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Preparatory Offences*

Published online by Cambridge University Press:  04 July 2014

Dan Bein
Dan Bein
Affiliation:
Dr. Jur.; Judge of the Haifa District Court. Teaching Fellow (Associate Professor), Faculty of Law, Haifa University.
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Extract

The derivative forms of criminal liability — attempt and complicity — are the subject of a vast literature, yet there has not been a systematic, comprehensive examination of the preparatory offences in legislation, case law, or even in scholarly writings. One can hardly even find a satisfactory definition of such offences. Therefore, our first task will be an attempt to provide one, because absent a definition, we will not be able to proceed toward a solution to problems that are of no insignificant practical importance.

First among these problems is the question of the appropriate legislative policy to be followed in deciding when and in what areas to create preparatory offences. Second comes the question of whether it is appropriate to “derive” offences of attempt and complicity from preparatory offences, or, in other words, is it possible to speak of attempting a preparatory offence or being an accomplice to it. Third, should we make recourse to the principles applicable to criminal attempt in construing preparatory offences?

Type
Articles
Information
Israel Law Review , Volume 27 , Issue 1-2 , Winter–Spring 1993 , pp. 185 - 212
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1993

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References

1 Feller, , in his book Elements of Criminal Law, (Jerusalem, 1987, in Hebrew) vol. II, p. 48Google Scholar, states that “in fact, the general definition of acts preparatory to offences, as a punishable step toward commission is unimportant in regard to the criminality of such acts, inasmuch as in the few instances in which the legislature found it necessary to include preparatory acts within the scope of the criminal phenomenon, it carefully chose them and specifically defined them in detail”.

I beg to differ with this opinion, and to emphasize the importance of the definition. As we shall see, the assumption regarding “careful selection” by the legislature is inexact, and no guiding principle can be ascertained. Moreover, the definition of the offences is not always “in detail”, and quite often the hardly simple task of construction is left to the courts. It is only proper, then, that they be provided the appropriate tools in the form of principles or, at least, approaches for choosing them.

2 See sec. 33(a) of the Penal Law, and see Shemeah v. A.G., (1965) 19(i) P.D. 398, at 400; Srur v. State of Israel, (1984) 38(ii) P.D. 444, at 447; Kremnitzer, , “Another Comment on the Actus Reus in Attempted Offences”, (1979) 9 Mishpatim 274, at 294–295.Google Scholar

3 See cases cited ibid., (attempted deceit and attempted murder).

4 E.g., Graziarti v. State of Israel (1986) 40(iii) P.D. 763 (attempted possession of narcotics).

5 There are many different criteria that have been proposed for distinguishing preparation from attempt. See in this regard: Kremnitzer, supra n. 2; Feller, supra n. 1, at 94ff.; Williams, , Textbook of Criminal Law, (London, Stevens, 2nd ed., 1983) 379Google Scholar; Ashworth, , Principles of Criminal Law, (Oxford, Clarendon Press, 1991) 401Google Scholar; and see Bein, , “Criminal Intent in Attempt”, Doctoral Thesis, Jerusalem, 1964.Google Scholar

6 For example, the title of Chapter Fourteen and the marginal titles of secs. 497 and 116 of the Penal Law.

7 Some states in the United States have enacted statutes requiring that there be an “overt act” in addition to the agreement, see, e.g., 18 U.S.C A sec. 371; West's Ann. Cal. Pen. Codes, sec. 184. This is not the case in Israel, see Sultan v. State of Israel, (1980) 34(ii) P.D. 713, at 719.

8 The agreement does not have to meet the requirements of a contract in the civil sense, David et al. v. State of Israel, (1986) 40(ii) P.D. 29, at 33.

9 An additional reason has to do with the mental element of conspiracy, which, according to that view, relates only to the making of the agreement and not to the more distant objective that is the subject of the agreement, see Feller, , “Conspiracy vis-a-vis Participation in Crime”, (1976) 7 Mishpatim 232, at 240–241.Google Scholar

10 Feller, supra n. 1, at 8.

11 Kremnitzer, , “On the Nature of Criminal Conspiracy and its Relationship to Procuration”, (1985) 14 Mishpatim 231, at 238.Google Scholar However, we should note the Englieh struggle with the question of whether words spoken or written were sufficient for conviction of Compassing the King's Death, which is a form of treason, see Crohaganw's case, 79 E.R. 891 and Fletcher, , Rethinking Criminal Law, (Boston, Little Brown, 1978) 209, sec. 3.5.Google Scholar

12 Of course, it can be argued that the fact that both preparatory offences and conspiracy appear in the title of Chapter Fourteen implies that conspiracy is not a preparatory offence. However, I would not attribute too much importance to the titles in the Penal Law, as that law excels neither in its systematic approach nor in its solid, theoretical basis. For a different opinion according to which conspiracy may be harmful per se, see Weiss, E., The Offence of Conspiracy (Tel Aviv, 1993, in Hebrew) 69.Google Scholar

13 Attempted suicide was defined as an offence in sec. 225(1) of the Criminal Code Ordinance, 1936. That provision was abrogated by sec. 6 of the Criminal Code (Amendment No. 6) Ordinance, 1966. There remains a specific offence of procuring or abetting suicide, under sec. 302 of the Penal Law.

