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A Guide to Offences of Threats and Blackmail, or “How to See the Forest for the Trees”
Published online by Cambridge University Press: 12 February 2016
Extract
The Penal Law, 1977, enumerates no less the sixteen offences containing, in one form or another, the element of threat.
Sometimes, threat is the only form taken by the behavioural element of the actus reus, but frequently it appears as an alternative to the use of force or to other forms of behaviour, such as fraud.
The reason for the multitude of offences of threat is primarily historical, and to a certain extent, the lack of methodical thought in this area.
It would seem to us that the legislator, the courts and scholars who deal with offences of threat must clarify their own basic concepts and must be aware of decisions on the questions of policy confronting them: this would result in an elimination of the duplication, the disappearance of superfluous offences from the law books, and would prevent the confusion sometimes reigning in this area at present.
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References
1 The sections, in order, are as follows: 163(1) (wrongful interference with exercise of right); 189 (forcible entry); 192 (threats); 277(2) (threat for the purpose of extorting a confession); 307 (written threat to murder); 345 (rape); 346 (rape by threat); 383(c)(1)(b) (stealing by intimidation); 402 (robbery); 404 (demanding property by threats); 405(d) (entering a building by means of a threat); 428 (blackmail by means of threats); 429 (blackmail by publication or abstention from publication); 430 (taking property for the purpose of blackmail); 447 (trespass with intent to intimidate); 460 (threat to burn or destroy). The texts of secs. 192, 427 and 428 are reproduced at the end of this article.
2 The actus reus, according to its wide definition, includes all the factual elements of the offence with the exception of the mental element ((see Nacht v. A.G. (1957) 11 P.D. 1546, 1550)—in other words, behaviour, circumstances and consequences (loc. cit., 1550).
3 E.g. the offences according to secs. 192, 307, 428, 430, 460.
4 E.g. the offences according to secs. 163(1), 189, 277(2), 345, 402 and 405.
5 E.g. stealing according to sec. 383, when intimidation appears as an alternative to a trick or mistake; or rape according to sec. 346 where deception appears as an alternative to threats. And see also the offence of housebreaking according to sec. 405, in which the element of threat appears as an alternative to breaking, to a trick or to collusion.
6 On the historical development, see Perkins, , Criminal Law (2nd ed.) 372Google Scholar; Campbell, , “The Anomolies of Blackmail” (1939) 55 L.Q.R. 382Google Scholar; Winder, , “The Development of Blackmail” (1966) Crim.L.R. 21.Google Scholar
7 In the new Ibn-Shushan Dictionary, “threat” is denned only as instilling fear or intimidation, and it does not include other types of psychological pressure. In sec. 192 of the Penal Law, as regards the offence of threat, it says that a threat may also be made with intent to annoy. The English concept of “annoy” includes anger, irritation, insult, and every causing of inconvenience to another. (On this point see Bein, “Protection of Immunity of Habitation in Israeli Criminal Law” (1968) 1 Mishpatim 519, 525). There may be a public interest in protecting a person from irritation, but for this purpose, the offences of insult exist (e.g. sec. 194(b) of the Penal Law). In order to dispel any doubts as to whether insult includes all the forms of annoyance, the offences containing the element of annoyance may also be added to those of insult. But we do not believe that situations of annoyance and intimidation are sufficiently similar from a psychological point of view to justify their inclusion in the framework of a single offence of threat.
8 An interesting question is whether “threat” includes a threat, directed at another, the content of which is injury to the threatener himself, such as a person threatening to commit suicide unless his demands are met. In our opinion, as long as the legislator employs the concepts of threat and intimidation, without referring to the question of the identity of the victim of the threat, then such an act will be deemed a threat (or blackmail, as the case may be), since the threatener certainly instils fear into the heart of the person to whom the demands are directed. Secs. 192 and 428, however, refer to a threat to injure the recipient of the threat or “another”, and apparently, the intention is not that this “other” can be the threatener himself, On the other hand, the words “or who instils fear into a person by other means” in the continuation of sec. 428 are sufficiently wide to include the case of a person threatening to commit suicide unless his demands are met.
9 Cf. also A.L.I. Model Penal Code T.D. No. 2 p. 74.
10 See Yitzhak v. A.G. (1962) 16 P.D. 515, 523.
11 The concept of “frightening” may have been used in larceny according to sec. 383(c)(1)(b) in order to include the act of scaring a person, as well as threat.
12 It could possibly be argued that the intention to annoy in sec. 192 of the Penal Law was included in order to extend the offence of threat beyond its normal meaning, i.e. to cover frightening which causes only reflexive fear.
