Corporate Law

Part A

1-

Yes, s588G of the Corporations Act increases the fiduciary’s duty to prevent insolvent trading of a company. The Act was developed to define the responsibilities of the company’s Directors, who deal with all financial matters of the organization. The Directors of the company are the one, who are aware of all financial matters, and dealings of the organization, and thus by restricting them to prevent insolvent trading of the company, government has presented a unique solution to prevent corruption. The Directors has to take care of all company’s debts and need to pay all dues on time. In case the company is facing any financial challenge, the Directors are responsible to take actions timely. They must take accounting and legal advice timely, and must find an appropriate way to deal with the challenges faced to pay its debts when fall due. Director’s such efforts reduces the risks faced by the company, and help it to deal with its all financial matters. Otherwise the Act provides right to the organizations to punish the Directors, in terms of either penalties or being banned. Thus, the Act declares Directors or Fiduciary responsible for all financial actions, and allow company to imply penalties over the responsible person (Directors) in order to meet the financial burdens faced as a result of insolvent trading of the company CITATION DAM18 \l 1033 (KNOBLANCHE, 2018).

2

As discussion in the above question, the s588G Corporate Act imposes all responsibilities on the fiduciary of the company. This Act guides the Directors different ways to deal with company’s finance related challenges, and restricts them to be honest in case of all matters. The Directors of the company are the key finance players, and thus they must play their role with honest and must devote their days and nights to bring the company at successful and financially strong position. In case, they cannot do their responsibilities with honestly and devotion, they have no right to stay as Director of the company and must face penalty for their irresponsive attitude towards their duties. However, the Directors are not always responsible for all financial challenges, and so they may require a second chance to work for the betterment or restructuring of the company. By considering such facts, the government of the Australia presented Safe Harbour Amendment in Corporate Law, through which the government of Australia has struck a better balance between encouraging the honest directors and the protection of company’s credits. According to this amendment, the Directors must not be punished or banned in case of insolvent trading of the company, instead there must be proper investigation and in case the Director is not found guilty, he must be provided a second chance to restructure the financial system of the company and to prove their capabilities as a fiduciary person CITATION DAM18 \l 1033 (KNOBLANCHE, 2018).

3

The Safe Harbour amendment of s588G protects the Directors of the company and addresses a concern the Directors of the company must show a positive behavior towards company’s financial progress and must not take any decision for the sake of personal benefits. This means that the protection is for the Directors who are honest to their jobs only. The Directors are the key role players, who have access to all confidential data of the company. Now, it depends on them how they use that information, either for the sake of better future of the company or for the sake of their personal interest. Thus, the Corporation Law was established to make Directors responsible to prevent the insolvent trading of the company, which will make them more responsible and honest towards their job. The same is the case with business judgment rule s180, which was established to restrict the Directors of the company to remain positive and honest with their jobs. It guides the Directors to remain honest and loyal to their job when making any sort of decision for the company, and must not think about their personal interest no matter how many financial challenges are they facing. Their one wrong decision may derive the company to the worst condiction, and so they must play their responsible role at an authoritarian level. In this way, both regulations are same and are concerned about the honesty of the Directors and restricts them for thinking about their personal interests.

4

The Corporation Act increases Director’s responsibilities towards financial situation of the company and thus there are some restrictions associated with the Act. The Directors of the company are the one, responsible to pay debts on time. While managing the debts of the company, they must maintain complete record of what was paid, how it was paid, who invested in the company, and how that investment is going to be returned. The complete maintenance of the record also helps the Directors in case of any investigation or audit. Thus, the regulation restrict the Directors to maintain evidentiary data, including manuals, annual reports, and financial record books. Also, in case the company is facing any financial challenge, the Directors are responsible to take actions timely. They must take accounting and legal advice timely, and must find an appropriate way to deal with the challenges faced to pay its debts when fall due. Thus, the record management may help the directors to consult to the advisors in an efficient way and to elaborate how the company has been facing financial challenges, and what mitigation strategies had he been adopted. Director’s such efforts reduces the risks faced by the company, and help it to deal with its all financial matters. Otherwise the Act provides right to the organizations to punish the Directors, in terms of either penalties or being banned. Thus, the Act declares Directors or Fiduciary responsible for all financial actions, and allow company to imply penalties over the responsible person (Directors) in order to meet the financial burdens faced as a result of insolvent trading of the company CITATION Jas17 \l 1033 (Harris, 2017).

5

Yes, the changed to Division 3 will leave a positive impact on the Directors, as well as voluntary insolvencies in Australia. According to this Division, the Directors of the company are responsible for the insolvent trading in Company, and thus they must take effective actions timely CITATION Aus19 \l 1033 (Government, 2019). This makes the Directors responsible and honest to their jobs, and thus they remain focused regarding finance related dealings and information regarding the financial matters. Furthermore, the change Act was very important to encourage Director’s positive intentions towards company’s financial progress, otherwise previously Directors of the companies were responsible for all sort of financial losses and they had to pay penalty up to $200,000 to help the company in its recovery. Also, according to the Act, the Directors had to be banned to perform their duties for a number of years as a result of which they were discouraged to stay in the course. Thus, the division 3 change make the Directors more responsible towards all financial actions, and allow company to imply penalties over the responsible person (Directors) in order to meet the financial burdens faced as a result of insolvent trading of the company.

Part B

1-

Yes, Mr Daly was working as a Director in the company, where he not only misguided the investors but also misused the company’s assets for the sake of personal interests. In an Interview, it was revealed that Mr. Daly was dealing with the investors, who were interested to invest their thousands of dollars. He took money from them, and a few part of money was invested in company’s funds, whereas a significant part was sent to Daly’s unregistered funds. Thus, in the investigation, the Daly was charged for misleading clients, violating Corporation Act, and misappropriation of funds. According to the Corporation Act, it is the responsibility of the Director of the Company to keep the company protected from all sort of financial risks, and for this purpose the person must ensure that all debts are paid on time and for that he has access to all assets of the company. Though, the company was not facing any financial crises, and all debts were paid on time, but it was company’s funds, which were transferred to the Daly’s unregistered funds. Thus, Mr. Daly not only violated the regulation but also used company’s funds in an unethical and misappropriate way. For his this action, he must not only be answerable but should be charged with high penalty and must be banned for next few years. In this way, he and his co-Directors will learn a lesson, and won’t every try to misguide the clients or to misuse the company’s money. Despite of his great capabilities and skills, he conducted a crime and violated Corporation Act, and so he must be dealt with strong hands.

2

Yes, it was not only Peter Daly, but also his fellow Directors participated in breaching their responsibilities. Though both presented excuses for their financial misconduct but that wasn’t sufficient to justify their crime. According to Peter Daly, he was going through a lot of financial crises, and so he borrowed the money from the company, and was going to return after getting established. On the other hand, the fellow director had to attend an expensive wedding, for which he had no enough money and so he used millions of dollars of the company over that wedding. Though both Daly and Fellow director were aware of their unethical attempt but they thought no one will ever come to know about what is happening in the company. Somehow, the company could never found them guilty if the investor wouldn’t have told the company regarding the invested amount. However, both; Daly and Fellow Director violated the Corporation Act, as a result of which they brought the company in a risky position. It was a challenging situation for the company, where the directors had used company’s funds in an unethical ways. For this action, they must not only be answerable but should be charged with high penalty and must be banned for next few years. Also, the company should learn a lesson that scheduled audits and investigation may be fruitful to evaluate how the things are going in the company, and how the directors are actually dealing with the clients. Though, Directors play a crucial and important role, but trusting them blindly can bring several challenges to the firm. Same happened in the case of Daly and his fellow Director, on whom the CEO had trusted blindly and so they had access to all assets of the company, and so they took advantage of this access and used company’s funds for the sake of their personal interest.

3

The company was trading while insolvent because it was not facing any financial crises, and all debts were paid on time, but it was company’s funds, which were transferred to the Daly’s unregistered funds and were used by fellow Director on an expensive wedding and so the money was misused which could harm the company’s financial condition in future The investors had no idea of what had happened in the company and they were not aware of the tricks played by Daly. Mr. Daly misguided the investors and used some of the funds to keep the company trading going, while invested other invested amount in his unregistered funds. According to the Corporate Law, the Director must perform his duty with honesty and must not take any decision for the sake of his personal interest. Knowing this, Daly and his fellow director were bound to remain honest and loyal to the company, instead they used the amount confidently and justified their act by stating their needs and intentions not to harm the company. Mr. Daly was aware that he is violating the Corporation Law, and so he did not want the investors to discover what is going on in the company. He was also aware that with such trick he can have more investors’ amount and can enjoy better profit on his unregistered funds. He was keen, and so he continued using the amount for paying company’s financial debts too. Due to his keen act, the company was not facing any financial loss, but was not showing the great progress, as it supposed to show with great investors. Though, Mr. Daly tried to defend him by claiming that his efforts brought the company in a strong position, where it can meet all its financial requirements, but still his great efforts cannot allow him to breach his duties. Thus, he must be entertained with lesson learned punishment so that all next Directors won’t even thing to do such action in future. CITATION Jac19 \l 1033 (Nzinga, 2019).

4

Despite of Daly’s fraud, the company was trading because still the funds were available in the company. They borrowed the money from the client’s investments and thought to pay back after a short time. In this way, they did not actually harmed the company’s financial progress, but violated the Corporation Law. However, when analyzing the situation from other perspective, Mr. Daly got indulged in increasing his unregistered funds, and to think about his personal interest, which is not allowed according to Corporation Act. Also, , business judgment rule s180 is established to restrict the Directors for thinking positive for the Company and to take decision for the sake of Company’s future without considering their personal interests. Thus, the investigation revealed that Daly stored funds to his unregistered company and his fellow director used millions of dollars on weeding, which was not part of company’s activity. Thus, both were found guilty but as the company was trading while it was insolvent so the directors can be defended. Now, according to Corporation Law, the guilty individuals must be punished and must be banned to continue as Directors for next few years. Also, there must be penalty over them, as per which they must cover all financial loss of the company.

5

In this case, the safe harbor amendment of the Corporation Act s588G won’t protect the directors because it restricts the Directors to remain honest with their profession and not to take any decision for the sake of their personal interest. In case of Mr. Daly and his fellow directors, they have violated the Act by taking things for their personal interest, and thus they cannot be protect under the Corporation Act and Safe Harbour. In fact, they cannot be defended in any mean as they have used company’s millions of dollars for their personal interests, i.e. Mr. Daly used the money for his unregistered funds and the fellow director used the money for a wedding party. Their irresponsible attitude lead the company towards insolvent condition and so they are answerable for all their actions, and are guilty for their conduct.

References

BIBLIOGRAPHY \l 1033

Government, A., 2019. Issued by authority of the Assistant Treasurer. Federal Register of Legalization.

Harris, J., 2017. Safe harbour ipso facto 2017. Slide Share.

KNOBLANCHE, D., 2018. INSOLVENT TRADING: NEW SAFE HARBOUR DEFENCE. The Peak Partnership.

Nzinga, J., 2019. Australian Corporate Law.

https://www.abc.net.au/radionational/programs/backgroundbriefing/updated-the-talented-mr-daly/10282810

https://legify.com.au

www.aph.gov.au

https://jade.io

Corporations And Associations Law

Question 1

Judicial corporate veil piercing exists in most parts of the world. The majority of the scholarship emerging through the efforts of the commentators and courts in Australia and elsewhere considers the conditions under which the veil is ought to be pierced. Despite the famous comment of Easterbrook and Fischel that piercing happens freakishly like the lightening, and thus, remains unprincipled, severe and rare, the literature and case laws underlie the arguments in favor of veil piercing in the present times.

Registering a company is of considerable importance for the owners as it protects them under the corporate veil. It indicates to the fact that the registered corporation is an independent legal entity from its shareholders, and if it gets in to debt or if anything goes amiss, the directors (owners) are not responsible. Moreover, the court actions taken in this regard will not be against the directors but the company itself. Overall, it provides the owners with limited liability protection. The analogy of corporate veil stems from this protection.

The concession theory posited the same conception; it treats a registered corporation as an entity that a government has created, i.e., a corporation exists as a legal entity only because governments require so. For this reason, a company distinct from its directors and shareholders, and considers to receive the concession or privilege from the government. From the strong version of the theory, such privilege must be obtained on a regularly basis. For the sake of discussion, in the judgment of a 1985 case, the Court explained limited liability as a privilege, which is inevitable to the expansion of commerce and opportunities. However, almost simultaneously, it remains exposed to abuse as well. The judgment further elaborated that irresponsible structural engineering in the form of actions such as creating, transforming or dissolving incorporated companies to the creditor's prejudices is a mischief in this regard, and the courts must pay a heed to such matters.

On the other hand of the discussion, the natural entity theory makes two claims. The first supports the argument that corporations come into existence as a natural product due to the social and economic interaction of humans instead of being created through the corporate law, which gives official acknowledgment to their existence. The second claim elaborates the fact that the corporation exists independently from its shareholders and directors. Otto von Gierke describes a corporation as a large group, which enjoys an independent and real life along with a conscious will and the ability to act independently from its shareholders. This claim is further supported by the argument that a corporation continues to exist despite the fact that its management and membership change over time.

However, over the period of time, situations may arise where the shareholders would be taken as responsible. It is legally known as 'piercing' or 'lifting' the veil. Such a situation effectively opens up the assets of shareholders and directors of the corporate entity to the creditors and third parties. What makes this situation a bit tricky is the lacking in the law, where the Courts have failed to provide a specific outline of when to pierce or lift the veil. Further, the law does not expressly mentions anything in this regard. As noted in the previous literature, “conditions in which the corporate veil may be lifted are greatly circumscribed.” It provides solid grounds to the open discussion that if there is any real benefit to such language whilst the courts remain reluctant to lift or pierce the corporate veil.

Generally speaking, two common categories exist under which the veil is effectively pierced. The first category is when the company is registered with the sole purpose of taking advantage of the veil, i.e., for the objectives of fraud and improper conduct. Further, if the company is a mere sham or cloak, it is tantamount to improper and fraudulent conduct as well. Primarily, it occurs when the company has been set-up with the mission of not trading. If the Court senses such a situation, the veil is immediately lifted.

Moreover, most of the times, companies do act as the parent companies for others. In such a situation, the subsidiary or daughter company becomes an agent for the principal, i.e., the parent company. Under these conditions, the parent company is taken as responsible for the contracts being made by the daughter company on its behalf. Therefore, the Courts many lift the corporate veil to taken as the parent company responsible. However, the second category arises when the registered company utilizes its corporate veil for the purpose of avoiding fulfilling its legal obligations. A simple example is that if a company ABC owed money to its creditor but transferred its assets to another legal entity for the purpose of avoiding payment of the debt. In such a scenario, the courts will immediately lift the veil.

The Corporations Act 2001 (Cth) provides the legal support to this argument. It provides several provisions relating to the conditions under which the independent legal entity of a company can be disregarded. Thus, in these situations, the courts remain ready to lift the veil. For instance, Section 588G of the Act covers the directors' personal liability for debts incurred by the company whilst stepping into insolvency. The prime reason of providing this Section in the Act is to provide protection to the unsecured creditors of a company. Thus, when a company faces the issue of insolvency, the impact it will make on the creditors must also be taken into consideration. In a recent case of 2000, the court stated in its judgment that creditors are given a direct interest in the company, when it is near insolvency. This right is given as a duty of imperfect obligation owed to creditors coming in to effect. Therefore, under such a situation, the directors are personally found responsible to trade whilst insolvent.

