² Professor Feller would prefer a separation of the technical provisions on recording and disclosure of records from rehabilitation, which he recommends to make the subject of a special Law: see his “Rehabilitation” (1969) 1 Mishpatim 497, 513 and “Bill” at 111. In the present article I follow the pragmatic approach of the Bill which, properly amended, may satisfy everyday needs of rehabilitation, leaving the drafting of a more perfect law to the future. See infra Part V. E. 1.

³ Leyman v. Latimer (1877) 3 Ex. D. 352, 355.

⁴ At 358.

⁵ Forfeiture Act, 1870.

⁶ E.g., under the Local Government Act, 1933, sec. 59 (1) (e) of which, disqualifying local councillors convicted of ignominious crimes, obviously influenced sec. 7 (6) of the (Israel) Local Authorities (Election) Law, 1965 (19 L.S. I. 261).

⁷ On the connection between crime recording and suppressing of records and rehabilitation see infra Part V. E. 1, and supra n. 2.

⁸ Proposals and cantonal laws even earlier.

⁹ Code de procédure pénale (1957) art. 783.

¹⁰ Art. 796 of the French Code prescribes withdrawal of the entry from the record, for convictions extinct by amnesty (not by pardon) and in certain circumstances, art. 770 permits suppression of the record of juvenile delinquency.

¹¹ Art. 774.

¹² Art, 776, no. 2 in combination with art. 775 alinea 2; see also art. 772.

¹³ Secs. 225, 528 of the Austrian Code.

¹⁴ Ibid., secs. 225 (end), 497.

¹⁵ Ibid., secs. 25–30.

¹⁶ Compare item (xx) of the schedule to the Bill, which gives the Minister of Justice discretion, to open the records to scientists, with or without restrictions as he sees fit, with the cautious wording of sec. 40 (2) of the German Law: only if the importance of the planned research justifies it and no improper use of the material is to be expected; and even then no disclosure of names, unless the research would be impossible without them.

¹⁷ In Germany the minimum period for restriction of information was originally 5 and 10 years—longer than under sec. 10 (a) (3) and (4) of the Bill, and periods for extinction of records another 5 or 10 years—twice as long as those provided in sec. 10 (a) (1) and (2). The new Law fixes periods of 3 and 5 years for restriction of the circle of recipients of information and periods of 5, 10 and 15 years for extinction of records.

¹⁸ Right of the former offender, to refuse information of the criminal act and punishment and to describe himself as “not punished”.

¹⁹ See the Introduction to the Bill (supra n. 1) at 206, second paragraph.

²⁰ See infra Part IV.

²¹ E.g., by awarding mere nominal damages. (See also sec. 22 of the Defamation (Prohibition) Law, 1965).

²² E.g., Faramus v. Film Artistes Association [1964] A.C. 925. The House of Lords upheld a clause in the respondents' rules, disentitling the plaintiff from membership for some harmless youthful offences unconnected with his profession as an actor.

²³ Sec. 42 of the Employment Service Law, 1959, does not forbid discrimination on account of a conviction, however obsolete and irrelevant to the employment sought.

²⁴ Sec. 7 of the Bill provides: “Where it is prescribed in an enactment that … [for certain purposes] a certificate of the police, or their opinion in any form, is required, the police shall give the certificate or opinion having regard to the record of the person concerned”.

²⁵ In this I differ from ProfessorFeller's, view as expressed in “Bill” (1971) 3 Mishpatim 117 Google Scholar (end of § 3). The new German Law shows great reluctance to permit delivery of certificates of conduct to private persons; secs. 28, 40 (1).

²⁶ The draftsman of the Criminal Code Ordinance, 1936 was the late Professor Norman Bentvvich, then Attorney General of Palestine, who adopted many provisions of the law introduced previously in Cyprus. See Abrams, , “Interpreting the Criminal Code Ordinance, 1936—The Untapped Well” (1972) 7 Is.L.R. 25.CrossRefGoogle Scholar

²⁷ Code pénal, arts. 28 seq., esp. art. 34.

²⁸ German Criminal Code, secs. 31–33 (since 1969 considerably reduced). 193, 197, 27B, 299, 359–361, 386 CCO. See also, Compulsory Education (Amendment No. 8) Bill, 1972, sec. 1.(1971–2) Hatza'ot Hok No. 968 p. 186.

