Reflections

Abstract

Reflections on the various articles which will be published in the criminal law and philosophy dedicated to my retirement.

1 Introduction

Retirement is often an opportunity to look back at one’s career. The conference dedicated to my retirement gave me more than that: it gave me an opportunity to rethink my views on various topics, on which I had written during my academic career. I am grateful to Alon Harel and Re’em Segev for granting me such an opportunity by organizing the conference. I was honored and touched by the attendance of my friends and colleagues Leora Dahan Katz, Michelle Dempsey, Mark Dsouza, Antony Duff, Shachar Eldar, Mordechai Kremnitzer, Sandra Marshall, Re’em Segev, Yoram Shachar, Doron Teichman and Thomas Weigend. I am grateful to them all for participating in the conference and for the lively discussions they provoked. All those who chose to write an article for the present issue of Criminal Law and Philosophy read my articles with care and engaged with my views thoroughly, at times critically. I am indebted to them for that. Further thanks are due to Mark Dsouza, Alon Harel and Re’em Segev for editing the present issue of Criminal Law and Philosophy.

Each of the articles in this issue deserves to be addressed thoroughly by a separate response. In the space available to me I only provide some reflections on the main claims developed by each of the articles.

2 The Structure of Criminal Liability

Three articles discuss various aspects relating to the structure of criminal liability. Segev’s article challenges the view that the criminal law should be structured according to different types of legal rules (hereinafter: “the Structure View”); Dsouza’s article, on the other hand, suggests to further develop the Structure View by extending the distinction between justifications and rights-displacement; Dahan Katz’ article, built on the Structure View as a starting point, focuses on the various theories underlying excuses.

In his article “The Structure of Criminal Law”,¹ Re’em Segev challenges the common view, according to which “criminal law should be structured in a way that allocates the conditions of criminal liability to different types of legal rules”. According to that view, distinctions should be made between offences and defences, on the one hand, and between different types of defences, such as justifications and excuses, on the other. Segev argues that the Structure View is incompatible with two general propositions. First, “the (criminal) law is not valuable in itself, but rather only as a means, and that what is valuable only as a means is not a constitutive element of foundational reasons”. A foundational reason (one that is not derided from a more basic reason) might, for example, require us to construct the criminal law “in a way that is optimal in terms of preventing unjust harm”. Second,

law in general, and the criminal law in particular, should be constructed in a way that reflects (the balance of) all the applicable reasons and not just some of them. Therefore, if there are both concerns regarding the moral status of actions and concerns that pertain to the moral status of agents that are pertinent to criminal law, as it is commonly assumed by adherents of the Structure View, every legal rule should reflect both of them.

I agree with Segev’s underlying assumption, that criminal law’s rules should reflect concerns of both the moral status of the action and the moral status of the agent. However, this does not mean that dividing the criminal law rules between offences and defences, and between justifications and excuses, as suggested by the Structure View, ought to be rejected. Concerns with regard to both the action and the agent could be, and indeed are, reflected in the rules relating to offences, to justifications and to excuses. The definition of the offence includes both the actus reus and the mens rea and as such reflects concerns with regard to both the action and the agent.² According to the prevailing view, justifications, which are primarily based upon the moral status of the action, apply only if the agent acts for the right reason.³ Excuses focusing on the agents include a normative threshold which relates to the action.⁴

Dividing the rules according to the Structure View is valuable as a means for achieving the various goals of the criminal law as a censuring device which prohibits, blames, condemns and punishes. By fulfilling its various goals, the criminal law not only protects victims’ rights and public interests from being harmed, it additionally infringes upon offenders’ rights. By criminalizing a conduct, the polity declares that the conduct poses a danger to values whose protection is required to ensure co-existence by guaranteeing individuals’ rights and other public interests, and therefore the conduct is wrong and ought not to be done. Criminalization infringes upon the freedom to act as one pleases of both law-abiding individuals who are inhibited by criminal prohibitions and of potential offenders. In bringing a criminal charge against the defendant, the polity calls her to account for her wrongful conduct. The criminal process during which the defendant is called to account is burdensome: the defendant has to struggle against the unequal power of law enforcement institutions. By convicting, the offender is condemned as a criminal who is to be blamed for her wrongful conduct; the condemnation infringes upon her dignity. In punishing the offender, the court proclaims, apart from deterrence considerations, that the offender deserves to be punished. The punishment infringes upon various basic rights of the offender, and mainly the freedom of movement that is infringed by imprisonment. The Structure View makes it possible to achieve the various goals of the criminal law and at the same time to guarantee offenders’ basic rights.

Offences, as opposed to defences, dictate the scope of criminalization by specifying which values are protected by the criminal law and the external boundaries of their protection. Conduct which satisfies all the elements of the definition of the offence, both the actus reus and the mens rea, infringes upon the value protected by the prohibition of the offence. The infringement might involve either victims’ basic rights (such as her right to life, to bodily integrity, to ownership over property) or public interests (such as the security of the State, the proper functioning of its basic institutions). When all the elements of the offence are satisfied, the actor is called to account before law enforcement institutions for infringing upon either victims’ rights or public interests. By contrast, in the absence of one of the elements specified in the definition of the offence, the conduct falls outside the scope of the criminal law. In such cases, the actor is not subject to the intrusive power of law enforcement institutions and she is free to act as she wishes.⁵ Therefore, offences are the threshold which has to be crossed in order to limit the individual’s freedom to act as she pleases and to subject them to the intrusive power of law enforcement institutions.

Defendants whose conduct satisfies the definition of the offence, and only they, are called to account before law enforcement institutions and are required to provide an explanation for infringing upon either victims’ rights or public interests protected by the prohibition of the offence. Their explanation might justify the infringement. Justifications are usually based on the balance between the defendants’ and the victims’ rights in emergency situations, such as self-defence justifying the killing of an aggressor to save life imminently endangered, or necessity (as a justification) which justifies sacrificing third party’s property to save life from imminent danger.⁶ In such cases the defendant is entitled to a formal acknowledgment that she was justified in sacrificing the victims’ rights.⁷ Nonetheless, and as opposed to cases where the elements of the offence are not satisfied, the victim suffered an infringement of her rights. Therefore, remorse is expected from those who had to infringe upon the victims’ rights, albeit justifiably.⁸

The conduct of defendants which unjustifiably infringes upon either victims’ rights or public interests is wrongful. Nonetheless, in exceptional situations it might be unfair to expect the defendant to avoid committing the wrong and to hold her culpable for the wrong. In such situations, defendants are excused. The fact that the conduct of the excused defendant was wrongful implies that although criminal liability should not be imposed, other legal tools might apply, such as preventive measures to cope with dangerous defendants,⁹ or a legal duty to compensate the victim (I will elaborate on the nature of excuses below while responding to Dahan Katz’ article).

