MINISTERUL EDUCAŢIEI AL REPUBLICII MOLDOVA

UNIVERSITATEA DE STUDII EUROPENE DIN MOLDOVA

FACULTATEA DE DREPT

NOTE DE CURS

LIMBA ENGLEZĂ

(Ciclul I)

AUTOR:

Petru Gandjea

dr. în șt.pedagogice, lector superior

Aprobat la şedinţa Catedrei Drept public

din: 20.05.2013, proces-verbal Nr. 10

Examinat de Consiliul facultăţii de Drept USEM

la 24.05.2013, proces-verbal Nr. 5

Aprobat la ședința Senatului USEM

din: 01.07.2013, proces-verbal Nr. 9

CHIŞINĂU – 2013

Semestrul 1

1. THE JUDICIARY

In America, the Supreme Court is an intensely political institution - its members are appointed

by the President on a partisan basis and its decisions are often highly political and highly

controversial. By contrast, in Britain the Supreme Court is not appointed on a political basis and,

like all British courts, avoids making decisions which it regards as proper to politicians and

Parliament.

The judiciary (also known as the judicial system or court system) is the system of courts that

interprets and applies the law in the name of the state. The judiciary also provides a mechanism

for the resolution of disputes. Under the doctrine of the separation of powers, the judiciary

generally does not make law (that is, in a plenary fashion, which is the responsibility of the

legislature) or enforce law (which is the responsibility of the executive), but rather interprets law

and applies it to the facts of each case. This branch of the state is often tasked with ensuring

equal justice under law. It usually consists of a court of final appeal (called the "Supreme court"

or "Constitutional court"), together with lower courts.

In many jurisdictions the judicial branch has the power to change laws through the process of

judicial review. Courts with judicial review power may annul the laws and rules of the state

when it finds them incompatible with a higher norm, such as primary legislation, the provisions

of the constitution or international law. Judges constitute a critical force for interpretation and

implementation of a constitution, thus de facto in common law countries creating the body of

constitutional law.

In the US during recent decades the judiciary became active in economic issues related with

economic rights established by constitution because "economics may provide insight into

questions that bear on the proper legal interpretation". Since many countries with transitional

political and economic systems continue treating their constitutions as abstract legal documents

disengaged from the economic policy of the state, practice of judicial review of economic acts of

executive and legislative branches have begun to grow.

In the 1980s, the Supreme Court of India for almost a decade had been encouraging public

interest litigation on behalf of the poor and oppressed by using a very broad interpretation of

several articles of the Indian Constitution.

Budget of the judiciary in many transitional and developing countries is almost completely

controlled by the executive. The latter undermines the separation of powers, as it creates a

critical financial dependence of the judiciary. The proper national wealth distribution including

the government spending on the judiciary is subject of the constitutional economics. It is

important to distinguish between the two methods of corruption of the judiciary: the state

(through budget planning and various privileges), and the private.

The term "judiciary" is also used to refer collectively to the personnel, such as judges,

magistrates and other adjudicators, who form the core of a judiciary (sometimes referred to as a

"bench"), as well as the staffs who keep the system running smoothly.

Various functions

In common law jurisdictions, courts interpret law, including constitutions, statutes, and

regulations. They also make law (but in a limited sense, limited to the facts of particular cases)

based upon prior case law in areas where the legislature has not made law. For instance, the tort

of negligence is not derived from statute law in most common law jurisdictions. The term

common law refers to this kind of law.

In civil law jurisdictions, courts interpret the law, but are prohibited from creating law, and thus

do not issue rulings more general than the actual case to be judged. Jurisprudence plays a similar

role to case law.

In the United States court system, the Supreme Court is the final authority on the interpretation

of the federal Constitution and all statutes and regulations created pursuant to it, as well as the

constitutionality of the various state laws; in the US federal court system, federal cases are tried

in trial courts, known as the US district courts, followed by appellate courts and then the

Supreme Court. State courts, which try 98% of litigation, may have different names and

organization; trial courts may be called "courts of common plea", appellate courts "superior

courts" or "commonwealth courts". The judicial system, whether state or federal, begins with a

court of first instance, is appealed to an appellate court, and then ends at the court of last resort.

In France, the final authority on the interpretation of the law is the Council of State for

administrative cases, and the Court of Cassation for civil and criminal cases.

In the People's Republic of China, the final authority on the interpretation of the law is the

National People's Congress.

Other countries such as Argentina have mixed systems that include lower courts, appeals courts,

a cassation court (for criminal law) and a Supreme Court. In this system the Supreme Court is

always the final authority, but criminal cases have four stages, one more than civil law does. On

the court sits a total of nine justices. This number has been changed several times.

Judicial Systems

Japan‘s process for selecting Judges is longer and more stringent than the process in the United

States and in Mexico. Assistant judges are appointed from those who have completed their

training at the "Legal Training and Research Institute" located in Wako City. Once appointed,

assistant judges still may not qualify to sit alone until they have served for five years, and have

been appointed by the Supreme Court. Judges require ten years of experience in practical affairs,

public prosecutor, or practicing attorney. In the Japanese Judicial Branch there is the Supreme

Court located in Japan, eight high courts, fifty district courts, fifty family courts, and 438

summary courts. In difference, Mexican Supreme Court Justices are appointed by the president,

and then are approved by the Senate to serve for a life term. Other justices are appointed by the

Supreme Court and serve for six years. Federal courts consist of the Supreme Court with 21

magistrates, 32 circuit tribunals and 98 district courts. The Supreme Court of Mexico is located

in "Mexico City. Supreme Court Judges must be of ages 35 to 65 and hold a law degree during

the five years preceding their nomination. In the United States Supreme Court, justices are

appointed by the president and approved by the Senate. As in Mexico, justices serve for a life

term or until retirement. The Supreme Court of the United States is located in "Washington

D.C". The Federal court system consists of 94 federal judicial districts. The 94 districts are then

divided into twelve regional circuits. The United States consist of five different types of courts

that are considered subordinate to the Supreme Court, U.S bankruptcy courts, U.S Courts of

Appeal for the federal circuit, U.S Court of International Trade, U.S Courts of Appeal, and U.S

District Courts.

2. THE LEGISLATIVE

The United Kingdom is a unitary, not a federal, state. All four countries of the Kingdom –

England, Wales, Scotland and Northern Ireland – are represented in the Parliament at

Westminster (London), which is the supreme legislative authority in the United Kingdom.

Parliament consists of the Sovereign, the House of Lords and the House of Commons. The

Sovereign formally summons and dissolves Parliament and generally opens each new annual

session with a speech from the throne. The House of Lords is made up of hereditary and life

peers and peeresses, including the law lords appointed to undertake the judicial duties of the

House, and the archbishops of Canterbury and York, the bishops of London, Durham and

Winchester and twenty-one senior bishops of the Church of England; its main function is to

bring the wide experience of its members into the process of law-making.

The House of Commons consists of 630 salaried members elected by almost universal adult

suffrage. It is in the House of Commons that the ultimate authority for law-making resides.

Peerages are conferred by the Sovereign on the advice of the Prime Minister. Members of the

House of Commons are elected at a General Election, which must be held every five years but it

is often held at more frequent intervals.

The United Kingdom is a unitary democracy governed within the framework of a constitutional

monarchy, in which the Monarch is the head of state and the Prime Minister of the United

Kingdom is the head of government. Executive power is exercised by Her Majesty's

Government, on behalf of and by the consent of the Monarch, as well as by the devolved

Governments of Scotland and Wales, and the Northern Ireland Executive. Legislative power is

vested in the two chambers of the Parliament of the United Kingdom, the House of Commons

and the House of Lords, as well as in the Scottish parliament and Welsh and Northern Ireland

assemblies. The judiciary is independent of the executive and the legislature. The highest

national court is the Supreme Court of the United Kingdom.

The UK political system is a multi-party system. Since the 1920s, the two largest political parties

have been the Conservative Party and the Labour Party. Before the Labour Party rose in British

politics, the Liberal Party was the other major political party along with the Conservatives.

Though coalition and minority governments have been an occasional feature of parliamentary

politics, the first-past-the-post electoral system used for general elections tends to maintain the

dominance of these two parties, though each has in the past century relied upon a third party

such as the Liberal Democrats to deliver a working majority in Parliament. The current

Conservative-Liberal Democrat coalition government is the first coalition since 1945.

With the partition of Ireland, Northern Ireland received home rule in 1920, though civil unrest

meant direct rule was restored in 1972. Support for nationalist parties in Scotland and Wales led

to proposals for devolution in the 1970s though only in the 1990s did devolution actually

happen. Today, Scotland, Wales and Northern Ireland each possess a legislature and executive,

with devolution in Northern Ireland being conditional on participation in certain all-Ireland

institutions. The United Kingdom remains responsible for non-devolved matters and, in the case

of Northern Ireland, co-operates with the Republic of Ireland.

It is a matter of dispute as to whether increased autonomy and devolution of executive and

legislative powers has contributed to a reduction in support for independence. The principal pro-

independence party, the Scottish National Party, won an overall majority of MSPs at the 2011

Scottish parliament elections and now forms the Scottish Government administration, with plans

to hold a referendum on negotiating for independence. In Northern Ireland, the largest Pro-

Belfast Agreement party, Sinn Féin, not only advocates Northern Ireland's unification with the

Republic of Ireland, but also abstains from taking their elected seats in the Westminster

government, as this would entail taking a pledge of allegiance to the British monarch.

The constitution of the United Kingdom is uncodified, being made up of constitutional

conventions, statutes and other elements such as EU law. This system of government, known as

the Westminster system, has been adopted by other countries, especially those that were formerly

parts of the British Empire.

The United Kingdom is also responsible for several dependencies, which fall into two categories:

the Crown dependencies, in the immediate vicinity of the UK, and British Overseas Territories,

which originated as colonies of the British Empire.

The United Kingdom Government

The monarch appoints a Prime Minister as the head of Her Majesty's Government in the United

Kingdom, guided by the strict convention that the Prime Minister should be the member of the

House of Commons most likely to be able to form a Government with the support of that House.

In practice, this means that the leader of the political party with an absolute majority of seats in

the House of Commons is chosen to be the Prime Minister. If no party has an absolute majority,

the leader of the largest party is given the first opportunity to form a coalition. The Prime

Minister then selects the other Ministers which make up the Government and act as political

heads of the various Government Departments. About twenty of the most senior government

ministers make up the Cabinet and approximately 100 ministers in total comprise the

government. In accordance with constitutional convention, all ministers within the government

are either Members of Parliament or peers in the House of Lords.

As in some other parliamentary systems of government (especially those based upon the

Westminster System), the executive (called "the government") is drawn from and is answerable

to Parliament - a successful vote of no confidence will force the government either to resign or to

seek a parliamentary dissolution and a general election. In practice, members of parliament of all

major parties are strictly controlled by whips who try to ensure they vote according to party

policy. If the government has a large majority, then they are very unlikely to lose enough votes

to be unable to pass legislation.

The Prime Minister and the Cabinet

The Prime Minister is the most senior minister in the Cabinet. She/he is responsible for chairing

Cabinet meetings, selecting Cabinet ministers (and all other positions in Her Majesty's

government), and formulating government policy. The Prime Minister is the de facto leader of

the UK government, since s/he exercises executive functions that are nominally vested in the

sovereign (by way of the Royal Prerogatives). Historically, the British monarch was the sole

source of executive powers in the government. However, following the rule of the Hanoverian

monarchs, an arrangement of a "Prime Minister" chairing and leading the Cabinet began to

emerge. Over time, this arrangement became the effective executive branch of government, as it

assumed the day-to-day functioning of the British government away from the sovereign.

Theoretically, the Prime Minister is primus inter pares (,i.e. Latin for "first among equals")

among his/her Cabinet colleagues. While the Prime Minister is the senior Cabinet Minister, s/he

is theoretically bound to make executive decisions in a collective fashion with the other Cabinet

ministers. The Cabinet, along with the PM, consists of Secretaries of State from the various

government departments, the Lord High Chancellor, the Lord Privy Seal, the President of the

Board of Trade, the Chancellor of the Duchy of Lancaster and Ministers without portfolio.

Cabinet meetings are typically held weekly, while Parliament is in session.

Government departments and the Civil Service

The Government of the United Kingdom contains a number of ministries known mainly, though

not exclusively as departments, e.g., Department for Education. These are politically led by a

Government Minister who is often a Secretary of State and member of the Cabinet. He or she

may also be supported by a number of junior Ministers. In practice, several government

departments and Ministers have responsibilities that cover England alone, with devolved bodies

having responsibility for Scotland, Wales and Northern Ireland, (for example - the Department of

Health), or responsibilities that mainly focus on England (such as the Department for Education).

Implementation of the Minister's decisions is carried out by a permanent politically neutral

organisation known as the civil service. Its constitutional role is to support the Government of

the day regardless of which political party is in power. Unlike some other democracies, senior

civil servants remain in post upon a change of Government. Administrative management of the

Department is led by a head civil servant known in most Departments as a Permanent Secretary.

The majority of the civil service staff in fact work in executive agencies, which are separate

operational organisations reporting to Departments of State.

UK Parliament

House of Commons

The Countries of the United Kingdom are divided into parliamentary constituencies of broadly

equal population by the four Boundary Commissions. Each constituency elects a Member of

Parliament (MP) to the House of Commons at General Elections and, if required, at by-elections.

As of 2010 there are 650 constituencies (there were 646 before that year's general election. Of

the 650 MPs, all but one - Lady Sylvia Hermon - belong to a political party.

In modern times, all Prime Ministers and Leaders of the Opposition have been drawn from the

Commons, not the Lords. Alec Douglas-Home resigned from his peerages days after becoming

Prime Minister in 1963, and the last Prime Minister before him from the Lords left in 1902 (the

Marquess of Salisbury).

One party usually has a majority in Parliament, because of the use of the First Past the Post

electoral system, which has been conducive in creating the current two party system. The

monarch normally asks a person commissioned to form a government simply whether it can

survive in the House of Commons, something which majority governments are expected to be

able to do. In exceptional circumstances the monarch asks someone to 'form a government' with

a parliamentary minority which in the event of no party having a majority requires the formation

of a coalition government. This option is only ever taken at a time of national emergency, such

as war-time. It was given in 1916 to Andrew Bonar Law, and when he declined, to David Lloyd

George and in 1940 to Winston Churchill. A government is not formed by a vote of the House of

Commons, it is a commission from the monarch. The House of Commons gets its first chance to

indicate confidence in the new government when it votes on the Speech from the Throne (the

legislative programme proposed by the new government).

House of Lords

The House of Lords was previously a largely hereditary aristocratic chamber, although including

life peers, and Lords Spiritual. It is currently mid-way through extensive reforms, the most recent

of these being enacted in the House of Lords Act 1999. The house consists of two very different

types of member, the Lords Temporal and Lords Spiritual. Lords Temporal include appointed

members (life peers with no hereditary right for their descendants to sit in the house) and ninety-

two remaining hereditary peers, elected from among, and by, the holders of titles which

previously gave a seat in the House of Lords. The Lords Spiritual represent the established

Church of England and number twenty-six: the Five Ancient Sees (Canterbury, York, London,

Winchester and Durham), and the 21 next-most senior bishops.

The House of Lords currently acts to review legislation initiated by the House of Commons, with

the power to propose amendments, and can exercise a suspensive veto. This allows it to delay

legislation if it does not approve it for twelve months. However, the use of vetoes is limited by

convention and by the operation of the Parliament Acts 1911 and 1949: the Lords may not veto

the "money bills" or major manifesto promises (see Salisbury convention). Persistent use of the

veto can also be overturned by the Commons, under a provision of the Parliament Act 1911.

Often governments will accept changes in legislation in order to avoid both the time delay, and

the negative publicity of being seen to clash with the Lords. However the Lords still retain a full

veto in acts which would extend the life of Parliament beyond the 5 year term limit introduced

by the Parliament Act 1911.

The Constitutional Reform Act 2005 outlined plans for a Supreme Court of the United Kingdom

to replace the role of the Law Lords.

The House of Lords was replaced as the final court of appeal on civil cases within the United

Kingdom on 1 October 2009, by the Supreme Court of the United Kingdom.

Devolved national legislatures

Though the UK parliament remains the sovereign parliament, Scotland has a parliament and

Wales and Northern Ireland have assemblies. De jure, each could have its powers broadened,

narrowed or changed by an Act of the UK Parliament. However, Scotland has a tradition of

popular sovereignty as opposed to parliamentary sovereignty and the fact that the Scottish

parliament was established following a referendum would make it politically difficult to

significantly alter its powers without popular consent. The UK is therefore a unitary state with a

devolved system of government. This contrasts with a federal system, in which sub-parliaments

or state parliaments and assemblies have a clearly defined constitutional right to exist and a right

to exercise certain constitutionally guaranteed and defined functions and cannot be unilaterally

abolished by Acts of the central parliament.

All three devolved institutions are elected by proportional representation: the Additional Member

System is used in Scotland and Wales, and Single Transferable Vote is used in Northern Ireland.

England, therefore, is the only country in the UK not to have a devolved English parliament.

However, senior politicians of all main parties have voiced concerns in regard to the West

Lothian Question, which is raised where certain policies for England are set by MPs from all

four constituent nations whereas similar policies for Scotland or Wales might be decided in the

devolved assemblies by legislators from those countries alone. Alternative proposals for English

regional government have stalled, following a poorly received referendum on devolved

government for the North East of England, which had hitherto been considered the region most

in favour of the idea, with the exception of Cornwall, where there is widespread support for a

Cornish Assembly, including all five Cornish MPs. England is therefore governed according to

the balance of parties across the whole of the United Kingdom.

The government has no plans to establish an English parliament or assembly although several

pressure groups are calling for one. One of their main arguments is that MPs (and thus voters)

from different parts of the UK have inconsistent powers. Currently an MP from Scotland can

vote on legislation which affects only England but MPs from England (or indeed Scotland)

cannot vote on matters devolved to the Scottish parliament. Indeed, the former Prime Minister

Gordon Brown, who is an MP for a Scottish constituency, introduced some laws that only affect

England and not his own constituency. This anomaly is known as the West Lothian question.

The policy of the UK Government in England was to establish elected regional assemblies with

no legislative powers. The London Assembly was the first of these, established in 2000,

following a referendum in 1998, but further plans were abandoned following rejection of a

proposal for an elected assembly in North East England in a referendum in 2004. Unelected

regional assemblies remain in place in eight regions of England.

Scottish Parliament

The Scottish Parliament is the national, unicameral legislature of Scotland, located in the

Holyrood area of the capital Edinburgh. The Parliament, informally referred to as "Holyrood"

(cf. "Westminster"), is a democratically elected body comprising 129 members who are known

as Members of the Scottish Parliament, or MSPs. Members are elected for four-year terms under

the mixed member proportional representation system. As a result, 73 MSPs represent individual

geographical constituencies elected by the plurality ("first past the post") system, with a further

56 returned from eight additional member regions, each electing seven MSPs.

The current Scottish Parliament was established by the Scotland Act 1998 and its first meeting as

a devolved legislature was on 12 May 1999. The parliament has the power to pass laws and has

limited tax-varying capability. Another of its roles is to hold the Scottish Government to account.

The "devolved matters" over which it has responsibility include education, health, agriculture,

and justice. A degree of domestic authority, and all foreign policy, remains with the UK

Parliament in Westminster.

The public take part in Parliament in a way that is not the case at Westminster through Cross-

Party Groups on policy topics which the interested public join and attend meetings of alongside

Members of the Scottish Parliament (MSPs).

The resurgence in Celtic language and identity, as well as 'regional' politics and development,

has contributed to forces pulling against the unity of the state. This was clearly demonstrated

when - although some argue it was influenced by general public dillusionment with Labour - the

Scottish National Party (SNP) became the largest party in the Scottish Parliament by one seat.

Alex Salmond (leader of SNP) has since made history by becoming the first First Minister of

Scotland from a party other than Labour. The SNP govern as a minority administration at

Holyrood. Nevertheless, recent opinion polls have suggested that nationalism (i.e., a desire to

break up the UK) is rising within Scotland and England. However, the polls have been known to

be inaccurate in the past (for example, in the run up to the 1992 General Election). Moreover,

polls carried out in the 1970s and the 1990s showed similar results, only to be debunked at

elections. While support for breaking up the UK was strongest in Scotland, there was still a clear

lead for unionism over nationalism. However, an opinion poll in May 2012 showed support for

independence at only 31%, a record low, showing the chance of independence being very low.

3. COURTS IN THE UNITED KINGDOM OF GREAT BRITAIN

The Courts of the United Kingdom are separated into three separate jurisdictions, the Courts of

England and Wales, Courts of Scotland and the Courts of Northern Ireland, as the United

Kingdom does not have a single unified judicial system.

However, in the area of immigration law, the respective jurisdictions of the Asylum and

Immigration Tribunal and the Special Immigration Appeals Commission cover all of the United

Kingdom; in employment law, Employment tribunals and the Employment Appeal Tribunal

have jurisdiction in the whole of Great Britain (i.e., not in Northern Ireland).

The Constitutional Reform Act 2005 created a new Supreme Court of the United Kingdom to

take over the judicial functions of the House of Lords and devolution cases from the Judicial

Committee of the Privy Council. The Supreme Court began work in 2009, and serves as the

highest court of appeal in England and Wales and in Northern Ireland, and for civil cases in

Scotland. The High Court of Justiciary remains the court of last resort in Scotland for criminal

cases.

Court of Appeal The Court of Appeal deals only with appeals from other courts or tribunals. The Court of Appeal

consists of two divisions: the Civil Division hears appeals from the High Court and County

Court and certain superior tribunals, while the Criminal Division may only hear appeals from the

Crown Court connected with a trial on indictment (i.e. for a serious offence). Its decisions are

binding on all courts, including itself, apart from the Supreme Court.

High Court The High Court of Justice functions both as a civil court of first instance and a criminal and civil

appellate court for cases from the subordinate courts. It consists of three divisions: the Queen's

Bench, the Chancery and the Family divisions. The divisions of the High Court are not separate

courts, but have somewhat separate procedures and practices adapted to their purposes. Although

particular kinds of cases will be assigned to each division depending on their subject matter, each

division may exercise the jurisdiction of the High Court. However, beginning proceedings in the

wrong division may result in a costs penalty.

Crown Court and County Court The Crown Court is a criminal court of both original and appellate jurisdiction which in addition

handles a limited amount of civil business both at first instance and on appeal. It was established

by the Courts Act 1971. It replaced the Assizes whereby High Court judges would periodically

travel around the country hearing cases, and Quarter Sessions which were periodic county courts.

The Old Bailey is the unofficial name of London's most famous Criminal Court, which is now

part of the Crown Court. Its official name is the "Central Criminal Court". The Crown Court also

hears appeals from Magistrates' Courts.

The Crown Court is the only court in England and Wales that has the jurisdiction to try cases on

indictment and when exercising such a role it is a superior court in that its judgments cannot be

reviewed by the Administrative Court of the Queen‘s Bench Division of the High Court.

The Crown Court is an inferior court in respect of the other work it undertakes, viz. inter alia,

appeals from the magistrates‘ courts and other tribunals.

County courts are statutory courts with a purely civil jurisdiction, sitting in 92 different towns

and cities across England and Wales. They are presided over by either a district or circuit judge

and, except in a small minority of cases such as civil actions against the police, the judge sits

alone as trier of fact and law without assistance from a jury. County courts have divorce

jurisdiction and undertake private family cases, care proceedings and adoptions. County courts

are local courts in the sense that each one has an area over which certain kinds of jurisdiction—

such as actions concerning land or cases concerning children who reside in the area—are

exercised. For example, proceedings for possession of land must be started in the county court in

whose district the property lies. However, in general any county court in England and Wales may

hear any action and claims are frequently transferred from court to court.

In addition, there are many other specialist courts. These are often described as "Tribunals"

rather than courts, but the difference in name is not of any great consequence. For example an

Employment Tribunal is an inferior court of record for the purposes of the law of contempt of

court. In many cases there is a statutory right of appeal from a tribunal to a particular court or

specially constituted appellate tribunal. In the absence of a specific appeals court, the only

remedy from a decision of a Tribunal may be a judicial review to the High Court, which will

often be more limited in scope than an appeal.

Magistrates', family proceedings and youth courts Magistrates' courts are presided over by a bench of lay magistrates (aka justices of the peace), or

a legally-trained district judge (formerly known as a stipendiary magistrate), sitting in each local

justice area. There are no juries. They hear minor criminal cases, as well as certain licensing

appeals. Youth courts are run on similar lines to Adult magistrates' courts but deal with offenders

aged between the ages of 10 and 17 inclusive. Youth courts are presided over by a specially

trained subset of experienced adult magistrates or a district judge. Youth magistrates have a

wider catalogue of disposals available to them for dealing with young offenders and often hear

more serious cases against youths (which for adults would normally be dealt with by the Crown

Court). In addition some Magistrates' Courts are also a Family Proceedings Court and hear

Family law cases including care cases and they have the power to make adoption orders. Family

Proceedings Courts are not open to the public. The Family Proceedings Court Rules 1991 apply

to cases in the Family Proceedings Court. Youth courts are not open to the public for

observation, only the parties involved in a case being admitted.

4. PARTICIPANTS IN A TRIAL

A judicial examination and determination of facts and legal issues arising between parties to a

civil or criminal action.

In the United States, the trial is the principal method for resolving legal disputes that parties

cannot settle by themselves or through less formal methods. The chief purpose of a trial is to

secure fair and impartial administration of justice between the parties to the action. A trial seeks

to ascertain the truth of the matters in issue between the parties and to apply the law to those

matters. Also, a trial provides a final legal determination of the dispute between the parties.

The two main types of trials are civil trials and criminal trials. Civil trials resolve civil actions,

which are brought to enforce, redress, or protect private rights. In general, all types of actions

other than criminal actions are civil actions. In a criminal trial, a person charged with a crime is

found guilty or not guilty and sentenced. The government brings a criminal action on behalf of

the citizens to punish an infraction of criminal laws.

The cornerstone of the legal system in the United States is the jury trial. Many of the opinions of

the U.S. Supreme Court, which set forth the law of the land, are based on the issues and disputes

raised in jury trials. The jury trial method of resolving disputes is premised on the belief that

justice is best achieved by pitting the parties against each other as adversaries, with each party

advocating its own version of the truth. Under the Adversary System, the jury, a group of

citizens from the community, decides which facts in dispute are true. A judge presides at the trial

and determines and applies the law. At the end of the trial, the judge will enter a judgment that

constitutes the decision of the court. The parties must adhere to the judgment of the court.

Not all trials are jury trials. A case may also be tried before a judge. This is known as a court trial

or a bench trial. A court trial is basically identical to a jury trial, except the judge decides both

the facts and the law applicable to the action. A criminal defendant is always entitled to a trial by

jury. Also, common-law civil claims usually are tried by jury. Often, however, actions created by

statute may be tried only before the court. In some court trials, the court will have an Advisory

Jury. The advisory jury observes the proceedings just as an ordinary jury would, but the judge

need not accept the advisory jury's verdict.

Trial Participants

Judge The judge presides over the court and is the central figure in a trial. It is the presiding

judge's responsibility to conduct an orderly trial and to assure the proper administration of justice

in his court. The judge decides all legal questions that arise during the trial, controls the

presentation of evidence by the parties, instructs the jury, and generally directs every aspect of

the trial. The judge must be impartial, and any matter that lends even the appearance of

impartiality to the trial may disqualify the judge. Because of his importance, the presiding judge

must be present in court from the opening of the trial until its close and must be easily accessible

during jury trials while the jury is deliberating on its verdict.

The judge holds a place of honor in the courtroom. The judge sits above the attorneys, the

parties, the jury, and the witness stand. Everyone in the courtroom must stand when the judge

enters or exits the courtroom. The judge is addressed as "your Honor" or "the Court." In the

United States, judges usually wear black robes during trials, which signify the judges'

importance. The judge will conduct the trial with dignity. If the judge feels that a person is

detracting from the dignity of the proceedings or otherwise disrupting the courtroom, he or she

may have the person removed.

A trial judge has broad powers in his courtroom. In general, the presiding judge has discretion on

all matters relating to the orderly conduct of a trial, except those matters regulated by rule or

statute. The judge controls routine matters such as the time when court convenes and adjourns

and the length of a recess. When the parties offer evidence, the judge rules on any legal

objections. The judge also instructs the jury on the law after all of the evidence has been

submitted.

Although the judge has broad discretion during the trial, his rulings must not be Arbitrary or

unfair. Also, the judge must not prejudice the jury against any of the parties. Unless special

circumstances are present, however, a party can do little during the trial if it disagrees with a

ruling by the judge. The judge's decision is usually final for the duration of the trial, and the

party's only recourse is to appeal the judge's decision after the trial has ended.

Parties In a trial, the term party refers to an individual, organization, or government that

participates in the trial and has an interest in the trial's outcome. The main parties to a lawsuit are

the plaintiff and the defendant. In a civil trial, the plaintiff initiates the lawsuit and seeks a

remedy from the court for private civil wrongs allegedly committed by the defendant or

defendants. There may be more than one plaintiff in a civil trial if they allege similar wrongs

against a common defendant. In a criminal trial, the plaintiff is the government, and the

defendant is an individual accused of a crime.

A party in a civil trial may be represented by counsel or may represent himself. Each party has a

fundamental right to be present at every critical stage of the proceedings, although this right is

not absolute. A party may, however, choose not to attend the trial and be represented in court

solely by an attorney. The absence of a party does not deprive the court of jurisdiction. The court

must afford the parties the opportunity to be present, but if the opportunity is given, a party's

absence does not affect the court's right to proceed with the civil trial.

In a criminal trial, the government is represented by an attorney, known as the prosecutor, who

seeks to prove the guilt of the defendant. Although a criminal defendant may represent himself

during trial, he is entitled to representation by counsel. If a defendant cannot afford an attorney,

the court will appoint one for him. A criminal defendant has a constitutional right in most

jurisdictions to be present at every critical stage of the trial, from jury selection to sentencing.

Also, many court decisions have held that the trial of an accused without his presence at every

critical stage of the trial violates his constitutional right to DUE PROCESS. A defendant may waive

this right and choose not to attend the trial or portions of the trial.

Jury The jury is a group of citizens who are charged with finding facts and reaching a verdict

based on the evidence presented during the trial. The jury renders a verdict decisive of the action

by applying the facts to the law, which is explained to the jury by the judge. The jury is chosen

from the men and women in the community where the trial is held. The number of jurors

required for the trial is set by statute or court rule. Criminal trials usually require 12 jurors,

whereas civil trials commonly use six-person juries. Also, alternate jurors are selected in the

event that a regular juror becomes unable to serve during the trial. Longer trials require more

alternate jurors. The jurors sit in the jury box and observe all of the evidence offered during the

trial. After the evidence is offered, the judge instructs the jury on the law, and the jury then

begins deliberations, after which it will render a verdict based on the evidence and the judge's

instructions on the law. In civil trials, the jury determines whether the defendant is liable for the

injuries claimed by the plaintiff. In criminal trials, the jury determines the guilt of the accused.