13 Against this background, we can understand the problems encountered by the Court in Elkharar v. State of Israel (1973) (II) 27 P.D. 561, 572, in dealing with the question of whether the offence of robbery (which, as we shall presently see, is a specific form of blackmail) covers the case in which actual violence was employed against property. The Court tended to the view (p. 573 A–B) that such violence, as opposed to a threat to damage property, is not covered by the offence. (Cf. Shama & Siman Tov v. State of Israel) (as yet unpublished—it appears on the “Attorney's Information Sheet” no. 216, sec. 7 of the decision). A somewhat analogous problem arises with respect to the offence of taking property, under sec. 430 of the Penal Law. Prima facie, the section deals with an act already completed which involves no future message. This offence may, however, be viewed from another angle, i.e. that in spite of the fact that from the way the section is worded, the emphasis is placed on the moment of taking, nevertheless the accused's behaviour constitutes a threat, the contents of which is, the continued retention of the property which was taken—should the victim not give the “thing” demanded by the accused. In this sense, the offence contains a message relating to the future, and therefore the side note of the section, “Taking property for the purpose of blackmail”, is justified.
14 People v. Jones 125 N.E. 256; Hicks v. Stale 207 S.E. 2nd. 30.
15 Cf. the decision in Treacy v. D.P.P. [1971] A.C. 537.
16 Bein, , “The Social Interest Protected by Means of the Offence of Fraud” (1970) 26 HaPraklit 85.Google Scholar
17 Except for falsehood in legal proceedings, which is the object of the offences of perjury (sec. 237 of the Penal Law), conflicting evidence (sec. 240 of the Penal Law) and so forth.
18 And see Bein, , “Criminal Law Protection of the Veracity of Documents” (1970) 5 Is.L.R. 559 at 565.CrossRefGoogle Scholar
19 E.g. sec. 192 of the Penal Law, 1977.
20 From what is written in 31 Am.Jur. 2nd 902, it would seem that there are those who hold that in these cases, the offence is one of fraud and not of blackmail. In our opinion, the offence is one of both fraud and blackmail.
21 As such, every offence of blackmail is also an offence of threat: the opposite, of course, is not true.
22 Or, as stated in Siboni v. State of Israel (1977) (II) 31 P.D. 829, 833, the utterance must include not only the harm which the accused will do to his victim, but also the demand, fulfilment of which will make him relent. It is noteworthy that the definition given is very wide, so that rape by threat also falls within the framework of the offence of blackmail.
23 E.g. the first part of sec. 428.
24 E.g. the last part of sec. 428.
25 Whether or not the state of sleep or unconsciousness was induced by the accused. Tt will be mentioned that in a number of offences, causing a state of unconsciousness appears as an alternative to the use of force (see secs. 345; 427(b) of the Penal Law).
26 In continental law, the term vis absoluta is used to describe direct physical force, and the term vis compulsiva is used to describe blackmail. (See Schönke-Schröder, , Strafgesetzbuch—Kommentar (Munich, 18th ed., 1976) 1465.Google Scholar It seems that in the category of direct physical force we may include situations of causing fright, when the intention is to bring about a reflexive, involuntary act by which the victim will release something that he is holding and which the accused wants.
27 E.g. a debtor shoots his creditor when the latter is on his way to the court to sue him close to the time of prescription. Cf. Schönke-Schröder, supra n. 26, at 1465.
28 These were the facts in the case of Sabach v. State of Israel (1974) (I) 28 P.D. 550. The Court ruled that the conduct of the accused falls within the bounds of the offence of blackmail under sec. 428(a) of the Penal Law (before Amendment No. 6 of 1980). The Court held that the words, “if the act is done or omitted… at the time of the threat” may be construed as including the acts or omissions of the accused, and not just those of the victim. In our opinion, this approach is unacceptable. We are certain that the legislative intent was directed at the conduct of the victim of the threat alone, for the section states, “if the act is done or omitted because of (emphasis added) or at the time of the threat…” It is clear that the underlined words assume the existence of a causal connection between the threat and the behaviour of the person threatened. A causal connection between the threat and the conduct of the person making the threat is meaningless, and if the words “because of …the threat” refer to the conduct of the victim, it cannot be assumed that the legislator suddently made a volte face and referred, in the same sentence, to the conduct of the person making the threat in connection with the words “at the time of the threat”. In order to obtain a conviction in this case, it could simply have been said that the acts of the accused, in that he choked the victim, caused the victim to do an act in the form of an omission, i.e. prevented him from objecting to the article being taken.