Moreover, section 267 of the Act also provides the conditions under which the corporate veil can be pierced. It includes the invalidating charges granted to officers of a company in the existence of certain conditions. In a similar fashion, section 588FE explains that the invalidating non-commercial transaction being entered into by the company and its officers under particular situations also provide a smooth ground for the courts to lift the corporate veil. Additionally, section 292 elaborates that the legal entity doctrine can be disregarded in relation to the requirement of consolidated financial statements in the case of large group of organizations. In the same vein, section 295 explains that a holding company remains responsible for the debts incurred by its subsidiary company because it gives rise to the situation of an agency.

However, it must be noted that other than these provisions, directors and shareholders of the registered company may still be taken as responsible for anything going amiss such as the situations of corporate crimes, insolvent trading, and breach of the directors' duties. As a matter of fact, and as precedent over the time, the Courts in Australia remain reluctant in enforcing these provisions. As a matter of fact, over time, the courts in Australia, for instance, the House of Lords in 1897, have been affirming the fact that firms are independent legal entity. Thus, the shareholders are often not taken as responsible for the debts of the company beyond their initial capital investment. Simultaneously, they maintain no proprietary interest in the assets of the company.

Another angle to proceed in to this discussion is to establish the fact that if the court must always recognize the independent legal personality of a corporation. The two preeminent economics and law theorists, Easterbrook and Fischel explain that the individuality of a corporation is not a matter of reality but convenience. The economic theories concerning corporations support the argument otherwise. There are two principal strands of the economic theories, i.e., agency theory, and transaction-cost economies. As has already been touched in the earlier part of the discussion, companies do act as the parent companies for others, and in such a situation, the daughter or subsidiary company becomes an agent for the parent company, i.e., the principal. However, the agency theory as a part of the economic theories addresses the problems that arise due to the separation of the ownership and control within a corporation.

Primarily, the economic perspective perceives a corporation as a type of firm, i.e., an economic concept, which consists of a series of contracts, or transactions, between the shareholders. The agency theory elaborates it as a 'nexus of contracts'. Thus, the contract, in this situation, does not represent the legal idea of the terminology. Instead, it exhibits the adaptive and voluntary nature of the arrangements made between the shareholders of the company. Thus, it denies the existence of a firm as an independent legal entity.

Moreover, the agency theory of the economic perspective of a corporation insists that the sole purpose of existence of a firm is to maximize the profits on the investment. Therefore, they must be treated in the same regard as a sole trader. Also, it explains that within the large corporations, a separation exists between the investors and the management. The managers act as the agents of the investors. They are guided by self-interest. Thus, the business remains exposed to the risk that the managers will work on maximizing the profits in their interest rather than that of the company. Eventually, investors have to put in the monitoring cost to ensure that the managers operate the firm to maximize the profits rather than to support managerial self-interest. On the other hand, managers want to retain their position in the company, and therefore, incur bonding cost. Both of these costs are referred to as agency costs. Unsurprisingly, both sides try to lower their costs, which often leads to fraudulent and unfair conduct.

Eventually, courts acknowledge the fact that under certain circumstance, it becomes necessary to lift the corporate veil in order to deny the shareholders the protection they enjoy under the limited liability principle, and thus, to stop the unjust. However, In Walker v Wimborne (1976), the court expressed its concern to the fact that the directors must be responsible for safeguarding the interest of the creditors. But, this concern could never be transformed in the shape of a duty due on the ground that it was contrary to the independent personhood doctrine of a company under the limited liability principle. For this reason, the application of piercing the corporate veil remains an exception instead of a rule. Moreover, since there is no duty on the shoulders of the directors of a company to safeguard the interest of the creditors, there is no remedy available to the creditors against the company. Thus, the court must be willing to find the directors responsible so as to launching an action for recovering the debt. It is evident from the case law as well. For instance, in Ring v Sutton (1979), the court decided that the directors were responsible for not fulfilling their duties and disregarding the creditors’ interests because they caused the company to lending money at rates much lower than the market value.

It takes us back to the discussion that if there is any real benefit to such language whilst the courts remain reluctant to lift or pierce the corporate veil. The term 'piercing the veil' was first coined in a 1973 case. However, the phrase 'lifting the veil' was soon referred to as being out-dated in a 1987 case. The difference between the two phrases was later made clear in the judgment of a 1991 case, where the court stated that piercing the veil is an expression reserved to treat the prerogatives and answerabilities of a company as that of its shareholders while lifting the veil exhibits the expression of looking beyond it, i.e., with having regard to the shareholding in a company from a legal perspective. In Australia, however, the difference between the two phrases is still not much clear. Thus, the courts continue to use the terms interchangeably.

It is worth mentioning here that the courts refer to lift or to look past the veil when they proceed to look into the operating mechanism of a company. Moreover, the ultimate effect of piercing the veil is similar to looking beyond the veil therefore the phrase is used interchangeably with the other phrase, i.e., lifting the veil. The prime purpose of this distinction is to reinforce their independent meaning.

Interestingly, the case law does not make the application of the doctrine of corporate veil piercing any clearer. For this reason, it is often claimed that in Australia, there lacks the broad principle of company law indicating the situations under which the courts must or should lift the veil. It has also been noted in other commentaries that listing the cases in which the veil must be lifted remains impossibility. In a similar fashion, the phrase has also been described as an esoteric label in a 1966 case. The judgment elaborated that fact any principle in this regard could not adduced due to the fact that the authorities in which the veil had been lifted have not been of such consistency to support such principles. In the same vein, Professor Farrer described piercing the veil as unprincipled and incoherent.

Indeed, the courts in Australia have been taking a fact-based approach to the doctrine of piercing the veil, and so far, no particular trend has readily been adopted in this regard, as is clear from a brief overview of the cases. However, the commentators and researchers have been analyzing the situation from various angles. For instance, one commentator noted that the vigorously factual nature of the types of problems involved in the piercing cases do stand in the way of formulating a generally applicable test. Another commentator has also noted that the disinclination of the courts in describing a set of rules to take decisions in the piercing cases remains a hurdle. It has also been elaborated that the courts prefer to retain the discretion of judging each case on its merits to themselves.

Overall, it can be argued that the phrase 'piercing or lifting the veil' is nothing more than a figure of speech that does not alter the legal aspects of the facts. For this reason, it was decided in a 1949 case that the employees of a company owned by a government are not the employees of the government itself primarily due to the fact that the company is a distinct person from its shareholders, who are not responsible to creditors for the company's debts. Also, they do not own the company's properties. However, it is worth mentioning here that in piercing the veil, the courts do not violate the doctrine of independent legal personality of the companies. They only prevent injustice from happening.

Three instances of veil piercing occur. Firstly, when the courts pierce the veil in order to reach the directors so that the court can correctly attribute liability to the party responsible for wrongdoing. Secondly, where the company is closely taken as, where the shareholders need limited liability as an encouragement to invest in the company, and the reasons including the inability to freely transfer shares, the disinclination to diversify, and the need to monitor and its cost, are absent. Lastly, when the company commits a tort, the courts lift the veil. In all of these situations, a removal of the limited liability protection will encourage the introduction of other protection strategies such as insurance or adequate capitalization and more acceptable levels of risk-taking by the investors.

Under these conditions, it is suggestible that legislation recognizing the substantive grounds on which the veil must be lifted must be passed. The model of parent company’s liability facing piercing of corporate veil must include the duties of directors to act in good faith and with care and diligence. This approach must be codified and made a part of the present legislation in the form of an effective laundry list. However, the code must only identify the number of areas of likely breach, and what would amount to a breach must be left to the courts.

Bibliography

Atlas Maritime Co SA v Avalon Maritime Ltd (No 1) [1991] 4 All ER 769.

Brewarrana v Commissioner of Highways (1973) 4 SASR 476, 480 (Bray CJ).

Brudney, Victor, 1985. Corporate governance, agency costs, and the rhetoric of contract. Columbia Law Review, pp.1403-1444.

Frank H Easterbrook and Daniel R Fischel, ‘Limited Liability and the Corporation’ (1985) 52 University of Chicago Law Review 89, 89.

Gorton v Federal Commissioner of Taxation (1965) 113 CLR 604 (Barwick CJ, Taylor and Windeyer JJ).

H A J Ford, R P Austin and I M Ramsay, Ford’s Principles of Corporations Law, 9th ed, 1999, [4.400].

Hobart Bridge Company Ltd v Federal Commissioner of Taxation (1951) 82 CLR 372, 385. 

J Farrar, ‘Fraud, Fairness and Piercing the Corporate Veil’ (1990) 16 Canadian Business Law Journal 474, 478.H Gelb, ‘Piercing the Corporate Veil – The Undercapitalization Factor’ (1982) 59 Chicago Kent Law, Review 1, 2.

Jensen, Micheal C. and Meckling, William H., 1976. Theory of the firm: Managerial behavior, agency costs and ownership structure. Journal of financial economics, 3(4), pp.305-360.

Michael C Jensen and William H Meckling, ‘Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure’ (1976) 3 Journal of Financial Economics 305.

Nicholson v Permakraft (NZ) Ltd [1985] 1 NZLR 242, 250.

R Thompson, ‘Piercing the Corporate Veil: An Empirical Study’ (1991) 76 Cornell Law Review 1036.

Ring v Sutton (1979) 5 ACLR 546

Ripken, Susanna K. "Corporations are people too: a multi-dimensional approach to the corporate personhood puzzle." Fordham J. Corp. & Fin. L. 15 (2009): 97.

Spies v R (2000) 201 CLR 603, 636.

The Corporations Act 2001 (Cth)

The Corporations Act 2001 (Cth) Section 267

The Corporations Act 2001 (Cth) Section 292

The Corporations Act 2001 (Cth) Section 295

The Corporations Act 2001 (Cth) Section 588G

Walker v Hungerfords (1987) 44 SASR 532, 559 (Bollen J).

Walker v Wimborne (1976) 137 CLR 1

Court Paper

Mission of the organization

Jersey Views focuses on volunteerism in New Jersey to empower and motivate everyone to make a powerful change. The organization focuses on increasing the attitude of volunteers through their engagement that tends to create an efficient, impactful managing process for projects that identifies and resolve critical community needs. Jersey Cares strategically organize such events and programs that brings engagement of community through volunteer service in order to support low- or mid-income teenagers to help them develop skills which they can further use in college studies.

Clients of Organization

The main focus of the organization is promising to close the opportunity gap in Essex County. Jersey care helps to improve the specialized training of teenagers who reside around Newark and also help in reducing unemployment in youth. The organization use two key workforce improvement programs that help in achieving the mentioned purposes. These programs include Youth Workforce Development Fellowship and Summer Youth Employment Program. The programs are developed to help out teen of low-to-moderate income families. These programs focus on building a connection between young people and employment opportunities through professional training. The organization helps to provide fellowship programs to selected fellows through some of Newark’s biggest companies. The fellows selected by Jersey care, assists to drive social change by working as their ambassadors. They are trained to lead and supervise sustainable projects at different agencies. The young people trained by jersey care work on school supply drive, the jersey care coat drive, Animal shelter helpers, first night kit program.

Services of The Organizations

Every project has its own requirements and standards. The company’s Skills-Based Program is linked and associated with nonprofit organizations to detect and categorize their needs. They also work with Jersey Cares volunteers that help in corporate sector to evaluate the impact areas that can be best assisted by their expertise. However, Jersey care makes sure to incorporate all fields of life whether schools, city parks, domestic violence centers, community centers etc. with:

Conduct workshops on anti-bullying, nourishment, public health & STEM 

Hoop garden building

Painting of trails designed for fitness purposes

Providing First Night Kit or arranging a Birthday party for people in shelters

Creating chocolate bridges or dream pillowcases with students

Teaching people about financial literacy

Workshops on Structured Resume building

Seasonal campaigns on cleaning of beaches and storm fence installation

Setting up picnic tables and bed assemblies

Activities on building of greenhouses

While organizing every project Jersey care makes sure that they identify an ideal location that is compatible with volunteers during their spare time. The size and scope of project conducted based on the number of volunteers. They make sure to provide necessary on field management of the project. After the completion of the project Jersey care makes sure to conduct evaluation at the end and guide their volunteers for the future.

Leaders and Decision Makers

The administration of Jersey care includes some very strong and determined people who work day and night to provide young people the opportunities to shine brightly in their careers. Brian Dean who is the president and CEO of the company has spear headed led it from a single employee organization to a well-recognized organization of $2.4M. it has increased its volunteers up by almost 4 times. This achievement however wouldn’t have been possible without Director of operations Patrice Johnson and vice president Michelle Dee. Other major decision makers in the company include Joe Vaccaro, Evan Lewis, Kristen Coppola who deals with resource development, corporate relations, and external affairs respectively. Other people in position of leadership includes Brenda Teed who is director of health in the community and Hesham Jamil who is the program manager along with the list of many other talented and skillful individuals.

My Experience:

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Incarceration and Lasting, Collective Punishment.

For the common prisoner, confinement is a terrifying experience. When you go to jail, you want it above all to feel safe. That's why prisoners get weapons, that's why they join gangs to feel safe. Prisons serve a vital public safety function. They prevent predatory and dangerous criminals from committing crimes again when they are behind bars. Moreover, prisons, in an important symbolic way, serve an important function of strengthening our social norms by punishing those who break the law. We need prisons and the reality is that they will always be imperfect places. Even by reducing our dependence on them, we must continue in our efforts to improve them. For prisons to be more humanitarian, they must be safer. When confinement is an experience in brutality, a prisoner is less likely to succeed when he achieves his freedom. The chances of radicalization or return to a life of crime increase.

Despite the fact that the socio-political situation has changed, the number of prisoners in our country approaches the level of the “heyday”, when residents of crowded places of deprivation of liberty were forced to work for free or for a penny “for the benefit of a socialist society” (in Russia this practice has reached unprecedented scales). In the first years after the fall of the communist regime, too much was planted - most likely because of the growing unemployment it was necessary to put surplus labor somewhere. Instead of giving people the opportunity to learn, to help them learn another profession, they were left to their own devices - and this is a direct path to jail. Today the situation is different.

But maybe the growth of the prison population reflects the increase in crime? Not at all - crime not only did not overwhelm USA, but in recent years it has even declined. And this despite the fact that we have tightened legislation and is now considered a criminal offense (and rightly so), For example, drunk driving. In the year of such offenses, 120,000 are recorded.

The number of killings has significantly decreased. They could have been even smaller if we had not been so tolerant of domestic violence. The trouble here is in the absence of not a legal basis, but the determination of the authorities to consistently apply existing laws. And, of course, in the perception of their ideas that women and children "for the sake of preserving the family" should tolerate domestic tyrants. In total, the number of murders in USA over the past year was a little over 800. For comparison, about the same number of people drowned, four times more suicides were recorded and almost five times more people died in car accidents. The number of thefts has also decreased. Of course, this is a pitiful consolation for those who stole a car, broke into an apartment, pulled out a bag on the street or stole a wallet. But how can tightening laws help here?

Nothing. The law is not the network that attackers catch. No matter how much you guard him, they won’t be caught anymore. The criminal must be wanted and able to catch, but with this we are far from brilliant. Ho, even when they are catching, how many of the victims will be returned a wallet, bag, TV, car? How many will hear the words of apology from the criminal? How many of us will at least be informed that by law we have the right to mediation , that is, we have the right to personally ask the criminal: why did he choose me as his victim, why it happened to me, explain to him what evil he caused, how his act affected my life, attitude, belief in people.