As opposed to Segev, in his article “Justifications and Rights-Displacements”¹⁰ Mark Dsouza suggests further development of the Structure View by extending the distinction between power and justifications to all instances in which rights are displaced. Built on the distinction I have offered between power, which revokes the legal protection of the right, and justifications, which justify the infringement of the right protected by the criminal law,¹¹ Dsouza argues that the distinction ought not to be limited to Hohfeldian power, such as a constable’s power to arrest. The distinction should rather apply to “all persons acting within the (more expansive) realm of a rights-displacement—whether they be exercising a power, fulfilling a duty [as ‘legal executioners who are duty-bound to execute people duly sentenced to death’], or acting under a privilege [as the surgeons who are given consent to perform invasive surgery]”. In all such cases, those who are acting within the realm of rights-displacement “commit no pro tanto offence and need offer no justification, or indeed any other answer, to a criminal court for their actions”. The distinction between rights-displacement and justifications has, according to Dsouza, “important structural and practical implications”.

I agree with Dsouza that the distinction between what he terms “rights-displacement” and justifications should apply to “power”, “duty” and “privilege” in the Hohfeldian sense, and I am grateful to him for presenting the distinction more precisely. However, I believe that some cases analysed by Dsouza as cases of rights-displacement ought not to be included within the more expansive realm of rights-displacement.

Displacement of a right is an extreme way to restrict individuals’ rights. It implies that in specific circumstances the right ceases to be legally protected. Therefore, power, duty, privilege should be granted cautiously and be interpreted narrowly. Justifications, on the other hand, acknowledge that the right which is legally protected was infringed, although in the specific circumstances the infringement is justified. In fact, the distinction between legal power/duty/privilege and justifications is parallel to the distinction between offences and defences according to the Structure View, discussed above.¹² Granting a legal power/duty/privilege cancels the reasons for criminalization; as in the case of granting a power to arrest which cancels the reasons for criminalizing “false imprisonment” and therefore the conduct of a constable arresting a suspect falls outside the scope of the criminal law. Criminal law justifications, on the other hand, provide reasons that override those for criminalization. Thus, by killing an aggressor in order to defend one’s life, the defender infringes upon the right to life of the aggressor protected by homicide offences.¹³ The defender, who has to answer for infringing upon the aggressor’s right to life, must rely on the justification of self-defence and show that in the circumstances her right to defend herself against the unlawful aggression overrides the aggressor’s right to life.

According to Dsouza, when a constable uses reasonable force in the course of arresting a suspect, both the act of arresting and the use of force fall within the realm of rights-displacement: “V’s rights to personal liberty and against being assaulted had been displaced”. I believe that there should be a difference between the mere act of arresting, which indeed falls within the realm of rights-displacement, and the use of force in the course of arresting, which could only be justified by a criminal law justification.

In arresting, the suspect’s right to free movement is displaced and temporarily ceases to be protected by the criminal law. Although extreme, such a displacement is crucial for law enforcement institutions in order to be able to fulfil their tasks of both bringing defendants to answer for their crimes and protecting public safety. Revoking the legal protection of the right to bodily integrity even during an arrest, on the other hand, is too extreme. The right to bodily integrity is considered to be amongst the most fundamental rights, and legal systems afford significant protection to that right. The protection of the right to bodily integrity is revoked rarely, usually on the basis of personal autonomy, such as in cases of consent to invasive surgery. There is a reluctance to revoke the protection of the right to bodily integrity for “public needs”.¹⁴ A similar reluctance should apply to the use of force during an arrest. As opposed to arrest, displacement of the right to bodily integrity, as such, is not a crucial part of the task of law enforcement institutions. It is true that, when a suspect resists an arrest, it might be necessary to use force to overcome her resistance. Although the use of reasonable force might be justified, the legal system ought to acknowledge that the use of such force infringes upon the suspect’s right to bodily integrity, and the officer should be required to justify the use of such force by showing that the use of the force during the arrest was indeed reasonable. The reasonableness of the use of the force in such a context depends on conditions that are typical to justifications of either self-defence or defence of others. The use of force has to be necessary to enable arresting the suspect, it ought not to exceed the level of force needed for such a task, and flexible proportionality might also be required. It follows that, as in other cases of justifications, the constable is expected to regret that she has to use force during the arrest, albeit justifiably; the constable is not expected to regret that she uses her power to arrest the suspect.

According to Dsouza, one of the implications of distinguishing between rights-displacement and justifications relates to the primary forum for adjudicating. An administrative forum, rather than a criminal one, should be the primary forum for adjudicating pleas of rights-displacement; a criminal forum is the only forum for adjudicating claims of justifications. Right-displacement’s pleas should indeed be primarily adjudicated before an administrative forum. However, pleas of infringement of rights ought not necessarily be adjudicated before a criminal forum. The principle of ultima ratio, according to which, due to the intrusive power of the criminal law, criminal law should be turned to only as a last resort,¹⁵ should apply to the choice of the forum for adjudicating. When infringements of rights are not severe enough, either an administrative forum or a disciplinary one should be the primary forum for adjudication.

To clarify this point, let me relate to the example of a football game, as analysed by Dsouza. According to him, actions that go beyond the rules of the game might fall within a “zone of toleration” where no criminal sanction is threatened. In such cases, “a free-kick may be awarded against D’s team, and in more serious cases, D may also be ejected from the game”. The fact that there is no threat of criminal law leads Dsouza to conclude that “V’s decision to play the game displaces her right against physical contact not only when that contact falls within the strict rules of the game, but also when it falls somewhat beyond it, but within a penumbral ‘zone of toleration’”. Revoking the protection of the right to bodily integrity of participants in a sports game is based on personal autonomy: by consenting to participate in the game, the participants waive, to some extent, the legal protection of their bodily integrity. The consent to participate in the game implies both that the participants are obliged to play according to the game’s rules and that they are protected by those rules. Physical contact that goes beyond those rules goes beyond the participants’ consent as well, and therefore should be seen as infringing the right of bodily integrity. However, when the infringement is not severe, and therefore it falls within the “zone of tolerance”, the infringement of the right to bodily integrity does not need to be adjudicated by a criminal forum. Disciplinary steps might serve as the proper response for such infringement.

