Procedural Justice: The Presumption of Innocent - Case Study Example

Question Plan Law is the body of principles recognised and applied by the in the administration of its justice. (Saleemi, 1992). In this way law encompasses various issues. To be effective, it involves various rules. These rules once laid down, they need a system of enforcement. This system involves the courts of law and police who have discretion or powers in executing their duties. They should ensure that the law is applied universally without fear or favour. These rules of interpretation of statutes by the courts should be interpreted fairly in reference to the laid down principles of interpretation. Fair interpretation gives fair justice. Further, the rules, which are for guidance of human conduct, must be differentiated from rules of strict regulation. These rules of morality, which guide rather providing for strict regulation, must be recognised and allowed to stand. There should be a clear system of law, where people are free to bring up cause of action where it arises. Cumbersome and rigid system of law should be avoided. In the proper administration and enforcement of law, the distinction between criminal and civil matters should be clearly put in place, and in proper enforcement, there should be a clear court system where criminal and civil courts are in place. Whichever way, the rules of law must be clear and the enforcement agencies effective. Law Characterised by a System of Enforcement In the words of Salmond, law is the body of principles recognised and applied by the state in the administration of justice. A system of enforcement of the law lies before the Police and courts of law. These courts of law have been given discretion to award sentence or acquit. In their enforcement of the law, these officers should apply the law universally without fear or favour. The Police role of the Police in enforcement of law is maintaining public order and peace. Whenever the police have reason to doubt the commissioning of a crime, they must move in and prevent such a crime from happening. They must also investigate and prosecute the wrongdoers. The cause of action should be ascertained and the wrongdoers brought to justice. In their duty, they should register a First information report from the petitioner and they should move in to investigate to find evidence so that they can prosecute. Conclusively, in enforcement of the law both agencies the courts of law and police must coordinate so that they can be able to enforce the law. Each organ should play its duty as prescribed in the law. Both the police and courts have the duty of enforcing the law so as to avoid a state of anarchy. Rules Which are Subject to Interpretation Interpretation is the act or result of interpreting, explanation, meaning translation, exposition etc (Webster's New World Dictionary. (i) Primary Rule (Literal rule) Under this rule the words of an enactment are to be given their ordinary and natural meaning and if such meaning is clear and unambiguous, effect should be given to a provision of a statute whatever may be the consequences. (ii) The Rule laid down in Heydon's case has attained the status of 'Mischief Rule'. The rule enables consideration of four matters in constructing an act: (i) What was the law before the making of the Act (ii) What was the mischief or defect for which the law did not provide (iii) What is the remedy that the Act has provided (iv) What is the reason of the remedy. The rule directs that the courts must adopt that construction which shall suppress the mischief and advance the remedy. Gardier v. SevenOaks (1950) The question in this case was if the cave was included in the word premises under English Statute. The court, Held it included and the statute therefore had application of X's case. (iii) Golden Rule Under this rule, a statute is interpreted in such a way as to remove any inconsistency, absurdity that might arise from a literal interpretation of the words used. Re Sigsworth (1935) The question here was whether x could be apparent heir as per the literal interpretation of English after murdering her mother. The court departed from literal rule and Held was not entitled to inherit his mother's property. Rules Which Offer Guidance Rather than Strict Regulation These are the moral rules or regulations, which offer guidance. These rules do not attract the sanction of court for their enforcement unless they form part of the law. For instance a requirement that a person should respect his elders is a rule of morality and no one can be sued for failing to respect the elders. On the other hand, strict regulation is provided in the law, which strictly regulates the conduct of human beings. Violation of the laid rules attracts a punishment. Rules of morality are defined by morality itself and vary from community to community, and whenever they exist they do not attract sanction of law. These rules of morality must only guide and should not strictly regulate the conduct of a human being. If they do