29 Sec. 431 of the Penal Law, 1977.
30 We are referring to “deliberately taking advantage of another person's error” in sec. 416 of the Penal Law.
31 Glanville Williams, in discussing the offence of robbery (one alternative of which is merely a form of blackmail) states that according to the wording of the definition of robbery in the English Theft Act, 1968, such a case should be regarded as robbery. (See Textbook of Criminal Law (1978) 792).
32 Sec. 294 (a) of the Penal Law states that “A person who solicits or stipulates a bribe shall, even if he meets with no response, be considered as a person taking a bribe”.
33 Perkins, , Criminal Law (2nd ed.) 367Google Scholar; 31 Am. Jur. 2nd 900, sec. 1.
34 The example is taken from the Model Penal Code of the American Law Institute, Tentative Draft no. 2, p. 75, and see also p. 78.
35 Secs. 192 and 428 of the Penal Law.
36 According to the former wording of sec. 428, prior to its amendment in 1980 (Amendment no. 6), it applied only to a verbal or a written threat, but not a threat by way of conduct (cf. Payis v. State of Israel (1976) (I) 30 P.D. 484), thus possibly giving rise to the question of whether an implied threat was sufficient. The Amendment of 1980, by which specific reference to threat by conduct was added to the section, removed any doubts about the sufficiency of an implied threat.
37 See e.g. State of Israel v. Aviezer (1973) (II) 27 P.D. 382. In this case, the head of a department at the Broadcasting Authority demanded and received from the complainant—a programme director—half of the latter's salary. The complainant testified that he paid the accused since he was afraid that he would otherwise lose favour with the accused and be fired from his job.
38 In fact, the wide definition in sec. 428 of the Penal Law covers all the specific forms of blackmail.
39 See State of Israel v. Peretz (1975) (II) 29 P.D. 547, 551, and see sec. 383 (c) (1) (b) of the Penal Law.
40 See R. v. Lovell 8 Q.B.D. 185; R. v. McGrath (1870) L.R. 1 C.C.R. 205.
41 Provided that the act was done “immediately” after the commission of the theft. On the question of what is considered to be “immediate” for these purposes, see State of Israel v. Presak (1968) (I) 22 P.D. 141.
42 See Williams, supra n. 31, at 795; Sabach v. State of Israel, supra n. 28.
43 As we mentioned in n. 13 supra, the tendency is not to include a case of violence against property in the framework of robbery, for otherwise, consequences not sought by the legislator would result such as the application of the offence of robbery to a case in which the accused broke into an apartment by breaking the bars covering the windows, at a time when the occupants were sleeping.
44 A person's freedom of choice may also be violated by means of deception: see Bein, , “The Social Interest Protected by Means of the Offence of Fraud” (1970) 26 HaPraklit 85Google Scholar, and also Schönke-Schröder, supra n. 26, at 1465.
45 This might explain why, in sec. 192 of the Penal Law, the legislator mentions in one breath the intention to intimidate and the intention to annoy.
46 E.g. in sec. 428 of the Penal Law.
47 E.g. in robbery (sec. 402 of the Penal Law) and stealing by intimidation (sec. 383 (c) (1) (b) of the Penal Law).
48 Sec. 430 of the Penal Law.
49 Secs. 345 and 354 (a) of the Penal Law.
50 See sec. 14 of the Penal Law, and see Bein, , “The Position of Israeli Penal Law to Self Help in Recovering Property” (1968) 24 HaPraklit 337, 481 note 99.Google Scholar After the present article went to press, an article by Dr.Kaplan, Edna, “On Claim of Right and Extortion” (1981) 34 HaPraklit 5Google Scholar dealing with this subject, was published.
51 Therefore, in the offence of blackmail sec. 428 of the Penal Law, forbids inter alia “instilling fear by other means…” and omits in relation to this alternative the element of unlawful appearing at the beginning of the same section “threatens… with unlawful injury”.
52 It is not always possible to understand to which criteria the legislator referred, in the various offences of blackmail and threat, to these or other courses of action. For example, sec. 192 of the Penal Law discusses a threat made “in any manner” (and see also Ashur et al. v. State of Israel (1981) (I) 35 P.D. 451, 454), whereas sec. 428, prior to its amendment in 1980, talked of a threat made in writing or by word of mouth only. The amendment added to this a threat made by “means of conduct”. Sec. 192 used the words a threat made “in any manner”, whereas sec. 428 did not originally include such a phrase. The amendment of 1980, added a general phrase namely “instils fear by other means” to the casuistic list of threats to person, property, livelihood, privacy etc.