Why is the only compensation that we are offered is a promise, in the case of (quite ghostly), if our offender is caught, put him in jail for many years. What good is this for us? Not only did the one who stole the wallet from us never returned the money, but now we, as good taxpayers, will have to pay for keeping him in prison. The government, instead of spending our money on the construction of roads and housing, medicine, creating new jobs, invests in prisons.

Collective punishment is understood as the one that applies to a group of people as a result of the behavior of one or more individuals in the group. This type of punishment is usually used when the adult who is in charge of the students does not know the authorship of a punitive event. Consciously and in order not to leave the culprit without punishment, he decides to include the rest of the innocent people in the punishment. 

The government explains this by saying that the situation with prisons is monstrous. They are so crowded that there is even a waiting list. However, this was not caused by the growth of crime, which even the authorities admit, but by the delay in the terms of temporary detention and the too frequent application of such a measure. In fact, is it necessary to keep under arrest for three months the one who stole 2,000 zlotys and immediately admitted this? There is no need to increase the number of places in prisons. There is a need to improve judicial procedures, which, by the way, is in no way connected with the tightening of legal norms. Prisons have the peculiarity that no matter how many they are, they are filled to capacity.

References

Beckett, K., & Sasson, T. (2003). The politics of injustice: Crime and punishment in America.

Sage Publications.

Clear, T. R. (2009). Imprisoning communities: How mass incarceration makes disadvantaged

neighborhoods worse. Oxford University Press.

Thomas, J. (2015). Confronting Mass Incarceration as Cultural Miseducation: A Symbolic

Interactionist Approach.

Western, B., & Pettit, B. (2010). Incarceration & social inequality. Daedalus, 139(3), 8-19.

AREA B TOPIC:

2) Harm, Needs, and Roles in Restorative Justice

Restorative justice recognizes that the crime committed entails not only the violation of the law by the criminal: there is also harm to the victims. As the name suggests, restorative justice suggests that a fair answer is one that corrects harm in addition to resolving the issue of the offense. As a rule, VP is associated with the following principles:

i) correction of harm caused by crime;

ii) the participation of stakeholders, such as the perpetrator, the victim, their families and the community; and

iii) the creation of positive change in the participation of people and communities.

Restorative justice focuses on re-socialization, acceptance of responsibility, rehabilitation and protection of the victim from re-victimization. This is the difference from punitive justice aimed at punishing offenders. It also pays special attention to out-of-court conflict resolution. Offenses are not considered as problems requiring judicial intervention, but as a conflict that can be resolved by the parties and their social environment. However, formal criminal justice systems may include the principles of restorative principles. All measures are aimed at restoring peace between the victim and the offender and in society as a whole.

Restorative justice, like the exclusion of criminal justice, can go at many stages of the trial. At the first contact, law enforcement agencies can allow extrajudicial mediation. The principles of EaP can continue to be manifested in the justice system up to detention, where former offenders are assisted with rehabilitation and development during and after imprisonment.

Mediation between the victim and the offender: qualified mediators organize negotiations between the victim and the offender to discuss the crime, its consequences and how to eliminate them. The following activity is often characterized as “restorative”, but it does not correspond strictly to the profile of restorative justice, since it can be carried out, and was carried out, in more punitive or destructive ways. Community service: violators perform unpaid community service to eliminate indirect harm caused by crime. Compensation funds for victims: the government or third parties provide victims with benefits in proportion to the harm they have suffered. Restorative justice is seen as a broad approach to solving problems that involves the victim, the perpetrator, their social networks, the judiciary and society in restoring the harm caused by the crime.

The period of the 70s of the XX centuries is significant in that the problem of restorative justice was raised in the world, the main task of which is to restore the social status of the individual, and not in punishment for what was done. It is aimed at contributing to the healing of both the individual and society itself. “Punitive” justice does not resolve the conflict between the victim and the perpetrator. Upon exiting the criminal justice system, the victim usually receives neither moral nor material satisfaction. For example, if a victim is crippled, her health will not be restored, and the victim does not receive material damage. A person who is condemned, especially to imprisonment, finds himself in harsh conditions. These are not conditions that would adapt him to life in a normal society, and society itself is not immune to repeated crimes. (Maruna,2016).

Restorative justice focuses on the victim of the crime and adheres to the principle of the maximum, as far as possible, compensation for the harm caused to the victim. Juvenile justice is characterized by “social saturation”. In different countries, this principle is implemented in various forms: probation services, social and psychological services, community education, etc. Restorative justice, entering the social arena as a new way to respond to crimes, establishes the relationship of cooperation not with a “pure” criminal process, but with criminal process already in the social and rehabilitation infrastructure. In the 60-70s of the last century, in connection with the growth of child crime in the world, they started talking about the crisis of juvenile justice. The initial model of juvenile justice was based on the idea that a crime committed by a teenager is a symptom of his social or mental distress; therefore, the child needs help. The classic juvenile justice model is rehabilitation instead of punishment. Despite the identical meanings of the word’s “rehabilitation” and “restoration”, we are talking about different models of juvenile justice - rehabilitation and restorative. Moreover, a recent study indicates that the experience of traumatic violence is highly correlated with subsequent arrest and incarceration.( Beckett, Kartman,2016).

The classical rehabilitation model was built outside the principle of responsibility. In international documents (in the Convention on the Rights of the Child, in the Beijing Rules), the well-being of the child is paramount. But the rise in child crime signaled that the model was ineffective. Restorative justice has brought about a fundamental turn in the “children's” justice, introducing the principle of responsibility, although not criminal. In fact, restorative justice, according to Gavrielides (2017) sets a new paradigm for juvenile justice, it “enters” juvenile justice with the already existing social and rehabilitation infrastructure, not abolishing it, but introducing new principles and goals: healing the victim, the offender’s obligation to make amends etc. There are various types of restorative justice programs depending on their structure and circle of participants.

A reconciliation program between the victim and the offender or face-to-face mediation is the most common, but not the only type. There are forms such as community and family conferences. The last two forms are distinguished by a wider range of participants and the fact that the decision is made as a result of an agreement between the families of the parties or the community, “circles of justice” are practiced that are based on the traditions of North American Indians, etc. Reconciliation programs for the victim and the offender, translated into the language of the criminal . “Another restorative justice rehearsal called Family Group Conferencing (FGC) was presented to the United States in the mid-1990s”( Beckett, Kartman,2016).

The process refers to reconciliation programs between the victim and the accused, where the minor is the defendant, and both children and adults are among the victims. Consider the line of folding restorative justice in the world, for example, in North America and Europe. (Gavrielides, 2017). Here, the area of ​​implementation of restorative justice is determined, first of all, by two points: the category of crimes and the subject of the offense. We are talking about mercenary crimes, for example, hooliganism, vandalism, that is, crimes for which redress seems to be the most reasonable and fair form of resolving a criminal situation. Punishment can be part of the restoration of justice, justice is aimed primarily at restoring justice, at eliminating the conflict of the individual and society by the efforts of the state.

The state cannot but intervene in this conflict precisely because society has authorized it to resolve conflicts. If you approach from these positions, the question arises whether punishment is always a restoration of justice. Punishment does not always reconcile the criminal with society and the victim with the criminal, which entails relapses, increased crime. To reconcile him with society, to explain what he did wrong, to awaken conscience is the goal of restorative justice.

The introduction of restorative justice in communities led to the formation of a request from community representatives, in particular from representatives of local authorities, to develop restorative practices not only in the field of criminal law, but also in family matters, in neighboring disputes, in decision-making processes at the local level, in schools, etc. Thus, today in Ukraine much attention is paid to the development of restorative practices in various spheres of life, which contributes to the formation of a more open, active and tolerant community as a whole.

There is a sufficient legislative framework for the development of restorative justice practices in the criminal justice system. A much more serious obstacle to the further development of the practice is the lack of political will in the Parliament and the highest echelons of power to help support social programs and the non-governmental sector, which to date has assumed responsibility for introducing restorative practices in USA. For example, the mechanism of social order has practically not been developed and does not work, as before, there is a painful dependence of all state structures on centralized decision-making mechanisms and the absence of clear guidelines for state policy in many important areas of work. In these rulings, the Supreme Court recommended that the courts cooperate with public organizations that develop reconciliation practices, provide them with relevant information, inform process participants about the activities of such organizations, and take mediation results into account when deciding. (Maruna, 2016).

But as we emphasized in social technology, it is necessary to distinguish between two different aspects: on the one hand, this is a modern type of social action that meets the conditions of mass production, the guidelines for management, quality and economy, standardization, training of specialists, and on the other, within the framework of humanistic values, this is specific social action working for a person and freedom, contributing to the constitution of the corresponding social nature. In this second aspect, a feature of restorative justice is public mediation and the restoration of justice.

References

Beckett KA, Kartman MA. (2016). Violence, Mass Incarceration and Restorative Justice:

Promising Possibilities.

Maruna, S. (2016). Desistance and restorative justice: it’s now or never. 289-301.

Gavrielides, T. (2017). Restorative justice: Ideals and realities. Routledge.

Crime Punishment And Justice In World Literature

Introduction of Hrafnkel’s Saga

Hrafnkel’s Saga is one of the oldest Icelandic family sagas dealing with a feud. The saga is particularly unusual in its directness and simplicity. It has a straightforward structure focusing directly on the feud and eliminating all issues extraneous to it. In this manner, it emphasizes its conclusion’s tragic inevitability. The saga is supposed to be written in the late thirteenth century due to the fact that it is based on eastern Iceland during the first half of the tenth century. However, some of the researchers also believe that the saga is more recent based on the ground that the earliest surviving manuscript of the text contains fragments dating back to fifteen hundred.

Understanding of Althing and Justice

The plot of the saga revolves around a lawsuit. For this reason, it is particularly important for the readers to understand the channel of justice service at the town. It primarily went through the Althing, i.e., the Icelandic General Assembly. In the tenth century, it used to meet once in a year for making laws and judging suits in an open-air legislature. Iceland has four administrative quarters; all of them had a court at the Althing. At least nine godi represented each quarter. They were both priests and chefs, and also responsible for appointing the judges for quarters. All men of standing used to put themselves under the godi’s protection. Also, these men of standing could only be sued for the court of their particular godi’s court. If under any situation, one of the men of standing wanted to sue the godi, he could only do it through another godi only if he would agree to do so, i.e., by accepting the man’s loyalty towards himself (Jones, 1999).

Hrafnkel’s saga revolves around the godi named Hrafnkel who had a rich farm called Adalbol. He also had a horse named Freyfaxi; it was his most priced possession. Hrafnkel loved his horse to the extent that he had sworn to kill any man who would ride Freyfaxi. Also, he had hired a shepherd for his farm named Einar. One day, despite all warning, Einar rode Freyfaxi for chasing some escaping sheep. Hrafnkel calmly killed Einar for being bound by his oath. However, he felt guilty on his killing. Therefore, he did not leave the dead body out in the open for the wild animals to eat. Instead, he buried it in the ground and raised a cairn of the grave. Einar’s father Thorbjorn, on coming known to the matter, asked for compensation. Hrafnkel refused the compensation and offered plenty of milk in the summer months and plenty of meat in the winter month that was then rejected by Thorbjorn. Additionally, Hrafnkel refused to meet Thorbjorn in the court for it would imply the situation that both were equals. However, in his character Hrafnkel remained a gentleman primarily due to the fact that he offered a decent compensation to Einar’s father. It also shows the elements of remorse and guilt in his personality (Pálsson, 1971).

Facing the situation, the concerned father Thorbjorn turned to his nephew named Sam, who happened to be a skilled lawyer. The situation was complex because Hrafnkel was their godi. Therefore, the two men decided to find another godi who would support their suit at the court and give them protection thereafter. It proved to be a difficult step for Thorbjorn and Sam due to the fact that Hrafnkel was a formidable foe and no one dared to stand against him. Eventually, the two became successful in convincing another godi named Thorgeir. He was a successful and powerful godi, who finally managed to get Hrafnkel convicted at Althing, the Icelandic General Assembly. He was sentenced to outlawry. Primarily, as pointed out earlier, Hrafnkel was a gentleman. His personality also showed the elements of remorse and guilt for killing Einar. Additionally, the kind of compensation he offered also showed the kind side of his personality as well as the fact that how much in deep sorrow he was for the unfortunate killing of Einar that he did not agree to give a one-time compensation but wanted to remain committed for the rest of his life. For these reasons, he was not given any harsh punishments (Kellogg, 2001).

Although Thorgeir advised Sam to kill Hrafnkel but he refused. Sam took all property of Hrafnkel while him along with his family was turned out of the town. Hrafnkel later brought his lift together and bought a farm on credit. He became wealthy again through hard work and persistent through that rundown farm. He also became godi again by obtaining the sworn loyalty of all the people living in that town. However, later in the saga, Hrafnkel killed Sam’s brother named Eyvin while he passed by the farm. Before Sam could gather the forces and attacked Hrafnkel for revenge, he ascended on the Althing with seventy men and captured Sam. He gave him the same choice that he was given. Sam moved back to his old farm. Sam could never get the support to avenge himself on Hrafnkel again.

The Theme of Justice in Hrafnkel’s Saga

Scholars have been interested in Hrafnkel’s Sage for its interesting theme. Firstly, there is the danger of pride. Faith plays a significant role across the narrative. Hrafnkel had power because he was intimately linked with his hold on faith. He performed endless rituals and was also able to erect a temple in the middle of the town in honor of his duty and piety due to his faith. However, he lost grip on his faith and became an atheist when he was humiliated. Also, his temple was destroyed and he was turned out of town. All of these details point towards the societal values of the Icelandic people in the early tenth century. They lived a ritualistic live led by faith.

The saga’s political implications are of great interest to the scholars. It gives rise to several questions such as if justice could only be achieved through the use of force and if the men of standing were above the law. Also, the element of revenge overshadows the concept of justice in the sage. The concept of revenge is conflated with that of justice but it is quite distinct. For instance, Thorbjorn went for justice to Althing for his son’s murder by Hrafnkel. However, his other acts explained later in the saga such as destruction of Hrafnkel’s temple point towards revenge instead of justice.

However, justice remains the major theme of the saga. Hrafnkel, despite his regret and guilt of killing Einar remained unable to provide justice to his father Thorbjorn. Moreover, Thorbjorn remained in find of a kind of justice that Hrafnkel was unable to provide, i.e., he refused to accept the compensation offered by him. Instead, he worked for taking over the property of Hrafnkel as blood money of his murdered son. Although in the end of the saga, Thorbjorn remained successful in getting that justice as Hrafnkel was striped of his power and glory, it was never enough for him. He destroyed Hrafnkel’s temple, and Sam took over his property as revenge.

This revenge plays a key role in main theme of the saga, i.e., justice. Firstly, Thorbjorn and Sam took revenge in the same of justice on Hrafnkel. They turned him out of the town, destroyed the temple that Hrafnkel built in honor of his piety and power, and Sam took over the farm of Hrafnkel. All of these acts were performed as revenge despite the fact that the Althing had convicted him of his charges. However, later when Hrafnkel was able to come back to the town with seventy men and take over the reign. He gave the same choice to Sam. He did not kill him. Rather he gave Sam the choice to move back to his farm and claim down his possession on farm named Adalbol that previously belonged to Hrafnkel. In this way, justice prevailed in the Iceland of the tenth century and Hrafnkel was able to re-establish his identity.

