Sample Law Paper on Clarkson and Keating Criminal law

LAW 3MO509

Introduction

English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch comprising its own court and procedures (Darbyshire,Penny 2007).English criminal law concerns offences, their prevention and the consequences in England and wales. criminal conduct is considered to be a wrong against the whole community, rather than just the private individual. The fundamentals of a crime are a guilty act(or actus reus) and a guilty mental state (or mens rea).  Defenses exist no crimes. A person who is accused may in certain circumstances plead they are insane, were not in control of their bodies were intoxicated, mistaken, acted in self defense or under duress .Civil law  aims to deal with disputes between individuals and organizations. Civil law cases are filled by private parties and they include tort, personal injury, breach of contract, employment law. Civil law seeks to achieve a remedy for the injured party

Criminal defenses

The defenses which are available to any given offence depend on the wording of the statute, and the common laws. some of the criminal defenses and their reforms include;

Insanity

Under S 5 of the criminal procedure(insanity) act 1964 ,a person may defend himself on grounds that he was unable to understand what he was doing ,or he was unable to understand that what he was doing was wrong hence my claim he was insane at the time of trial or at the time of crime .This may be considered a danger since it condones murder. Clarkson (2007) argues that mental health should be limited to the mens rea of the crime;if the mental condition of the defendant voided the offences mens rea should be acquitted. Jones (1995),the burden of proof is on the defendant unlike other cases whereby the burden of proof is on the prosecution hence a differentiating between legal insane and medical insane is a problem. currently insanity is based on rationality only ( the McNoughton’s Rule) hence a reform on control determination rather than rationality determination to determine mental disorder should be adopted in the jury .also quality standards on expert testimony with reliability and validity should be adopted to differentiate  between mental disorder and legal disorder.

Loss of control

S 54 Coroners and Justice Act 2009 allows a person who kills or was party to a killing to be convicted of manslaughter rather than murder where there exists a loss of control or from a qualifying triggers This is a danger since someone may commit offence due to interior motive such as revenge. Rozenberg (2010) argues that the law is lenient on matters of sexual infidelity while it provides insufficient protection for victims of long term domestic violence. Reforms such as removing the loss of control defense completely, on sexual   infidelity the defense should only be used only if one party does not kill another. More so the government  should make it difficult for the defendant to have a defense ,if they cannot prove loss of control.

Consent

Genuine consent of the victim may negate liability for offences such as assault and rape,though consent must be genuine. However, even where consent is genuine there may be a successful prosecution for reasons of public policy (Smith and Keeran ,2010).Thus this may  promote  sexual assault and even homicide  to victims due to consent. Edward (2006) argues that the defendant is able to rely on the sexual consent narrative by manipulating to disguise what is essentially cruel and misogynist conduct .while the legal credibility of complainants may be harder to challenge due to contemporary procedural rules ,legal scholars have argued  that  the moral credibility of the complainants is powerfully strategized to reduce  responsibility of the defendant and increase the responsibility ,and blame of the complainant .Therefore reforms such as  changing the prosecution practice and also changing the evidence law should be considered. This can be achieved through the introduction of new evidence laws requiring certain criteria to be met before the victim’s   sexual preference and sexual history can be raised by the defense

 

 

 

The Civil Court System Hierarchy

The present civil justice is based on the Woolf reforms –Access to justice 1996.

The European court of justice

The European court of justice binds all courts in England and Wales. Overrules past decision.

Supreme court

Most senior national court (England and Wales). Its decisions are binding on the lower courts. The supreme court hears majority of procedures from court of appeal and sometimes through the high court through the leapfrog procedure.

Court of appeal

It is exclusively an appellate court and hears appeals against decisions made in a county court or in the high court .Permission is necessary for an appeal in almost all cases ,permission can be granted by the court whose decision is being appealed or by the court of appeal .Bound to follow the decisions of the courts above them (supreme court and the European court of justice).must follow past decisions of their own.

