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Published online by Cambridge University Press: 12 February 2016
In this article we are concerned with the problem of the attitude of the criminal law towards the destruction of one's own property. In the elucidation of this problem it will be necessary not only to analyse various provisions of the special part of the criminal law, but also certain extra-penal laws, and to consider them against the wider background of the different social interests they are designed to protect.
The accepted view of our legal system is that among the liberties a person enjoys is the liberty to destroy or damage his own property.
This view is an outcome of both the influence of Roman Law, and of our social and economic system. This liberty is nowadays subject to limitations ensuing from the needs of society, the state or even of individuals, in the same way as use of property is not unrestricted, but has sometimes to submit to the rights of others (sic utere tuo ut alienum non laedas), The extent and form of these limitations depend mainly on the structure of a given society and its ideologies, but the differences between most societies, at least in the western world, are diminishing gradually.
1 The concept of the “special part of the criminal law” as it is known to continental jurists is that part which deals with the classification and definitions of the various offences and with the social interests protected by them, while the general part deals with concepts, principles and doctrines common to all offences such as actus reus, mens rea, the general defences, etc.
2 A.G. v. Aloush (1965) (I) 19 P.D. 505, 510. Halili v. State of Israel (1967) (II) 21 P.D. 264, 269. See also Salmond, , Jurisprudence (12th ed.) 247Google Scholar; Paton, , Jurisprudence (3rd ed.) 467.Google Scholar
3 Eisenstadt, S., Roman Law (in Hebrew) 751Google Scholar. Buckland, , The Main Institutions of Roman Private Law 93Google Scholar; Buckland, , Elementary Principles of Roman Private Law, 64.Google Scholar
4 Roman law already imposed certain restrictions on the liberty of destruction, as for instance the prohibition against destroying houses; see Buckland, , The Main Institutions of Roman Private Law 102.Google Scholar
5 The problem of the relationship between the social structure and the restrictions imposed on the liberty of the owner to do harm to his own property, can be solved only through cooperative analysis by sociologists and lawyers. In this article we shall not deal with this.
6 Compare Honoré, “Ownership” Oxford Essays in Jurisprudence (ed. by A.G. Guest) 107, 108.
7 See, for instance, Lavender v. Betts [1942] 2 All. E.R. 72. In this case a landlord removed windows and doors from a flat which he owned in order to compel the statutory tenant to vacate. The court ruled that in damaging the flat the landlord violated one of the terms of the tenancy agreement (which, as is well known, continue to apply to statutory tenancies), ensuring quiet enjoyment. The owner was therefore ordered to pay the tenant punitive damages. It would thus appear that the law of contract may sometimes indirectly serve as an implement for restricting the owner's liberty to damage his own property when the interests of others are involved.
8 The most suitable cause of action within the law of torts for a person injuriously affected by damage to property, either movable or immovable, is “trespass” (secs. 29 and 31 of the Civil Wrongs Ordinance (New Version). Here the interest protected is not ownership but undisturbed possession (see Harper, , Law of Torts, p. 53, sec. 26Google Scholar; p. 65, sec. 33). Consequently, if the owner does damage to his own property, while it is in the possession of another, the owner may be sued for damages by the person in possession. Trespass may also serve to protect the interest of one not actually in possession, when his interest in the thing damaged is of such nature as to entitle him to obtain possession on demand or under certain conditions, e.g., a mortgage (Prosser, , Law of Torts (1964) 78Google Scholar; but see the language of sec. 31 of the Civil Wrongs Ordinance). Another civil wrong which may serve the same purpose is “nuisance” see sec. 44 of the Civil Wrongs Ordinance and compare Betts v. Penge U.D.C. [1942] 2 All E.R. 61, although this case dealt with nuisance under a specific statutory provision.
9 Secs. 323 (a); 324; 325 (in part); 326 (1); (2); (4); 328.
10 Secs. 317–22, 326 (3) and 327. There are other offences which do not properly belong to one or the other of these two groups, and yet cannot be grouped separately as a distinct independent class, e.g., the offence of casting away ships (secs. 323 (b), (c)), and of removing boundary marks with intent to defraud (sec. 329). The last mentioned offence is more akin to fraud than to damage to property.