Attorneys Every party in a trial has the right to be represented by an attorney or attorneys,

although a party is free to conduct the trial himself. If a party elects to be represented by an

attorney, the court must hear the attorney's arguments; to refuse to hear the attorney would deny

the party Due Process of Law. In a criminal trial, the defendant has a right to be represented by

an attorney, or attorneys, of his choosing. If the defendant cannot afford an attorney, and the

crime is more serious than a petty offense, the court will appoint one for him. An indigent party

in a civil lawsuit is generally not entitled to a court-appointed attorney, although a court may

appoint an attorney to represent an indigent prisoner in a Civil Rights case.

The attorneys are present in a trial to represent the parties, but they also have a duty to see that

the trial is fair and impartial. The trial judge may dismiss an attorney or impose other sanctions

for improper conduct. Thus, attorneys must at all times conform their conduct to the law.

Attorneys must avoid any conduct that might tend to improperly influence the jury. Also,

attorneys' conduct is governed by various ethical rules. Within these bounds, however, the

attorney may zealously represent her client and conduct the trial as she sees fit.

Witnesses provide the chief means by which evidence is offered in a trial. Through witnesses, a

party will attempt to establish the facts that make up the elements of his case. A witness may

testify on virtually any matter if the matter is relevant to the issues in the trial and the witness

observed or has knowledge of the events to which he is testifying. Witnesses are also used to

provide the foundation for documents and other physical evidence. For example, if the state

wishes to introduce the defendant's fingerprints from a crime scene in a criminal trial, it must call

as a witness the police officer who identified the fingerprints in order for the fingerprints to be

admitted as evidence. The police officer would testify that he found the fingerprints at the crime

scene and that he determined that the fingerprints matched the defendant's fingerprints.

A witness must testify truthfully. Before giving testimony in a trial, a witness takes an oath or

affirmation to tell the truth; a witness who refuses the oath or affirmation will not be permitted to

testify. A typical oath states, "I swear to tell the truth, the whole truth and nothing but the truth,

so help me God." The exact wording of the oath is not important, however. As long as the judge

is satisfied that the witness will tell the truth, the witness may take the witness stand. A witness

who testifies falsely commits the crime of perjury.

Virtually anyone may be a witness in a trial. Generally, a person is competent to be a witness in a

trial if he is able to perceive, remember, and communicate the events to which he is to testify and

understands his obligation to tell the truth. Thus, even a young child may be a witness, as long as

the judge is satisfied that the child is able to relate the events to which he will testify and

understands that he must tell the truth. Similarly, people with mental disabilities may testify at a

trial if they meet the same criteria.

One special type of witness is an expert witness. Normally, a witness may only testify as to what

she saw, heard, or otherwise observed. An expert witness, if properly qualified, may offer her

opinion on the subject of her expertise. Expert witnesses are used when the subject matter of the

witness's testimony is outside the jury's common knowledge or experience. Expert witness

testimony is often extremely important in lawsuits. For example, in a criminal trial where the

defendant pleads the Insanity Defense, the experts' opinions on whether the defendant was insane

at the time of the crime will most likely decide the outcome of the trial.

Support Personnel A number of people may assist the trial judge in conducting the trial. The

court reporter, also known as the stenographer, records every word stated during the trial, except

where the judge holds a conference off the record. The court reporter prepares an official

transcript of the trial if a party requests it. The bailiff is an officer of the court who keeps order in

the courtroom, has custody of the jury, and has custody of prisoners who appear in the

courtroom. In federal court, U.S. MARSHALS have custody of prisoners who appear in court. A

language interpreter is present in a courtroom when a party or witness is unable to speak English.

Finally, most judges have a law clerk who assists the judge in conducting research and drafting

legal opinions.

5. MAGNA CARTA Magna Carta (Latin for Great Charter), also called Magna Carta Libertatum or The Great Charter

of the Liberties of England, is an Angevin charter originally issued in Latin. It was sealed under

oath by King John at Runnymede, on the bank of the River Thames near Windsor, England, on

15 June 1215.

Magna Carta was the first document forced onto a King of England by a group of his subjects,

the feudal barons, in an attempt to limit his powers by law and protect their rights.

The charter is widely known throughout the English speaking world as an important part of the

protracted historical process that led to the rule of constitutional law in England and beyond.

The 1215 charter required King John to proclaim certain liberties and accept that his will was not

arbitrary—for example by explicitly accepting that no "freeman" (in the sense of non-serf) could

be punished except through the law of the land, a right that still exists. The name Runnymede

may be derived from the Anglo-Saxon 'runieg' (regular meeting) and 'mede' (mead or meadow),

describing a place in the meadows used to hold regular meetings. The Witan, Witenagemot or

Council of the Anglo-Saxon kings of the 7th to 11th centuries was held from time to time at

Runnymede during the reign of Alfred the Great. The Council met usually in the open air. This

political organ was transformed in succeeding years, influencing the creation of England's 13th

century parliament.

The water-meadow at Runnymede is the most likely location at which, on 15 June 1215, King

John sealed the Magna Carta, and is the site of the Magna Carta Memorial. Magna Carta Island

on the opposite bank of the river is another possible site. The charter indicates Runnymede by

name. The Magna Carta had an impact on common and constitutional law as well as political

representation also affecting the development of parliament. The charter's association with ideals

of democracy, limitation of power, equality and freedom under law has attracted placement at

Runnymede of monuments and commemorative symbols.

It was preceded and directly influenced by the Charter of Liberties in 1100, in which King Henry

I had specified particular areas wherein his powers would be limited. Magna Carta was important

in the colonisation of America, as England's legal system was used as a model for many of the

colonies when they were developing their own legal systems.

It was translated into vernacular French as early as 1219, and reissued later in the 13th century in

modified versions. The later versions excluded the most direct challenges to the monarch's

authority that had been present in the 1215 charter. The charter first passed into law in 1225; the

1297 version, with the long title (originally in Latin) "The Great Charter of the Liberties of

England, and of the Liberties of the Forest", still remains on the statute books of England and

Wales.

Despite its recognised importance, by the second half of the 19th century nearly all of its clauses

had been repealed in their original form. Three clauses currently remain part of the law of

England and Wales, however, and it is generally considered part of the uncodified constitution.

Lord Denning described it as "the greatest constitutional document of all times – the foundation

of the freedom of the individual against the arbitrary authority of the despot". In a 2005 speech,

Lord Woolf described it as the "first of a series of instruments that now are recognised as having

a special constitutional status", the others being the Habeas Corpus Act (1679), the Petition of

Right (1628), the Bill of Rights (1689), and the Act of Settlement (1701).

It was Magna Carta, over other early concessions by the monarch, which survived to become a

"sacred text". In practice, Magna Carta did not generally limit the power of kings in the medieval

period, but by the time of the English Civil War it had become an important symbol for those

who wished to show that the King was bound by the law. It influenced the early settlers in New

England and inspired later constitutional documents, including the United States Constitution.

Rebellion and creation of the document

Some barons began to conspire against King John in 1209 and in 1212; promises made to the

northern barons and John's submission to universal rule of the papacy in 1213 delayed a French

invasion. Over the course of his reign a combination of higher taxes, unsuccessful wars that

resulted in the loss of English barons' titled possessions in Normandy following the Battle of

Bouvines (1214), and the conflict with Pope Innocent III (ending with John's submission in

1213) had made King John unpopular with many of his barons.

In 1215 some of the most important barons engaged in open rebellion against their king. Such

rebellions were not particularly unusual in this period. Every king since William the Conqueror

had faced rebellions. What was unusual about the 1215 rebellion was that the rebels had no

obvious replacement for John; in every previous case there had been an alternative monarch

around whom the rebellion could rally. Arthur of Brittany would have been a possibility, if he

had not disappeared years earlier while he was John's prisoner; Arthur was widely believed to

have been murdered by John. The next closest alternative was Prince Louis of France, but as the

husband of Henry II's granddaughter, his claim was tenuous, and the English had been at war

with the French for thirty years. Instead of a claimant to the throne, the barons decided to base

their rebellion around John's oppressive government. In January 1215, the barons made an oath

that they would "stand fast for the liberty of the church and the realm", and they demanded that

King John confirm the Charter of Liberties, from what they viewed as a golden age.

John attempted to use the lengthy negotiations to avoid a confrontation while he waited for

support from the Pope and hired mercenaries, adopting various measures to weaken the rebels'

position and improve his own, including taking the cross as a crusader in March 1215 (which the

Pope applauded but most other observers considered insincere), demanding a new oath of

allegiance, and confirming London's city charter in May 1215. During negotiations between

January and June 1215, a document was produced, which historians have termed 'The Unknown

Charter of Liberties', seven of the articles of which later appeared in the 'Articles of the Barons'

and the Runnymede Charter. In May, King John offered to submit issues to a committee of

arbitration with Pope Innocent III as the supreme arbiter, but the barons continued in their

defiance. With the support of Prince Louis the French Heir and of King Alexander II of the

Scots, they entered London in force on 10 June 1215, with the city showing its sympathy with

their cause by opening its gates to them. They, and many of the moderates not in overt rebellion,

forced King John to agree to a document later known as the 'Articles of the Barons', to which his

Great Seal was attached in the meadow at Runnymede on 15 June 1215. In return, the barons

renewed their oaths of fealty to King John on 19 June 1215, which is when the document Magna

Carta was created.

In return for King John's submission to his papal and universal authority, Innocent III declared

Magna Carta annulled, though many English Barons did not accept this action.

The contemporary, but unreliable chronicler, Roger of Wendover, recorded the events in his

Flores Historiarum. A formal document to record the agreement was created by the royal

chancery on 15 July: this was the original Magna Carta, though it was not known by that name at

the time. An unknown number of copies of it were sent out to officials, such as royal sheriffs and

bishops.

Clause 61

The 1215 document contained a large section that is now called clause 61 (the clauses were not

originally numbered). This section established a committee of 25 barons who could at any time

meet and overrule the will of the King if he defied the provisions of the Charter, seizing his

castles and possessions if it was considered necessary. This was based on a medieval legal

practice known as distraint, but it was the first time it had been applied to a monarch.

Distrust between the two sides was overwhelming. What the barons really sought was the

overthrow of the King; the demand for a charter was "mere subterfuge." Clause 61 was a serious

challenge to John's authority as a ruling monarch. He renounced it as soon as the barons left

London; Pope Innocent III also annulled the "shameful and demeaning agreement, forced upon

the King by violence and fear." He rejected any call for restraints on the King, saying it impaired

John's dignity. He saw it as an affront to the Church's authority over the King and the 'papal

territories' of England and Ireland, and he released John from his oath to obey it. The rebels

knew that King John could never be restrained by Magna Carta and so they sought a new King.

England was plunged into a civil war, known as the First Barons' War. With the failure of Magna

Carta to achieve peace or restrain John, the barons reverted to the more traditional type of

rebellion by trying to replace the monarch they disliked with an alternative. In a measure of some

desperation, despite the tenuousness of his claim and despite the fact that he was French, they

offered the crown of England to Prince Louis of France.

As a means of preventing war, Magna Carta was a failure, rejected by most of the barons, and

was legally valid for no more than three months. The death of King John in 1216, however,

secured the future of Magna Carta.

United States

When Englishmen left their homeland for the new world, they brought with them charters

establishing the colonies. The Massachusetts Bay Company charter for example stated the

colonists would "have and enjoy all liberties and immunities of free and natural subjects." The

Virginia Charter of 1606 (which was largely drafted by Sir Edward Coke) stated the colonists

would have all "liberties, franchises and immunities" as if they had been born in England. The

Massachusetts Body of Liberties contained similarities to clause 29 of Magna Carta, and the

Massachusetts General Court in drawing it up viewed Magna Carta as the chief embodiment of

English common law. The other colonies would follow their example. In 1638 Maryland sought

to recognise Magna Carta as part of the law of the province but it was not granted by the King.

In 1687 William Penn published The Excellent Privilege of Liberty and Property: being the

birth-right of the Free-Born Subjects of England, which contained the first copy of Magna Carta

printed on American soil. Penn's comments reflected Coke's, indicating a belief that Magna

Carta was a fundamental law. The colonists drew on English lawbooks leading them to an

anachronistic interpretation of Magna Carta, believing it guaranteed trial by jury and habeas

corpus.

The development of Parliamentary sovereignty in the British Isles did not constitutionally affect

the Thirteen Colonies, which retained an adherence to English common law, but it would come

to directly affect the relationship between Britain and the colonies. When American colonists

raised arms against Britain, they were fighting not so much for new freedom, but to preserve

liberties and rights, as believed to be enshrined in Magna Carta and as later included in the Bill

of Rights.

The American Constitution is the supreme law of the land, recalling the manner in which Magna

Carta had come to be regarded as fundamental law. This heritage is quite apparent. In comparing

Magna Carta with the Bill of Rights: the Fifth Amendment guarantees: "No person shall be

deprived of life, liberty or property without due process of law." In addition, the United States

Constitution included a similar writ in the Suspension Clause, article 1, section 9: "The privilege

of the writ habeas corpus shall not be suspended, unless when in cases of rebellion or invasion,

the public safety may require it." Each of these proclaim no person may be imprisoned or

detained without proof that he or she did wrong. The Ninth Amendment to the United States

Constitution states that, "The enumeration in the Constitution, of certain rights, shall not be

construed to deny or disparage others retained by the people." The framers of the United States

Constitution wished to ensure that rights they already held, such as those provided by Magna

Carta, were not lost unless explicitly curtailed in the new United States Constitution.

The United States Supreme Court has explicitly referenced Lord Coke's analysis of Magna Carta

as an antecedent of the Sixth Amendment's right to a speedy trial.

6. SOLICITORS AND BARRISTERS

The legal profession is divided between solicitors and barristers. In a typical civil action, the

solicitors will investigate the matter; collect together and exchange with the other side relevant

documents; obtain statements of evidence from witnesses; consult experts; advise on the relevant

procedure, law and tactics, correspond with the solicitors for the other party, select a barrister

when necessary, attend interim hearings (with or without a barrister), and generally maintain

contact with the client. Solicitors normally practise in partnership. The partners will have

working for them a number of assistant solicitors and trainee solicitors (graduates who are

completing their training). The division of the work amongst those involved will depend on the

importance and size of the case.

Barristers, often referred to as "counsel", are specialist advocates who have the automatic right to

appear in all levels of civil court. They also draft statements of case (commonly known as

"pleadings" – see below); give opinions on particular areas of the law in which they have

particular experience, and prepare "skeleton arguments" (see below) for hearings. Barristers do

not generally deal with clients direct. Senior barristers may be appointed as Queen's Counsel

("silks"). All other barristers are known as juniors. Barristers are self-employed and practise with

other barristers in sets of "chambers".

Solicitors at trials also appear as advocates in the higher courts, provided they have been

authorised to do so by the Law Society. Authorisation is granted to those solicitors able to

demonstrate the appropriate advocacy experience and expertise.

Barristers and solicitors are eligible, after 10 years in practice, for appointment as High Court

Judges. Most appointments, however, are of barristers.

A solicitor is a lawyer who traditionally deals with any legal matter in court.

In the United Kingdom, a few Australian states, Hong Kong, South Africa (where they are called

attorneys) and the Republic of Ireland, the legal profession is split between solicitors and

barristers (called advocates in some countries), and a lawyer will usually only hold one of the

two titles. However, in Canada, New Zealand and most Australian states, the legal profession is

now for practical purposes "fused", allowing lawyers to hold the title of "barrister and solicitor"

and practise as both. The distinction between barristers and solicitors is, however, retained. Some

legal graduates will start off as one and then decide to become the other.

England and Wales. Before the creation of the Supreme Court of Judicature under the Supreme

Court of Judicature Act 1873, solicitors practised in the Court of Chancery, attorneys practised in

the common law courts and proctors practised in the ecclesiastical courts. After 1873 the offices

of "attorney" and "proctor" disappeared as terms relating to legally qualified persons, being

replaced by "Solicitor of the Supreme Court of England and Wales", except for the unique

government offices of Queen's or King's Proctor (now generally Treasury Solicitor which is co-

held with the title), and Attorney-General. Since the replacement of the judicial aspect of the

House of Lords with the Supreme Court the full title of a solicitor is "Solicitor of the Senior

Courts of England and Wales".

The term "attorney" is however still used under English law to refer to someone legally

appointed or empowered (who may but need not be legally qualified) to act for another person.

Currently, the term is most commonly used to refer to someone so appointed under the

provisions of the Mental Capacity Act 2005 to act in this manner in a Lasting Power of Attorney.

Practitioners in specialist professions, notably intellectual property, are also referred to as

attorneys, for example Registered Patent Attorney or Registered Trade Mark Attorney.

In the English legal system, solicitors traditionally dealt with any legal matter including

conducting proceedings in courts although solicitors were required to engage a barrister as

advocate in a High Court or above after the profession split in two. Minor criminal cases are

tried in Magistrates' Courts, which constitute by far the majority of courts. More serious criminal

cases still start in the Magistrates Court and may then be transferred to a higher court.

The majority of civil cases are tried in county courts and are almost always handled by solicitors.

Cases of higher value (£50,000 or above) and those of unusual complexity are tried in the High

Court, and barristers, as the other branch of the English legal profession, have traditionally

carried out the functions of advocacy in the High Court and Crown Court and Court of Appeal.

However, barristers have now lost this exclusivity and solicitors may now extend their advocacy

to such courts. In the past, barristers did not deal with the public directly. This rigid separation

no longer applies. Solicitor advocates with extended rights of audience may now act as advocates

at all levels of the courts. Conversely, the public may now hire and interact with a barrister

directly in certain types of work without having to go to a solicitor first.[4] Registered Patent

Attorneys and Registered Trade Mark Attorneys also have rights of audience in intellectual

property matters.

Solicitors in England and Wales who wish to practise must pay an annual fee to obtain a

Practising Certificate. This fee is paid to the Law Society of England and Wales, which

represents the profession. The Solicitors Regulation Authority, though funded by these fees, acts

independently of the Law Society. Together, the two bodies make up the complete system of

professional regulation for solicitors. Complaints about solicitors if not satisfactorily resolved by

the solicitors' firm may be made to the Legal Ombudsman.

Training and qualifications. The training and qualification required to enter the profession by

being admitted as a solicitor is regulated by the Solicitors Regulation Authority. There are two

graduate routes of entry into the profession. Prospective solicitors holding a qualifying law

degree proceed to enroll with the Law Society as a student member and study the Legal Practice

Course. Those holding a non-law degree but one which is a "qualifying degree" must in addition

have completed a conversion course prior to enrolling on the Legal Practice Course. Once the

Legal Practice Course has been completed, the prospective solicitor usually must then undertake

two years' apprenticeship, known as a training contract, with a firm entitled to take trainee

solicitors. The training contract was formerly known as an articled clerkship.

It is also possible to qualify as a solicitor without having attended university by being admitted

as a Fellow of the Institute of Legal Executives (FILEX), and thereafter completing the required

number of years of practical experience, and studying for the Legal Practice Course.

A barrister (also known as barrister-at-law or Bar-at-law) is a member of one of the two classes

of lawyer found in many common law jurisdictions with split legal professions. Barristers

specialize in courtroom advocacy, drafting legal pleadings, and giving expert legal opinions.

They can be contrasted with solicitors – the other class of lawyer in split professions – who have

more direct access to clients, and may do transactional-type legal work. Barristers are rarely

hired by clients directly but instead are retained (or instructed) by solicitors to act on behalf of

clients. In some legal systems, including those of Scotland, Belgium, South Africa, India,

Scandinavian jurisdictions, Israel, Brazil and the British Crown dependencies of Jersey,

Guernsey and the Isle of Man, a professional with similar responsibilities is called an advocate.

The historical difference between the two professions – and the only essential difference in

England and Wales today – is that solicitors are attorneys, which means that they can act in the

place of their client for legal purposes (as in signing contracts) and may conduct litigation on

their behalf by making applications to the court, writing letters in litigation to the client's

opponent, and so on. A barrister is not an attorney and is usually forbidden, either by law or

professional rules or both, from "conducting" litigation. This means that, while the barrister

speaks on the client's behalf in court, he or she can do so only when instructed by a solicitor or

certain other qualified professional clients, such as patent agents.

Many countries with common law legal systems, like New Zealand (though it is possible there to

practice as a barrister sole), have abandoned the separate systems of legal representation, and an

attorney can perform all the functions of each.

A barrister is a lawyer who represents a litigant as advocate before a court of appropriate

jurisdiction. A barrister speaks in court and presents the case before a judge or jury. In some

jurisdictions, a barrister receives additional training in evidence law, ethics, and court practice

and procedure. In contrast, a solicitor generally meets with clients, does preparatory and

administrative work and provides legal advice. In this role, he or she may draft and review legal

documents, interact with the client as necessary, prepare evidence, and generally manage the

day-to-day administration of a lawsuit. A solicitor can provide a crucial support role to a

barrister when in court, such as managing large volumes of documents in the case or even

negotiating a settlement outside the courtroom while the trial continues inside.

There are other essential differences. A barrister will usually have rights of audience in the

higher courts, whereas other legal professionals will often have more limited access, or will need

to acquire additional qualifications to have such access. In countries where there is a split

between the roles of barrister and solicitor, the barrister, in civil law jurisdictions is responsible

for appearing in trials or pleading cases before the courts.

Barristers usually have particular knowledge of case law, precedent, and the skills to "build" a

case. When a solicitor in general practice is confronted with an unusual point of law, they may

seek the "opinion of counsel" on the issue.

In most countries, barristers operate as sole practitioners, and are prohibited from forming

partnerships or from working as a barrister as part of a corporation. (In 2009, the Clementi

Report recommended the abolition of this restriction in England and Wales.) However, barristers

normally band together into "chambers" to share clerks (administrators) and operating expenses.

Some chambers grow to be large and sophisticated, and have a distinctly corporate feel. In some

jurisdictions, barristers may be employed by firms of solicitors, banks, or corporations as in-

house legal advisers.

In contrast, solicitors work directly with the clients and are responsible for engaging a barrister

with the appropriate expertise for the case. Barristers generally have little or no direct contact

with their 'lay clients', particularly without the presence or involvement of the solicitor. All

correspondence, inquiries, invoices, and so on, will be addressed to the solicitor, who is

primarily responsible for the barrister's fees.

In court, barristers are often visibly distinguished from solicitors by their apparel. For example,

in Ireland, England, and Wales, a barrister usually wears a horsehair wig, stiff collar, bands, and

a gown. Since January 2008, solicitor advocates have also been entitled to wear wigs, but wear

different gowns.

In many countries the traditional divisions between barristers and solicitors are breaking down.

Barristers once enjoyed a monopoly on appearances before the higher courts, but in England,

Wales, Scotland, and Northern Ireland this has now been abolished, and solicitor advocates can

generally appear for clients at trial. Increasingly, firms of solicitors are keeping even the most

advanced advisory and litigation work in-house for economic and client relationship reasons.

Similarly, the prohibition on barristers taking instructions directly from the public has also been

widely abolished. But in practice, direct instruction is still a rarity in most jurisdictions, partly

because barristers with narrow specialisations or who are only really trained for advocacy are not

prepared to provide general advice to members of the public.

Historically barristers have had a major role in trial preparation, including drafting pleadings and

reviewing evidence. In some areas of law, that is still the case. In other areas, it is relatively

common for the barrister to receive the brief from the instructing solicitor to represent a client at

trial only a day or two before the proceeding. Part of the reason for this is cost. A barrister is

entitled to a 'brief fee' when a brief is delivered, and this represents the bulk of his fee in relation

to any trial. They are then usually entitled to a 'refresher' for each day of the trial after the first.

But if a case is settled before the trial, the barrister is not needed and the brief fee would be

wasted. Some solicitors avoid this by delaying delivery of the brief until it is certain the case will

go to trial.

The United States does not draw a distinction between lawyers as pleaders (barristers) and

lawyers as agents (or solicitors). All lawyers who have passed a bar examination and have been

admitted to practice may prosecute or defend in the courts of the state where they are admitted.

Historically, a distinction was made, and a separate label for barristers (called "counselors")

existed in certain states, though both professions have long since been fused into the all-purpose

attorney. Attorneys specializing in court procedure, combining advocacy and case preparation,

are called trial attorneys or litigators.

South Carolina still requires attorneys to be licensed separately to plead in a courtroom.

Additionally, some state appellate courts require attorneys to obtain a separate certificate of

admission to plead and practice in the appellate court. Federal courts require specific admission

to that court's bar to practice before it. At the state appellate level and in Federal courts, there is

generally no separate examination process, although some U.S. district courts require an

examination on practices and procedures in their specific courts. Unless an examination is

required, admission is usually granted as a matter of course to any licensed attorney in the state

where the court is located. Some federal courts will grant admission to any attorney licensed in

any U.S. jurisdiction.

United Kingdom, England and Wales

Although with somewhat different laws, England and Wales are considered within the United

Kingdom a single united and unified legal jurisdiction for the purposes of both civil and criminal

law, alongside Scotland and Northern Ireland, the other two legal jurisdictions within the United

Kingdom. England and Wales are covered by a common bar (an organisation of barristers) and a

single law society (an organisation of solicitors).

The profession of barrister in England and Wales is a separate profession from that of solicitor. It

is, however, possible to hold the qualification of both barrister and solicitor at the same time. It is

not necessary to leave the bar to qualify as a solicitor.

Barristers are regulated by the Bar Standards Board, a division of the General Council of the Bar.

A barrister must be a member of one of the Inns of Court, which traditionally educated and

regulated barristers. There are four Inns of Court: The Honourable Society of Gray's Inn, The

Honourable Society of Lincoln's Inn, The Honourable Society of the Middle Temple, and The

Honourable Society of the Inner Temple. All are situated in central London, near the Royal

Courts of Justice. They perform scholastic and social roles, and in all cases, provide financial aid

to student barristers (subject to merit) through scholarships. It is the Inns that actually "call" the

student to the Bar at a ceremony similar to a graduation. Social functions include dining with

other members and guests and hosting other events.

Student barristers must take a law degree and the Bar Professional Training Course (BPTC -

previously Bar Vocational Course or BVC) (usually one year full-time) at one of the institutions

authorised by the Bar Council to offer the BPTC. On successful completion of the BPTC student

barristers are "called" to the bar by their respective inns and are elevated to the degree of

"Barrister". However, before they can practise independently they must first undertake 12

months of pupillage. The first six months of this period is spent shadowing more senior

practitioners, after which pupil barristers may begin to undertake some court work of their own.

Following successful completion of this stage, most barristers then join a set of Chambers, a

group of counsel who share the costs of premises and support staff whilst remaining individually

self-employed.

In December 2004 there were just over 11,500 barristers in independent practice, of whom about

ten percent are Queen's Counsel and the remainder are junior barristers. Many barristers (about

2,800) are employed in companies as 'in-house' counsel, or by local or national government or in

academic institutions.

Certain barristers in England and Wales are now instructed directly by members of the public.

Members of the public may engage the services of the barrister directly; a solicitor is not

involved at any stage. Barristers undertaking public access work can provide legal advice and

representation in court in almost all areas of law (see the Public Access Information on the Bar

Council website) and are entitled to represent clients in any court or tribunal in England and

Wales. Once instructions from a client are accepted, it is the barrister (rather than the solicitor)

who advises and guides the client through the relevant legal procedure or litigation.

Before a barrister can undertake Public Access work, he must have completed a special course.

At present, about one in 20 barristers has so qualified. There is also a separate scheme called

'Licensed Access', available to certain nominated classes of professional client; it is not open to

the general public. Public access work is experiencing a huge surge at the bar, with barristers

taking advantage of the new opportunity for the bar to make profit in the face of legal aid cuts

elsewhere in the profession.The ability of barristers to accept such instructions is a recent

development; it results from a change in the rules set down by the General Council of the Bar in

July 2004. The Public Access Scheme has been introduced as part of the drive to open up the

legal system to the public and to make it easier and cheaper to obtain access to legal advice. It

further reduces the distinction between solicitors and barristers. The distinction remains however

because there are certain aspects of a solicitor's role that a barrister is not able to undertake.

Although the term "barrister-at-law" is sometimes seen, and was once very common, it has never

been formally correct in England and Wales. "Barrister" is the only correct nomenclature.

7. THE ROLE OF JUDGE AND JURY

In a trial with a judge and a jury, each have very different parts to play. The jury listen to the

evidence and decide who or what to believe. They decide what the facts of the case are. They are

the only ones who can decide whether the accused is guilty or not guilty. The judge sees that the

proper procedures are followed and she or he makes decisions about all questions of what the

law is in relation to the particular case. Because the jury do not decide these questions, many of

the discussions and decisions related to the law are made when the jury is not in the courtroom.

When the jury reaches a verdict (that is, decides whether the defendant is guilty or not), its role

comes to an end. If the jury finds the defendant guilty, it is then the role of the judge to sentence

the defendant.

Judges play many roles. They interpret the law, assess the evidence presented, and control how

hearings and trials unfold in their courtrooms. Most important of all, judges are impartial

decision-makers in the pursuit of justice. We have what is known as an adversarial system of

justice - legal cases are contests between opposing sides, which ensures that evidence and legal

arguments will be fully and forcefully presented. The judge, however, remains above the fray,

providing an independent and impartial assessment of the facts and how the law applies to those

facts.

Many criminal cases - and almost all civil ones - are heard by a judge sitting without a jury. The

judge is the "trier of fact," deciding whether the evidence is credible and which witnesses are

telling the truth. Then the judge applies the law to these facts to determine whether a civil claim

has been established on a balance of probabilities or whether there is proof beyond a reasonable

doubt, in criminal cases, that the suspect is guilty. Anyone who faces five years or more in prison

if convicted of a crime has the right, under the Charter, to request a jury trial, and many

defendants facing serious offences such as murder opt to have a jury hear their case. The jurors

become the triers of fact and assess the evidence while the judge takes on the role of legal

advisor, explaining the law to the jurors. The jurors then retire to deliberate on a verdict. In

criminal cases the jury's verdict, either "Guilty" or "Not Guilty" must be unanimous.

If the defendant is convicted of a crime, the judge passes sentence, imposing a penalty that can

range from a fine to a prison term depending on the severity of the offence. In civil cases the

judge decides whether a claim is valid and assesses damages, grants an injunction or orders some

other form of redress to the plaintiff, unless a jury has been empanelled to make these decisions.

The Judge

The judge presides over the trial from a desk, called a bench, on an elevated platform. The judge

has five basic tasks. The first is simply to preside over the proceedings and see that order is

maintained. The second is to determine whether any of the evidence that the parties want to use

is illegal or improper. Third, before the jury begins its deliberations about the facts in the case,

the judge gives the jury instructions about the law that applies to the case and the standards it

must use in deciding the case. Fourth, in bench trials, the judge must also determine the facts and

decide the case. The fifth is to sentence convicted criminal defendants.

