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Published online by Cambridge University Press: 04 July 2014
The use of the word “intention” has given rise to considerable uncertainty regarding criminal offenses in the Israeli justice system. The term remained undefined in the Israel Criminal Code [New Version] — 1977, despite the fact that it was used in its offense-creating provisions, and was applied by judges on a daily basis. This paper will provide a survey of Israeli jurisprudence on the meaning of the word “intention”, a comparison of relevant provisions in British law, and observations on the reform bill for Israel's Criminal Code (the General Part) of 1992.
Justice Agranat authoritatively defined “intention” in the 1952 case of Jacobovitz v. Attorney General as “foresight of a result accompanied by a desire to bring it about”. This definition has been applied throughout Israeli case law and was reaffirmed of late by Chief Justice Shamgar in Vannunu v. State of Israel.
Professor of Law, Tel Aviv University.
1 The word “intention” is used interchangeably with the word “intent”.
2 Since the presentation of this paper, the reform bill was passed on the 23rd of August, 1994 under the title “The Criminal Code (Amendment No. 39) (Preliminary and General Parts), 1994”. The provisions relevant to this paper became effective on August 23, 1995. Therefore, all references in this paper to the draft bill (“the Bill”) apply in the same manner to the newly passed law (“the Law”).
The Code was further amended, providing that the term “intention” used in result offenses laid out in the Israel Criminal Code -1977 (hitherto undefined) be so defined as the term “intention” is defined in Section 20 of the above-referenced Amendment No. 39. See the Criminal Code (Amendment No. 43) (Adaptation of the Criminal Law to the Preliminary and General Parts), 1995; Statutes 1537 of 7 August 1995, effective as of August 23, 1995. See p. 5 in this issue.
3 Jacobovitz v. Attorney General, (1952) 6 P.D. 514, at 545.
4 Mordechai Vannunu v. The State of Israel, (1990) 44(iii) P.D. 265. See also Justice Barak in Azulai v. The State of Israel (1983) 37(ii) P.D. 565, at 578. Justice Barak's definition is substantially similar to the definition of “intent” which subsequently appeared in Section 20 of the Bill, now Section 20 of 1994 Amendment No. 39, and a recitation of the definition proposed by the Agranat Commission for the reform of the Criminal Code which preceded the Bill.
5 R. v. Moloney [1985] 1 All E.R. 1025.
6 Ibid., at 1039.
7 Compare with the definition of “intention” in Archbold's Pleading, Evidence and Practice in Criminal Cases quoted by Lord Bridge in Moloney, ibid., at 1036: “In law a man intends the consequence of his voluntary act, (a) when he desires it to happen, whether or not he foresees that it probably will happen, or (b) when he foresees that it will probably happen, whether he desires it or not.” Compare also with Glanville Williams cited by Chief Justice Agranat in Hampterpest v. Attorney General (1968) 22(ii) P.D. 536, at 545: “Intention is a state of mind consisting of knowledge of any requisite circumstances plus desire that any requisite result shall follow from one's conduct …”
8 See The Law Commission (Law Comm. No. 177) 1989, par. 8.14 at 192.
9 Section 90(A)(2) of the Criminal Code (Amendment No. 43) introduced on August 7, 1995, supra n. 2, defines for the first time “ulterior intention” or “specific intent” situations in terms of “intentionally”, providing that where a statute provides for a person to act “intentionally”, and where the term “intentionally” does not relate to a result of the actus reus in result offenses, the word should be construed as either the motive prompting the act, or the aim to achieve an end specified in the definition of the offense, as the context may dictate.
10 Roper v. Taylor's Central Garages, (1951) 2 T. L. R. 284.
10a This approach was taken by the Supreme Court in a single judge (Justice Cheshin) decision rendered on 12 May 1996 — after presentation of this paper — in Said Sulimani v. State of Israel (1996) 33 Dinim Elyon 252 The Court relied on the provisions of sec 20 of the Law and imputed intention to defendant due to the fact that he had suspected the existence of circumstances, which if true, would lead to substantially certain consequences.