11 Malicious Damage Act, 1861. Although the English Act uses the term “maliciously” while the C.C.O. uses “wilfully” (the term maliciously appearing only in the title of Division VI), there is no difference between these two terms (see Williams, G., Criminal Law, The General Part (2nd ed.), p. 73, para. 30)Google Scholar.
12 The accepted opinion is that the mental element consists of either intention or recklessness. (See Kimel v. A.G. (1964) (IV) 18 P.D. 374, 377–8; Smith, and Hogan, , Criminal Law (2nd ed.) 456–18Google Scholar). Negligence will not suffice. The term “very gross negligence”, to which the courts referred as sufficient mental element in Schubert v. A.G. (1953) 8 P.M.S. 77, and in A.G. v. Zabri (1953) 11 P.M.S. 18, is probably tantamount to recklessness. It is not certain whether intention or recklessness is needed with respect to all the elements of the actus reus. In Halili v. A.G. (1967) (II) 21 P.D. 264, 268, it was held that in the offence set out in sec. 318 (b) it was not necessary to prove that the defendant intended or even foresaw that fire would spread; it was enough that the fire was set intentionally (and not by. accident) although the risk that the fire might spread is an integral part of the actus reus
13 Compare, on the other hand, the explicit provisions in other penal legislations: sec. 3 of the Malicious Damage Act 1961 (but this section deals with the possessor and not with the owner); sec. 166 (2), 167 (2) of the Korean Criminal Code 1953; sec. 381 of the Turkish Criminal Code of 1926; sec. 308 of the German Criminal Code of 1861; sec. 1 of the General Law of Massachusetts, ch. 266. sec. 1 (cited in Michael and Wechsler, Criminal Law and its Administration, 350).
14 G. Williams, op. cit., p. 27 para. 13; Aloush, ibid., 507–8.
15 Sec. 36 (6) (7) of the C.C.O.
16 Sec. 249 ibid., and see Dalal Rasi v. A.G. (1953) 7 P.D. 790, 793; Futerman v. A.G. (1962) 30 P.M. 8, 12.
17 Sec. 152 (1) (a) (c) of the C.C.O.; El-Fakir v. A.G. (1964) (IV) 18 P.D. 201.
18 But see the broad interpretation given in England to this element in conspiracy, and the criticism of G. Williams, op. cit. 686 et seq.
19 As to the attitude, according to which the principle of legality demands restrictive interpretation when dealing with provisions which prejudice the defendant's interests, while allowing a broad interpretation in respect to provisions of which the purpose is to benefit him, see Silving, Helen, Constituent Elements of Crime, 386–7Google Scholar.
20 G. Williams, op. cit. 28–29.
21 See my article: “Self Help in Recovering Possession” (in Hebrew) 24 HaPraklit 337, 475; Sivan v. Koch (1963) 36 P.M. 120, 121.
22 See in A.G. v. Aloush, ubi supra 508, 510. It should be borne in mind that in England, according to whose model the local offences of causing damage to property were drafted, the accepted opinion is that the element of “unlawfully” in those offences serves to give an almost general exemption when the damage to property was caused by the owner thereof (see Kenny, , Outlines of Criminal Law (19th ed.) p. 251Google Scholar, para. 204; p. 249, para. 201). In Israel this attitude has not been fully accepted because the courts have recognized the existence of restrictions upon the liberty of the owner to do damage to his property, but still the existence of the liberty is regarded as the rule and the limitations as only the exception.
23 See also supra p. 103.
24 Supra p. 99.
25 Supra pp. 100, 110.
26 The term used in the judgment of Silberg D.P. in the Aloush case, at 510, is rights “quasi in rem” or “quasi property rights”.
27 For the present purpose it is not necessary to dwell in detail upon the definition of this concept; we shall therefore content ourselves with stating the characteristics of a property right as being that (1) it is protected in rem, (2) it forms part of a person's economic values, as distinct, for example, from a person's status or reputation. See Salmond, , Jurisprudence (12th ed.) 412.Google Scholar
28 Cf. the definition of the “house of another” in A.L.I. Model Penal Code T.D. No. 11, pp. 39–40.
29 See R. v. Philp (1830) 168 E.R. 1265; A.L.I. Model Penal Code No. 11, p. 39–40; State v. Craig, 259, P. 802, 804; Schönke-Schröder, Strafgesetzbuch, Kommentar (8 Aufl.) S. 1076 (the commentary to section 308 of the German Penal Code of 1871).