During the prevalence of justice in this saga, it is worth noticing that the element of innocence was given due importance in deciding the punishment for any person. Hrafnkel was proven to be innocent in his act for several reasons. For instance, he had to kill Einar due to his oath. Otherwise, his oath would have been broken. Also, he constantly showed the elements of remorse. He did not leave the dead body out in the open for the wild animals to eat. Instead, he buried it in the ground and raised a cairn of the grave. It showed that he wanted to give Einar a proper burial. Also, he offered a generous compensation to Einar’s father Thorbjorn, i.e., plenty of milk in the summer months and plenty of meat in the winter month. It showed that he was so remorseful on his grudging act that he wanted to remain committed to it for the rest of his life. All of these actions indicated that Hrafnkel was not only legally innocent but also morally expiated his sins.

References

Jones, G. (Ed.). (1999). Eirik the Red and other Icelandic sagas. Oxford University Press, USA.

Pálsson, H. (1971). Art and Ethics in Hrafnkel's saga. Munksgaard.

Kellogg, R. (2001). The Sagas of the Icelanders. Penguin UK.

Crimes That Have Been Committed By Alexander Pichushkin

Crimes that have been committed by Alexander Pichushkin

Students Name

Institution

Date

Introduction

The question, which everyone would ask, why would someone kill? The case of Pichushkin was one of the rare cases, which shocked Russia justice system and society. It was a rare confession in the history of serial killers never witnessed in Russia. Alexander Pichushkin prolific killer believed that life without killing is like living without food. Alexander a Russia born citizen was charged and sentence for killing forty-eight people. Pichushkin killed his victims with passion with an intention to reach the number of chessboards, which are sixty-four people. According to Minnis, Thompson, and Gillberg (2015), Pichushkin described his first killing as his first love and therefore, it indicated that he was so obsessed with killing people. However, during the trial, the prosecutor asked the judge to jail Pichushkin for life in prison due to the nature of damage caused by the action of the suspect. The paper also illustrates the relationship of criminal theories with the case of Alexander Pichushkin.

However, based on the testimony from Pichushkin it is evident that he was suffering from mental illness, which kept driving him to commit murder. The fact that he narrated that killing was like his love means that Pichushkin found peace in blood and through killing he could comfort himself. Therefore, this paper analyzes the case of Pichushkin killing. It illustrates what motivated Pichushkin to kill several people. It also discusses theories, which can be related to the case and what these theories informed by Pichushkin case. It includes providing a detailed summary of the case and what should be done to prevent such cases from happening in the future.

Modern Deterrence Theory

Modern Deterrence theory was discovered after the First World War. It is associated with wars and mostly conflict. As stated by Wright and Bolger (2015) deterrence theory points out that people decide to commit a certain crime or obey the law after calculating the repercussion of their actions. It is, therefore, means that some of the offenders may not know that they are committing an offense. However, there are several types of deterrence theories which are general and specific deterrence. The general deterrence helps in the prevention of crime from taking place in the public. And therefore, the state punishes offenders to act as an example to others to prevent such offense from occurring. Wright and Bolger (2015) pointed out that it is also meant to show the people the horror of committing an offense to make the rest of the population afraid of committing any offense. However, specific deterrence theory is meant to prevent the offender from committing a similar crime in the near future.

In the case of Pichushkin, action could have been influenced by his past treatment. It is noted that Alexandria Pichushkin hit his head was a kid accident when being carried by his mother. He spent his time at the disability center and therefore, he described the situation at the disability center as traumatizing CITATION Wri15 \l 1033 (Wright & Bolger, 2015). In modern deterrence theory, the action of an individual or a criminal is influenced by past experience or action. It is likely that because of trauma, which Pichushkin experienced during his stay at the disability center, he became obsessed with blood and only through killing he could get happiness.

Biological and biosocial theory

Biological and biosocial theory of criminology is mostly linked to an individual criminal act to his or family and the actions, in early life CITATION Ont15 \l 1033 (Ontario Child Community, 2015). The theory illustrates that there is a correlation between criminals and the biological aspect of an individual offender. It noted that the crimes have a unique physical appearance, which is distinct from the rest of people in society. It is, therefore, means that some people are born to be a criminal based on their physical appearance. With biosocial, the act of crime is caused by an imbalance of glucose in the system. This imbalance can be caused by accident, which results in bodily injury. Studies also indicate that criminal behaviors are related society condition, which includes poverty, employment rate and poor condition of the society CITATION Pau14 \l 1033 (Pauline & Adrian, 2014). This could be related to biosocial theory where imbalance glucose is noted to be one of the major causes of criminal acts.

It is important to point out that biological and biosocial theory of criminal explains that criminals are lured actions, which might have happened in their early lives. In the case of Alexander Pichushkin, his criminal act was influenced by what happened to him as a teenager. The head damage might have caused an imbalance of glucose in the brain system causing mental imbalance, which kept driving him to criminality. During the accident, the brain of Alexander Pichushkin lost glucose contents below the normal required level. This resulted in anti-social behavior as a result of depression, anxiety, insomnia, and temper tantrum CITATION Qua16 \l 1033 (Quackenbush & Frank, 2016). It is, therefore; likely that the accident caused the imbalance of glucose in the body of Pichushkin and this resulted in his behavior. It could be pointed that Alexandria Pichushkin was not born a criminal and he only turned to a criminal act because of the accident he sustained as a teenager, which can happen to any other person if not treated properly. It is also important to point that Pichushkin lost his grandfather who was so dear to him and left him a dog, which kept with him through his killings. It is likely that the death of his grandfather depressed him hence pushing to revenge through murdering other people. A study conducted by the University of Colorado states pointed out that loving someone could be hurting and without proper advice, it could lead to a criminal act CITATION Liu15 \l 1033 (Liu & Walke, 2015). It is possible that lonely Pichushkin could not take it anymore and because he was so depressed he turned himself into a killing machine.

Evolutionary theory

The evolutionary theory illustrates that some people were born criminals. It states that criminal behavior or characters are passed from one generation to another. According to Quackenbush, and Frank (2016), criminal acts could be genetically inherited. This means that if an individual comes from a criminal background it is automatic siblings would one day follow the act. It means that criminals are born from criminal families. It states that the action is either inheritance from the mother or the father and therefore, every criminal are born. It states that there is a link between criminal behavior and family traits. Baker (2017) pointed that twins are united on their criminal activities and therefore if a father or mother of twins are murderers the possibilities of the twins becoming killers as their parents are high and therefore, criminal behavior is one of the traits, which is genetically inherited.

Analysis of the history of Alexander Pichushkin indicates that his parents were not criminals and he spent most of his youthful time with his grandfather. It is impossible to associate his criminal behavior with his family. It is noted that his mother put him in a disability center because of the accident, which made him disable but the mother or the father was not criminal and therefore, the action of Pichushkin could be as a result of what happened to him. However, it could be possible that his great grandfather or any of his family had committed such criminal act, which is not properly illustrated. However, evolutionary theory is a major influence of behavior and in several cases, it has been established that it has influenced several criminal acts in society.

Conclusion

The action of Alexander Pichushkin surprised Russia and the world and therefore, it might be action or events which pushed him to become a serial killer. Based on the analysis of the theories of criminology, the theory which can be associated with the case of Alexander Pichushkin is the biological and biosocial theory. The biological and biosocial theory states that criminal action is influenced by experience, what happened in society to an individual and even physical or mental injury CITATION Min15 \l 1033 (Minnis, Thompson, & Gillberg, 2015). The theory is associated with Pichushkin case because it is evident that the action of Pichushkin was pure as a result of depression from the loss of his grandfather and the damage he sustained when he was a teenager. After Pichushkin lost his father he kept visiting the graveyard and the park where he used to stroll with his grandfather with good. This could have led to depression, which turned him into a serial killer. However, the biosocial theory is associated with an imbalance of glucose in the brain system, which makes an individual become anti-social hence depressed. It is possible that the head injury, which Pichushkin sustained when he was made him lose a lot of glucose, which resulted to low glucose concentration hence it might be one of the factors, which influenced the criminal behavior of Pichushkin. The biological and biosocial theory is more associated with the criminal nature of Alexander Pichushkin.

References

BIBLIOGRAPHY Baker, L. A. (2017). Biological theories (of violence). violence in America, 2-38.

Liu, J., & Walke, A. (2015). Biosocial bases of aggressive and violent behavior Implications for

nursing studies. International Journal of Nursing Studies, 229−241.

Minnis, H., Thompson, L., & Gillberg, C. (2015). Neurodevelopmental and Psychosocial Risk

Factors in Serial Killers and Mass Murderers. Aggression and Violent Behavior, 2-38.

Ontario Child Community. (2015). Review of the Roots of Youth Violence: Literature Reviews.

http://www.children.gov.on.ca/htdocs/English/professionals/oyap/roots/volume5/chapter01_biosocial_theory.aspx, 2-42.

Pauline, Y., & Adrian, R. (2014). Biosocial approaches to crime: Psychophysiology and brain

dysfunction In Raymond Paternoster and Ronet Bachman: Explaining Criminals and Crime. Los Angeles: Roxbury Publishing.

Quackenbush, S. L., & Frank, Z. (2016). Modern Deterrence Theory: Research Trends, Policy

Debates, and Methodological Controversies. Scholarly Research Review, 14-35.

Wright, J. P., & Bolger, M. (2015). Biosocial Approaches: Crime. International Encyclopedia of

the Social Behavioral Sciences, 2nd edition, 12-35.

Criminal Justice

Correctional population and institution in Florida

The Jail System

Florida is divided in 67 counties. One survey done in 2013, there are total 104 jail and adult detention services, with a inhabitant of 52,430 prisoners.(FDC,2018)

The Prison System

The data from the statistics of 2016, the prison population of Florida was 101,424. In Economic Year 2016-17, the Florida Department of Corrections functioned 149 amenities and hired approximately 22,000 individuals.(FDC,2018)

The Community Corrections System

The Department of Community Corrections in the Florida Department of Corrections presently manages more than 168,000 criminals concluded 130 trial offices. (Prisoners' Rights, 2018).

The Florida Department of Corrections (FDC) is the 3rd major state prison organization in the state with a yearly budget of $2.3 billion. FDC imprisons more than 100,000 prisoners in correctional amenities and administers closely 167,000 criminals as part of its community supervision programs. FDC is too the major of Florida's state activities, with more than 24,000 official full-time workers statewide(FDC,2018) These 102,000 prisoners have no radical voice, no say in how they are treated, and have nearly no clusters or administrations to supporter. The trivial staff of the Florida Justice Institute financial records for numerous of the attorneys in Florida whose chief determination contains advocacy for imprisoned persons and their relations. Florida correctional department help inmates to stay away from negative and unhappy thoughts. It will help to high the hope and good mood even if the future is dark. It also help prisoners to overcome anxiety and depression. (Prisoners' Rights, 2018). Find your inner strength and continue to believe that you can always rebuild your life after your release. A number of suicide cases have been reported in Florida jails, so it is important to stay strong.

References

ANNUALREPORT, FLORIDA DEPARTMENT OF CORRECTIONS: 2016-2017.

http://www.dc.state.fl.us/pub/annual/1617/FDC_AR2016-17.pdf

Florida Department of Corrections "Inspiring Success by Transforming One Life at a Time".

(2018). Retrieved from http://www.dc.state.fl.us/.

Prisoners' Rights. (2018). Retrieved from

https://www.floridajusticeinstitute.org/advocacy/prisoners-rights/.

Criminal Justice Among Feminists

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[Subject]

[Date]

Law and Justice among Feminists

Every human being is different from others and therefore has a different opinion regarding any issue. Diverse perspectives allow us to see the same thing with multiple angles. There can be various alterations for the feminist criminology. The reasons are evident for making these changes as women are treated poorly, and inequality is the source of making their lives worse. If the lawmaking body considers such issues and agrees to bring changes in criminal law for women, then there are chances for improvement (Burgess 30). The discriminatory treatment towards women by male-dominated society is inducing more aggression in women, which leads to other crimes. Women are not treated fairly in rehabilitation centers for which they need justice and equity. The author Frances in his paper, also discussed the issues faced by many women in criminal justice system. He further emphasized on the better treatment of females in the judiciary system (Heidensohn 289). Many adverse cases have been reported in the handling of female criminals in which they are ill-treated by male guards. Feminists have put forth their demands for upgrading female detention centers. Women suffer maltreatment by the hands of male sentinels. In many cases, females are abused by male security officers. Thus, it is necessary that female guards should administer jails, which bounds female law offenders.

Women who are habitual of breaking laws can be determined by analyzing their psychological condition based on their behavior. These women need to be treated strictly, but law prosecutors must focus the fine line between strictness and maltreatment. Among many conspicuous concerns, women held for accountability to the law demands justice in a reasonable amount of time; rather, prosecutors hold them up for years, which affects their children. Additionally, women are not shifted to the hospital so that they can be treated for their mental illness like male prisoners. Women who are expecting must be given health care regardless of the crime they have committed because that unborn soul should not be penalized for his mothers' transgression. Women are less problematic than male offenders, but still, females are treated in almost all possible worst manners just because of their gender. Women law violators as compared to men are less troublesome, so law enforcing agencies should act in a humble way (Smart 3). A clause for protecting certain rights of women within the boundaries of prison must be put in the law. Gender biases injustice must be eliminated to avoid a violation of basic human rights. Generally, criminals are considered as "different" from normal people, whereas they are the same as non-offenders are, but they are labeled as criminals, which creates disturbed and distorted mindset about their future. The labeling of criminal tags on offenders must be eliminated from the judiciary courts for the sake of offenders' mental health (Lind 1). The young female offenders are sentenced to severe punishments that do not justify their seriousness of the crime. Juveniles are sent to heavily guarded fort-like detention centers in which professional criminals are imprisoned; this leaves an everlasting negative effect on the minds of young ladies. The purpose of detention or rehabilitation centers is to make the individual a better person instead of exposing him in the society with the same deadly mindset.

In a nutshell, women are mistreated by the male members of society, and even in jails where they are supposed to overcome their unlawful mindset, they are being treated in an inhumane manner. They are deprived of their fundamental human rights, which is unethical and against the law in any circumstance. It is evident that nothing is above the law, but females must be treated humbly.

Works Cited

BIBLIOGRAPHY Burgess, Amanda. "Future Directions for Feminists Criminology." Sage (2006): 27-47.

Heidensohn, F. "Models of Juctice ." International Journal of the Sociology of Law (1986): 287-298.

Lind, Meda Chesney. "Women and Crime ." signs: Journal of Women in Culture and Society (1986): 1.

Smart, Carol. Women, Crime and Criminology. London: Routledge & Kegan Paul Lt, 1977.

Criminal Justice Assignment 8

Criminal Justice Assignment 8

Name of the Writer

Name of the University

Criminal Justice Assignment 8

What two elements must be present for “Miranda Warnings” to be required? Explain each element.

In the USA and in the other countries around the world Miranda Warnings are said out to the person at the time of arrest of an accused of a certain crime. These Miranda Warnings entails statements such that the accused has the right to be silent. Anything the accused says can be used against him in any court of law. The accused has the right of consultation with their lawyer and if the accused is unable to afford a lawyer, the state appoints a lawyer to represent the accused. These are Miranda Warnings that are a necessity that needs to be issued whenever a lawful arrest is made as it informs the accused of his rights.

But there are certain elements that need to be present in order for Miranda Warnings to be required. Specifically, there are two elements that need to be in play so that Miranda Warnings could be said out loud. The first element is that the questioning should be done by the police or the investigation is also done by them (Kelley, et al, 2018). So in a case where questioning or the interrogation is done by a security guard or an officer for loss prevention, they are not legally obliged to readout Miranda Warnings during their questioning. As they are not the police and not acting on the behalf of the state but on private interests.