The Lawyers

The lawyers for each party will either be sitting at the counsel tables facing the bench or be

speaking to the judge, a witness, or the jury. Each lawyer's task is to bring out the facts that put

his or her client's case in the most favorable light, but do so using approved legal procedures. In

criminal cases, one of the lawyers works for the executive branch of the government, which is

the branch that prosecutes cases on behalf of society. In federal criminal cases, that lawyer is the

U.S. Attorney or an assistant U.S. attorney. On relatively rare occasions, defendants in criminal

cases or parties in civil cases attempt to present their cases themselves, without using a lawyer.

Parties who act on their own behalf are said to act pro se, a Latin phrase meaning "on one's own

behalf."

8. JUSTICE ON ANCIENT ROMANIAN LAND

Roman law is the legal system of ancient Rome, and the legal developments spanning over a

thousand years of jurisprudence, from the 12 Tables (c. 449 BC), to the Corpus Juris Civilis (AD

529) ordered by Eastern Roman emperor Justinian I. The historical importance of Roman law is

reflected by the continued use of Latin legal terminology in legal systems influenced by it.

After the dissolution of the Western Roman Empire, the Justinian Code remained in effect in the

Eastern empire, known in the modern era as the Byzantine Empire (331–1453). From the 7th

century onward, the legal language in the East was Greek.

"Roman law" also denotes the legal system applied in most of Western Europe until the end of

the 18th century. In Germany, Roman law practice remained in place longer under the Holy

Roman Empire (963–1806). Roman law thus served as a basis for legal practice throughout

Western continental Europe, as well as in most former colonies of these European nations,

including Latin America, and also in Ethiopia. English and North American common law were

influenced also by Roman law, notably in their Latinate legal glossary (for example, stare

decisis, culpa in contrahendo, pacta sunt servanda).Eastern Europe was also influenced by the

jurisprudence of the Corpus Juris Civilis, especially in countries such as medieval Romania

(Wallachia, Moldova, and some other medieval provinces/historical regions) which created a

new system, a mixture of Roman and local law. Also, the Eastern Europe law was influenced by

the "Farmer's Law" of the medieval Byzantine legal system.

Roman legal development. The Twelve Tables

The first legal text is the Law of the Twelve Tables, dating from mid-5th century BC. The

plebeian tribune, C. Terentilius Arsa, proposed that the law should be written, in order to prevent

magistrates from applying the law arbitrarily. After eight years of political struggle, the plebeian

social class convinced the patricians to send a delegation to Athens, to copy the Laws of Solon;

they also dispatched delegations to other Greek cities for like reason. In 451 BC, according to the

traditional story, ten Roman citizens were chosen to record the laws. While they were

performing this task, they were given supreme political power (imperium), whereas the power of

the magistrates was restricted. In 450 BC, the decemviri produced the laws on ten tablets, but

these laws were regarded as unsatisfactory by the plebeians. A second decemvirate is said to

have added two further tablets in 449 BC. The new Law of the Twelve Tables was approved by

the people's assembly.

Modern scholars tend to challenge the accuracy of Roman historians. They generally do not

believe that a second decemvirate ever took place. The decemvirate of 451 is believed to have

included the most controversial points of customary law, and to have assumed the leading

functions in Rome. Furthermore, the question on the Greek influence found in the early Roman

Law is still much discussed. Many scholars consider it unlikely that the patricians sent an official

delegation to Greece, as the Roman historians believed. Instead, those scholars suggest, the

Romans acquired Greek legislations from the Greek cities of Magna Graecia, the main portal

between the Roman and Greek worlds. The original text of the Twelve Tables has not been

preserved. The tablets were probably destroyed when Rome was conquered and burned by the

Gauls in 387 BC.

The fragments which did survive show that it was not a law code in the modern sense. It did not

provide a complete and coherent system of all applicable rules or give legal solutions for all

possible cases. Rather, the tables contained specific provisions designed to change the then-

existing customary law. Although the provisions pertain to all areas of law, the largest part is

dedicated to private law and civil procedure.

Early law and jurisprudence

Many laws include Lex Canuleia (445 BC; which allowed the marriage—ius connubii—between

patricians and plebeians), Leges Licinae Sextiae (367 BC; which made restrictions on possession

of public lands—ager publicus—and also made sure that one of consuls is plebeian), Lex

Ogulnia (300 BC; plebeians received access to priest posts), and Lex Hortensia (287 BC;

verdicts of plebeian assemblies — plebiscita — now bind all people).

Another important statute from the Republican era is the Lex Aquilia of 286 BC, which may be

regarded as the root of modern tort law. However, Rome's most important contribution to

European legal culture was not the enactment of well-drafted statutes, but the emergence of a

class of professional jurists (prudentes, sing. prudens, or jurisprudentes) and of a legal science.

This was achieved in a gradual process of applying the scientific methods of Greek philosophy to

the subject of law, a subject which the Greeks themselves never treated as a science.

Traditionally, the origins of Roman legal science are connected to Gnaeus Flavius. Flavius is

said to have published around the year 300 BC the formularies containing the words which had

to be spoken in court to begin a legal action. Before the time of Flavius, these formularies are

said to have been secret and known only to the priests. Their publication made it possible for

non-priests to explore the meaning of these legal texts. Whether or not this story is credible,

jurists were active and legal treatises were written in larger numbers the 2nd century BC. Among

the famous jurists of the republican period are Quintus Mucius Scaevola who wrote a

voluminous treatise on all aspects of the law, which was very influential in later times, and

Servius Sulpicius Rufus, a friend of Marcus Tullius Cicero. Thus, Rome had developed a very

sophisticated legal system and a refined legal culture when the Roman republic was replaced by

the monarchical system of the principate in 27 BC .

Pre-classical period

In the period between about 201 to 27 BC, we can see the development of more flexible laws to

match the needs of the time. In addition to the old and formal ius civile a new juridical class is

created: the ius honorarium, which can be defined as "The law introduced by the magistrates

who had the right to promulgate edicts in order to support, supplement or correct the existing

law."With this new law the old formalism is being abandoned and new more flexible principles

of ius gentium are used.

The adaptation of law to new needs was given over to juridical practice, to magistrates, and

especially to the praetors. A praetor was not a legislator and did not technically create new law

when he issued his edicts (magistratuum edicta). In fact, the results of his rulings enjoyed legal

protection (actionem dare) and were in effect often the source of new legal rules. A Praetor's

successor was not bound by the edicts of his predecessor; however, he did take rules from edicts

of his predecessor that had proved to be useful. In this way a constant content was created that

proceeded from edict to edict (edictum traslatitium).

Thus, over the course of time, parallel to the civil law and supplementing and correcting it, a new

body of praetoric law emerged. In fact, praetoric law was so defined by the famous Roman jurist

Papinian (Amilius Papinianus—died in 212 AD): "Ius praetorium est quod praetores

introduxerunt adiuvandi vel supplendi vel corrigendi iuris civilis gratia propter utilitatem

publicam" ("praetoric law is that law introduced by praetors to supplement or correct civil law

for public benefit"). Ultimately, civil law and praetoric law were fused in the Corpus Juris

Civilis.

Classical Roman law

The first 250 years of the current era are the period during which Roman law and Roman legal

science reached its greatest degree of sophistication. The law of this period is often referred to as

the classical period of Roman law. The literary and practical achievements of the jurists of this

period gave Roman law its unique shape.

The jurists worked in different functions: They gave legal opinions at the request of private

parties. They advised the magistrates who were entrusted with the administration of justice, most

importantly the praetors. They helped the praetors draft their edicts, in which they publicly

announced at the beginning of their tenure, how they would handle their duties, and the

formularies, according to which specific proceedings were conducted. Some jurists also held

high judicial and administrative offices themselves.

The jurists also produced all kinds of legal commentaries and treatises. Around AD 130 the jurist

Salvius Iulianus drafted a standard form of the praetor's edict, which was used by all praetors

from that time onwards. This edict contained detailed descriptions of all cases, in which the

praetor would allow a legal action and in which he would grant a defense. The standard edict

thus functioned like a comprehensive law code, even though it did not formally have the force of

law. It indicated the requirements for a successful legal claim. The edict therefore became the

basis for extensive legal commentaries by later classical jurists like Paulus and Domitius

Ulpianus. The new concepts and legal institutions developed by pre-classical and classical jurists

are too numerous to mention here. Only a few examples are given here:

Roman jurists clearly separated the legal right to use a thing (ownership) from the factual

ability to use and manipulate the thing (possession). They also found the distinction

between contract and tort as sources of legal obligations.

The standard types of contract (sale, contract for work, hire, contract for services)

regulated in most continental codes and the characteristics of each of these contracts were

developed by Roman jurisprudence.

The classical jurist Gaius (around 160) invented a system of private law based on the

division of all material into personae (persons), res (things) and actiones (legal actions).

This system was used for many centuries. It can be recognized in legal treatises like

William Blackstone's Commentaries on the Laws of England and enactments like the

French Code civil or the German BGB.

Post-classical law

By the middle of the 3rd century, the conditions for the flourishing of a refined legal

culture had become less favorable. The general political and economic situation

deteriorated as the emperors assumed more direct control of all aspects of political life.

The political system of the principate, which had retained some features of the republican

constitution, began to transform itself into the absolute monarchy of the dominate. The

existence of a legal science and of jurists who regarded law as a science, not as an

instrument to achieve the political goals set by the absolute monarch, did not fit well into

the new order of things. The literary production all but ended. Few jurists after the mid-

3rd century are known by name. While legal science and legal education persisted to

some extent in the eastern part of the Empire, most of the subtleties of classical law came

to be disregarded and finally forgotten in the west. Classical law was replaced by so-

called vulgar law.

Public law

Cicero, author of the classic book The Laws, attacks Catiline for attempting a coup in the Roman

Senate.

The Roman Republic's constitution or mos maiorum ("custom of the ancestors") was an

unwritten set of guidelines and principles passed down mainly through precedent. Concepts that

originated in the Roman constitution live on in constitutions to this day. Examples include

checks and balances, the separation of powers, vetoes, filibusters, quorum requirements, term

limits, impeachments, the powers of the purse, and regularly scheduled elections. Even some

lesser used modern constitutional concepts, such as the block voting found in the electoral

college of the United States, originate from ideas found in the Roman constitution.

The constitution of the Roman Republic was not formal or even official. Its constitution was

largely unwritten, and was constantly evolving throughout the life of the Republic. Throughout

the 1st century BC, the power and legitimacy of the Roman constitution was progressively

eroding. Even Roman constitutionalists, such as the senator Cicero, lost a willingness to remain

faithful to it towards the end of the republic. When the Roman Republic ultimately fell in the

years following the Battle of Actium and Mark Antony's suicide, what was left of the Roman

constitution died along with the Republic. The first Roman Emperor, Augustus, attempted to

manufacture the appearance of a constitution that still governed the Empire. The belief in a

surviving constitution lasted well into the life of the Roman Empire.

Private law

Stipulatio was the basic form of contract in Roman law. It was made in the format of question

and answer. The precise nature of the contract was disputed, as can be seen below.

Rei vindicatio is a legal action by which the plaintiff demands that the defendant return a thing

that belongs to the plaintiff. It may only be used when plaintiff owns the thing, and the defendant

is somehow impeding the plaintiff's possession of the thing. The plaintiff could also institute an

actio furti (a personal action) to punish the defendant. If the thing could not be recovered, the

plaintiff could claim damages from the defendant with the aid of the condictio furtiva (a personal

action). With the aid of the actio legis Aquiliae (a personal action), the plaintiff could claim

damages from the defendant. Rei vindicatio was derived from the ius civile, therefore was only

available to Roman citizens.

Roman litigation

The history of Roman Law can be divided into three systems of procedure: that of legis actiones,

the formulary system, and cognitio extra ordinem. The periods in which these systems were in

use overlapped one another and did not have definitive breaks, but it can be stated that the legis

actio system prevailed from the time of the XII Tables (c. 450 BC) until about the end of the 2nd

century BC, that the formulary procedure was primarily used from the last century of the

Republic until the end of the classical period (c. AD 200), and that of cognitio extraordinarem

was in use in post-classical times. Again, these dates are meant as a tool to help understand the

types of procedure in use, not as a rigid boundary where one system stopped and another began.

During the republic and until the bureaucratization of Roman judicial procedure, the judge was

usually a private person (iudex privatus). He had to be a Roman male citizen. The parties could

agree on a judge, or they could appoint one from a list, called album iudicum. They went down

the list until they found a judge agreeable to both parties, or if none could be found they had to

take the last one on the list.

No one had a legal obligation to judge a case. The judge had great latitude in the way he

conducted the litigation. He considered all the evidence and ruled in the way that seemed just.

Because the judge was not a jurist or a legal technician, he often consulted a jurist about the

technical aspects of the case, but he was not bound by the jurist's reply. At the end of the

litigation, if things were not clear to him, he could refuse to give a judgment, by swearing that it

wasn't clear. Also, there was a maximum time to issue a judgment, which depended on some

technical issues (type of action, etc.).

Later on, with the bureaucratization, this procedure disappeared, and was substituted by the so-

called "extra ordinem" procedure, also known as cognitory. The whole case was reviewed before

a magistrate, in a single phase. The magistrate had obligation to judge and to issue a decision,

and the decision could be appealed to a higher magistrate.

Legacy

In the East

When the centre of the Empire was moved to the Greek East in the 4th century, many legal

concepts of Greek origin appeared in the official Roman legislation.The influence is visible even

in the law of persons or of the family, which is traditionally the part of the law that changes least.

For example Constantine started putting restrictions on the ancient Roman concept of patria

potestas, the power held by the male head of a family over his descendents, by acknowledging

that persons in potestate, the descendents, could have proprietary rights. He was apparently

making concessions to the much stricter concept of paternal authority under Greek-Hellenistic

law. The Codex Theodosianus (438 AD) was a codification of Constantian laws. Later emperors

went even further, until Justinian finally decreed that a child in potestate became owner of

everything it acquired, except when it acquired something from its father.

The codes of Justinian, particularly the Corpus Juris Civilis (529-534) continued to be the basis

of legal practice in the Empire throughout its so-called Byzantine history. Leo III the Isaurian

issued a new code, the Ecloga, in the early 8th century. In the 9th century, the emperors Basil I

and Leo VI the Wise commissioned a combined translation of the Code and the Digest, parts of

Justinian's codes, into Greek, which became known as the Basilica. Roman law as preserved in

the codes of Justinian and in the Basilica remained the basis of legal practice in Greece and in

the courts of the Eastern Orthodox Church even after the fall of the Byzantine Empire and the

conquest by the Turks, and also formed the basis for much of the Fetha Negest, which remained

in force in Ethiopia until 1931.

In the West

In the west, Justinian's political authority never went any farther than certain portions of the

Italian and Hispanic peninsulas. Law codes were edicted by the Germanic kings, however, the

influence of early Eastern Roman codes on some of these is quite discernible. In many early

Germanic states, Roman citizens continued to be governed by Roman laws for quite some time,

even while members of the various Germanic tribes were governed by their own respective

codes.

The Codex Justinianus and the Institutes of Justinian were known in Western Europe, and along

with the earlier code of Theodosius II, served as models for a few of the Germanic law codes;

however, the Digest portion was largely ignored for several centuries until around 1070, when a

manuscript of the Digest was rediscovered in Italy. This was done mainly through the works of

glossars who wrote their comments between lines (glossa interlinearis), or in the form of

marginal notes (glossa marginalis). From that time, scholars began to study the ancient Roman

legal texts, and to teach others what they learned from their studies. The center of these studies

was Bologna. The law school there gradually developed into Europe's first university.

The students who were taught Roman law in Bologna (and later in many other places) found that

many rules of Roman law were better suited to regulate complex economic transactions than

were the customary rules, which were applicable throughout Europe. For this reason, Roman

law, or at least some provisions borrowed from it, began to be re-introduced into legal practice,

centuries after the end of the Roman empire. This process was actively supported by many kings

and princes who employed university-trained jurists as counselors and court officials and sought

to benefit from rules like the famous Princeps legibus solutus est ("The sovereign is not bound

by the laws", a phrase initially coined by Ulpian, a Roman jurist).

There have been several reasons why Roman law was favored in the Middle Ages. It was

because Roman law regulated the legal protection of property and the equality of legal subjects

and their wills, and because it prescribed the possibility that the legal subjects could dispose their

property through testament.

By the middle of the 16th century, the rediscovered Roman law dominated the legal practice of

many European countries. A legal system, in which Roman law was mixed with elements of

canon law and of Germanic custom, especially feudal law, had emerged. This legal system,

which was common to all of continental Europe (and Scotland) was known as Ius Commune.

This Ius Commune and the legal systems based on it are usually referred to as civil law in

English-speaking countries.

Only England and the Nordic countries did not take part in the wholesale reception of Roman

law. One reason for this is that the English legal system was more developed than its continental

counterparts by the time Roman law was rediscovered. Therefore, the practical advantages of

Roman law were less obvious to English practitioners than to continental lawyers. As a result,

the English system of common law developed in parallel to Roman-based civil law, with its

practitioners being trained at the Inns of Court in London rather than receiving degrees in Canon

or Civil Law at the Universities of Oxford or Cambridge. Elements of Romano-canon law were

present in England in the ecclesiastical courts and, less directly, through the development of the

equity system. In addition, some concepts from Roman law made their way into the common

law. Especially in the early 19th century, English lawyers and judges were willing to borrow

rules and ideas from continental jurists and directly from Roman law.

The practical application of Roman law and the era of the European Ius Commune came to an

end, when national codifications were made. In 1804, the French civil code came into force. In

the course of the 19th century, many European states either adopted the French model or drafted

their own codes. In Germany, the political situation made the creation of a national code of laws

impossible. From the 17th century, Roman law in Germany had been heavily influenced by

domestic (common) law, and it was called usus modernus Pandectarum. In some parts of

Germany, Roman law continued to be applied until the German civil code (Bürgerliches

Gesetzbuch, BGB) came into force in 1900.

Roman law today

Today, Roman law is no longer applied in legal practice, even though the legal systems of some

states like South Africa and San Marino are still based on the old Ius Commune. However, even

where the legal practice is based on a code, many rules deriving from Roman law apply: No code

completely broke with the Roman tradition. Rather, the provisions of Roman law were fitted into

a more coherent system and expressed in the national language. For this reason, knowledge of

Roman law is indispensable to understand the legal systems of today. Thus, Roman law is often

still a mandatory subject for law students in civil law jurisdictions.

As steps towards a unification of the private law in the member states of the European Union are

being taken, the old Ius Commune, which was the common basis of legal practice everywhere,

but allowed for many local variants, is seen by many as a model.

9. CIVIL PROCEEDINGS

Court System

In civil matters, jurisdiction is divided between the High Court and the county courts, according

to the size and complexity of the claim. This note is principally concerned with procedure in the

High Court.

The High Court is divided into three divisions: Chancery, Queens Bench and Family (family

proceedings are beyond the remit of this note).

The Chancery Division deals with companies generally and such specialist matters as wills,

trusts, insolvency, tax, copyright, trade marks and patents (the latter in a separate court called the

Patents Court).

The Queen's Bench Division or "QBD" deals with all other civil matters, for example personal

injury cases, industrial accidents, defamation cases, negligence claims, and other cases which are

required to be heard in the High Court, such as applications for a "judicial review" of decisions

by governmental bodies. The issue of the correct division in which to bring a claim is determined

according to criteria laid down in the Civil Procedure Rules 1998 (see below under "Rules of

procedure").

There is a section of the QBD known as the Commercial Court, comprising Queens Bench

Judges who are particularly knowledgeable on commercial matters, particularly shipping,

insurance, commodities, banking and other specialised financial issues.

Another section of the QBD, named the Technology and Construction Court (the "TCC") deals

with disputes involving information technology, engineering and construction.

Normally, cases involving less than £50,000 will be heard in a county court, and cases involving

more than £50,000 will be heard in the High Court.

A further distinction is made between "small claims" of up to £10,000, in which a party only has

the risk of paying very limited costs of a successful opponent; "fast track" cases between £10,000

and £25,000 which follow a strict timetable and in which fixed costs on a sliding scale may be

awarded; and "multi-track" cases which will involve a higher level of judicial intervention.

Virtually all High Court cases are multitrack cases. In the

QBD and Chancery Divisions, matters which arise in the course of an action are generally dealt

with by "Masters", who are junior to Judges. Trials and other important matters such as

applications for injunctions are heard only by Judges, who also hear appeals from the decisions

of masters. In the Commercial Court and TCC there are no masters, and all matters, including

interim or pre-trial issues, are heard by a Judge. This is one of the advantages of the procedure in

these courts.

In civil cases, a Judge usually hears a case on his own. There is no right to trial by jury, with the

exception of fraud (where it is hardly ever exercised) and most defamation cases (where it is

normally exercised).

An appeal from a decision of a Judge is heard by the Court of Appeal, which will comprise either

two or three more senior Judges, known as Lords Justices. On issues of public importance, there

is a further and final stage of appeal to the Supreme Court. In that court appeals are usually heard

by five or, very occasionally seven, Supreme Court Justices.

Rules Of Procedure And The Overriding Objective

The procedure of the High Court, the Court of Appeal and the county courts is laid down in the

Civil Procedure Rules 1998 (the "CPR"). The CPR are subdivided into Parts, dealing with

separate stages of a civil action, and are supported by detailed Practice Directions.

The CPR begin by expressing the "overriding objective" of the Rules, which is "to enable the

court to deal with cases justly and at proportionate cost". The court has to give effect to this

overriding objective whenever it is exercising its discretion or interpreting the meaning of any

rule. Parties are required to help the court to achieve this objective. Part 1 of the CPR states that

"dealing with a case justly and at proportionate cost" includes, so far as practicable:

ensuring that the parties are on an "equal footing"

saving expense

dealing with the case in ways which are proportionate:

o to the amount of money involved

o to the importance of the case

o to the complexity of the issues and

o to the financial position of each party.

ensuring that it is dealt with expeditiously and fairly and

allocating to it an appropriate share of the court's resources, while taking into account the

need to allot resources to other cases; and

enforcing compliance with rules, practice directions and orders.

Pre-Action Matters There are a number of provisions in the CPR which govern the way in which the parties should

conduct themselves prior to the issue of proceedings. These provisions are designed to encourage

parties to act reasonably in exchanging information and documents at an early stage and

generally to try to settle their dispute without recourse to litigation. Sanctions may be imposed

against litigants who fail to comply with these requirements. In addition there are a number of

"pre-action protocols", setting out the procedure which parties are expected to follow in certain

categories of case, for example, judicial review and professional negligence. These protocols are

designed to ensure that litigation is a last resort.

Case Management The CPR require the court to engage in active case management. This includes:

identifying the issues at an early stage

encouraging the parties to use alternative dispute resolution (such as mediation)

helping the parties to settle their dispute

fixing timetables and

considering whether the likely benefits of taking a particular step will justify the cost.

Early in the life of a multi-track case, there will be a case management conference ("CMC") with

the master or Judge, at which these issues will be discussed. A representative of the client may

be required to attend the conference, who must be personally involved in the conduct of the case,

with the authority and information to deal with any matter reasonably likely to arise at the CMC.

At the CMC, the solicitors will usually be expected to have available the details of:

the witnesses who will be called on factual issues

the evidence that may be required on technical issues, eg 'expert' evidence

the documentation that will be material to the dispute and

the costs that have been incurred to date and are estimated to be incurred up until the

conclusion of the proceedings. This is to enable the court to ensure that those costs are

proportionate to the remedy at stake and then to manage the case in such a way as to

ensure that no party amasses disproportionate costs.

The court has a positive obligation to help the parties settle their dispute, rather than litigate it,

where possible. Where settlement is not possible, the court will take positive steps to ensure that

everything necessary is done to prepare the case so that it is ready to start at the trial date. The

court will fix that date (or at least a "trial window"), usually after the CMC. The whole emphasis

is on disposing of the matter quickly and efficiently. This approach means that much work and

expense will be required during the early stages of a case. For example, in preparation for the

CMC, the parties will be required to file copies of all statements of case and other documents

with the court. To assist the court, the claimant will also be required to prepare and file a

summary of the issues in the case in not more than 500 words, and a skeleton argument, giving a

concise statement of its case on the points in issue at the hearing.

In general the parties will have to adhere to the timetable laid down by the court. Some time

limits may be extended by agreement between the parties. In the case of serious noncompliance

with a time limit, the court may order that the claimant's action should be dismissed or that

judgment should be given against the defendant.

Claim Forms An action is started by the issue of a "claim form". This is a formal document which must:

contain a concise statement of the nature of the claim

specify the remedy which the claimant seeks and

in a money claim, contain a statement of the value of the claim.

The claimant prepares the document, takes it to the court and pays a fee on a scale from £35 to

£1,670 according to the amount in issue and the type of claim. The claimant may ask the court to

serve the claim form on the defendant, or may arrange service himself. In either case a copy of

the claim form is kept by the court and is available for public inspection. In certain cases, the

court may be prepared, on the application of a party, to limit public access to the claim form (and

indeed statements of case).

Statements of Case The documents in which the parties state their position are referred to as "statements of case".

One of these is the "particulars of claim", which must contain a concise statement of the facts on

which the claimant relies. If, as is usual, the claimant also seeks interest and costs, the particulars

must state the basis of those claims and give a calculation.

The particulars must be contained in or served with the claim form, or may be served separately

within 14 days afterwards (but in any event no later than the latest possible time for serving the

claim form). They must also be filed with the court.

Within 14 days after service of the particulars of claim, the defendant must file with the court

(and serve on the other side) a "defence". In his defence the defendant must say which

allegations he denies, which he admits and which he is unable to admit or deny but which he

wishes the claimant to prove. Most importantly, where the defendant denies an allegation, he

must state his reasons for doing so. If he intends to put forward a different version of events from

that given by the claimant he must state his own version.

The defendant may, if appropriate, make a counterclaim against the claimant or join a third party

to the main action in order to claim, for example, a contribution or indemnity from the claimant.

These claims are referred to as "additional claims". If the defendant makes a counterclaim, he

must pay a fee as if he were making a claim in a separate action. Again, this will vary, according

to the size of the claim, from £35 to £1,670.

Preparation For Trial Not less than eight weeks before the date fixed for trial the parties must file a completed "listing

questionnaire". If the court decides to hold a "pre-trial review", it will be conducted by the Judge

who is to preside at the trial. The object is to determine directions for the conduct of the trial,

including:

the evidence to be given, especially expert evidence

a timetable for the trial, which may specify the time allowed for the presentation of

particular issues and

the documents to be included in the "trial bundle".

The parties' solicitors should seek to agree directions between themselves, but the court has an

overriding power to make an order in different terms if appropriate.

In the time before the hearing, the solicitors and barristers will be making the final preparations

in accordance with those directions, negotiating for a possible settlement, making arrangements

for the attendance of witnesses, researching legal points, and preparing the skeleton arguments.

For large trials this will be a major document identifying all the issues which are to be argued, all

the propositions of law to be advanced and all the legal authorities (eg earlier court rulings or

statutory provisions) to be cited. The trial bundle will be prepared and lodged at the court shortly

before the hearing.

Trial-The style of the trial is predominantly oral, although "skeleton arguments" (outlines of the

case) and lists of issues are increasingly used. Before the start of the trial, the Judge will

generally have read the statements of case, witness statements, experts' reports and skeleton

arguments lodged with the court. The Judge does not make his own investigations as such.

At the opening of the trial, the claimant's advocate may describe to the Judge the nature of the

dispute and take him through the particulars of claim, the defence and the trial bundle. The

defendant's advocate will usually then be invited to make a short statement.

The claimant's advocate will then call the claimant's first witness and examine him "in chief".

Normally, the witness statement of each witness will be taken as his evidence in chief for this

purpose, so this examination may be brief. The claimant's advocate may, without leading the

witness, ask him questions designed to provide an introduction to matters covered in the witness

statement or to obtain his evidence in chief on any matters not covered in the witness statement.

The defendant's advocate may invite the court to require that the witness be taken through all his

evidence in this way if for some reason the witness statement is inadequate.

The witness is then "cross-examined" by the defendant's advocate. His questions will be

"leading" and will challenge the witness. They will be designed to show that the witness's written

statement or oral evidence is unreliable, even untruthful, perhaps by showing that his recollection

is at fault or that he did not have close knowledge of the facts or that his evidence is contradicted

by a contemporaneous document.

The claimant's advocate may then "reexamine" the witness to deal with any new points arising

from the crossexamination. The other witnesses for the claimant all follow and there is the same

sequence of questioning. The Judge will frequently interject with his own questions.When the

last of the claimant's witnesses has been examined, that is the completion of the claimant's case.

It is then the turn of the defendant's advocate. He will often make a general statement of his

client's position and then call each of the defendant's witnesses, who will be examined in the

same way as the claimant's witnesses.

The defendant's advocate will sum up the evidence and make submissions on the relevant law,

which may be a long process. Finally, the claimant's advocate will sum up the evidence from his

client's point of view and make his submissions on the law.

The Judge may give his judgment immediately or, in a more complicated case he may reserve

judgment until a later date when he has reflected on the issues. The judgment will usually

comprise a review of the evidence, including the Judge's conclusions as to the truth where the

evidence conflicts, an analysis of the relevant law and, finally, his decision as to which party has

won and the remedy he will award.

The text of a reserved judgment may be delivered to a party's solicitors and counsel some days

before it is due to be formally delivered, to allow time for costs applications to be considered and

minor errors to be corrected. The court will usually order that there should be no communication

with the clients or third parties regarding the result until an hour before the judgment is due to be

formally announced in court.

10. TRUTH – THE PRINCIPLE OF JUDICIAL PLEADING

Pleadings. There shall be a complaint and an answer; a reply to a counterclaim denominated as

such, if the answer contains a counterclaim; an answer to a cross-claim, if the answer contains a

cross-claim; a third-party complaint, if a person who was not an original party is summoned as a

third-party defendant; and a third-party answer, if a third party complaint is served. No other

pleading shall be allowed, except that the court may order a reply to an answer or a third-party

answer.

A partial list of the proceedings in which the initial pleading is a "petition" includes a petition in

error, probate procedure, protection from domestic abuse, adoption , actions under the juvenile

code, workers‘ compensation actions, Commission of Industrial Relations actions, mental health

commitments, and judicial review of administrative action. The initial pleading in an action for

postconviction relief by a prisoner is a "verified motion".

A separate rules defines the extent to which an action for grandparent visitation is governed by

these rules.

Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim,

counterclaim, cross-claim, or third-party claim, shall contain (1) a caption, (2) a short and plain

statement of the claim showing that the pleader is entitled to relief, and (3) a demand for

judgment for the relief the pleader seeks. Relief in the alternative or of several different types

may be demanded. If the recovery of money be demanded, the amount of special damages shall

be stated but the amount of general damages shall not be stated; and if interest thereon be

claimed, the time from which interest is to be computed shall also be stated.