30 In English law, there was no doubt that the possessor should be protected as against the owner. Problems arose only in the opposite direction. Should the possessor who caused damage to the property in his possession, thereby prejudicing the owner's interest in the property, be made criminally responsible? (Mills v. Collett (1829) 130 E.R. 1212.) This problem was solved by section 59 of the Malicious Damage Act, 1961. See, Russell On Crime (12th ed.) vol. 2, p. 1330, note 88. Halsbury, , Statutes (2nd ed.) vol. 5, p. 775Google Scholar. Hogan, Brian, “Malicious Damage: The Law Commissioners Working Paper” [1969] Crim. L. Rev. 283, 285–6.Google Scholar
31 This seems to be the approach of the local courts: see Many J. in the Aloush case, 508, which refers specifically to mortgage. The judgment in State v. Crosby, 324, P. 2d. 197 (1958), where an owner causing damage to his own property which was subject to a mortgage was acquitted, does not prove the contrary of what is said in the text. The reason for the acquittal in that case stems from the wording of the relevant statute, which stated expressly that the damage must be done only to “property of another”. The court never denied that as a matter of principle the owner should be made criminally responsible in such a case (in the same vein, because of a similar formulation of the statute, see People v. Otis 137 App. D. (N.Y.) 426). In torts a similar problem has arisen, namely, whether a mortgagee may sue for trespass even if he does not possess the property. It was decided that he may do so, at least as from the time he has the right of foreclosure. (Prosser, , Law of Torts (1964) 78)Google Scholar.
32 Noyes, , The Institutions of Property, 345et seq.Google Scholar
33 See above n. 26.
34 (1959) 13 P.D. 421.
35 (1952) 6 P.D. 437.
36 But not every interest of a public authority is analogous to a property right; for instance the interest dealt with in the Elisada case (n. 52 below) is not such an interest.
37 The attachment, as laid down by the Supreme Court, does not vest in the creditor the property rights in the property attached, attachment being only a procedural remedy. See Stern v. Stern (1968) (II) 22 P.D. 38, 40; Segalov v. Etzion (1966) (1) 20 P.D. 442, 446.
38 The Korean Criminal Code of 1953 includes a specific provision, covering such a situation, in sec. 176 which reads as follows: “Property of an offender subject to attachment or other execution is, for the purpose of the provisions of this chapter, regarded as the property of another person.”
39 In certain cases, acts of causing harm to one's own property accompanied by an intent to defraud creditors may be covered by offences under section 10 of the Penal Law Amendment (Deceit, Blackmail and Extortion) Law, 1963 (see also n. 91 below; see also sec. 127 (5) and (9) of the Bankruptcy Ordinance).
40 Sec. 380 (a) of the C.C.O.
41 See Fitzgerald, , Criminal Law and Punishment, 83.Google Scholar
42 See Mannheim, , Criminal Justice and Social Reconstruction, 115.Google Scholar
43 In Soviet legislation a distinction is made between private and socialist property, the latter consisting of state property, property belonging to cooperatives and property belonging to collective farms (Berman, , Soviet Criminal Law and Procedure 35Google Scholar). The punishment meted out for causing damage to socialist property is more severe than that for causing damage to private property. Furthermore, in respect of socialist property, criminal responsibility lies in certain circumstances even when the damage was caused negligently (see secs. 98, 99–119, Criminal Code of the RSFSR—1960, as amended in 1965).
44 See for instance sec. 36(c) of the local Mining Ordinance, and sec. 1 of the Water Law, 1959.
45 See a list of such enactments in Mannheim, op. cit. 115.
46 See sec. 39(a)(1) of the Commodities and Services (Control) Law, 1957, and rule 6 of the Commodities and Services (Control) (Trading, Production and Storage of Food) Order, 1961. Another example is the offence of mutilating currency notes in sec. 353 of the C.C.O.
47 It is worth noting that the offence under the Commodities and Services (Control) Law, 1957 (n. 46 above), does not contain any mental element.