The second most important element that requires the reading of the Miranda Warnings is that the accused needs to be in custody (Berk-Seligson, 2016). This means that the movement of the accused is restricted to the extent that the law allows for. An example would be the person is handcuffed, placed in a police car, taken to jail and then transferred to holding facility. This all is a representation of someone under arrest. In some cases, police start asking questions on the side of the road or stop a car for a DUI. During these times police will ask questions of incriminating nature and this all is done before any handcuffs are put on but in these situations, Miranda Warnings are not required as these are non-custodial.

Russell Williams Murder Confession

Do you think the Investigator coerced the suspect in any way?

The confession of Russell Williams was in no way signaled any form of coercion on the behalf of the investigator. The confession looked more closely to a counseling session of the psychotherapeutic nature. The investigation did not seem coercive in nature but rather was more similar to motivational interviewing. This thereby influenced change inside William without using coercive or aggressive methods (The Fifth Estate, 2014). Rather than target him directly the investigator worked on the giving Williams the respect he wanted during the whole interview. This, in turn, helped the interviewer in building a rapport between him and Russell Wiliams. This is not easy when someone comes face to face with a murderer.

Do you think the Investigator acted unfairly or unethically to the suspect?

It can be seen that the investigators were suffering from tunnel vision (The Fifth Estate, 2014). This can prove to be very problematic for investigators as it leads investigators to make claims that are inaccurate in nature. In past cases, tunnel vision has been one of the major factors that influenced wrongfully convicted cases in Canada. Examples of these are Guy Paul Morin and Thomas Sophnow. Tunnel vision is also detrimental because once it sets in the investigative teams focus is directed to premature observations which lead to arrests of suspects against whom they have very less evidence. Other potential avenues are also left explored leaving the investigation full of holes.

What in particular did you notice about the interrogation/confession

It was clearly visible from the way the interview was conducted that the investigator had to intention of ever coercing the accused or the suspect. Instead, he used his brilliant interrogative skill to focus more on motivational interviewing techniques. He furthermore focused on building a relationship of understanding between him and the suspect. He did this by giving the suspect the respect he wanted and was able to finally get a confession out of him (The Fifth Estate, 2014).

References

Berk-Seligson, S. (2016). Totality of circumstances and translating the Miranda warnings. Discursive Constructions of Consent in the Legal Process, 241-263.

Kelley, S., Zelle, H., Brogan, L., & Goldstein, N. E. (2018). Review of Research and Recent Case Law on Understanding and Appreciation of Miranda Warnings. In Advances in Psychology and Law (pp. 77-117). Springer, Cham.

The Fifth Estate. (2014). Russell Williams-The Confession [Video]. Retrieved from https://www.youtube.com/watch?v=lj7QRP37Wn0

Criminal Justice Codes Of Ethics

Criminal Justice Codes of Ethics

Christine Jones

[Name of the Institution]

Criminal Justice Code of Ethics

The role of parole and probation departments is to supervise and interrogate in the proceedings of those perpetrators whose final verdict for jail have not been finalized by the court yet (Paparozzi & DeMichele, 2008). These departments are also responsible to thoroughly analyze and supervise the cases of those convicts who got a bail-out from jail after the parole board or a warden reviews and consider whether the release from prison of the convict is feasible or not. These departments may be liable to operate on the directions conveyed to them by the court. However, regardless of these instructions, parole and probation departments still have some familiar roles to work on. These roles may include critical watch on criminals who are placed under strict supervision and investigate the history of the convicted individual before the court gives their final verdict for the criminal’s punishment.

Parole and probation agencies have to work according to a specific code of ethics. In , the USA, several associations and departments design a code of ethics for the respective agencies. Three of such firms are mentioned in the example below:

The law of ethics developed by the Missouri department of corrections

Probation, parole and correction association located in California

Probation, parole and pardons code designed by the State of Delaware

Missouri Department of Corrections provides a code of ethics that is discussed with a complete explanation in a handbook for employees. It gives an overview from the departmental perspective and describes the ethical standards and moral values the firm expects from its employees in a detailed and specific manner (Botnick, 2015).

California Parole, Probation & Correctional Association (CPPCA) is among America’s largest and oldest professional association for correction and supervision of parole and probation employees (Rafter et al., 2017). Unlike Missouri corrections, CPPCA is not a handbook, but instead, it is a professional association that lays down a complete code of ethics on its website. It is the state’s only correctional association which supervise the cases of infants and adults, both at municipal and state level. It also addresses the correctional employees of institution and field and all other common but professional citizens who are interested in learning more about corrections.

The State of Delaware lays down a complete framework featuring the duties and responsibilities that parole and probation officers are liable to exercise. This code also describes as to what the officers will get in the form of resources from their department. Delaware code also elaborates the assigned duties to the officers. Unlike Missouri and California, Delaware code is not stated in the form of association or department. This code of ethics is specified by the government of the State of Delaware.

Despite being a little different to each other, the common aspect among all the three code of ethics is that all codes primarily address the duties and responsibilities which the employees of parole and probation agencies should follow in the most ethical way possible. As I draft the new code of ethics, I would consider California's correction codes to be the most suitable to be part of my new system. This is because California’s correction codes are the oldest in the country and thus can be considered as the most reliable code of ethics for parole and probation departments. Therefore, I will adopt this code to increase professionalism in my agency. The older codes are the most trustworthy code of ethics which have been practiced by professional parole and probation managerial employees for a long time.

For Instance, if no code achieves my desired outcome; I would make a handbook like Missouri department. Moreover, I would write the code of ethics according to California style, but I would not make these code of ethics to be confined and limited to only one region of USA. I would make them get implemented all across America. To make employees work according to the new code of ethics, they will need training. The better training method in this regard will verbal lectures and appropriate assessment from employees. Trained employees will be essential to run the agency with enormous success in the long-run.

References

Botnick, C. (2015). Evidence-Based Practice and Sentencing in State Courts: A Critique of the Missouri System. Wash. UJL & Pol'y, 49, 159.

Paparozzi, M., & DeMichele, M. (2008). Probation and Parole: Overworked, Misunderstood, and Under‐Appreciated: But Why? The Howard Journal of Criminal Justice, 47(3), 275-296.

Rafter, N., Garrison, C., Blumstein, A., & Schwartz, M. D. (2017). Correspondence, ASC Fellows and Awards, 1992-1997.

Criminal Justice Codes Of Ethics

Criminal Justice Codes of Ethics

Christine Jones

[Name of the Institution]

Criminal Justice Code of Ethics

Organizational culture can be defined as the combination of different emotions, behavior, and values of the workforce that molds up the psychological and social atmosphere of the firm (O'Neill et al., 2016). It has a significant influence over personnel decisions as shown in the case as well. Here the organizational culture in the police department depicted negligence and carelessness where the employees involved in breaking the rules were set free and not punished. Consequently, it influenced the decision-making of higher officials in the police department to cover up the accident done by a deputy chief quickly. This consequence was expected in such an organizational culture where the bureaucracy is not respected.

Being an investigator, the sole option available to me in this regard is to make deputy chief a sign of lesson for everyone in the department. His punishment can be a step towards enforcement of the law within the department and make everyone realize that there is a price to pay if anyone commits a crime. The case of deputy chief would also open up several other cases that were closed on the pressure of influential officers who wanted to protect their uniformed brothers. This would not only bring the actual criminals under the radar of the law but would also enforce punishment for the supporters of those criminals.

However, this investigation would not be as easy as it seems to be. When an organizational culture has foundations of unethical acts and laxness, it is expected that the culprits would retaliate to such an investigation being carried out and that too with important methods of blackmailing and even planning a murder of the investigator. However, the inquiry should not stop as once the deputy chief is punished, it will prevail fear among other culprits as well of being evicted from the department.

While the deputy chief is expected to be found guilty along with his influential supporting personnel, I would morally and ethically make a consideration which is that it is a crime which should be punished and hated, not the criminal. The interrogation and punishment of deputy chief will be kept confidential and would not be disclosed to anyone. This would protect the deputy officer from facing a public outrage which would have an exaggeration as the international law ethically does not allow “tortured punishments” of criminals in any form (Scharf, 2017).

If influential officers and municipal authorities will back the deputy officer's crime, the renowned criminal justice organizations should engage themselves in such cases to ensure the rule of law. They should give punishment rulings not only for the major crimes but also for the minor crimes – the root cause leading towards the significant misconduct. Moreover, higher officials should be replaced with the most credible police officers who are known to have good morals and experience of working ethically. Accountability policies getting executed under honest and ethical leadership will ensure that the staff avoids to involve themselves in malpractices. This will happen because of the fear of being accountable to honest leaders who will make sure that no crime gets away from their sight unless it gets investigated properly with culprits getting deserved punishment.

The current corrupt culture has built up the blue walls of silence where nobody will bother to question the higher authority as to why they are not punishing the deputy officer. However, I will whistle-blow to break these blue walls of silence; knowing that I am being safeguarded by Whistleblower Protection Act that was brought into the limelight in 1989 (Peffer et al., 2015). Under this act, whistle-blowers are entitled to receive duly compensation and life security provided by government authorities if they suffer redundancy or life threats. This encourages more and more people to expose malpractices within their organizations, knowing that the state is behind them to enforce the rule of law.

References

O'Neill, J. W., Beauvais, L. L., & Scholl, R. W. (2016). The use of organizational culture and structure to guide strategic behavior: An information processing perspective. Journal of Behavioral and Applied Management, 2(2), 816.

Peffer, S. L., Bocheko, A., Del Valle, R. E., Osmani, A., Peyton, S., & Roman, E. (2015). Whistle where you work? The ineffectiveness of the Federal Whistleblower Protection Act of 1989 and the promise of the Whistleblower Protection Enhancement Act of 2012. Review of Public Personnel Administration, 35(1), 70-81.

Scharf, M. P. (2017). The amnesty exception to the jurisdiction of the International Criminal Court. In The International Criminal Court (pp. 437-457). Routledge.

Criminal Law Essay

Title of Assignment

Student’s name

Professor’s name

Subject code

University

Table of Contents

TOC \o "1-3" Introduction PAGEREF _Toc21217028 \h 3

The Element of Mens Rea PAGEREF _Toc21217029 \h 3

The Element of Unlawfulness PAGEREF _Toc21217030 \h 4

The Case of Emmanuel Sibusiso PAGEREF _Toc21217031 \h 5

Conclusion PAGEREF _Toc21217032 \h 5

Bibliography PAGEREF _Toc21217033 \h 7

Introduction

This assignment discusses the elements of mens rea and unlawfulness with regard to the case of Emmanuel Sibusiso, who accidently shot and killed his 11-years old son under the mistake of an attacker. For the purpose of simplicity, the assignment has been divided into four sections. The first section discusses the element of mens rea whereas the second section discusses the element of unlawfulness. The third section relates these two elements to the case of Emmanuel Sibusiso, and the last section concludes the discussion.

The Element of Mens Rea

Rethinking criminal intent is of considerable importance in a case of murder. Thereby, as Bishop puts it, any person who has committed a crime whether large or small is not thought to have committed it if there is no evil mind (Criminal Law, 1930). For this reason, it is a legal principle of the criminal justice system that the wrongful intent is the essence of an offense, and without which it cannot exist (Criminal Law, 1930). Such examination of mens rea remains a requisite for any crime signifies that the mental element is necessary for conviction of a crime (Mens Rea 1). However, the only exception in this regard consists of the crimes being committed based upon negligence (Mens Rea 1).

In the early law, the clearest examples of criminal liability being imposed on people without having the criminal intent are found in the cases of killings in self-defense and through misadventure (Mens Rea 2). Sayre writes that except for the killings carried out under the orders of the king, in the early law, the killers were held liable for all killings whether intentional or accidental (Mens Rea 2). However, during the canon laws, the current conception of mens rea was existent to some extent (Pollock & Maitland, 1968). The mental intent was considered the eligible criterion of the guilt, and thus, the killing in self-defense or an unwitting killing could be pardoned by the sovereign (Pollock & Maitland, 1968).

Today, the law states that for the purpose of legally prosecuting a person for any criminal activity, the presence of a criminal intent is a must. A number of terms such as willful action, conscious will, an evil mind, a guilty mind, and moral blameworthiness among others are being interchangeably used for describing the conceptions of mens rea (Kelly, 2016). Overall, for a government to prosecute, convict and punish a person, it must be proved that a person has physically committed a crime, i.e., actus reus, and that act has been done with the criminal intent, i.e., mens rea (Kelly, 2016). Thereby, the American jurisprudence holds mens rea as a fundamental element.

In the recent case of 2015 titled Elonis vs. United States, the Supreme Court of the country made it clear that the criminal intention is what differentiates a wrongful act from an otherwise innocent act. It is the prerequisite to determine the person that must be held responsible for a wrongdoing (Elonis vs. United States). A similar decision has also been given in the other cases as well. For instance, in Morissette vs. United States, the Supreme Court provided a rule of construction. It reflects the basic principle that any wrongdoing of a person must be criminal by intent. It also posits that the defendant must have a blameworthy in mind for him to be found guilty of a crime.

The general rule of prosecuting a person for a wrongdoing is that a guilty mind is a prerequisite in indictment of any crime and its proof. The same has been applied in the 1922 case of United States vs. Balint. For this reason, the criminal statutes are inclusive of broadly applicable scienter requirements. In the case of Staples vs. United States, it has been put forward that mens rea does not mean that the defendant must know that the act he has done or being doing is of criminal nature but also have the knowledge of the facts that fit his actions in to the definition of the offense. Moreover, in some of the cases, the general requirement of actus reus is enough but when it remains insufficient to save an innocent person from a criminal liability, the statute would require the specific intent (Carter vs. United States).

The Element of Unlawfulness

The element of unlawfulness is a prerequisite for both statutory and common law offences (Snyman, 2008). Under it, the question that if an act of omission is unlawful is discussed. As was provided in the decision of Minister van Polisie v Ewels, unlawfulness explains that the act remains unlawful because one did not act as was required in a legal duty. Moreover, the element of unlawfulness is excluded when the action of a person is justified for one reason or another, i.e., what he or she has done was the right thing to do (Fletcher, 2000). It must be decided considering all the relevant points (S vs. Trainor).

Possibly the most appropriate and well-known justification in this regard is self-defense. According to the law, the conduct of a person is justified, and thus lawful, in self-defense when it has been acted out in an unlawful commenced attack on an interest that is legally protected. Under such circumstances, the victim is allowed to use reasonable and necessary force against the attacker (R vs. Zikalala).

In addition to the justification of self-defense, other justifications include consent, necessity, and de minimis. Moreover, the list of such justifications remains open so that new justifications can be added with time (Snyman, 2008). The ultimate test of justifications of the element of unlawfulness is the community’s legal convictions (S vs. Gaba). The roots of which are provided in the Constitution (Carmichele vs. Minister of Safety and Security). However, it is a practice of balancing between values and interests (Burchell, 2006). Moreover, the forms of the defenses remain variable in the light of the community’s legal convictions (Burchell, 2006).

Moreover, the element of unlawfulness is ultimately determined through the yardsticks of reasonableness and the reasonable person (Carmichele vs. Minister of Safety and Security). In deciding the cases, the courts often ask that what a reasonable person would have done in such particular circumstances. Although such a practice is dangerous, it serves a factual and normative function (Van Der Walt & Midgley, 2005). In this regard, the court asks following questions: (i) what would have a reasonable person done? and (ii) if the accused did what a reasonable person would have done.

