1 Gold v. The Attorney General (1953) 7 P.D. 1126 (hereafter: Gold).

1a But see infra n. 100.

2 The facts are drawn exclusively from the decision, ibid.

3 Criminal Code Ordinance, No. 74 of 1936, P.G. Supp. 2, 1936, p. 285.

4 This ordinance is generally referred to by the name of a later amendment to the original name, which was: Arrest of Offenders and Searches Ordinance, 1924, No. 4 of 1924, P.G. 1924, p. 462. Section 12 was originally numbered 9. At the time of writing, this section (as the Ordinance itself) had survived in its original form for over sixty years: see Criminal Procedure (Arrests and Searches) Ordinance [New Version], 1969, sec. 19 (2 L.S.I. [N.V.] 30, at 34).

5 Gold, supra n. 1, at 1136.

6 Loc. cit.

7 Ibid., at 1134: “We must construe the said statutory provision … in accordance with the meaning of the terms in English law”.

8 For a comprehensive study of the interpretation provision of the Criminal Code Ordinance, 1936, and its flexible application by the Supreme Court, see Abrams, N., “Interpreting the Criminal Code Ordinance, 1936” (1972) 7 Is.L.R. 25, esp. 52 ffGoogle Scholar.

9 See, e.g., The Attorney General v. Segal (1955) 9 P.D. 393, and especially the dissenting opinion of Silberg J. at 410-411.

10 Silberg J.'s words in Segal (ibid., at 411) are apt: “We here face a question of system and position rather than of definition and construction”.

11 As noted, the Criminal Procedure (Arrests and Searches) Ordinance, 1924, supra n. 4.

12 Even if the infiltrator had been suspected of a felony, he had not perpetrated that felony in the presence of Gold or any of the other citizens involved in the affair. Thus none of them had the authority to make a citizen's arrest under sec. 5 (as it was then numbered) of the Criminal Procedure (Arrests and Searches) Ordinance, 1924.

13 But see infra n. 14.

14 The severe penalties imposed upon infiltrators by virtue of secs. 2-5 of the Prevention of Infiltration (Offences and Jurisdiction) Law, 1954, (8 L.S.I. 133) have been in force only since 1954. It would seem that at the time of the perpetration of the offence in Gold, the penalty for infiltration itself was but three-months imprisonment under sec. 12 of the Entry into Israel Law, 1952 (6 L.S.I. 159). If, indeed, that was the law, even a policeman could not base an arrest solely upon infiltration.

15 Gold, supra n. 1, at 1138.

16 This is not a freedom in the legal sense of the term, as fleeing from lawful arrest is an offence (e.g. under sec. 257 of the Penal Law, 1977, L.S.I. Special Volume), but where the hands of the person making the arrest are tied so that he is unable to employ all necessary force in its performance, the suspect is effectively free to flee.

17 Set against the background of the various limits to the use of force in executing the law provided by the common law and its derivatives (see infra n. 20 ff.), the sweeping authority granted a person making an arrest, under sec. 12 of the Arrest of Offenders and Searches Ordinance, 1924, to employ such reasonable force as is required, stands out.

18 In addition to the regular power of arrest under the ordinance under discussion, we find other arrest and detention provisions scattered throughout the statute books, which may require the use of force to apprehend and hold a person. In some instances, the power of arrest is equated with the regular one under discussion (see, e.g., sec. 264 of the Municipalities Ordinance [New Version] (1 L.S.I. 247, at 289)), while in other cases the legislature does not in any way elaborate upon the means for effecting arrest and their limits; see, e.g., secs. 228-229 of the Military Justice Law, 1955 (9 L.S.I. 184, at 231 as amended in Military Justice (Amendment No. 3) Law, 1964 (18 L.S.I. 140, at 150)); sec. 106 of the Prisons Ordinance [New Version], 1971 (2 L.S.I. 237, at 260); sec. 5 (5) and 91 of the Police Ordinance [New Version], 1971 (2 L.S.I. 158, at 160 and 175); and sec. 184 of the Customs Ordinance [New Version] (1 L.S.I. 51, at 83). May a soldier effecting an arrest under the Military Justice Law employ deadly force against a fleeing suspect who cannot otherwise be apprehended? Can a customs officer do so under the Customs Ordinance?

19 Under the Proposed Draft for a New Penal Law presented by the Ministry of Justice in (1984) 14 Mishpatim 129, sec. 46(1)Google Scholar will provide that “A person will not bear criminal liability for an act … that he was required or authorized to do by law”. In the same spirit, see the draft code recently proposed in England: The Law Commission, Criminal Law, Codification of the Criminal Law, Law Com. No. 143 (1985), sec. 48.