Building on the Structure View as a starting point, in her article “On what Underlies Excuse”,¹⁶ Leora Dahan Katz focuses on the theory underlying exculpatory excuse. She presents various views as to what “might explain and justify the exculpation of defendants in cases of excuse” and argues that the various views are, at times, “inconsistent or incoherent”. The inconsistency stems from the “tendency to offer moral blameworthiness or blamelessness, as well as the unfairness of expectations of compliance, as interchangeable or compatible ways of capturing what underlies excusing conditions, though in fact, these different organizing ideas may lead in different directions, depending on how we understand them”.

Dahan Katz’s thorough discussion succeeds in revealing some inconsistency between the various theories underlying excuses. However, the apparent inconsistency between “moral blameworthiness” and “the fairness of expectations” could be resolved by distinguishing between three different senses of the notion of “culpability” (a notion which better fits the criminal law than “moral blameworthiness”). Culpability in its narrow sense relates to the mental element required for the offence, either mens rea or in exceptional circumstances negligence. It reflects a willingness to harm the value protected by the offence (intention), or at least a willingness to take an unreasonable risk of harming it (recklessness), and in exceptional cases lack of caution with regard to values whose protection requires special caution (negligence). The mental element assigns a criminal nature to the wrongdoing, as revealed by the Latin maxim actus non facit reum nisi mens sit rea. Culpability in this sense is included in the definition of offences and it is an integral part of “offences” as defined by the Structure View. In the absence of the mental element specified in the offence definition, the conduct falls outside the scope of the criminal law.

In a broader sense, culpability relates to the capacity to understand the nature of the criminal law demands and to behave accordingly. Culpability in this sense underlies what Dahan Katz terms “‘exemptions’—where… the claimed defense negates the responsibility of the agent, that is, denies that the defendant is a responsible agent at all (e.g. infancy and insanity)”. According to her, it is not clear whether exemptions “should not be considered excuses, or—and this seems the more common view—whether [exemptions are] consistent with the category that excuse is supposed to capture, and simply refer to different subsets of excuse”. I prefer the view that the lack of capacity to understand the demands of criminal law and to behave accordingly, as in cases of insanity and infancy, should be a separate category from “excuses” such as duress or excusing necessity. Lack of capacity negates responsibility in a more fundamental sense than duress and necessity. Duress and necessity leave the defendant who finds herself in a pressing situation a limited choice and “address D [the defendant]’s own reasons for action, not her capacity for reasoning”.¹⁷ Those who lack capacity to comply with the demands of the criminal law ought not to be subjects of the criminal law at all. Therefore, culpability in the sense of capacity to comply with the law should indeed be “a restrictive constraint on the just imposition of criminal responsibility” as Dahan Katz claims. Criminal liability ought not to be imposed on defendants who lack such capacity.

Excuses like duress or excusing necessity are based on a different notion of “culpability”: a normative legal notion which requires us to evaluate whether complying with the demands of the criminal law could fairly be expected. Culpability in this sense is relevant mainly to cases of conflict of interests, where the only way to save the defendant’s own interests which are in imminent danger is by sacrificing those of an innocent person.¹⁸ In such cases, the defendant has a choice, though a limited one, whether to save her interest at the expense of the interests of an innocent person or to avoid sacrificing the interest of the innocent person at the risk that her own interests will be harmed. Such a choice means that when the defendant knowingly chooses to sacrifice the interest of an innocent person to save her own from an imminent danger, culpability—in the sense of both the mental element and the capacity to comply with the criminal law—can be attributed to her. The defendant’s choice in such cases has to be evaluated from different angles which take into account both the balance of the interests involved and the pressing situation in which the defendant found herself.

Criminal law usually justifies the choice to sacrifice the interest of substantially lesser value, even when it belongs to innocent persons,¹⁹ as in cases where, in order to save her life which is in imminent danger, the defendant causes damage to property of an innocent person. In such cases, necessity as a justification justifies causing the damage. By contrast, the criminal law does not approve the choice to sacrifice interests of equal value: no one is entitled to prefer her own interest to an interest of equal value of an innocent person. Sacrificing the interest of an innocent person in order to save one’s own interest of an equal value is criminally wrong. In such cases a further evaluation is required, whether it would be fair to blame the defendant for her wrongful choice, which was made in a situation of either duress or necessity under pressure to save her imminently endangered interest. That evaluation is determined by the fairness of the expectations.

What can fairly be expected of defendants in situations of either duress or necessity is culturally sensitive. The example of sacrificing the life of an innocent person in order to save one’s own life clarifies this point. Based on the deontological constraint against knowingly killing innocent people, various legal systems in the common law tradition deny either necessity or duress when the defendant sacrifices an innocent person’s life as the only way to save her own imminently endangered life.²⁰ The denial of either duress or necessity implies that those systems reached the conclusion that defendants can fairly be expected to avoid killing an innocent person even when it is the only way to save their own life. Defendants who sacrifice the life of another are blamed, and criminal liability, although mitigated, is imposed. In civil law legal systems, on the other hand, either duress or excusing necessity is available even when the defendant sacrifices an innocent person’s life to save her own.²¹ Granting an excuse in such cases is based on the view that the instinct for self-preservation makes it “unfair” to expect that a person whose own life is at stake should avoid saving it in order to avoid sacrificing the life of an innocent person. Sacrificing the life of an innocent person is indeed wrong (both morally and criminally), but the defendant should not be blamed for that wrong and should be excused.

A wider consensus among various legal systems exists with respect to cases where the defendant sacrifices the property of an innocent person in order to save her property which is of an equal value. Even when the property is meaningful to the defendant, and the defendant is under pressure to save it, various legal systems demand that she avoids sacrificing the property of equal value of an innocent person just in order to save her own.²² This view holds that defendants can fairly be expected to resist the pressure to save their own property and avoid sacrificing the property of equal value of an innocent person. Culpability in the sense of fair expectations is attributed, and the defendant is blamed for the wrong involved in the sacrifice of the innocent person’s property. The pressure to save one’s own property can serve only as a mitigating factor. It should be noted that a defendant may save her property at the expense of an innocent person’s property when the property sacrificed is of substantially lesser value. In such cases, the sacrifice of the innocent person’s property might be justified and necessity as a justification rather than as an excuse might be granted.²³