11 Attorney General v. Greenwald, (1958) 12 P.D. 2017, at 2069.
12 The case involved the determination of the liability of a leader of the Jewish community in wartime Hungary for mass murders and exterminations of Jews by the Nazis, with whom the said leader (Dr. Kastner) was alleged to have collaborated.
13 Iluz and Alias v. The State of Israel, (1969) 23 (i) P.D. 377, at 388, 390.
14 Ajami v. Attorney General, (1959) 13 P.D. 421, at 431, 432.
15 Prof. Kurt Sita v. Attorney General, (1961) 15 P.D. 1373.
16 Anonymous v. Attorney General, (1960) 14 P.D. 310.
17 Anonymous v. Attorney General, (1962) 16 P.D. 2397, at 2041, 2042.
18 Shmuel Borochov v. Zeev Yefet (1985) 39 (iii) P.D. 205, at 214 - 215, 216.
19 Eisman v. The State of Israel, (1990) 44 (iii) P.D. 485.
20 Supra n. 4.
21 Vannunu, supra n. 4, at 277, 280, 281, 286, 287.
22 Eisman, supra n. 19, at 517, 518.
23 Moloney, supra n. 5, at 1038.
24 Ibid.
25 Regina v. Hancock and Shankland (H.L.(E.)), (1986) 2 W.L.R. 357, at 365.
26 Regina v. Nedrick, [1986] 1 W.L.R., 1025.
27 Borochov, supra n. 18, at 214.
28 Author's translation of the Hebrew text.
29 (1978) Law Comm. No. 89 Draft Criminal Liability (Mental Element) Bill.
30 Ibid., at 26.
31 Supra n. 10.
32 State of Israel v. Be'eri et al. (1994) 48 P.D. 302, at 363.
33 Caldwell (1982) A.C. 341
34 The Law Commission (Law Comm. No. 177) 1989.
35 Ibid., par. 8.14 at 192.
36 This section became Section 20 of the Criminal Code (Amendment No. 39) (Preliminary General Parts), 1994 which took effect on August 23, 1995, see supra n. 2.
37 This text provides, in relevant part, as follows:
4. (1) The standard test of recklessness as to result is —
Did the person whose conduct is in issue foresee that his conduct might produce the result, and, if so, was it unreasonable for him to take the risk of producing it?
(2) The standard test of recklessness as to circumstances is —
Did the person whose conduct is in issue realize that the circumstances might exist and, if so, was it unreasonable for him to take the risk of their existence?
(3) The appropriate key words for both tests are “reckless”, “recklessness” and “recklessly”.
(4) The question whether it was unreasonable for the person to take the risk is to be answered by an objective assessment of his conduct in the light of all relevant factors, but on the assumption that any judgment he may have formed of the degree of risk was correct.
38 The text provides, in relevant part, as follows:
A person acts …
(b) ‘intentionally’ with respect to —
(i) a circumstance when he hopes or knows that it exists or will exist;
(ii) a result when he acts either in order to bring it about or being aware that it will occur in the ordinary course of events;
(c) ‘recklessly’ with respect to —
(i) a circumstance when he is aware of a risk that it exists or will exist;
(ii) a result when he is aware of a risk that it will occur, and it is, in the circumstances known to him, unreasonable to take the risk; …
39 Sec. 90(A)(4) of the Criminal Code (Amendment No. 43), 1995, supra n. 9 refers to expressions such as “has reason to believe”, in criminal statutes providing that such expressions shall be construed as suspicion under Sec. 20(c)(1) of the Criminal Code (Amendment No. 39) quoted above, and hence as “knowledge”. See also supra n. 10a.
40 Some of the issues raised in this paper were discussed — after its presentation — in two articles published in Hebrew and which provide additional insights in relation to section 20 of the Law. See Kannai, , “ Mens Rea Concerning Circumstances: Knowledge or Recklessness” (1995) 12 Mehkarei Mishpat 433 Google Scholar; Kugler, , “The Requirement of Knowledge of the Circumstances in the New General Part of the Criminal Code” (1996) 5 Plilim 140 Google Scholar.