More importantly, such normative judgments remain open to re-evaluations. In the recent case of 2005 titled S vs. Engelbrecht, reveals a re-evaluation of the question. A close understanding of the judgment further reveals that Satchwell J. dramatically developed the law on recognizing the fact that one can respond against an inevitable attack rather than what the law has prescribed in previously that a person may only respond to a commenced or imminent attack (Grant, 2007). For this reason, the element of unlawfulness is open to development under the light of the community’s legal convictions, which requires a normative judgment made in a manner that suggests that if the person did what was right.

Additionally, it is also pertaining here that the element of unlawfulness remains an ever-present and pervasive requirement of all criminal liability. Thereby, it is required for all criminal acts, and when it is not expressed in clear words, it is considered to be the silent requirement and simply read-in (Snyman, 2002). The work done by the element of unlawful is impressive. Also, the work it does in combination with the elements of negligence or intention is amazing too. For this reason, the answer to the question that when an accused must be resorted to the defense lies in the mere facts of each case.

The Case of Emmanuel Sibusiso

Firstly, in the case of Emmanuel, he shot on his son without knowing that it was him primarily because he was sleeping in the vehicle when the son knocked at the door. Emmanuel thought of him as an attacker and shot to save his vehicle from being stolen. He did not recognize his mistake until later when the son told him his identity. As per the facts of this particular case, it can be concluded that Emmanuel clearly lacked a criminal intention, i.e., mens rea, in his action despite having complete actus reus.

As discussed in the previous sections, any person who has committed a crime whether large or small is not thought to have committed it if there is no evil mind. It has also been pointed out in the earlier discussion that for a government to prosecute, convict and punish a person, it must be proved that the act has been done with the criminal intent. Such criminal intention is what differentiates a wrongful act from an otherwise innocent act. It is the prerequisite to determine the person that must be held responsible for a wrongdoing. Thereby, Emmanuel lacks criminal intent in killing his son, and thus, must not be prosecuted for the murder of his son.

Secondly, in Emmanuel’s case, he clearly lacks the element of unlawfulness. As per the facts of this particular case, the defendant killed his son without knowing that it was him. He shot on him because he thought that he has been attacked. It is clear from the case laws that a person can respond to an inevitable attack. This can be concluded on the grounds of the tests discussed in the discussions in the previous sections.

As pointed out in the previous discussion, unlawfulness explains that the act remains unlawful because one did not act as was required in a legal duty. The conduct of a person is justified, and thus lawful, when it has been acted out in an unlawful commenced attack on an interest that is legally protected. Moreover, the element of unlawfulness is ultimately determined through the yardsticks of reasonableness and the reasonable person. The court must ask that (i) what would have a reasonable person done? and (ii) if the accused did what a reasonable person would have done. Emmanuel did what a reasonable person would have done under such circumstances, i.e., he was allowed to use reasonable and necessary force against the attacker.

Conclusion

Emmanuel was justified in his action of killing his son because firstly he lacks a criminal intention of doing so, and secondly, he passes the test of reasonableness pertaining to the element of unlawfulness. Thereby, in his defense, Emmanuel can argue that although he performed actus reus, he primarily lacked mens rea in this regard. Wrongful intent is the essence of an offense, and without which a crime cannot exist. He can further argue that one can respond against an inevitable attack rather than what the law has prescribed in previously that a person may only respond to a commenced or imminent attack.

Bibliography

Articles

Pollock, F. and Maitland, F.W., 1968. The history of English law before the time of Edward I (Vol. 2). CUP Archive.

Books

Snyman, C., Criminal Law 5th ed. (2008) 95.

Fletcher, G., Rethinking Criminal Law (2000) 759.

Burchell, J., Principles of Criminal Law 3 revised ed. (2006) 227.

Snyman, C., Criminal Law 4 ed. (2002) 95.

Van Der Walt, J., and Midgley, J., Principles of Delict (2005) 71.

Grant, J., The Double Life of Unlawfulness: Fact and Law (2007) 20.

Blogs

Kelly, W., 2016. Rethinking Criminal Intent: Why ‘Mens Rea’ Matters? The Crime Report. Retrieved from: https://thecrimereport.org/2016/01/21/2016-01-redefining-criminal-intent-the-bigger-picture-of-men/

Case Laws

Elonis v. United States, 575 U.S. 2015.

Morissette v. United States, 342 U. S. 246, 250. 1968.

United States v. Balint, 258 U. S. 250, 251. 1922.

Staples v. United States, 511 U. S. 600, 608, 1994.

Carter v. United States, 530 U. S. 255, 269. 2005.

Minister van Polisie v. Ewels 590 S.A. 1975.

S v. Trainor, SACR 35. 2003.

R v. Zikalala 568 (A) 572 S.A. 1953.

S v. Gaba S.A. 745, 751. 1981.

Carmichele v. Minister of Safety and Security (Centre for Applied Legal Studies intervening) (4) S.A. 938 (CC) para 43. 2001.

S v. Engelbrecht (2) SACR 41 (WLD). 2005.

Laws

Criminal Law, 9th Edition (1930) 287.

Law Reviews

Mens Rea (1), Harvard Law Review, 45:976.

Mens Rea (2), Harvard Law Review, 45:979.

Criminal Law Post

Post 1

Regularly the individual accused does not debate that they carried out the illicit act being referred to, yet they do question carrying out a wrongdoing. Most wrongdoings comprise of two unmistakable elements, actus reus and mens rea.

The legitimate decree is :actus non facit reus nis ens sit rea" which means "the act won't make an individual guilty except if the brain is additionally guilty" (Thomas, 1997).This isn't valid for exacting risk violations that require no plan. Sleepwalkers do nothave the required guilty mind# yet neither have they submitted a guilty act, since they are not responsible for their actions.The key legitimate issue is whether the individual merits a plain exoneration or the extraordinary decision that is, being found not guilty by reason of insanity.If sleepwalking is viewed as rational automatism, at that point the decision will be not guilty. In the event that sleepwalking is viewed as crazy automatism, at that point the decision isn't guilty by reason of madness (Samuels et al. 2007).

According to this the accused cannot be convicted or a deliberate murder. However, she may have to go for psychological treatment as a high-risk patient.

Post 2 and 3

Normal automatism is a guard of disavowal of-confirmation. for somebody to be considered criminally in charge of their actions, they should be responsible for those actions. On the off chance that that individual is a robot, at that point they are most certainly not. Rational automatism is carefully a disavowal of the actus reus' instead of a forswearing of mens rea as some scientific rest specialists have expressed. In this manner, it is for the arraignment to demonstrate past sensible uncertainty that the personwas responsible for their actions. anyway it is much of the time the case that sleepwalking isused to deny mens rea (Hamilton, 2011). This is the protection of obviousness, a comparable refusal of-confirmation safeguard, which is simpler to demonstrate and accordingly favored when the wrongdoing isn't severe risk. When the resistance of rational automatism is raised, the weight is on the arraignment to refute automatism, however the guard must give adequate proof to the barrier to be put to the jury the evidentiry trouble. Crazy automatism is extremely the craziness guard, and in this way in English law is administered by the MaNahaten Rules.

This requires either the accused not know directly from wrong or is unfit to comprehend the misleading quality of his actions ordinarily because of some hallucination (Teacher, 2009). The law presumes mental soundness, so the weight is on the barrier to demonstrate on the parity of probabilities that the accused is crazy. This requires expert mental proof.

References

Thomas, T. N. (1997). Sleepwalking disorder and mens rea: a review and case report. Journal of Forensic Science, 42(1), 17-24.

Samuels, A., O'driscoll, C., & Allnutt, S. (2007). When killing isn't murder: psychiatric and psychological defences to murder when the insanity defence is not applicable. Australasian Psychiatry, 15(6), 474-479.

Hamilton, M. (2011). Reinvigorating actus reus: the case for involuntary actions by veterans with post-traumatic stress disorder. Berkeley J. Crim. L., 16, 340.

Teacher, B. E. (2009). Sleepwalking Used as a Defense in Criminal Cases and the Evolution of the Ambien Defense. Duq. Crim. LJ, 1, 127.

Criminalistic - The Study Of Solving Crime With The Use Of DNA

Criminalistic - The Study of Solving Crime with the use of DNA

Marshall M. Crrumpton

[Institutional Affiliation(s)]

Author Note

Criminalistics - The Study of Solving Crime with the use of DNA

Since its discovery, DNA or Deoxyribonucleic Acid has found a number of applications in medicine. Owing to its uniqueness, it has been increasingly used in criminal investigation and forensics since the last few decades. In medicine, it is primarily used to determine paternity whereas in criminal justice, it serves as a useful tool to identify suspects in investigations. Although, DNA identification is not foolproof, yet its benefits in the exclusion or identification of perpetrators, especially in unsolved cases, is undeniable. In the paper, the application of DNA to criminalistics will be explored further to observe how it transformed the way evidence is pursued.

Today, DNA technology is used in convicting perpetrators in a wide variety of cases, which can range anywhere from burglary to homicide and rape. Moreover, it has proven useful in obtaining a number of post-conviction exonerations. Statistics from the National Registry of Exonerations (NRE) reveal that nearly 139 exonerations were obtained in 2017 alone through DNA analysis which totals to 2, 161 exonerations obtained between 1989 and 2017 in the U.S CITATION Inn18 \l 1033 (Innocence Staff, 2018). The statistics clearly point to the benefits DNA technology has brought, something not possible before the technology was introduced. Earlier forensic methods such as hair comparison, serology, and blood grouping lacked the discriminatory power and statistical accuracy that was needed to yield useful leads, in conjunction with traditional investigative techniques. Consequently, it led to a number of pending unsolved cases commonly known as ‘cold cases’.

DNA testing bases its findings on a comparison of two sets of DNA sequences. Forensic experts obtain DNA samples from the crime scene and compare it with samples obtained from suspects. Testing techniques vary based on available resources and sample type but usually involve isolating a small strand of the sequence. The fragments are then sorted by means of gel electrophoresis based on their respective sizes. A blot of the gel is then taken and released onto another sample which can bind itself to the sample's sequence if the sequence in the blot matches with it. Some of the common techniques include Polymerase Chain Reaction (PCR), Restriction Fragment Length Polymorphism (RFLP), Amplified Fragment Length Polymorphism (AmpFLP), and Short Tandem Repeats (STR) CITATION Vic98 \l 1033 (Weedn, Rogers, and Henry).

The first case of DNA analysis used in criminal investigations was the one performed by Professor Alec Jefferys in 1986. Two murder and rape cases were resolved by means of DNA fingerprinting techniques after Jeffreys was approached by the local police service to aid them with investigating the murder of two girls. Jefferys obtained samples from the girls and matched them to the samples obtained from the suspects, finding them to be identical and thus identifying the culprit based on the match CITATION RJP15 \l 1033 (Parker & Vronsky, 2015). Moreover, the analysis also acquitted a mentally challenged individual who had confessed to the murder. The DNA profile of the individual did not match with that of the culprit identified earlier. It took the local police obtaining close to 5000 samples living within the community to trace out the suspect eventually finding a match with the profile created by Jeffreys in the murder cases. The DNA match provided further credibility to the investigations against Colin Pitchfork, the perpetrator, and helped exonerate the innocent individual initially thought to be the suspect CITATION RJP15 \l 1033 (Parker & Vronsky, 2015).

Although the analysis provided by Professor Jeffrey's was reproducible as well as accurate, it still required a large number of high-quality samples that are not always possible for investigators to recover from a suspect or crime scene. However, with later advancements and breakthroughs, newer techniques for DNA analysis were developed that included fingerprinting, profiling, typing, identity testing, and genotyping to make use of some of the rare features or characteristics of the individual’s genetic makeup. Since each individual has a unique physical appearance based on their characteristic phenotypes and unique genetic composition. An exception occurs in the case of identical twins that hold phenotypes that are hardly dissimilar. Whether the DNA is extracted from white blood cells, hair bulbs or semen, the DNA sequence remains identical CITATION Kar08 \l 1033 (Norrgard, 2008). This uniqueness throughout the body’s tissues and organs provides the basis for DNA profiling, and thus whatever trace of the perpetrator is recovered by investigators can be used for DNA analysis. Thus DNA based criminalistics serve as a highly useful investigative tool.

The unique properties of DNA testing help investigators resolve difficult cases that would otherwise be very difficult to resolve through traditional investigative techniques. In cases, where there are no forthcoming witnesses, DNA testing can significantly reduce wrongful arrests. It explains why today DNA testing is used to solve cases ranging from sexual assaults, homicide, gang crimes, forced entry, and murders. According to the U.S. National Institute of Justice, DNA evidence was particularly found to be highly reliable in nearly 55% of the cases wherein direct biological evidence was used to create the suspects' DNA profiles. Incorporating profiles into the database, led investigators to find a lead for nearly 41% of the cases CITATION Pet10 \l 1033 (Peterson, Sommers, Baskin, & Johnson, 2010). Furthermore, the success rates of DNA testing in criminal investigations is more than twice of traditional forensic and investigative methods, with the prosecution and arrest rates nearly twice than that obtained from traditional investigations. For prosecutors and law enforcement, DNA technology has proven to be a double-edged sword that has helped them put thousands of identified killers and rapists behind prison, but which has also revealed serious and significant flaws in traditional forensic methods and investigative approaches, such as hair follicle identification and bite-marks. In addition, it also exposed corruption and weaknesses in the way crimes were traditionally investigated by law enforcement and sentenced by jurors.

It is no surprise that the demand for DNA testing in criminal investigations has significantly gone up as awareness regarding its usefulness and potential in resolving cases has grown. The increased demand for DNA samples today is based on two key reasons; the increased need for DNA evidence to resolve criminal cases and enhanced efforts to create DNA profiles of arrested persons and convicted felons. This explains why backlogs are increasing in laboratories offering DNA services since their ability to accurately process samples does not match the rising demand for these services, while their overall capacity also does not expand in proportion with the overall demand. Furthermore, with more innovative techniques emerging that help predict specific characteristics of the suspect, such as their hair color, the demand for DNA services will only continue to increase since any trace of the suspect’s sperm, blood or saliva can be used to identify specific characteristics and features of perpetrators that remain at large CITATION Jam11 \l 1033 (Girard, 2011).

An example of how DNA evidence helped resolve a cold case is that of Linda Strait. Linda was a 15-year old girl who was abducted on 26th September 1982, near her home as she walked towards a grocery store in Spokane, Wash. Linda was killed the next day and her body was found floating in the Spokane River. Investigations revealed that the teenager was strangled after being raped. However, nearly two decades passed with the investigators unable to resolve the case. As the conviction became difficult to prove, the case was left in cold despite narrowing down a suspect. In 1982, they lacked the technology that could use DNA evidence obtained from the suspect to unequivocally prove that he had perpetrated the crime. Arbie Dean Williams was the prime suspect of the case who was imprisoned after having been found guilty for attempted murder, kidnapping, and sexual assault of two other 8-year old girls. These crimes were perpetrated only a few months earlier than Linda Strait's murder. Yet despite suspicion, there was no way to prove that Williams was responsible in this case as well. In April 2003, as DNA technology advanced, Linda Strait's case was again re-opened to try to find leads. Williams DNA sample was obtained to match them with the samples obtained from Linda's body. Initially, there were not enough genetic markers yielded from the analysis to lead to a conviction. A year later, the case was referred by Spokane County's Sheriff to the NCMEC Cold Case Review Unit which who hired Bode Technology group, a company that specialized in DNA criminalistics. Analysis by Bode yielded a successful match between the mitochondrial DNA profile obtained from William’s blood sample to that of Linda. Although Williams was 61 years old by then, he was formally charged in 2004 for sexual assault and murder of Linda Strait, 22 years later by means of DNA testing CITATION Gov04 \l 1033 (Govtech, 2004).