While discussing my claim that “excuses should not, as a rule, be granted to soldiers or to other state officials in their capacity as state officials…”,²⁴ Dahan Katz concludes that “On Gur-Arye’s view, even if one’s moral culpability is truly compromised in a given case, the expectation that the offender avoid wrongdoing, and thus the imposition of criminal liability and punishment in such case, need not be unfair [emphasis added]”. The distinction between the various senses of culpability, clarified above, does not support the assertion that imposing criminal liability on public officials would be fair even when their “moral culpability is truly compromised”. Public officials will not be held criminally liable in the absence of the mental element of the offence (lack of culpability in its narrow sense); nor will they be held liable when their capacity to comply with the demands of criminal law is compromised, even temporarily and while on duty, as when the official acts under psychotic attack (lack of culpability in a broader sense). Public officials might be denied excuses such as necessity as an excuse or duress based on the third sense of culpability relating to the fairness of the expectations. The denial of the excuse is based on the assertion that it is fair to expect that public officials will cope with the dangers involved in fulfilling their tasks. Thus, for example, a firefighter is expected to save those who are caught in a fire, whenever there is a chance to save them, even when by saving them she risks her life. A firefighter can similarly fairly be expected to refrain from saving her own life while on duty when the only way to do that requires sacrificing the life of an innocent person, as when the firefighter pushes an innocent person towards the fire in order to escape herself from the fire. In such cases, the firefighter can fairly be blamed and criminal liability should be imposed, even in legal systems that grant an excuse to those who sacrifice the life of an innocent person to save their own.²⁵

There is an exception to the claim that “excuses should not, as a rule, be granted to… state officials in their capacity as state officials… [emphasis added]”. Putative justification—either self-defence or necessity based on a mistake with regard to the justifying circumstances—might be granted to officials while on duty even when the defence is classified as an excuse,²⁶ provided that the mistaken belief was reasonable. The standard of reasonableness should apply to officials even when an honest mistake is sufficient to grant putative justification to a private person,²⁷ and it should be determined according to the officials’ tasks. While fulfilling their tasks, officials should fairly be expected to reasonably evaluate the circumstances before turning to either self-defence or necessity as a justification.

3 A Duty to Report Crime and to Arrest Suspects

Two articles discuss the offence of failing to report a crime, each from a different perspective. The article by Duff and Marshall derives the justifiability of a legal duty to report crime from the premise that in an ideal democratic republic citizens are responsible for the enterprise of their criminal law (the article further examines whether citizen responsibility entails a citizen’s power to arrest when the police is malfunctioning). Teichman’s article analyses the offence of failing to report a crime on the basis of an evidentiary theory of substantive criminal law, designed to relax the burden of proof by enacting additional easy-to-prove offences.

In their article “Reporting Crimes and Arresting Criminals: Citizens’ Rights and Responsibilities Under Their Criminal Law”²⁸ Antony Duff and Sandra Marshall sketch a normative conception of a democratic republic as “an attempt to depict a recognisable ideal to which we can aspire”. The law in such a republic

is our law as citizens; it is a law that we make for ourselves, and thus own. It follows that it is a law in relation to which we are, as citizens, active rather than passive – agents rather than mere subjects: if the law is our law, its enterprises must be our enterprises – enterprises in which we participate, and for which we are responsible.

The responsibility for the enterprise of the criminal law implies that citizens have a civic responsibility to report crimes to the police. Having a civic responsibility provides a reason to create a legal duty to report crimes, although countervailing reasons support a more modest legal duty to report crimes.

Duff and Marshall are aware that they sketch the ideal of a democratic republic in “communitarian terms”. To adjust it to liberal values they assert that.

a communitarian polity can define its collective enterprise in terms of familiar liberal values such as those of individual liberty and privacy: it can, that is, aim to leave its members extensive spheres of personal freedom, of “private” life into which the polity will not intrude, within which they can pursue their own diverse conceptions of the good life.

In contrast to Duff and Marshall, I believe that a commitment to liberal values entails different relations between the enterprise of the criminal law and citizens. Those relations require limiting not only the legal duty to report crimes, but also the civic responsibility to do so.

Criminal law, which reflects the shared values that define us as a polity and ensures our co-existence by guaranteeing individuals’ rights and other public interests, can indeed be perceived as “our law”. We should obey “our law” not just—and not even mainly—because we are legally obliged to obey it, but rather, out of a solidarity towards our fellow citizens that is necessary for living together. However, criminal law functions through institutions endowed with powers that can be exercised uniquely by them. Parliament, and only Parliament, has the power to enact criminal law prohibitions.²⁹ Law enforcement institutions, including the judiciary, and only such institutions, have the power to call offenders to public account. The rule of law constraint, which requires that we reserve to these authorized institutions the power to enact criminal law prohibitions, the power to call to public account and the power to punish, guarantees that criminal law restrictions on the personal freedom and other basic rights of offenders are carefully considered and that they do not exceed what is necessary to ensure co-existence according to the polity’s shared values.

Even if we adopt the view of Duff and Marshall that in an ideal democratic republic the citizens delegate their “agency and the authority that goes with it to officials: to, in the case of criminal law, police, prosecutors, judges, correctional officials as well as to legislators”, a commitment to liberal values requires that this delegation relieves citizens of their responsibility to the enterprise of the criminal law. It is common to assume that the exercise of official power often limits personal freedom; which is indeed the case with regard to various kinds of official power in general, and in particular with regard to the power exercised by criminal law enforcement institutions. However, there is a significant sense in which granting, or delegating, the power to officials extends the sphere of personal freedom. When specific tasks are granted/delegated to officials, individuals are freed from the burden of performing those tasks. Expecting that individuals be responsible “for the ways in which the officials exercise their delegated powers” significantly restricts the “spheres of personal freedom… within which they can pursue their own diverse conceptions of the good life”.

Personal freedom requires leaving citizens to decide if and to what extent they are willing to be engaged in the enterprise of the criminal law. Citizens can exercise their agency and choose to “be active rather than passive” in relation to the enterprise of the criminal law. They can attempt to influence the scope of criminalization, either directly by running for Parliament or indirectly by lobbying or acting through the media. They can assist law enforcement institutions by reporting crimes or by assisting an officer in arresting suspects. They can “ensure that officials are held properly accountable for the ways in which they exercise” their power by exercising public control through mass media and demonstrations. Citizens might further be encouraged to be engaged in the enterprise of “their” criminal law, but the choice whether to engage in those activities should be theirs (the citizens’). Having such a choice is an important part of their autonomy, which is essential for personal freedom. Having a choice could even be consistent with the conclusion of Duff and Marshall, that citizens “should use their discretion in exercising” their civic responsibility to report crimes (emphasis added). A discretion as to if, how and when to report crimes might better fit choice rather than responsibility.