14 In England, the property of a person committing suicide was once forfeited for having committed felo de se, just as was the property of a felon, see Williams, supra n. 6, at 530, sec. 16.

15 Sec. 33(a) of the Penal Law.

16 See secs. 145(1)(b) and 148 of the Penal Law.

17 Sec. 500 of the Penal Law. For criticism on the existence of an offence of conspiracy to commit an “unlawful” act, see Whitfield v. State of Israel, (1974) 28(i) P.D. 813, at 819. In England, at present, the statutory offence of conspiracy, under sec. 1 of the Criminal Law Act 1977, refers only to the commission of an offence. Sec. 5 of that Law abrogated the Common Law offence of conspiracy, but left in force certain types of conspiracy that were recognized by the Common Law, even where the conduct or result that was the subject of the conspiracy did not constitute an offence, such as conspiracy to defraud and conspiracy to corrupt public morals. On the difficulty in distinguishing statutory conspiracy from Common Law conspiracy, see the House of Lords' decision in R. v. Ayres, in [1984] Crim. L. R. 353.

18 Sec. 216(a)(5). This offence speaks of “an illegal or disorderly purpose”.

19 Sec. 97 of the Penal Law.

20 Other examples are secs. 116 and 144(d) of the Penal Law.

21 But cf. Benton v. U.S., 232 F 2d. 341, in which it was held that an offence of possession of housebreaking tools will be deemed unconstitutional ifit not comprise intent to use those tools.

22 See Bein, , “Criminal Law Protection of the Veracity of Documents”, (1970) 5 Is.L.R. 559.CrossRefGoogle Scholar See also Weiss, supra n. 12, at 64.

23 Sec. 100 of the Penal Law. It should be noted that this section requires that the act “evince” the intention to commit treason. This is an objective test of outward expression of the act. The provision is silent on the question of whether the perpetrator must have a subjective mental element of purpose.

24 Cf. Smadersman and Shem Tou v. A.C., 17 P.M. 318.

25 Resnick v. A.G., (1962) 16 P.D. 34, at 42.

26 Cf. Fletcher, supra n. 11, at 199, sec. 3.4. It should be noted that the Soviet Criminal Law of 23 December 1958 defines preparatory offences in light of the principles of criminal legislation in sec. 15, stating that preparation includes the obtaining and adapting of means and implements or other intentional creation of conditions for the commission of an offence.

27 Feller, supra n. 1, at 55, sec. 75.

28 It should be noted that the opposite opinion is found in German law, which distinguishes independent preparatory offences — i.e., those that do not comprise an element of purpose — and non-independent preparatory offences, which include an element of purpose. While the rules of attempt can be applied to independent preparatory offences, they cannot be applied to non-independent ones. See Jeschek, , Lehrbuch des Strafrechts, Allgemeiner Teil, (Berlin, Duncker & Humblot, 3rd ed., 1978) 424.Google Scholar

29 Bashan (Agami) v. State of Israel, (1973) 27(ii) 141, at 146, 164; R. v. Curr, (1967) 1 All E.R. 478, at 482; (1968) 2 Q.B. 944. It should be noted that sec. 2(2)(b) of the Criminal Law Act 1977 establishes that, for the purpose of statutory conspiracy, if one of the conspirators is not legally competent there is no conspiracy.

30 See “hachana” (preparation) in A. Even Shoshan, New Hebrew Dictionary, and similarly, “preparation” in The Little Oxford Dictionary, and “Vorbereitung” in Caesele, German-English Dictionary.

31 See, e.g., secs. 259, 448(b), and 114(b) of the Penal Law.

32 Cf. the law of treason in England, which under a statute from 1351, included “compassing the king's death”. Also see supra n. 11.

33 See also Kremnitzer, supra n. 2, at 289–283, and see the Israeli test in Srur, supra n. 2, at 444, 447. In England, see the Criminal Attempts Act 1981 and the Guelfer case, in [1987] Crim. L. R. 195.

34 Loushi v. State of Israel, (1988) 42(ii) P.D. 652, at 658–659. Also see Eismann v. State of Israel, (1990) 44(iii) P.D. 510.