53 Thus, for example, there is no need for the separate existence of the offence in sec. 163 (1) (as far as it deals with threats). This offence which is a kind of blackmail entails one year imprisonment while there exists a general offence of blackmail for which a punishment of seven years is provided. It is also unclear why there is a need for a separate offence of sending a letter containing a threat to burn, destroy or kill an animal or to injure it (sec. 460)—an offence carrying a penalty of three years imprisonment—when there is a general offence of threat in sec 192, carrying the same punishment. The case of Michaeli v. State of Israel (1980) (IV) 34 P.D. 800 also illustrates the difficulties arising as a result of the duplication. In that case, the question arose of whether a public servant who extorted a confession, may be prosecuted only under sec. 277 of the Penal Law, or can the prosecution charge him with an offence under sec. 427 of the Law? The question arose because the penalty for extorting a confession under sec. 277 is only three years, whereas the penalty under sec. 427 is seven years. The minority opinion, as per Ben-Porat J., was that sec. 277 is a specific provision which takes precedence over the general provision of sec. 427, and as such, the accused may not be indicted for an offence under the said sec. 427. As opposed to this, according to the majority opinion (S. Levin and Elon JJ.), the two offences are alternatives, and they can be concomitant. Otherwise, an absurd result would be obtained, whereby a public servant who extorts a confession is liable to three years imprisonment, whereas the same act done by a private citizen will entail a penalty of seven years imprisonment: obviously, this result is unacceptable.
54 Thus, for example, the distinction between theft by intimidation and robbery is not always clear (see n. 40 above).
55 Thus, for example, it is not clear why the penalty for the offence of common threat under sec. 192 is more severe (three years) than the penalty for blackmail (and not simply threat) in sec. 163 (1) (only one year imprisonment). Similarly, the penalty for theft by intimidation, under sec. 383 (c) (1) (a), in which the accused generally achieves his purposes (i.e. to take the property), is three years, whereas the penalty for demanding property by threats, under sec. 404, in which the criminality lies in the demand itself, whether or not the victim yielded to it, is five years, even though in general, one of the factors determining the severity of the crime is the fact that the injurious result in fact materialized. A possible explanation is that in sec. 404, the threat is only an “alternative” to the use of force: it is the use of force which makes the offence graver than one in which only the element of threat appears.
56 As in the formula, “if the act is done or omitted because of … the threat”, at the end of sec. 428.
57 Thus, for example, in El Shabi v. State of Israel (1973) (I) 27 P.D. 602, 604–5, a person was charged with threat under sec. 100 (c) of the Criminal Code Ordinance, 1936. This section discussed, inter alia, a threat to injure the person. The threat which the accused actually made was that if the complainant interferes in the relations between the accused and her sister, the accused will kill her. The Court was not satisfied with the fact that the content of the threat was the commission of a serious criminal offence: it also asked itself whether the threat was capable of influencing a reasonable man. (On the test of the reasonable man in general, see also the case of Clear [1968] 1 Q.B. 670). As regards the use of the concept of the reasonable man in this context, see n. 59 below.
58 Cf. The Queen v. Tomlinson [1895] 1 Q.B. 706.
59 As opposed to the courts, we prefer to speak of “the average man”, rather than the “reasonable man”. The second expression is generally used when establishing norms of behaviour, and it is therefore a value judgment (reason-ability). The question confronting us, however, is not normative, at least not directly so; rather, it is one of the standard by which the degree of threat required for conviction is determined. The norms which we must establish concern the person making the threat, not the person threatened, and therefore, the potential reactions of the latter are only aids to measuring the responsibility of the former.
60 People v. Kaplan 269 N.Y.S. 16 (1934).
61 Such as a threat to dampen prices (i.e. below the market price), or a threat made by a merchant to a producer that if the producer supplies the competition with a certain item that the merchant himself sells, he will no longer order supplies from him; or a threat by an old person that he will change his will if the beneficiary does not act in a certain way, or a threat to vote or not to vote in a certain way in the general meeting of a company (and see also Model Penal Code T.D. no. 2 p. 75). It will be mentioned that as regards a threat to break a contract, there are sufficient civil remedies.
62 Thus, for example, Williams, Glanville, in his Textbook of Criminal Law, p. 798Google Scholar, said that when a debtor threatens his creditor that he won't pay up at all unless the creditor pardons him for part of the debt, the debtor does not thereby commit the offence of threat, since this is customary behaviour. And see the words of Roche L.J. in Thorne v. Motor Trade Ass'n. [1937] A.C. at 824, who discusses normal behaviour, and Mails v. Macdowell [1980] Crim.L.R. 586. A similar problem exists in the area of the offence of deception: even there, there is certain “leeway” for “fixing” another person, e.g. puffing—over-rating the qualities of the product—is permitted. Here, too, not inconsiderable weight is attached to the existing practices. See e.g. Rabi v. State of Israel (1978) (II) 32 P.D. 770, 773; Danino v. State of Israel (1977) (III) 31 P.D. 645, 651. On the other hand, it must be recalled that in the framework of both offences of threat and of deception, the fact that the act was done in connection with a mercantile dispute does not negate its criminality when it was of such proportions as to harm the social interests that are protected by means of these offences. (Cf. State of Israel v. Weisberg (1979) (III) 33 P.D. 673, 677, between A–B.