Only in exceptional cases should citizens have a civic responsibility, rather than a choice, to be engaged with the criminal law enterprise. One such case is the civic responsibility to report crimes. As an exception, a civic responsibility to report crime ought to be justified by special considerations. Some of the considerations discussed by Duff and Marshall with regard to the legal duty to report crimes should be relevant to the civic responsibility to report as well. However, even under this view, the legal duty to report crime should be more limited than the civic responsibility to do so. Imposing a criminal law duty to act, rather than a duty to refrain from acting, significantly restricts personal freedom and exposes individuals to the threat that their basic rights will be infringed by law enforcement institutions. Such a threat should be considered while crafting the scope of the duty. I have discussed the proper scope of the legal duty to report crimes in the articles taken by Duff and Marshall as a starting point.³⁰

In examining whether their view should be extended to a citizen’s power to arrest, Duff and Marshall believe that the rationale for such a power,

has some plausibility: we, as citizens, delegate various powers to the police, including powers to investigate alleged offences and to arrest alleged offenders, but that delegation is not complete; we retain the right, and responsibility, to take those powers back into our own hands if the police fail to make proper use of them.

However, they are aware that citizen’s arrest “raises the spectre of ‘vigilantism’—of lay citizens violently ‘taking the law into their own hands’”. They leave open the “key question about ‘vigilantism’… whether it can be justified only when it is intended to feed into and assist a functioning criminal justice system: or could it sometimes be justified as replacing a system that is in some serious way malfunctioning?”.

The ideal of the monopoly of violence, according to which only the state can legitimately wield violence,³¹ provides a negative answer to the “key issue”. Out of a commitment to liberal values, legal systems in democratic republics usually adopt a wider view of the ideal of the monopoly of violence, one that requires reserving the power to infringe upon individuals’ basic rights to public officials, who may exercise this power only when it is explicitly granted by the legislator, and only to the extent it is granted, as implied by the rule of law constraint. The rule of law in this context extends the sphere of personal freedom so that it can be restricted only under such an explicit power, granted (delegated) to officials, whose power is controlled by both constitutional constraints and administrative review. Only in cases of emergency, when no officials are there to exercise their power, may individuals legitimately use force, as in the case of self-defence when individuals justifiably use force to defend themselves from an imminent danger.

The same rationale applies to arrest, which infringes upon basic rights—principally the right to personal freedom and to freedom of movement.³² Police officers and only police officers can legitimately exercise their power to restrict personal freedom by arresting suspects in accordance with the specific powers granted to them by the legislator and on the specified conditions. Citizens can assist the police; but they ought not to replace the police. Only in an emergency, when the police are not there and in a limited range of circumstances, can citizens justifiably arrest a suspect.³³ In non-emergency situations, citizens who believe that the police are “malfunctioning” could, and should, turn to alternative routes in order to ensure the proper functioning of the police. Citizens can exercise public control over the police in an attempt to cause the police to function more properly; citizens can turn to the authorized courts (either constitutional or administrative courts) and demand that the courts control the ways in which the police exercises its power to arrest.

A different perspective of the duty to report crime is provided by Doron Teichman in his article, “Evidentiary Graded Punishment: A New Look at Criminal Liability for Failing to Report Criminal Activity”.³⁴ Teichman analyses the offence of failing to report crime on the basis of “an evidentiary theory of substantive criminal law”, according to which, in order to achieve more convictions, the standard of proof—beyond a reasonable doubt—is relaxed by “enacting alternative easy-to-prove offenses”. The sanctions for those offences are lower and as a result “a de-facto proportional criminal liability regime” is created. Within such a regime.

offenders whose guilt is proven beyond a reasonable doubt are convicted of a crime that reflects their actual conduct and are subjected to harsh punishment, while offenders whose guilt is proven to a lesser degree are convicted of an evidentiary crime that reflects the probability that they were culpable, and are punished less severely.

In Teichman’s view, offences imposing a duty to report crimes (as well as offences imposing a Good Samaritan duty), carrying a relatively lenient punishment, “fit into a framework of proportional criminal liability”. Such offences may “serve as evidentiary crimes” for cases of complicity when the “precise relationship [of the accomplices] to the commission of a given crime cannot be proven beyond a reasonable doubt, even if they are likely to be associated with it”; or when “there is evidentiary uncertainty as to the defendant’s state of mind”. In a jurisdiction that “imposes a duty to report crimes, such cases become easy convictions since any involvement in the criminal plan automatically triggers the duty to report that plan”. The view that “reporting duties are transformed into a form of accomplice liability” is, according to Teichman, supported by the case study he conducted in Israel, which “demonstrates that the vast majority of [the cases] do not deal with the paradigmatic situation involving an innocent bystander, but rather, with people who are linked in some way to the commission of the plotted crime”.

The evidentiary theory is challenging. However, I am not going to address the challenge. I will rather raise some questions with regard to the classification of the offence of failing to report crime as an evidentiary offence, even under the evidentiary theory.

According to Teichman,

if one views the offenses [imposing either a duty to reform crimes or Good Samaritan duty]… as meriting criminal responsibility, the evidentiary theory does not alter the normative debate… The evidentiary theory does come into play, however, if one views such offenses as unjustified. Under that normative assumption, further analysis of the evidentiary role of the offenses is required before one can determine their normative standing.

Criminalizing otherwise “unjustified” offences in order to relax the burden of proof of other, more serious, offences might be accepted, under the evidentiary theory, with regard to proxy offences. The commission of proxy offences “is tied to the commission of some other crime, which is the actual target of the criminal justice system” such as the example mentioned by Teichman of “possession of burglary tools” as a proxy for attempted burglary. By criminalizing possession of burglary tools, criminal liability is extended to a preliminary stage beyond that of an attempted burglary. The extension of liability to preliminary stages aims at protecting the same value as the value protected by the complete offence. Burglary, attempted burglary, and possession of burglary tools are all property offences aimed at protecting ownership over property as a main value, and at preventing the potential risks of violence during the burglary. Extending criminal liability to preliminary stages beyond that of attempt requires special considerations; evidentiary considerations might support such extension.

Criminalization of failing to report a crime is different. Criminalizing omissions (a failure to act) infringes upon personal liberty more significantly than criminalizing acts, and therefore, as Teichman clarifies, “[c]riminal liability for omissions is highly restricted, and relatively rare”. Various considerations, including some of those discussed by Duff and Marshall,³⁵ militate against criminalizing the failure to report crimes. The overall conclusion that the offence of a failing to report crime is unjustified (as required by the evidentiary theory) is based on the significant infringement of personal liberty. It is doubtful whether evidentiary considerations aimed at targeting accomplices are sufficiently weighty as to overcome the significant infringement upon personal liberty.

