Criminal Sanctions and Criminal Remedies - Assignment Example

Criminal Sanctions and Criminal Remedies Q1 Critically evaluate: “Criminal sanctions endeavour to deter criminals, and civil remedies endeavour to right wrongs.” Are current laws satisfactory? (1500 words). Ans.: In the statement “Criminal sanctions endeavor to deter criminals, and civil remedies endeavor to right wrongs,” the significant difference is that while criminal sanctions look to the future, civil remedies considers the past. This is because criminal sanctions used as deterrence focus not on the present behavior of the offender or even on the offence he committed but on the offence that might be committed by him or by others in the future. Deterrence uses the punishment in the present to scare off potential offenders. The implication is that there is a possibility that the criminal sanction may not be exactly equal to the crime but may be greater than the crime because there is a tendency to ‘show off’ whilst civil remedies may have a tendency to be more at par with the act done. On the other hand, civil remedies employed to right wrongs do not care about their significance in the future, but firmly focus on the particular act committed by the respondents. However, it is impossible for civil remedies to fully compensate wrongs committed. There are several principles of the penal theory, among which are retribution, reparation, rehabilitation, incapacitation and deterrence. The retribution theory refers to the notion that penal sanctions are imposed to give the offender a dose of his own medicine, that is, to punish him for what he did. The reparation theory considers the victim and punishes the offender to vindicate the victim. The rehabilitation is a newer trend in the penal system where the courts imposes punishment with the hope that such punishment will correct the offender’s behavioral problem and makes him fitter to live in society. The theory of incapacitation inflicts punishment to deprive the offender the opportunity to inflict harm again to society. On the other hand, the theory of deterrence subscribes to the idea that penal sanctions will have the effect of preventing not only the present offender but others from committing similar offences in the future. The rationale behind deterrence is the fear that the authorities hope to inculcate in the minds of people in the hope that they will think twice before committing crimes. On the other hand, civil remedies may constitute compensatory damages, various court orders which grants interventions by government agencies on private affairs, or prohibits or inhibits individuals from doing certain acts. The most common of these remedies is the compensatory damages granted to tort or wrongful act victims where the courts assess and award amounts to compensate whatever damage done to the victims. Various court orders can range from care and supervision orders in child protection cases, and preliminary injunction and injunctions orders in property and other cases. Penal Sanctions as Deterrence The notion of penal sanction as deterrent to future crimes has been found to be objectionable by some. The first opposition to this is that it violates the idea of the justice principle that there must be no other consideration in imposing punishment but the crime itself and that it must therefore correspond or be proportionate to the crime. Giving consideration to future criminals and crimes in imposing punishment for a crime committed specifically by a certain offender will tend to make the punishment disproportionate to the crime. The notion of deterrence will also open the possibility of subjecting a crime to different gradations of penalty and hence, a wide disparity in sentencing depending on a per case basis. Authors Blom-Cooper and Drewry commented on penal sanctions as deterrence: “As long as we persist in the unproved (and unprovable) theory of deterrence, we face the dilemma which we can resolve only by an unwary compromise. As Professor Hart has observed, penalties which we believe are required as a threat to maintain conformity to the law at its maximum may be too harsh a sanction and may tend to convert the offender into a committed professional criminal. The use of measures less severe than are believed necessary for law observance may lower the efficacy and example of punishment on others. This dilemma proceeds on the assumption that there is some way of measuring, with a degree of accuracy that is sadly lacking in such highly tentative social issues, the amount of punishment that will maximise the extent of conformity from the rest of us. At best, any punishment so motivated is a sop to public opprobrium; at worst we deceive ourselves as to the efficacy of the penal sanction.” (qtd Cornwell et al 2006). That penal sanction are, in fact, deterrent to the future commission of crimes leaves a lot of doubt as various evidence crop up that could prove this wrong. An extract from Table 7 of the Home Office study on Cautions, Court Proceedings and Sentencing 2001 would show that from the period 1995 to 2000, the harsher the penalty the less deterrent it becomes. The said study