accused, the rarity of the insanity defence outside capital cases means that if capital punishment were abolished, the insanity defence in England would almost disappear from the substantive law, unless permission to raise the issue were given to the prosecution or the court, by procedural changes which would determine the extent of the practical operation of the substantive rule. See Justice Humphrey's criticism of the prevailing rule in R. v. Binns (1946) 31 C.A.R. 55 (a case of a homicidal maniac who refused to raise the plea of insanity).

¹² The British Home Secretary is authorized after medical enquiry to order the transfer of a convicted prisoner to Broadmoor or some other appropriate institution if he is found to be mentally disordered. See Criminal Lunatics Act 1884, sec. 2(a); Mental Deficiency Act 1913 sec. 9; Mental Health Act, 1959, sec. 72, 73. This discretionary power exists regardless of whether or not the defence of insanity was raised at the trial and rejected by the jury either on the medical evidence or under the McNaghten rules. See Williams, op. cit., sec. 153, 468–69. Thus due to the particular executive powers, a mentally ill person may be acquitted in England on the ground of insanity (i.e. obtain a special verdict) and yet be detained at Broadmoor; or if his conduct falls outside the McNaghten rules he may be convicted and yet be detained at Broadmoor. See, generally, Troup, The Home Office (1925). The prerogative discretion has frequently been made an excuse by the Court of Criminal Appeal in England for its refusal to extend the exemption for insanity, a practice objected to as being “a devious method of obtaining legal reform”, see Williams, op. cit., sec. 153, 472. The Court of Criminal Appeal may now make an order for admission to hospital (including a “special hospital”) of persons in respect of whom a special verdict of the lower court has been substituted by a verdict of acquittal on appeal. See sec. 5(2)(3) of the Criminal Procedure (Insanity) Act, 1964.

¹³ This section remained on the statute book until its repeal in 1936 by the Criminal Code Ordinance, 1936. See Palestine Official Gazette 1936, Supp. 1, Ord. No. 74, 285–408 and sec. 14 at p. 292.

¹⁴ See Nofal v. A.G. (1936) 3 P.L.R. 221. The approach of the court here was typical of the British system in interpreting statutes grounded on civil law provisions according to the totally different and often inappropriate principles of the common law.

¹⁵ The Ottoman Law Providing Shelter for Lunatics, March 3, 1892.

¹⁶ By sec. 31(1) of the Treatment of Mentally Sick Persons Law, 1955, 9 L.S.I. 132.

¹⁷ See Explanatory Note to the draft bill of the Treatment of the Mentally Sick. Persons Law, Official Gazette, 230 of March 6th, 1955, 90, 94. However, the responsibility of a person in charge of another person of unsound mind was set out in sec. 228 of the Criminal Code Ordinance. The Law does not impose any duties in regard to mentally ill persons who are not in the charge of any particular person, nor did it impose duties on persons in charge to guard the insane person in order to prevent him from causing harm to others.

¹⁸ Thus sec. 54 of the Criminal Procedure (Trial upon Information) Ord., 1924, and sec. 21 of the Magistrates' Courts Jurisdiction Ord., 1947 (see text in following n. and see nn. 21, 23 infra), substantially repeat the provisions of the Criminal Lunatics Act, 1800, sec. 2 and the Trial of Lunatics Act, 1883, sec. 2 (extending the 1800 provisions to misdemeanours). However, the innovations introduced in England by the Criminal Lunatics Act, 1884, sec. 2(1), (3), (empowering a Secretary of State to remove to a lunatic asylum all prisoners committed for trial who are certified, in a manner provided by the Act, to be insane) and later by the Mental Treatment Act, 1930, sec. 20(1) (repealed by the Criminal Justice Act, 1948 sec. 62(1), (2)), were not introduced into Palestine law, nor has an institution similar to Broadmoor been constituted. The form of the special verdict mentioned in the Palestine provisions is set out in the contracted misleading version of “guilty but insane”, thus in fact being inadvertently different from its model, the British form of “guilty of the act or omission charged against him, but insane at the time”. See Trial of Lunatics Act, 1883, sec. 2(1), and remarks made on this form of the special verdict by Williams, op. cit., sec. 150, pp. 454, 456. Glueck, , Law and Psychiatry, 37Google Scholar, also notes the “atypicality” of the English verdict, referring to the recommendations of the Royal Commission on Capital Punishment 1953 concerning an amendment in the form of the verdict. The recommended change in the form of the special verdict was introduced by sec. 1 of the Criminal Procedure (Insanity) Act, 1964, namely “The accused is not guilty by reason of insanity.” The 1964 Act repeated sub-secs. (2) and (4) of sec. 2 of the Trial of Lunatics Act, 1813.

The procedure of dismissing the charge and releasing insane persons accused of contraventions set out in sec. 21(4) of the Magistrates' Courts Ordinance, was unknown to English law at the time. However, it was introduced into English legislation in 1948 with respect to all summary offences tried by magistrates, but with the superior procedure enabling the magistrate, though dismissing the charge, to order the person's detention in a mental institution, a provision in which the Palestine legislation was found wanting. See Criminal Justice Act, 1948, sec. 26. One should note, however, that the English provisions were further amended after the passing of new Israel legislation in this field, by the Mental Health Act, 1959, secs. 71, 97.