35 In this regard he quotes Smith, and Hogan, , Criminal Law, (London, Butterworths, 5th ed., 1983) 700.Google Scholar

36 I do not consider the question whether under the special circumstances of that case, the conviction with an offence of obstruction was an appropriate one. The facts of the case were that the accused had unsuccessfully procured a relative, whose property had been attached, to remove certain valuable items and give them to him for safekeeping. The facts would seem to show an indirect contribution (attempted procuration), and the question is whether the accused should have been convicted of obstructing justice, under sec. 244, or of attempted procuration ofthat offence. See, in this regard, Scheinman, , “Obstruction of Justice or Incitement to Obstruct Justice”, (1990) 15 Iyunei Mishpat 367.Google Scholar

37 Cf. Feller, supra n. 2, at 354, sec. 446.

38 Williams, , “Police Control of Intending Criminals”, [1965] Crim. L. R. 66.Google Scholar

39 See as to the authority of police to arrest without warrant under sec. 3 of the Criminal Procedure (Arrest & Searches) Ordinance [New Version], 1969 (2 L.S.I.[N.V.] 30). An exception to this rule is the authority under sec. 3(7) that concerns the arrest of a person “found in suspicious circumstances, taking precautions to conceal himself, or has no visible means of subsistence and cannot give a satisfactory account of himself”. Another provision that comprises quasi-preventative arrest authority is sec. 24(aX2) of the Ordinance, which grants authority to a person conducting a search in accordance with a court order “to arrest any person found in the house or place and appearing to have been or to be a party to any offence committed, or intended to be committed by means of or in respect of such article” [emphasis added — D.B.].

40 In Elyashiv v. A.G., (1954) 8 P.D. 349, it was noted that although historically born of the “poor laws” that were intended to force the indigent and beggars into permanent housing, one of the objectives of this law is the prevention of crime by means of punishing offenders standing on the verge of commission.

41 This provision has been construed to require an illegal purpose, but the burden of proof regarding the absence of such intent (purpose) is upon the accused. See Elyashiv, ibid.

42 Secs. 2 and 3 of the Criminal Procedure (Arrest and Searches) Ordinance [New Version], 1969.

43 Feller, supra n. 1, at 14, sec. 16. This view is not universally accepted. Williams, supra n. 5, at 388, sec. 12, expresses the opposite view: “A crime may be doubly inchoate”. Although as an example he bringe not attempt to commit an attempt but incitement, a form of liability recognized in statutory Israeli law, as well (attempt to procure to incitement, or procuring A to procure B). It seems that the difference of opinion between Feller and Williams stems from the fact that Feller thinks that there exists a general rule from which it is possible to deviate only by an express statutory provision, while Williams does not accept the premise of the existence of a general rule which prohibits “double derivation”.

44 Secs. 31 and 33 of the Penal Law.

45 But see a different approach in the Irish case of People v. Thornton, [1952] Ir. Rep. 91.

46 State of Israel v. Dabush, (1974) 28(ii) P.D. 678, at 683.

47 See ibid., at 682 and 683.

48 See ibid., at 680.

49 Bashan, supra n. 29.

50 Marcus Raymond v. A.G., (1953) 7 P.D. 864.

51 See in this regard, Kremnitzer, supra n. 11, at 248.

52 Sec. 5(7) of the Criminal Law Act 1977.

53 Mohan, [1976] Q.B. 1; Abu Ghosh v. A.G., (1951) 5 P.D. 1249; Shalom v. State of Israel, (1975) 29(ii) P.D. 201, at 203.

54 See supra n. 25.

55 [1952] Q.B. 743, at 747.

56 Dror v. State of Israel, (1989) 43(iii) P.D. 718, at 724.

57 See offences at secs. 409, 186, 464, 173, 477(2), and 486 of the Penal Law, and see Smadersman, supra n. 24, at 319.

58 Sec. 216(5) of the Penal Law. It may be assumed that an illegal or disorderly purpose refers to an intention to commit criminal offences, but the prosecution is not required to show intention to commit a specific offence, and certainly not at any particular, defined time and place.

59 Elyashiv, supra n. 40.

60 Ibid., at 353.

61 (1863) 9 Cox C.C. 307.

62 [1957] 41 CAR. 218, at 221.

63 Smith and Hogan, supra n. 35, at 572.

64 Ellames, [1974] 3 All E.R. 130. It has also been held that it is sufficient that there be a present intent to make use in the future if the need should arise, R. v. Hargreaves, [1985] Crim. L. R. 244.

65 [1973] 2 All E.R. 90.

66 See, primarily, Graziani v. State of Israel, supra n. 4.

67 See Bein, supra n. 5, at 159; Graziani, ibid., at 773.

68 Sec. 239 of the Penal Law.

69 Sec. 415 of the Penal Law.

70 Dacusian v. State of Israel, (1977) 31(i) P.D. 294, but see the criticism ofthat decision in Kremnitzer, , “Is Truth a Lie”, (1987) 37 HaPraklit 459.Google Scholar

71 Sec. 244 of the Penal Law.

72 Chetiat v. State of Israel, (1980) 34(iii) P.D. 638.

73 Sec. 1 of the Criminal Law Act 1977, as amended in sec. 5 of the Criminal Attempts Act 1981.

74 Sec. 33(b), and cf. desistance as a defence to procuring under sec. 30 of the Penal Law.

75 H.H. 2098 of 6 January 1992, p. 115. This bill is based upon the Feller-Kremnitzer draft proposal published in (1984) 14 Mishpatim 127.

76 See the Explanatory Notes to the Bill, ibid., at 124.

77 See Bein, , “Planning of Legislation — The Specific Part of the Criminal Law”, (1987) HaPraklit (Special Issue Published on the 25th Anniversary of the Israel Bar) 81.Google Scholar