so, they will cease to be rules of morality and become rules of law. Rules Which Govern Who May Bring a Case The general rule is that any person can sue and be sued in tort. All persons are subject to the same law some special rules apply in certain circumstances, which either restricts, forbid or quality the right to sue and be sued. (i) The Government The Government has capacity to sue and be sued as if it were a private person of full age. The government can sue any person who misuses public property. Equally the government can be sued or is liable in respect of: - (a) Torts committed by its servants or agents (b) Any breach of duties which a person owes his servants by reason of being employer (c) Any breach of duties attaching at common law to the ownership, occupation or control of property. (ii) Infants and Minors As a general rule, minority is no defence in tort. Infants can sue and be sued in the same way as any other person. However, the age of an infant may be relevant in some torts where intentions, malice or negligence of wrongdoer are the main cause of tort. An infant may not be liable in tort in a case, which is a breach of contract. He will be liable in tort if this tort is independent of contract. Jennings V.Randall (1799) An infant hired a mare for riding. He injured the animal by overriding her and was sued for tort in damage. Held: The infant was not liable in tort for negligence since this act was mainly a breach of contract. Bernard v. Hagis (1863) A minor was liable for his tort in injuring a horse by jumping it, even when he was told not to jump it by the owner of the horse. (iii) Husband and Wife A married woman is liable in tort. He may sue and be sued in tort in the same way as though she was a female sole. A wife can sue her husband in tort for protection and security of her property. At common law a husband could not sue his wife in tort, and a wife protection of her own property. (iv) Corporations They can sue and be sued in their own names. They are liable in actions in tort. A corporation i.e. liable for torts committed by its servants and agents. But if the servant commits a tort, which is 'ultra vires', then the corporation is not liable. It is also not liable for torts of personal nature i.e. personal defamation, battery etc. (v) Trade Unions They can sue in tort but action against them is limited. No action shall lie against the Trade union for torts committed by its members or officials in respect of any action done in contemplation or in furtherance of a trade dispute. (e) Rules which Distinguish between Criminal and Civil Matters A crime is a public wrong the commission of which may result in the prosecution and punishment of the wrongdoer. The punishment is usually by a term of imprisonment or imposition of a fine. The penal code contains bulk of criminal wrongs and the details of punishment relating to criminal wrongs. Crimes are theft, robbery, murder, rape etc. A civil wrong is a violation of the private rights of an individual. Such violation of private rights may be a fort, a breach of contract, a breach of trust etc. Differences between two wrongs Crime Civil wrong 1. It is a public wrong against the state. 2. The parties are prosecution and the accused. The prosecution represents the state, while the accused represents the offender who is being prosecuted. 3. Action cannot be compromised by the parties. Since it is a public wrong. 4. Prosecution must prove its case beyond reasonable doubt. Any flight doubt is resolved in favour of accused. 5. Punishment is usually by imprisonment or time, or the death penalty in the case of capital offences 1. It is a private wrong against an individual. 2. The parties are plaintiff and the defendant the plaintiff is the aggrieved party who is suing, while the defendant to the wrong doer who is being sued. 3. The parties are free to withdraw their case or compromise since it is a private wrong. 4. Plaintiff needs only to prove his case on balance of probabilities. Not beyond reasonable doubt. i.e. evidence must be such that it is more probable than not that his case merits success compared to that of defendant. 5. A defendant found to have committed a civil wrong is usually ordered to pay damager to the plaintiff. (i.e. monetary compensation}. Question 2 Plan 2 According to the two cases laid down and their facts, the arrest of Ann and Tim are lawful. The Police Constables had the power or discretion to arrest any person; they have reason to believe he is in possession of stolen property. They can further arrest any person who refuses to give his name and address or residence. In the light of the facts laid herein, Ann and Tim are suspected to be in possession of stolen property i.e. car and credit cards respectively. In this respect the police have the power to arrest and investigate them and prosecute thereafter if the cause of action arises. Tim refusal to disclose hi name and address renders him to be retained until such information is ascertained and he executes the bond and he can