Evidentiary offences require a link between those offences and the targeted ones, such as the link between possession of burglary tools and attempted burglary clarified above. There is no such link between the offence of failing to report a crime and accomplices’ liability. Imposing a criminal duty to report crimes aims to help law enforcement institutions to fulfil their tasks in apprehending offenders and preventing crime. The offence of failing to report a crime belongs to the class of offences that aim to protect the legal process from “obstruction of justice”. Accomplice liability, on the other hand, is a derivative liability that aims to extend the protection of the value protected by the main offence.

“Targeting” accomplices in cases of uncertainty should, and can, be achieved through other offences. One such offence is that of “providing means for the commission of a felony” defined in sec. 498 to the Israeli Penal Law, 1977 as follows:

498. (a) Any person who gives another tools, materials, money, information or any other means, knowing that they may directly or indirectly be used for the commission of a felony or facilitate its commission, is liable to three years imprisonment.

The offence enables imposition of criminal liability on accomplices in cases of evidentiary uncertainty as to their “precise relationship to the commission” of the felony. Convicting a defendant who provided the means for committing an offence requires proof that the means provided could have facilitated the commission of the felony; it does not require proof that those means actually contributed to the commission of the felony, nor that the felony itself was committed.³⁶ Such an offence can additionally overcome the uncertainty as to the accomplice’s state of mind. General knowledge that the means provided might facilitate the commission of a felony is required to be proven; there is no need to prove an intent/purpose to aid and abet the commission of the offence, nor a specific knowledge as to which felony it might facilitate. A link, similar to that required under the evidentiary theory between the evidentiary offence and the targeted offence, exists between the offence of providing means for the commission of a felony and accomplice liability for the felony. The aim of both is to grant a wider protection to the value protected by the prohibition of the felony, by extending criminal liability beyond that of the principal offender who commits the felony herself to accomplices who contributed to the felony (liability that is imposed through the doctrine of complicity) as well as to preliminary stages of providing means that have the potential to facilitate the commission of the felony (liability imposed via a specific offence). It follows that the offence of providing means that can facilitate the commission of a felony provide a better fit for the evidentiary theory: it can be perceived as an evidentiary offence designed to target accomplices in cases of evidentiary difficulties.³⁷

The basic assumption under the evidentiary theory is that the evidentiary offences are “easy-to-prove offenses”. The offence of failing to report crimes is far from being easy to prove. The duty is imposed solely on the basis of mental elements: knowledge that someone else plans to commit a felony. In the absence of external circumstances, it is not easy to prove knowledge. Proving knowledge that someone else plans to commit a crime is even harder, as those who plan to commit crimes usually do not make their plots public. Due to the difficulties of proof, it is not surprising that, in most cases, conviction of the offence of failing to report a crime is based on external circumstances from which knowledge could be inferred. Being a hard, rather than an easy, offence to prove could explain the results of the case study conducted by Teichman which “demonstrates that the vast majority of [the cases]… deal with… people who are linked in some way to the commission of the plotted crime”. In such cases, proving the knowledge that someone plans to commit a crime, as required for the offence of failing to report a crime, is based on external circumstances—on the defendant’s involvement in the commission of the plot. I assume that it was only in the minority of cases that knowledge of a plan to commit a felony of those who have not been linked to the felony was successfully proved.

In this context it is important to note that the fact that in cases when the defendant was linked to the commission of the felony it is easy to prove her knowledge of the “plotted” offence does not turn the offence of failing to report the crime itself into an “easy-to-prove offense” as required by the evidentiary theory. Classifying an offence as an “easy-to-prove offense” should depend on the elements specified in the definition of the offence rather than on concrete situations that could easily fit the offence. Thus, for example, the offence of possession of burglary tools is easy to prove; attempted burglary, which requires proving both a purpose to burgle and conduct that crossed the attempt threshold, is not. The fact that there might be situations, such as where the defendant is caught at the scene while trying to use the burglary tools, in which it is easy to prove the attempt does not turn the attempt into an “easy-to-prove-offense”.

4 The Voice of the Criminal Law

In her article “The Voice of the Criminal Law”,³⁸ Michelle M. Dempsey engages in “the debate between Duff and Gur-Arye”³⁹ and addresses the question “[i]n whose voice does the criminal law speak, and why does it matter?”. She clarifies that the question requires distinguishing between “three important” issues: the issue of legitimacy which relates to the conditions needed in order to “view the criminal law as speaking for the polity”; the issue of addressees who are bound by the criminal law, which in turn raises the question “to whom does the criminal law speak?”; and the issue of beneficiaries, which focuses on the question “for whose benefit does the criminal law speak?”.

While addressing the issue of legitimacy, Dempsey concludes that “[l]egitimate criminal law speaks as the polity and, moreover, it speaks to the polity, and for the polity”. The identity of the beneficiaries is, according to her,

[t]he key debate between Duff and Gur-Arye… [I]t asks, “[f]or whose benefit does the criminal law speak?” Duff believes the answer is, paradigmatically, the criminal law speaks for the benefit of the citizens of the polity whose criminal law it is. Gur-Arye believes the answer depends on whether the criminal prohibition targets violations of the polity’s civil order (e.g., tax evasion, evasion of miliary service), or whether it targets conduct such as murder or rape. In the latter kinds of cases (mala in se offenses), Gur-Arye thinks the criminal law speaks for the benefit of all humanity.

Dempsey supports the claim that “in criminalizing conduct such as murder or rape, the criminal law also speaks to and for the benefit of all of humanity”. To reconcile this claim with the issue of legitimacy, Dempsey suggests that

insofar as the criminal law speaks for the benefit of all of humanity in criminalizing conduct such as murder or rape, it is better understood, primarily, as offering a promise of protection from such wrongs… [T]he promise of protection typically extends only to those who enter the polity’s territorial borders (unless the polity claims universal jurisdiction).

Parts of the debate between Duff and myself can indeed be resolved by the distinctions offered by Dempsey between the three issues of legitimacy, addressees and beneficiaries, and I am grateful to her for illuminating that. I share Dempsey’s basic premise (which echoes Duff’s view) that the criminal law speaks as an agent of the polity “to the polity and for the polity”. However, a polity’s criminal law is not authorized to speak “for the benefit of all humanity” as Dempsey interpreted my view (unless, as Dempsey rightly noted, the polity exercises universal jurisdiction). There is a significant difference between speaking for the benefit of human beings (my view), and speaking for the benefit of all humanity.