¹⁹ See sec. 54 of the Criminal Procedure (Trial upon Information) Ord., 1924 (amended in 1939), Laws of Palestine, vol. 1, p. 475 as amended by Ord. No. 44 of 1939, Palestine Gazette No. 964 of 23.1.39, p. 115 which reads:

“54 (1) Where upon the trial of any person it appears to the court that he was guilty of the offence with which he is charged but that at the time of the commission of such offence he was, by reason of any disease affecting his mind, incapable of understanding what he was doing or of knowing that he ought not to have done the act or made the omission constituting the offence, the court shall return a special verdict of ‘guilty but insane’ (or ‘guilty but insane by reason of intoxication’), and shall direct that such person be detained during the pleasure of the High Commissioner [now the Minister of Justice].

(2) Where in the course of preliminary enquiries before a magistrate or of a trial upon information, it appears to the magistrate or the court that the person charged is insane so that he cannot be tried, the magistrate or the court shall direct him to be detained during the pleasure of the High Commissioner [now the Minister of Justice]. Where it is certified by two Government medical officers that a person detained under the provisions of this sub-section is sane and the High Commissioner [now the Minister of Justice] is satisfied that it is proper to do so, he shall direct that such person shall be tried, according to law, for the offence for which he was charged.

(3) The High Commissioner [now the Minister of Justice] may from time to time give directions as he thinks fit as to the custody of persons directed to be detained under the provisions of this section.”

²⁰ See definition in sec. 5, Criminal Code Ord., 1936.

²¹ See Palestine Official Gazette, 1947, Supple. 1, Ord. No. 45, p. 277.

²² See text in n. 19 supra.

²³ See Palestine Official Gazette 1946, Supple. 1. Ord. No. 3, p. 9. Sec. 62 reads as follows: “If any prisoner shall appear to be of unsound mind in any prison, the superintendent shall forthwith report to the medical officer and the medical officer shall visit and enquire into the state of mind of such prisoner, and if the medical officer shall sign a certificate in respect of such prisoner according to the form set out in the First Schedule, the superintendent shall forward a copy of such certificate to the Commissioner for transmission to the High Commissioner and it shall be lawful for the High Commissioner by order in writing under his hand directed to the Superintendent of such prison to order that such prisoner be forthwith removed to any fit place for custody and treatment of lunatics, which may from time to time be appointed by the High Commissioner for that purpose either within any prison or elsewhere. Any person so removed shall remain in such place until it shall be certified by a medical officer in service of the Government of Palestine that such prisoner has become of sound mind, whereupon he shall be delivered into the custody of the superintendent of such prison if still liable to be confined therein, and if not so liable, released.” This section is still part of Israel law; however, the words “High Commissioner” were replaced by “Minister of Police” and “Palestine” by “Israel”.

²⁴ See sec. 9, Criminal Lunatics Act 1884, Mental Deficiency Act 1913.

²⁵ See observations made by Dikstein, P., The Criminal Law (1947), vol. 2, 413Google Scholar. (Hebrew).

²⁶ See the Law for the Amendment of the Magistrates' Courts Jurisdiction Ordinance (No. 2), 1954, Reshumot, 1954, 216.

²⁷ The Treatment of Mentally Sick Persons Law, 1955, (hereinafter referred to as “The Statute”). For a general survey of The Statute see Livneh, “Letter from Israel—Procedural Reforms in Respect of Criminal Insanity” (1964) Crim. L.R. 392.

²⁸ See secs. 2, 3.

²⁹ See sec. 8.

³⁰ See sec. 15.

³¹ See secs. 16, 18, 19.

³² See sec. 26.

³³ See sec. 27.

³⁴ See Draft Bills, (n. 17) supra, 94–95.

³⁵ See Divrei HaKnesset (Knesset Proceedings) (1955) vol. 18, first reading (May 10, 1955) 1576–84; second and third readings (June 27, 1955) 2079–81.

³⁶ “Many of the terms employed in older legislation have acquired a pejorative connotation, a different nomenclature is often used in amendments and new enactments in an attempt to remove the stigma formerly attaching to psychiatric patients and hospitals.” See International Digest of Health Legislation (published by the United Nations World Health Organization), 1955, vol. 6, p. 10. Thus by 1950 about half the States in the United States had replaced the term “insanity” by “mental illness” in their statutes. In England, the Mental Health Act, 1930, replaced the term “lunatic” by various terms such as “person of unsound mind”, “person”, “patient”, etc. according to context. The Mental Health Act, 1959, refers to a “patient” who must suffer from one of certain forms of “mental disorder” defined in sec. 4(1) of the Act as “mental illness, arrested or incomplete development of mind, psychopathic disorder, and any other disorder or disability of mind.” In France the 1838 law speaks of aliénés but this expression is replaced in the 1948 circular of the Minister of Public Health by malades mentaux, see International Digest, ibid., 11–12.

Of course the term “mental sickness” is in itself not free from ambiguity. The extent of disagreement on the nature of mental illness among men of science is dramatically illustrated in the works of Dr. Thomas Szasz, and some of the widespread criticism, and indeed indignation which his books have created in the profession. Dr. Szasz, maintains, inter alia, that there is no such thing as mental illness, since there are only diseases of the brain not of the mind (See Szasz, , Law, Liberty and Psychiatry (1963) 11Google ScholarStafford-Clark, , Book Review (1964) 74 Yale L.J. 392, 394CrossRefGoogle Scholar, Bishop, , Book Review (1965) 78 Harv. L.R. 1510, 1513)CrossRefGoogle Scholar, and that “mental illness” is a myth. He qualifies his statement by explaining the risk of miscasting this metaphoric term, accepting the existence of the phenomena we call “mental illness” but questioning the wisdom of calling them “mental” or “illness” (Szasz, , The Myth of Mental Illness: Foundations of a Theory of Personal Conduct (1961) 249)Google Scholar.

