The Difference between Statutory and Common Law Offences - Essay Example

Imagine that you have been asked to write a lecture. Your audience will be people of average intelligence, but with no specialist knowledge of the law or legal system. Your objectives are to ensure that your audience understands:- The difference between statutory and common law offences How common law crimes were created and how they can change What is meant by ‘precedent,’ ‘distinguishing on the law,’ distinguishing on the facts,’ ‘ratio decedendi,’ and ‘obiter dicta.’ The meaning of and difference between onus and burden of proof. How to distinguish civil and criminal wrongs. The nature and authority of a code, for example Highway Code. The relevance of motive for criminal law. Every society is ruled by law. The law itself is pervasive in the sense that it is everywhere in our lives. It is concerned with regulating and controlling not only activities which are regarded as criminal and punishable by the state but also activities that are regarded as wrongful to individual persons. Such activities are acts of crime which can be defined by common law or statute. Common law is the principles of law applied by the royal courts common practices and customs in England. Statutory laws, on the other hand, are laws governed by statute or acts of legislature. The former is developed over a long period of time which derives its authorities solely from the usage and custom in England. The latter, follows a public process or brought into effect when an Act of Parliament gives authority or approval for it to be made. In addition, it has recognized offences such as abduction, arson, assault, bigamy, contempt of court, obstructing the course of justice, extortion, forgery, fraud, high treason, murder and many more. Furthermore, it has attributed greatly to statutory law. This law is important in any legal system because it is made by people who are representatives of the people. Some first English law examples are Statute of Pardons 1504, Statute of Proclamations 1539. Today, they are more known as acts example Military Lands Act 1892 UK. In reiterating the above, common law crimes were created from what English society considered as morally wrong to their practices and customs. However, some acts as petty as they may be are not criminalized by law such as cheating a friend, lying. What is a crime in England may be a recognized practice in other countries. Furthermore, laws and legal system as a whole are constantly changing. Sometimes the product of consequences of countries and the world affects the economy, political and social sphere rendering changes to the law. However, in certain instances the law is the cause and facilitator of economy, political and social change. Moreover, a principle of common law known as precedent or stare decisis means to stand by what has been decided. Justifying this principle is simply to be consistent and certain in the law. When a person knows what has already been decided she will know the way she will be treated and knowing other persons that follow will be treated the same. This principle was recognized in 1966 when the House of Lords announced its powers to depart from earlier authorities. Lord Denning clearly ascertained the meaning of stare decisis as distinguishing an earlier unsatisfactory decision and thereby effecting a just result (Carty, 68). Moreover, it is very important that the law is distinguished by the courts. The principle of common law for centuries has practiced that decisions made by the courts may be set aside if records of the decision disclose an error of law. It is equally important to distinguish on the facts. When a court makes a decision about a matter of fact, it has long been held by common law that the finding of fact must have some reasonable evidence to support it. This is rule of natural justice and is referred to as that an error of law has been made. A further consideration is when judges establish the grounds or reasoning of their decisions. This principle in which courts base their judgments is known as ratio decidendi. In the case of W v Home Office (1997) a Liberian national was detained from entering the United Kingdom pending his examination of the Immigration Act. He was never asked to complete a questionnaire until later but was denied admission. The authorities at the Immigration carelessly placed another person’s poor performance to the Plaintiffs application. The Court held that where public bodies acted pursuant to their statutory bodies only deliberate abuse would arise in private remedy. (Burnharm, 1998, 574). Although the authorities were careless it does not affect ratio in which final decision was made. Sometimes judges presiding over a case makes statement of law that is not strictly necessary for the decision made. It is either they are far from the facts of the case or they are at a point not strictly necessary for decision in the proceedings before the court. Therefore such statements are known to be obiter dicta. In other words, they are statements made on the side. In reference to the above case the dicta in W v Home Office (1997) was viewed in the physical or physiciatric injury received by the plaintiff. (Burnharm, 1998, 574). Although this reasoning was noted, it did not affect the judge’s final decision. In determining a case, it is important to be aware of the onus or burden of proof. The legal concept of onus refers to who bears the burden of proof. In relation to civil cases the standard of is that of on the balance of probabilities whereas when dealing with criminal matters, it is required that the case against an accused person be proved beyond reasonable doubt. It is evident in law practices that the standard which applies in criminal law is significantly higher than which applies in civil law. The fact that the criminal standard of proof is more stringent than the civil standard is a corollary of the presumption of innocence. It protects the rights of the accused to have the legal burden of proof placed on the prosecution. In retrospect it