Defenses; Form of Denials. A party shall state in short and plain terms the party's defenses to

each claim asserted and shall admit or deny the averments upon which the adverse party relies. If

a party is without knowledge or information sufficient to form a belief as to the truth of an

averment, a party shall so state and this has the effect of a denial. Denials shall fairly meet the

substance of the averments denied. When a pleader intends in good faith to deny only a part or a

qualification of an averment, the pleader shall specify so much of it as is true and material and

shall deny only the remainder. The pleader may make denials as specific denials of designated

averments or paragraphs, may generally deny all the averments except such designated

averments or paragraphs as are expressly admitted, or may controvert all the averments of the

preceding pleading by general denial.

Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively

accord and satisfaction, arbitration and award, assumption of risk, contributory negligence,

discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by

fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of

limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When

a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the

court on terms, if justice so requires, shall treat the pleading as if there had been a proper

designation.

Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required,

other than those as to value or the amount of damage, are admitted when not denied in the

responsive pleading. Averments in a pleading to which no responsive pleading is required or

permitted shall be taken as denied or avoided.

Pleadings to Be Concise and Direct; Consistency.

(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of

pleadings or motions are required. (2) A party may set forth two or more statements of a claim or

defense alternately or hypothetically, either in one count or defense or in separate counts or

defenses. When two or more statements are made in the alternative and one of them if made

independently would be sufficient, the pleading is not made insufficient by the insufficiency of

one or more of the alternative statements. A party may also state as many separate claims or

defenses as the party has regardless of consistency and whether based on legal or equitable

grounds. (3) Construction of Pleadings.

11. ELOQUENCE

Eloquence (from Latin eloquentia) is fluent, forcible, elegant or persuasive speaking. It is

primarily the power of expressing strongemotions in striking and appropriate language, thereby

producing conviction or persuasion. The term is also used for writing in a fluent style.

The concept of eloquence dates to the ancient Greeks, Calliope, (one of the nine daughters of

Zeus and Mnemosyne) being the Muse of epic poetry and eloquence.

"The Effects of Trim's Eloquence".George Cruikshank's illustration toLaurence Sterne's The Life

and Opinions of Tristram Shandy, Gentleman

Eloquence derives from the Latin roots: ē (a shortened form of the preposition ex), meaning "out

(of)," and loqui, a deponent verb meaning "to speak." Thus, being eloquent is having the ability

to project words fluidly out of the mouth and the ability to understand and command the

language in such a way that one employs a graceful style coupled with the power of persuasion,

or just being extremely graceful in the interpretation of communication.

Petrarch (Fracesco Petrarca), in his study program of the classics and antiquity (Italian

Renaissance) focused attention on language and communication. After mastering language, the

goal was to reach a ―level of eloquence‖, to be able to present gracefully, combine thought and

reason in a powerful way, so as to persuade others to a point of view. Petrarch encouraged

students to imitate the ancient writers, from a language perspective, combining clear and correct

speech with moral thought. The Renaissance humanists focused on the correlation of speech and

political principles as a powerful tool to present and persuade others to particular concepts. At

the core of presentations was the use of graceful style, clear concise grammar and usage, and

over time the insertion of rational and emotional arguments.

In modern times, colloquial speech entered into presentation styles deemed eloquent.

Eloquent Politicians

Politicians are often termed eloquent. Marcus Antonius, c.83 B.C.–30 B.C., Roman politician

and soldier gave one of the most memorable speeches in history, dramatized by William

Shakespeare in the play Julius Caesar; Shakespeare used Antonius's famous opening line

"Friends, Romans, countrymen, lend me your ears".

Other speakers and speeches termed eloquent:

Maximilien Robespierre, Festival of the Supreme Being (1794)

Elie Wiesel, The Perils of not the same (1999)

John F. Kennedy, Inaugural Address (1961)

Winston Churchill, British Liberal and Conservative statesman, artist and Prime Minister.

Adolf Hitler, Nazi Germany. (1939)

Eloquence is both a natural talent and improved by knowledge of language, study of a specific

subject to be addressed, philosophy, rationale and ability to form a persuasive set of tenets within

a presentation.

"True eloquence," Oliver Goldsmith says, "Does not consist ... in saying great things in

a sublime style, but in a simple style; for there is, properly speaking, no such thing as a sublime

style, the sublimity lies only in the things; and when they are not so, the language may be turgid,

affected, metaphorical, but not affecting."

12. METHODS OF JUDICIAL INQUIRY

There are no inquests or Coroners in Scotland, where sudden unnatural deaths are reported to,

and investigated on behalf of, the Procurator Fiscal for an area. The Procurator Fiscal has a duty

to investigate all sudden, suspicious, accidental, unexpected and unexplained deaths and any

death occurring in circumstances that give rise to serious public concern. Where a death is

reported, the Procurator Fiscal will investigate the circumstances of the death, attempt to find out

the cause of the death and consider whether criminal proceedings or a Fatal Accident Inquiry is

appropriate. In the majority of cases reported to the Procurator Fiscal, early enquiries rule out

suspicious circumstances and establish that the death was due to natural causes.

Deaths are usually brought to the attention of the Procurator Fiscal through reports from the

police, the Registrar, GPs or hospital doctors. However, anyone who has concerns about the

circumstances of a death can report it to the Procurator Fiscal. There are certain categories of

deaths that must be enquired into, but the Procurator Fiscal may enquire into any death brought

to his notice.

In England and Wales, all inquests were once conducted with a jury. They acted somewhat like

a grand jury, determining whether a person should be committed to trial in connection to a death.

Such a jury was made up of up to twenty-three men, and required the votes of twelve to render a

decision. Similar to a grand jury, a coroner's jury merely accused, it did not convict.

Since 1927, coroner's juries have rarely been used in England. Under the Coroners Act, 1988, a

jury is only required to be convened in cases where the death occurred in prison, police custody,

or in circumstances which may affect public health or safety. The coroner can actually choose to

convene a jury in any investigation, but in practice this is rare. The qualifications to sit on a

coroner's jury are the same as those to sit on a jury in Crown Court, the High Court, and

the county courts.

Additionally, a coroner's jury only determines cause of death, its ruling does not commit a person

to trial. While grand juries, which did have the power to indict, were abolished in the United

Kingdom by 1948 (after being effectively stopped in 1933), coroner's juries retained those

powers until the Criminal Law Act 1977. This change came about after Lord Lucan was charged

in 1975 by a coroner's jury in the death of Sandra Rivett, his children's nanny.

United States

In the United States, inquests are procedures, traditionally conducted by coroners, who are

generally officials of a county or city. These inquests, while essentially criminal proceedings, are

not themselves trials but instead work as an investigative tool. In some states they may be

characterized as judicial, quasi-judicial, or non-judicial proceedings. Inquests, and the necessity

for holding them, are matters of statutory law in the United States. Statutes may also regulate the

requirement for summoning and swearing coroner's jury. Inquests themselves generally are

public proceedings, though the accused may not be entitled to attend. Coroners may compel

witnesses to attend and give testimony at inquires, and may punish a witness for refusing to

testify according to statute. Coroners are generally not bound by the jury's conclusion, and has

broad discretion, that in many jurisdictions cannot be appealed. The effect of a coroner's verdict

at common law was equivalent to a finding by a grand jury, whereas some statutes provide that a

verdict makes the accused liable for arrest. Generally, the county or city is responsible for the

fees of conducting an inquest, but some statutes have provided for the recovery of such

costs. Whether the evidence presented at an inquest can be used in subsequent civil

actions depends on the jurisdiction, though at common law, the inquest verdict was admissible to

show cause of death. Coroners' reports and findings, on the other hand, are generally admissible.

A coroner's jury deemed Wyatt Earp, Doc Holliday, and their posse guilty in the death of Frank

Stilwell in March 1882.

Excerpt

The 1986 ratification of the Supplementary U.S.-U.K. Extradition Treaty, which supplemented

the 1977 U.S.-U.K. Extradition Treaty, marked a watershed in American extradition law. Article

1 of the Supplementary Treaty virtually eliminates the political offense exception to

extraditions --a safeguard for political revolutionaries that has existed in every United States

extradition treaty for the past 150 years. Under the political offense exception, a U.S. court

could refuse to extradite an individual if the court determined that the offense for which

extradition was sought was political in character. Prior to the Supplementary Treaty, U.S. courts

invoked the political offense exception of the 1977 Treaty to prohibit the extradition of members

of the Irish Republican Army ("IRA") to Northern Ireland. In response to the unwillingness of

U.S. courts to extradite IRA fugitives, the American and British governments negotiated and

signed the 1986 Supplementary Treaty that effectively eliminated the political offense exception

from the 1977 U.S.-U.K. Treaty.

To compensate for the elimination of the political offense exception, the United States Senate

Foreign Relations Committee added a provision to the Supplementary Treaty that allows IRA

fugitives to introduce evidence at their extradition hearings that they will not receive a fair trial

in Northern Ireland. Article 3(a) of the Supplementary Treaty expressly alters the doctrine of

judicial non-inquiry --the principle that U.S. courts will not evaluate the fairness of a requesting

country's justice system when deciding whether to grant.

13. THE LAW

Law is a term which does not have a universally accepted definition, but one definition is that

law is a system of rules and guidelines which are enforced through social institutions to govern

behaviour. Laws can be made by legislatures through legislation (resulting in statutes), the

executive through decrees and regulations, or judges through binding precedents (normally

in common law jurisdictions). Private individuals can create legally binding contracts, including

(in some jurisdictions) arbitration agreements that exclude the normal court process. The

formation of laws themselves may be influenced by a constitution (written or unwritten) and

the rights encoded therein. The law shapes politics, economics, and society in various ways and

serves as a mediator of relations between people.

A general distinction can be made between civil law jurisdictions (including canon and socialist

law), in which the legislature or other central body codifies and consolidates their laws,

and common law systems, where judge-made binding precedents are accepted.

Historically, religious laws played a significant role even in settling of secular matters, which is

still the case in some countries, particularly Islamic, and some religious communities,

particularly Jewish Halakha. Sharia law is the world's most widely used religious law.

The adjudication of the law is generally divided into two main areas. Criminal law deals with

conduct that is considered harmful to social order and in which the guilty party may be

imprisoned or fined. Civil law (not to be confused with civil law jurisdictions above) deals with

the resolution of lawsuits (disputes) between individuals or organisations. These resolutions seek

to provide a legal remedy (often monetary damages) to the winning litigant.

Under civil law, the following specialties, among others, exist: Contract law regulates everything

from buying a bus ticket to trading on derivatives markets. Property law regulates the transfer

and title of personal property and real property. Trust law applies to assets held for investment

and financial security. Tort law allows claims for compensation if a person's property is

harmed. Constitutional law provides a framework for the creation of law, the protection of

human rights and the election of political representatives. Administrative law is used to review

the decisions of government agencies. International law governs affairs between sovereign states

in activities ranging from trade to military action.

To implement and enforce the law and provide services to the public by public servants, a

government's bureaucracy, military, and police are vital. While all these organs of the state are

creatures created and bound by law, an independent legal profession and a vibrant civil

society inform and support their progress.

Law provides a rich source of scholarly inquiry into legal history, philosophy, economic

analysis and sociology. Law also raises important and complex issues concerning equality,

fairness, and justice. There is an old saying that 'all are equal before the law.' The author Anatole

France said in 1894, "In its majestic equality, the law forbids rich and poor alike to sleep under

bridges, beg in the streets, and steal loaves of bread." Writing in 350 BC,

the Greek philosopher Aristotle declared, "The rule of law is better than the rule of any

individual." Mikhail Bakunin said: "All law has for its object to confirm and exalt into a system

the exploitation of the workers by a ruling class". Cicero said "more law, less justice". Marxist

doctrine asserts that law will not be required once the state has withered away.

The United Kingdom has three legal systems. English law, which applies in England and Wales,

and Northern Ireland law, which applies in Northern Ireland, are based on common-

law principles. Scots law, which applies in Scotland, is a pluralistic system based on civil-

law principles, with common law elements dating back to the High Middle Ages. While England

and Wales, Northern Ireland, and Scotland diverge in the more detailed rules of common law and

equity, and while there are certain fields of legislative competence devolved in Northern Ireland,

Scotland, Wales and London, there are substantive fields of law which apply across the United

Kingdom.

The United Kingdom does not have a single legal system since it was created by the political

union of previously independent countries. Article 19 of the Treaty of Union, put into effect by

the Acts of Union in 1707, created the Kingdom of Great Britain but guaranteed the continued

existence of Scotland's separate legal system. The Acts of Union of 1800, which combined Great

Britain and Ireland into the United Kingdom of Great Britain and Ireland, contained no

equivalent provisions but preserved the principle of separate courts to be held in Ireland, of

which the part called Northern Ireland remains part of the United Kingdom.

The Supreme Court of the United Kingdom is the highest court in the land for all criminal and

civil cases in England and Wales and Northern Ireland, and for all civil cases in Scots law. The

Supreme Court came into being in October 2009, replacing the Appellate Committee of the

House of Lords. In England and Wales, the court system is headed by the Senior Courts of

England and Wales, consisting of the Court of Appeal, the High Court of Justice (for civil cases)

and the Crown Court (for criminal cases). The Courts of Northern Ireland follow the same

pattern. In Scotland the chief courts are the Court of Session, for civil cases, and the High Court

of Justiciary, for criminal cases. Sheriff courts have no equivalent outside Scotland, as they deal

with both criminal and civil caseloads.

The Judicial Committee of the Privy Council is the highest court of appeal for several

independent Commonwealth countries, the British overseas territories, and the British Crown

dependencies. There are also immigration courts with UK-wide jurisdiction — the Asylum and

Immigration Tribunal and Special Immigration Appeals Commission. The Employment

tribunals and the Employment Appeal Tribunal have jurisdiction throughout Great Britain, but

not Northern Ireland.

The law of the United States comprises many levels of codified and uncodified forms of law, of

which the most important is the United States Constitution, the foundation of the federal

government of the United States. The Constitution sets out the boundaries of federal law, which

consists of acts of Congress, treaties ratified by the Senate, regulations promulgated by

the executive branch, and case laworiginating from the federal judiciary. The United States

Code is the official compilation and codification of general and permanent federal statutory law.

Federal law and treaties, so long as they are in accordance with the Constitution, as well as the

Constitution itself, preempt conflicting state and territorial laws in the 50 U.S. states and in the

territories. However, the scope of federal preemption is limited because the scope of federal

power is not universal. In the dual-sovereign system of American federalism (actually

tripartite because of the presence of Indian reservations), states are the plenary sovereigns, each

with their own constitution, while the federal sovereign possesses only the limited supreme

authority enumerated in the Constitution. Indeed, states may grant their citizens broader rights

than the federal Constitution as long as they do not infringe on any federal constitutional

rights. Thus, most U.S. law (especially the actual "living law"of contract, tort, property, criminal,

and family law experienced by the majority of citizens on a day-to-day basis) consists primarily

of state law, which can and does vary greatly from one state to the next.

At both the federal and state levels, the law of the United States is largely derived from

the common law system of English law, which was in force at the time of the Revolutionary

War. However, American law has diverged greatly from its English ancestor both in terms of

substance and procedure, and has incorporated a number of civil law innovations.

14. THE CIVIL LAW

Civil law is the legal system used in most countries around the world today. In civil law the

sources recognised as authoritative are, primarily, legislation—especially codifications in

constitutions or statutes passed by government—and custom. Codifications date back millennia,

with one early example being the Babylonian Codex Hammurabi. Modern civil law systems

essentially derive from the legal practice of the 6th-century Eastern Roman Empire whose texts

were rediscovered by late medieval Western Europe. Roman law in the days of the Roman

Republic and Empire was heavily procedural, and lacked a professional legal class. Instead a

lay magistrate, iudex, was chosen to adjudicate. Precedents were not reported, so any case law

that developed was disguised and almost unrecognised. Each case was to be decided afresh from

the laws of the State, which mirrors the (theoretical) unimportance of judges' decisions for future

cases in civil law systems today. From 529–534 AD the Byzantine Emperor Justinian I codified

and consolidated Roman law up until that point, so that what remained was one-twentieth of the

mass of legal texts from before. This became known as the Corpus Juris Civilis. As one legal

historian wrote, "Justinian consciously looked back to the golden age of Roman law and aimed

to restore it to the peak it had reached three centuries before." The Justinian Code remained in

force in the East until the fall of the Byzantine Empire. Western Europe, meanwhile, relied on a

mix of the Theodosian Code and Germanic customary law until the Justinian Code was

rediscovered in the 11th century, and scholars at the University of Bologna used it to interpret

their own laws. Civil law codifications based closely on Roman law, alongside some influences

from religious laws such as canon law, continued to spread throughout Europe until

the Enlightenment; then, in the 19th century, both France, with the Code Civil, and Germany,

with the Bürgerliches Gesetzbuch, modernised their legal codes. Both these codes influenced

heavily not only the law systems of the countries in continental Europe (e.g. Greece), but also

the Japanese andKorean legal traditions. Today, countries that have civil law systems range

from Russia and China to most of Central and Latin America. With the exception of Louisiana's

Civil Code, the United States follows the common law system described below.

What the civil law is:

A comprehensive system of rules and principles usually arranged in codes and easily

accessible to citizens and jurists.

A well organized system that favors cooperation, order, and predictability, based on a

logical and dynamic taxonomy developed from Roman law and reflected in the structure

of the codes.

An adaptable system, with civil codes avoiding excessive detail and containing general

clauses that permit adaptation to change.

A primarily legislative system, yet leaving room for the judiciary to adjust rules to

social change and new needs, by way of interpretation and creative jurisprudence.

Some salient features of the civil law:

Clear expression of rights and duties, so that remedies are self-evident.

Simplicity and accessibility to the citizen, at least in those jurisdictions where it is

codified.

Advance disclosure of rules, silence in the code to be filled based on equity, general

principles, and the spirit of the law.

Richly developed and to some extent transnational academic doctrine inspiring the

legislature and the judiciary.

Where we find the civil law:

In Continental Europe, where most jurisdictions have civil codes. In Great Britain,

Scotland has retained an uncodified form of the civil law. Even when they have civil

codes, Scandinavian countries are not regarded as civil law jurisdictions.

In North America, civil codes are found in Louisiana and Quebec.

In Central and South America, almost all countries have civil codes.

In Asia, many countries have received the civil law and have civil codes, such as

Indonesia, Japan, Kyrgyzstan, and Lebanon.

Countries of Africa that once were colonized by continental European nations have kept

many aspects of the civil law traditions. The Civil Code of Egypt has a significant

influence in Africa and the Middle East, whilst the Roman-Dutch law applied in South

Africa was never codified.

Some remnants of the civil law traditions are to be found on some Pacific islands,

especially in the French territories of New Caledonia or Tahiti.

In mixed jurisdictions, chiefly found in America, Africa, and Asia, but also in Europe,

the civil law coexists with other legal traditions such as the common law, customary law,

or Islamic law.

15. CRIMINAL LAW UPDATE

Criminal law involves the prosecution by the state of wrongful acts which are considered to be

so serious that they are a breach of the sovereign's peace (and cannot be deterred or remedied by

mere lawsuits between private parties). Generally, crimes can result in incarceration, but torts

(see below) cannot. The majority of the crimes committed in the United States are prosecuted

and punished at the state level. Federal criminal law focuses on areas specifically relevant to the

federal government like evading payment of federal income tax, mail theft, or physical attacks

on federal officials, as well as interstate crimes like drug trafficking and wire fraud.

All states have somewhat similar laws in regard to "higher crimes" (or felonies), such

as murder and rape, although penalties for these crimes may vary from state to state. Capital

punishment is permitted in some states but not others. Three strikes laws in certain states impose

harsh penalties on repeat offenders.

Some states distinguish between two levels: felonies and misdemeanors (minor crimes).

Generally, most felony convictions result in lengthy prison sentences as well as

subsequent probation, large fines, and orders to pay restitution directly to victims; while

misdemeanors may lead to a year or less in jail and a substantial fine. To simplify the

prosecution of traffic violations and other relatively minor crimes, some states have added a third

level, infractions. These may result in fines and sometimes the loss of one's driver's license, but

no jail time.

For public welfare offenses where the state is punishing merely risky (as opposed to injurious)

behavior, there is significant diversity across the various states. For example, punishments

for drunk driving varied greatly prior to 1990. State laws dealing with drug crimes still vary

widely, with some states treating possession of small amounts of drugs as a misdemeanor offense

or as a medical issue and others categorizing the same offense as a serious felony.

Criminal law, also known as penal law, pertains to crimes and punishment. It thus regulates the

definition of and penalties for offences found to have a sufficiently deleterious social impact but,

in itself, makes no moral judgment on an offender nor imposes restrictions on society that

physically prevent people from committing a crime in the first place. Investigating,

apprehending, charging, and trying suspected offender is regulated by the law of criminal

procedure. The paradigm case of a crime lies in the proof, beyond reasonable doubt, that a

person is guilty of two things. First, the accused must commit an act which is deemed by society

to be criminal, or actus reus (guilty act). Second, the accused must have the requisite malicious

intent to do a criminal act, or mens rea (guilty mind). However, for so called "strict liability"

crimes, an actus reus is enough. Criminal systems of the civil law tradition distinguish between

intention in the broad sense (dolus directus and dolus eventualis), and negligence. Negligence

does not carry criminal responsibility unless a particular crime provides for its punishment.

A depiction of a 1600s criminal trial, for witchcraft in Salem

Examples of crimes include murder, assault, fraud and theft. In exceptional circumstances

defences can apply to specific acts, such as killing in self defence, or pleading insanity. Another

example is in the 19th-century English case of R v Dudley and Stephens, which tested a defence

of "necessity". The Mignonette, sailing from Southampton to Sydney, sank. Three crew members

and Richard Parker, a 17-year-old cabin boy, were stranded on a raft. They were starving and the

cabin boy was close to death. Driven to extreme hunger, the crew killed and ate the cabin boy.

The crew survived and were rescued, but put on trial for murder. They argued it was necessary to

kill the cabin boy to preserve their own lives. Lord Coleridge, expressing immense disapproval,

ruled, "to preserve one's life is generally speaking a duty, but it may be the plainest and the

highest duty to sacrifice it." The men were sentenced to hang, but public opinion was

overwhelmingly supportive of the crew's right to preserve their own lives. In the end,

the Crown commuted their sentences to six months in jail.

Criminal law offences are viewed as offences against not just individual victims, but the

community as well. The state, usually with the help of police, takes the lead in prosecution,

which is why in common law countries cases are cited as "The People v ..." or

"R (for Rex orRegina) v ...". Also, lay juries are often used to determine the guilt of defendants

on points of fact: juries cannot change legal rules. Some developed countries still condone

capital punishment for criminal activity, but the normal punishment for a crime will

be imprisonment, fines, state supervision (such as probation), or community service. Modern

criminal law has been affected considerably by the social sciences, especially with respect

to sentencing, legal research, legislation, and rehabilitation. On the international field, 111

countries are members of the International Criminal Court, which was established to try people

forcrimes against humanity.

Semestrul 2

1. THE COMMERCIAL LAW

Commercial law, also known as business law, is the body of law that applies to the rights,

relations, and conduct of persons and businesses engaged in commerce, merchandising, trade,

and sales. It is often considered to be a branch of civil law and deals with issues of both private

law and public law.

Commercial law includes within its compass such titles as principal and agent; carriage by land

and sea; merchant shipping; guarantee; marine, fire, life, and accident insurance; bills of

exchange and partnership. It can also be understood to regulatecorporate contracts, hiring

practices, and the manufacture and sales of consumer goods. Many countries have adopted civil

codesthat contain comprehensive statements of their commercial law.

In the United States, commercial law is the province of both the United States Congress, under

its power to regulate interstate commerce, and the states, under their police power. Efforts have

been made to create a unified body of commercial law in the United States; the most successful

of these attempts has resulted in the general adoption of the Uniform Commercial Code, which

has been adopted in all 50 states (with some modification by state legislatures), the District of

Columbia, and the U.S. territories.

Various regulatory schemes control how commerce is conducted, particularly vis-a-vis

employees and customers. Privacy laws, safety laws (e.g., the Occupational Safety and Health

Act in the United States), and food and drug laws are some examples.

Commercial law provides the rules that merchants and others involved in commerce must follow

as they conduct business amongst themselves and with consumers. It governs the sales of goods

and services, negotiable instruments, security interests, leases, principal and agent relationships,

contracts of carriage, and much more. In a broad sense, commercial law also encompasses

related issues like business bankruptcy and tax planning.

Because various legal issues may be included or excluded from the subject of commercial law

depending upon how expansively it is defined, it may be more helpful to consider the matter in

terms of timing. Commercial law covers legal issues that arise prior to the initiation of a lawsuit.

By contrast, once a lawsuit is filed, the same issues are more properly characterized as litigation.

Thus, commercial law attorneys help their clients negotiate and enter into business deals.

Litigation attorneys help their clients defend their interests in court when deals go bad.

Elements of a Contract

The ability to form contracts represents the foundation of modern commercial law. Without

contracts, sellers and buyers would be unable to enter into transactions, as they would have no

guarantee that the other side will honor its half of the bargain. That is not to say that contracts are

based on the goodwill or trustworthiness of parties in the marketplace. Rather, contracts are

based on a system of rules for forming agreements that, if followed, allows parties to rest assured

that the terms of their agreements will be enforced by the legal system if necessary.

Contracts are formed when the following three elements are present: an offer, an acceptance, and

consideration. For an offer to be valid, specific rules must be followed. The offer must be made

to an identified party, and it must set forth definite and certain terms. The offer must also

demonstrate a present intent to enter into an agreement. Similarly, the other party must properly

accept the offer in order for a contract to be formed. In most situations, a valid acceptance must

mirror the offer. A purported acceptance that adds new terms to the deal will not count. Instead,

it will be treated only as a counteroffer.

The final element required to form a contract is known as consideration. Consideration refers to

a bargained-for exchange. It means that the person who promises to do something must receive a

benefit in return. Otherwise, the promise is merely gratuitous, and there is no contract. For

example, if the owner of a lawnmower promises to lend it to a neighbor, no contract exists and

the owner can later refuse. But if the neighbor pays the owner $10 in consideration for the right

to borrow the lawnmower, a contract has been formed and the owner must honor it.

The Uniform Commercial Code (UCC)

Because commercial law is primarily found in state statutes, there is a potential for states to enact

conflicting rules, thereby disrupting the flow of interstate commerce. The UCC was created to

remedy this situation. It was drafted by a non-governmental body to provide a standardized set of

statutes dealing with commercial law, which each state is free to adopt if it chooses. All states

have now adopted some form of the UCC.

Not all commercial transactions are governed by the UCC, however. It applies to the sale of

―goods.‖ This includes just about any movable object, but it does not include services or real

estate. The UCC also provides special rules for those who regularly deal in the type of goods at

issue, as opposed to non-merchants who only buy or sell them occasionally. Another unique

aspect of the UCC is known as the ―perfect tender rule.‖ General commercial law principles only

require parties to substantially perform their contractual duties to avoid breach. Under the UCC,

a contract will be breached if the goods (or their delivery) fail to conform to the agreement in

any way.

Contact a Commercial Law Attorney

If you are struggling with a commercial law issue, there is no reason to handle the matter on your

own. An experienced attorney can explain how the law applies to your situation and suggest a

course of action designed to protect your legal rights. Schedule a consultation today.

Corporate Structure for a New Business

How to structure a new business venture focusing on small businesses that have only a few

shareholders or partners. Four important issues for the structure of the business are share

ownership, compensation, control rights, and lastly the shareholders‘ exit from the business.

The California Revised Uniform Limited Liability Company Act and What It May Mean

for You

The California Revised Uniform Limited Liability Company Act (―Revised LLC Act‖) to be

enacted on January 1, 2014 may dramatically affect companies with no operating agreements,

or operating agreements that do not address the new default provisions under the Revised LLC

Act.

Presidential Hopefuls Taking Heat for Possible Copyright Infringement

Every election season, at least one of the candidates seems to end up in legal hot water over

music used by the campaign. in 2012, it was Newt Gingrich. He is facing a copyright

infringement lawsuit for his use of the Rocky III theme song, "Eye of the Tiger."

A Call for Big Patent Changes

Federal Judge Richard Posner recently dismissed the high-profile intellectual property litigation

between Apple and Motorola, after determining that neither side could prove damages.

Are Neutral Experts the Key to Complicated IP Litigation?

Judge Richard Posner is taking a novel approach to the upcoming patent litigation between

Apple and Motorola. He is using court-appointed witnesses to explain complicated subject

matter.

What Does Neil Young Have Against MP3s? Rock Legend Seeks Trademark for New

Audio Format

Legendary rocker Neil Young reportedly does not like how his songs currently sound on his

iPod. To remedy the problem, he is working on a new, high-resolution audio format to replace

MP3s, as evidenced by several trademarks applications recently filed on his behalf.

USPTO Issues Guidance to Patent Examiner in Wake of Prometheus Decision

The U.S. Patent and Trademark Office issued a memorandum to its patent examiners regarding

the Supreme Court‘s recent decision in Mayo Collaborative Services v. Prometheus

Laboratories, Inc. The memorandum provides preliminary guidance to the Patent Examining

Corps. in light of the Court‘s decision, and also indicates that further guidance will be

forthcoming.

Has Louis Vuitton Gone Too Far to Protect Its Trademark?

The intellectual property world is buzzing about the trademark dispute brewing between luxury

brand Louis Vuitton and University of Pennsylvania Law School. Louis Vuitton recently sent a

strongly worded cease and desist letter demanding that the school remove posters advertising

the Pennsylvania Intellectual Property Group‘s (PIRG) annual symposium on fashion law

because the posters "misappropriated and modified" Vuitton's trademarked monogram design.

Review of The Owner/Design Professional Agreement from The Design Professional's

Perspective

This article reviews some of the issues addressed in a standard Owner/Design Professional

Agreement, outlines concerns from the Design Professional‘s perspective, and discusses how

the Design Professional can reduce liability on a project and ensure equitable adjustments to

the contract price and schedule for changed or additional design services. The agreement

contemplated by this article is one to be used as part of a traditional design-bid-build approach.

Vesting of Contingent Compensation in Pay or Played Television Director Agreement

One of the issues in negotiating director agreements in television is whether contingent

compensation provision applies in situations where a director is pay or played off a film. The

question becomes will the director be entitled to any portion of the negotiated contingent

compensation since she has been terminated and is no longer with the project.

All Business and Industry Law Related Articles

Commercial Law - US

Bureau of Economic Analysis

BEA is an agency of the Department of Commerce. Along with the Census Bureau and STAT-

USA, BEA is part of the Department's Economics and Statistics Administration. BEA produces

economic accounts statistics that enable government and business decision-makers, researchers,

and the American public to follow and understand the performance of the Nation's economy.

To do this, BEA collects source data, conducts research and analysis, develops and implements

estimation methodologies, and disseminates statistics to the public.