To clarify the difference let me rely on Duff’s basic premise that the criminal law reflects the “shared values that define us as a” political community.⁴⁰ In liberal democracies the shared values reflected by the criminal law should include the commitment of the polity to protect the basic human rights of all human beings within its jurisdiction, whether they are citizens, tourists or even trespassers. A legitimate criminal law should express such a commitment, through the idea that it speaks for the benefit of citizens and noncitizens alike, by addressing all those who violate within the polity’s jurisdiction what we owe to each other qua human beings (as in cases of murder and rape). By contrast, legitimate criminal law cannot claim to have a jurisdiction for the benefit of all humanity. Criminal law requires a political community, and the primary jurisdiction of the criminal law is over offences committed within the polity’s territory.⁴¹ Even when the criminal law of a polity exercises universal jurisdiction, its jurisdiction is limited to specific international offences, such as genocide or crimes against humanity. While exercising universal jurisdiction, the criminal law does not speak in the name of the polity and for the polity; rather, it speaks as an agent of the international community and in the name of the international community.⁴² The distinction in this context is between domestic crimes, like murder or rape, the commission of which violates what we owe to each other as human beings, and international crimes, like genocide or crimes against humanity, the commission of which violates universal values that harm the international community as a whole.

Speaking for the benefit of human beings, rather than “of all humanity”, is consistent with Dempsey’s additional claim, that “the character of the political community in which the wrong is committed can inform the character of the wrong. So, too, a political community’s history can inform the character of a wrong”. I agree. Although the criminal law should reflect the polity’s commitment to protect human rights, the scope of protecting those rights is influenced by the polity’s own values that identify it as a polity, and as a result, offences protecting human rights are not universally uniform. Such offences can reflect either the “character of the political community” or its “particular history”. However, I believe that the examples of domestic violence and hate crimes which are analysed by Dempsey in order to clarify her claim should be evaluated more cautiously.

According to Dempsey, domestic violence in its strong sense, which “has a tendency to sustain… patriarchal structural inequalities”, only exists “within a political community that has (at least to some extent) a patriarchal character. In a wholly non-patriarchal culture… the character of the wrong of domestic violence committed in that political community would be different”. Similarly, “in a non-racist political community it would still be possible for cross-racial violence to exist: but the character of the wrong would differ considerably from what we now understand as the wrong of racist hate crime as it is committed in racist political communities… This is so because part of what constitutes the character of racist hate crime in a racist polity is the fact that such a wrong tends to sustain or perpetuate racism in that community”.

Dempsey’s claim that, in a non-racist community, the character of cross-racial violence is different from the same violence in a racist community would have been right if there were indeed a “non-racist community”. However, even if a political community perceives itself as a non-racist community, it is doubtful whether that community is indeed a “non-racist community”. Racial convictions are at times hidden so that it is not always easy to realize that members of the polity hold those convictions, or that they are motivated by racism. Racial hatred, based on those hidden convictions, might erupt suddenly, as a response to various triggering events. Hidden racial convictions might be more dangerous than racial hatred expressed openly. Expressing racial hate can be targeted directly not only, and even not mainly, by the criminal law, but by additional means, including public condemnation and education. Therefore, even within a polity which perceives itself as a “non-racist society”, racist hate crimes should be criminalized in order to prevent the eruption of racial hatred that might in the long run sustain racism.

Similar, although not identical, reasoning might apply to domestic violence in its strong sense. Even in a non-patriarchal culture, domestic violence in concrete cases might be motivated by a desire to sustain patriarchal relations within the particular family. In such cases, the domestic violence violates the non-patriarchal culture shared by most members of the polity; as such it might even be perceived as worthier of condemnation.

Criminalizing domestic violence or racist hate even in a polity which perceives itself as a polity with a non-patriarchal culture or as a non-racist community, respectively, might strengthen Dempsey’s claim that in criminalizing these offences the criminal law “can reconstitute the character of the political community in valuable ways”. Condemning inequalities that stem from either a patriarchal structure or racist hate in concrete cases would reconstitute the character of the polity as a polity which is committed to guaranteeing equality, even where a patriarchal structure or racism are not perceived as parts of the polity’s culture.

5 Dignity of an Innocent Agent

In his article “Human Dignity and the Innocent Agent”,⁴³ Shachar Eldar challenges the common view, according to which there is no difference between committing an offence by the use of a mechanical device or by an animal and committing it through an innocent agent. Eldar argues that the common view “grossly undervalues the violation of the dignity of the innocent agent [in its Kantian sense] whom the perpetrator has turned into an instrument for committing criminal acts”. The dignity of the innocent agent is violated by “the exploitation to which they were submitted, coupled with the knowledge that they took part, even if unwittingly, in committing crimes, [which] will remain a distressing shadow cast across their life story”. Eldar concludes that the criminal law should protect the dignity of innocent agents, and discusses three possible mechanisms for doing so.

The first is to criminalise the violation by creating an independent offence that prohibits the use of an innocent agent merely as a means of committing an offence. The second is to define perpetration by means of an innocent agent as an aggravated mode of committing an offence compared to direct perpetration or by means of an inanimate weapon. The third possibility is to recognise the use of an innocent agent in the commission of the offence as an aggravating factor in sentencing.

According to Eldar, although criminalizing the violation of the innocent agent’s dignity by creating an independent offence “has the advantage of emphasising the wrongdoing inherent in using others merely as a means to perpetrate a crime… it is the least practical of the three”. The second option, “determining that perpetration through innocent agents is an aggravated mode, expresses more robustly the link between the violation of the innocent agents’ dignity and the criminal acts that contributed to that violation”. However, such an option might be inconsistent with a legal system that either “classifies some instances of using innocent agents as procurement or solicitation and treats them outside the innocent agency doctrine” (like the UK) or expands the doctrine of innocent agent “to include instances of causing others to act without using them merely as a means and violating their dignity” (like the US). In systems such as these, whenever the dignity of the innocent agent is violated, the violation should be an aggravating factor in sentencing irrespective of how the doctrine of innocent agent is treated.

I share Eldar’s view that committing an offence through an innocent agent typically violates the innocent agent’s dignity, and that the criminal law should protect the dignity of the innocent agent against such violation. I believe that the right way to do so is by defining “perpetration by means of an innocent agent as an aggravated mode of committing an offence”. This is not because practical reasons militate against creating an independent offence, and despite the fact that classifying the violation of the innocent agent’s dignity as an aggravating factor in sentencing makes it easier to adjust the aggravation of punishment to the various ways in which legal systems classify cases of committing an offence by means of another. Rather, there are both theoretical and conceptual reasons for protecting the dignity of the innocent agent through an aggravated mode of committing an offence.

While discussing the debate as to whether “harm” or “dignity” ought to serve as a basic principle for criminalization, Eldar maintains that.

the criminal law does not include an independent offence of violating human dignity either in the Kantian or in any other sense, and for good reasons. Because of its intrusive nature, criminal law is not the appropriate response to every instrumental interaction where one person violates the dignity of another by treating them merely as a means.

