1 Meaning all substantive rules having a bearing on the question whether a defendant should be convicted of an offence.

2 This is particularly true in relation to offences against the administration of justice and economic offences; for the former see especially Criminal Law Ordinance (Amendment No. 35) 1973, and for economic offences see especially Penal Law Amendment (Offences of Fraud, Extortion and Oppression) (Amendment No. 3) 1975; Sec. 68 of the Government Companies Law; Sec. 4 of the Sale (Flats) Law, 1974 (protecting the investment of buyers); Sec. 28 of the Companies Law (Amendment No. 13) 1975.

3 The “protective” principle has been broadened, while the “passive personality” principle, not hitherto known to Israeli law, has been introduced. (See Penal Law Amendment (Offences Committed Abroad) (Amendment No. 4) Law, 1972, which is now included in the Penal Law (Offences Committed Abroad) Consolidated Version, 1973, secs. 2(a) and 4). See also Feller, , “Some Aspects of The Legality Principle in Penal Law” (1969) 1 Mishpatim 29.Google Scholar

4 As to this question, cf. the opinion of the former Attorney General of Israel now Supreme Court justice, M. Shamgar, on organized crime; see also Meir Lansky v. Minister of the Interior (1972) (II) 26 P.D. 340, 365–72.

5 Criminal Code Ordinance (Amendment No. 36) 1975 and see Bazak, , “The Criminal Responsibility of the Retarded” (1975) 29 HaPraklit 623.Google Scholar

6 See Evenor, H., “The Rights of a Trespasser in a Welfare Community and its Impact on the Offence of Extortion” (1976) 5 Iyunei Mishpat 15.Google Scholar

7 Sela v. State of Israel (1974) (II) 28 P.D. 371.

8 State of Israel v. Perez (1975) (II) 29 P.D. 54; compare, on the other hand, Baruch v. State of Israel (1975) (II) 26 P.D. 578, where it was held that the defendant was guilty under sec. 148 of the C.C.O., 1936, of trespassing on graveyards, although he claimed that his sole purpose had been to compel the complainant to pay for the tombstone.

9 Sec. 100 of the C.C.O., 1936.

10 C.C.O. (Amendment No. 35) 1973; see also Danoch v. State of Israel (1974) (II) 28 P.D. 707.

11 Law and Administration Ordinance (Amendment No. 14) Law, 1972.

12 Before the above amendment came into force, sec. 4 of the C.C.O., 1936 provided that the Law must be interpreted according to the principles of interpretation of English law and expressions used should have the meaning given to them by English law; since the amendment has come into force, the court may still apply English law but is not obliged to do so.

13 Ginossar, , “Autonomy of Corrective Law” (1974) 9 Is. L.R. 24.Google Scholar

14 (1971) (I) 25 P.D. 679.

15 The court relied on the well-known decision of the Israel Supreme Court in Maor Mizrahi (1960) 14 P.D. 1882, 1890. It is interesting to note that a similar development in the interpretation of strict liability offences appears under English and American law. See, in England, R. v. Miller [1975] 2 All. E.R. 974, 976; in the U.S. see Mueller, G.O.W., “How to Increase Traffic Fatalities” 60 Cal. L.R. 944, 950, n. 17.CrossRefGoogle Scholar

16 Traffic offences (most of which are regarded as strict offences) entail a maximum penalty of two years' imprisonment, a fine of up to IL3,000 and the cancellation of the driving licence. In fact, a person who acts without fault is most unlikely to receive a prison sentence. See Ginossar, op. cit. at 34.

17 Howard, C., Strict Responsibility, (London, 1963) 15.Google Scholar

18 German law indeed sets such a ceiling for administrative offences (Ordnungswidrigheiten) being the payment of a fine (Geldbusse) of a certain amount. (See Jescheck, , Lehrbuch des Strafrechts (2 Auf.) 41).Google Scholar

19 Schnir v. State of Israel (1974) (I) 28 P.D. 235. In a former judgment of the Supreme Court, Goitein J. expressed an opinion which gave an opposite answer to the same question (see Mandelbrot v. Attorney General (1956) 10 P.D. 281, 352–3).

20 (1972) (II) 26 P.D. 675.

21 See infra n. 39.

22 See Hoze v. State of Israel (1975) (II) 29 P.D. 592.

23 Iluz and Elias v. State of Israel (1969) (I) 23 P.D. 383.

24 Be'eri v. State of Israel (1968) (I) 22 P.D. 477, 481.

25 N.C. v. Gamble [1958] 3 All. E.R. 203; R. v. Bullock [1955] 1 All. E.R. 15, 17; R. v. Bambridge (1959) 43 C.A.R. 194.

26 Sec. 33A of the C.C.O. (which was added by the Criminal Code Ordinance (Amendment No. 35) Law 1973) reads as follows:

“(a) Whosoever gives a person tools, materials, money, information or any other means, knowing that the same may be directly or indirectly used for the commission of a felony or to facilitate its commission—is liable to a punishment of three years' imprisonment.

(b) For the purpose of this section, it is immaterial whether the thing was given permanently or for a limited period, with or without consideration, and whether a felony has been in fact committed or not.

(c) The provisions of this section add to the provisions of Ch. 5 or 6 [which deal with complicity, attempt and conspiracy] and do not detract therefrom”.