63 In any case, the threat need not necessarily be a threat to act: it may also be a threat of an omission, see Schönke-Schröder, supra n. 26 at 1466.
64 E.g. stealing by intimidation (sec. 383 (c) (1) (b), or breaking (sec. 405 (d) which discusses a “person who enters a building by means of any threat”, or rape by deception, sec. 346, which includes, as one alternative, sexual intercourse when the consent of the female has been obtained by threats, or a threat to exercise a right under sec. 163 (1).
65 See e.g. secs. 192 (threats) and 428 (blackmail by threats) of the Penal Law.
66 In stealing by intimidation, the apparent “consent” (which is imperfect) of the owners to the object being taken is a result of the threat, and the legislator indicates neither the type nor the degree of the threat. The legislator might have regarded the causal connection required between the intimidation and the consent as an adequate “filter”.
67 Excepting, possibly, sec. 345 (rape) which does not discuss a threat to injure the person in general, but only a threat of “death or severe bodily harm”. This case, however, is beyond the scope of the present subject, which is threats, the contents of which do not constitute offences. There are cases in which it is sufficient to determine the type of threat, and there is no need to further determine its degree. For example, if we are discussing sec. 428, which deals, inter alia, with a threat “to publish…or …to abstain from publishing …anything”, such a provision should be interpreted literally as applying to any publication.
68 E.g. Boyle and Merchand (1914) 10 C.A.R. 180, 190–1.
69 In the context of a threat to commit a criminal offence. In that context, we rejected the need to use this test.
70 In support of this view, see Williams, supra n. 31, at 798; Schönke-Schröder, supra n. 26, at 1453. An intermediate approach may be found in the judgment of Wills J. in The Queen v. Tomlinson, supra n. 58, at 710. He holds that the concept of the reasonable man should be given a liberal interpretation, since people to whom threats are delivered are often people who are not of average firmness. Thus, a person ought not to be convicted of threat, if the threat is incapable of influencing any person.
71 Thus, for example, sec. 3 of the Consumer Protection Law, 1981 (full text in English in (1981) 16 Is.L.R. 516) prohibits the exercise of unfair pressure by the dealer on the consumer for the purpose of making a deal with unusual or unreasonable terms, or in order to receive a greater return than is customary. It must be assumed that this section also applies to the case in which the seller exploits the special sensitivity of the consumer, e.g. a grocer in a distant neighbourhood tells an old man, who has no car and who cannot walk to another store, that if he doesn't buy a certain product from him at a particular price, he will not sell him anything. Or sec. 23 of the Commodities and Services Control Law, in which there is a prohibition against making sales conditional. Here, too, pressure is applied to the purchaser, sometimes in exploitation of special sensi tivity or a particular situation of distress, and it is clear that this section also applies where the average or “reasonable” man would not have been affected by such stipulation.
72 This test arises from a careful reading of the case of Thorne v. Motor Trade Ass'n., supra n. 62, and in particular the judgment of Lord Wright at 818, in which it says: “The Prosecution would be required to establish that there was an absence of a reasonable cause, in the full sense, that what was done, was not in furtherance or the promotion of legitimate trade interests, and that there was an intent to injure. Lord Atkin J., on p. 807, says: “If a man may lawfully, in the furtherance of business interests, do acts which will seriously injure another in the business, he may also lawfully, if he is still acting in furtherance of his business interests, offer that other to accept a sum of money as an alternative to doing the injurious act. He must no doubt be acting not for the mere purpose of putting money in his pocket but for some legitimate business, other than the acquisition of money”, (emphasis added) On p. 808 of the judgment, Lord Atkin points out that if the sum demanded is exorbitant, responsibility could be imposed even where the threat is to take measures designed to secure legitimate rights. And see Hardie Lane Ltd. v. Chilton [1928] 2 K.B. 306. The opposite position finds expression in R. v. Denyer [1926] 2 K.B. 258. On the criterion of motive, cf. also A.L.I. Model Penal Code T.D. no. 2, p. 79.