Commercial Law - Definition

Commercial law (sometimes known as business law) is the body of law which governs

business and commerce. It is often considered to be a branch of civil law and deals both with

issues of private law and public law. Commercial law regulates corporate contracts, hiring

practices, and the manufacture and sales of consumer goods.

US Commercial Service

The U.S. Commercial Service is the trade promotion arm of the U.S. Department of

Commerce‘s International Trade Administration. U.S. Commercial Service trade professionals

in over 100 U.S. cities and in nearly 80 countries help U.S. companies get started in exporting

or increase sales to new global markets.

US Department of Commerce

The U.S. Department of Commerce has a broad mandate to advance economic growth and jobs

and opportunities for the American people. It has cross cutting responsibilities in the areas of

trade, technology, entrepreneurship, economic development, environmental stewardship and

statistical research and analysis. The products and services the department provides touch the

lives of Americans and American companies in many ways, including weather forecasts, the

decennial census, and patent and trademark protection for inventors and businesses. The

development of commerce to provide new opportunities was the central goal at the

department's beginning in 1903 and it remains a primary obligation today.

Commercial Law - International

Commercial Law International

The goals of this site will be to inform; give opinions; at times be controversial; and to provoke

insightful discussions about the latest, most interesting and sometimes stranger developments

that affect the commercial world. In other words, our aim is to expand commercial awareness –

that is the economic, social, political and legal dynamics – of well known and not so well know

regions of the world.

European Judicial Network in Civil and Commercial Matters

Information about the Member States, Community law, European law and various aspects of

civil and commercial law.

International Trade Administration (ITA)

The International Trade Administration (ITA) strengthens the competitiveness of U.S. industry,

promotes trade and investment, and ensures fair trade through the rigorous enforcement of our

trade laws and agreements. ITA works to improve the global business environment and helps

U.S. organization compete at home and abroad. ITA supports President Obama‘s recovery

agenda and the National Export Initiative to sustain economic growth and support American

jobs.

Pace Institute of International Commercial Law (IICL)

Founded in 1991, the Pace Institute of International Commercial Law has played an

instrumental role in the evolution of teaching and scholarship in the fields of international

commercial law and international arbitration, by creating the award-winning CISG Database

and founding the Willem C. Vis International Commercial Arbitration Moot.

2. FAIR - TRADE LAW

A fair trade law was a statute that permitted manufacturers the right to specify the minimum

retail price of a commodity, a practice known as "price maintenance". They first appeared in

1931 during the Great Depression in the state of California. They were ostensibly intended to

protect small businesses to some degree from the competitions of the very large chain stores

during a time when small businesses were suffering. Many people objected to this on the

grounds that if the manufacturers could set the price, consumers would have to pay more even

at large discount stores. The complexity of the market also made the enforcement of these laws

almost impractical. As the chain stores became more popular, and bargain prices more

common, there was a widespread repeal of the laws in many jurisdictions. In 1975, the laws

were repealed completely.

Fair-trade law, in the United States, any law allowing manufacturers of branded or trademarked

goods (or in some instances distributors of such products) to fix the actual or minimum resale

prices of these goods by resellers. The designation ―fair-trade law‖ is peculiar to the United

States; the practice described in them is known elsewhere as price maintenance or resale price

maintenance.

When first tested in U.S. courts in 1911, resale price maintenance agreements were found to

violate the Sherman Anti-Trust Act of 1890 with its prohibition of monopolies. In countries

lacking such prohibitions, especially in Great Britain, the practice became widespread, enforced

by trade associations and groups of trade associations; but in the United States the practice was

limited in interstate commerce to the mere suggestion of prices to dealers, without effective

power of enforcement. A turning point came in the United States when the California Fair Trade

Act of 1931 was amended in 1933 to include a so-called nonsigners‘ clause, whereby prices

agreed upon by a manufacturer and contracting dealers were made binding upon all resellers.

Influenced by the depressed markets of the 1930s, 44 states enacted similar laws, which were

intended to protect independent retailers from price-cutting by large chain stores and thus

prevent the loss of employment in the distributive trades. These statutes were supported in 1937

by the passage of the Miller-Tydings Amendment to the Sherman Anti-Trust Act, which

exempted price maintenance agreements from antitrust laws. When World War II began, U.S.

manufacturers had more authority over pricing than those in most other countries.

By the 1960s, the complexity of marketing channels in the highly industrialized countries made

enforcement of such agreements by manufacturers impracticable, and the practice entered a

worldwide decline. At the same time, increasing doubts as to its propriety caused it to be banned

or severely limited in some countries. In the United States, as opposition to fair-trade laws

gained ground, many states repealed them, and in 1975 the few that remained were repealed by

an act of Congress.

Domestic Fair Trade

In the United States, fair-trade laws were first enacted in California in 1931 to protect small

retailers and druggists. Soon, most states had enacted similar legislation. These laws were

frequently contested; in 1936, the U.S. Supreme Court agreed to hear Old Dearborn Distributing

Company v. Seagram Distillers Corporation. The Court ultimately ruled that state fair-trade laws

were legitimate means of protecting manufacturers. In 1937, the Miller-Tydings Amendment to

the Sherman Antitrust Act of 1890 exempted fair-trade laws from antitrust legislation.

In the 1950s, fair trade was hotly contested among various corporations and in the court system,

particularly at the state level. By 1956, eight state supreme courts had ruled against fair-trade

statutes, making the laws meaningless in some areas. Manufacturers were no longer able to

dictate the retail price at which their goods could be sold, which was at the heart of fair-trade

laws. Supporters of fair trade redoubled their efforts at the state and national level in the 1950s

and 1960s, but by mid-1975, fair trade had been eliminated in 25 states.

Fair-Trade in the Global Economy

Global fair-trade laws are enacted to ensure that U.S. businesses are protected in the world

marketplace against unfair foreign pricing and government subsidies, which distort the flow of

goods between nations. In the United States, the Import Administration (part of the International

Trade Administration) within the Department of Commerce enforces laws and agreements.

When a U.S. industry suspects that it is being hurt by unfair competition, either through products

being dumped at a reduced cost or by an unfair subsidy, it can request that measures be taken

against the offender. The process begins with a petition filed with the Import Administration and

the U.S. International Trade Commission.

The General Agreement on Tariffs and Trade (GATT) governed international trade from 1948 to

1995, when it was subsumed by the World Trade Organization (WTO). The idea that global

trade broke down in the 1930s as a result of the Great Depression and rise of totalitarian regimes

was the impetus behind GATT. The administration of President Franklin D. Roosevelt pushed

for the expansion of foreign trade and used a series of agreements to set up reciprocal trade with

other nations. Initially, twenty-three nations participated in GATT. Roosevelt's successor,

President Harry S. Truman, also supported global trade and forced the United States into signing

GATT.

After World War II, government officials wanted to set up an international trade organization to

regulate and expand world trade. After failing to win congressional ratification of such an

organization in 1948, subsequent administrations adhered to GATT through executive

agreement. GATT negotiations between the late 1940s and the mid-1980s lowered tariffs,

reduced trade barriers, eliminated trade discrimination, and called for settling disputes through

mediation. During the Uruguay Round (1986–1994), the idea for the WTO came to life. In 1996,

the WTO became the first international trade organization to be ratified by the U.S. Congress.

The WTO oversees international trade and has the legal authority to settle disputes between

nations. At the turn of the twenty-first century, 124 nations belonged to the WTO.

Large corporations have been the strongest advocates of free trade, arguing that global

competitiveness will raise wages and benefits for all workers as markets expand. In June 1991,

the administration of President George H. W. Bush began talks with Canada and Mexico to

achieve a trilateral trade agreement. In late 1992, the agreement was signed by Bush and later

lobbied for by the administration of President Bill Clinton. The North American Free Trade

Agreement (NAFTA) took effect in 1994. NAFTA eliminated tariffs for the three nations,

reduced barriers to trade and investment, and exempted businesses from many state, local, and

national regulations.

Many of the largest corporations in Mexico, Canada, and the United States lobbied aggressively

for NAFTA. They reasoned that creating the world's largest free trade entity would bring

prosperity for all three nations. Critics, however, chided NAFTA for its lack of protection for

workers, small business, and the environment.

In the early twenty-first century President George W. Bush unveiled an ambitious trade agenda,

including agreements with Chile and Singapore, the thirty-five democracies in the Western

Hemisphere, and a global free-trade accord with the more than 140-member nations of the WTO.

Bush set off a wave of protest, however, when he pushed for unilateral authority to negotiate

trade agreements without amendments (known as "fast track").

Nations will continue to argue for and against free trade and protectionist policies. Since World

War II, the global economy has become increasingly important for nations of all sizes. Powerful

countries, like the United States, have taken steps to formalize global trade, but these issues are

burdened with controversy. For example, China entered the WTO in December 2001, after

fifteen years of negotiations, despite the country's poor record on human rights. The desire to

gain access to the world's largest emerging economy by corporate and government officials

overrode longstanding and legitimate environ-mental and human rights concerns.

3. CRIME IN USA

Crime in the United States is described by annual Uniform Crime Reports by the Federal

Bureau of Investigation (FBI) and by annual National Crime Victimization Surveys by

the Bureau of Justice Statistics. In addition to the primary Uniform Crime Report known

as Crime in the United States, the FBI publishes annual reports on hate crimes and on the status

of law enforcement in the United States, and its definitions of crime are considered standard by

many American law enforcement agencies. According to the FBI, index crime in the United

States includes violent crime and property crime.[4]

Violent crime consists of four criminal

offenses:murder and non-negligent manslaughter, forcible rape, robbery, and aggravated assault;

property crime consists of burglary,larceny, motor vehicle theft, and arson.

Crime rates have varied over time in the United States. American crime rates generally rose

after World War II, and peaked between the 1970s and early 1990s. Since the early 1990s, crime

has declined in the United States, and current crime rates are approximately the same as those of

the 1960s.

Crime over time

Property crime rates in the United States per 100,000 population beginning in 1960. Source: Bureau of Justice Statistics.

In the long term, violent crime in the United States has been in decline since colonial

times. However, during the early 20th century, crime rates in the United States were higher

compared to parts of Western Europe. For example, 198 homicides were recorded in the

American city of Chicago in 1916, a city of slightly over 2 million at the time. This level of

crime was not exceptional when compared to other American cities such as New York, but was

much higher relative to European cities, such as London, which then had three times the

population but recorded only 45 homicides in the same year.

After World War II, crime rates increased in the United States, peaking from the 1970s to the

early 1990s. Violent crime nearly quadrupled between 1960 and its peak in 1991. Property crime

more than doubled over the same period. Since the 1990s, however, crime in the United States

has declined steeply. Several theories have been proposed to explain this decline:

1. The number of police officers increased considerably in the 1990s.

2. On September 16, 1994, President Clinton signed the Violent Crime Control and Law

Enforcement Act into law. Under the act, over $30 billion in federal aid was spent over a

six year period to improve state and local law enforcement, prisons and crime prevention

programs. Proponents of the law, including the President, touted it as a lead contributor

to the sharp drop in crime which occurred throughout the 1990s, while critics have

dismissed it as an unprecedented federal boondoggle.

3. The prison population has been expanded since the mid-1970s.

4. Starting in the mid-1980s, the crack cocaine market grew rapidly before declining again a

decade later. Some authors have pointed towards the link between violent crimes and

crack use.

5. One hypothesis suggests a causal link between legalized abortion and the drop in crime

during the 1990s.

6. Changing demographics of an aging population has been cited for the drop in overall

crime.

7. Another hypothesis suggests reduced lead exposure as the cause; Scholar Mark A.R.

Kleiman writes: "Given the decrease in lead exposure among children since the 1980s

and the estimated effects of lead on crime, reduced lead exposure could easily explain a

very large proportion—certainly more than half—of the crime decrease of the 1994-2004

period. A careful statistical study relating local changes in lead exposure to local crime

rates estimates the fraction of the crime decline due to lead reduction as greater than 90

percent.

8. Three Strikes You're Out Laws were suggested during the 1992 election cycle and

implemented immediately following.

9. Realistically violent video games entered the market at the same time violent crime rates

decreased; sales of such games correlate inversely with such crime rates.

Crime victimology

This graph shows the homicide victimization rate for whites and blacks, according to the US Bureau of Justice Statistics.

In 2011, surveys indicated more than 5.8 million violent victimizations and 17.1 million property

victimizations took place in the United States; according to the Bureau of Justice Statistics, each

property victimization corresponded to one household, while violent victimizations is the

number of victims of a violent crime.

Patterns are found within the victimology of crime in the United States. Overall, males, people

with lower incomes, those younger than 25, and non-whites were more likely to report being the

victim of crime. Income, gender, and age had the most dramatic effect on the chances of a person

being victimized by crime, while the characteristic of race depended upon the crime being

committed.

In terms of gender, males were more likely to become crime victims than were females, with

79% percent of all murder victims being male. Males were twice as likely to be carjacked as

females. In terms of income, households with a 2008 income of less than $15,000 were

significantly more likely to have their homes burgled.

Concerning age, those younger than twenty-five were more likely to fall victim to crime,

especially violent crime. The chances of being victimized by violent crime decreased far more

substantially with age than the chances of becoming the victim of property crime. For example,

3.03% of crimes committed against a young person were theft, while 20% of crimes committed

against an elderly person were theft.

Bias motivation reports showed that of the 7,254 hate crimes reported in 2011, 47.7% (3,465)

were motivated by race, with 72% (2,494) of race-motivated incidents being anti-black. In

addition, 20.8% (1,508) of hate crimes were motivated by sexual orientation, with 57.8% (871)

of orientation-motivated incidents being anti-male homosexual. The third largest motivation

factor for hate crime was religion, representing 18.2% (1,318) incidents, with 62.2% (820) of

religion-motivated incidents being anti-Jewish.

As of 2007, violent crime against homeless people is increasing. The rate of such documented

crimes in 2005 was 30% higher than of those in 1999. 75% of all perpetrators are under the age

of 25. Studies and surveys indicate that homeless people have a much higher

criminal victimization rate than the non-homeless, but that most incidents never get reported to

authorities. In recent years, largely due to the efforts of the National Coalition for the

Homeless (NCH) and academic researchers the problem of violence against the homeless has

gained national attention. The NCH called deliberate attacks against the homeless hate crimes in

their report Hate, Violence, and Death on Mainstreet USA (they retain the definition of the

American Congress). The Center for the Study of Hate & Extremism at California State

University, San Bernardino in conjunction with the NCH found that 155 homeless people were

killed by non-homeless people in "hate killings", while 76 people were killed in all the other

traditional hate crime homicide categories such as race and religion, combined. The CSHE

contends that negative and degrading portrayals of the homeless contribute to a climate where

violence takes place.

The likelihood of falling victim to crime relates to both demographic and geographic

characteristics. Overall, men, minorities, the young, and those in urban areas are more likely to

be crime victims. The likelihood of perpetrating crime also relates to demography. Also, Human

Rights Watch has reported that much of the rape in prison is black against white: "Past studies

have documented the prevalence of black on white sexual aggression in prison. These findings

are further confirmed by Human Rights Watch's own research. Overall, our correspondence and

interviews with white, black, and Hispanic inmates convince us that white inmates are

disproportionately targeted for abuse. Although many whites reported being raped by white

inmates, black on white abuse appears to be more common. To a much lesser extent, non-

Hispanic whites also reported being victimized by Hispanic inmates." Critics such as Jared

Taylor contend that the media downplays such violence against whites.

In 2010, according to the UNODC, 67.5% of all homicides in the United States were perpetrated

using a firearm.

International comparison. The manner in which America's crime rate compared to other

countries of similar wealth and development depends on the nature of the crime used in the

comparison. Overall crime statistic comparisons are difficult to conduct, as the definition and

categorization of crimes varies across countries. Thus an agency in a foreign country may

include crimes in its annual reports which the United States omits, and vice-versa.

Some countries such as Canada, however, have similar definitions of what constitutes a violent

crime, and nearly all countries had the same definition of the characteristics that constitutes a

homicide. Overall the total crime rate of the United States is similar to that of other industrialized

countries. Some types of reported property crime in the U.S. survey as lower than in Germany or

Canada, yet the homicide rate in the United States is substantially higher.

Homicide. The US homicide rate, which has declined substantially since 1992 from a rate per

100,000 persons of 9.8 to 4.8 in 2010, is still among the highest in the industrialized world.

There were 14,748 homicides in the United States in 2010, including non-negligent

manslaughter. (666,160 murders from 1960 to 1996). In 2004, there were 5.5 homicides for

every 100,000 persons, roughly three times as high as Canada (1.9) and six times as high as

Germany (0.9). A closer look at The National Archive of Criminal Justice Data indicates that

per-capita homicide rates over the last 30 plus years on average, of major cities, New Orleans'

average annual per capita homicide rate of 52 murders per 100,000 people overall (1980–2012)

is the highest of U.S. cities with average annual homicide totals that were among the top 10

highest during the same period.

In the United States, the number of homicides where the victim and offender relationship was

undetermined has been increasing since 1999 but has not reached the levels experienced in the

early 1990s. In 14% of all murders, the victim and the offender were strangers. Spouses and

family members made up about 15% of all victims, about one-third of the victims were

acquaintances of the assailant, and the victim and offender relationship was undetermined in

over one-third of homicides. Gun involvement in homicides were gang-related homicides which

increased after 1980, homicides that occurred during the commission of a felony which increased

from 55% in 1985 to 77% in 2005, homicides resulting from arguments which declined to the

lowest levels recorded recently, and homicides resulting from other circumstances which

remained relatively constant. Because gang killing has become a normal part of inner cities,

many including police hold preconceptions about the causes of death in inner cities. When a

death is labeled gang-related it lowers the chances that it will be investigated and increases the

chances that the perpetrator will remain at large. In addition, victims of gang killings often

determine the priority a case will be given by police. Jenkins (1988) argues that many serial

murder cases remain unknown to police and that cases involving Black offenders and victims are

especially likely to escape official attention.

Violent crime. The reported US violent crime rate includes only Aggravated Assault, whereas

the Canadian violent crime rate includes all categories of assault, including the much-more-

numerous Assault level 1 (i.e., assault not using a weapon and not resulting in serious bodily

harm). A Canadian government study concluded that direct comparison of the 2 countries'

violent crime totals or rates was "inappropriate".

It should be noted that France and the U.S. do not count minor violence, such as punching or

slapping, as assault, whereas Austria, Germany, and Finland do count such occurrences.

Property crime. According to a 2004 study by the Bureau of Justice Statistics, looking at the

period from 1981 to 1999, the United States had a lower surveyed residential burglary rate in

1998 than Scotland, England, Canada, the Netherlands, and Australia. The other two countries

included in the study, Sweden and Switzerland, had only slightly lower burglary rates. (Note:

The rate of burglary in police records remained higher in the U.S. than most other countries

during the study period (see graph)). For the first nine years of the study period the same surveys

of the public showed only Australia with rates higher than the U.S. The authors noted various

problems in doing the comparisons including infrequent data points (The U.S. performed 5

surveys from 1995 to 1999 when its rate dipped below Canada's while Canada ran a single

telephone survey during that period for comparison).

Physical abuse and neglect of children. According to a 2001 report from UNICEF, the United

States has the highest rate of deaths from child abuse and neglect of any industrialized nation, at

2.4 per 100,000 children; France has 1.4, Japan 1, UK 0.9 and Germany 0.8. According to the

US Department of Health, the state of Texas has the highest death rate, at 4.05 per 100,000

children, New York has 2.46, Oregon 1.49 and New Hampshire 0.35.

4. PRINCIPLES OF CRIMINAL LIABILITY

"Law, with all its weaknesses, is all that stands between civilization and barbarism" (John

Derbyshire)

Criminal liability is what unlocks the logical structure of the criminal law. Each element of a

crime that the prosecutor needs to prove (beyond a reasonable doubt) involves a principle of

criminal liability. There are some crimes that only involve a subset of the principles of liability,

but these are rare and are called "crimes of criminal conduct." Burglary, for example, is such a

crime because all you need to prove beyond a reasonable doubt is an actus reus concurring with a

mens rea. On the other hand, there are crimes that involve all the principles of liability, and these

are called "true crimes" that reflect "black letter law." Homicide, for example, is such a crime

because you need to prove actus reus, mens rea, concurrence, causation, and harm. The

requirement that the prosecutor must prove each element of criminal liability beyond a

reasonable doubt is called the "corpus delicti rule."

Liability needs to be distinguished from the following concepts:

culpability (purposely, knowingly, recklessly, negligently) - infers intent

capacity (infancy, intoxication, insanity) - capacity defenses

responsibility (volition, free will, competency) - presumptions

In general, liability is one of the most important concepts in law. From the above list, it is

closest to responsibility, but more strictly refers to the idea of "legal responsibility" as in the

notion from civil law where a person is "legally liable" if they do not meet some "legal

responsibility." Some good synonyms for it are answerability or accountability. Liability is

inherently a social concept, which implies not only some harm is done to society, but there is

some collective accountability involved. Of course, pure collective accountability is called

"vicarious liability" but modern societies (and even Anglo-American common law) have moved

away from collective or community-based systems of responsibility to systems where

governments get to declare what is criminal or quasi-criminal.

There are five principles of liability in criminal law:

Principle of Actus Reus

Principle of Mens Rea

Principle of Concurrence

Principle of Causation

Principle of Resulting Harm

The Principle of Actus Reus

involuntariness -- sleepwalking, hypnotic behavior, etc. are seen as examples of acting

upon forces beyond individual control, and are therefore not normally included in the

principle of actus reus. However, certain "voluntarily induced involuntary acts" such as

drowsy driving might arguably be included if the prior voluntary act created the risk of a

future involuntary act.

manifest criminality -- caught red-handed, clear-cut case of actus reus proven beyond a

reasonable doubt

possession -- the law recognizes various degrees of this. Actual possession means

physically on your person. Constructive possession means physically under your control.

Knowing possession means you know what you are possessing. Mere possession means

you don't know what you are possessing. Unwitting possession is when something has

been planted on you. The only punishable types of possession are the ones that are

conscious and knowable.

procuring -- obtaining things with the intent of using them for criminal purposes; e.g.,

precursor chemicals for making narcotics, "pimping" for a prostitute, and procuring

another to commit a crime ("accessory before the fact")

status or condition -- sometimes a chronic condition qualifies as action, e.g., drug

addiction, alcoholism, on the assumption that first use is voluntary. Sometimes the

condition, e.g. chronic alcoholism, is treated as a disease which exculpates an individual.

Most often, it's the punishment aspect of criminal law in these kinds of cases that triggers

an 8th Amendment issue. Equal Protection and other constitutional issues may be

triggered.

thoughts -- sometimes, not often, the expression of angry thoughts, e.g., "I'll kill you for

that" is taken as expressing the resolution and will to commit a crime, but in general,

thoughts are not part of the principle of actus reus. Daydreaming and fantasy are also not

easily included in the principle of mens rea.

words -- these are considered "verbal acts"; e.g. sexual harassment, solicitation, terroristic

threats, assault, inciting to riot.

The Principle of Mens Rea

circumstantial -- determination of mens rea through indirect evidence

confessions -- clear-cut direct evidence of mens rea beyond a reasonable doubt

constructive intent -- one has the constructive intent to kill if they are driving at high

speeds on an icy road with lots of pedestrians around, e.g.

general intent -- the intent to commit the actus reus of the crime one is charged with; e.g.,

rape and intent to penetrate

specific intent -- the intent to do something beyond the actus reus of the crime one is

charged with; e.g., breaking and entering with intent to burglarize

strict liability -- crimes requiring no mens rea; liability without fault; corporate crime,

environmental crime

transferred intent -- the intent to harm one victim but instead harm another

The Principle of Concurrence

attendant circumstances -- some crimes have additional elements that must accompany

the criminal act and the criminal mind; e.g., rape, but not with your wife

enterprise liability -- in corporate law, this is the idea that both the act and the agency

(mens rea) for it can be imputed to the corporation; e.g., product safety

year-and-a-day rule -- common law rule that the final result of an act must occur no later

than a year and a day after the criminal state of mind. For example, if you struck someone

on the head with intent to kill, but they didn't die until a year and two days later, you

could not be prosecuted for murder. Many states have abolished this rule or extended the

time limit. In California, it's three years.

vicarious liability -- sometimes, under some rules, the guilty party would not be the

person who committed the act but the person who intended the act; e.g., supervisors of

employees

The Principle of Causation

actual cause -- a necessary but not sufficient condition to prove causation beyond a

reasonable doubt; prosecutor must also prove proximate cause

but for or sine qua non causation -- setting in motion a chain of events that sooner or later

lead to the harmful result; but for the actor's conduct, the result would not have occurred

intervening cause -- unforeseen events that still hold the defendant accountable

legal causation -- a prosecutor's logic of both actual and proximate cause

proximate cause -- the fairness of how far back the prosecutor goes in the chain of events

to hold a particular defendant accountable; literally means the next or closest cause

superceding cause -- unforeseen events that exculpate a defendant

The Principle of Resulting Harm

Harm is the objective, material substance of the crime, as distinct from the subjective component

of mens rea. The basic principle is that no conduct can truly be called a crime unless it causes

some resulting harm. Such conduct must be injurious to the public at large or injurious enough

to any individual that society takes notice of it and regards it as a harm against itself. In other

words, there must be some "material unlawfulness." There is also an assumption that resulting

harm is done by challenging the legality of the law itself.

injury to society -- a "material" injury or wrong that society recognizes, is aware of, or

takes notice of

injury to legality -- goes beyond mere breach of law to a conception of the law itself

being threatened by a loss in value

punishability of attempt -- there are borderline cases of punishable attempt and non-

punishable preparation (the law of inchoate crimes - a later lecture), and it is probably

best in determining punishability by abiding with threats to legal interests as long as

those legal interests serve a real need

utility -- by necessity and Constitutional strictures, nothing should be considered harmful

unless it is morally repugnant, although immoral behavior alone should be sharply

distinguished from criminal behavior

Responsibility for Crime: Presumptions

Presumptions are court-ordered assumptions that the jury must take as true unless rebutted by

evidence. Their purpose is to simplify and expedite the trial process. The judge, for example at

some point in testimony, may remind the jury that it is OK to assume that all people

form some kind of intent before or during their behavior. It is wrong, however, for the judge to

order the jury to assumeintent or a specific kind of intent in a case. Presumptions are not a

substitute for evidence. Presumptions are supposed to be friendly reminders about safe, scientific

assumptions about human nature or human behavior in general. The most common presumptions

are:

reminders that the accused is considered innocent until proven guilty

reminders that the accused is to be considered sane, normal, and competent

It is important to understand that presumptions are not inferences. Presumptions must be

accepted as true by the jury. Inferences may be accepted as true by the jury, but the trick is to get

the jury to believe they thought of it first. Lawyers are not allowed to engage in the practice of

"stacking of inferences", or basing an inference solely upon another inference. Lawyers are also

prohibited by logic from making certain "impermissible inferences" and here's an example of

how the logic goes:

Evidence admitted: Inferences that can be drawn:

Witnesses testify that X repeatedly hit Y on

the head with a club until stopped by

passerbys

Intent to kill or seriously injure;

Purposely or Knowingly using club as

deadly weapon.

Witnesses testify that X repeatedly hit Y on

the head with a rolled-up newspaper

Intent to kill cannot be inferred;

newspaper cannot be construed as a

deadly weapon

5. TAX EVASION. BRIBERY AND CORRUPTION

Tax evasion is the illegal evasion of taxes by individuals, corporations and trusts. Tax evasion

often entails taxpayers deliberately misrepresenting the true state of their affairs to the tax

authorities to reduce their tax liability and includes dishonest tax reporting, such as declaring less

income, profits or gains than the amounts actually earned, or overstating deductions. Tax evasion

is an activity commonly associated with the informal economy. One measure of the extent of tax

evasion (the "tax gap") is the amount of unreported income, which is the difference between the

amount of income that should be reported to the tax authorities and the actual amount reported.

In contrast, tax avoidance is the legal use of tax laws to reduce one's tax burden. Both tax

evasion and avoidance can be viewed as forms of tax noncompliance, as they describe a range of

activities that intend to subvert a state's tax system, although such classification of tax avoidance

is not indisputable, given that avoidance is lawful, within self-creating systems.

Economics of tax evasion

In 1968, Nobel laureate economist Gary Becker first theorized the economics of crime, on the

basis of which authors M.G. Allingham and A. Sandmo produced, in 1972, an economic model

of tax evasion. This model deals with the evasion of income tax, the main source of tax revenue

in the developed countries. According to the authors, the level of evasion of income tax depends

on the level of punishment provided by law.

The literature's theoretical models are elegant in their effort to identify the variables likely to

affect non-compliance. Alternative specifications, however, yield conflicting results concerning

both the signs and magnitudes of variables believed to affect tax evasion. Empirical work is

required to resolve the theoretical ambiguities. Income tax evasion appears to be positively

influenced by the tax rate, the unemployment rate, the level of income and dissatisfaction with

government. The U.S. Tax Reform Act of 1986 appears to have reduced tax evasion in the

United States.

Evasion of customs duty

Customs duties are an important source of revenue in developing countries. Importers purport to

evade customs duty by (a) under-invoicing and (b) misdeclaration of quantity and product-

description. When there is ad valorem import duty, the tax base can be reduced through

underinvoicing. Misdeclaration of quantity is more relevant for products with specific duty.

Production description is changed match a H. S. Code commensurate with a lower rate of duty.

Smuggling

Smuggling is importation or exportation of foreign products by illegal means. Smuggling is

resorted to for total evasion of customs duties, as well as for the importation of contraband items.

A smuggler does not have to pay any customs duty since smuggled products are not routed

through customs-tax compliant customs ports, and are therefore not subjected to declaration and,

by extension, to the payment of duties and taxes.

Evasion of value added tax (VAT) and sales taxes

The application of the U.S. tax evasion statute may be illustrated in brief as follows, as applied to

tax protesters. The statute is Internal Revenue Code section 7201:

Any person who willfully attempts in any manner to evade or defeat any tax imposed by

this title or the payment thereof shall, in addition to other penalties provided by law, be

guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000

($500,000 in the case of a corporation), or imprisoned not more than 5 years, or both,

together with the costs of prosecution.

Under this statute and related case law, the prosecution must prove, beyond a reasonable

doubt, each of the following three elements:

1. the "attendant circumstance" of the existence of a tax deficiency — an unpaid tax

liability; and

2. the "actus reus" (i.e., guilty conduct) — an affirmative act (and not merely an

omission or failure to act) in any manner constituting evasion or an attempt to evade

either:

1. the assessment of a tax, or

2. the payment of a tax.

3. the "mens rea" or "mental" element of willfulness — the specific intent to violate an

actually known legal duty;

An affirmative act "in any manner" is sufficient to satisfy the third element of the offense.

That is, an act which would otherwise be perfectly legal (such as moving funds from one

bank account to another) could be grounds for a tax evasion conviction (possibly an attempt

to evade "payment"), provided the other two elements are also met. Intentionally filing a

false tax return (a separate crime in itself) could constitute an attempt to evade the

"assessment" of the tax, as the Internal Revenue Service bases initial assessments (i.e., the

formal recordation of the tax on the books of the U.S. Treasury) on the tax amount shown on

the return

During the second half of the 20th century, value added tax (VAT) emerged as a modern form

of consumption tax throughout the world, with the notable exception of the United States.