It should be noted that the creation of this offence is the outcome of a recommendation of the Supreme Court in Be'eri v. State of Israel (1968) (I) 22 P.D. 482, 477 and is also in line with ideas expressed by Buxton in 89 L.Q.R. 25.

27 Cf. Attorney General v. Gruenwald (1963) 17 P.D. 2017, 2072 and Bein, , “Knowledge Which Reached a High Degree of Probability” (1967) 2 Is. L.R. 18, 24.Google Scholar

28 Cf. Bein, , “The Theft of Use and the Element of ‘Intention to Deprive Permanently’ in Larceny” (1968) 3 Is. L.R. 368, 371.Google Scholar

29 It may be different if the aider has agreed with the principal before or during the commission of an offence that he will assist him after the offence has been completed. The encouragement stemming from the very fact of the existence of such an agreement may itself be regarded under local law as an act of aiding and abetting (see Plom v. State of Israel (1970) (I) 24 P.D. 665, 670).

30 In certain circumstances he may be regarded either as an accessory after the fact or a receiver of stolen goods.

31 Albo and Ben David v. State of Israel (1975) (I) 29 P.D. 408.

32 Sec. 23(c) of the Penal Law Revision (State Security) Law, 1957.

33 For the purpose of argument we disregard the possibility that the associate may himself be regarded as “collecting” information (although we are of opinion that, once the information has been taken out of the possession of the persons authorised to hold it, it is difficult to speak of collecting); similarly we disregard the existence of an alternative offence of “possessing” secret information defined in the same section.

34 Sec. 31 of the See, C.C.O. also Greenberg, , “The Relation between the Offences of Incitement and Conspiracy” (1969) 1 Mishpatim 621, 626.Google Scholar

35 (1974) (II) 28 P.D. 678.

36 It must be borne in mind that the term “procure” has in law been limited only to cases where the procuring was effective and has brought about the commission of an offence.

37 (1973) (II) 27 P.D. 141.

38 Sec. 36(b) of the C.C.O., 1936.

39 As to the various meanings of the expressions “independent” offence or “derivative” offence, see Bein, , “The Completed Offence and the Attempt” (1969) 4 Is.L.R. 276.Google Scholar

40 (1962) 16 P.D. 31.

41 Sec. 6 of the Penal Law Revision (Bribery) Law, 1952.

42 See also Bein, , “‘Independent’ Offences as Preparatory Offences—New Way of Interpretation” (1962) 18 HaPraklit 217.Google Scholar

43 Sec. 33A of the C.C.O., 1936.

44 A list of all approaches may be found in Fletcher, , “Proportionality and the Psychotic Aggressor” (1973) B Is. L.R. 367, 376.Google Scholar

45 Attorney General v. Patnaieb, 2 Pesakim 34, 56 and Bein, , “The Duty to Retreat in Self-Defence” (1967) 23 HaPraklit 221.Google Scholar

46 Sec. 18 of the C.C.O., 1936.

47 In England “self-defence” has merged to a great extent into the right to prevent crime as laid down in sec. 3 of the Criminal Law Act 1967.

48 (1972) (I) 26 P.D. 624.

49 See “Defence of Necessity and its Limitations” (1971) 6 Is. L.R. 417, 418.

50 It is perhaps worthwhile mentioning that in provocation a tendency may be felt (though not openly expressed) not to give much weight to the question whether the defendant placed himself in a situation inviting provocation. In Shmuelevitch v. State of Israel (1975) (II) 27 P.D. 598, the defendant came, in the middle of the night, armed with an Uzi submachine gun, to the house of a certain man, to look for his own wife. The defendant did not know for sure that his wife was committing adultery with that man owing to the fact that he could not accept the idea, but of course he had his suspicions. When he entered the house he saw his wife in a nightgown, and he shot her dead. The court accepted the defendant's plea of provocation based on his wife's adultery, and rejected the prosecution's submission that the defendant, by going to the man's house in the middle of the night to look for his wife, placed himself in a situation where he was about to be provoked.

51 (1974) (I) 28 P.D. 597.

52 Subramaniam v. Public Prosecutor (1956) 1 W.L.R. 965.

53 Cf. Oreagan, , “Duress and Criminal Conspiracies” [1971] Crim. L.R. 35, 39.Google Scholar

54 (1975) (II) 29 P.D. 824.

55 Sec. 14 of the Penal Law Amendment (Deceit, Blackmail and Extortion) Law, 1963.

56 Dan v. Attorney General (1966) (IV) 20 P.D. 253. Here it was ruled that a change in the civil law relating to cheques, under which a postdated cheque may be cashed immediately, applies also to the criminal offence of drawing a cheque without cover.

57 It must be noted, however, that in relation to self-help the Supreme Court, in Sela v. State of Israel (1974) (II) 28 P.D. 371, was ready to borrow from tort law the rule of “distress damage feasant” and to apply it to the offence of extortion according to sec. 12A of the Penal Law Amendment (Deceit, Blackmail and Extortion) Law, 1963.

58 See Criminal Procedure (Amendment No. 8) Law, 1976, which introduces a duty to disclose certain evidence in the hands of the defence or the possibility of relying on the defendant's silence at the trial as corroborating evidence where such corroboration is needed.

59 The correlation between substantive criminal law and the law of evidence may be best demonstrated by the offence of conspiracy. Conspiracy as a general doctrine exists only in common law countries and not in countries where the civil law applies. The reason for this lies in the stricter rules of evidence existing in common law countries which may be partly avoided by the special rules applying to conspiracy.