Some psychiatrists recognize that their terminology is no more than a method of classifying types of conduct and courses of therapy. Dr. Szasz insists on calling these phenomena “problems in living” or “social misbehaviour”. (See Law, Liberty and Psychiatry 13; and Cumming's Book Review on Psychiatric Justice, (1966) 66 Columb. L.R. 212, 214, 217, 221.)

On the vagueness of the term “mental disease” see generally, Hall, , General Principles of Criminal Law (2d. Edition 1960) 450–53 and authorities noted thereGoogle Scholar.

³⁷ This approach of The Statute delights psychiatrists and criminologists alike; indeed, as we shall later see, The Statute has opened the way for the infiltration of the medical-psychiatric profession into this particular field of the administration of criminal law. However, although an offender is described as a “mentally-sick person” in sec. 6(b) of The Statute (providing for the disposition of an offender found by the court to have committed the act but unpunishable because of being a “patient” at the time of commission), the Israel Supreme Court was not inclined to deduce from The Statute a change in the substantive tests of irresponsibility set out in sec. 14 of the Criminal Code Ord., thus at least on the substantive level construing the words “mentally-sick” narrowly and subject to the McNaghten tests. See Mandelbrot v. A.G. (1956) 10 P.D. 281, 333–34.

³⁸ See Deutsch, , The Mentally Ill in America (1949) 409–10Google Scholar.

³⁹ This section replaced sec. 54 of the Criminal Procedure (Trial upon Information) Ordinance, 1924, and sec. 21 of the Magistrates' Courts Jurisdiction Ordinance, 1947, which were in force prior to the passage of The Statute.

Sec. 6 of The Statute reads as follows:

“(a) When an accused person is brought to trial and the Court is of the opinion, whether on the strength of the evidence presented to it on behalf of one of the parties or on its own initiative, that he is not fit to stand trial by reason that he is ill it may order that he be admitted to a hospital.

(b) When an accused person is brought to trial and the Court finds that he has done the criminal act with which he was charged, but decides whether on the strength of the evidence presented to it on behalf of one of the parties or its own initiative that by reason of his having been ill at the time of committing the act he is not liable to punishment and that he is still ill, the Court shall order that he be admitted to hospital.

(c) A Court order under sub-section (a) or (b) shall for the purpose of appeal, be treated like a conviction.

(d) To enable it to decide whether an order under this section should be made the Court may, upon the application of a party or on its own motion, order that the accused be medically examined and, if necessary, that he be admitted to a hospital.

(e) An order under this section shall be carried into effect by a district psychiatrist; the court shall not specify the hospital to which the sick person is to be admitted; and the hospital designed for that purpose by or on behalf of the district psychiatrist, shall admit the person mentioned in the order.”

⁴⁰ See secs. 12 and 17 of The Statute. It seems in view of the judgment in the Dweik Case (n. 42 infra) that an appeal on the Commission's findings will lie to the District Court under sec. 25, but such holding seems incompatible with the language of The Statute.

⁴¹ See sec. 17(b).

⁴² Sec. 30(a) provides that The Statute's provisions shall be read as additional to any other law in force and in particular do not detract from the right of any person to seek a remedy from the High Court of Justice. However, the Israel law concerning writs of habeas corpus follows the British pattern. Being unhampered by constitutional limitations, it operates in a restrictive manner, unlike the practice in the United States. The Israel High Court of Justice has had one occasion to consider an application for a writ of habeas corpus of a person detained under sec. 6(a) of The Statute and indicated that it will be restrained from granting release outside the special machinery provided for such release in The Statute. See Dweik v. Minister of Health (1956) 10 P.D. 1537, where the court refused to grant habeas corpus when the machinery for release provided by The Statute had not been first exhausted, in spite of the petitioner's previous application to the psychiatric commission which had borne no fruit.

⁴³ Sec. 22(b).

⁴⁴ See the discussion in Glueck, Crime and Correction; Selected Papers (1952) 58, who remarks on the antiquity of institutions dealing with the problem of crime and the existence of an institutional system that was designed for a time and set of circumstances essentially different from the present. He then proceeds to cite Dean Pound as pointing out that many of the difficulties in the judicial system are traceable to obsolescence of machinery; see p. 59, ibid.

⁴⁵ Glueck, , Mental Disorder 47Google Scholar; and, Law and Psychiatry, 138–39. For a rather “startling” contrary view suggesting that the mentally unfit defendant shall be accorded much the same treatment as any other unfit person, see Szasz, , Psychiatric Justice, 261–62Google Scholar; Cummings, op. cit., 213.

⁴⁶ See Glueck, , “Psychiatric Examination of Persons Accused of Crime” (1927) 36 Yale L.J.CrossRefGoogle Scholar (Reprinted in Glueck, Crime and Correction, (1952) 121)Google Scholar; Weihofen, , “The Alternative to the Battle of Experts: Hospital Examination of Criminal Defendants before Trial” (1935) 2 Law and Contemp. Prob. 419CrossRefGoogle Scholar; Overholser, , “History and Operation of the Briggs Law of Massachusetts” (1935) 2 Law and Contemp. Prob. 436CrossRefGoogle Scholar; Deutsch, op. cit., 407.

