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Published: Fri, 02 Feb 2018
This essay will critically evaluate both civil and criminal sanctions
The second and probably less obvious but more significantly in practice knowing what particular order the court would be likely to make. This is an essential part of deciding whether to bring legal proceedings or if legal proceedings are being sought against you and whether to defend them or to settle out of court. It is, however, it is a known fact that in the civil system more cases are settled out of court room rather than settled by the decision of the judge in a courtroom hearing. To fully understand the civil remedies you should know the difference between civil and criminal law.
Both the civil and criminal law consist of sets of rules, which create rights and obligations powers and duties. One of the most essential differences is that in civil law the main focus is on putting right those things which have gone wrong, example, a driver who knocked me down may have to pay damages as compensation for my losses while in criminal law the main focus is on what should be done with the wrong bill, example, he or she should be simply punished or reformed or deterred from reoffending.
Civil law could well be defined negatively as anything, which is not criminal law. However, this leaves an enormous area of law including four example tort, contract, family law, property law, employment law, public Law. Majority of claimants who started action in contract or tort are seeking financial compensation by way of damages for the wrong they have suffered. Consistent with the idea that the aim of civil law is to put right things that have gone wrong, the usual function of damages in both contract and tort is compensation. In awarding damages to a civil case the court aims to put the claimant as nearly as possible into the position he or she would have been had a contract not been breached or if no crime has been committed.
Example if I had been badly injured in a road accident and pursuant to the accident, I lost the sight in one of my eyes the court could not provide me with anything more than the amount of money to compensate for that loss. In claims for personal injury the court system aims to provide full compensation for all the losses suffered by the claimant. Appreciate that the law cannot truly compensate people. One example was the case of Lim Poh Choo V Camden and Islington Health Authority  1 ER 332. Like many accident claims the case concerns an action in the tort of negligence. The judge’s remarks encapsulate in a clear and concise explanation the losses and harm Dr Lim has suffered. Another example of a case is Rees V Darlington Memorial Hospital NHS Trust  UKHL 52 the claimant bought action for damages. The claimant was seeking damages for a negligently performed sterilisation operation. The claimant was awarded £15,000 in damages and the awarded sum was merely to recognise the wrong done and was not designed to be compensatory. Some of the remedies available in tort and contract have been developed by the common law while others have been developed by equity. Example of a common law remedy is damages where the court orders the offender to pay money by way of compensation for the harm that he or she has caused.
Example supposing that my neighbour puts up a fence so that it trespasses on my land if the court allows the fence to remain provided the trespasser pay’s damages the effective outcome is that my neighbour has acquired the rights to occupy my land without my agreement. So the court may well Grant and equitable remedy of an injunction to prevent my neighbour from continuing to trespass.
Criminal Law and child protection, it is a sad fact that child abuse remains an issue in our society today as long as the perpetrator of the injuries can be identified this means a criminal prosecution can be secured. An example for the perpetrator of child abuse case could, be charged with murder and manslaughter grievous bodily harm or assault depending on the gravity of the injury suffered an alternative charge would be one of cruelty or neglect under Section 1 of the Children and Young Persons Act 1993. The act does not require proof of an assault and is often based on failure to obtain medical assistance for the injured child. Maximum sentence for cruelty or neglect was raised to 10-years imprisonment by the Criminal Justice Act 1998. Possible criminal charges for child abuse cases are murder, manslaughter, rape, grievous bodily harm, assault, battery and cruelty or neglect under Section 1 Children and Young Persons Act 1933.
The anti-social behaviour order was introduced in 1998 known as the ASBO this stops the person from going to particular places or doing particular things. If they do not conform with the order they can be prosecuted. Breach of the order is a criminal offence and is punishable by a fine or up to five years imprisonment. In R v Manchester Crown Court, ex parte Mccann & Ors  1 WLR 358 the Court of Appeal held that proceedings to obtain an ASBO were civil and not subject to the stricter criminal rules of evidence.
Criminal sanctions focus upon the criminal system, where members of society must be punished; they must first be convicted after having had the opportunity of a trial. During the trial, the prosecutor example, the CPS will have worked hard to satisfy the decision maker that the defendant person accused of breaking the law and carry out a certain act prohibited by the law with the required mens rea and the defendant has not been able to give sufficient defence or explanation for why they did what the law says they should not have done.
Sentencing a convicted person depends partly on the discretion of the individual sentence and what penal theory they support. Will the judge simply wish to punish the person or will they want to try and help to rehabilitate them. Years ago there were hundreds of offences committed where the only option was the death penalty. People think of imprisonment, fines and penalty points on driving licence as criminal sanctions. These are possible punishments; the area of criminal sanctions is one of continual change and growth.
Dealing with the practicalities of punishing a convicted criminal it is important to understand the theories behind the practice of sentencing. At a very basic level punishment must cause an offender to suffer in some way, otherwise it does not amount to punishment. There are principles that justify particular punishments. The five main penal theories are retribution, reparation, deterrence, rehabilitation and incapacitation.
The theory of deterrence focuses on preventing a specific offender or other members of society from committing similar types of crime in the future it is a threat with the hope that the fear of the outcome will make someone think twice before acting in the same manner in the future. Therefore, the theory of general deterrence is that people in society will not adopt illegal behaviour if the consequences of breaking the law scare them enough.
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