20 American Law Institute, Model Penal Code, Proposed Official Draft (1962) sec. 3.07.

21 Queensland Criminal Code Act, 1899.

22 On the Queensland Code as the source of the Israeli Penal Law, see Abrams, supra n. 8, and Shachar, Y., “The Sources of the Criminal Code Ordinance, 1936” (1979) 7 Iyunei Mishpat 75Google Scholar.

23 Secs. 247-284 of the Queensland Code. A representative group of marginal titles concerning matters germane to our discussion is: “Force Used in Executing Process or Arrest” (sec. 254); “Duty of Persons Arresting” (sec. 255); “Police Officer Preventing Escape from Arrest” (sec. 256); “Other Cases of Preventing Escape from Arrest” (sec. 257); “Preventing Escape or Rescue after Arrest” (sec. 258); “Preventing a Breach of the Peace” (sec. 260); “Suppression of Riot” (sec. 261); “Prevention of Crimes” (sec. 266); “Defence of Dwelling House” (sec. 267); “Self Defence Against Provoked Assault” (sec. 272); etc.

24 Nigeria Criminal Code Act, 1916, secs. 253-299.

25 On this period in the history of the Queensland Code, see Shachar, supra n. 22, at 97-105, esp. 102.

26 On this subject, see Enker, A., Duress and Necessity in Criminal Law (1977) 97 ff.Google Scholar; Feller, S. Z., “Necessity Stricto Sensu as a Situation Negating the Criminality of an Act” (1972) 4 Mishpatim 5Google Scholar; Shachar, ibid., at 100-102.

27 Sec. 31 of the Queensland Code.

28 Shachar, supra n. 22.

29 The most commonly available version of this draft is: Report of the Royal Commission on the Law Relating to Indictable Offences, 1879 Parl. Pap. c-2345, reprinted in 6 British Parliamentary Papers: Criminal Law (Irish Univ. Press, 1971)Google Scholar.

30 For a description of the wording of the draft and its background, and for other sources, see the Law Commission report, supra n. 19, at 1-3.

31 Secs. 25-31, 41-69 of the 1879 version, supra n. 29. It is interesting to note that secs. 32-40 of this worthy proposal included a detailing of the various causes for arrest by police and private citizens. The reason for their exclusion in Queensland's substantive model is not mentioned by the drafter, though we may assume it to be one of location, in that such provisions are better suited to the area of criminal procedure than to the code itself.

32 The Law Commission report, supra n. 29, at 11.

33 Kenny's Outlines of Criminal Law (new ed. by Turner, J.W.C., 1952) 112Google Scholar. This was the edition before Agranat J. in writing Gold.

34 Gold, supra n. 1, at 1134-1138.

35 The Law Commission report, supra n. 29, at 11.

36 Kenny, supra n. 33.

37 Ibid., at 111.

38 Loc. cit.

39 Hale, M., History of the Pleas of the Crown (1736) 77Google Scholar. The book was written in the 1670's.

40 On the changes in English, American and other legal systems, see infra n. 59 ff.

41 Holdsworth cites precedent for this rule as early as the thirteenth century: Holdsworth, W., History of English Law (5th ed., 1942) vol. 3, p. 312Google Scholar, and see Coke's Institutes of the Laws of England (1644) vol. 3, p. 56Google Scholar; Blackstone's Commentaries on the Laws of England (1769) vol. 4, p. 179Google Scholar; Hawkins' Pleas of the Crown (1724) vol. 1, p. 70Google Scholar; Hale, supra n. 39. The sole exception to the mechanical distinction between felonies and misdemeanours in this context is to be found in East's Pleas of the Crown (1803) 298, 302Google Scholar, where the author states that the power to kill in the course of effecting an arrest extends to “flight in cases of flagrant misdemeanours, such as … of a dangerous wound given”, see infra n. 74.

42 See supra nn. 21-23.

43 Thus, for example, in Gold (p. 1135) Agranat J. establishes, without explanation, that “it would not seem necessary to distinguish between instances in which severely forceful measures are employed to arrest the suspect and those in which such measures are employed to prevent his escape” (emphasis supplied). And, indeed, despite the difference in the arrest authority, Gold does not hint at any difference between the authority to employ force when an arrest is performed by a policeman as opposed to the parallel authority when employed by a private citizen.

44 See East's laconic statement of this concept, supra n. 41, at 299: “… for an innocent person is not bound to take notice of a private man's suspicion or authority”.

45 Canada Criminal Code, 1970, c. 34, s. 25 (4).

46 See infra n. 49 and text there.

47 He writes, regarding this limitation: “It is, I believe, in accordance with practice and certainly in accordance with reason”. Marginal comments of the drafter S.W. Griffith to the draft of the 1879 code, in the British Public Records Office files C.O. 236/161 Qld. Parliamentary Paper C.A. 89-1897, J. of the Qld. Legislative Council, vol. 447, p. 349 ff.