⁴⁷ See the elaboration of these interests by Glueck, , Mental Disorder, 446–47Google Scholar. See also Pound, , “Criminal Justice in the American City”, in Ford's, JamesSocial Problems and Social Policy, 891, 892Google Scholar. See also Hall, op. cit., 460–62; and on the issue of involuntary confinement, Overholser v. Lynch 288 F. 2d. 388 (D.C. Cir. 1961), reversed in Lynch v. Overholser 369 U.S. 705 (1961); and discussion in “A Logical Analysis of Criminal Responsibility and Mandatory Commitment” (1961) 70 Yale L.J. 1354; Goldstein and Katz, “Dangerousness and Mental Illness etc.” (n. 6 supra) at 232, 237.

⁴⁸ See Blackstone's Commentaries, vol. 4, 24: “If a man in his sound memory commits a capital offence, and before arraignment for it becomes mad, he ought not to be arraigned for it, because he is not able to plead for it with that advice and caution that he ought.” This is merely a recognition of the principle enunciated in some of the early English cases: Bateman's Case, 11 Jpw. St. Tr. 467 (1685); Kinloch's Case, 18 How. St. Tr. 395, 411 (1746); Frith's Case, 22 How. St. Tr. 311 (1790).

⁴⁹ Royal Commission's Reports, para. 415, p. 145; Williams, op. cit., sec. 144, p. 438.

⁵⁰ See Royal Commission's Report, para. 416, pp. 145–46.

⁵¹ “The English practice has the great merit of affording opportunity for continuous professional observations” (ibid.), para. 417, p. 146), an advantage which the Scottish procedure fails to secure, but on the other hand the disadvantage of the English system lies in the fact that the accused may be imprisoned in a small prison where there is only a part-time medical officer, or that even full-time prison medical officers have not always had psychiatric training or experience and particularly that the evidence of prison medical officers may not clearly bear the necessary stamp of independence of judgment, being Officers of the Crown on whose behalf the prosecution is also brought. These disadvantages do not exist in the Scottish practice. See ibid., para. 418–21, pp. 146–47.

⁵² Ibid., para. 426, p. 148.

⁵³ Ibid., para. 422, p. 147.

⁵⁴ See Glueck, , Mental Disorder, 447, 448.Google Scholar

⁵⁵ See ibid., 126.

⁵⁶ See sec. 37 of the Mental Defective Act, 1911.

⁵⁷ See secs. 27 and 28, Mental Disorders Act, 1916.

⁵⁸ See sec. 451 of the Criminal Code, cited in the Report of the Royal Commission on the Law of Insanity as a Defence in Criminal Cases (Canada, 1955) Cap. 2, p. 4. In the Provinces there is complementary legislation to sec. 451.

⁵⁹ Even in traditional England, before the passage of the Mental Health Act, 1959, some procedure for determining the mental condition of accused persons before trial was evolved in 1948, but only with respect to crimes tried in summary jurisdiction; see sec. 26 of Criminal Justice Act 1948, replaced by sec. 26 of the Magistrates' Courts Act, 1952, and amended by the Mental Health Act, 1959, schedule 7, part 1.

⁶⁰ See Royal Commission's Report, Appen. 9, pp. 420–21; Biggs, , “Procedures for Handling the Mentally Ill Offender in some European Countries” (1955/1956) 29 Temple L.Q. 254, 257–58.Google Scholar

⁶¹ See Royal Commission's Report, 422–23; Biggs, op. cit., 258–59.

⁶² See Royal Commission's Report 421–22; Biggs, op. cit., 260–61.

⁶³ See Code of Criminal Procedure, RSFSR. sec. 63 (1947), cited in Berman, and Hunt, , “Criminal Law and Psychiatry; The Soviet Solution” (1949/1950) 2 Stanford L.R. 635, 652, note 47.Google Scholar

⁶⁴ An adjective aptly used by Deutsch, op. cit., 405.

⁶⁵ See Glueck, , Crime and Correction (1952), 122Google Scholar, note 5: “The passage of this pioneer piece of legislation is largely due to the vision and the ceaseless efforts of Dr. L. Vernon Briggs of Boston.”

⁶⁶ See Mass. Gen. Laws Ann. Ch. 123 § 200 A (1959).

⁶⁷ See Weihofen, op. cit., 340–45; Glueck, , Mental Disorder, 55–65, 474–76Google Scholar; Deutsch op. cit., 405–07; Hall and Glueck, op. cit., 287; International Digest of Health Legislation, op. cit., 59; Overholser, , “History and Operation of the Briggs Law of Massachusetts” (1935) 2 Law and Contemp. Problems, 436CrossRefGoogle Scholar; Glueck, , “Psychiatric Examination of Persons Accused of Crime” (1927) 36 Yale L.J. 632CrossRefGoogle Scholar; Overholser, , “The Massachusetts Procedure Relative to the Sanity of Defendants in Criminal Cases” (1935) Minn. L.R. 308Google Scholar; Parker, , “The Determination of Insanity in Criminal Cases” (1941) 26 Corn. L.R. 378Google Scholar, Overholser, , “The Briggs Law of Massachusetts: A Review and an Appraisal” (1935) 25 J. Crim. L. & Crim. 859.Google ScholarGlueck, , Law and Psychiatry 137–139Google Scholar, and for examination and criticism of the operation of the Law see Krentzer, , “Re-Examination of the Briggs Law” (1959) 39 B.U.L.R. 188Google Scholar, Tenney, , “Sex, Sanity and Stupidity in Massachusetts” (1962) 42 B.U.L.R. 1–9.Google Scholar The Royal Commission invited Dr. Overholser of Massachusetts to testify on the salient features of the law in action and gave the question of its introduction into England close consideration, see Report, sec. 426, p. 148. See also Williams, op. cit., sec. 144, pp. 440–41.