²⁹ Criminal Code Ordinance (Amendment No. 28) Law 1966, affecting secs. 59 (1).

³⁰ See the Explanation: (1965–66) Hatza'ot Hok No. 674, pp. 38, 43 (Explanatory Note C).

³¹ Sec. 10 (1) (i) and (ii).

³² Sec. 51.

³³ Sec. 4 (b) and (c).

³⁴ Sec. 5 (b).

³⁵ Sec. 3 of the Bill with item (vii) of the Schedule.

³⁶ Secs. 2 (4), 3 and 4 (1) of the Bill; secs. 16–17 of the Probation Ordinance (New Version) 1969.

³⁷ Penal Law (Modes of Punishment) (Consolidated Version) 1970, secs. 20, 21. esp. 21 (3).

³⁸ Particulars in the Traffic Ordinance (New Version), secs. 36, 37, 39.

³⁹ Law of Return 1950, sec. 2(b) (3). ((1953–4) 8 L.S.I. 144).

⁴⁰ (1958) 12 P.D. 646, 649.

⁴¹ Sec. 1 (b) of the Bill. Sec. 52 of the new German Law provides for registration of foreign judgments against Germans and German residents.

⁴² State Service (Appointments) Law, 1959, sec. 46. ((1959) 13 L.S.I. 87, 94).

⁴³ Medical Practitioner Ordinance, 1947, sec. 5 (2) (a).

⁴⁴ Ibid., sec. 9 (1) (e).

⁴⁵ Secs. 5 and 6. ((1958) 12 L.S.I. 85).

⁴⁶ A private member's bill to this effect was recently submitted to the Knesset.

⁴⁷ Local Authorities (Election) Law, 1965, sec. 7 (6). (Cf. supra n. 6).

⁴⁸ Only the mayor or his deputy may be voted out of office (but not be deprived of their seat in the council); but the majority of the councillors may depose them even without such (or any) reason: Municipal Corporations Ordinance (New Version) secs. 130 (3), 131 (end) (formerly (1950) sec. 50 (g) (1) (iii) and (g) (2)).

⁴⁹ Local Councils Order (A), 1950, secs. 101 (7), 105 as re-numbered in 1961.

⁵⁰ Ben Aharon v. Chairman of Local Council Pardessiah (1967) (I) 21 P.D. 561; (1967) 2 Is.L.R. 148; Yearbook on Human Rights (1967) 168. See also Sa'adon v. Chairman of Local Council Or-Yehuda (1971) (II) 25 P.D. 505.

⁵¹ Sec. 6.

⁵² Secs. 44 (1), 42. ((1961) 15 L.S.I. 196, 203).

⁵³ Sec. 75.

⁵⁴ Sec. 78 (b) and (c).

⁵⁵ Sec. 17 (4). ((1963) 17 L.S.I. 58, 61).

⁵⁶ E.g., Judges Law, 1953, sec. 22 (a) (3) as against secs. 2–4A; Dayanim Law, sec. 21 (a) (3) as against secs. 3, 3A. But some of these Laws require a “suitable way of life and character”, e.g., the Qadis Law, 1961, sec. 2 (2) and the Dayanim (Conditions and Procedure of Qualification) Regulations 1955, reg. 1 (4).

⁵⁷ Schedule item (v).

⁵⁸ Sec. 16 (a) as against sec. 9.

⁵⁹ See infra Part IV B. 2, at p. 422.

⁶⁰ Sec. 77 of the Chamber of Advocates Law obliges courts to transmit to the Chamber a copy of a criminal judgment against an advocate. But of what use is such an isolated provision? It does not even solve the problem of a candidate for membership in the Chamber convicted before his admission, and it does not fit into the system of registration proposed in the Bill.

⁶¹ On this topic, see infra Part V. E.

⁶² The list may be changed: sec. 3(end).

⁶³ Sec. 17—The Bill does not mention the Prison Service.

⁶⁴ Sec. 16.

⁶⁵ Sec. 14.

⁶⁶ professor Feller (“Bill” p. 117–18) justly points at the “double-valued” approach of the Bill—on the one hand, its professed tendency of rehabilitation of former lawbreakers, on the other, its hesitation—nay, its refusal—to re-open to them, through closure of obsolete records, occupations available to everyone.