48 See p. 47 above. In Zehavi v. A.G. (1952) 6 P.D. 437, 441 the question was expressly raised whether morality may so serve; but the court did not find it necessary to deal with it.
49 We shall later return to the question of the negative aspects of combining two different criminal sections through the element of “unlawfully”; see pp. 105, 110, below.
50 For an example of this see sec. 4 of the Antiquities Ordinance, under which the Minister of Education and Culture may acquire for the Government any antiquity. The purpose is not only to preserve antiquities but also, as is evident, to give the public in general access to them. Another example, from another area, is the note which Israeli passports bear—“This passport which is a document of value is the property of the Government and must be kept with utmost care.” Instead of vesting the Government with the property in the passport, the same goal could have been achieved by the legislative prohibition of damage to the passport.
51 See, for instance, the prohibition of the destruction of forests, irrespective of the question of ownership; secs. 16(1); 16(3); 5(b) and 17(1) of the Forests Ordinance. Cf. Kruse, Vinding, The Right of Property, vol. 1, p. 216Google Scholar. This interest is of a mixed aesthetic and economic nature.
52 23 Hok-U'Mishpat 12.
53 Scientific experiments on animals, which formally are within the definition of the offence of cruelty to animals in sec. 386 of the C.C.O., are nevertheless not regarded as criminal because of the benefit to society. But there are anti-vivisection organizations which demand their prohibition.
54 Sec. 386 of the C.C.O.
55 See supra pp. 110, 111.
56 (1900) 35 L. Jou. 456.
57 Cf. R. v. Kirby (1897) 31 I.L.T. (Ireland) 46.
58 The headnote to Holmes' Case, 79 E.R. 928 seems therefore superfluous: “The offence of arson may be committed by wilfully setting fire to one's own house provided the house of another be thereby burned.” The problem whether it is necessary to prove that the defendant intended the injurious outcome to the property of another, or whether it is enough to prove that he intended to set fire to one place from which the fire spread and caused damage to the other's house, is a general question; the fact that the object which was initially set alight and from which the fire spread belongs to the actor is immaterial.
59 Sec. 29 of the C.C.O.
60 As, for example, sec. 32 of the C.C.O.
61 Feller, S. Z., “Les Délits de Mise en Danger”, Colloque Préparatoire sur la Ière question du Congrès International de Droit Pénal, 61 (1968)Google Scholar.
62 Cf. sec. 98 of the Russian Penal Code RSFSR; sec. 85b of the Austrian Code and see Rittler, , Lehrbuch des Osterreichischen Strafrechts II. Band, Besonderer Teil (Zweite Aufl.) S 197Google Scholar; sec1. 167 (2) of the Korean Criminal Code of 1953, where the offence of arson appears separately from offences of damage to property, and a lesser penalty is prescribed for causing risk by setting fire to one's own property.
63 See e.g. secs. 167 and 176 of the Korean Penal Code, 1953.
64 See also p. 114.
65 On the distinction between abstract and concrete risk see Schönke-Schröder, , Strafgesetzbuch, Kommentar (8 Aufl.) S. 1069Google Scholar; and Entwurf eines Strafgesetzbuches (E/1962), S. 495.
66 The nearest formulation to such a general offence in the local law is found in sec. 247 of the C.C.O., which forbids the creating of risk to a person in a public place or waterway.
67 There are codes which deal specifically with the creation of risk to property: see for instance sec. 169 of the Austrian Code and sec. 381 of the Turkish Code of 1926. See also a discussion of this problem in Gordon, G.H., The Criminal Law of Scotland, 672.Google Scholar
68 Secs. 243, 243(b) and 247 of the C.C.O.
69 Secs. 317–322 of the C.C.O. It must be pointed out, however, that the statement that concrete risk need not be proved must be qualified in respect of the offences in secs. 318(b) and 320(b). In these offences, which may be regarded as halfway between offences of concrete and abstract risk, it is necessary to prove that there exists a concrete risk that the fire will spread to one of the items enumerated in secs. 317–319, but once this risk is shown to exist there is no need to show that danger to human life or limb ensued.
70 Most forms of arson deal with property inside or in the vicinity of which people usually stay, work or pass, e.g., buildings or ships (secs. 317, 319 and 321) or which are easily inflammable or exploded, such as a mine (e.g., sec. 317(d)).
