What Would Be the Risks and Benefits of Codification of English Law - Assignment Example

Legal Issues and Evidence Reporting 2010-11 Your name: Course name: Professors’ name: Question 1: What would be the risks and benefits of “codification” of English law? Codification is a term that denotes the creation of codes, which are compilations of written rules, statues, and regulations that inform a citizen of what is acceptable and what is unacceptable conduct. One such Codification Act is the Marine Insurance Act (1906) and the Sale of Goods Acts (1979). Codification displaces and rearranges case decisions and prior statutes (Clarke, 1996). Therefore, when the states codify its criminal laws, the statues that are found within the new law will supersede the laws that had previously been in place before codification. Although, codification simplifies laws for particular subjects into a single Act, there are some areas of laws which by their nature are extremely complex, and when these laws are codified, they will not be easily understood (Clarke, 1996). Furthermore, the way laws are being interpreted by English courts entails the accretion of a body, which must be consulted in order to discover the interpretation that has been put on an Act. Therefore, on many occasions both the courts and Parliament have passed further legislations modifying or supplementing the code (Clarke, 1996). Supporters of common law system are against codification. They argue that laws or rules that were created from written in digests and reported case decisions notified the behavior standards of the public (Clarke, 1996). It is difficult to separate legal nuances into authoritative rules. In addition, simple rules cannot be used to apply to all of the situations that might be found in a codification Act. supporters of common law further argue that decisions, carefully made over many years, are fairer than rules which are found in codification Act which reflect the moods ot the moments (Clarke, 1996). Supporters of codification believe codifications reflect the will of the citizens more than laws that have been determined by magistrates or judges. They further argue that codification will offer clarification in places where common law is uncertain and vague; and the codification will offer accessibility in places where common law is accessible to only those who are trained in the artificial reasoning of the law. Another advantage of having codified laws is that it by it nature it is able to save much time which is often wasted by the courts during hearing of long arguments of lawyers or counsel, which could easily be abridged, and often prevented altogether by the judges, under such a system. Furthermore, laws that have been codified are able to regulate organization of courts, civil court remedies, procedures, and execution of judgments (Clarke, 1996). If codification had been in existing in England at the time of the trial of Orton v. Regina, the Chief Justice Cockburn could hardly have allowed the lawyer to put the scandalous question above alluded to, or have compelled the witness to answer it, where such an Act or statute would have a most beneficial effect upon the conduct of trials in the country (Clarke, 1996). Question 2: In relation to homicide, what is “diminished responsibility”? Compare and contrast the effect of pleas of “diminished responsibility” on the outcomes for Stefan Kiszko and the Norfolk farmer Tony Martin. Diminished responsibility is a partial defense that will reduce the sentence of accused from murder to manslaughter if successful pleaded (termed "voluntary" manslaughter for these purposes) (Hennessy, 1995). Diminished responsibility is a special defences that is found in the Homicide Act (1957). There are three requirements that can make an accused sentenced be reduced from murder to manslaughter. These requirements include: if the accuses is abnormal; retarded development of the mind or abnormality must be caused by arrested or induced by illness or injury or any inherent causes; and the abnormality must impair the accused mental responsibility (Hennessy, 1995). When the counsel for accused successfully pleaded his/her case, diminished responsibility enables the judge to sentence at his/her discretion, for example, he can imposed a hospital order under section 37 of the Mental Health Act (1983), that requires the accused to start treatment rather than punish the accused. Thus, when there is subjective evidence that the accused or defendant did intend to cause grievous bodily harm or cause death because of abnormality will partially excuse his conduct (Hennessy, 1995). The defense of diminished responsibility in many occasions has been a subject of controversy. Several law reform agencies have suggested that the defence is undesirable and unnecessary to be used as a partial defence to murder. These reform agencies argue that diminished responsibility is out of touch with medical notions of abnormality that is used in high level cases. Consequently, some of these offenders suffer from disorders that cannot be treated, thus posing danger to people or community after they have served shorter sentences (Hennessy, 1995). In Martin’s case, the Court of Appeal rejected the submission that Martin fired in his own defence, because the accused was suffering from paranoid personality disorder