⁶⁷ The Explanatory Notes give the example of the Chamber of Advocates in respect of sec. 5 (grant of licence or similar “right”); the chairman of a local council disqualifying a council member for being guilty of an ignominious crime in respect of sec. 6 (disqualification); and for sec. 7 the police certificate required for obtaining a seaman's booklet and the police recommendation necessary for dealing with, or in, firearms.

⁶⁸ Sec. 9 of the original (English) text.

⁶⁹ See infra, n. 95.

⁷⁰ Limitation of space forbids a systematic analysis.

⁷¹ Cf., Feller, “Bill” 117 (§3), and supra Part III. B. at n. 24. The German Law of 1971 permits the giving of information to the person concerned: sec. 40(1).

⁷² Sometimes not even those: sec. 2(1)(b)–(c) prevents increased penalties for important cases of recidivism, such as violations of sanitary rules or work safety regulations. Since such offences are not investigated by the police and the penalty for a single offence never reaches the limits fixed in sec. 2(1) (b), secs. 2 and 15 prevent the fact of the first conviction to be taken into account in the second case, and so on. (Not a few factory or restaurant owners are guilty of several such offences during the year, and year after year).

⁷³ Sec. 2(5) does not expressly require a finding that the accused committed the act imputed to him; if the trial is conducted to the end, sec. 6(b) of the Treatment of Mentally Sick Persons Law, 1955 supplies the missing link, but if the accused cannot be tried, there is no certainty that he committed the act at all.

⁷⁴ See supra, n. 73.

⁷⁵ “Bill” p. 125.

⁷⁶ Among the already vast literature on this new topic, see especially, Farhi, C., “Computers—Data Banks and the Individual: Is the Problem Privacy?” (1970) 5 Is.L.R. 542.CrossRefGoogle Scholar

⁷⁷ It should not be argued that, since the Knesset's law committee has to confirm changes of the Schedule, the most practical part of parliamentary control does apply to them. This would be a wrongappreciation of the legislative forces. The most influential parts of law-making are, on the one hand, the preliminary discussions within the Government and its departments, whether a new or amending Law should be submitted to the Knesset, at all and with what contents, and on the other, the publicity given to the matter by publication of the draft and by discussion in the parliamentary plenum. If one or two Ministers can, without authorizationof the Government, apply directly to the competent committee of the Knesset, they circumvent all those factors of publicity and discussion. In the present case, the specification of number, task and qualifications of those entitled to information on any person's criminal history, would lack the safeguards of ordinary legislation.

⁷⁸ Labour Court Law, 1969, sec. 10.

⁷⁹ Commissions of Enquiry Law, 1968, sec. 4.

⁸⁰ Item (xv) of the Schedule.

⁸¹ Items (i), (xi), (xiii).

⁸² For discussion of this, see supra Part V. B. 1.

⁸³ Item (xvi); also part of item (ix): prosecutor in disciplinary matters.

⁸⁴ Cf., item (vii) with item (xvi).

⁸⁵ Cf., sec. 2 of the State Service (Discipline) Law 1963 with sec. 19 of the same Law.

⁸⁶ See supra Part IV.B. 2 at p. 422.

⁸⁷ Item (x) of the Schedule.

⁸⁸ Criminal Procedure Law 1965, sec 64—a rather sweeping equalization!

⁸⁹ Ibid., sec. 169.

⁹⁰ Part V.B. 1.

⁹¹ See supra, n. 50.

⁹² See supra, n. 3 and the text following it.

⁹³ Cf., Feller, “Bill” p. 118–19, esp. §2.

⁹⁴ “Bill”, pp. 111, 118.

⁹⁵ “Rehabilitation” 513. Actually such a law had already been enacted by the British Mandatory legislator, though on a limited scale—sec. 9 of his Probation of Offenders Ordinance 1944 (now sec. 8–9 of the Probation Ordinance (New Version) 1969 mentioned above). That section provided in sweeping terms that the probation order prevents the creation of “any disqualification or disability… imposed upon convicted persons” and the application of any law providing for “a different penalty in respect of a second or subsequent offence”.

⁹⁶ See secs. 5–7 as mitigated by sec. 10, compared with the strict rules of secs. 3, 16, 17.

⁹⁷ See the provisions and conditions of probation orders, e.g., under secs. 5, 20 of the New Version.

⁹⁸ “Rehabilitation”, p. 510 ff., “Bill”, p. 113.

⁹⁹ See Donneateti de Vabres, Traité de Droit Criminel (1947) nos. 1010 ff.