⁶⁸ See Weihofen, op. cit., 342; Glueck, , Crime and Correction (1952), 122.Google Scholar

⁶⁹ See Glueck, , Mental Disorder, 59Google Scholar; Deutsch, op. cit., 406; Weihofen, op. cit., 342; Weihofen, , “Eliminating the Battle of the Experts in Criminal Insanity Cases” (1949/1950) 48 Mich. L.R. 961, 972Google Scholar; Glueck, , Crime and Correction, 124, 136.Google Scholar

⁷⁰ See Weihofen, op. cit., 342; Glueck, , Mental Disorder, 59Google Scholar; Id., Crime and Correction, 124.

⁷¹ See Weihofen, op. cit., 342.

^71a See D.C. Code Ann. § 24–301 (Supp. VIII, 1960). This Statute supersedes in the District of Columbia the provisions of 18 U.S.C. § 4244 (1958) which governs pre-trial competency motions in all other federal courts. A rather similar practice prevails in the State of New York. For an elaborate discussion of the District of Columbia procedure see Krash, op. cit., 908–21. For a scathing criticism of the whole process whereby the public mental hospital authorities are granted the authority to determine the accused's incompetency to stand trial and hence have him involuntarily committed for a practically indeterminate period, and possible abuses and mistakes of such procedures, see Szasz, , Psychiatric Justice, 22–23Google Scholar; and Cummings, op. cit., 215–16, 219–21; also see generally Hess, and Thomas, , “Incompetency to Stand Trial” (1963) 119 Am. J. Psychiatry 713.CrossRefGoogle Scholar

For a more detailed discussion of the competence issue see further in text.

^71b See preceding note.

^71c The question of the exact scope of the mental examination authorized under the D.C. Statute has been a thorny one. The law, if construed strictly, merely authorizes psychiatric tests at the pre-trial stage to determine competence to stand trial, namely an examination limited to determining whether the defendant was capable of understanding the proceedings against him or assisting in his defence. It was held, however, in Winn v. United States 270 F 2d. 326 (D.C. Cir. 1959) that the Statute does not prohibit a more comprehensive examination designed to ascertain his mental state at the time of the offence. As a result the prosecution itself has increasingly taken the initiative in requesting the court to order pre-trial mental examinations, in the hope of gathering evidence in preparation for an impending “insanity plea” rather than out of interest in establishing the accused's fitness to stand trial. See Krash, op. cit., 911–12.

⁷² See text in n. 39 supra.

⁷³ These difficulties were not overlooked by the Israel courts even before the introduction of The Statute. The customary practical solution which seems to have been adopted was to use the provisions of sec. 62 of The Prisons Ordinance (cited in n. 23 supra) under which the Minister of Police is authorized to order the removal of any prisoner for treatment and observation in a hospital. See in this connection A.G. v. Stern (1959) 19 P.M.S. 13. Since under sub-sec. (d) (see n. 39 supra) the medical examination is only permitted for facilitating the determination with regard to the order to be given under sub-sec. (b), and this order is dependent on the accused's mental condition at the time of the verdict, it might well be argued that the court has no power to order the mental examination of the accused with respect to his mental condition at the time of the offence. This sub-section has not yet been subject to authoritative interpretation by the Supreme Court.

⁷⁴ See text of sec. 62 of the Prisons Ordinance, n. 23 supra.

⁷⁵ Glueck, , Crime and Correction 137.Google Scholar

⁷⁶ This belief is expressed by Weihofen, op. cit., 428.

⁷⁷ Following the passage cited in n. 47 supra. Blackstone continues: “And if, after he has pleaded, the prisoner becomes mad, he shall not be tried: for how can he make his defence? If after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if after judgment, he becomes of nonsane memory, execution shall be stayed.” Similar terms had been used by Coke and Hale. Also see text and notes in Ehrenzweig, , Psychoanalysis of the Insanity Plea, 432.Google Scholar

⁷⁸ Jordan v. State (1911) 124 Tenn. 81; 135 S.W. 327.

⁷⁹ Hall and Glueck, op. cit., 287. A trial of an insane person has been held to violate the “due process clause” in the following Cases: Yontsey v. U.S. (1899) 97 Fed. 937; U.S. ex rel. Mazy v. Ragen (1945) 149 F. 2d, 948, certiorari denied, 326 U.S. 791, 66 Sup. Ct. 476, 90 L. Ed. 480, U.S. v. Gundelfinger (1951) 98 F. Supp. 630.

⁸⁰ Dr. Walter Bromberg in Crime and the Mind points out that a study of offenders shows that intense emotional shock at the anticipation of punishment, or the effect of actual imprisonment, accounted for sudden bizarre changes in behaviour.