To conclude, the application of DNA to criminalistics changed the way evidence for crime is pursued. There have been significant advances in DNA testing which now serves as a powerful criminal justice tool. Owing to its efficacy in tracing and identifying criminals, especially in crimes where biological evidence is recovered, and ability to exonerate and clear suspects mistakenly implicated, there has been an incredible rise in demand for service. Today, the technology is seen as vital in ensuring fairness and accuracy within the criminal justice system, and although it is not foolproof, yet continued advanced in methodologies are yielding even more accurate results that are leading to further exonerations and resolution of cold cases.

References

BIBLIOGRAPHY Girard, James E. "Biological Fluids: Blood, Semen, Saliva, and an Introduction to DNA." Criminalistics: Forensic Science, Crime and Terrorism. Sudbury, MA: Jones & Barlett Learning, 2011. 329-357.

Govtech. DNA Profiling Helps Solve 22-year-old Murder Case. 4 October 2004. 4 April 2019. <https://www.govtech.com/public-safety/DNA-Profiling-Helps-Solve-22-year-old-Murder.html>.

Innocence Staff. Report: Exonerations in 2017. 14 March 2018. 4 April 2019. <https://www.innocenceproject.org/report-exonerations-in-2017/>.

Norrgard, Karen. "Forensics, DNA Fingerprinting, and CODIS." Nature Education 1.1 (2008): 35-36.

Parker, R J, and Peter Vronsky. "Alec Jefferys." Forensic analysis and DNA in criminal investigations: including cold cases solved. Paradise, Newfoundland: RJ Parker Publishing, 2015.

Peterson, Joseph, et al. "The Role and Impact of Forensic Evidence in the Criminal Justice Process." Final Report. 2010.

Weedn, Victor Walter, G. Sue Rogers, and Berch E. Henry. "DNA Testing in the Forensic." Laboratory Medicine 29.8 (1998). <https://watermark.silverchair.com/labmed29-0484.pdf?token=AQECAHi208BE49Ooan9kkhW_Ercy7Dm3ZL_9Cf3qfKAc485ysgAAAkswggJHBgkqhkiG9w0BBwagggI4MIICNAIBADCCAi0GCSqGSIb3DQEHATAeBglghkgBZQMEAS4wEQQMExV2roE1ngSyThR7AgEQgIIB_hw18bWrGqcTzQdLfPffUSFMs6JQ6IkUeUa7LDmGM>.

Criminalizing And Punishing Psychopaths

[Writer’s Name]

[Instructor’s Name]

[Subject]

[Date]

Criminalizing and Punishing Psychopaths

A psychopath is the individual suffering from a chronic mental illness accompanied by violent behavior. The role of a neural system that assists in social decision-making has been explored from various perspectives. Several pieces of evidence suggest that the decision-making components solely rely upon the coordination of various neurocognitive systems. The neurocognitive system supports multiple processes such as perspective-taking and stimulus valuation (Yoder). Thus, it is undeniably true that emotions and moral behavior are interlinked with each other. The research conducted in the field of psychology reveals that psychopath has the ability to distinguish between right and wrong yet they are emotionally unstable and therefore lacks the emotional feeling of what is right and wrong.

In the context of criminal justice punishing a psychopath has always been the topic of debate. Punishing and not punishing a psychopath has become an ethical dilemma upon which everyone has a different perspective. However, most of the people agree upon the idea that a psychopath should not be punished like a normal adult who did the same crime as a psychopath does. The reason behind this perception is that psychopath is mentally ill due to which they should be treated according to the criminal law that is defined for the normal people. The brain imaging research also highlighted that in psychopaths there is a reduction in structure and function in the emotional-related brain area as compared to the normal adult so punishing them for a crime is not right (Yoder)However, a criminal act cannot be ignored and therefore, there must be an alternate form of punishment. They should be held captive in a mental care facility where they can be treated. Additionally, psychopaths should be subjected to various forms of social control as they do have the ability to harm others (Glenn). This will facilitate in ensuring that the other members of the society are safe and protected.

Works Cited

Glenn, Andrea L., Adrian Raine, and William S. Laufer. "Is it wrong to criminalize and punish psychopaths?." Emotion Review 3.3 (2011): 302-304.

Yoder, Keith J., and Jean Decety. "The neuroscience of morality and social decision-making." Psychology, Crime & Law 24.3 (2018): 279-295.

Critically Evaluate The Role Of Article 7 TEU In EU Enforcement Of Its Values Against Recalcitrant Member States, Including Discussion Of Recent Developments

Critically Evaluate the Role of Article 7 TEU in EU Enforcement

[Name of the writer]

[Name of the institution]

Critically Evaluate the Role of Article 7 TEU in EU Enforcement

Introduction

The European Union EU is the body of a council where the Member States work together to form a peaceful pact of homogeneity. In the EU, every country works together under a shared bond of goodwill and mutual respect, so that each member state can benefit one another in the council. The factor of trust plays an important role so that a strong bond among the members can be established under the umbrella of the European Union. The article 7 of the Treaty of European Union plays a vital role to ensure that all the rules and statutes of the EU are being followed and executed. Moreover, it ensures that all the members of the Council are following the decisions that are made by the Commission and Parliament of the Council. This Article is mainly invoked when human rights are violated as will be discussed below. European Union has always put a huge emphasis on human rights and has been providing sanctuary to 120 million people each year. Violating the basic rights of migrants and certain ethnic groups has pushed the Union to invoke Article 7, especially against Hungary.

Article 7 History

The Treaty of Lisbon played the main role in the making of the European Union as this treaty replaced many other treaties that were less general. The members of the Union, however, knew from the start that a unifying principle is needed to ensure long lasting cooperation; one that will ensure their equality in the Union and make the integration of member states stronger. The values followed by the member states ensure the European Identity of the members and makes it possible for the states to follow democratic values. Article 7 of the Treaty of European Union ensures that all member states are following the treaties and statues of the Union. If not then Article 7 will suspend the membership rights of any Member State.

The Amsterdam Treaty was used as a pillar for the establishment of Article 7, but it has never been used or sanctioned. In 2004, the procedures and mechanisms of Article 7 were used in Austria when Jorg Haider and the Freedom Party came to power at the start of the 21st century. In the end, 14 member states of the Union imposed bilateral sanctions on Austria and the procedures under Article 7 were never imposed. After that, the constitutional reforms in Hungary and the impeachment of the president of Romania were strongly criticized by the European Union. Furthermore, both of these actions were scrutinized by the laws and rules of the Treaty of the European Union. Moreover, Polish laws and amendments have recently been condemned in the Union and have been under strong scrutiny. The European Union has started its procedures under the Rules of Law Framework before the Union can take one step further and invoke Article 7 of the Treaty of the European Union.

European Union and its statutes ensure that all political leaders of the Member States which are constitutional, abide by the rules and regulations of the Treaty of European Union. The choices made by the political leaders, however, sometimes, come in contrast with the values of the EU. This makes it difficult for the Member States to follow all the regulations of the Union. Many Member States tend to oppose developments and steps that are taken by a certain Member of the Union and try to invoke sanctions that at times are deemed unnecessary by the Parliament and Commission. It is a known fact that political ideologies, leaders, cultures, norms, constitutions do no match or remain the same and change over time. There is no simple and single structure of democracy present for a country to follow.

The members of the EU, therefore, allow diversity in the values and views the members have in the European Union. Respecting the ideology of all members, the legal system of the EU upholds local laws to minimize any room for discrimination. The Court of Justice of the European Union defines the legal system and takes all precautionary actions before any member states violate the values of the EU. However, there is still a division between the members of the EU. Some are of the view that EU intervention should be legitimized to ensure a complete politicization of the EU, so that democratic values can be rendered safe. This diversity was very important in the EU so that each Member State can put forth all the concerns it might have and can be addressed without any discrimination. A Union scrutinizing its members and enforcing sanctions speaks all about the transparency and standard that the Union has set so that the basic fundamental rights of States and individuals are safeguarded.

Preventive Procedures

The procedure to impose sanctions on a member was provided by the Amsterdam Treaty and the complete mechanism and rules on how to impose those sanctions were made possible by the Treaty of Nice. This allowed the EU to take action against any member state before the values of the EU were breached. This step of the EU, however, was deemed unprecedented. Article 7 of the TEU allows the Council to determine whether a member of the EU has violated the rules, laws and the values of the European Union. However, the member state being under scrutiny can share its share of recommendations to the Council so that the process of scrutinization can be processed without any discrimination. After that, the Parliament has to take action and make a decision. The Council then has to issue orders in light of the consent of the Parliament. The Treaty of Nice has allowed the European Union to adopt the preventive phase so that risks of violations of values and rules can be avoided before a complete breach.

Treaty of European Union under the Articles 7.2 and 7.3 allows the European Union to utilize the Sanctioning Mechanism when a member state has been found in continuous breach of values and rules of the Union. Sanction Mechanism can be either invoked by the Commission or by a one-third majority of the Member States. This is followed by sanctions that are imposed by the European Council and the Council can change or modify the recommendations at will. This can be done since the member state being scrutinized has no power whatsoever in this regard. Singular violations of laws, values and fundamental rights are not enough for the European Union to invoke Article 7. It should only be used as a last resort when the Council and Parliament can establish that violation of values is consistent and systematic. At an individual level, legal routes can be utilized through national courts and following the charter of the European Court of Human Rights. Breaching of values and norms can be measured by dire cases of human rights violence and crimes committed against any ethnic group.

Effects

Many political leaders and workers are sceptical about Article 7 being invoked against any member state as it is termed as a direct attack on the sovereignty of a nation. The citizens also oppose such sanctions and any intervention in their country's political circle as they think that these sanctions are a direct attack on the population and not on the government. This stance is however countered by the Austrian incident where sanctions were imposed on the Austrian government by 14 Member States. This did not make the population rogue and instead made things better for the nation. This happened because the government was forced to take certain steps and formulate policies that were productive for Austria and the European Union.

Invoking the 7th Article is not an easy task as it requires a majority in both Parliament and the Council as well. Member States also do not favour taking actions against any other Member as it will make their position weak both politically and democratically. All the Member States are stakeholders in the EU and tend to have strong relations with each other. Solving issues and any misunderstanding through back door diplomacy is much appreciated among them in most of the situations. In many cases, Articles 258 and 259 of the Treaty of European Union are invoked and suggested instead of Article 7. Many questions were raised to understand the importance of Article 7 and how an alternate Article can be utilized whenever EU values are breached. Only the treaty of Lisbon suggested the use of a legal approach to address the breaching of values. While all other Treaties led to political solutions and suggested that European Union norms were not under the jurisdiction of the Court of Justice.

The deficiencies of the current institutional courses of action to uphold the Union's crucial esteems have progressively been the subject of analysis. Including numerous requests for increasingly adaptable instruments as a centre ground elective between the 'delicate intensity' of political influence and the 'atomic choice' of Article 7 of the Treaty of European Union. The First Vice President of the Commission, Frans Timmermans, responsible for ensuring rule of regulation inside the Commission, has featured that certain issues and cases do not fall under the umbrella of Article 7 and hence cannot be scrutinized and cannot be said to meet the limit of Article 7. Moreover, these cases might raise concern to the regard of the standard of law in a specific Member State. The proposed arrangements wander, as they incorporate new or altered methods for the assurance of EU norms and values, adopt a legitimate or political strategy, support ex-risk or ex-post activities and depend on their authorization to EU bodies or autonomous specialists.

Copenhagen Commission

The subject of a particular professional body at European Union level completing methodical checking of Member States consistency with the European Union norms and esteems was broadly examined when the Agency for Fundamental Rights was established. At last, the FRA was not endowed with methodical observing of Member States for the motivations behind Article 7. Its help could be looked at by the political entertainers occupied with an Article 7 process, to set up whether there is an industrious, genuine rupture of EU norms or danger of breaching EU values is imminent by any of the Member States. On the other hand, scholar Jan-Werner Müller recommended setting up a politically free and a professional body, to be known as the 'Copenhagen Commission', to screen and research the circumstance of vote based system and rule of law in the Member States.

The Copenhagen Commission can independently provide a set of proposals, the European Commission could cut EU assets and funding's for the Member State in address or force fines and other economic sanctions. Many political commentators contended for a more grounded association of the Council of Europe Venice Commission. Accepting that the Article 7 Treaty of European Union instruments is not limited when there is an inquiry of the break of European Union values. Scholar Kim Lane suggests employing the encroachment methodology of Articles 258 and 260 TFEU, packaging together some very specific sets of violations and infringements. Many commentators have recommended in this setting the Court of Justice has the option to suspend EU financing rather than forcing a fine or a single amount to be paid by the Member State being referred to.

As a supplement to existing methods, researchers have suggested building up another preventive component, which could suspend challenged national strategies and work on falling inside the dispatches of European Union regulations. The system would be enacted depending on testimony given by the FRA and would involve quickened encroachment strategies. The government has assumed an inexorably significant job in the implementation of European Union values and norms. It is on an equivalent balance with the Commission and the Member States with respect to activating the preventive mechanism of Article 7.

Besides, it has supervision over the Council, through the assent methodology, in the assurance of whether a genuine rupture of the basic esteems exists, or there is an unmistakable danger of breach of EU values and norms. It has embraced many declarations stating that each member of the Union must respect the values and norms, and make sure that all states are abiding by the decorum that is inscribed by the EU. More emphasis is put on human rights and equality as it is evident that human rights violations and institutional corruption followed by undemocratic policies will force the EU to invoke the 7th Article.

Recent Development

European Union has been a champion of democracy since its formation and all member states of the Union follow the rules of democracy as well. However, one of the members has started to breach the values and standards that were set by the Union and its past leaders. Right after coming to control, the Nationalist Law and Justice party, in October 2015, has bit by bit expanded its hang on the nation. It has just put cohorts in the military, ministries and civil institutions and state-possessed organizations, and is currently politicizing the legal executive. Members not abiding by the rules and norms will demolish the basic foundation of the European Union.

In light of the thriving illiberalism of European leaderships including Hungary, the EU received a structure for ensuring the standard of law in 2014. Article 7 of the Treaty of the EU enables it to train a state when there is a "reasonable danger of a genuine break" of the coalition's virtues. In the most doubtful scenario, a nation's democratic right to vote can be banned. By and by, as Poland's case appears, the procedure is not standard. More than two years have gone since the European Commission pushed a test into the standard of laws and regulations in Poland. European Union invoked Article 7 in December of last year, indicating a reasonable danger of a genuine break of the standard of regulations and law in Poland. However, Warsaw has declined to back out, simply modifying its dubious legal and judicial changes.

To continue with Article 7 and make steps towards halting and banning Poland's democratic rights, the commission needs the help of four-fifths of part states. In any case, that will be a hard task to achieve while France and Germany might bolster activity and carry on with the sanctions, numerous others are hesitant to start a trend. In the wake of scrutinizing the Polish government on its legal changes on June 26th, EU nations deferred their choice. For the first time, the EU has taken action against the new government of Poland and threatened to completely ban the rights of Poland as a member state of the European Union. The hearing in Luxembourg forced the Polish administration to amend its new reforms and make the judiciary of the country completely independent from politics. Just by lowering the retirement age of the Supreme Court judges, the Court of Justice has ruled against the Polish government. Also in this regard, the European Union has volunteered to support the new Polish government with new resolutions so that issues at hand can be taken care of without provoking Article 7 at full.

