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P.E.
1972.
A Digest of Recent Israeli Cases.
Israel Law Review,
Vol. 7,
Issue. 4,
p.
570.
Article contents
Adulterated Food—Sentencing Problems in Strict Liability Offences
Published online by Cambridge University Press: 12 February 2016
Extract
The serious criticism expressed by many scholars of criminal law against strict responsibility offences (sometimes called Public Welfare Offences), has not brought about their abolition. The courts of this country, as of most common law countries, continue to interpret certain offences as imposing responsibility without fault and the legislator on his part has not interfered.
While the debate on the very existence of strict liability offences continues, very little attention has been paid to another not insignificant problem, the principles and considerations on which the courts should determine the severity of sentence to be imposed on conviction for such offences. It is, of course, impossible to deal with this latter aspect in isolation from the rationale given by the proponents of strict responsibility in favour of its retention. It follows, then, that any analysis of sentencing in strict liability offences is to a great extent also a renewed probing from another angle into the basic problems involved in the imposition of liability without fault in criminal law.
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References
1 For the relevant bibliography, see Bein, , “The Defences Available to the Defendant in Strict Liability Offences” (1966) 22 HaPraklit 464–465.Google Scholar
2 See especially, Maor Mizrahi v. A.G. (1959) 14 P.D. 1882; Gadisi v. A.G. (1965) (I) 19 P.D. 57; Hacham v. A.G. (1959) 13 P.D. 651, 658.
3 See p. 340 sec. 8 of the case under consideration.
4 This maximum applies only in case of a third conviction for the same offence. It is probable, though not mentioned by the Court, that the defendant, like most big food producers, had at least two prior convictions.
5 Generally the penalities imposed by the courts for strict liability offences are relatively light. This is to be gathered at least from the published District and Supreme Courts judgments. Of course, no full and reliable picture can be drawn from these because their number is very small in comparison to those judgments of the lower courts which are not published. However the following examples perhaps give some clue to the general tendency: In Maor Mizrahi v. A.G. (1955) 18 P.M. 356 (approved on appeal) the District Court imposed a fine of IL20 on a truck driver where the load protruded from his van. In A.G. v. Edelstein (1956) 11 P.D. 475, a partnership—and each of the partners were found guilty of selling adulterated food contrary to sec. 10 (1) (d) of the Public Health Ordinance (Rules as to Food) 1935, and each partner was fined ILIO. The judgment of the Supreme Court does not disclose what sentence was imposed on the partnership. A.G. v. Kochavi (1955) 13 P.M. 181 was a serious case, methylated spirits having been sold as ethylated and a consumer was permanently blinded by drinking the same‥ The seller was fined IL.30 for an offence under sec. 10 (1) (d) of the Public Health Ordinance (Rules as to Food), 1935, and IL.20 for an offence of selling alcohol in an open bottle contrary to sec. 2 of the Defence Regulations (Selling of Intoxicating Liquors in Closed Bottles), 1954. In Sabransky v. A.G. (1962) 16 P.D. 1402, a fine of IL.250 was imposed for failure to comply with the necessary precautions in relation to a tank containing inflammables, contrary to sec. 30(4) and 82(1) of the Factories Ordinance, 1946.
6 There are instances where absolute liability offences exist in theory but are only prosecuted when at least negligence is to all appearances present (cf. Carson, , “Some Sociological Aspects of Strict Liability and the Enforcement of Factory Legislation” (1970) 33 Mod. L. R. 396).CrossRefGoogle Scholar When that is the case, the problems dealt with here become of academic nature only. In this country it seems, however, that the prosecution, especially with food offences, tends to bring defendants to court, even though no clue as to negligent behaviour is found, as where a retailer sells a commodity soon after he receives it from the manufacturer in a closed package and the commodity is found to be adulterated. It is worth pointing out that this “full enforcement of the law” in strict offences is not in line with Witkon J.'s opinion in the leading case of Maor Mizrahi (see infra n. 14) where he expressed a view favouring a policy of selective prosecutions.
7 Smith, and Hogan, , Criminal Law (2nd ed.) 6.Google Scholar See also, Bazak, , “The Retributive Consideration in Sentencing” (1966) 22 HaPraklit, 240.Google Scholar
8 Smith and Hogan op. cit., p. 5.
9 However, according to modern psychologists, human behaviour is not always controlled simply by the pleasure-pain principle.