⁸¹ See Williams, op. cit., sec. 143, p. 435.

⁸² See Williams, op. cit., sec. 143, p. 434; R. v. Dashwood [1943] 1 K.B. 4; Reg. v. Rivett (1950) 34 C.A.R. 90; Reg. v. Beynon [1957] 2 Q.B. 111; Reg. v. Sharp [1958] 1 All E.R. 62. The Palestine and Israel Courts (prior to The Statute) followed the English practice in this respect. See Janover v. A.G. (1945) 12 P.L.R. 282; Salomon v. Salomon (1952) 6 P.D. 589.

⁸³ See Weihofen, op. cit., 441; Ormsby v. U.S. (1921) 273 Fed. 977, 987, where the court remarked: “A public officer charged with enforcing the criminal law is inherently charged with the duty of invoking laws of this character, not only for the protection of society, but of those accused of crime.” State v. Brotherton (1930) 131 Kan. 295, 291 Pac. 954; State v. Herbert (1937) 186 La. 308, 172 So. 167; People v. Janek (1939), 287 Mich. 563; 283 N.W. 689; secs. 4244–48 Fed. Criminal Code. See also n. 71a supra and text.

⁸⁴ See text in n. 39 supra.

⁸⁵ This was still the situation prevailing in England, after passage of the Mental Health Act, 1959. See Williams, op. cit., sec. 143, p. 436. Parliament has, however, acted on the recommendation of the Criminal Law Revision Committee's 3rd Report (Cmd. 2149) and introduced in sec. 4(6) of The Criminal Procedure (Insanity) Act, 1964, a right of appeal against the determination by a jury of the question of the accused's fitness to be tried.

⁸⁶ See Janover Case, n. 82 supra. The accused was charged with burglary. The prosecution notified the court that the accused was unfit to plead because of his mental illness and a prison doctor was called and testified to this effect. The court acted on the testimony and ordered the accused to be detained during the High Commissioner's pleasure. Courts have also acted in the opposite direction. See Mizrachi v. A.G. (1939) 6 P.L.R. 200. The accused was charged with murder and appeared without counsel. The court appointed counsel. The latter requested an adjournment in order to call medical experts to testify that the accused was unfit to stand trial. The motion was denied and the court itself called a government doctor, who testified that the accused was fit for trial. This doctor was a general practitioner who had treated the accused in prison when sick with influenza. The accused was sentenced to death. The defence appealed the conviction, pleading insanity, and requesting to call medical evidence on appeal. The appeal was dismissed on the ground that the plea of insanity was not formally pleaded in the lower court.

⁸⁷ See the Salomon Case, n. 82 supra. The accused had quarrelled with his wife and was charged with assault in the Magistrates' Court. The accused conducted his own defence and, whilst cross-examining his wife in court, burst out with threats and offensive language. The magistrate was inclined to think that the accused was not fit to plead, but clearly hesitated to pronounce the accused insane because of the harsh consequences involved, committal to an institution, merely on the impression he had created in court, so that in spite of the absence of any legal authority, he ordered the mental examination of the accused to be carried out by the police. Since the accused was out on bail there was no procedure, either for the revocation of the bail to enable the prison doctor to examine him under sec. 62 (see n. 23 supra), nor for submitting the person to examination against his will. The High Court of Justice, when dismissing the magistrate's order, remarked on the lamentable lacuna in the law and commended the magistrate's conscientiousness in not choosing the easy solution by applying the dry law from which no appeal could lie, and committing the person to an asylum, merely upon the judge's superficial impressions.

⁸⁸ See the Yanover Case, supra. Under the old law, what hope did such a person have? His fate was entirely in the hands of the High Commissioner. The situation in England in this respect was until 1914 identical with the old Israel law. See Halsbury's Laws of England, 3rd Ed. vol. 10 (1955) sec. 730, p. 403; sec. 957, p. 521; R. v. Jefferson (1908) 72 J.P. 467; R. v. Larkins (1911) 6 C.A.R. 194; R. v. Roberts [1953] 2 All E.R. 340; M.H.L., “Guilty but Insane, Should there be a Right of Appeal?” (1957) The Law Journal, 611, 613. This question seems to have been resolved affirmatively under the provisions of sec. 4(6), incorporating the provisions of sec. 2, of the newly enacted Criminal Procedure (Insanity) Act, 1964. In the United States such a person's fate is somewhat better because of the extensive use of the writ of habeas corpus, but still it has been widely held that the decision of the trial judge will not be overruled by the upper court unless it was clearly arbitrary and an abuse of discretion. See numerous citations in Weihofen, op. cit., 444-–45, notes 37, 38. 39.

⁸⁹ See nn. 85 and 88 supra.

⁹⁰ See Ark. Stat. (supp. 1949) sec. 43, 1301; Fla. Stat. (1949) sec. 917.01; Ky. Codes (Carroll, 1948) Crim. Code of Prac. sec. 156; La. Rev. Code (1950) sec. 15.267; Mo. Rev. Stat. (1949) sec. 545.750; N.D. Rev. Code (1943) sec. 29.2001; Va. Code (1950) sec. 19–203.

⁹¹ See Wis. Stat. (1951) sec. 357.13(1); See also 18 U.S.C.A. Stat. 4244.