48 On the Northern-Nigerian stage of development of the Queensland Code, see Shachar, supra n. 22, at 92-96. The Northern Nigeria Criminal Code, 1904, is a verbatim copy, but for minor exceptions, of hundreds of sections of the Queensland Code. It is because of this background, that the drafter's decision to stray from the model stands out.

49 Comments of the drafter H.C. Gollan to the 1903 draft code in British Archives file C.O. 446/33 Appendix to Report on Criminal Code Proclamation, File c.o. 40927.

50 Memorandum of J.S. Risley, 28 April 1904, in British Archives file, ibid.

51 Reply of H.B. Cox in the same memorandum, ibid.

52 For similar cases involving the same small group of British Colonial Office jurists, see Shachar, Y., “The Legislative Intent of ‘Premeditation’” (1982) 2 Mehkarei Mishpat 204Google Scholar; Shachar, Y., “Compelled by the Law?” (1982) 8 Iyunei Mishpat 649, at 674Google Scholar.

53 In the text quoted at n. 49, Gollan refers to the power of a policeman under the Gold Coast Criminal Code, 1892 sec. 63 (1). In fact, it is questionable whether the local conditions were the historical reason for granting that power. The Gold Coast Code, like the Ghanaian Code that followed it, is taken verbatim from an English draft code drafted for other needs in 1877 by R.S. Wright, and sec. 47(1) of that draft expressly grants a policeman the power to use deadly force to prevent escape from arrest for any felony. See, generally, Friedland, M.C., “R.S. Wright's Model Criminal Code: A Forgotten Chapter in the History of the Criminal Law” (1981) 1 Ox. J. of Legal Studies 307, at 338CrossRefGoogle Scholar.

54 See supra n. 7.

55 See sec. 258 as quoted in the text supra at n. 28.

56 See text supra at n. 41.

57 Supra at n. 35 ff.

58 See, e.g., the sources cited supra n. 41.

59 Halsbury's Laws of England (4th ed., 1976) vol. 11, p. 630Google Scholar. Killing in the course of preventing crime and killing in the course of arrest are discussed together.

60 B. v. Mckay [1957] A.L.R. 648.

61 Criminal Law Revision Committee, 7th Report, Felonies and Misdemeanours (1965) 7Google Scholar.

62 A.G. for Northern Ireland's Reference [1977] A.C. 105, at 137; and see also Farrel v. Sec'y of State for Defence [1980] 1 All E.R. 166, at 170.

63 Smith, J. C. and Hogan, B., Criminal Law (95th ed., 1983) 325Google Scholar.

64 Williams, G., Textbook of Criminal Law (2nd. ed., 1983) 493–499Google Scholar.

65 Ibid., at 495.

66 Ibid., at 499.

67 Walker, C.P., “Note” in (1980) 43 Mod. L. R. 591, at 593–594Google Scholar.

68 See infra n. 80.

69 See infra n. 81.

70 American Law Institute, Model Penal Code, Proposed Official Draft (1962).

71 Supra n. 29 ff.

72 Supra in part C.

73 Secs. 3.03-3.08 of the Model Penal Code.

74 The only suggestion of a danger requirement as a condition to the use of deadly force is found in East, supra n. 44, but his intention is not entirely clear. It would seem that East is willing to “suffice” with danger in cases of misdemeanours, but does not require danger as an additional condition where felonies are concerned.

75 Williams, supra n. 64, at 499.

76 American Law Institute, Model Penal Code Tentative Draft No. 8 (1958) 52-63.

77 Ibid., at 56.

78 Ibid., at 56-57.

79 See, e.g., Judge Rogosheske's analysis of the reasons in his dissent in Schumann v. McGinn, 240 N.W. 2d, 525, 540 (Sup. Ct. Minn. 1976).

80 See the statistics in the following sources: Sherman, L.W., “Execution Without Trial — Police Homicide and the Constitution” (1980) 33 Vanderbilt L. R. 71, at 72Google Scholar; Looney, G., “The Unconstitutional Use of Deadly Force Against Fleeing Felons” (1983) 18 Georgia L. R. 137, at 142–144Google Scholar; Tennessee v. Garner 105 S.Ct 1694, 53 L.W. 4410, 4414 (Sup. Ct. U.S. 1985).

81 Ibid. And see Mattis v. Schnar 547 F. 2d 1007 (8th Cir. 1976).

82 Tennessee, supra n. 80, at 53 L.W. 4412.

83 Ibid., at 4413.

84 Loc. cit.

85 Ibid., at 4412, n. 9.

86 Cf. Kremnitzer, M., “Escape from Lawful Custody, by Omission? — A Further Note”, (1984) 10 Iyunei Mishpat 195, at 202Google Scholar.

