Omissions In Criminal Law

The principle in law that one is innocent until proven guilty has created much discourse. There are those who feel that the moment that one is arrested, there is reasonable belief that they committed the crime. However, there are those who feel that just as the principle states, one is, and should be taken as a victim and the outcome could be either way: guilty or not guilty. In fact, this argument is supported by the many cases of malicious prosecutions and mistaken identities.

Retributivists claim that criminals deserve punishment in proportion to their crime. Retributivists give desert a central place but only to a latter sense of desert as a demerit, or what we might call retributivist desert. Someone is thought to have desert not merely on the account of his committing a wrongful act, but on the account of his committing illegal act. There are many actions that are wrong, but not punishable because they are not illegal act. Retributivism punishes criminals for the wrongful act they performed; retributivism is backward looking.

The mens rea is the mental element of an offence. It refers to the mental state of the accused in terms of the offence. If no mens rea is present the accused cannot be convicted with the exception of absolute or strict liability. In order for a person to be guilty of a specific crime it is expected that the defendant has the necessary mens rea.(4) ‘Intention means the conscious objective or purpose of the accused.’(1) Intention is not the same as motive or desire to achieve a particular result.

Recklessness, indeed is a term used to condemn the actions of a person who is the cause of an undesirable circumstance. It features as one of four possible mental states that may constitute the mens rea of a crime. To be reckless, a person is involved with ‘’the taking of an unreasonable risk of which the risk taker is aware.’’ However, it is important to note that the risk ‘’does not have to be foreseen as highly likely to occur.’’

The malice aforethought is the criterion with which the level of viciousness is measured, and also draw a line between murder and manslaughter. Manslaughter occurs when a crime of killing a human being is not intentional, that is because He or She does not wish to do so but it was a consequence

The case of R v Caldwell was concerned with the law of recklessness and what equates to recklessness in certain circumstances. The defendant had appealed to the House of Lords for his conviction of aggravated criminal damage, however this conviction was maintained. Arising from this decision, ‘Caldwell recklessness’ was formed. This stated that a person is reckless where property is destroyed or damage where: the appellant partakes in an act which creates an apparent risk of destruction or damage of property, or when the appellant formulates an act in where they have not given any thought to the consequences of their act and has continued with the act regardless.

There are three main theories of punishment: retributive, utilitarian, and restitution. Firstly, retributive or the just deserts punishment theory must be examined again. Under retributive or just deserts punishment, a person is judged only on what he or she has done. Under this theory, the Pre-Crime system is immoral because how can a person be punished for something he or she has never done. The Pre-Crime system punishes based on thought, impulse, and planning regardless of whether or not the act was actually committed.

Trespass consists of a number of distinct torts including: battery, assault, false imprisionmnet, trespass to land and trespass to chattels. rThe tort of trespass has many distinct characteristics such as Actionable per se: This states that trespass actions protect fundamental civil liberties, such as automy, security and dignity in respect of one’s personal property and the significance of such rights is duly recognised by the fact that trespass actions do not require proof of damage. Direct Result/Impact: This is an action in trespass which exists only where the ‘trespass’ is the direct result of a voluntary act. Salmond & Heuston’s definition:‘An injury is said to be direct when it follows so immediately upon the act of the defendant that

The requirement that the prosecution prove mens rea means that criminal punishment won’t be applied to a person unless he or she was culpable for his or her act. Culpability arises when the defendant either knew what they were doing or what they were risking, or when they failed to reach a standard of behaviour expected of normal people. For example; Suppose A stabs B, A therefore will be culpable of murder, if his actions were intentional, or manslaughter. However what if A did not know what he was doing? Consider that when A stabbed B he did so under a delusion that he was in fact fighting with a monster of fictional sorts, and that this said delusion was caused by a mental disorder.

False imprisonment is an act punishable under criminal law as well as under tort law. Under tort law, it is classified as an intentional tort as trespass to a person. False Imprisonment has been defined as the total restraint of the liberty of a person. The word ‘false’ means ‘erroneous’ or ‘wrong’. It is a tort of strict liability and the plaintiff has not to prove fault on part of the defendant.

The police and the prosecutor acted in an unreasonable and legally reprehensible way when they omitted to put Clint into custody, while being fully aware of how great the risk of the harm to Anne and Bernice eventuating was, and what the gravity or seriousness of the harm was likely to be. A delict (wrongful conduct) is the act of a person which, in a wrongful and culpable way caused loss (damage) to another. There is a causal connection between the police and prosecutor not putting Clint in custody, and Anne being assaulted. Had they put Clint in jail, Anne would not have been assaulted by

After reading about the forfeited right theory, I agree that the theory is not only ethical, but it is quite intriguing. “The rights forfeiture theory of punishment contends that punishment is justified when and because the criminal has forfeited their right not to be subjected to this hard treatment” (Wellman, 2012, p. 371). When a person is taken into custody, their rights have been taken away from them. All of their rights except the Miranda Rights in which the individual is entitled to. So that means if a person commits a crime then they have already violated thier own rights therefore, they should not be complaining about their rights being violated.

Describing the problem: Found guilty in criminal trials when wrongful convictions transpire when acquitted suspects were oblige pleading guilty to crimes they did not commit to dodge the death penalty or severe sentencing. Moreover, wrongful conviction inexcusable injustice is enhanced once some acquitted individuals spend years in prison or on death row. How Big is the Problem? The Criminal Justice System is less than perfect which brings many controversial issues nevertheless one non-controversial fact is the reasons for opposing the use of irreversible punishment. Thus far, not every person stands exonerated of the wrongful convictions, there are still some counties and states who have had zero exonerates.

INTRO There has been 7 public inquires held by the provinces in the last 20 years that have examined wrongful convictions The justice system is organized with many rules and procedures that make it supposedly difficult for a wrongful conviction to occur -recognition of the falibiulity of the Canadian criminal justice system -serious implication -trust in the justice system erodes and innocent people suffer. Commission names The Royal Commission on the Donald Marshall, Jr., Prosecution The Commission on Proceedings Involving Guy Paul Morin The Inquiry Regarding Thomas Sophonow

If one takes the penal code as an instrument for expressing the moral values and norms of society, interests of the criminal justice system have arguably increasingly been focused on the protection of society rather than the rehabilitation of the offender. Societies search for ways to support and empathise with victims, while morally condemning offenders for their acts, and the general feeling of justice tends to be satisfied only when strict sentences are distributed in serious criminal cases such as sex offenses and assaults. The penal code is seen as an instrument for expressing the moral values and norms of society, and protecting survivors through prosecution. Considering the above as important to society and therefore a survivor, the