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High court

Must follow courts above them. Not bound by own decisions within own division but they are usually followed. Deals with civil cases and appeals from lower courts.it is made up of three main divisions: Chancery, Queen’s bench and Family. The Chancery division receives cases involving trust and other equitable matters. The Queen’s Bench hears matters such as personal injury, negligence, breach of statutory duty,libel ,slander and other torts .family division hears matters on children ,guardianship, probate adoption and matrimonial actions

County court

Deals with most cases in the civil court system. Circuit fee-paid and district judges all sit in the county court. Must follow rulings in higher courts

Magistrate courts

Most cases begin here( about 95%).Deals with summary offences ,indictable –only offences

The civil court system can be impoved by increasing the speed of dealing with cases. Also the civil court should simplify their procedures so as to be understandable to those who use the system. There seems to be uncertain in the rulings hence the system should try to provide certainty .

Potential criminal appeals process of a defendant

S 108 of the magistrates’ court act 1980 and the criminal procedures rules 2020 allows a defendant to appeal from the magistrate court to crown court following a plea of not guilt against  either a sentence ,conviction or both .A plea against conviction is heard in the county court and witnesses have to give evidence .The judges might increase ,reduce or leave the sentence as it is .Sometimes the prosecution or the defendant may appeal to the divisions of the Queens’ bench if the process was not correctly followed in the case and  whether the magistrate court either incorrectly applied the law or exceeded the law .S 1 of the criminal appeal act1968(CAA 1968) gives the procedure of making an appeal as a certificate of fitness for appeal or leave is required for sentence appeals. The court of appeal shall allow appeal against conviction when it considers the conviction is unsafe ,and in any other case shall dismiss the appeal .A defendant may appeal to the supreme court if the court of appeal certifies the decision involves a point of law of general public importance or it gives leave to appeal .An individual has the power to petition the European court of human rights if he feels that his human rights under the European convention on human rights have been violated .It can compel any state that is in breach of the convention to make just satisfaction and ,if it finds that the state’s law are incompatible with the convention ,can impose a duty on the state to rectify the position.

Conclusion

This report gives an overview of some of criminal defenses in England and Wales .It is clear that defendants may plea not guilt to offences due to allowance by law to some defenses Someone  may commit a criminal offence but use a defense for acquitting charges. The report also looks at the civil law court system in England and Wales. The lowest level being the magistrate court and the highest the  European court of justice .The lower courts are bound by decisions from courts above them .Every individual has a right to justice and equality .The report concludes with the  potential criminal appeals process of a defendant .A defendant just like any other individual has a right to justice .If feels his rights  have been violated or the decision by judges in a lower court was not fare he is allowed by law to appeal to a court of higher level.

 

 

 

Bibliography

Clarkson, C.M.V;H.M Keating;S.R,Cunninghem(2007).Clarkson and Keating Criminal law’ Texts and materials 6th ed,Sweet & Maxwell ISBN 978-0-421-94780-1

Darbyshire Penny (2017)Dardyshire on English Legal System -12th ed sweet and Maxwell ISBN 9780414057852

Jones ,Timothy (1995) ‘insanity ,automatism and the burden of proof on the accused ,law quarterly Review. Sweet &Maxwell.111(3)ISSN 0023-933X

Joshua Rozenberg ,Battered women who kill to be main beneficiaries as homicides law changes,’Guardian 30/9/10

The coroners and justice act 2009 (commencement no4,Transitional and saving provisions)order 2010(S.I 2010/816(C56)article 6(b)

Smith and Keeran  (2010),’English law’ pearson Addison wesle 16th ed

S Edward ,Assault ,strangulation and murder-challenging the sexual libido consent defense narrative’in a reed ,M Bohlander, N Waje and E. Snutg (eds),Consent :Domestic and Comparative perspective (Routledge,Abingdon 2016) at 88-103