focused on the sentences imposed by the Magistrates’ Courts, the Crown Courts and all courts during the aforesaid period. The sanctions comparatively studied were: absolute or conditional discharge, which are simply giving the offender a criminal record with no other punishment and the offender totally excused from punishment so long as no further offenses are committed within a given period, respectively; fine, which is assessing the offender a fixed sum of money to be given to the court within a period; community sentence which puts the offender under the supervision of a parole officer and render unpaid service to the community for a period of time, and; immediate custody, which is the immediate deprivation of the offender’s liberty by taking him into the immediate custody of the authorities. The table shows that for the first two sanctions, viz., absolute or conditional discharge, the individuals sentenced went down from 1995 to 2000. On the other hand, the courts imposed more sentences in the community sentence and immediate custody in 2000 than in 1995. In the community sentence, there were 85,900 sentenced in 1995 for all courts and 97,900 in 2000 or a difference of 12,000. On the other hand, there were 60,400 sentencing instances of immediate custody in 1995 for all courts and 80,800 instances in 2000 or an increase of 20, 4000. If this table is any indication, the implication is that penal sanctions are not effective in deterring future crimes. Another objection to the theory of deterrence is the fact that many serious crimes are impulsive offences or immediate products of irrational behavior, like many murders and assaults. In addition, comparative studies of penal sanctions of countries will show that those with stiffer penalties for crimes tend to have much higher incidences of crimes. An example would be the United States of America. States which have retained the death penalty do not have lower crime rates than those which have expunged the penalty. Beyleveld, who had undertaken a comprehensive and extensive study of penalties in relation to the deterrent theory declared: “there exists no scientific basis for expecting that a general deterrence policy, which does not involve an unacceptable interference with human rights, will do anything to control the crime rate. […] There is some convincing evidence in some areas that some legal sanctions have exerted deterrent effects. These findings are not however, generalizable beyond the conditions that were not investigated. Given the present state of knowledge, implementing an official deterrence policy can be no more than a shot in the dark, or a political decision to pacify ‘public sentiment’” (qtd. Hudson 2003). Civil Remedies as Righting Wrongs To say that civil remedies endeavor to right wrongs is inaccurate. A wrong can never be adequately subsequently compensated and civil remedies can only approximate compensation but can never really repair once the damage has been done. It is easier if what are involved are material things but when life (in wrongful death) or reputations or human feelings are involved, monetary compensation is rarely enough to restore what has been lost. This is obviously illustrated in the case of Lim Poh Choo, whose brilliant future was cut short by an accidental failure of a health provider to do a responsibility correctly. In the Lim Poh Choo case, the victim was a 36-year old psychiatric registrar who was expected to become a consultant psychiatrist in England and a member of the Royal College of Psychiatrists on the basis of her performance and qualification. Starting at the young age of 26 in her chosen profession, Dr. Choo had practiced her profession in Singapore, Hong Kong, Malaysia and then in England. However, what was a minor gynecological procedure in 1973 turned out to be the end of a fruitful career and life when failure of a health provider staff to care for Choo resulted in cardiac arrest and a complete reversal of fortune. Choo suffered a diffused brain damage as a consequence, lost the ability to talks and walk and became a disable for the rest of her life. She had lost a substantial part of her memory and mind and required nursing for the rest of her life. After an extensive and long trial, the court awarded her a sum of money which can never turn back the hands of time and regain Dr. Choo the functions of her brain and limbs nor give her back the once fruitful and successful life she led. Q2 DrinkrUs Ltd owns a chain of public houses, one of which is called "The Judges Gavel". There it employs, amongst others, Andrew who is the Manager and Melanie who works part-time behind the bar. After the pub has closed one evening, Andrew and some of the bar staff stayed behind for a drink to celebrate Andrews birthday. Andrew is in a boisterous mood and in an endeavour to "have a laugh" starts to make fun of some of the staff. In particular he comments about Melanie’s appearance. She is sufficiently offended to storm out visibly upset and resolves to report what has happened to the Company Human Resources (HR) Director. In the course of her meeting at Head Office, the HR Director tells Melanie to "stop