73 In this there is “injury to livelihood” in the sense of secs. 192 and 428 of the Penal Law.
74 Sec. 3 of the Criminal Procedure (Arrest and Searches) Ordinance (New Version) 1969.
75 This is evident from the judgment of Asher J. in Sweiri v. State of Israel (1980) (III) 34 P.D. 757, 773B, in which he says as follows: “Indisputably, a person serving as the Director of the Execution Office and as registrar is competent to subpoena debtors and to order them to appear before him. He is also competent to threaten them that if they do not respond to the summons, they will be arrested. As such, the Orders of Summons issued by Sweiri, at least prima facie, were lawful threats, unless it could be proved that the Director of the Execution Office deliberately abused his legal powers in order to promote his personal interests…” (emphasis added).
76 The examples are taken, with certain changes, from those mentioned in Campbell, A.H., “The Anomolies of Blackmail” (1939) 55 L.Q.R. 382, 388–9.Google Scholar The question may not arise in Israel with respect to secs. 192 and 428, for these sections prohibit a threat of injury to reputation. But it can be argued that even with respect to these sections, one can ask whether the reference is only to injury which amounts to the offence of libel according to the Defamation (Prohibition) Law, and therefore, if the words are true, they do not entail criminal responsibility (sec. 14 of the Defamation Law), or is it that as regards the offences of threat and blackmail, it is prohibited to threaten to publish something which tarnishes a person's reputation, even if what is said is true. We can see that at least as far as sec. 428 is concerned, the second alternative expresses the legislative intent, for that section includes, in addition to the alternative of injury to reputation, a specific provision prohibiting a threat to publish or to abstain from publication, and after the Amendment in 1980, a threat to violate a person's privacy was also added. In addition it should be noted that since then, the Protection of Privacy Law, 1981, has also been enacted. This Law turns a violation of privacy into a offence (sec. 5 of the Law) and in many cases, publication of something per se, albeit the truth, is considered as a violation of privacy (see secs. 2 (4), (5), (9) and (11). Whatever the interpretation given to secs. 192 and 428, the question raised in the text will be relevant to those offences of threat and blackmail in which the legislator talks of threat in general, without further specification. In the United States, it was ruled that a threat to injure a person's reputation constitutes an offence, even when the publisher would have had a valid defence against a charge of libel had the material been actually printed. See Tooher, , “Developments in the Law of Blackmail in England and Australia” (1978) 27 I. & Comp. L. Q. 337, at 374CrossRefGoogle Scholar: A.L.I. Model Penal Code T.D. no. 2, p. 77.
77 This test was specifically rejected by Lord Atkin in Thorne v. Motor Trade Ass'n., supra n. 62 at 806.
78 See secs. 163(1), 192, 427, 428, and 430 of the Penal Law. It is noteworthy that according to Ben Porath J. in Michaeli v. State of Israel (1980) (IV) 34 P.D. 799, 803, the expression “unlawful” in sec. 427 and in other sections of the Penal Law was superfluous. In support of her view, Ben-Porath J. draws a comparison between sec. 379 (common assault) and sec. 380 (assault causing actual bodily harm), and points out that in the first section, the term “unlawful” appears, but it does not do so in the second section. She holds that there is no room for differentiating between these sections. We beg to differ. In our opinion, the expression “unlawful” is not superfluous: its main purpose is to enable the accused to raise defences and justifications which do not appear in the general part of the Penal Law, such as immunity of parents against charges of assault, when they punish their children for educational purposes (Dalai Rasi v. State of Israel (1953) 7 P.D. 790), or the right of the owner to cause damage to his own property, as long as he does not injure the rights of other persons. And see Bein, , “Limitations on the Owner's Right to Damage his own Property” (1970) 5 Is.L.R. 92.CrossRefGoogle Scholar We could explain the difference between secs. 379 and 380 by saying that common assault may be justified for certain purposes (for example, use of reasonable force in order to evict a trespasser according to sec. 18 of the Land Law), but this is not the case with respect to assault occasioning actual bodily harm.
79 It may be possible to distinguish, in this matter, between pure threat and blackmail, such that a threat to lodge a criminal complaint is not punishable, and only when it is a component of blackmail will it entail criminal responsibility. If, however, we see the offence as a type of “preliminary” or “incohate”, the purpose of which is to “nip the blackmail in the bud”, then the law of blackmail must apply to such an offence, and the above distinction would be untenable. However, even if we say that the public interest in the offences of threat differs from that of blackmail (i.e. an interest in protecting a person's peace of mind), it may still be argued that a person who commits a crime retains a right to peace of mind, just like any other person. (This of course, does not apply to the authorities charged with the prosecution of justice which are entitled to conduct investigatory and legal proceedings against such a person).
