Law in Civil and Criminal Cases - Essay Example

Law in Civil and Criminal cases Law in Civil and Criminal cases Question one: A thief is a person is guilty of theft if he fraudulently appropriates property that belongs to another person with the aim of depriving the other of it permanently (The W 100 Team, Block 2, 2011, p. 41).Although, Bill was rightly captured on Camera for having taken someone’s property, he did not have the intention to deprive the owner of his property as upon realizing he had the property he dropped it and left the premise without it. On the other hand, all suspected crime offenders (Bill) have the right to be told the grounds on which their arrest is based (The W 100 Team Reader 2, 2011, p. 57). A security officer is also allowed under the prevailing circumstances to walk up to anyone and engage him or her in conversation. Actually, there is no limit whatsoever on a security officers right to ask questions. In fact, there are many reasons for security persons to stop and subsequently question anyone in public places - investigating theft cases as is in the case of Bill and Sid. They may actually be looking for assistance in finding suspects (The W 100 Team Block 1, 2011, p. 78). However, in this case, the law does not compel anyone to identify himself or even supply any kind of information, unless the officer offers him a lawful reason particularly for making such a request. Question 2: Mens Rea and Actus Reus Actus Reus and Mens rea are legal terms employed to define an act of crime. Except for strict liability, both Actus Reus and Mens rea must always be present for any accused person to be found culpable of an offense or a crime (The W 100 Team Block 1, 2011, p.49). In short, Mens rea infers that the person suspected to have committed crime must have had the intention or a guilty mind particularly at the point or time of committing the crime. In other words, Mens rea simply means the intention to commit crime. On the other hand, Actus reus is used to refer to a "wrongful act" – implying that the person must have committed an act that under section 1(1) of the Theft Act 1968 law is defined as wrong (The W 100 Team Block 1, 2011, p. 35). Question 3: Defense and Persecution As a general rule, in order to be convicted of any crime, the accused person, in this case Bill, must actually be linked or shown to have committed actus reus (the unlawful act) with mens rea (a criminal state of mind) (The W 100 Team Block 4, 2012, p. 49). Burden of Proof Before precution begins, their is the duty to prove facts or facts in issue. In this case, Bill must be proved beyond reasonabl dobt that he had the intention and indeed committed the alleged crime. Without that, the defendant (Bill) is presumed to be innocent until facts are establsihed or proved guilty (The W 100 Team Glossary, 2012, p. 7). It is the responsibility of the prosecution to sufficiently prove its case by claerly establishing both mens rea and actus reus. What is more, the prosecution must first sufficiently satsisfy the evidential burden in order to show that its allegations have something strong to support them. In the end, if the posecution has actually set up a basis for the case, it must then continue to fully satisfy the persuasive burden mainly by proving its case and facts supporting it beyond reasonable doubt. For instance, in the case it is established that Bill spent about three minutes going through the shelves and then picked up a can of Soapy Shave Gel. With that can Bill walked through different sections in the shop including passing the payment area. With this, the prosecution must satisfy that the act of walking with thee can was through forgetfulness but intended to permanently deprive the owner of his property. This is based on the fact that when wandering around the shop, it is mentioned in the case that Bill had forgotten that he had the can in his hand, dropped it into the bag and walks out of the shop without paying. However, in this case is direct as it would hard for Bill to convince the prosecution that he did not know that he was holding someone’s property. Reason being he had the property and had not paid for it and was leaving the premise only to be stopped by the police. Punishment Generally, a penalty is imposed on a duly convicted defendant of an offense by a court of competence jurisduction. Declared in the court the sentence are two basic principles: nulla poena sine lege ( there is no punishment without a law) and nullum crimen sine lege (no crime without a law). Question 4: Evidence Yes, the prosecution would require the Sid to give evidence based on what he heard on radio. This is called circumstantial evidence. Circumstantial evidence is particularly important in civil cases or even criminal cases where direct evidence is completely or partly lacking (The W 100 Team Reader 1, 2011, p. 112). In this case, the testimony by Sid will add value to the already gathered evidence. Question 5: The relevant standard of proof is "proof of such a persuasive character that any reasonable person would actually not waver to act upon it in the most critical of his own affairs (The W 100 Team Block 1, 2011, p. 53). In civil cases the standard of proof is either proof by proof by clear and convincing evidence or a Preponderance of the Evidence. In general, both are lower burdens of proof when compared to beyond reasonable doubt (The W 100 Team Reader 1, 2011, p. 112-113). The burden is placed upon a civil defendant to disprove or prove a disputed fact. In this case, the duty is placed upon Bill. Question 5: Can the shop bring a criminal prosecution for the offence? Under the American legal system criminal cases are generally offenses against the state and on the other hand, civil cases are characteristically disputes between persons regarding the legal responsibilities or duties they owe one another (The W 100 Team Block 3, 2011, p. 63). In this case, the shop cannot bring criminal case but only civil case against the Bill on the premise that each had a duty towards one another. In the case of Bill, he had a duty to pay for the products taken and the shop had a duty of