71 The English textbooks (Russell, Kenny and Smith and Hogan) deal with it in the framework of offences against property involving malice. This attitude is mainly influenced by the Malicious Damage Act, 1861. The same Act was the main source of the local legislator.
72 Kenny, , Outlines of Criminal Law (19th ed.) para. 200.Google Scholar
73 For instance in People v. George, 109 P 2d. 404, 407, the court, while rejecting counsel's submission that a person setting fire to his own dwelling house should not bear criminal responsibility, stated the following: “Because of the close proximity of most dwellings that house haman beings, or that house property of substantive value, the legislature acted well within the scope of its power, in denouncing such an act as a crime”. See also, Wharton, , Criminal Law (12th ed.) vol. 2, p. 1339Google Scholar, which in dealing with arson says: “The gist of the offence being the danger to life of persons who may be dwelling in the house fired.” Burdick, , Law of Crime vol. 3, para. 387Google Scholar; Michael, and Wechsler, , Criminal Law and its Administration, 350Google Scholar, and recently in England Samuels, A., “Malicious Damage, The Law Commissioners Working Paper” [1969] Crim. L.R. 366Google Scholar. It is possible that the idea of risk had some influence on the stand of English law that the person primarily protected by the prohibition of arson is the possessor and not the owner, for it is the former who is primarily put in danger, not the absent owner.
74 In the Swedish Criminal Code of 1965, the offence is found in chapter 13 under the heading “Criminal offences against public safety of persons and property”. In the Argentine Code arson appears in chapter VII which deals with “Crimes against public security”. The Turkish Criminal Code of 1926, puts arson together with flooding in chapter 7 of Book II entitled “Felonies against public security”. See also the classification in Schönke-Schröder, op. cit. S. 1069, where arson is discussed in the chapter dealing with “Gemeingefährliche Verbrechen und Vergehen”.
75 According to the common law definition of arson, it can be committed only in respect of the property of another (see Perkins, , On Criminal Law, 172Google Scholar) but there is also an additional offence according to which it is a misdemeanour to set fire to one's own property situated “in a town or so near to other houses that its burning might endanger them” (Kenny, op. cit. 250).
76 (1965) (I) 19 P.D. 505.
77 Sec. 321 reads as follows: “Any person who wilfully and unlawfully sets fire to any matter or thing being in, against or under any building, whether such building be set on fire or not, is guilty of a felony.”
78 At 508.
79 At 510.
80 This raises the problem of proper gradation of punishments in offences of risk. What justification is there for the three years' imprisonment for an offence which includes an element of concrete risk, such as the offence in sec. 243(c), while the offences in Division VI, which are mostly offences of abstract risk only, involve a much severer sanction? One possible answer is perhaps that in Division VI offences, the property of another is in most cases damaged in fact (the only exception being the case of setting fire to one's own property) and then a combination similar to that mentioned in p. 106 of the text is involved. Another explanation is perhaps the fact that Division VI offences involve a mental element of a higher variety, “wilfulness” as against “negligence” in sec. 243(c). (See Herman v. A.G. (1953) 7 P.D. 1006, 1010; Ungerman v. Segal (1946) S.D.C. 135, 137.) The second explanation is less satisfactory since it has been held that “wilfully” relates only to the act of setting fire and not to the existence of risk, in other words, it is not necessary that the defendant “willed” the risk (Halili v. State of Israel (1967) (II) 21 P.D. 266, 268).
81 Ibid., 512. Berinson J. was followed by Cohn J. in the Halili case, ubi supra.
82 Another example following the same line of construction of “unlawfully” is the Samin case (1963) 17 P.D. 1788, where the offence under sec. 247 was combined with the offence under sec. 244.
83 See above p. 105.
84 At 512.
85 It is submitted that the legislator's aim in sec. 321 was to prevent the risk to human life at a very early stage by punishing for the mere endangering of the building wherein or in the vicinity of which the fire was started (without regard to whom the building belongs), assuming that if the fire actually set light to the building, this will as of necessity lead to peril to human life. It seems that the only difference between the offences in secs. 318(b) and 320(b) and that in sec. 321 is that in the first-mentioned it must be proved that there is a concrete danger that the fire will spread to one of the items mentioned in secs. 317 or 319, while in sec. 321 it is assumed that the starting of a fire inside a building or in its vicinity always creates an immediate risk that the fire will spread to the building itself, and therefore the necessity of proving this risk in every case is dispensed with.