Producers who collect VAT from consumers may evade tax by under-reporting the amount of

sales. The US has no broad-based consumption tax at the federal level, and no state currently

collects VAT; the overwhelming majority of states instead collect sales taxes. Canada uses both

a VAT at the federal level (the Goods and Services Tax) and sales taxes at the provincial level;

some provinces have a single tax combining both forms.

In addition, most jurisdictions which levy a VAT or sales tax also legally require their residents

to report and pay the tax on items purchased in another jurisdiction. This means that consumers

who purchase something in a lower-taxed or untaxed jurisdiction with the intention of avoiding

VAT or sales tax in their home jurisdiction are technically breaking the law in most cases. This

is especially prevalent in federal countries like Nigeria, US and Canada where sub-national

jurisdictions charge varying rates of VAT or sales tax. In Nigeria, for example, some federated

states enforce VAT on each item of goods sold by traders. The price must be clearly stated and

the VAT shown separately from the basic price. If the trader does not comply (e.g. by including

the VAT in the price of the goods) this is punishable as an attempt to siphon the VAT.

In liberal democracies, a fundamental problem with inhibiting evasion of local sales taxes is that

liberal democracies, by their very nature, have few (if any) border controls between their internal

jurisdictions. Therefore, it is not generally cost-effective to enforce tax collection low-value

goods carried in private vehicles from one jurisdiction to another with a different tax rate.

However, sub-national governments will normally seek to collect sales tax on high-value items

such as cars. Dennis Kozlowski is particularly notable figure for his alleged evasion of sales tax.

What started as an investigation into Kozlowski's failure to declare art purchases for the purpose

of evading New York state sales taxes eventually led to Kozlowski's conviction and incarceration

on more serious charges related to the misappropriation of funds during his tenure as CEO

of TYCO International.

Government response

The level of evasion depends on a number of factors, including the amount of money a person or

a corporation possesses. Efforts to evade income tax decline when the amounts involved are

lower. The level of evasion also depends on the efficiency of the tax

administration. Corruption by tax officials make it difficult to control evasion. Tax

administrations use various means to reduce evasion and increase the level of enforcement: for

example, privatization of tax enforcement, tax farming, In 2011, HMRC stated that it would

continue to crack down on tax evasion, with the goal of collecting £18 billion in revenue before

2015. In 2010, HMRC began a voluntary amnesty program that targeted middle-class

professionals and raised £500 million.

Corruption by tax officials

Corrupt tax officials co-operate with the taxpayers who intend to evade taxes. When they detect

an instance of evasion, they refrain from reporting it in return for bribes. Corruption by tax

officials is a serious problem for the tax administration in many less developed countries.

Level of evasion and punishment

Tax evasion is a crime in almost all developed countries, and the guilty party is liable

to fines and/or imprisonment. In Switzerland, many acts that would amount to criminal tax

evasion in other countries are treated as civil matters. Dishonestly misreporting income in a tax

return is not necessarily considered a crime. Such matters are handled in the Swiss tax courts, not

the criminal courts.

In Switzerland, however, some tax misconduct is criminal, for example, deliberate falsification

of records. Moreover, civil tax transgressions may give rise to penalties. It is often considered

that the extent of evasion depends on the severity of punishment for evasion.

In the United States, tax evasion is the purposeful, illegal attempt to evade the assessment or the

payment of a tax imposed by federal law. Conviction of tax evasion may result in fines and

imprisonment.

The Internal Revenue Service (IRS) has identified small businesses and sole proprietors as the

largest contributors to the tax gap between what Americans owe in federal taxes and what the

federal government receives. Small businesses and sole proprietorships contribute to the tax gap

because there are few ways for the government to know about skimming or non-reporting of

income without mounting significant investigations.

The typical tax evader in the United States is a male under the age of 50 in a high tax bracket and

with a complicated tax return. The most common means of tax evasion is overstatement of

charitable contributions, particularly church donations.

CORRUPTION AND BRIBERY

Bribery is an act of giving money or gift giving that alters the behavior of the recipient. Bribery

constitutes a crime and is defined byBlack's Law Dictionary as the offering, giving, receiving,

or soliciting of any item of value to influence the actions of an official or other person in charge

of a public or legal duty.

The bribe is the gift bestowed to influence the recipient's conduct. It may be

any money, good, right in action, property, preferment,privilege, emolument, object of value,

advantage, or merely a promise or undertaking to induce or influence the action, vote, or

influence of a person in an official or public capacity.

In economics, the bribe has been described as rent. Bribery in bureaucracy has been viewed as a

reason for the higher cost of production of goods and services.

The United States has been a leader in the multinational effort to end bribery and corruption in

international business practices, a campaign that has been supported by the World Bank, the

Organization of American States, the Organization for Economic Co-operation and Development

(OECD), and other multilateral organizations and institutions. This website provides, under

appropriate subheadings in the navigation box at left, links to documents, reports, and other

online resources related to combating international bribery and corruption.

Forms of bribery. Many types of bribes exist: tip, gift, sop, perk, skim,

favor, discount, waived fee/ticket, free food, free ad, free trip, free tickets, sweetheart

deal, kickback/payback, funding, inflated sale of an object or property, lucrative

contract, donation, campaign contribution, fundraiser,sponsorship/backing, higher paying

job, stock options, secret commission, or promotion (rise of position/rank).

One must be careful of differing social and cultural norms when examining bribery. Expectations

of when a monetary transaction is appropriate can differ from place to place. Political campaign

contributions in the form of cash, for example, are considered criminal acts of bribery in some

countries, while in the United States, provided they adhere to election law, are legal. Tipping, for

example, is considered bribery in some societies, while in others the two concepts may not be

interchangeable.

In some Spanish-speaking countries, bribes are referred to as "mordida" (literally, "bite");

in Arab countries they are Rachwa. French-speaking countries often use the expressions

"dessous-de-table" ("under-the-table" commissions), "pot-de-vin" (literally, "wine-pot"), or

"commission occulte" ("secret commission" or "kickback"). While the last two expressions

contain inherently a negative connotation, the expression "dessous-de-table" can be often

understood as a commonly accepted business practice (for instance, on the occasion of a real

estate transaction before the notary, a partial payment made between the buyer and seller;

needless to say, this is a good way to launder money). In German, the common term

is Schmiergeld ("smoothing money").

The offence may be divided into two great classes: the one, where a person invested with power

is induced by payment to use it unjustly; the other, where power is obtained by purchasing the

suffrages of those who can impart it. Likewise, the briber might hold a powerful role and control

the transaction; or in other cases, a bribe may be effectively extracted from the person paying it,

although this is better known as extortion.

The forms that bribery take are numerous. For example, a motorist might bribe a police

officer not to issue a ticket for speeding, a citizen seeking paperwork or utility line connections

might bribe a functionary for faster service.

Bribery may also take the form of a secret commission, a profit made by an agent, in the course

of his employment, without the knowledge of his principal. Euphemisms abound for this

(commission, sweetener, kick-back etc.) Bribers and recipients of bribery are likewise numerous

although bribers have one common denominator and that is the financial ability to bribe.

As indicated on the pages devoted to political corruption, efforts have been made in recent years

by the international community to encourage countries to dissociate and incriminate as separate

offences, active and passive bribery. From a legal point of view, active bribery can be defined for

instance as the promising, offering or giving by any person, directly or indirectly, of any undue

advantage [to any public official], for himself or herself or for anyone else, for him or her to act

or refrain from acting in the exercise of his or her functions. (article 2 of the Criminal Law

Convention on Corruption (ETS 173) of the Council of Europe). Passive bribery can be defined

as the request or receipt [by any public official], directly or indirectly, of any undue advantage,

for himself or herself or for anyone else, or the acceptance of an offer or a promise of such an

advantage, to act or refrain from acting in the exercise of his or her functions (article 3 of the

Criminal Law Convention on Corruption (ETS 173)).

The reason for this dissociation is to make the early steps (offering, promising, requesting an

advantage) of a corrupt deal already an offence and, thus, to give a clear signal (from a criminal

policy point of view) that bribery is not acceptable. Besides, such a dissociation makes the

prosecution of bribery offences easier since it can be very difficult to prove that two parties (the

bribe-giver and the bribe-taker) have formally agreed upon a corrupt deal. Besides, there is often

no such formal deal but only a mutual understanding, for instance when it is common knowledge

in a municipality that to obtain a building permit one has to pay a "fee" to the decision maker to

obtain a favourable decision.

Bribery prevention. International businesses are looking to implement strong local programs

dedicated to the prevention of bribery. But programs of prevention need to be properly designed

with international standards of best practice. To ensure respect for a program, whether it be on

the part of employees or business partners, external verification is necessary. International best

practices such as the Council for Further Combating Bribery of Foreign Public Officials in

International Business Transactions, Annex 2; the ISO 26000 norm (section 6.6.3) or TI

Business Principles for Countering Bribery are used in external verification processes to measure

and ensure that a program of bribery prevention works and is consistent with international

standards. Another reason for businesses to undergo external verification of their bribery

prevention programs is that it means evidence can be provided to assert that all that was possible

was done to prevent corruption. Companies are unable to guarantee corruption has never

occurred; what they can do is provide evidence that they did their best to prevent it.

6. FALSE ADVERTISING AND FRAUD

False advertising or deceptive advertising is the use of false or misleading statements

in advertising. As advertising has the potential to persuade people into commercial transactions

that they might otherwise avoid, many governments around the world use regulations to control

false, deceptive or misleading advertising. "Truth" refers to essentially the same concept, that

customers have the right to know what they are buying, and that all necessary information should

be on the label.

False advertising, in the most blatant of contexts, is illegal in most countries. However,

advertisers still find ways to deceive consumers in ways that are legal, or technically illegal but

unenforceable.

In the United States, the federal government regulates advertising through the Federal Trade

Commission (FTC), and additionally enables private litigation through various statutes, most

significantly the Lanham Act (trademark and unfair competition).

State governments have a variety of unfair competition laws, which regulate false advertising,

trademark, and related issues.

Federal advertising regulations. Advertising is regulated by the authority of the Federal Trade

Commission, a United States administrative agency, to prohibit "unfair and deceptive acts or

practices in commerce." While it makes laymen's sense to assume that being deceptive is being

unfair, deceptiveness in practice has been treated separately by the FTC, leaving unfairness to

refer only to other types.All commercial acts may be deceptive, not just advertising, but

noncommercial activity such as advertising for political candidates is not subject to prosecution

under the FTC Act. The 50 states have similar statutes, which generally are very similar to that

of the FTC and in many cases copied so closely that they are known as "Little FTC Acts." While

the terms "false" and "deceptive" are essentially the same for most, being deceptive is not the

same as producing deception. What is illegal is the potential to deceive, which is interpreted to

occur when consumers see the advertising to be stating to them, explicitly or implicitly, a claim

that they may not realize is false and material. The latter means that the claim, if relied on for

making a purchasing decision, is likely to be harmful by adversely affecting that decision. If an

ad is implicitly false, evidence must be obtained for what consumers saw the ad saying, and for

the materiality of that, and for the true facts about the advertised item, but no evidence is

required that actual deception occurred, or that reliance occurred, or that the advertiser intended

to deceive or knew that the claim was false.

The goal is prevention rather than punishment, reflecting the purpose of civil law in setting

things right rather than that of criminal law. The typical sanction is to order the advertiser to stop

its illegal acts, or to include disclosure of additional information that serves to avoid the chance

of deception. Corrective advertising may be mandated, but there are no fines or prison time

except for the infrequent instances when an advertiser refuses to stop despite being ordered to do

so.

The actual statute defines false advertising as a "means of advertisement other than labeling,

which is misleading in a material respect; and in determining whether an advertisement is

misleading, there shall be taken into account (among other things) not only representations made

or suggested by statement, word, design, device, sound, or any combination thereof, but also the

extent to which the advertisement fails to reveal facts material in the light of such representations

or material with respect to consequences which may result from the use of the commodity to

which the advertisement relates under the conditions prescribed in said advertisement, or under

such conditions as are customary or usual."

Fraud is the misrepresentation of material fact to the detriment of the consumer.

Many scholarship scams violate federal and state laws against fraud and false advertising. Most

states prohibit false advertising and deceptive acts or practices in the conduct of any business,

trade or commerce. The FTC Act also prohibits deceptive acts or practices, including the false

and misleading representation of material facts.

False advertising is defined as advertising that is misleading in any material respect, either

explicitly or indirectly through representations made in a statement or combination of statements

and any failure to reveal material facts.

The Federal Trade Commission's telemarketing sales rule sets down strict requirements for

telemarketers, such as restrictions on when they can call you and requirements for them to take

your name off their list if you ask. It also requires that you give explicit, verifiable approval

before the company debits your checking account. There's also a provision making it an "abusive

telemarketing act or practice" to request or receive "payment of any fee or consideration in

advance of obtaining a loan ... when the seller or telemarketer has guaranteed or represented a

high likelihood of success in obtaining or arranging a loan or other extension of credit for a

person." There are many other powerful provisions as well. Violations of the rule are subject to

civil penalties of up to $10,000 per violation. The rule is enforceable by the FTC as well as each

of the 50 state Attorneys General. The rule applies only when a company calls a consumer

directly, and not when a consumer responds to an advertisement by calling the company.

A guarantee is also fraudulent when it has so many restrictions and qualifications that it is

meaningless; when material requirements of the guarantee are not disclosed up front (e.g., the

written guarantee differs from the verbal guarantee given over the phone, after the consumer has

already paid the vendor); when the guarantee is deceptive or misleading (e.g., it gives you an

unreasonable expectation of success in receiving scholarship money or falsely gives you the

impression that the service is without risk); or when the business fails to honor its guarantee.

Failure to Disclose It is considered false advertising under the Lanham Act if a representation is

"untrue as a result of the failure to disclose a material fact." Therefore, false advertising can

come from both misstatements and partially correct statements that are misleading because they

do not disclose something the consumer should know. The Trademark Law Revision Act of

1988, which added several amendments to the Lanham Act, left creation of the line between

sufficient and insufficient disclosure to the discretion of the courts.

American Home Products Corp. v. Johnson & Johnson, 654 F. Supp. 568, S.D.N.Y. 1987, is an

example of how the courts use their discretion in determining when a disclosure is insufficient.

In this case, Johnson and Johnson advertised a drug by comparing its side effects to those of a

similar American Home Products drug, leaving out a few of its own side effects in the process.

Although the Lanham Act does not require full disclosure, the court held the defendant to a

higher standard and ruled the advertisement misleading because of the potential health risks it

posed to consumers.

Flawed and Insignificant Research Advertisements based on flawed and insignificant research

are defined under section 43(a) of the Lanham Act as "representations found to be unsupported

by accepted authority or research or which are contradicted by prevailing authority or research."

These advertisements are false on their face.

Alpo Pet Foods v. Ralston Purina Co., 913 F.2d 958 (D.C. Cir. 1990), shows how basing

advertising claims on statistically insignificant test results provides sufficient grounds for a false

advertising claim. In this case, the Ralston Purina Company claimed that its dog food was

beneficial for dogs with canine hip dysplasia, demonstrating the claims with studies and tests.

Alpo Pet Foods brought a claim of false advertising against Purina, saying that the test results

could not support the claims made in the advertisements. Upon looking at the evidence and the

way the tests were conducted by Purina, the court ruled not only that the test results were

insignificant but also that the methods used to conduct the tests were inadequate and the results

could therefore not support Purina's claims.

Injunctive Relief. Injunctive relief is granted by the courts upon the satisfaction of two

requirements. First, a plaintiff must demonstrate a "likelihood of deception or confusion on the

part of the buying public caused by a product's false or misleading description or advertising"

(Alpo). Second, a plaintiff must demonstrate that an "irreparable harm" has been inflicted, even if

such harm is a decrease in sales that cannot be completely attributed to a defendant's false

advertising. It is virtually impossible to prove that sales can or will be damaged; therefore, the

plaintiff only has to establish that there exists a causal relationship between a decline in its sales

and a competitor's false advertising. Furthermore, if a competitor specifically names the

plaintiff's product in a false or misleading advertisement, the harm will be presumed (McNeilab,

Inc. v. American Home Products Corp., 848 F.2d

Corrective Advertising. Corrective advertising can be ruled in two different ways. First, and

most commonly, the court can require a defendant to launch a corrective advertising campaign

and to make an affirmative, correcting statement in that campaign. For example, in Alpo, the

court required Purina to distribute a corrective release to all of those who had received the initial,

false information.

Second, the courts can award a plaintiff monetary damages so that the plaintiff can conduct a

corrective advertising campaign to counter the defendant's false advertisements. For example,

in U-Haul International v. Jartran, Inc., 793 F.2d 1034 (9th Cir. 1986), the plaintiff, U-Haul

International, was awarded $13.6 million— the cost of its corrective advertising campaign.

Damages To collect damages, the plaintiff generally has to show either that some consumers

were actually deceived or that the defendant used the false advertising in bad faith. Four types of

damages are awarded for false advertising: profits the plaintiff loses when sales are diverted to

the false advertiser; profits lost by the plaintiff on sales made at prices reduced as a demonstrated

result of the false advertising; the cost of any advertising that actually and reasonably responds to

the defendant's offending advertisements; and quantifiable harm to the plaintiff's good will to the

extent that complete and corrective advertising has not repaired that harm (Alpo).

Consumer Protection. Although most false advertising claims brought against advertisers are

by competitors, consumers can also file such claims. No hard-and-fast rules exist for all

consumer-initiated cases; courts deal with claims brought by consumers on more of a case-by-

case basis than they do with claims brought by competitors. The issues surrounding consumer

rights were discussed during the drafting of the 1988 Trademark Law Revision Act, but were not

resolved.

In cases where consumers have sued, they have most often been held to the same standards as

competitors: they need to show that they have a reasonable interest in order to be protected. This

standard was demonstrated by the Class Action lawsuit of Maguire v. Sandy Mac, 138F.R.D. 444

(D.N.J. 1991). In that case, the class included both resellers, who had purchased a ham product

from the defendant, and consumers, who had ultimately bought the ham products. The lawsuit

claimed that the defendant sold ham products falsely represented as meeting U.S. DEPARTMENT

OF AGRICULTURE standards. The court ruled for the plaintiffs, saying that "the plaintiff and the

proposed class, the consumers, have a reasonable interest in being protected from criminal

misrepresentations."

Another way consumers are protected is by state laws on deceptive trade practices. Some state

laws define these practices as showing goods or services with the intention of not actually selling

them as advertised. In Affrunti v. Village Ford Sales, 232 Ill. App. 3d 704, 597 N.E.2d 1242 (3rd.

Dist. Ct. App. 1992), a consumer filed a lawsuit against an automobile dealership that sold him a

car for more money than it was actually advertised for. Ronald Affrunti went to Village Ford

Sales, a used-car lot, and looked at a blue 1986 Celebrity with 29,000 miles on the odometer.

The car did not have a sticker price, so he asked the salesman, Fred Galaraza, for a price.

Galaraza answered that he would have to check in his office. After showing Affrunti several

other used cars, and without going to his office, Galaraza quoted a price of $8,600 for the

Celebrity. Affrunti and Galaraza settled on a final price of $8,524, which included a trade-in and

a discount for a front-end alignment. Upon returning home, Affrunti came across an

advertisement by Village Ford Sales for a 1986 blue Celebrity with 29,999 miles on the

odometer for $6,995. Affrunti called the dealership. Galaraza checked and said, "By God, it's the

same!" Affrunti asked to redo the deal based on the advertised price. Galaraza put him on hold.

When Galaraza came back on the line, he said the car in the ad had been sent to auction, and they

could not redo the deal because it was not the same car.

At trial, the sales manager testified that prices listed in advertisements are not necessarily the

listed cars' actual prices; dealers can sell the cars for higher prices. After hearing the evidence,

the judge ruled that the dealer had an obligation to inform the plaintiff of the advertised price of

the car, and awarded Affrunti the difference between the purchase price and the advertised price,

which amounted to $1,529. On appeal, the Illinois Appellate Court ruled that "the defendant's

failure to disclose the advertised sale price constituted deceptive conduct under theConsumer

Fraud Act." The appellate court also added attorneys' fees to Affrunti's award, bringing the total

up to $1,937.50.

7. THE COERCIVE LAW

The coercive law is a complete common law defence, operating in favour of those who commit

crimes because they are forced or compelled to do so by the circumstances, or the threats of

another. The doctrine arises in both English criminal law, and in civil law, where it is relevant

to English contract law and English trusts law.

Duress involves illegitimate threats. The common law long allowed a claim if duress was of a

physical nature. So long as a threat is just one of the reasons a person enters an agreement, even

if not the main reason, the agreement may be avoided. In Barton v Armstrong Mr Armstrong

tried to "strong-arm" Mr Barton into paying him a large golden parachute to exit a business by

getting his goons to make death threats to Barton's family. Even though Barton was tough, and

would have probably done the payout regardless, he could avoid the agreement.

Only late in the 20th century was escape allowed if the threat involved illegitimate economic

harm. A threat is always "illegitimate" if it is to do an unlawful act, such as breaking a contract

knowing non-payment may push someone out of business. However, threatening to do a lawful

act will usually not be illegitimate. In Pao On v Lau Yiu Long the Pao family threatened to not

complete a share swap deal aimed at purchasing their company's building unless the Lau family

agreed to change a guarantee agreement assuring the Paos would receive the rise in the swapped

shares' prices when repurchased. The Privy Council advised that the Laus signing the guarantee

agreement after the threat of non-completion of the main agreement was only a result of

"commercial pressure", not economic duress. Just by observing the Laus' behaviour, and

consideration of the situation before signing, there was no coercion amounting to a vitiation of

consent. However, contrasting to cases involving business parties, the threat to do a lawful act

will probably be duress if used against a vulnerable person.

An obvious case involving "lawful act duress" is blackmail. The blackmailer has to justify, not

doing the lawful act they threaten, but against a person highly vulnerable to them, the demand of

money.

Duress by circumstances. There have been an increasing number of cases pleading duress

arising from the general pressure of circumstances, whether arising directly from human action

or not. To that extent, this subset of duress seeks to borrow some of the language of necessity.

In R v Conway (1988) 3 AER 1025, the Court of Appeal dealt with a charge of reckless driving

where the defendant had fled from police officers. His passenger had recently been attacked by a

man with a shotgun, and screamed at the defendant to "drive off" when he saw the plain-clothed

officers running toward the car. The court held that to establish "duress of circumstances", it was

necessary for him to drive as he did believing it necessary to avoid death or serious bodily injury

to himself or another person. As evidence, the accused must be able to point to an "objective

danger" or at least satisfy the requirement of reasonable belief. As a gloss, Woolf LJ. noted that :

"Whether 'duress of circumstances' is called 'duress' or 'necessity' does not matter. What is

important is that, whatever it is called, it is subject to the same limitations as the 'do this or else'

species of duress."

In R v Martin (1989) 1 AER 652 the defendant who drove while disqualified, claimed that it was

necessary for him to drive his son to work, because he feared that his mentally ill wife might

commit suicide if her son did not arrive at work on time. Simon Brown J. defined the defence as

pressure on the accused's will arising either from the wrongful threats or violence of another, or

from other objective dangers threatening the accused or others. The requirements were that:

(1) "from an objective standpoint, the accused can be said to be acting reasonably and

proportionately in order to avoid a threat of death or serious injury";

(2) a jury should determine whether the accused was "impelled to act as he did because of a

result of what he reasonably believed to be the situation, he had good cause to fear ...death or

serious physical injury"; and (3) a jury should also determine whether "a sober person of

reasonable firmness, sharing the characteristics of the accused, [would] have responded to that

situation" in the same manner. Thus, in DPP v Bell (1992) Crim. LR 176 the accused

successfully pleaded duress of circumstances to driving with excess alcohol because, following

an incident in a pub which caused him to fear for his physical safety, he escaped in his car, only

driving a short distance to safety and then abandoning the criminal activity as soon as reasonably

possible. While in R v Baker and Wilkins (1997) Crim LR 497 (CA) a child's mother and another

broke down the door to the father's house to recover the child from his possession. The action

was being taken to defend the child so three defences were raised:

Criminal Damage Act 1971 which allows a reasonable excuse as a defence to the damage of

property. It was held that a child is not property capable of being defended for the purposes of

the section.

others both inherently and through the use of reasonable force to prevent the commission

of a crime under s3 Criminal Law Act 1967.

duress of circumstances. The court held that duress did not include threats or the fear of

long-term psychological injury even though that might be serious psychological injury.

Since there were other lawful remedies other than immediate self-help, duress was

denied.

The danger must be such that the accused cannot reasonably, taking into account any of his or

her relevant characteristics, be expected to act otherwise. In R v Pommell (1995) 2 Cr. App. R.

607 the defendant was charged with possession of an illegal firearm, a sub-machine gun, which

he claimed to have taken from another person in order to prevent that other from using it and to

hand it to the police. There was some doubt as to how long the weapon had been in his

possession, which resulted in his conviction because the jury decided that he had not acted as

soon as was reasonable in the circumstances. In R v Abdul Hussain and Others (1999) Crim. LR

570 considered the requirement that the threat be imminent and operative even though its

execution is not immediate. The defendants hijacked a plane in order to escape death at the hands

of the Iraqi authorities. The court held that the defence was available as long as the crime was a

reasonable and proportionate response to an imminent peril of death or serious injury. The threat

need not be immediate, only imminent.

The intimidation of a victim to compel the individual to do some act against his or her will by the

use of psychological pressure, physical force, or threats. The crime of intentionally and

unlawfully restraining another's freedom by threatening to commit a crime, accusing the victim

of a crime, disclosing any secret that would seriously impair the victim's reputation in the

community, or by performing or refusing to perform an official action lawfully requested by the

victim, or by causing an official to do so.

A defense asserted in a criminal prosecution that a person who committed a crime did not do so

of his or her own free will, but only because the individual was compelled by another through

the use of physical force or threat of immediate serious bodily injury or death.

In the laws governing wills, coercion is present when a testator is forced by another to make

provisions in his or her will that he or she otherwise would not make if permitted to act

according to free choice. It is an element of both duress and Undue Influence, two ways in which

a testator is deprived of his or her free choice in making the will. If coercion is established in a

proceeding to admit a will to probate, the document will be denied probate, thereby becoming

void; and the property of the decedent will be distributed pursuant to the laws of Descent and

Distribution.

Coercion, as an element of duress, is grounds for seeking the Rescission or cancellation of a

contract or deed. When one party to an instrument is forced against his or her will to agree to its

terms the document can be declared void by a court. A marriage may be annulled or a separation

or Divorce granted on the grounds of coercion. The coercion of small businesses by a cartel to

fix prices of particular items supplied to them is a violation of ANTITRUST LAWS, which are

intended to prevent the restraint of competition in commerce. Laws regulating labor-

management relations are violated by coercion when the employer coerces employees not to join

a Labor Union or when a union representative pressures, uses physical force, or threatens an

employee into joining the union.

Coercion is recognized as a defense in prosecutions for crimes other than murder. If an accused

can establish that he or she committed a crime as a result of the coercion imposed by another the

defendant will be acquitted on the charge as a Matter of Law. He or she will not be excused for

the crime if there was only fear of minor physical injury, damage to reputation, or property loss.

The person who coerces another to commit a crime is guilty of the crime committed. The coercer

can also be prosecuted for the separate crime of coercion.

Coercion by law is the rendition of a judgment or a decree by a court, tax assessment board, or

other Quasi-Judicial body for an amount of money presently due that mandates the sale of

property owned by the defendant to pay the judgment.

8. THE PUBLIC INTERNATIONAL LAW

"Law of Nations" redirects here. For the 18th-century political treatise, see The Law of Nations.

The United Nations is responsible for much of the current framework of international law

Public international law concerns the structure and conduct of sovereign states; analogous

entities, such as the Holy See; and intergovernmental organizations. To a lesser degree,

international law also may affect multinational corporations and individuals, an impact

increasingly evolving beyond domestic legal interpretation and enforcement. Public international

law has increased in use and importance vastly over the twentieth century, due to the increase

in global trade, environmental deterioration on a worldwide scale, awareness of human

rights violations, rapid and vast increases in international transportation and a boom in global

communications.

The field of study combines two main branches: the law of nations (jus gentium)

and international agreements and conventions (jus inter gentes), which have different

foundations and should not be confused.

Public international law should not be confused with "private international law", which is

concerned with the resolution ofconflict of laws. In its most general sense, international law

"consists of rules and principles of general application dealing with the conduct of states and of

intergovernmental organizations and with their relations inter se, as well as with some of their

relations with persons, whether natural or juridical."

There has never been a more exciting time to study Public International Law (PIL). Issues of

PIL and international justice are at the forefront of public debates to a greater degree than ever

before. International law provides the technical and intellectual underpinnings to large areas of

international co-operation, including the prosecution of war crimes (both internationally and

nationally), the legality of the use of force against States (e.g. Iraq), environmental protection,

the scope of human rights protection (e.g. the ‗war on terrorism‘), the economic effects of

globalisation promoted through the work of institutions such as the World Trade Organization,

the settlement of land and maritime boundary disputes, and the resolution of jurisdictional

conflicts arising in the context of anti-trust and other forms of economic regulation by States.

PIL today not only impacts and shapes decisions by States to a greater degree than ever before,

but it also penetrates into the national legal order – often through national court decisions – to

give rights to individuals and corporations to an extent that is unrivalled in the history of the

subject. These developments have in turn led to the growth of lawyers and law firms who

specialise in the practice of PIL. This is in addition to the demand for PIL lawyers in

governments, inter-governmental organizations (such as the United Nations and the large

number of UN Specialized Agencies), and non-governmental organizations. For those who do

not intend to follow a career in international law, the subject provides a broad sweep of issues

which illuminate not merely questions of international law but the problems and processes of

the world of diplomacy.

Although in principle the syllabus is extensive, both the teaching practice and the mode of

setting the FHS paper avoid any drawbacks which might result from this wide scope. Thus,

different teachers will focus on different selected topics, and the student will find that it is not

necessary to know the whole syllabus from A to Z. In the same context, the Schools paper

provides a wide selection of questions.

Public International Law. There has never been a more exciting time to study Public

International Law (PIL). Issues of PIL and international justice are at the forefront of public

debates to a greater degree than ever before. International law provides the technical and

intellectual underpinnings to large areas of international co-operation, including the prosecution

of war crimes (both internationally and nationally), the legality of the use of force against States

(e.g. Iraq), environmental protection, the scope of human rights protection (e.g. the ‗war on

terrorism‘), the economic effects of globalisation promoted through the work of institutions

such as the World Trade Organization, the settlement of land and maritime boundary disputes,

and the resolution of jurisdictional conflicts arising in the context of anti-trust and other forms

of economic regulation by States.