which diminished his responsibility, and this was as a results of burglars intruding into his home (Hennessy, 1995). In addition, Martin’s lawyer was able to convince the court that Martin was sexually abused when he was a child and "considered himself a boy of about ten". The Court of Appeal reduced Martin sentence from murder to manslaughter on the ground of diminished responsibility. Kiszko's case was simply miscarriage of justice. Kiszko’s lawyer was inconsistent in his defence of diminished responsibility which their accuser never authorized, on the ground the medicine (testosterone) he received for his hypogonadism was the one which made him to behave unusually. Kiszko’s defence could have used endocrinologist who injected Kiszko to testify on his behalf that the treatment could have caused him to act such a way that would make him to kill. The doctor who treated Kiszko’s was never called (Hennessy, P., 1995). Question 3: Briefly describe one such breach and evidence the effect this has had subsequently upon the criminal justice system. According to Article 3 of European Convention on Human Rights (ECHR) prohibits the use of torture, and “degrading treatment or inhuman or punishment”. There is no limitation or exception on this right (Books, LLC., 2010). In addition, Article 3 also applies to cases of poor conditions in detention and severe police violence. Yet, in the past years increasing evidence has been found of UK government involvement in post September 11 program of rendition and torture to Guantanamo Bay, and using the evidenced obtained from victims of torture as evidence in UK courts (Books, LLC., 2010). One aspect why the government of UK complicity in the use of torture is to get information gained from torture victims to be used in legal cases. This practice contravenes the European Convention on Human Rights (ECHR) against torture, which does not requires the use of such ‘information or evidence’ in criminal cases. In 2005, in the case of A (FC) and others (FC) v. Secretary of State for the Home Department (2004) the House of Lords confirmed that the used of information from torture victim was not permitted to be used as evidence, regardless of who conducted the torture. The House of Lords held that the ban on torture is absolute and cannot be opted out of. In turn of events, most recently UK citizens who have been subjected to torture and other ill-treatment in Afghanistan, Morocco, Pakistan, Egypt and Guantanamo Bay have alleged that the UK government knew of their torture and ill-treatment and not only did nothing to prevent it, but actively participated in the abuse. For example, Mr. Binyam Mohamed a British national who was tortured at Guantanamo Bay, it is believe that the UK security official assisted the United States authorities interrogate Mr. Binyam. Although, the UK government knew one of their citizen was being detained incommunicado and inhuman, in cruel and degrading conditions that goes against the Article 3 of European Convention on Human Rights (ECHR) on torture, and “degrading treatment or inhuman or punishment”. In addition, there is more evidence that UK security official may have passed on information that led to extraordinary rendition and torture of Mr. Binyam. In recent times, UK security agency has taken extraordinary steps to keep information about the government complicity to torture a secret (Books, LLC., 2010). Nowadays, the UK security agency have sought to use the principle of public interest immunity to restrict access to secret government information and documents, and to stop part of case of Mr. Binyam which outlined what the government knew about the extraordinary rendition, torture and ill-treatment at the hands of US government (Books, LLC., 2010). Question 4: Review the case of R (on application of Cash) v County of Northamptonshire Coroner and answer the following a) What is the purpose of this hearing before the Queen’s Bench? This hearing is concerned with application for judicial review by the Claimant, based on the refusal by the Defendant County of Northamptonshire Coroner to hold an inquest into the death of the deceased while being restrained by police officers, in order to determine if neglect was the cause of death (Blake, 1996). b) What are the major conflicts in the eye-witness evidence, and how are they resolved According to rule 39 of the Coroners Rules 1984, coroners are required to take notes of the eyewitness statements or evidence, and even to an extend of tape recording the witness in the case (Blake, 1996). Unfortunately, there was no tape-recording of evidence in this inquest, and no reason was given on the same. But, the two parties in the case agreed between themselves to use a record of the evidence, which were based on the notes of a trained solicitor who was present at the inquest on the behalf of the deceased sister, and such amendments to the notes. Although, the notes taken by trained solicitor will be extremely helpful, but would not be a real substitute for a verbatim record (Blake, 1996). c) What effect do the “unfortunate” words of PC Lowe (Paragraph 16) have on the matter? What might a jury make of these words The unfortunate words on PC Lowe radio to the police control centre, when signs were that Mr. Cash was unlikely to survive. PC Lowe said the following words “duty sergeant want[ed] to