⁹² See Md. Ann. Stat. (Burna, 1951 Cum. Suppl.) sec. 9—1706A.

⁹³ See Ala. Code (1940) Tit. 15 sec. 426; Idaho Code (1947) sec. 19–3302; Iowa Code (1950) sec. 783; Mont. Rev. Codes (1947) sec. 94–9302; Nev. Comp. Laws (1929) sec. 11184; Okla. Stat. (perm, edition) Tit. 22, sec. 1162; S.D. Code (1939) sec. 34.2002.

⁹⁴ See sec. 2 of the Criminal Lunatics Act, 1800, recently repealed by sec. 8(5)(a) of the Criminal Procedure (Insanity) Act, 1964. The new Act uses very broad terms and does not restrict the issue of fitness to be tried to mental illness only, the criterion laid down in sec. 4(1) of the Act, being “any disability such that apart from this Act it would constitute a bar to his being tried …”.

⁹⁵ See sec. 524 of the Criminal Code, cited in the Canadian Royal Commission Report (see n. 58 supra) 5. This Commission, when considering revision of the law, recommended no changes on this point.

⁹⁶ See n. 36 supra.

⁹⁷ It seems, however, that this view is not entertained by the court in A.G. v. Joseph (1962) 16 P.D. 2710, where a narrow interpretation is given of the terms “patient” or “mental sickness”, excluding from their scope cases of mental deficiency. Cf. sec. 4 of The Mental Health Act, 1959, and see remarks in Williams op. cit., sec. 142, p. 429, sec. 147, pp. 447–48.

⁹⁸ One may discern a strong tendency on the part of the Israel Supreme Court, as shown in one of the few cases where The Statute has been considered, towards entrusting more and more of the actual decisions under The Statute to expert psychiatrists, rather than to the judge, who is relegated to the secondary role of evaluating the expert testimony and adhering to it once the experts are positive in their findings. See Anonymous v. A.G. (1957) 11 P.D. 418. The issue in this case was whether the judge may at his discretion decide whether to incarcerate a person found to be irresponsible at the time of the act, when the medical evidence has shown him to be still mentally ill at the time of the verdict, yet inoffensive. The Supreme Court held that the judge has no discretion on this point since the legislature has clearly indicated the intent that such decision be entrusted to the expert psychiatric commission and not to the judge. See also Joseph Case, supra. In a different context, see A.G. v. Waked (1960) 22 P.M. 32.

⁹⁹ See n. 97 supra.

¹⁰⁰ See Fano v. A.G. (1963) 17 P.D., 1105, 1112.

¹⁰¹ One may, however, hope that the wide definition employed in The Statute will eliminate the inhumane and unscientific conception of a type of mental disorder which affects only certain faculties, and leaves those useful in the trial intact. It is to be hoped that this conception will give way to the more rational view that a person of pronounced mental disorder, whether it affects his thought processes or his emotional and volitional life, ought not to be tried. The British Royal Commission in its report adopted a contrary view, endorsing the prevailing practice in England that a certifiably insane person may nevertheless be fit to plead and ought to be tried (see Report, para. 223, p. 78), but this view does not seem wholly to accord with the later approach of Parliament laying down in sec. 4(1) of the Criminal Procedure (Insanity) Act, 1964, broad tests covering “any disability…that… would constitute a bar to his being tried”, unless it shall be held that the tests for determining such disability remained unaltered.

¹⁰² See n. 48 supra.

¹⁰³ See N.J. Rev. Stat. (1937) sec. 30: 4–82; Pa. Stat. (Purden, perm, ed.) Tit. 50, sec. 51 (except on conviction for first degree murder); Va. Code (1950), sec. 19–202, 53–88; Wis. Stat. (1949) sec. 357.13 (1); Kan. Gen. Stat. (1949) sec. 62–1531; Tenn. Code (1938) sec. 4519.

¹⁰⁴ See N.J. Rev. Stat. (1937) sec. 30: 4–82.

^104a See Szasz, , Psychiatric Justice, 37–55Google Scholar, where the various statutes are set out and discussed; Cummings op. cit., 212; Krash, op. cit., 909–16.

¹⁰⁵ See in Re Buchanan 129 Cal. 330; 50 L.R.A. 378; 61 Pac. 1120 (1900), following in the footsteps of Gardner v. Jones, 126 Cal. 614; 59 Pac. 126 (1899).

¹⁰⁶ See Glueck, , Mental Disorder 76–77Google Scholar

¹⁰⁷ See text in n. 39 supra.

¹⁰⁸ with the important distinction that English magistrates, even before the Mental Health Act, 1959, were empowered to order the mental examination of an accused person as a condition of his release on bail (see sec. 26 of the Criminal Justice Act, 1948) whereas Israel courts had no such power (see Salomon Case, nn. 82, 87 supra).

¹⁰⁹ See Halsbury's Laws of England (3rd ed.) vol. 10, sec. 730, p. 403. See citations there in note (d).

¹¹⁰ See Report of Committee on Insanity and Crime (Cmd. 2005) 21.

¹¹¹ See Royal Commission Report, para. 225, p. 79. Sees. 60, 62, 76 of the Mental Health Act, 1959, read in conjunction with secs. 77, 65 and 68; Halsbury's Laws of England, vol. 29, para. 984, p. 523; para. 985, pp. 524–25; para. 986, p. 525.

¹¹² See Hall and Glueck, op. cit., 287.

