I am the fortieth person to have given the Lionel Cohen lecture since 1953 when Professor Arthur Goodhart gave the first lecture in this series. The lecture was founded by, and in the name of one of British Jewry's most distinguished figures and the list of Lionel Cohen lecturers is illustrious indeed. It is a great honour to have been asked to join their company. For me it has an additional pleasure — my late father, Dr. Walter Zander, was closely involved in the establishment of the lecture and in its development for its first eighteen years. From 1944 to 1971 my father was Secretary of the British Friends of the Hebrew University and the annual event of the Lionel Cohen lecture and the subsequent “report back” dinner at Lincoln's Inn was a part of his work which he always enjoyed and regarded as of importance. I obviously regret that he did not live long enough to see his eldest son honoured in this way.

In March 1992, Israel underwent a Constitutional Revolution. In March 1992, two new Basic Laws were passed: Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty. Under these new Basic Laws, several human rights — among them Dignity, Liberty, Mobility, Privacy, Property — acquired a constitutional force above the regular statutes. Most of these rights were already protected, prior to the constitutionalization. While a few were protected by the legislator, most were protected by the case law of the Supreme Court, developed by some of our greatest judges since the establishment of the State. The main difference made by the Basic Laws is the strengthening of the normative value of these rights. A regular Knesset (Parliamentary) statute can no longer infringe upon these rights, unless it fulfils the requirements of the Basic Laws (the ‘limitation clause’) namely, it befits the values of the State of Israel, it was passed for a worthy purpose and the harm caused to the constitutional Human Right is proportional to the purpose. Thus, we became a constitutional democracy.

Justinian, in his Corpus Iuris Civilis, showed great interest in the Samaritans, in the context of his lifelong effort to make Orthodox Christianity the prevailing faith of the Roman empire. In general, Justinian's relationship to non-Catholic religions was one of discrimination and degradation. The Samaritans were subjected to especially harsh treatment and repressive legislation, due to their sanguinary rebellions. This cycle of repression and rebellion had dire economic consequences in Palestine for the entire general population, including Christians, and contributed to the general population's dissatisfaction with Imperial policy.

In the Theodosian Code, the first official collection of Imperial constitutions, Samaritan-related legislation was grouped together with legislation related to Jews and Caelicolae, in the general context of the relationship between the Empire and the Church.

While “classical” tort law deals with the liability of those unlawfully in possession of goods for their damage or loss, the law of bailment deals with the liability of those lawfully in possession of goods for their damage or loss.

The Israeli statute relating to bailment, The Bailees Law, more closely resembles the law of bailment in common law, than its civil law counterpart, the law of deposit. Similar to the law of bailment in common law, Israel's Bailees Law covers both possession where the primary object is the safekeeping of goods, e.g., a warehouseman, and possession where the primary object is other than safekeeping of goods, e.g., chattel hire, hire of work and labour to be performed upon a chattel, and a pledge.

In terms of liability for the loss of or damage to the goods, the Israeli statute roughly resembles the “traditional” law of bailment in the common law, which distinguishes different kinds of bailment according to the existence and location of benefit received.

The privilege against self-incrimination has always attracted controversy. Legal historians continue to disagree over its origins, and its justification has been keenly debated ever since Bentham's famous attack on it as a misguided concession to the guilty. This debate has recently entered a new and critical phase as the result of diametrically opposed developments by, on the one hand, the courts and legislature in England and, on the other, by the institutions of the European Convention of Human Rights. These developments can be summarised by saying that whereas the trend in England has been towards attrition and formal restriction of the privilege, the European Court of Human Rights has been reconstituting the privilege as an implicit element of the right to a fair trial under article 6.1 of the European Convention. The European decisions have the potential for significant expansion of the privilege, and they call into question the validity of several of the English developments.

Ganimat v. The State of Israel (1995) 49(iv) P.D. 589.

The appellant was indicted in the Jerusalem Magistrate Court for two incidents of car theft. His detention was requested on the grounds that he posed a “danger to society”. The Magistrate Court agreed to his arrest, holding that a custom has been established whereby custody may be justified in crimes which have become “a nationwide scourge”, including car theft. The District Court rejected the appeal. The appellant was granted permission to appeal the decision in the Supreme Court (decision of Dorner J. and Barak J.; Cheshin J. dissenting) and his conditional release was ordered. However, it was decided to hold Special Proceedings in order to discuss some of the important issues raised by the case. The principal constitutional question raised by the case was whether the Basic Law: Human Dignity and Liberty influences the interpretation of the existing law, in the present case, the law of arrest as regulated by the Law of Criminal Procedure.

In any rule-of-law system the law of criminal procedure is bound to weigh the intended investigation of the truth against the interest of the person charged with a criminal offence in protecting his privacy. The German law of criminal procedure is a typical example of the permanent struggle with these conflicting demands. While the majority of the courts are making an effort to reinforce the protection provided to the accused, the latest pieces of legislation reveal a tendency of allowing increasingly far-reaching invasion of privacy. I will try to map out the most important aspects of this development.

In doing so I will distinguish between state-enforced, involuntary self-incrimination and the right to privacy. These two problems overlap because enforced self-incrimination will often entail invasion of privacy and, conversely, because an invasion of privacy by the state will often result in involuntary self-incrimination. But although these problems are intertwined I will differentiate between them and I accept that there will be some overlapping. After all, there may be invasions of privacy without self-incrimination and there may be cases of self-incrimination which are not caused by an invasion of privacy.