86 In Halili v. State of Israel (1967) (II) 21 P.D. 264, 269, Sussman J. says that “the risk to the building of another ensuing from the act of setting fire is irrelevant to a charge under sec. 321”. What does Sussman J. mean by “building of another”; does he mean only a building which is a separate physical entity, standing apart from the building to which fire has been set, or does he also mean flats belonging to other people in the same building? The fact that he finds the acquittal in Aloush justified, makes us think that the second interpretation is the right one. Both Sussman J. in Halili, and Silberg D.P. and Many J. in Aloush distinguish between the offence in sec. 318(b) where, in their opinion, the legislator intended to make the mere creating of risk punishable, and the offence in sec. 321 where this was not intended by the legislator. My approach—as already stated in n. 85 above—is that there is no difference in that respect between the offences.
87 Sec. 52 of the Land Law, 1969.
88 Sec. 2 of the Penal Law Amendment (Deceit, Blackmail and Extortion) Law, 1963.
89 A.G. v. Weinberg (1961) 26 P.M. 298, 301. Smith, and Hogan, , Criminal Law (1st ed.) 496Google Scholar. See also the comments in the A.L.I. Model Penal Code, T.D. No. 11, pp. 39–40. Rittler, op. cit. S. 226.
90 According to this approach the act of doing damage to one's own property (accompanied by the intention to defraud) may perhaps be regarded in certain circumstances as forming criminal attempt: Weidenfeld v. A.G. (1966) (I) 20 P.D. 7, 13.
91 Section 10 of the Penal Law Amendment (Deceit, Blackmail and Extortion) Law, 1963.
92 In the Canadian case of The Queen v. Goldstaub (1895) 5 Can. Crim. Cas. 357, an offence resembling that in sec. 10 of the Penal Law Amendment (Deceit, Blackmail and Extortion) Law was discussed, namely, the offence defined by sec. 354 of the Canadian Criminal Code of 1892. This offence is defined as follows: “Everyone is guilty of an indictable offence and liable to two years imprisonment, who for any fraudulent purpose takes, removes or conceals anything capable of being stolen.” The defendant concealed goods belonging to him and afterwards set fire to his own building with intent to claim insurance money for the goods. His submission that concealing one's own goods is not forbidden by law was rejected.
93 As to the various motives for committing arson and as to the high incidence of the motive to deceive insurance companies, see Brophy, , “How can the Crime of Arson be reduced”, in Michael, and Wechsler, , Criminal Law and its Administration, 362.Google Scholar
94 For instance the Turkish Criminal Code contains such provision in sec. 381.
95 The punishment prescribed for offences in secs. 317–9 is now 15 years. I do not know of any case where such penalty was in fact imposed.
96 For an example of such a case, see R. v. Kirby (1897) 31 I.L.T. 46 (Ir.), where the defendant injured his own cow with intent to cast suspicion on another person. The defendant was acquitted of an offence of causing damage, the court ruling that the only way of dealing criminally with such acts is through the offences of cruelty to animals. For another example of causing damage to property (though not property belonging to the defendant with intent to incriminate another person) see R. v. Newill (1836) 168 E.R. 1343.
97 Sec. 123 of the C.C.O. See Plesser v. A.G. (1965) (III) 19 P.D. 309.
98 This may be gathered from the analogy to the attempt to commit fraud (n. 90 above), but, as we have already shown, there is a tendency felt recently in Israel to give a broader application to attempt.
99 A justification for such an offence may be found by analogy with the already existing offence of destroying evidence in sec. 122 of the C.C.O.
100 (1967) (II) 21 P.D. 264.
101 Kenny, op. cit. 251, para. 204.
102 Silving, Helen, Constituent Elements of Crime, 74Google Scholar. It may be argued that it is different in the attempt (G. Williams, op. cit. 22) but as a general policy it is more desirable that the boundaries of the actus reus should be defined clearly by the legislator without them being influenced by the mental element.