¹¹³ See General Laws, C. 123, sec. 53; Glueck, , Mental Disorder 83.Google Scholar

¹¹⁴ A good description of the difficulties encountered by the operation of such commissions is found in the Irving Case, cited in Michael, and Wechsler, , Criminal Law and its Administration (1940) 886–96.Google Scholar

¹¹⁵ See Glueck, , Mental Disorder 86Google Scholar, who recommends such procedure.

¹¹⁶ See Weihofen, op. cit., 330–40, 449. See nn. 71 a–c supra and discussion in text.

¹¹⁷ See, for example, Md. Ann. Code (1951) art. 59, secs. 8, 10. N.Y. Code of Crim. Proc. arts. 658–62d; Pa. Stat. (Perm ed. Purden) Tit. 19, art. 1352; Wyo. Comp. Stat. (1945) art. 10–904. This is the practice in federal courts and also in the District of Columbia, see extensive discussion in Krash, op. cit., 908–21 and authorities cited there.

¹¹⁸ See text in n. 39 supra.

¹¹⁹ See Glueck, , Mental Disorder, 488–90.Google Scholar See the voluble discussion with regard to the entire problem of “lunacy experts” in England as compared to Continental countries, in Oppenheimer's classic: The Criminal Responsibility of Lunatics: A Study in Comparative Law (1909) 261–68.

¹²⁰ See, for example, Calif. Penal Code (1949) art. 1027.

¹²¹ See Oppenheimer, op. cit., 266. “It is not, however, enough that experts should be instructed ad hoc by the court in each individual case separately. They ought to form a permanent professional body, attached to the courts in an official capacity, such as the Gerichtsaertze in Germany or the experts médecins prés les tribunaux in France and composed of men who by training and experience are specially qualified to discharge the important duties of medical experts.”

¹²² See Weihofen, op. cit., 335; Keedy, , “A Bill to Regulate Expert Testimony” (1915) 5 J. Crim. L. & Crim., 643Google Scholar, Weihofen, , “Eliminating the Battle of Experts in Criminal Insanity Cases” (1950) 48 Mich. L.R. 961.CrossRefGoogle Scholar

¹²³ The common law rule in force in England provides that if a person indicted for an offence appears insane, the court may on his arraignment order a jury to be empanelled to try whether he is sane. See R. v. Vent (1935), 25 C.A.R. 55; R. v. Keavy (1878) 14 Cox C.C. 143; Halsbury's Laws of England, vol. 10, sec. 730, p. 403; Royal Commission Report, paras. 220–25. A similar principle was enacted in sec. 2 of the Criminal Lunatics Act, 1800, and repeated in sec. 4(4) of the Criminal Procedure (Insanity) Act, 1964, which replaced that part of the 1800 Act. The same practice obtains in Canada. See sec. 524 of the Criminal Code, Royal Commission (Canada) 5. In the United States the common law discretion of the judge whether to empanel a jury or decide the question himself is expressly reserved in the statutes of nine legislatures. (Alabama, Colorado, District of Columbia, Michigan, Ohio, Pennsylvania, Virginia and Wisconsin. See citations in Weihofen, op. cit., 446, n. 41.) Thirteen others provide for a hearing by the court without specifying whether the judge may empanel a jury (Arkanas, Connecticut, Florida, Indiana, Iowa, Massachusetts, Minnesota, New Jersey, North Carolina, North Dakota, Oregon, South Carolina, West Virginia). See Weihofen, ibid., p. 446, n. 42. For a view that the issue of insanity and hence of the question of punishability (as distinct from the issue of competence presently under discussion) should be entrusted only to the jury and not to the psychiatrists, since only the former “can be hoped to interpret for the society's subconscious needs”, which in fact are in issue, see Ehrenzweig, op. cit., 439.

¹²⁴ See Glueck, , Mental Disorder, 80–81.Google Scholar

¹²⁵ See Halsbury's Laws of England, vol. 10, para. 957, p. 521. R. v. Larkins (1911), 105 L.T. 384; Jones v. State, 13 Ala. 153 (1848).

The finality of decisions on the issue of fitness to plead was somewhat weakened in England in R. v. Podola [1959] 3 All E. R. 418 [1960] 1 Q.B. 325, holding that a convicted person might appeal against his conviction on the ground that the hearing of the preliminary issue of fitness to plead was open to objection for error in law so that he should never have been tried on the substantive charge at all. In 1964, however, such decisions were made subject to appeal, see nn. 85 and 86 supra.

¹²⁶ See sec. 6(a) (n. 39 supra) and the Case of Anonymous (n. 98 supra).

¹²⁷ See text in n. 39 supra.

¹²⁸ See secs. 63, 67 Criminal Procedure (Trial upon Information) Ordinance (1924) Laws of Palestine, vol. 1, p. 475.

¹²⁹ The Criminal Procedure Law, 1965, Reshumot (Statutes) No. 458, p. 161.

¹³⁰ See sec. 179 of the Criminal Procedure Law, 1965.

¹³¹ See sec. 191 ibid.

¹³² This question was raised by the court in the Joseph Case (see n. 91 supra) but by way of obiter, without making an attempt to solve it. One gets the impression that the court was anxious to avoid the issue of its competency to hear the appeal, in case such competency were challenged by counsel on the basis of the provisions of sec. 6(c).

¹³³ See n. 128 supra.