Why should fairness be a dominant interest of criminal proceedings? Such questions are shocking, and asking them arouses perplexity. Fairness is quite an obvious value, unquestioned in law, criminal proceedings, in human rights and in everyday life.

It is certainly not the purpose of this paper to cast any doubt upon the basic assumption that trials must be fair. However, there is a certain attractiveness in looking for an answer to a question when the answer appears to be obvious. There is also a chance that an analysis of the background of a norm will strengthen that norm and the motivation to respect it. Such a study may even add colour and contour to the norm and assist in its interpretation.

The case of the Canadian ambassador's residence has been the subject of several court decisions at various instances in Israel. These decisions (as well as others relating to the doctrine of sovereign immunity) have been reviewed in former issues of this section. On June 3, 1997, the Supreme Court, in its appellate jurisdiction, gave its judgment in this case and delineated the application of the international law doctrine of sovereign immunity in Israeli law. In a different case decided on the last day of 1996, the Tel-Aviv District Court was required to rule on the applicability of this doctrine to a civil suit brought against the government of the United States of America. This District Court decision now needs to be examined in light of the recent ruling of the Supreme Court in the Edelson case.

This paper examines the use of juries in criminal cases in Canada and the United States. It is part of a larger study of the administration of criminal justice in Niagara County, Ontario and Niagara County, New York. The basic question examined is why persons accused of serious crimes in the United States usually select a jury, whereas persons in similar circumstances in Canada normally select trial by a judge alone. An investigation of this question will enable us to see some significant differences between the administration of criminal justice in the United States and Canada. It will also show how changes in specific procedural rules may affect other practices. There is a complex interplay between procedural rules. The paper concludes by showing that the widespread use of juries in the United States is consistent with the more populist grass-roots approach in American society which tends to distrust government, compared with the traditional respect for authority, including the authority of judges, in Canada.

It is becoming increasingly apparent to criminal justice scholars that single theory models of criminal procedure — whether termed inquisitorial or adversarial — are being stretched beyond their capacity by the phenomena they are designed to control. Virtually everywhere, formal systems of charge and adjudication cannot possibly be enforced in accordance with the premises underlying them. There are simply too many offenses, too many offenders and too few resources to deal with them all. One result has been a steady movement towards a convergence of legal systems — towards borrowing from others those institutions and practices that offer some hope of relief.

In this transnational effort to cope with system overload, two issues have emerged as more than ordinarily significant: The first is the desirability of abandoning the principle of obligatory prosecution, so common in Continental Europe, and turning instead to the exercise of prosecutorial discretion. The second is the question whether the ban on guilty pleas and plea bargains should be lifted, as in adversarial systems.

The standard form of disposition for most English and American criminal cases is the guilty plea, by means of a plea bargain. Jury trials are the rare exception rather than the rule. Although plea bargaining is the subject of a huge scholarly literature analyzing its nature and functioning, there is a much smaller literature on its origins and development. Most of the literature is highly critical, and much of it rests upon a belief that bureaucratic justice has come to replace the vigorous adversarial jury trial. Some critics lament “our vanishing jury”. Others decry the rise of “technocratic justice”. And still others warn that we are witnessing the “twilight of the adversary process”, or the decline of the adversary system. Even those who defend plea bargaining, such as justices on the United States Supreme Court, tend to regard it as a “necessary evil” required as an expedient to cope with the rising tide of caseloads rather than an ideal process.

Despite important differences of emphasis among these and still other commentators, most share an important commonalty; they adopt a form of functional analysis that understands plea bargaining as an adaptation to caseload pressures. Hence the power of the metaphor “the twilight” of the adversary process. This assessment seems plausible in light of pervasive plea bargaining and the crush of caseloads in American and English courts.

According to Article 13 of the International Covenant on Civil and Political Rights and Article 6 of the European Convention on Human Rights everyone is entitled to a fair and public hearing by an independent and impartial tribunal in the determination of any criminal charge against him. The essence of both provisions could be rephrased by saying that criminal sanctions may only be imposed on a person by an independent and impartial tribunal and only if that person has been able to defend himself against a charge during a hearing that satisfies all requirements of a fair trial.

Realities, of course, are rather different. In almost all national systems of justice there is an increasing tendency to develop procedures that allow for imposing sanctions without the necessity of a criminal trial. Their main purpose is usually to relieve the system of a burden of cases with which it cannot really cope. Basically, there are two strategies to reduce the workload of courts and public prosecutors. The first is to invite the suspect to waive his right to trial in exchange for certain favours. This usually occurs in the form of an agreement between the public prosecutor and the suspect, while quite often the cooperation of the court that would have tried the case is also required. The second solution is to grant sanctioning powers to administrative bodies and to allow individual persons an appeal against their decisions to an independent and impartial tribunal.

Anyone who has studied the case law of Israel in the 1990s and the recent Bill on the issue of plea-bargaining, will have found it difficult not to have detected signs of the following phenomenon, that has started to take root: the growing readiness to permit the prosecution to dictate to the court the exact sentence. Does this not deviate from the accepted and appropriate division of roles between the court and the prosecution? It would also appear, that at present, there are not many who support the idea that the victim of the crime should be informed of the pleabargain that is being negotiated and that his reaction to it should be heard before the court decides whether or not to adopt it. Is this the appropriate level of consideration that should be paid to the victim, according to Israeli law, particularly in our age of emphasizing the constitutional nature of human rights?