PIL today not only impacts and shapes decisions by States to a greater degree than ever before,

but it also penetrates into the national legal order – often through national court decisions – to

give rights to individuals and corporations to an extent that is unrivalled in the history of the

subject. These developments have in turn led to the growth of lawyers and law firms who

specialise in the practice of PIL. This is in addition to the demand for PIL lawyers in

governments, inter-governmental organizations (such as the United Nations and the large

number of UN Specialized Agencies), and non-governmental organizations. For those who do

not intend to follow a career in international law, the subject provides a broad sweep of issues

which illuminate not merely questions of international law but the problems and processes of

the world of diplomacy.

The PIL course at Oxford covers the major areas of general international law and is not over-

specialized. The lectures cover the core tutorial topics on the nature and sources of international

law, the law of treaties, international legal personality, jurisdiction and immunities, the law of

foreign investment, State responsibility, the use of force and the procedures for peaceful

settlement of disputes. In addition, the lectures introduce students to special areas such the law

of the sea, international humanitarian law and investment arbitration. The consideration of these

subject areas takes place within their broader policy context and having regard to recent

experience.

There has never been a more exciting time to study Public International Law (PIL). Issues of

PIL and international justice are at the forefront of public debates to a greater degree than ever

before. International law provides the technical and intellectual underpinnings to large areas of

international co-operation, including the prosecution of war crimes (both internationally and

nationally), the legality of the use of force against States (e.g. Iraq), environmental protection,

the scope of human rights protection (e.g. the ‗war on terrorism‘), the economic effects of

globalisation promoted through the work of institutions such as the World Trade Organization,

the settlement of land and maritime boundary disputes, and the resolution of jurisdictional

conflicts arising in the context of anti-trust and other forms of economic regulation by States.

PIL today not only impacts and shapes decisions by States to a greater degree than ever before,

but it also penetrates into the national legal order – often through national court decisions – to

give rights to individuals and corporations to an extent that is unrivalled in the history of the

subject. These developments have in turn led to the growth of lawyers and law firms who

specialise in the practice of PIL. This is in addition to the demand for PIL lawyers in

governments, inter-governmental organizations (such as the United Nations and the large

number of UN Specialized Agencies), and non-governmental organizations.. For those who do

not intend to follow a career in international law, the subject provides a broad sweep of issues

which illuminate not merely questions of international law but the problems and processes of

the world of diplomacy.

9. WARRANTS. TYPES OF WARRANT IN THE UK

Most often, the term warrant refers to a specific type of authorization; a writ issued by a

competent officer, usually a judge or magistrate, which permits an otherwise illegal act that

would violate individual rights and affords the person executing the writ protection

from damages if the act is performed.

A warrant is usually issued by a court and is directed to a sheriff, constable or a police officer.

Warrants normally issued by a court include search warrants, arrest warrants, andexecution

warrants. A typical arrest warrant in the United States will take the approximate form of: "This

Court orders the Sheriff or Constable to find the named person, wherever he may be found, and

deliver said person to the custody of the Court."

Warrants are also issued by other government entities, particularly legislatures, since most have

the power to compel the attendance of their members. This is called a call of the house.

In the United Kingdom, senior public appointments are made by warrant under the Royal sign-

manual, the personal signature of the monarch, on the recommendation of the government. In an

interesting survival from medieval times, these warrants abate (lose their force) on the death of

the sovereign if they have not already been executed. This particularly applied to death warrants

in the days when England authorized capital punishment. Perhaps the most celebrated example

of this occurred on 17 November 1558 when several Protestant heretics were tied to their stakes

in Smithfield, and the firewood bundles were about to be lit when a royal messenger rode up to

announce that Queen Mary had died and that the warrants had lost their force. The first formal

act of Mary's successor, Elizabeth I, was to decline to re-issue the warrants, and the heretics were

released a few weeks later.

For many years, the English government had used a "general warrant" to enforce its laws. These

warrants were broad in nature and did not have specifics as to why they were issued or what the

arrest was being made for. A general warrant placed almost no limitations on the search or

arresting authority of a soldier or sheriff. This concept had become a serious problem when those

in power issued general warrants to have their enemies arrested when no wrongdoing had been

done. During the mid-18th century, the English government outlawed all general warrants. This

study of the history of England made the American Founding Fathers ensure that general

warrants would be illegal in the United States as well when the Fourth Amendment to the U.S.

Constitution was ratified in 1791.

In finance, a warrant is a security that entitles the holder to buy the underlying stock of the

issuing company at a fixed exercise price until the expiry date.

Warrants and options are similar in that the two contractual financial instruments allow the

holder special rights to buy securities. Both are discretionary and have expiration dates. The

word warrant simply means to "endow with the right", which is only slightly different from the

meaning of option.

Warrants are frequently attached to bonds or preferred stock as a sweetener, allowing the issuer

to pay lower interest rates or dividends. They can be used to enhance the yield of the bond and

make them more attractive to potential buyers. Warrants can also be used in private equity deals.

Frequently, these warrants are detachable and can be sold independently of the bond or stock.

In the case of warrants issued with preferred stocks, stockholders may need to detach and sell the

warrant before they can receive dividend payments. Thus, it is sometimes beneficial to detach

and sell a warrant as soon as possible so the investor can earn dividends.

Warrants are actively traded in some financial markets such as Deutsche Börse and Hong.

Types of warrants

Arrest warrant, issued by a judge to detain someone

Warrant of committal, issued by a judge ordering enforcement of a previous order against

an uncooperative person or corporation

Warrant of delivery, civil writ issued by a judge ordering property delivered to a named

person

Warrant of execution, writ issued by a judge allowing law enforcement officers to seize

property

Execution warrant, writ issued by a judge authorizing the death of someone

Warrant of possession, Australian judge order to terminate a residential real estate

tenancy

Possessory warrant, civil writ issued by a judge ordering property delivered to a named

person

Search warrant, writ issued by a judge allowing law enforcement officers to look inside a

property

A wide range of warrants and warrant types are available. The reasons you might invest in one

type of warrant may be different from the reasons you might invest in another type of warrant.

Equity warrants: Equity warrants can be call and put warrants.

Callable warrants: Offer investors the right to buy shares of a company from that

company at a specific price at a future date prior to expiration.

Puttable warrants: Offer investors the right to sell shares of a company back to

that company at a specific price at a future date prior to expiration.

Covered warrants: A covered warrants is a warrant that has some underlying backing, for

example the issuer will purchase the stock beforehand or will use other instruments to cover

the option.

Basket warrants: As with a regular equity index, warrants can be classified at, for

example, an industry level. Thus, it mirrors the performance of the industry.

Index warrants: Index warrants use an index as the underlying asset. Your risk is

dispersed—using index call and index put warrants—just like with regular equity indexes. It

should be noted that they are priced using index points. That is, you deal with cash, not

directly with shares.

Wedding warrants: are attached to the host debentures and can be exercised only if the

host debentures are surrendered

Detachable warrants: the warrant portion of the security can be detached from the

debenture and traded separately.

Naked warrants: are issued without an accompanying bond and, like traditional warrants,

are traded on the stock exchange.

Cash or Share Warrants in which the settlement may be in the form of either cash or

physical delivery of the shares - depending on its status at expiry.

Traditional warrants are issued in conjunction with a Bond (known as a warrant-linked bond)

and represent the right to acquire shares in the entity issuing the bond. In other words, the writer

of a traditional warrant is also the issuer of the underlying instrument. Warrants are issued in

this way as a "sweetener" to make the bond issue more attractive and to reduce the interest rate

that must be offered in order to sell the bond issue.

Naked warrants are issued without an accompanying bond and, like traditional warrants, are

traded on the stock exchange. They are typically issued by banks and securities firms. These are

also called covered warrants and are settled for cash, e.g. do not involve the company who

issues the shares that underlie the warrant. In most markets around the world, covered warrants

are more popular than the traditional warrants described above. Financially they are also similar

to call options, but are typically bought by retail investors, rather than investment funds or

banks, who prefer the more keenly priced options which tend to trade on a different market.

Covered warrants normally trade alongside equities, which makes them easier for retail

investors to buy and sell them.

Third-party warrant is a derivative issued by the holders of the underlying instrument.

Suppose a company issues warrants which give the holder the right to convert each warrant into

one share at $500. This warrant is company-issued. Suppose, a mutual fund that holds shares of

the company sells warrants against those shares, also exercisable at $500 per share. These are

called third-party warrants. The primary advantage is that the instrument helps in the price

discovery process. In the above case, the mutual fund selling a one-year warrant exercisable at

$500 sends a signal to other investors that the stock may trade at $500-levels in one year. If

volumes in such warrants are high, the price discovery process will be that much better; for it

would mean that many investors believe that the stock will trade at that level in one year. Third-

party warrants are essentially long-term call options. The seller of the warrants does a covered

call-write. That is, the seller will hold the stock and sell warrants against them. If the stock does

not cross $500, the buyer will not exercise the warrant. The seller will, therefore, keep the

warrant premium.

10. POWERS AND MODE OF ARREST

An arrest is the act of depriving a person of his or her liberty usually in relation to the

purported investigation or prevention of crime and presenting (the arrestee) to a procedure as

part of the criminal justice system. The term is Anglo-Norman in origin and is related to the

French word arrêt, meaning "stop".

Arrest, when used in its ordinary and natural sense, means the apprehension of a person or the

deprivation of a person's liberty. The question whether the person is under arrest or not depends

not on the legality of the arrest, but on whether the person has been deprived of personal liberty

of movement. When used in the legal sense in the procedure connected with criminal offences,

an arrest consists in the taking into custody of another person under authority empowered by

law, to be held or detained to answer a criminal charge or to prevent the commission of a

criminal or further offence. The essential elements to constitute an arrest in the above sense are

that there must be an intent to arrest under the authority, accompanied by a seizure or detention

of the person in the manner known to law, which is so understood by the person arrested.

Police and various other bodies have powers of arrest. In some places, the power is more

general; for example in England and Wales—with the notable exception of the Monarch, the

head of state—any person can arrest "anyone whom he has reasonable grounds for suspecting to

be committing, have committed or be guilty of committing an indictable offence", although

certain conditions must be met before taking such action.

Arrests under English law fall into two general categories - with and without a warrant - and

then into more specific subcategories. Regardless of what power a person is arrested under, they

must be informed.

that they are under arrest (as soon as is practicable after the arrest), and

of the ground for the arrest (at the time of, or as soon as is practicable after, the arrest),

otherwise, the arrest is unlawful. An arrest is still lawful even if the subject escapes custody

before the fact he/she is not under arrest and the grounds can be explained to him.

24AArrest without warrant: other persons

(1)A person other than a constable may arrest without a warrant—

(a)anyone who is in the act of committing an indictable offence;

(b)anyone whom he has reasonable grounds for suspecting to be committing an indictable

offence.

(2)Where an indictable offence has been committed, a person other than a constable may arrest

without a warrant—

(a)anyone who is guilty of the offence;

(b)anyone whom he has reasonable grounds for suspecting to be guilty of it.

(3)But the power of summary arrest conferred by subsection (1) or (2) is exercisable only if—

(a)the person making the arrest has reasonable grounds for believing that for any of the reasons

mentioned in subsection (4) it is necessary to arrest the person in question; and

(b)it appears to the person making the arrest that it is not reasonably practicable for a constable

to make it instead.

(4)The reasons are to prevent the person in question—

(a)causing physical injury to himself or any other person;

(b)suffering physical injury;

(c)causing loss of or damage to property; or

(d)making off before a constable can assume responsibility for him.‖

(2)Section 25 of PACE (general arrest conditions) shall cease to have effect.

(3)In section 66 of PACE (codes of practice), in subsection (1)(a)—

(a)omit ―or‖ at the end of sub-paragraph,

(b)at the end of sub-paragraph (ii) insert ―or

(iii)to arrest a person;‖

(4)The sections 24 and 24A of PACE substituted by subsection (1) are to have effect in relation

to any offence whenever committed.

Powers of arrest: supplementary

Schedule 7, which supplements section 110 by providing for the repeal of certain enactments

(including some which are spent) and by making further supplementary provision, has effect.

The power of arrest is a mandate given by a central authority that allows an individual to remove

a criminal's (or suspected criminal's) liberty. The power of arrest can also be used to protect a

person, or persons from harm or to protect damage to property.

Arrest usually leads to the person being subject to police custody or the custody of another

government authority. In many countries, the power of arrest has now been extended to not only

the Police, but to other law enforcement agencies such as Immigration, Customs & Excise and

authorised Bailiffs, etc.

However, in many countries, a person also has powers of arrest under citizen's arrest or any

person arrest powers.

11. POWERS OF ENTRY, SEARCH AND ROAD CHECKS

1: Production of warrant. The first step the enforcement officer must take upon entering a

property is to make an attempt to find the owner or occupier. If the owner or occupier is present,

the enforcement officer must produce the warrant. If the owner/occupier later asks to see the

warrant again, the warrant must be shown. If more than one enforcement officer is involved in

the inspection, all of them must provide their warrants. It is not sufficient for only one of the

enforcement officers to do so. If the enforcement officer suspects the person at the property is

not the owner or occupier (refer s2 of the RMA), the warrant should still be produced.

Enforcement officers should produce their warrants whenever private property is entered. This

will avoid any argument later that the evidence was collected unlawfully and is inadmissible.

2: Notice of inspection. If the owner/occupier is not present, a written notice showing the date

and time of the inspection and the name of each enforcement officer who inspected should be

left in a prominent position, or attached to the structure inspected. A photograph of the notice

should be taken as evidence of compliance with s332(4) of the RMA and, a letter should also be

sent to the owner/occupier notifying them of the visit. If the owner/occupier is not present,

s332(4) should always be complied with to avoid any argument that the evidence collected is

inadmissible.

Powers of search

Under s334, an application for a warrant for entry to search can be made where there are

reasonable grounds for believing an offence has been committed that is punishable by

imprisonment. In particular, warrants can be obtained to search for specified things where there

are reasonable grounds to believe that they: are on or in any place or vehicle, and will provide

evidence of the offence or are intended for the purpose of committing the offence.

As indicated by the wording of the second item above, a search warrant can be pre-emptive.

The power to seize applies not only to what is specified in a warrant, but also to any other thing

for which the enforcement officer or constable reasonably believes a warrant could have been

obtained for.Section 335 provides that the warrant must be executed by either a constable or an

enforcement officer accompanied by a constable. There are various requirements under s335(4)

to show the warrant, to leave written notice of the search if the owner/occupier is not present at

the time, and to send a list of taken items to the owner or occupier.

Illegal and unreasonable searches. If a search breaks any law or breaches the legal rights of any

person (such as failing to provide proper notice), a judge may exclude, from consideration, the

evidence that was obtained. Section 30 of the EA applies in such circumstances. The judge will

consider things such as, "whether there were any other investigatory techniques not involving

any breach of the rights that were known to be available but were not used".

A search may also be unreasonable or 'unfair' even if legal. An example is when there was no

good reason to enter, or to enter with force, after permission was refused. Section 21 of the New

Zealand Bill of Rights Act requires that any search or seizure undertaken in the exercise of a

public function must be reasonable. Proceedings in relation to s21 of the Bill of Rights Act may

also result in monetary damages or compensation being awarded. Previous cases are still relevant

to the extent that they are consistent with the provisions and purposes of the EA . In Hamed v R

[2011] NZSC 101 the Supreme Court held that video surveillance could constitute a search if the

subject matter of the surveillance was not a place that was within public view.

In considering whether a search is unreasonable the Supreme Court held that it is necessary to

look at the nature of the place or object being searched, the degree of intrusiveness into privacy

and the reason why the search was occurring.

Road checks. A uniformed constable may stop any vehicle at any time under section 163 of the

Road Traffic Act 1988. However, if a constable wishes, for one of the reasons given below, to

stop all vehicles or certain vehicles selected by any criterion, then they must do so under the

power granted by section 4 of the Police and Criminal Evidence Act 1984. A road check is

normally only authorised by a police officer of the rank of superintendent or above, in which

case the restrictions given in the second column apply. However, if it appears to an officer below

the rank of superintendent that a road check is required (for one of the reasons below) as a matter

of urgency, then he may authorise it himself. In this case, the conditions given in the second

column do not apply.

Reason Conditions for authorisation by superintendent

a person who has committed an offence

(other than a road traffic offence or a

vehicle excise offence)

if he has reasonable grounds:

for believing that the offence is an indictable

offence, and

for suspecting that the person is, or is about to

be, in the locality in which vehicles would be

stopped if the road check were authorised

a person who is a witness to an offence

(other than a road traffic offence or a

vehicle excise offence)

if he has reasonable grounds for believing that the

offence is an indictable offence

a person intending to commit an

offence (other than a road traffic

offence or a vehicle excise offence)

if he has reasonable grounds:

for believing that the offence would be an

indictable offence, and

for suspecting that the person is, or is about to

be, in the locality in which vehicles would be

stopped if the road check were authorised

a person who is unlawfully at large if he has reasonable grounds for suspecting that the

person is, or is about to be, in that locality.

If an officer below the rank of superintendent gives authorisation, it must be referred to a

superintendent as soon as it is practicable to do so. Where a superintendent gives authorisation

for a road check, he:

must specify a period, not exceeding seven days, during which the road check may

continue, and

may direct that the road check shall be continuous, or shall be conducted at specified

times during that period.

If it appears to an officer of the rank of superintendent or above that a road check ought to

continue beyond the period for which it has been authorised he may specify a further period, not

exceeding seven days, during which it may continue.

In addition to the powers to conduct road checks given above, the police have a common law

power to set up road checks and search vehicles stopped at them in order to prevent a breach of

the peace.

Removal of disguises

an authorisation under section 60 of the Act (searching for weapons) is on force, or

an inspector issues an authorisation under section 60AA on the grounds that he

reasonably believes that:

activities are going to take place in a certain part of his police area,

those activities will involve offences being committed, and

to prevent or control those offences it is necessary to order the removal of

disguises,

then a constable in uniform can:

require a person to remove any item which the constable reasonably believes that person

is wearing wholly or mainly for the purpose of concealing his identity, and

seize any item which the constable reasonably believes any person intends to wear

wholly or mainly for that purpose.

Authorisations apply to one locality only, last for 24 hours, and the inspector who gives them

must inform a superintendent as soon as possible. A superintendent can extend the authorisation

for a further 24 hours. Failure to remove a disguise when required is an offence.

12. IDENTIFICATION OF SUSPECTS

The modus operandi, or method, used by a criminal to commit an offense sometimes helps to

identify the suspect, as many offenders repeatedly commit offenses in similar ways. A burglar‘s

method of entry into a house, the type of property stolen, or the kind of deception practiced on

the victim of a fraud all may suggest who was responsible for a crime.

Visual identification of a stranger by the victim is often possible as well. The police generally

present victims or witnesses who believe that they can recognize the offender with an album

containing photographs of a large number of known criminals. A suspect identified in this

manner is usually asked to take part in a lineup of people with similar characteristics, from which

the witness is asked to pick out the suspect. However, researchers have long known that

eyewitnesses often are unreliable and that most wrongful convictions have been the result of

erroneous eyewitness identifications. Scholars have suggested that cross-racial identification

contributes to mistaken identification, in that members of one race may have difficulty

distinguishing members of another race. Likewise, post-event assimilation, the process by which

witnesses incorporate new information after the incident, can significantly alter the perception of

the criminal. Finally, the stress of a crime in general, and the presence of a weapon in particular,

diminish the reliability of eyewitnesses as well.

In addition, such researchers have been concerned that criminal-justice officials could

manipulate standard eyewitness identification procedures in order to increase the likelihood that

a witness would identify a particular suspect. In the past, criminal-justice officials generally

resisted implementing reforms in procedures that would increase the accuracy of the

identifications, as the reformed procedures would reduce the probability that an eyewitness

would make any identification at all. But the increasing accuracy of DNA evidence in the late

1990s led to considerable publicity about erroneous convictions based on standard eyewitness

identification procedures, particularly in cases that resulted in a death sentence. At the beginning

of the 21st century, police agencies had begun to implement the more-careful procedures that

eyewitness researchers had proposed. These procedures include not encouraging witnesses to

make identifications when they are unsure but instead cautioning them about the possibility of

errors, making sure nonsuspects in the lineup are reasonable possibilities for identification, and

having the lineup conducted by an official who does not know who the actual suspect is.

Gathering evidence

To gain a conviction in countries where the rule of law is firmly rooted, it is essential that the

investigating agency gather sufficient legally admissible evidence to convince the judge or jury

that the suspect is guilty. Police departments are often reasonably certain that a particular

individual is responsible for a crime but may remain unable to establish guilt by legally

admissible evidence. In order to secure the necessary evidence, the police employ a variety of

powers and procedures. Because those powers and procedures, if exercised improperly, would

enable the police to interfere with the constitutionally protected freedoms of the suspect, they are

normally subject to close scrutiny by legislation or by the courts. One important procedure is

the search of a suspect‘s person or property. Most common-law jurisdictions allow a search to be

carried out only if there is ―probable cause for believing‖ or ―reasonable ground for suspecting‖

that evidence will be found. In some cases a person may be stopped on the street and searched,

provided that the police officers identify themselves and state the reasons for the search. In the

United States a person stopped on the street may be patted down for a weapon without the

police‘s having any evidence whatsoever. A search of private premises usually requires a

search warrant issued by a magistrate or judge. The law generally permits a search warrant to be

issued only if the authorities are satisfied (after hearing evidence under oath) that there is good

reason to suspect that the sought-after evidence, which the warrant usually defines specifically,

will be found on the premises. The warrant may be subject to time limits and normally permits

only one search. In most countries the judge or magistrate who issues the warrant must be

informed of the outcome of the search. Materials seized as a result of a search under the

authority of a search warrant are usually held by the police for production as exhibits at any

subsequent trial.

In the United States any evidence discovered as a result of a search that does not comply with the

procedures and standards laid down by the courts and legislative bodies is not admissible in

court, even if it may clearly establish the guilt of the accused person. Because it may prevent the

conviction of a person who is guilty, this doctrine, known as the exclusionary rule, has given rise

to controversy in the United States and has not generally been adopted in other countries. The

exclusionary rule has been particularly important in drug cases, where the materials seized (i.e.,

the drugs themselves) often are the only evidence against the defendant; according to the U.S.

Department of Justice, adherence to the rule has resulted in the dismissal of about 1 percent of

drug cases. However, since its decision in United States v. Leon (1984), the U.S. Supreme

Court has adopted several ―pro-prosecution‖ modifications of the exclusionary rule, including a

somewhat limited ―good faith‖ exception for the police. That is, if the police attempted to uphold

constitutional requirements for the search but made an honest mistake, then the evidence may be

admissible at trial even if some constitutional requirements were not met.

Interrogation and confession

An important aspect in the investigation of offenses is theinterrogation of suspects. The aim of

the questioning is usually to obtain an admission of guilt by the suspect, which would eliminate

the need for a contested trial. Most countries place restrictions on the scope and methods of

interrogation in order to ensure that suspects are not coerced intoconfessions by unacceptable

means, though in practice the effectiveness of those restrictions varies greatly. In the United

States, for example, suspects must be informed that they have certain rights, including the right

to remain silent, to have a lawyer present during the interrogation, and to be provided with the

services of a lawyer at the expense of the state if they cannot afford one. The statement of rights

that is read to suspects, known as the Miranda warnings, was established in the case of Miranda

v. Arizona (1966). Failure to advise a suspect of those and other rights can result in the rejection

of a confession as evidence.

In contrast, British law focuses on whether the confession itself was voluntary, rather than on

whether proper procedures were followed by the police. With minor exceptions, a person

suspected or accused of a criminal offense is not required to answer any question or to give

evidence. For many years the English law on confessions consisted of a simple rule prohibiting

the introduction at trial of any involuntary statement made by an accused person. That rule was

supplemented by more-detailed rules governing the questioning of suspected persons by the

police, known as the Judges‘ Rules. Principally, the Judges‘ Rules obliged the investigating

police officer to caution suspects that they were not required to answer any question and that

anything they did say might be given in evidence at trial. That caution was required to be stated

at the beginning of any period of interrogation and immediately before a suspect began to make a

full statement or confession. Failure to provide a caution at the right time or in the right form did

not necessarily mean that the statement would be excluded from evidence, but trial judges did

have the discretion to exclude the evidence. The operation of the Judges‘ Rules was a source of

controversy for many years; in the mid-1980s they were reformed by a comprehensive series of

provisions. The reforms, which were supplemented by detailed codes of practice, allowed a

confession to be admitted into evidence provided that it was not obtained by oppression of the

person who made it (e.g., by torture, inhuman or degrading treatment, the use or threat of

violence, or excessively prolonged periods of questioning) or as a result of anything said or done

that would be likely to render the confession unreliable.

Other countries generally have similar legal requirements, though the actual practices in those

countries may be quite different. Russia, for example, has a rule on confessions that is quite

similar to the Miranda warnings, while in China a suspect has the legal right to remain silent,

there is no legal penalty for the refusal to answer questions, and police are forbidden to obtain

confessions through the use of force. However, in practice, police in some countries sometimes

use physical force to obtain confessions, and such illegally obtained evidence is not excluded at

trial.

13. OFFENCES AGAINST PUBLIC JUSTICE

THE order of our distribution will next lead us to take into consideration such crimes and

misdemeanours as more especially affect the commonwealth, or public policy of the kingdom;

which, however, as well as those which are peculiarly pointed against the lives and security of

private subjects, are also offences against the king as the pater-familias of the nation, to whom it

appertains, by his regal office, to protect the community, and each individual therein, from every

degree of injurious violence, by executing those laws which the people themselves, in

conjunction with him, have enacted, or at least have consented to by an agreement either

expressly made in the persons of their representatives, or by a tacit and implied consent,

presumed and proved by immemorial usage.

The species of crimes which we have now before us is subdivided into such a number of inferior

and subordinate classes that it would much exceed the bounds of an elementary treatise, and be

insupportably tedious to the reader, were I to examine them all minutely or with any degree of

critical accuracy. I shall therefore confine myself principally to general definitions or

descriptions of this great variety of offences, and to the punishments inflicted by law for each

particular offence, with now and then a few incidental observations; referring the student, for

more particulars, to other voluminous authors, who have treated of these subjects with greater

precision and more in detail than is consistent with the plan of these commentaries.

The crimes and misdemeanours that more especially affect the commonwealth may be divided

into five species, viz., offences against public justice, against the public peace, against

public trade, against the public health, and against the public police or economy; of each of

which we will take a cursory view in their order.

First, then, of offences against public justice, some of which are felonious, whose punishment

may extend to death; others only misdemeanours. I shall begin with those that are most penal,

and descend gradually to such as are of less malignity.

1. Embezzling or vacating records, or falsifying certain other proceedings in a court of

judicature, is a felonious offence against public justice. It is enacted, by statute 8 Hen. VI. c. 12,

that if any clerk or other person shall wilfully take away, withdraw, or avoid any record or

process in the superior courts of justice in Westminster hall, by reason whereof the judgment

shall be reversed or not take effect, it shall be felony not only in the principal actors, but also in

their procurers and abettors. And this may be tried either in the king‘s bench or common pleas by

a jury de medietate,—half officers of any of the superior courts, and the other half common

jurors. Likewise, by statute 21 Jac. I. c. 26, to acknowledge any fine, recovery, deed enrolled,

statute, recognizance, bail, or judgment, in the name of another person not privy to the same, is

felony without benefit of clergy. Which law extends only to proceedings in the courts

themselves; but, by statute 4 W. and M. c. 4, to personate any other person (as bail) before any

judge of assize or other commissioner authorized to take bail in the country, is also felony. For

no man‘s property would be safe if records might be suppressed or falsified, or persons‘ names

be falsely usurped in courts or before their public officers.

2. To prevent abuses by the extensive power which the law is obliged to repose in gaolers, it is

enacted, by statute 14 Edw. III. c. 10, that if any gaoler by too great duress of imprisonment

makes any prisoner that he hath in ward become an approver or an appellor against his will; that

is, as we shall see hereafter, to accuse and turn evidence against some other person; it is felony in

the gaoler. For, as Sir Edward Coke observes, it is not lawful to induce or excite any man even to

a just accusation of another, much less to do it by duress of imprisonment; and least of all by a

gaoler, to whom the prisoner is committed for safe custody.

3. A third offence against public justice is, obstructing the execution of lawful process. This is at

all times an offence of a very high and presumptuous nature; but more particularly so when it is

an obstruction of an arrest upon criminal process. And it hath been holden that the party

opposing such arrest becomes thereby particeps criminis; that is, an accessory in felony, and a

principal in high treason. Formerly, one of the greatest obstructions to public justice, both of the

civil and criminal kind, was the multitude of pretended privileged places where indigent persons

assembled together to shelter themselves from justice, (especially in London and Southwark,)

under the pretext of their having been ancient palaces of the crown, or the like: all of which

sanctuaries for iniquity are now demolished, and the opposing of any process therein is made

highly penal, by the statutes 8 9 W. III. c. 27, 9 Geo. I. c. 28, and 11 Geo. I. c. 22, which enact

that persons opposing the execution of any process in such pretended privileged places within

the bills of mortality, or abusing any officer in his endeavours to execute his duty therein, so that

he receives bodily hurt, shall be guilty of felony, and transported for seven years; and persons in

disguise, joining in or abetting any riot or tumult on such account, or opposing any process, or

assaulting and abusing any officer executing or for having executed the same, shall be felons

without benefit of clergy.

4. An escape of a person arrested upon criminal process by eluding the vigilance of his keepers

before he is put in hold is also an offence against public justice, and the party himself is

punishable by fine or imprisonment. But the officer permitting such escape, either by negligence

or connivance, is much more culpable than the prisoner; the natural desire of liberty pleading

strongly in his behalf, though he ought in strictness of law to submit himself quietly to custody

till cleared by the due course of justice. Officers therefore who, after arrest, negligently permit a

felon to escape, are also punishable by fine: but voluntary escapes, by consent and connivance of

the officer, are a much more serious offence; for it is generally agreed that such escapes amount

to the same kind of offence, and are punishable in the same degree, as the offence of which the

prisoner is guilty and for which he is in custody, whether treason, felony, or trespass. And this,

whether he were actually committed to gaol or only under a bare arrest. But the officer cannot be

thus punished till the original delinquent hath actually received judgment or been attainted, upon

verdict, confession, or outlawry, of the crime for which he was so committed or arrested;

otherwise it might happen that the officer might be punished for treason or felony, and the person

arrested and escaping might turn out to be an innocent man. But, before the conviction of the

principal party, the officer thus neglecting his duty may be fined and imprisoned for a

misdemeanour.

5. Breach of prison by the offender himself, when committed for any cause, was felony at the

common law; or even conspiring to break it. But this severity is mitigated by the statute de

frangentibus prisonam, 1 Edw. II., which enacts that no person shall have judgment of life or

member for breaking prison, unless committed for some capital offence. So that to break prison

and escape, when lawfully committed for any treason or felony, remains still felony, as at the

common law; and to break prison, (whether it be the county-gaol, the stocks, or other usual place

of security,) when lawfully confined upon any other inferior charge, is still punishable as a high

misdemeanour by fine and imprisonment. For the statute which ordains that such offence shall be

no longer capital never meant to exempt it entirely from every degree of punishment.