87 53 L.W. 4415.

88 Loc. cit. The decision also quotes the Amici Curiae brief of the Police Foundation “that laws permitting police officers to use deadly force to apprehend unarmed, non-violent fleeing felony suspects actually do not protect citizens or law enforcement officers, do not deter crime or alleviate problems caused by crime, and do not improve the crime-fighting ability of law enforcement agencies”.

89 Standing Order 06.10.14, Use of Firearms.

90 Subsec. C of the Order. Subsec. B of the Order prefaces a lengthy warning to the policeman regarding “the heavy responsibility of the shooter”.

91 Subsec. D of the Order.

92 Subsec. E(4)(b).

93 Interpretation Law, 1981, sec. 3 (35 L.S.I. 370): “‘felony’ means an offence punishable with death or with imprisonment for more than three years”. This definition of felony has been in force at least since 1945. The term serious felony is a remnant of the Mandate period, deriving from the Hebrew name of the Court of Criminal Assize established under Art. 41 of the Palestine Order-in-Council, 1922. “Criminal Assize” was first translated simply as “P'shaim” (Felonies), but the more specific “P'shaim Hamurim” (Serious Felonies) became prevalent beginning in the 1930's (e.g. in the official Hebrew version of the Courts (Amendment) Ordinance, 1935, sec. 4, Supp. 1 (Hebrew) 99). The Court of Criminal Assize was abolished in 1948 by the Courts (Transitional Provisions) Ordinance, 1948, sec. 7 (1 L.S.I. 23), and its jurisdiction transferred to panels of three-judges in the regular District Courts. The “Assize” jurisdiction (and its Israeli successor) was limited to offences punishable by death between 1922 and 1957. It was extended in 1957 to all offences punishable by at least 10 years imprisonment (Courts Law, 1957, sec. 15(1) (11 L.S.I. 157)). While the term “P'shaim Hamurim” disappeared from the statute book with the abolition of the Court of Criminal Assize in 1948, it has survived until today in the context of court administration as an unofficial, but widely used, description of the three-judges' District Court criminal jurisdiction. Cases involving offences punishable with 10 years imprisonment or more thus receive the title “Tik Pesha Hamur” (Serious Felony Case), distinguishing them from all other criminal cases, including all remaining felonies and misdemeanours.

94 As for the United States, see the survey in Sherman, supra n. 80, at 91-92; Tennessee v. Garner, supra n. 80, at 4414. According to the statistics there, some 90% of American police departments establish stricter guidelines than those set by law. These guidelines generally limit the use of weapons to life-threatening situations. Such internal guidelines are applied by the “toughest” federal agencies as well, e.g., the Federal Bureau of Investigation and the Drug Enforcement Agency (see Sherman, at 92). For a similar view of Canada, see Chappell, D. and Graham, L., Police Use of Deadly Force — Canadian Perspectives (1985) 73–80Google Scholar.

95 53 L.W. 4414.

96 Canada Criminal Code, 1970, c. 34.

97 See text supra at n. 29.

98 Chappell and Graham, supra n. 94, at 73-80.

99 Dan-Cohen, M., “Decision Rules and Conduct Rules — On Acoustic Separation in Criminal Law” (1984) 97 Harv. L. R. 625CrossRefGoogle Scholar.

100 Since publication of the original Hebrew version of this article, there have been some developments in Israeli law in the general direction of the views expressed here. In Anconina v. Chief Military Prosecutor (1990) 44(ii) P.D. 353, the Supreme Court adopted the view that the technical distinction between felony and misdemeanour should no longer dominate the lawful use of lethal weapons. The Court ruled in favour of a clear link between the power to use such a weapon and the concrete danger presented by the suspect. As in Garner, supra n. 82, the use of lethal weapons is mainly limited to law enforcement operations against persons who are either suspected of committing particularly dangerous crimes, or are armed and dangerous at the time of arrest or afterwards. Calls by the Court for the adoption of these rules by the legislator have remained unheeded. However, it is interesting to note that much of the public and official debate over questions relating to the use of lethal weapons by security forces in the Occupied Territories have recently focused on the issue of dangerousness rather than on any technical distinctions. One notable example is the official IDF reaction to a May 1992 report by Be'Tzelem (Israeli Center for Human Rights in the Occupied Territories) on The Activities of the Special Units in the Territories (in Hebrew; the IDF reaction is appended to the Report). The IDF insists in its reaction that any apparent increase in the use of deadly weapons by security forces stems directly from the increased dangerousness of suspects rather than from any change of policy. Suspects are confronted with lethal weapons, according to the IDF, because they are extremely dangerous to soldiers, to civilians or to both, either at the time of arrest, or later, if they escape. They are not killed simply because they escape. If this is correct, then Gold is finally history.