care towards Bill. In this case, Bill is likely to be left scot-free upon returning the product or made to pay for the product he took from the shop. Question 7: Explain in general terms how the Crown Prosecution Service (CPS) decides whether or not to prosecute. CPS is the autonomous public authority in charge of prosecuting people in Wales and England who have been charged mainly by the police with an offence that criminal in nature. The CPS does not in any way act or function for the families of victims or victims themselves in the same manner as solicitors or lawyers act for their clients. CPS does not act on the pretext of individual interests but act on behalf of the general public. Their prosecutor goes through the file and ultimately considers the two tests established in The Code for Crown Prosecutors. These tests set out the fundamental principles to be followed by crown prosecutors when making prosecution deliberations. The Evidential Test First, the CPS prosecutor must reach a decision whether or not the evidence adduced is sufficient to sustain the case against the defendant particularly for a realistic hope of conviction. It infers that the jury or magistrates are more likely to convict the accused. In the event that there is a lack of a realistic hope of conviction, then the case must not proceed, no matter how serious or important it may be similar. It is the responsibility of every CPS Prosecutor to ensure that it is the right person who is being prosecuted for the alleged offence. In fact, in doing so, CPS Prosecutors must at all time function not only for the intention of obtaining a conviction but in the interests of justice. The public interest test In the case that the crown prosecutor has decided there is a reasonable or realistic likelihood of conviction they then must also take into consideration whether it is actually in the interest of the general public to prosecute the accused (The W 100 Team Block 3, 2011, p. 85). Whilst the public interest may vary depending with the case at hand, generally speaking the more grave a suspected crime the more it is likely to be that, in the public interest, a prosecution is warranted. A prosecution is more or less likely to be desirable if, for instance, a court of competent jurisdiction would likely levy a token or minimal penalty or the harm or loss linked with the crime was inconsequential and the outcome of a single occurrence. In this case, the victim’s interests are a vital factor particularly when taking the public interest into consideration. In most cases, CPS Prosecutors will take into consideration the outcomes for the victim as well as any views or opinions expressed by the victims themselves or the family of the victims. Deciding whether or not to prosecute In the event that the CPS Prosecutor has decided that indeed a prosecution should not proceed, then the case will actually be terminated, mainly by what is referred to as ‘discontinuance. However, if there is special state of affairs which actually mean that it is vey hard or inappropriate to do so, the reasons for such a decision to discontinue the case need to be given (The W 100 Team Block 3, 2011, p. 63). In most cases, the difficult decision can actually be to wrap up that there is a lack of enough evidence to sustain the case in court, even in events where the want the prosecution to be undertaken. In short, the deliberations made by the Crown Prosecutors are actually based on available legal guidance that is visible and clear. Generally, if a crown prosecutor opts not to hold charges against the alleged offender, provides no evidence in a case or discontinues proceedings, the parties affected by such a decision have the right to request for a review of the decision and this is established under the Right to Review scheme of Victims. Question 8: Under section 24A of the Police and Criminal Evidence Act 1984 (PACE 1984) a crime may be tried either as a summary offence or an indictable offence (The W 100 Team, Block 2, 2011, p. 66). Under this section, these include offences of theft, deception, sexual assault and burglary. When theft is a triable either way offence it carries a maximum penalty on indictment of seven years imprisonment (The W 100 Team Block 4, 2012, p. 59). Generally, when a crime is triable either way, the law courts or simply the prosecution must actually decide, on hearing the original facts contained in the case, if it should actually be tried on indictment instead of summarily, for instance, as it appears to be a grave case (The W 100 Team Block 4, 2012, p. 49).. Nonetheless, if the theft case actually concerns or is linked to criminal damage and such damage seems to be less than five thousand pounds, and does not in any way involve risking life or arson; then the case must be summarily tried. In the case of Bills arrest, it is lawful as Bill was holding a stolen property even though he did no have the intention to still (The W 100 Team Reader 1, 2011, p. 35). It must be understood that the arrest was not meant to be used for prosecution as the security guard only wanted to check whether she carried the alleged property. In short, Bills arrest was lawful and was only meant for cross examination before instating the process of prosecution which would commence when he is formally arraigned in court. References The W 100 Team. (2011). W100 Rules, Rights and Justice: An introduction to law. Block 1 Rules and Rule Making. Milton Keynes: The Open University. The W 100 Team. (2011). W100 Rules, Rights and Justice: An introduction to law. Block 2 Legal personality. Milton Keynes: The Open University. The W 100 Team. (2011). W100 Rules, Rights and Justice: An introduction to law. Block 3 Enforcing Rules. Milton Keynes: The Open University. The W 100 Team. (2012). W100 Rules, Rights and Justice: An introduction to law. Block 4 Adjudication. Milton Keynes: The Open University. The W 100 Team. (2012). Glossary Appendix to terms used by the OU. Milton Keynes: The Open University. The W 100 Team. (2011). Reader 1. Milton Keynes: The Open University. The W 100 Team. (2011). Reader 2. Milton Keynes: The Open University. Read More