6. Rescue is the forcibly and knowingly freeing another from an arrest or imprisonment; and it is

generally the same offence in the stranger so rescuing as it would have been in a gaoler to

havevoluntarily permitted an escape. A rescue, therefore, of one apprehended for felony is

felony; for treason, treason; and for a misdemeanour, a misdemeanour also. But here likewise, as

upon voluntary escapes, the principal must first be attainted or receive judgment before the

rescuer can be punished, and for the same reason; because, perhaps, in fact it may turn out that

there has been no offence committed. By statute 11 Geo. II. c. 26, and 24 Geo. II. c. 40, if five or

more persons assemble to rescue any retailers of spirituous liquors, or to assault the informers

against them, it is felony, and subject to transportation for seven years. By the statute 16 Geo. II.

c. 31, to convey to any prisoner in custody for treason or felony any arms, instruments of escape

or disguise, without the knowledge of the gaoler, though no escape be attempted, or any way to

assist such prisoner to attempt an escape, though no escape be actually made, is felony, and

subjects the offender to transportation for seven years; or if the prisoner be in custody for petit

larceny or other inferior offence, or charged with a debt of 100l., it is then a misdemeanour,

punishable with fine and imprisonment. And, by several special statutes, to rescue, or attempt to

rescue, any person committed for the offences enumerated in those acts, is felony without benefit

of clergy; and to rescue, or attempt to rescue, the body of a felon executed for murder, is single

felony, and subject to transportation for seven years. Nay, even if any person be charged with

any of the offences against the black-act, 9 Geo. I. c. 22, and being required, by order of the

privy council, to surrender himself, neglects so to do for forty days, both he and all that

knowingly conceal, aid, abet, or succour him, are felons without benefit of clergy.

7. Another capital offence against public justice is the returning from transportation, or being

seen at large in Great Britain before the expiration of the term for which the offender was

ordered to be transported, or had agreed to transport himself. This is made felony without benefit

of clergy in all cases, by statutes 4 Geo. I. c. 11, 6 Geo. I. c. 23, 16 Geo. II. c. 15, and 8 Geo. III.

c. 15, as is also the assisting them to escape from such as are conveying them to the port of

transportation.

8. An eighth is that of taking a reward under pretence of helping the owner to his stolen

goods. This was a contrivance carried to a great length of villainy in the beginning of the reign of

George the First; the confederates of the felons thus disposing of stolen goods, at a cheap rate, to

the owners themselves, and thereby stifling all further inquiry. The famous Jonathan Wild had

under him a well-disciplined corps of thieves, who brought in all their spoils to him, and he kept

a sort of public office for restoring them to the owners at half-price. To prevent which audacious

practice, to the ruin and in defiance of public justice, it was enacted, by statute 4 Geo. I. c. 11,

that whoever shall take a reward under the pretence of helping any one to stolen goods shall

suffer as the felon who stole them, unless he causes such principal felon to be apprehended and

brought to trial, and also gives evidence against them. Wild, still continuing in his old practice,

was upon this statute at last convicted and executed.

9. Receiving of stolen goods, knowing them to be stolen, is also a high misdemeanour and affront

to public justice. We have seen in a former chapter that this offence, which is only a

misdemeanour at common law, by the statute 3 4 W. and M. c. 9, and 5 Anne, c. 31, makes the

offender accessory to the theft and felony. But because the accessory cannot in general be tried,

unless with the principal or after the principal is convicted, the receivers by that means

frequently eluded justice. To remedy which, it is enacted, by statute 1 Anne, c. 9, and 5 Anne, c.

31, that such receivers may still be prosecuted for a misdemeanour, and punished by fine and

imprisonment, though the principal felon be not before taken, so as to be prosecuted and

convicted. And, in case of receiving stolen lead, iron, and certain other metals, such offence is,

by statute 29 Geo. II. c. 30, punishable by transportation for fourteen years. So that now the

prosecutor has two methods in his choice: either to punish the receivers for the misdemeanour

immediately, before the thief is taken, or to wait till the felon is convicted, and then punish them

as accessories to the felony. But it is provided, by the same statutes, that he shall only make use

of one, and not both, of these methods of punishment. By the same statute, also, 29 Geo. II. c.

30, persons having lead, iron, and other metals in their custody, and not giving a satisfactory

account how they came by the same, are guilty of a misdemeanour, and punishable by fine or

imprisonment. And, by statute 10 Geo. III. c. 48, all knowing receivers of stolen plate or jewels,

taken by robbery on the highway, or when a burglary accompanies the stealing, may be tried as

well before as after the conviction of the principal, and whether he be in or out of custody, and, if

convicted, shall be adjudged guilty of felony, and transported for fourteen years.

10. Of a nature somewhat similar to the two last is the offence of theft bote, which is where the

party robbed not only knows the felon, but also takes his goods again, or other amends, upon

agreement not to prosecute. This is frequently called compounding of felony, and formerly was

held to make a man an accessory; but it is now punished only with fine and imprisonment. This

perversion of justice, in the old Gothic constitutions, was liable to the most severe and infamous

punishment. And the Salic law, ―latroni eum similem habuit, qui furtum celare vellet, et occulte

sine judice compositionem ejus admittere.‖ By statute 25 Geo. II. c. 36, even to advertise a

reward for the return of things stolen, with no questions asked, or words to the same purport,

subjects the advertiser and the printer to a forfeiture of 50l. each.

11. There is yet another offence against public justice, which is a crime of deep malignity; and so

much the deeper, as there are many opportunities of putting it in practice, and the power and

wealth of the offenders may often deter the injured from a legal prosecution. This is

the oppression and tyrannical partiality of judges, justices, and other magistrates, in the

administration and under the colour of their office. However, when prosecuted, either by

impeachment in parliament, or by information in the court of king‘s bench, (according to the

rank of the offenders,) it is sure to be severely punished with forfeiture of their offices, (either

consequential or immediate,) fines, imprisonment, or other discretionary censure, regulated by

the nature and aggravations of the offence committed.

12. Lastly, extortion is an abuse of public justice, which consists in any officer‘s unlawfully

taking, by colour of his office, from any man, any money or thing of value that is not due to him,

or more than is due, or before it is due. The punishment is fine and imprisonment, and sometimes

a forfeiture of the office.

14. OFFENCES AGAINST PERSON

The term ―crimes against the person‖ refers to a broad array of criminal offenses which usually

involve bodily harm, the threat of bodily harm, or other actions committed against the will of an

individual. Those involving bodily harm (or the threat thereof) include assault, battery, and

domestic violence. Additionally, offenses such as harassment, kidnapping, and stalking also are

considered crimes against the person. This section contains several articles covering the basics of

such crimes, including definitions and sentencing guidelines. See the Assault, Battery and

Intentional Torts subsection in FindLaw‘s Accidents and Injuries section to learn more about

how to file a civil lawsuit for assault and/or battery.

In criminal law, an offence against the person usually refers to a crime which is committed by

direct physical harm or force being applied to another person.

They are usually analysed by division into the following categories:

Fatal offences

Sexual offences

Non-fatal non-sexual offences

They can be further analysed by division into:

Assaults

Injuries

And it is then possible to consider degrees and aggravations, and distinguish between intentional

actions (e.g., assault) and criminal negligence (e.g., criminal endangerment).

Offences against the person are usually taken to comprise:

Fatal offences

Murder

Manslaughter

Non-fatal non-sexual offences

Assault, or common assault

Battery, or common battery

Wounding or wounding with intent

Poisoning

Assault occasioning actual bodily harm (and derivative offences)

Inflicting grievous bodily harm or causing grievous bodily harm with intent (and derivative

offences)

The crimes are usually grouped together in common law countries as a legacy of the Offences

against the Person Act 1861.

Although most sexual offences will also be offences against the person, for various reasons

(including sentencing and registration of offenders) sexual crimes are usually categorised

separately. Similarly, although many homicides also involve an offence against the person, they

are usually categorised under the more serious category.

England and Wales. Fatal offences

Murder

Manslaughter

Corporate manslaughter, contrary to section 1 of the Corporate Manslaughter and Corporate

Homicide Act 2007

Infanticide, contrary to section 1(1) of the Infanticide Act 1938

In section 2(2) of the Law Reform (Year and a Day Rule) Act 1996, "fatal offence" means:

murder, manslaughter, infanticide or any other offence of which one of the elements is

causing a person's death

an offence under section 2(1) of the Suicide Act 1961 in connection with the death of a

person;or

an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004.

Administering poison, so as to endanger life, contrary to section 23 of the Offences against

the Person Act 1861

Administering poison, contrary to section 24 of the Offences against the Person Act 1861

Unlawful wounding or inflicting grievous bodily harm, contrary to section 20 of the Offences

against the Person Act 1861

Wounding or causing grievous bodily harm with intent, contrary to section 18 of the

Offences against the Person Act 1861

15. FORENSIC MEDICINE

Forensic medicine is a sub-specialty of pathology that focuses on determining the cause of

death by examining a corpse. The autopsy is performed by a coroner or medical examiner,

usually during the investigation of criminal law cases and civil law cases in some jurisdictions.

Coroners and medical examiners are also frequently asked to confirm the identity of a corpse.

Forensic pathologists, or medical examiners, are specially trained physicians who examine the

bodies of people who died suddenly, unexpectedly, or violently. The forensic pathologist is

responsible for determining the cause (the ultimate and immediate reasons for the cessation of

life) and manner of death (homicide, suicide, accidental, natural, or unknown).

To determine the identity of the victim and the time, manner and cause of death, the forensic

pathologist:

studies the medical history,

evaluates crime scene evidence including witness statements,

performs an autopsy to uncover evidence of injury or disease, and

collects medical and trace evidence from the body for further analysis.

In addition to anatomy, the forensic pathologist may draw upon specialized knowledge and

training in:

toxicology

firearms/ballistics

trace evidence

serology (blood analysis), and

DNA technology.

A forensic pathologist may be appointed as a Medical Examiner by a legal jurisdiction such as a

city, county or state.

Clinical forensic pathologists examine living patients, usually in cases where sexual assault or

abuse is suspected.

Once all the evidence is analyzed, the forensic pathologist prepares a written report, and may

also testify to these findings in court.

Forensic pathology is an application of medical jurisprudence. The forensic pathologist:

Is a medical doctor who has completed training in anatomical pathology and who has

subsequently sub-specialized in forensic pathology. The requirements for becoming a "fully

qualified" forensic pathologist varies from country to country. Some of the different

requirements are discussed below.

Performs autopsies/postmortem examinations to determine the cause of death. The autopsy

report contains an opinion about :

The pathologic process, injury, or disease that directly results in or initiates a series of events that

lead to a person's death (also called mechanism of death), such as a bullet wound to the

head, exsanguination caused by a stab wound, manual or ligature strangulation,myocardial

infarction resulting from coronary artery disease, etc.).

The "manner of death", the circumstances surrounding the cause of death, which in most

jurisdictions include:

Homicide

Accidental

Natural

Suicide

Undetermined

The autopsy also provides an opportunity for other issues raised by the death to be addressed,

such as the collection of trace evidence or determining the identity of the deceased.

Examines and documents wounds and injuries, both at autopsy and occasionally in a clinical

setting.

Collects and examines tissue specimens under the microscope (histology) in order to identify the

presence or absence of natural disease and other microscopic findings such as asbestos bodies in

the lungs or gunpowder particles around a gunshot wound.

Collects and interprets toxicological analyses on body tissues and fluids to determine the

chemical cause of accidental overdoses or deliberate poisonings.

Forensic pathologists also work closely with the medico-legal authority for the area concerned

with the investigation of sudden and unexpected deaths i.e. the coroner

(England and Wales), procurator fiscal (Scotland) or coroner or medical examiner (United

States).

Serves as an expert witness in courts of law testifying in civil or criminal law cases.

In an autopsy, he/she is often assisted by an autopsy/mortuary technician (sometimes called

a diener in the USA).

Forensic physicians, sometimes referred to as 'forensic medical examiners' or 'police surgeons'

(in the UK until recently), are medical doctors trained in the examination of, and provision of

medical treatment to, living victims of assault (including sexual assault) and those individuals

who find themselves in police custody. Many forensic physicians in the UK practise clinical

forensic medicine part-time, whilst they also practise family medicine, or another medical

specialty.

In the United Kingdom, Membership of the Royal College of Pathologists is not a prerequisite of

appointment as a Coroner's Medical Expert, i.e. doctors in the UK that are not forensic

pathologists or pathologists are allowed to perform medicolegal autopsies, simply because of the

vague wording of 'The Coroners Act', which merely stipulates a 'suitably qualified medical

practitioner', i.e. anyone on the GMC Register.

Investigation of death. Deaths where the known cause and those considered unnatural are

investigated. In most jurisdictions this is done by a "forensic pathologist", coroner, medical

examiner, or hybrid medical examiner-coroner offices.

Terminology is not consistent across jurisdictions. In some jurisdictions, the title of "Medical

Examiner" is used by a non-physician, elected official involved in medicolegal death

investigation. In others, the law requires the medical examiner to be a physician, pathologist, or

forensic pathologist.

Similarly, the title "coroner" is applied to both physicians and non-physicians. Historically,

coroners were not all physicians (most often serving primarily as the town mortician). However,

in some jurisdictions the title of "Coroner" is exclusively used by physicians.

Canadian coroners. In Canada, there is a mix of coroner and medical examiner systems,

depending on the province or territory. In Ontario, coroners are licensed physicians, usually but

not exclusively family physicians. In Quebec, there is a mix of medical and non-medical

coroners, whereas in British Columbia, there is predominantly a non-physician coroner system.

Alberta and Nova Scotia are examples of ME systems

Coroners and medical examiners in the United States. In the United States, a coroner is

typically an elected public official in a particular geographic jurisdiction who investigates and

certifies deaths. The vast majority of coroners lack aDoctor of Medicine degree and the amount

of medical training that they have received is highly variable, depending on their profession (e.g.

law enforcement, judges, funeral directors, emergency medical technicians, nurses). In contrast,

a medical examiner is typically a physician who holds the degree of Doctor of

Medicine or Doctor of Osteopathic Medicine. Ideally, a medical examiner has completed both a

pathology residency and a fellowship in forensic pathology. In some jurisdictions, a medical

examiner must be both a doctor and a lawyer, with additional training in forensic pathology.

United Kingdom. In the UK, anatomical pathology is a five-year residency. Successful

candidates are eligible for inclusion on the specialist register of the General Medical

Council (GMC) having obtained Membership of the Royal College of Pathologists (United

Kingdom). A specialist training (ST) post is applied for after the foundation year to enter a

training program in Histopathology. Imminent changes as a result of the Tooke report may

require two years or more to be fulfilled on general rotational placements before the option of

histopathology arises. However, the Royal College have not yet issued their response to this

matter. It is then necessary to obtain the MRCPath Part I examination in Histopathology, after

which it is then possible to apply to one of few training posts in Forensic Pathology in the UK.

Current approved centres include Belfast, Liverpool, Leicester, Cardiff, London, Sheffield,

Glasgow and Dundee. Not all the posts are currently actively training. Following 3 years training

in Forensic Pathology and completion of the FRCPath Part II slanted to Forensic Pathology you

may then obtain CCT (certificate of completion of training) and work as a Consultant Forensic

Pathologist. Another option is to obtain the full FRCPath in general histopathology, followed by

another 18–24 months of training in forensic pathology, which will qualify the candidates with

either the Diploma of the Royal College of Patholoists in Forensic Pathology (DipRCPath

(forensic)), or the Diploma in Medical Jurisprudence (DMJ). In England & Wales you will also

need to be Home Office Accredited, which will require checks of your training portfolio and

completion of a security check and the Expert Witness Training Course run by the Forensic

Science Service. Foreign graduates and specialists need to apply to the GMC and the RCPath

directly to practise Forensic Pathology in the United Kingdom.

United States. In the United States, forensic pathologists typically complete at least one year of

additional training (a fellowship) after completing an anatomical pathology residency and having

passed the "board" examination administered by The American Board of Pathology or

The American Osteopathic Board of Pathology ("board-certified"). Becoming an anatomic

pathologist in the United States requires completing a residency in anatomic pathology, which is

on-the-job training one must perform upon completing medical school before one may practice

unsupervised. Anatomic pathology (as it is called) by itself is a three-year residency. Most U.S.

pathologists complete a combined residency in both anatomic andclinical pathology, which

requires a total of four years.

In the United States, all told, the education after high school is typically 13–15 years in duration

(4 years undergraduate training + 4 years medical school + 4–5 years residency [anatomic and

clinical pathology combined] + 1-2 year forensic pathology fellowship). Generally, the biggest

hurdle is gaining admission to medical school, although the pass rate for anatomic and forensic

pathology board examinations (in the U.S.) is approximately 80-90 and 90-100 percent,

respectively. The courts do not require American Board of Pathology certification in order for a

witness to be qualified as an expert in the field of forensic pathology, and there are several

"diploma mills" that give online certificates in the field.

GLOSSARY OF LEGAL TERMS

A

Accomplice – (1) A partner in a crime. (2) A person who knowingly and voluntarily participates

with another in a criminal activity.

Accord and Satisfaction – Compromise and settlement. A way to discharge a claim whereby

the parties agree to give and accept something in settlement of the claim that will replace the

terms of the parties‘ original agreement. Accord is the new agreement; satisfaction is

performance of the new agreement.

Action - Case, cause, suit, or controversy disputed or contested before a court.

Appellant - The party who takes an appeal from one court or jurisdiction to another.

Appellate Court - A court having jurisdiction to hear appeals and review a trial court‘s decision.

Appellee - The party against whom an appeal is taken. Sometimes called a respondent.

Arbitration - A form of alternative dispute resolution in which the parties bring their dispute to

a neutral third party and agree to abide by his/her decision. In arbitration there is a hearing at

which both parties have an opportunity to be heard.

Arrest – The official taking of a person to answer criminal charges. This involves at least

temporarily denying a person of liberty and may involve the use of force.

Arrest Warrant – An order by a judge that gives permission for a police officer to arrest a

person for allegedly committing a crime.

Assault - Threat to inflict injury with an apparent ability to do so. Also, any intentional display

of force that would give the victim reason to fear or expect immediate bodily harm.

B

Bench - The seat occupied by the judge; more broadly, the court or judicial branch itself.

Bench Trial - Trial without a jury in which a judge decides the facts as well as the law.

Bench Warrant - An order issued by a judge to arrest a person based on his/her failure to obey a

court order. A bench warrant may be issued when a person fails to pay a fine, appear, or attend

DWI School.

Beneficiary - Someone named to receive property or benefits in a will, trust, insurance policy, or

other such document.

Booking - The process of photographing, fingerprinting and recording identifying data of a

suspect after arrest.

Breach - The breaking or violating of a law, right, or duty, either by the commission or omission

of an act.

Breach of Contract – Failure by one party to abide by the terms of a contract without lawful

excuse.

C

Caption - The heading on a legal document listing the parties, the court, the case number, and

related information.

Case Law - Law established by previous decisions of appellate courts.

Cause - A lawsuit, litigation, or action. Any question, civil or criminal, litigated or contested

before a court of justice.

Challenge - Term used in a jury trial for an attemp to exclude a potential juror.

Challenge for Cause - Objection to the seating of a particular juror for a stated reason (usually

bias or prejudice for or against one of the parties in the lawsuit). The judge has the discretion to

deny the challenge. Distinguished from peremptory challenge, which they party can usually

exercise as a matter of right.

Chambers - A judge‘s private office. A hearing in chambers takes place in the judge‘s office

outside of the presence of the jury and the public.

Civil Action - Non-criminal cases in which one private individual, business, or government sues

another to protect, enforce, or redress private or civil rights.

Civil Contempt – Contempt can be civil or criminal depending on the purpose the court seeks to

achieve through its punishment. Contempt is civil when the purpose of punishment is to coerce

the defendant to perform an act previously ordered by the court, which the defendant has not

done, such as paying child support. Compare with Criminal Contempt.

Civil Procedure - The set of rules and process by which a civil case is tried and appealed,

including the preparations for trial, the rules of evidence and trial conduct, and the procedure for

pursuing appeals.

Custody - Detaining of a person by lawful process or authority to assure his/her appearance at

any hearing; the jailing or imprisonment of a person convicted of a crime.

D

Damages - Money awarded by a court to a person injured by the unlawful act or negligence of

another person.

Decision - The judgment reached or given by a court of law.

Declaratory Judgment - A judgment of the court that explains what the existing law is or

expresses the opinion of the court as to the rights and status of the parties, but which does not

award relief or provide enforcement.

Default - A failure to respond to a lawsuit within the specified time.

Defendant - In a civil case, the person being sued. In a criminal case, the person charged with a

crime.

E

Elements of a Crime - Specific factors that define a crime and which the prosecution must

prove beyond a reasonable doubt in order to obtain a conviction.

Examination – The questioning of a witness under oath.

Execute - To complete the legal requirements (such as signing before witnesses) that make a will

valid. Also, to execute a judgment or decree means to put the final judgment of the court into

effect.

Executor - A personal representative, named in a will, who administers an estate.

F

Felony – A crime that allows a defendant to be imprisoned for more than one year upon being

found guilty.

Finding - Formal conclusion by a judge or regulatory agency on issues of fact. Also, a

conclusion by a jury regarding a fact.

First Appearance - The initial appearance of an arrested person before a judge to determine

whether or not there is probable cause for his/her arrest. Generally, the person comes before a

judge within hours of the arrest. Also called initial appearance.

Fraud - Intentional deception to deprive another person of property or to injure that person in

some way.

G

General Damages - Compensation for the loss directly and necessarily incurred by a breach of

contract.

General Jurisdiction - Refers to courts that have no limit on the types of criminal and civil

cases they may hear.

H

Hearing -A proceeding, generally public, at which an issue of fact or law is discussed and either

party has the right to be heard.

Hung jury - Jury unable to reach a verdict. A trial ending in a hung jury results in a retrial with a

new jury.

I

Incarcerate - To confine in jail.

Injunction - Writ or order by a court prohibiting a specific action from being carried out by a

person or group. A preliminary injunction is granted provisionally, until a full hearing can be

held to determine if it should be made permanent.

Interrogatories - Written questions asked by one party in a lawsuit for which the opposing party

must provide written answers.

Intervention - An action by which a third person that may be affected by a lawsuit is permitted

to become a party to the suit.

Issue - 1. The disputed point in a disagreement between parties in a lawsuit. 2. To send out

officially, as in to issue an order.

J

Judge - An elected or appointed public official with authority to hear and decide cases in a court

of law. A judge Pro Tem is a temporary judge.

Judgment - The first disposition of a lawsuit.

Consent Judgment - Occurs when the provisions and terms of the judgment are agreed on

by the parties and submitted to the court for its sanction and approval.

Default Judgment - A judgment rendered because of the defendant‘s failure to answer or

appear.

Judgment Notwithstanding the Verdict – Judgment entered by order of the court for one

party notwithstanding the jury‘s verdict in favor of the other party. A judgment

notwithstanding the verdict may only arise after a motion for a directed verdict.

Judgment on the Pleadings – Judgment based on the pleadings alone. It is used when

there is no dispute as to the facts of the case and one party is entitled to a judgment as a

matter of law.

Summary Judgment - Judgment given on the basis of pleadings, affidavits, and exhibits

presented for the record without any need for a trial. As with Judgment on the Pleadings,

it is used when there is no dispute as to the facts of the case and one party is entitled to a

judgment as a matter of law.

Judgment and Sentence - The official document of a judge‘s disposition of a case

sentencing a defendant to the Department of Corrections or jail custody.

Judicial Review - The authority of a court to review the official actions of other branches of

government. Also, the authority to declare unconstitutional the actions of other branches.

Jurat - Certificate of officer or person whom writing was sworn before. Typically, ―jurat‖ is

used to mean the certificate of the competent administering officer that writing was sworn to by

person who signed it.

Jurisdiction - The court‘s legal authority to hear and resolve specific disputes. Jurisdiction is

usually composed of personal jurisdiction (authority over persons) and subject matter jurisdiction

(authority over types of cases.)

Jurisprudence - The study of law and the structure of the legal system.

Jury - Persons selected according to law and sworn to inquire into and declare a verdict on

matters of fact. A petit jury is a trial jury, composed of 6 to 12 persons, which hears either civil

or criminal cases.

Juvenile - A person under 18 years of age.

L

Liable - Legally responsible.

Litigant - A party to a lawsuit. Litigation refers to a case, controversy, or lawsuit.

M

Magistrate – A judge whose civil and criminal jurisdiction is limited by law. In federal court, a

judicial officer who is assigned numerous trial and pretrial responsibilities.

Mandate - The official decree by a court of appeal.

Manslaughter - The unlawful killing of another without intent to kill; either voluntary (upon a

sudden impulse); or involuntary (during the commission of an unlawful act not ordinarily

expected to result in great bodily harm.)

Minor – A person under 18 years of age.

Misdemeanor - An offense punishable by not more than one year in county jail and/or $1,000

fine.

Murder - The unlawful killing of a human being with deliberate intent to kill. Murder in the first

degree is characterized by premeditation; murder in the second degree is characterized by a

sudden and instantaneous intent to kill or to cause injury without caring whether the injury kills

or not.

N

Negligence - Failure to exercise the degree of care that a reasonable person would exercise under

the same circumstances.

Non-jury trial - A case tried by a judge on the facts as well as the law.

No Probable Cause - Insufficient grounds to hold the person who was arrested.

Notice - Formal notification to the party that has been sued that a civil lawsuit has been filed.

Also, any form of notification of a legal proceeding or filing of a document.

O

Oaths - Sworn attestations required in court, usually administered by the in-court clerk.

Objection - The process by which one party tries to prevent the introduction of evidence or the

use of a procedure at a hearing. An objection is either sustained (allowed) or overruled by the

judge.

Offense - A violation of a municipal ordinance or state statute.

Order - A written or oral command from a court directing or forbidding an action.

P

Party - A person, business, organization or government agency involved in the prosecution or

defense of a legal proceeding.

Personal Jurisdiction - Power which a court has over the defendant's person and which a court

must have before it can enter a judgment affecting the defendant's rights.

Personal Property - Tangible physical property (such as cars, clothing, furniture and jewelry)

and intangible personal property (such as bank accounts). This does not include real property

such as land or rights in land.

Plaintiff - The person/business/organization/agency that files the complaint in a civil lawsuit.

Also called the complainant.

Pleadings - The written statements of fact and law filed by the parties to a lawsuit.

Prejudice - Unfair harm to one party.

Power of Attorney – Formal authorization of a person to act in the interests of another who is

incapable of managing his or her own affairs or property.

Preliminary Hearing – See ―Initial Appearance.‖

Preliminary Injunction - Court order requiring action or forbidding action until a decision can

be made whether to issue a permanent injunction. It differs from a temporary restraining order.

Precedent - A previously decided case that guides the decision of future cases; source of

common law.

Probate - The court-supervised process by which a will is determined to be the will-maker‘s

final statement regarding how the will maker wants his/her property distributed. It also confirms

the appointment of the personal representative of the estate. Probate also means the process by

which assets are gathered; applied to pay debts, taxes, and the expenses of administration; and

distributed to those designated as beneficiaries in the will.

Prosecutor - A trial lawyer representing the government in a criminal case and the interests of

the state in civil matters. In criminal cases, the prosecutor has the responsibility of deciding who

and when to prosecute.

Q

Quash - To vacate or void a summons, subpoena, etc.

R

Record - All the documents and evidence plus transcripts of oral proceedings in a case.

Removal - The transfer of a state case to federal court for trial.

Rules of Evidence - Standards governing whether evidence in civil or criminal case is

admissible.

S

Search - Examination of a person's house or other building or premises, or of his person, or

vehicle, with a view to discovery of contraband, illicit or stolen property, or some evidence of

guilt to be used in the prosecution of a criminal action.

Search Warrant - A written order issued by a judge that directs a law enforcement officer to

search a specific area for a specific piece of evidence.

Self Defense - Claim that an act otherwise criminal was legally justifiable because it was

necessary to protect a person or property from the threat or action of another.

Settlement - An agreement between the parties disposing of a lawsuit.

Stare Decisis - The doctrine that courts will follow principles of law laid down in previous

cases. Similar to precedent.

Statement - A writing made by a person and signed or otherwise adopted or approved by such

person; any mechanical, electrical or other recording or a transcription thereof, which is a recital

of an oral utterance; and stenographic or written statements or notes which are in substance

recitals of an oral statement.

Statute – Law passed by a legislative body declaring rights and duties, or commanding or

prohibiting certain conduct.

Statute of Frauds – Law which requires that certain documents be in writing, such as leases for

more than one year. Under the UCC, contracts for the sale of goods for more than $500 must be

in writing to be enforced.

Suspended Sentence - Postponed execution of sentence; sentence is imposed, and execution of

sentence is suspended, postponed, or stayed for a period and on conditions set by the judge.

T

Tort - An injury or wrong committed on the person or property of another. A tort is an

infringement on the rights of an individual, but not founded in a contract. The most common tort

action is a suit for personal and/or property damages sustained in an automobile accident.

Trial - Examination of any issue of fact or law before a competent court to determine the rights

of the parties.

Trust - A legal device used to manage real or personal property, established by one person (the

grantor or settlor) for the benefit of another (the beneficiary). A third person (the trustee) or the

grantor manages the trust.

U

Unenforceable Contract – A valid contract is unenforceable when some defense exists that is

extraneous to the formation of the contract, such as when the contract violates the Statute of

Frauds or the Statute of Limitations has passed.

Unlawful Search - Examination or inspection of premises or persons without authority of the

law and in violation of the immunity from unreasonable search and seizure under the Fourth

Amendment to the U.S. Constitution and Article II, Section 10 of the New Mexico Constitution.

Unsecured - In collection or bankruptcy proceedings, a debt or a claim is unsecured if there is

no collateral, or to the extent the value of collateral is less than the amount of the debt.

Usury - Charging a higher interest rate or higher fees than the law allows.

V

Vacate - To set aside, as a judgment.

Verdict - The findings of a judge or jury at the end of the trial.

Void Contract – A contract that does not have any legal effect and cannot be enforced under

any circumstances. For example, a contract to commit an illegal act is void.

W

Warrant - Most commonly, a court order authorizing law enforcement officers to make an arrest

or conduct a search. An affidavit seeking a warrant must establish probable cause by detailing

the facts upon which the request is based.

Warranty – A legal promise that certain facts are true.

Without Prejudice - A claim or cause dismissed without prejudice may be the subject of a new

lawsuit.

Witness - A person who testifies to what he/she has seen, heard, or otherwise experienced. Also,

a person who observes the signing of a will and is competent to testify that it is the will-maker‘s

intended last will and testament.