The scope of Article 7 has not been decided or defined in any book of law but one thing that all states adhere to is that the Member States should solve issues and reform their policies before the European Commission is forced to take action by invoking the 7th Article. There have been many instances where scholars and commentators have provided their views on forming other mechanisms or alternatives of Article 7. The utilization of normal and simple Union law intends to address the concerns to the rule of law and regulation. Rather than the Article 7 procedure, which could be a method for tending to those worries by traditional methods, given that some see Article 7 as an atomic bomb.

There is no doubt in the fact that it has its favourable circumstances contrasted with the Article 7 procedure, as it stays away from the noticeable hesitance of Member States to condemn each other in that certain circumstance. Its utilization as a course to guarantee the standard of law is reinforced by the CJEU's eagerness to attest purview over worries about legal freedom all the more comprehensively. Be that as it may, outside explicit connections with EU law and the issue of legal freedom, it may demonstrate hard to utilize the standard European Union lawful framework. The framework will not be able to manage various worries about the political framework in a Member State other than those disputes.

There is additionally a hazard that once national courts are pressed, it's past the point where it is possible to anticipate that they should send inquiries to the Court of Justice. The Commission can at present execute encroachment activities; however, these have a less immediate effect on the state's lawful procedure. What's more, the Commission could thus be 'caught' by those respectful to leaderships. The European Parliament has made various recommendations to fortify the assurance of crucial rights in the EU by proposing new systems and strategies to fill the current holes.

In its latest content embraced regarding the matter, Parliament united its previous recommendations and required the foundation of an 'EU component on vote based system, the standard of law and basic rights.’ They would be founded on a Union Pact appearing as an interinstitutional concurrence with the Commission and the Council. This would incorporate a yearly approach cycle dependent on a report drafted by the Commission and by a specialist board. The board should be trailed by a parliamentary discussion and joined by courses of action to address dangers or breaches to the EU values and norms.

With the decision made against one of the members of the Union, it is evident that the EU needs more power to scrutinize its Member State. Furthermore, once in the near future, the EU must use its power to fully exercise the 7th Article of TEU so that its legality and repercussions can be determined. Poland still has to comply and take necessary actions to prevent further sanctions issued against the newly elected government. It is a great gesture by the EU to provide its assistance to the Polish Government which speaks volumes of the importance given to values and standards of law that are set by all the Member State.

Bibliography

Bartlomiej Krzan, ‘“PLEXIT”?–Poland, the Rule of Law and the (Pre-) Article 7 Procedure’, The End of the Ever Closer Union (Nomos Verlagsgesellschaft mbH & Co KG 2018).

Göran von Sydow, ‘Trust and Crises in the EU: Exit, Voice and Loyalty’, Trust in the European Union in Challenging Times (Springer 2019).

Matej Avbelj, ‘Pluralism and Systemic Defiance in the European Union’.

Gerda Falkner, ‘A Causal Loop? The Commission’s New Enforcement Approach in the Context of Non-Compliance with EU Law Even after CJEU Judgments’ (2018) 40 Journal of European Integration 769.

Steven Greer, Janneke Gerards and Rose Slowe, Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges, vol 29 (Cambridge University Press 2018).

Dimitry Kochenov, ‘Busting the Myths Nuclear: A Commentary on Article 7 TEU’.

Michal Ovádek, ‘The Rule of Law in the EU: Many Ways Forward but Only One Way to Stand Still?’ (2018) 40 Journal of European Integration 495.

Dimitry Kochenov and Laurent Pech, ‘Upholding the Rule of Law in the EU: On the Commission’s ‘Pre-Article 7 Procedure’as a Timid Step in the Right Direction’.

Michal Ovádek, ‘Book Review: The Enforcement of EU Law and Values: Ensuring Member States’ Compliance, Edited by András Jakab and DimitryKochenov.(Oxford: Oxford University Press, 2017)’ (2018) 55 Common Market Law Review 683.

Balazs Fekete, ‘On Article 7 TEU: Context, History, Doctrine and Shortcomings’ [2017] History, Doctrine and Shortcomings (October 30, 2017).

Critically Evaluate The Role Of Article 7 TEU In EU Enforcement Of Its Values Against Recalcitrant Member States, Including Discussion Of Recent Developments

Critically Evaluate the Role of Article 7 TEU in EU Enforcement

[Name of the writer]

[Name of the institution]

Critically Evaluate the Role of Article 7 TEU in EU Enforcement

Abstract

The European Union was established on values and morals that were mutual to all the Member States. These values are mainly to ensure that the level of uniformity amid all the Member States stays intake. It is also made sure that respect for the Member States’ national identities stays integral as well. Hence, these values have formed a foundation to assist the advancement of European identity and their integration on the mutual shared trust. Article 7 of the Treaty European Union TEU offers a mechanism to impose the values of the European Union, which are on the basis of decision made by the council. This is done while keeping in mind the involvement of the Parliament and Commission. The present tools are deemed unusable because, they require high brink for the sake of a decision in the council. Further, another factor is that Member States’ Political actors are not willing to use those tools. There have been different methods proposed by political actors and academics from a new sovereign monitoring body. For instance, the Copenhagen Commission, via an extension of the mandate of the European Union Fundamental Rights Agency FRA. Then, to showcase the likelihood for European Union EU to hang up national dealings that are under the suspicion of infringing the EU law. The commission approved a newer law known as the “Rule of Law Framework” in 2014 which presented a structured dialogue amid the commission and the concerned State Members. Later in January 2016, the commission made the decision to start such an assessment of the situation in a Member State. They did this in regards to two Polish laws that were on the management of state TV, radio broadcasters and the powers of the constitutional court. The idea of launching the European fundamental rights policy cycle in coordination with collaboration of European Member States and the FRA, EU institutions was launched by the European Parliament. It came into being as the new Copenhagen mechanism devised to screen the condition in the Member States. Currently, Justice Committee and Parliament's Civil Liberties is conscripting a legislative own-initiative report on the basis of EU mechanism on the rule of law, fundamental rights, and democracy, depending on shared and impartial pointers.

Bibliography

Bartlomiej Krzan, ‘“PLEXIT”?–Poland, the Rule of Law and the (Pre-) Article 7 Procedure’, The End of the Ever Closer Union (Nomos Verlagsgesellschaft mbH & Co KG 2018).

Göran von Sydow, ‘Trust and Crises in the EU: Exit, Voice and Loyalty’, Trust in the European Union in Challenging Times (Springer 2019).

Matej Avbelj, ‘Pluralism and Systemic Defiance in the European Union’.

Gerda Falkner, ‘A Causal Loop? The Commission’s New Enforcement Approach in the Context of Non-Compliance with EU Law Even after CJEU Judgments’ (2018) 40 Journal of European Integration 769.

Steven Greer, Janneke Gerards and Rose Slowe, Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges, vol 29 (Cambridge University Press 2018).

Dimitry Kochenov, ‘Busting the Myths Nuclear: A Commentary on Article 7 TEU’.

Michal Ovádek, ‘The Rule of Law in the EU: Many Ways Forward but Only One Way to Stand Still?’ (2018) 40 Journal of European Integration 495.

Dimitry Kochenov and Laurent Pech, ‘Upholding the Rule of Law in the EU: On the Commission’s ‘Pre-Article 7 Procedure’as a Timid Step in the Right Direction’.

Michal Ovádek, ‘Book Review: The Enforcement of EU Law and Values: Ensuring Member States’ Compliance, Edited by András Jakab and DimitryKochenov.(Oxford: Oxford University Press, 2017)’ (2018) 55 Common Market Law Review 683.

Balazs Fekete, ‘On Article 7 TEU: Context, History, Doctrine and Shortcomings’ [2017] History, Doctrine and Shortcomings (October 30, 2017).

Crown Court

Crown Court

Paraskevi Rafailia Doumouzi

10th January’ 2020

Crown Court

Each court, being part of an interconnected system of the judiciary, aims at delivering justice within a minimum stipulated time. For resolving a criminal or civil case, the UK Law system set up a number of courts, which function under the jurisdictions permitted. The lowest in rank are the magistrate courts, whereas, cases pertaining to rape, murder, and different serious offenses are forwarded to the Crown Court.

Role and Function of the Crown Court

The cases referred to the Crown Court are related to indictment, followed by an appeal from those convicted by lower Court Judges. The roles and functions of the Crown Court are expandable in nature. For example, the Crown Court can hear a criminal trial which is on indictment. This court can exercise the jurisdiction of an appellate by the virtue of powers conferred during its establishment in 1971. Related to appealing hearings, the Crown Court has all the authority to revert any decision, or otherwise, withhold prior decisions. Depending on the nature of cases, the Crown Court is divided into three tiers. The first tier comprises of the High Court Judges, the second tier comprises of High Court judges for Crown Court criminal work, and the last tier comprises judges that work on criminal cases solely. One of the main functions of the Crown Court is related to hearing cases about the disqualifications or against anti-social behaviors.

Position in the English Court Hierarchy

In the English Courts hierarchy, the Crown Court stands on top. Cases from other Courts including the Magistrate Courts, Criminal Courts, Civil Courts, and other different Courts can be directed to the Crown Court. Its jurisdiction extends to include appeals from each lower Court. In the UK, the Crown Court sits at around a hundred locations. Different from other courts, the Crown Court works over four functions which include sentencing defendants previously overseen by magistrates, jury trials, the sentencing of prisoners, and listening to appeals from the lower courts, mainly from the Magistrate Courts. Apart from looking into cases of political nature, the Crown Court enjoys an overruling say in matters of other Courts. Such discretionary powers, however, are practiced only in certain situations and according to the precedents set by the previous judges of the Crown Courts.

Roles Performed in the Crown Court

Unlike other courts, the Crown Court is a single entity. Following the allocation to the Crown Court, the prime role performed by it is to uphold and interpret the law. This process is then followed by instructing the Barrister by the legal advisor, a copy of which is sent to the parties within twenty-eight days. After dispatching the notices, the witnesses are called within six months. This information is worthy at the time of plea and during the trial preparation. In addition to this, the additional evidence is forwarded and sent during the defense. In the Crown Court, any person can be called to listen to Conferences. After these initial processes, the trail and preparations start. The law expert withholds that this is the most important role performed in the Crown Court. These trial preparation hearings are always essential before appearing in front of a Crown Court Judge.

How the Research has Changed?

The research about the judicial procedure has considerably changed throughout time. The modern research follows a mix of qualitative and quantitative studies. This mix of qualitative and quantitative research has provided new insights for judicial reforms, for example, there are some studies about the Crown Court which highlight the flaws in relation to the number of appeals presented to the Crown Court, and the cases resolved. These contemporary researches are helping to elevate the judicial processes being followed in the Crown Court, at par with other Western Courts.

Bibliography:

ADDIN ZOTERO_BIBL {"uncited":[],"omitted":[],"custom":[]} CSL_BIBLIOGRAPHY Jacobson, Jessica, and Gillian Hunter. Inside Crown Court: Personal Experiences and Questions of Legitimacy. Policy Press, 2016.

Newman, Warren J. “Some Observation on the Queen, the Crown, the Constitution, and the Courts.” Rev. Const. Stud. 22 (2017): 55.

Shore, Cris, and David V. Williams. The Shapeshifting Crown: Locating the State in Postcolonial New Zealand, Australia, Canada, and the UK. Cambridge University Press, 2019.

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May 22, 2019

Founders

The founders would think about the modern presidency that it has deviated from the original model set by them. The presidents are not accountable today that is against the idea of the founding fathers. They had assured that the president would be accountable to the public for his actions. Similarly, the idea of founding fathers was to give more power to the people but today presidents are enjoying significant power that undermines the concept of accountability.

The major difference between the power of the presidency today and then it was intended. This is because both parties; Democrats and the Republicans are working for the expansion of their power. They are not focused on working for the collective welfare of the society or for the betterment of its people CITATION Dan131 \l 1033 (Gillmor, 2013).

The modern presidency has changed so much because it is not working for the betterment of the people and the country. The president holds more power than the Congress today. This is against the original idea of the founding fathers. Today president of America Donald Trump is acting as an opportunist. Many decisions of the president reflect that he was motivated by personal interest and personal philosophy not by the public interest CITATION Chr182 \l 1033 (Gowans, 2018).

The presidency has made Congress and courts irrelevant today. This is because the president like Donald Trump doesn't involve Congress in important decisions like the imposition of trade restrictions and strict regulatory controls against immigrants. The deportation of undocumented immigrants was also the president's decision that lacked support from the Congress. The more power enjoyed by the president has made Congress less relevant and ineffective CITATION Pub17 \l 1033 (Public, 2017). President of the United States is not answerable to Congress today due to his immense power. This reflects that the presidency has changed from what it used to be.

References

BIBLIOGRAPHY Gillmor, D. (2013). America's founders would be horrified at this United States of Surveillance. Retrieved 05 22, 2019, from https://www.theguardian.com/commentisfree/2013/jul/02/july-fourth-america-liberty-not-same

Gowans, C. (2018). The demise of the nation-state. Retrieved 05 22, 2019, from https://www.theguardian.com/news/2018/apr/05/demise-of-the-nation-state-rana-dasgupta

Public. (2017). Modern presidency differs from the Founding Fathers' vision. Retrieved 05 22, 2019, from http://www.therepublic.com/2016/07/17/modern_presidency_differs_from_founding_fathers_vision/

Debate Speech

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During athletic competitions there are cases when an athlete can decide to injure a fellow athlete intentionally so that he or she can win the race. In the case of such an occurrence, people get confused on how they can get to discipline the athlete who did it intentionally. Many people suggest that it is not part of the game and that one should always not be prepared for such situations when they go to the pitch. I believe that it is the true spirit of sportsmanship that is being cultivated in different sports across the world. Just like any other activity, sports are governed by laws that are specific to the sport as well as rules that define how one should behave during the game.

Canada is one of the countries that engages in internationally sports and will therefore conform to the international standards that have been set. When an athlete injures another athlete intentionally, I believe that he or she should be dealt with using the sports laws and not face criminal charges in a court of law. I agree that the athlete might go against the rules of the sports and is only punishable by the use of those laws that are specific to athletics but cannot be punished using criminal laws that are used for crimes against the laws of the country. In international law, crime refers to the acts that are against the livelihood of a certain group of people. In most cases, it refers to the offenses that are related to war and affect a large number of people. In athletics, there is no such an act and the people that are always affected by the act does not in any way lose their lives. Athletics is an international activity and there is no way that one can make use Canadian laws to punish their offenders. If they are to be punished then they have to make use of the international laws.

When we look at the international law, we notice that under crimes, a sport does not feature anywhere. Most of the people that are always prosecuted for crimes always do acts that make people to lose their lives. In most cases, they are political situations that end up bringing hatred among people and this might cause civil strife in the country. In the history of sports, there is no day that an act of a certain athlete to intentionally injure another one has ended up causing violence among the people. People believe that it is sports that anything can happen.

The moment a certain athlete is prosecuted using the criminal laws; it means that they will not have the chance to compete with others again. This is a practice that can drastically reduce the number of people who take part in the sports. So many people might feel that it will be less entertaining to engage in athletics and will hence opt for other sports. To maintain the competitive nature of the sport, it is important to ensure that only the rules of the activity are used when coming up with ways to punish their players. When a certain sport loses a lot of participants and fans, then it is not possible to call it one of the sports that people can engage in internationally. Many people would want to engage in international sports because they have many fans and they also give them the opportunity to interact with other fans across the world. Prosecuting players using criminal acts is wrong and might end up destroying the image of the country and the sports as a whole.