be released to appear before a magistrate if required. Therefore the code of criminal procedure under the facts of the cases and the rules of law given it stipulate that the arrests are lawful. Facts Relevant to the Arrests of Ann and Tim whether it's Lawful. The facts relevant to the arrests whether lawful arise in the sense that Police Constable {PC} Brown stops Ann while driving. He arrests her on suspicion of having stolen the car she is driving. In this case Police Constable has the discretion or power to arrest Ann and if by stopping her to make a routine check-up, Ann looks suspicious and is not able to produce valid driving licence and car papers to prove ownership. Similarly if it is established that Ann has the vehicle without taking proper authority she is liable to be sued. For a Police Officer it is not necessary that he must check the national computer records, nor should the car be reported stolen. He has the power to arrest anybody on suspicion of having stolen property. So in this case situation the arrest is lawful. Likewise in Tim's case the arrest is lawful. The Police Constable area has a right to know Tim's name and his address. Tim's refusal to furnish such information leads to lawful arrest. The code of criminal procedure stipulates this. Further PC area has the power to search Tim and on this basis if he finds him with any property he has reason to doubt to have been stolen, he can arrest him until Tim proves the property found in his possession is his. To conclude both Police Constable Brown and Green have the right to arrest Ann and Tim since there is reason to suspect them to be having stolen property. Tim's possession of three credit cards creates more suspicion and is his duty to prove that the cards are genuinely his or they are in his possession rightly. Legal Rules Which are Applicable to the Situation. Under the existing situations various legal rules are applicable to the situation. Under this legal rule, the code of criminal procedure provides; {i} "The Police have the discretion to arrest any person where a reasonable suspicion exists, of his having been concerned {as in the case of Ann and Tim} where there is suspicion of being in possession of stolen property. {ii} "Where any person who, in the presence of a Police Officer, has committed or has been committing a non-cognisable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained". This applies to Tim's refusal to give his name and address to the Police constable. {iii} "In whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected having committed an offence with reference to such a thing". This refers to Ann and Tim where the Police Constables suspect them to be in possession of stolen property i.e. car and credit cards. Applying the Law With to the Fact Relevant to the Case. The law is very clear on the fact above. According to the code of procedure, the two people should be booked or arraigned in the court of law. Ann and Tim are suspected to be in possession of stolen property, they must prove that the property belongs to them and in absence of this they must face the law. In Tim's case his arrest is lawful in the sense that he refuses to give his name and address to the Police Constable, which he ought to have given as per the code of criminal procedure. Under this code the arrest of Tim by the Police Constable is lawful. He must prove that the property i.e. credit cards in his possession are genuine failure to which he will face the law as stipulated in the code of criminal procedure. Conclusion The arrests made by police constables Brown and Green to Ann and Tim are lawful. As stipulated by the code of criminal procedure, Ann and Tim have reason to be suspected of being in possession of stolen property. They should prove that the property is genuinely theirs. The general principle of law lays down that "every body is presumed innocent until proved guilty". Both Ann and Tim are innocent until they are proved guilty. The police have the discretion or powers to arrest a person as in the case of Ann and Tim and after investigation they should without delay ascertain a cause of action against Ann and Tim thereby instituting a case of law in the court. Finally the conduct of the two arrested people before the police constables is also an indication of being in possession of stolen property. Refusal by Tim to give his name and address causes more suspicion to the police constable arresting him. Accordingly, he has been in custody until his identity and residence is ascertained and made to execute a bond, with or without surerities, to appear before a magistrate if so required. References Bayles, M. D. (1990), Procedural Justice. Allocating to Individual, Dordrecht, Kluwer Academic Publishers Dhanrajlal, M and Ratanlal, N, (1999), Code of Criminal Procedures, 12th Edn New Delhi, Wadhwa Langhan, A. S, (1999), Maxwell on Interpretation of Statutes 12th Edn, New Delhi, Gopas Publishers Saleemi, N. A, (1992), Elements of Law, 2nd Edn, Nairobi, N.A, Saleemi Publishers Read More