being so sensitive". Women working in a place like "The Judges Gavel" should be able to put up with a bit of banter. Advise Melanie whether she is likely to succeed in a claim for sexual harassment (500 words). Ans.: Melanie has a good chance of succeeding if she makes a claim for harassment under Part 1 of Sex Discrimination Act of 1975 as amended by Regulations 2008 and Employment Equality (Sexual Regulations) 2005 as amended in 2008. The Sex Discrimination Act of 1975 as amended by Regulations 2008 provides for the following relevant provisions: 4A. – Harassment, including sexual harassment (1) For the purpose of this Act, a person subjects a woman to harassment if -- (a) he engages in unwanted conduct that is related to her sex or that of another person and has the purpose and effect of – (i) of violating her dignity, or (ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, (b) he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect --- (i) of violating her dignity, or (ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, or […] (2) Conduct shall be regarded as having the same effect mentioned in sub-paragraph (i) or (ii) of subsection (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of the woman, it should reasonably be considered as having that effect. The act of Andrew in subjecting Melanie to a remark about her appearance in the presence of others; a remark which she found humiliating, offending and upsetting, is clearly within the ambit of s 4A (1)(b) of the Sex Discrimination Act of 1975 and therefore considered a form of sexual harassment. This is despite the fact that during the night in question, Andrew was in a boisterous and celebratory mood. What is important here is the effect of the comment of Andrew on Melanie. In the case of Burton de Vere Hotels,1 a stand-up comedian made sexist and racial comments against the waitresses on duty during his stand-up routine. Despite the fact that the comments were made in the spirit of jest as part of his act, the Court found him guilty of sexual and racial harassment on the ground that the comments seriously offended and embarrassed the two waitresses. This case belied the claim of the HR Director that women working in pubs, clubs or restaurants have an obligation to put up with sexist or other forms of harassing behavior simply because they work in such environs. The law on discrimination is therefore applicable to all without making any distinction as to the kind of environs or workplaces people are in. As a matter of fact, the discrimination law is made applicable even if the harassment is made not directly on the complainant. In the case for example of Morse v. Future Reality Inc., 2the Tribunal declared the existence of sexual harassment even though the officemates of the complainant merely downloaded sexually explicit images from the internet while she was around even though she was not directly harassed with these activities. However, her discomfort in being exposed to such an atmosphere subjected the company to liability to discrimination. The relevance of this case to the present case is that it showed that the discomfort and ill-feelings of the complainant to sexist activities around her are enough to make the company liable. The liability of the company is set out in s 41 the Sex Discrimination Act of 1975 and s 22 of the Employment Equality (Sexual Regulations) 2005 as amended in 2008. In both laws, the employers are as liable as the principal, if the act was done by the employee to another employee or another person in the course of the former’s employment, whether with or without knowledge of the discriminatory act. The only defence of the employer is if he can show that he took reasonable steps to prevent such act. In the case of Chief Constable of the Lincolnshire Police v Stubbs, 3 the Tribunal held that the discriminatory acts done by the respondent were made in the course of his employment notwithstanding that they were during social events away from the workplace, as these events were extensions of the workplace, as these events occurred immediately after work or for an organised leaving party. This situation is the same in the case at bar where Andrew made the discriminatory comment during his birthday party within work premises although after work hours but immediately after. References Cornwell, David J, & Cameron, Tony & McElrea, M. & Blad, John R, & Cormier, Robert B. 2006 Criminal Punishment and Restorative Justice: Past, Present and Future. Waterside Press: pp 57-58 Burton v de Vere Hotels, [1996] IRLR 596 EAT. Constable of the Lincolnshire Police v Stubbs, [1999] IRLR 81 EAT. Employment Equality (Sexual Orientation) Regulations 2003, The. http://www.equalityhumanrights.com/Documents/Legislation/SexualOrientation2003.pdf Hudson, Barbara 2003 Understanding Justice an Introduction to Ideas, Perspectives and Controversies in Modern Day Penal Theory. McGraw-Hill International: p. 23 Morse v. Future Reality Inc E.T. Case No. 54571/95. Sex Discrimination Act 1975 (1975 CHAPTER 65). http://www.equalityhumanrights.com/Documents/Legislation/SDA1975.pdf W100 Rules, Rights and Justice: An Introduction to Law Read More