cough it as [a] ‘death in cus’”. He wanted every police at the scene to get back to the police station and write what happen at the scene properly. And this was an attempt by the police to cover their tracks by ensuring each police at the scene gave a consistent account of the event. That would be the work of the jury to determine whether this showed a callous indifference to what happened to the deceased (Mr. Cash) (Blake, 1996). d) Based on the pathologist’s evidence, in your opinion, to what extent did the Police action contribute to the death of Mr. Cash. According to the medical evidence, Mr. Cash could have died due lack of oxygen. Professor Guy Rutty, the pathologist who conducted the post-mortem on the deceased, found that the deceased nose had turned to one side, even if, that could have been an old injury suffered by the deceased (Blake, 1996). But, Professor Guy Rutty found some reddening over the bridge of the nose of the deceased, and he concluded that could have occurred if the deceased head was pressed down in the mud, because the reddening of the nose was consistent with the mud which the pathologist saw on the deceased forehead. In addition, Welldorm tablets which the deceased had taken earlier contained chloral hydrate, which when taken is converted to trichloroethanol in the human body (Blake, 1996). The drug has been found to have side effect especially on the lungs, heart and brain. Therefore, the drug was capable of precipitating physiological stress, and disorder of the rhythm of the heart beat. The level of the drug in the deceased body was high. Therefore I would exonerate the police from negligence killing, because they are trained not to use unnecessary force to their victims. And, what made the police to pin down the deceased because he was violent, and he did not want to listen to the police (Blake, 1996). Question 5: Possession of a Controlled Substance with Intent To Supply” a) State to which statute the offence is contrary. Possessions of a controlled substance or drug with intent to supply contravene the Misuse of Drug Act 1971, Section 5(3). It is an offence for an individual to have a controlled or illegal drug in his/her possession, whether lawfully or not, and his/her aim is to supply it to another person (Dennis & Di Birch, 2000). The purpose of this Act is to control the use and distribution of harmful and dangerous drugs, and most drug offences which have been dealt with have been created by this Act. This Act classifies different drugs into classes, and will depend with the degree of harm the controlled substance or drug will have on its user. The classes are as follows: Class A, B and C (Dennis & Di Birch, 2000). b) What are the “points to prove” in this particular offence A person can be proven to have intentions of supplying controlled or illegal drug by either witness testimony or statement, for example, surveillance evidence, or direct evidence from the offender in form of admissions (Dennis & Di Birch, 2000). Another method a person can be proven having intention to supply controlled or illegal drugs are by inference (Dennis & Di Birch, 2000). The evidence which the offender possesses should be inferred to include at least one or, a combination of the following factors: suspect having in his/her possession drug related equipments such as cutting agents, bags or wraps of foils, weighing scales; possessing large quantities which are inconsistent with personal use; suspect found with variety of drugs; documents in suspect possess which tend to confirm drug dealing; money found on the suspect, for example, in R v Batt (1994) Crim.L.R 592 case; it is evidence of drug supply in the past but not of future supply; and suspect having extravagant lifestyle which is derived from drug dealing, for example, R v Morris (1995) 2 Cr.App.R.69 case (Dennis & Di Birch, 2000). c) Who provides the evidence for these “points to prove”, and what work is required by professional witnesses in a typical example of this offence. In most cases, the principle that relates to accomplice evidence is the ones that are mostly used in these situations (Dennis & Di Birch, 2000). The fact that a person is able to testify against alleged supplier of controlled or illegal drug is a factor in deciding to prosecute. But, there are factors which will be relevant (Dennis & Di Birch, 2000), such as: both the quality of evidence and witness; and the value of evidence against a drug dealer. In this situation, a witness should be a participator in the crime of which the suspect is accused of, for example in R v Sinclair (Dennis & Di Birch, 2000). Reference List Blake, W., 1996. Monthly magazine and British register, Volume 2. London: Princeton University Books, LLC., 2010. British Torture Victims: English Torture Victims, Scottish Torture Victims, Robert Jenkins, Robert Southwell, William Sampson. London: General Books LLC. Clarke, R. D., 1996. The Science of Law and Lawmaking: Being an Introduction to Law, a General View of Its Forms and Substance, and a Discussion of the Question of Codification. New York: Macmillan, 1898. Reprint, Littleton, Colo.: Rothman. Dennis, I., and Di Birch. 2000. The Criminal law review, Part 10. London: Sweet & Maxwell Publisher. Hennessy, P., 1995. Diminished responsibility: the essence of Cabinet government. London: University of Strathclyde Read More