80 The reasons for this prohibition are as follows: a) It is in the public interest that any information concerning the commission of an offence be brought to the notice of the authorities, and a threat is delivered precisely out of the wish not to carry out the contents of the threat (as soon as the threat materializes, the person who made the threat throws away his weapon), b) There is a danger that the person threatened will use violence as a last resort to ensure the silence of his antagonist. See Tooher, supra n. 76, at 370–373; State v. Mackenzie 325 N.W. 274 (1931); Motsinger v. State 24 N.E. 342 (1889); People v. Eichler 26 N.Y.S. 998 (1894); Eacock v. State 82 N.E. 1239 (1909). Incidentally, in Israel, the receipt of payment for the non-disclosure of an offence classified as a misdemeanor or a felony constitutes the offence of concealment, under sec. 253 of the Penal Law, and this, too, is evidence of the legislative trend to prevent commercial use of information of the commission of an offence. It may possibly be different when the purpose of the threat to lodge a criminal complaint is the restoration of property which was stolen in that offence: Perkins, supra n. 6, at 374. On the other hand, a threat to file a civil suit is apparently permissible: People v. Wightman 11 N.E. 135 (1887); State v. Conradi 60 So 16 (1916). The law might be different when a person threatens to file a civil suit which has no basis, and when he threatens to include in that suit claims which are injurious: Williams, supra n. 31, at 799.
81 Sec. 430 of the Penal Law. On the justification for viewing this offence as one of blackmail, see n. 13 above.
82 See the following section.
83 On taking into consideration customary practices in establishing the area of criminal responsibility, see Danino v. State of Israel (1977) (II) 31 P.D. 645, 651; Sasson v. State of Israel (1975) (II) 29 P.D. 574, 576.
84 See n. 80 above.
85 See Bein, , “The Position of Israeli Criminal Law Towards Self-Help in Recovering Possession in Property” (1968) 24 HaPraklit 322, 475.Google Scholar
86 Thus, for example, a person who uses “reasonable force” prima facie commits the offence of assault under sec. 379 of the Penal Law. But when such use of force is aimed at ousting a trespasser, the “offender” may invoke the defence provided by sec. 18 of the Land Law.
87 On these two components, see Williams, supra n. 31 at 799.
88 Cf. R. v. Bernhard [1938] 2 K.B. 264. In this case, the accused, who was charged with demanding with menaces, acted upon advice which she received from a foreign lawyer, who was not thoroughly acquainted with English law.
89 On the question of recognition of the claim to a moral right, see MacKenna, , “The Theft Bill—II Blackmail: A Criticism” (1966) Crim.L.R. 467, 469Google Scholar; Hogan, , “Another View” (1966) Crim.L.R. 477, 478.Google Scholar
90 When discussing “severity” the reference is to both the measures in themselves and also, relatively, to the importance of the aim that is sought.
91 It seems to us that the area of application of this offence was restricted by the license for self-help in sec. 18 of the Land Law, since this Law prescribes a general license, without limiting it to the civil field. The result is that sec. 189 will apply only with respect to unreasonable use of force, and when the use of threats or force did not closely follow the act of theft. (See Coptic Orthodox Arch bishop v. Minister of Police (1971) (I) 25 P.D. 225, 239–40. But see a contrary approach, according to which the provisions of sec. 18 of the Land Law are overriden by sec. 189 of the Penal Law in Weisman, , Land Law, Trends and Achievements (Jerusalem, 1970) 57.Google Scholar
92 Sec. 307 of the Penal Law.
93 Sec. 405(d) of the Penal Law.
94 Sec. 460 of the Penal Law.
95 Sec. 277(1) of the Penal Law.
96 Sec. 22 of the Penal Law.
97 Sec. 383(c)(1)(b) of the Penal Law.
98 Sec. 402 of the Penal Law.
99 Nagim Agami v. A.G. (1959) 13 P.D. 421, 428.
100 State of Israel v. Peretz (1975) (II) 29 P.D. 544, 554-D.
101 Id., 559, and see Richard v. U.S. 403 F 2d. 574; People v. Butler 421 P 2d. 703.
102 State of Israel v. Peretz, (supra n. 100) at 549-E, and see Harris v. Harrison (1963) Crim.L.R. 497. But see another approach in People v. Posen 78 P 2d. 727; State v. Price 219 P 1049.
103 State of Israel v. Peretz at 549-G. From the sources quoted in that case, it seems that in England, opinions are divided on this point.
104 State of Israel v. Peretz, 559.
105 Sec. 163(1) of the Penal Law.
106 Criminal Code Ordinance Amendment Law (no. 35), 1973.
107 Zur v. A.G. (1964) (I) 18 P.D. 85, and see Danoch v. State of Israel (1974) (II) 28 P.D. 708.
108 E.g. in secs. 192, 428 and 430.
109 E.g. in secs. 427, 428. In these offences, the word “unlawful” appears in addition to this formula.
110 Danoch v. State of Israel, supra n. 107 at 709; Toz v. State of Israel (1977) (II) 31 P.D. 393, 399; Cr.A.54/77; 59/77 Yitzhaki (unpublished).