According to him, “the use of innocent agents as a means for committing a crime is grave enough that criminalising it will be consistent with the non-criminalisation of many everyday instances of dignity violations”. The fact that violating the dignity of an innocent agent is “grave enough” does indeed justify protection of the innocent agent’s dignity by the criminal law. However, in order to choose the right mechanism for protecting the dignity of the innocent agent, the unique nature of committing an offence by an innocent agent ought to be taken into account.

The dignity of the agent is not independently violated; rather, it is violated by using her as a tool for committing a crime. As Eldar himself notes, violation of the innocent agent’s dignity stems from both “the exploitation” of the agent and the knowledge that she “took part, even if unwittingly, in committing crimes, [which] will remain a distressing shadow cast across [her] life story”. The nature of such a shadow and its intensity depend on the nature of the value protected by the crime itself: there is a difference between using an innocent agent as a means to commit murder and using her as a means to steal. Protecting the dignity of the innocent agent via the criminal law should express the close link between the value protected by the offence committed by the innocent agent and the dignity of the agent. An independent offence prohibiting the use of an innocent agent as a mere means does not express such a link. A factor that aggravates only the punishment, on the other hand, does not treat the dignity of the innocent agent as a “value” that deserves to be protected, although not as an independent value, by the criminal law.

Aggravated offences are tailored to express the link between the value protected by the offence and the value of dignity infringed by the use of innocent agent as a mere means to commit that offence. These offences protect the value of the basic offence as an independent main value; additional values violated by the commission of the offence, which in themselves might not justify criminalization, aggravate the basic offence. To clarify the nature of aggravated offences, theft from an employer can be taken as an example.⁴⁴ Theft violates the value of ownership over property. The fact that it was the employer’s property additionally violates the trust between employer and employee. The criminal law does not protect trust relations between employer and employee as such, and there is no independent offence of violating such trust. However, when a violation of trust is caused by theft, it bestows upon the theft an aggravated nature. A similar analysis might justify protecting the dignity of the innocent agent even though as a rule the criminal law does not criminalize violation of dignity as an independent value. In cases of committing an offence through an innocent agent, the main, independent, value that has been violated is the value protected by the offence committed by the agent. The use of the innocent agent as a means for the commission of that offence additionally violates the dignity of the innocent agent and, as such, bestows an aggravated nature on the mode of committing the offence.

It is important to note the uniqueness of the aggravated mode of committing an offence by an innocent agent in comparison with other aggravated offences. The values violated by an aggravated offence—both the main value and the aggravated value—usually relate to the same victim, as in the case of theft from an employer. In such cases, the employer is the victim, and both her ownership over her property (main value) and the trust between herself and her employee (the aggravated value) were violated. By contrast, in cases of committing an offence through an innocent agent there are two victims: the victim of the basic offence who suffers the violation of the value protected by the offence, and—as Eldar notes—the innocent agent who “is victimised by the defendant” and suffers a violation of her dignity (the aggravated value). The fact that the aggravated value (the dignity of the innocent agent) relates to a different victim does not undermine the rationale of aggravated offences, namely that additional values violated during the commission of the basic offence can endow the basic offence with an aggravated nature even though the additional values are not criminalized as such. Similar reasoning supports the conclusion that, in situations in which “the injury to the dignity of the innocent agent is arguably graver than the injury to the intended victim of the offence”, as claimed by Eldar, the graver violation of the dignity of the innocent agent should still be classified as an aggravated value. Classifying a value as an aggravated value, rather than as the main value protected by the offence, does not depend on the gravity of the violation of the value, but rather on whether the criminal law protects it as an independent value or only as a dependent value which endows the basic offence with an aggravated nature.

According to Eldar, creating an aggravating mode of commission of an offence when the offence was committed by means of an innocent agent might be inconsistent with the way some legal systems classify the commission of an offence by an innocent agent. Thus, the “US Federal Code and the American Model Penal Code define the relationship between the indirect participant and the innocent agent in terms of causation” which does not necessarily “require the use of the innocent agent as a mere means”. Therefore, “[if] the doctrine of innocent agency applies in cases in which the defendant has not violated the dignity of the agents, a determination that the use of innocent agents is an aggravated mode of commission will be overinclusive”. I do not see a problem in explicitly limiting the aggravated mode of commission, even in the US, to cases in which the innocent agent was used as a mere means. Technically, it would mean that the scope of the aggravated mode would be narrower than the scope of the basic mode of committing an offence by causing an innocent agent to commit a crime. A narrower mode in this context implies that among all the cases in which the offence was committed by another, only those in which the “other” was used as a mere means will be included in the aggravated mode.

Adjusting the option of creating an aggravating mode of commission of an offence by an innocent agent to the UK legal system is not that easy. As Eldar notes, in the UK some instances of using innocent agents are classified “as procurement or solicitation and [are treated] outside the innocent agency doctrine”. In those cases, “a determination that the use of innocent agents is an aggravated mode of commission will be underinclusive—that is, it will not capture all the instances in which perpetrators instrumentalise agents and violate their dignity”. Classifying some cases of committing an offence by an innocent agent as procurement or solicitation is problematic: it does not express the fundamental difference between solicitation/procurement and committing an offence by an innocent agent. Solicitation/procurement assumes that the choice whether to commit the offence and its commission are in the hands of the perpetrator (the principal offender) and, therefore, the dignity of the direct perpetrator was not violated (nor her autonomy). Committing an offence by an innocent agent, on the other hand, assumes that the agent (the direct perpetrator) did not choose to commit the offence but rather that she was instrumentalised, and therefore her dignity was violated. In order to express the violation of the innocent agent’s dignity, it is not enough to “determine that the violation of innocent agents’ dignity in the commission of an offence is a factor for aggravating the sentence for that offence, regardless of whether the defendant is convicted as a perpetrator by means of an innocent agent or as a procurer” as Eldar recommends. Conceptually, a procured person’s dignity is not violated. Therefore, a more radical change is required in the UK: all instances of using innocent agents for committing an offence should be treated under the innocent agent doctrine; instances when the agent is used merely as a means should fall under the aggravated mode of committing an offence by an innocent agent.

6 Conclusion

Reflecting on the various articles in this issue was, for me, like taking a journey through my academic life. The articles written for this issue were cornerstones in that journey, making it both stimulating and challenging. I have learned a lot from the various stations on this journey and I take with me much to think about. I am greatly indebted to all those who contributed to this special issue.