would be open for the state to redefine the offence such as would have the reversal in the burden of proof. (Tadros and Tierney, 2004, 407). In simpler terms the prosecution or state carries the burden of establishing beyond reasonable doubt that the accused committed the crime laid out. However, in civil cases the Plaintiff bears the burden of proof which is the balance of probabilities and places the responsibility on the defendant to prove its position. When the defendant has established this then the burden shifts back to the plaintiff to prove his case. The degree of beliefs by the court in a civil case is a belief of just over 0.5 requirements. This 0.5 rule upholds equality between plaintiffs and defendants beyond that falls on the one who successfully establishes his or her case (Redmayne, 1999, 168). Furthermore, both civil and criminal wrongs involve allegations of some legal wrong. The truth is not all wrongs are regarded as legal wrongs. There are some wrong that are regarded to be morally wrong or socially unacceptable but they are not necessarily seen by law as legal wrongs. Civil law cases involve relationship between private individuals or groups of them. The question is how do they arise? An individual asks her lawyer to start a court action against another person whom has done her legal wrong. In other words, the parties are trying to get the court to provide a legal remedy for that wrong. These private individuals seek remedies such as damages or compensation, injunctions and other special court orders. If the plaintiff proves on the balance of probabilities that the other party is liable for damages incurred. Certain examples of these wrong are trespass (to land, person or things), nuisance, defamatory or negligent statement. In the case of Douglas and others v Hello! Ltd [2001]2 WLR 992 where the famous couple of Douglas and Zeta-Jones were claimants to a suit against the publishers of Hello magazine who took unauthorized photographs of their weeding and published it on the internet. Their right to privacy was invaded and an injunction was seek by the claimants however, the action failed. (Moreham, 2001, 767). Criminal wrong on the other hand is public wrong. It involves legal wrongs against the State. In other words wrongs against the public institutions of government generally on behalf of the people. The state is involved in bringing the action to court. People are charged with the commission of some specified crime such as stealing, murder, dangerous driving and others. Their state should show that their commission does involve genuine wrongdoing (Duff, 2002, 97). The objective is that criminal wrongs should be criminalized by way of punishment or retribution. One of the main reasons is for the protection of the public from harm or danger. Conversely, a legal code is a code of law espoused by a state. There are various types of code such as Highway Code, Civil Service Code, Criminal Code and many more. The very nature of having a code is to codify an existing law. If there is a Highway Act or Civil Service Act or Criminal Law Act its administration cannot all be detailed in the legislation or act itself. Therefore breaking it down or construing it to the opinion of its writers or codifiers is essential for the law to be interpreted. In other words, to reduce the existing law in an orderly written system ‘freed from the needless technicalities, obscurities, and other defects, which the experience of its administration has disclosed’ (Bowman v R [1980] WAR 65). The relevance of motive for criminal law is somewhat complex. Moreover, the criminal law like other systems in this common law world has many offences which can be committed with strongly objective negligence or without fault element. (Lacey, 2001, 353). In determining on a person’s guilt the prosecution needs to prove the elements of a crime. Meaning in most crimes there must be the prescribed physical element, the wrongful act also known as the actus rea and the mental element or guilty mind commonly known as the mens rea. If so, both elements are not present then there is no crime committed by the accused. Therefore, the motive of an accused is not at all relevant to the case. However, in certain cases where a guilty verdict is pleaded the motives of an accused might sometimes be relevant when a court is considering how to sentence him or her. Motive is also not relevant in deciding whether civil laws have been breached. A person who breaches a contract with another in order to do a better deal for himself cannot defend himself on the motive of good business practice as this would be considered his personal agenda. Their motive is immaterial as this is clearly a breach of contract. This paper has summarily discussed aspects of the difference between statutory and common law offences. It has elaborated on how the latter has been created and how they can change. Furthermore, it has given a layman’s meaning to precedent and other legal terms important in the context of criminal and civil laws. Likewise, it has further considered the onus and burden of proof and the vitality in having a code as well the irrelevance of having a motive in any given case. 1,793 words. REFERENCE Burnham, U. (1998) Negligent False Imprisonment – Scope for Re-emergence? The Modern Law Review Limited 1998, 573 – 579. Carty, H. Precedent and the Court of Appeal: Lord Denning’s views explored. Legal Studies 68-75. Duff, R. A. (2002) Crime, Prohibition, and Punishment, Journal of Applied Philosophy Volume 19, No. 2, 2002, 97 -101. Freeman, M. (1999) Children are Unbeatable. John Wiley & Sons Ltd. Children & Society Volume 13 (1999) 130- 141. Morecham, N. A. (2001) CASES Douglas and others v Hello! Ltd – the Protection of Privacy in English Private Law. The Modern Law Review Limited 2001 Volume 64. Redmayne, M. (1999) Standard of Proof in Civil Litigation. The Modern Law Review Limited 1999,167 – 195. Tadros, V and Tierney, S. (2004) The Presumption of Innocence and the Human Rights Act. The Modern Law Review Limited 2004, 67(3) MLR 402-434. Read More