10 Maor Mizrahi (1959) 13 P.D. 1884, 1890.
11 Cf. Cadisi v. A.G. (1965) (I) 19 P.D. 61, 68. Andenaes, , The General Part of the Criminal Law of Norway 241.Google Scholar
12 Howard, C., Strict Responsibility 27Google Scholar, and compare the judgment of Agranat P. in Abu-Rabia v. A.G. (1962) 16 P.D. 2920, 2926, where in reaching the conclusion that a certain offence is not one of strict liability, he relies inter alia on the fact that the maximum punishment laid down by the legislator is very severe. However, the learned President stated in Gadisi v. A.G. loc. cit., that in fact nowadays, heavy penalties, including imprisonment, are imposed for offences of strict responsibility.
13 In Germany, for instance, until recently the punishment due for Ordnungswidrigkeiten (the German version of liability without fault) was confined within the limits of DM. 5–1000. (See Jeschek, H.H., Lehrbuch des Srafrechts—Allgemeiner Teil 37Google Scholar). This situation has been changed by a new law (OWig 1968) and now much higher fines may be imposed, (see Mattes, H., Die Problematic der Umwandlung der Verkehrsübertretungen in Ordnungswidrigkeiten 82Google Scholar ZStW 25, 36). According to the proposed official draft of the Model Penal Code of the American Law Institute, sec. 1.04 and sec. 2.05, only fines and not imprisonment may be imposed for strict liability offences, but there is no limitation as to the maximum amount of the fine.
14 In this case, a lorry driver was convicted of driving his van while part of his load was projecting out of it contrary to Road Traffic Regulations, 1953, 74 (a) (2) and 74 (a) (4). No fault on the part of the driver was proven. Witkon J. while delivering judgment on appeal, expressed the view that strict liability should be retained in relation to offences of “public welfare”.
15 Ibid.
16 Loose comparison may be made with sentences the aim of which is to remove the defendant from society, such as banishment, long imprisonment and capital punishment. No doubt such punishment—like the cessation of production in the present context—achieves the end of specific prevention, at least during execution of sentence, but the question which always remains is the price paid by society in moral or economic terms.
17 Cf. Perkins, , “The Civil Offence” (1951/1952) 100 U. Pa. L.R. 832, 848.CrossRefGoogle Scholar
18 At p. 340.
19 Cf. Samuels, , “The Fine, The Principles”, [1970] Crim. L. Rev. 201, 208.Google Scholar
20 See p. 340 of the present case.
21 It is worthwhile mentioning that since the judgment was delivered in the present case much milk is being sold in plastic bags.
22 Gadisi v. A.G. (1966) 20 (I) P.D. 57, 73. Bein, “The Defences Available to the Defendant in Offences of Strict Liability” (1966) 22 HaPraklit 464 at 469.Google Scholar However, it must be pointed out that this plea was not raised as a defence: the defendant pleaded guilty.
23 Sec. 75 (4) of the Criminal Procedure Law, 1965. See also Shalgi, , “The New Code of Criminal Procedure in Israel” (1966) Is. L. R. 454.Google Scholar
24 (1959) 14 P.D. at p. 1889.
25 Ibid. at 1829.
26 Rubin, , The Law of Criminal Corrections p. 101Google Scholar, sec. 18, p. 105, sec. 20; Bassioni, , Criminal Law and its Processes—The Law of Public Order 17Google Scholar; Wharton, , Criminal Law and Procedure (ed. by Anderson, R. 1957 with supp., 1971) 423, sec. 2212Google Scholar; Williams v. N.Y. 337 U.S. 241; and see U.S. v. Durham 18 F. Supp. 503; U.S. v. Rees 193 F. Supp. p. 861. If however the deviation from the strict rules of evidence brings about a miscarriage of justice, the judgment of the lower court may be set aside.
27 Note, “Right of Criminal Offenders to Challenge Reports Used in Determining Sentence” (1967) 49 Colum. L.R. 5.
28 R. v. Stratton (1924) 10 C.A.R. 35. Though in this case a police officer's report as to the personal and social background of the defendant was shown to be unfounded, the court did not in principle regard it improper for a report on the defendant's background to be brought by a police officer, (though such report would generally include hearsay). See also R. v. Van Pelz (1942) 29 C.A.R. 10; R. v. Roche (1944) 30 C.A.R. 29.
29 R. v. Campbell (1911) 6 C.A.R. 131.
30 This is pointed out by C. Howard, op. cit., p. 17.
31 Such position is in accord with R. v. Campbell (1911) 6 C.A.R. 131.
32 At present it is no offence to disobey an inspector's order. There exists only a general provision which deals with production of food without proper sanitary conditions (sec. 2(1) of the Commodities and Services (Control) (The Quality of Food) Order, 1958, and this provision may be used wherever an inspection shows that improper sanitary conditions exist but this offence does not cover all cases, because lack of sanitation is not the only cause of adulterated food. A producer may simply fail to make use of modern methods of supervision (e.g., an electronic eye which detects foreign bodies). It is not clear if the above offence includes such omissions.
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