111 Sela v. State of Israel (1974) (II) 28 P.D. 371. In this case, the Court recognized the right of the person in possession of the field to seize a sheep from the flock which damaged the field as a security against compensation, on the basis of the defence of distress damage feasant, taken from the common law. According to that approach, a person who, within a reasonable time after his property has been stolen, threatens the thief that if he does not return the stolen property, he will injure his person, his property or his reputation, etc., will not bear criminal responsibility. The source for this is sec. 18(b) of the Land Law, (and sec. 8 of the Movable Property Law), for in our opinion, if the use of reasonable force is permitted, then a fortiori it is permissible to use a threat, which is a less severe measure, even though it is not mentioned explicitly.
112 See the majority opinion in Solomonov v. Ezra (1974) (I) 28 P.D. 184, 192–3. The law is different when the former debt was in dispute.
113 See Solomonov v. Ezra at 193-A.
114 And see State of Israel v. Nissimov (1977) (2) P.M. 499, 502. It is not always easy to decide whether in a certain case the defendant demands from the victim a behaviour in the form of an act or an omission. In A.G. v. Kedoshim (1956) 10 P.D. 972, a threat made to a policeman not to arrest the accused was considered a threat to abstain from an act, i.e. a demand for an omission (see loc. cit. 977). As opposed to this, in Podamski v. A.G. (1952) 6 P.D. 341, 354, dealing with a threat made to a policeman to release people who were already under arrest was seen as a threat made to the police to do an act. It will be mentioned that in the second case, the demand made to the policeman could have been viewed as a demand to abstain (omission) from continuing to detain the arrested people.
115 See e.g. sec. 18(b) of the Land Law.
116 Sec. 22 of the Penal Law which contains both private defence and necessity stricto sensu. Here we are not talking about necessity stricto sensu, but only about private defence. It must be pointed out that if the attacker has a right to attack, e.g. a policeman who is making a legal arrest, the accused will obviously not be entitled to threaten him to abstain from such an act.
117 In sec. 22, the word “honour” apparently means sexual honour (chastity). And see Bein, , “The Duty to Retreat in Self-Defence” (1967) 23 HaPraklit 221.Google Scholar On Ottoman Criminal Law referring protection of honour, see Commentary on Egyptian Criminal Law (Cairo, 1924)) 198.
118 Protection of Privacy Law, 1981, secs. 2 and 5.
119 Danoch v. State of Israel, supra n. 107 at 707 does not contradict this, since it it based on sec. 12 of the Penal Law Amendment (Deceit, Blackmail and Extortion) Law, 1963, the predecessor of sec. 428 of the Penal Law. At the time, the said section did not include the formula, “to abstain from an act which he is permitted to do”. As such, the accused in that case, was convicted when he threatened the complainant to stop printing certain material, which the court assumed that he was not permitted to print. In our opinion, according to the present wording of sec. 428, the result would be acquittal.
120 Avnor J., in Stale of Israel v. Poseilov (1975) (1) P.M. 252, 258, concentrates on the question of whether the accused had a right to demand from the victim that he desist from the act which he was about to do, rather than asking whether the victim was permitted to act as he was about to do. This latter is the correct question, according to the formula before us, and the two approaches do not always lead to the same result (On this matter see Podamski, supra n. 114).
121 And indeed we see that Avnor J. adopts a wide interpretation in the Poseilov case, 259. In State of Israel v. Nissimov supra n. 114 at 503, Ben-Ito J. criticizes the approach of Avnor J., but in fact, the criticism is directed only at a case in which an act is demanded of the victim, not an omission. It would seem that in the case of an omission, Ben-Ito I. also adopts a wide interpretation. And see Edna Kaplan, supra n. 50.
122 See note 110 above.
123 We stress this point, since the problem we are presenting does not arise with respect to private defence, which, when all its elements are present, affords a total release from responsibility.
124 Sec. 192 of the Penal Law
125 And see State of Israel v. Poseilov, supra n. 120 at 258.
126 See the penalties set in sec. 427 and 428, as opposed to the penalty for threat under sec. 192. This logic does not apply to an offence under sec. 163(1), which carries a penalty of only one year, even though it discusses a form of blackmail, while the penalty for a simple threat under sec. 192 is three years. The legislator simply did not notice the discrepancy when enacting the sections on threat and blackmail.
127 This is the situation with respect to offences under sees. 427 and 428.