One of the most serious abuses of governmental power that the Framers sought to prevent was the imprisonment or detention of citizens without an indication of why they were being held. The Supreme Court in Fay v. Noia further declared that the “government must always be accountable to the judiciary for a man 's imprisonment: if the imprisonment cannot be shown to confirm with the fundamental requirements of law, the individual is entitled to his immediate release” Applicable Self Incrimination In addition to the guarantee of a jury trial, the Fifth Amendment states that no person "shall be compelled in a criminal case to be a witness against himself." The accused, however, cannot simply avoid testifying because of potential embarrassment. Rather, they must have a legitimate concern that their testimony will contribute to their conviction of a crime. Persons accused of crimes or witnesses in legal proceedings will often invoke this right by “pleading the Fifth” or by “claiming their Fifth Amendment rights.”
This is because of a cardinal principle in criminal law found in the maxim actus non facit reum, nisi mens sit rea. This means that for a crime to have occurred one has to prove the two elements of criminal law which are actus reus and mens rea. Yet the doctrine of strict liability dictates that a crime can be committed without the mens rea element. However, the notion that it can be said that a crime has been committed without the mens rea element has gained a lot of traction over the years. This notion seems unbending in cases of statutory rape.
Both the harm principle and legal paternalism are aimed at upholding an individual’s liberties within the law. However, they argue different view points and restrictions. The harm principle is chiefly concerned with upholding an individual’s right to somehow harm oneself, while legal paternalism says the law can interfere to prevent an individual from harming oneself. This is the most obvious distinction between the two philosophies. Dworkin’s argument for legal paternalism, however, uses Mill’s argument against him, and ultimately proves to be the stronger principle to justify law.
My Judicial Philosophy: Minimal Extrapolation Non-Originalism The two main prevailing legal philosophies when it comes to constitutional interpretation are originalism and non-originalism. Originalists believe in interpreting the constitution based directly on the framers’ intent when writing it and other Amendments while non-originalists view the Constitution in the context of the time it is applied, referring back to the spirit of the framers’ intent, not the intent itself. Both these ideologies alone are seriously flawed and no one would ever argue that historical intent alone or modern context and consequences alone would lead to smart legal opinions. The intent of the Second Amendment, for example, was derived from the Lockean ideals
b) Right to speedy trial flowing from Article 21, encompasses all the stages, namely, the stage of investigation, inquiry, trial, appeal, revision and retrial. That is how, this Court has understood this right and there is no reason to take a restricted view. c) The concerns underlying the right to speedy trial from the point of view of the accused are,—¬ d) The period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or long incarceration prior to his conviction; e) The worry, anxiety, expense and disturbance to his vocation and place, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and f) Undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of
The first one is the intent of the lawmakers through which it is indicated that the purpose was to cover all acts of torture in any form and if the fountainhead of command is not covered under the ambit of the Convention then its purpose is ultimately defeated . The Court, in other words, says that it is unfair to hold an officer of lower rank liable for an offense if the person in charge is allowed freedom to continue ordering such acts. Thus, Pinochet is an officer under the meaning of the Convention . The second technique is a purposeful mode of interpretation through which the Court reads the provisions keeping in mind the ultimate purpose of the Convention. The Court holds that immunity is a concept is granted ratione personae and on the expiration of office, this becomes rationemateriae.
Presumptions are inferences which the law makes and does not allow them to be overturned by any contrary proof, however strong. “Fictions of law” are closely allied to irrebuttable presumptions of law. A fiction of law arises where the law, for the advancement of justice, assumes as fact, and will not allow to be disproved, something which is false, but is not impossible. The only difference between the two is that the latter are arbitrary inferences which may or may not be true; while, in case of fictions, the falsehood of the fact assumed is understood and avowed. 4.4 Effect of Presumption Courts have stated that presumptions as are illustrated under Section 114 are presumptions of superior kind and may shift burden of proof on other party.
CRIMINAL LAW REGULATIONS IN CYPRUS Criminal law is a set of regulations that indicate the actions the society disapproves. A criminal wrong differs from civil wrong. Precisely, a criminal wrong denotes an action that inexcusably and unacceptably threatens or causes damage to individuals or the society. Criminal law focuses on protecting society and discourage criminal acts, by imposing punishments on people conducting these actions. The legal team of Michael Chambers & Co. LLC would like to emphasise that criminal law regulations in Cyprus reflect to a great extend the main principles and major offenses of the English Common Law.
I mean the doctrinal points that are the concepts based on legal mentalities of these nations and reflected, first of all, in General Parts of their Criminal Codes. The issues of criminalization that is the process by which behaviors are transformed into crime as well as the issues of penalization that is the declaration of a behavior punishable by law often reflect a political background but not the basic concepts, underlying criminal law. And it makes no difference whether this or that rule is fixed in the text of a criminal legislative act or formulated by a criminal law expert. The only thing that matters is the fact that a rule exists. For example, the concept of a factual personal mistake that is when a person is misinterpreting his or
Article 37.1 along with providing for limited delegation of judicial powers, also reserves the power to deal with criminal matters to the courts alone. This is quite a significant function of the court, which was acknowledged in the case In re, Haughey . In this instance it was put forward that the constitution of Ireland ‘reserves exclusively to the Courts the power to try persons on criminal charges’ . This prevents interference from other branches of government on matters that have been deemed to be criminal in nature. In addition to this, in matters where there is an element of discretion in imposing certain sanctions, the power is reserved for the courts alone.