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The “Actus Reus” and Offences of “Situation”

Published online by Cambridge University Press:  12 February 2016

Meir Dan Cohen
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Extract

1. Foreword: The following judgment of the Supreme Court deals with an affair which lies on the periphary of criminal law, but nevertheless may serve as a means of raising a few problems which are of crucial importance in the sphere of penal law. These problems are all attached to one of the two central pillars of every crime, namely: the actus reus. We shall try to prove that even though this concept is well-known and hackneyed, it still contains many deficiencies and is a source of misunderstandings.

First, we shall try to expose the deficiency in the judgment itself, and then we shall proceed to a broader consideration of the perversions in the definitions of the actus reus of certain crimes in the legislation.

2. The Judgment: The matter under trial was as follows: The official receiver (the respondent) applied to the District Court for an order according to sees. 130 and 131 of the Bankruptcy Ordinance to bring the appellant, who is a bankrupt, to trial for offences under these sections. The appellant was invited to the proceedings on that application, gave evidence at the hearing, and after the respective arguments of the parties had been heard, an order was granted by the Court as required by the applicant.

Type
Articles
Information
Israel Law Review , Volume 7 , Issue 2 , April 1972 , pp. 186 - 194
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1972

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References

1 Enrico Bachar v. The Official Receiver (1969) (I) 24 P.D. 130.

2 Corresponding to sec. 158 of the English Bankruptcy Act, 1914. See also Corps de Droit Ottoman, Code de Commerce, Titre II, Art 3–9, Titre II, Art. 290 (6), 292.

3 Williams, Glanville, Criminal Law (2nd ed. 1961) 18–19.Google Scholar

4 See also on the same subject, (1) Gordon, Gerald H., The Criminal Law of Scotland (Edinburgh, W. Green, 1967) 59–60Google Scholar, (2) Smith, and Hogan, , Criminal Law (London, Butterworths, 2nd ed., 1969) 28.Google Scholar (3) Kenny's, Outlines of Criminal Law (Cambridge University Press, 19th ed., 1966) 17.Google Scholar

5 See Gordon, op. cit., p. 62, and Smith and Hogan, op. cit., p. 28.

6 See Gordon, op. cit., p. 61.

7 E.g., crime of murder, under sec. 214 of the Criminal Code Ordinance, 1936.

8 E.g., indecency in public under sec. 160 of the Criminal Code Ordinance, 1936.

9 In this connection the term “Status” is inadequate and may be misleading. The offence does not refer to a certain social or legal status of the offender; it merely means a certain combination of circumstances—a certain situation. The best, shortest and most accurate term for this kind of offences would probably be situation crimes.

10 These offences are known also as state of affairs crimes. See Smith and Hogan op. cit., p. 34.

11 See also sec. 4 of the Ordinance. Basically the same sections are found in the Railways Ordinance, 1936, and in the Draft of the Railways Law, 1969. See also sec. I of the Road Safety Act, 1967, in England.

12 Proposed Official Draft, Art. I 1.02(1). Cf. Smith and Hogan, op. cit., p. 3.

13 See Williams op. cit., supra n. 2, p. 17: “Criminal Law is generally concerned to repress conduct hurtful to society.”

14 See a different approach in Smith and Hogan op. cit., p. 31.

15 See: (1) Robinson v. California (1962), 370 U.S. 66, 8L ed. 2d 758, 82 S. Ct. 1417. (2) Powell v. Texas (1968), 392 U.S. 514, 20L ed. 2d 1245, 88 S. Ct. 2145.

16 Larsoneur (1933) 24 C.A.R. 74, cf. Walters [1968] 3 All E.R. 863.

17 See Williams' cynical remark on this subject, op. cit., p. 11.

18 For situation crimes see also Kirbens, Samuel U., “Chronic Alcohol Addiction and Criminal Responsibility” (1968) 54 American Bar Association Journal 877.Google Scholar

19 A legal obligation to keep books of account can be found in arts. 3–9 of the Ottoman Commercial Law (see supra n. 2). Yet this does not interfere with our discussion, firstly, because these articles are probably void in Israel; secondly, they refer only to traders; and thirdly, they do not impose any criminal liability.

20 It should be emphasized that we do not consider sec. 131 as describing a situation crime. We only mean that the analysis of the situation crimes exposes the basic deficiency of the actus reus in sec. 131.