Etma_06

This purpose of this essay is to examine the differences of criminal and civil sanctions in order to evaluate the statement “That civil sanctions are designed to compensate and criminal sanctions are designed to punish. The most important intention of both criminal and civil sanctions is the punishment of the offender. The essay will examine criminal sanctions and the aims behind each of the five penal theories. It will continue to look at the aims of the civil remedies in tort and contract and look at civil law in relation to child protection. A sanction is the word used to describe the punishment for unlawful conduct. Sanctions within criminal law consist of fines, community rehabilitation and imprisonment. When sentencing a convicted person it is at the judge’s discretion whether to punish or rehabilitate the defendant and which penal theory they will decide on. There are five penal theories. Section 142(1) of the Criminal Justice Act 2003, states that judges should consider the punishment of offenders, reduction of crime, reform and rehabilitation of the offender, protection of society and reparation by offenders to persons affected by their cime. These are to be considered. The penal theory of retribution, a principle supporting the proverb an eye for an eye and 1970s and 1980s saw a reintroduction in using of the retribution theory. According to (Bagaric, M, p134) quotes ‘that all offenders deserve to suffer and punishment should inflict the suffering they deserve’. Reparation looks at the impact that the crime had on the victim .Reparation is more victims centered, and seeks the most suitable sentence which would aid the victim and community after the crime. This theory ensures that the victim feels the punishment was in line with their suffering and worth reporting. Since the mid-1990s reparation has been used more widely in the justice system. The Victims charter was introduced in order to make sure those victims of crime know what rights they have and support systems available to them. The penal theory of deterrence, the punishment is severe so as to make any offenders reluctant in committing crime. It aims to prevent repeat offenders.“The theory of deterrence is that people in general society will not act illegally, if the consequence of breaking the law scares them enough. The main problem with this it assumes that people have the mens rea before committing the offence however; an offender does not always act with intention. The main message here is “making an example of someone” and a strict penalty is forced on a person than the crime itself needs. In Barbados and Trinidad the penalty for a convicted murderer is death. This is supposed to be a deterrent; however both countries still have wide spread murders, which asks the question is deterrence effective. It proves not in these countries. The next penal theory is rehabilitation and it is to try to rehabilitate the offender back into the community. The courts attempts to help with the behavioral habits of the offender in order for them not to break the law, as in cases of illegal drug users who commit crime to pay for their habit, the court looks at ways to help with the addiction, the court can order treatment to help break the addiction, in turn if successful the offender would no longer need to reoffend to feed his habit. A major problem with this is that there are no funds to some geographical areas thus meaning the courts in some jurisdictions cannot order it. Other rehabilitations can include counseling and education. Rehabilitations have the ethos of trying to get the best out of offenders in order to mend their criminal ways. Finally, the theory of incapacitation removes the offender from society; the offender can no longer commit further crimes and be a menace to society .The death penalty is no longer available in England and Wales this ceased in 1965; however, it is still used in some countries. In England and Wales it was replaced by mandatory life imprisonment which is executable against the crime of murder, Lord Lane quoted “The mandatory life sentence for murder is founded on the assumption that murder is a crime of such heinousness that the offender forfeits for the rest of his existence his right to be set free” (G.Slapper’’et al p.150). One would hope that, should someone murder another human in cold blood then this sentence should be a life sentence, hence it should literally mean for the life of the perpetrator. This would certainly be more of a deterrent as the rising murder rate escalates. There are vast lists of criminal sanctions, under the The Criminal Justice Act 2003 (CJA 2003) which include community orders, action plan orders, curfew orders, and drug rehabilitation to name a few, which are all designed to help judges carry out the penal theories. The Developments in the penal theory, looks at making the offender responsible for their actions. Also develop reparation to the victim. Finally, to re-integrate the offender into the community. Tort law, claimants seek damages for the injustices that they have suffered via financial compensations. The award of damages is to correct the loss the claimant has suffered by the plaintiff (tortfeasor). Financial compensation is awarded under damages, pecuniary loss and non-pecuniary loss. The court considers the victim and seeks to award compensation to help them to move forward with their life, the court considers the injury and the effect it has had or will have on their life. Tort law holds the tortfeasor responsible for injuries caused by negligence to the claimant on the basis of fault. These type of compensations are known as corrective as in the case of Lim Poh Choo v Camden and Islington Health Authority [1979] 1 ER 332’. In such cases of personal injuries, The Ogden tables were created in order to direct judges as how to much a claimant should receive depending on which part of the body is injured, this can only be seen as positive move, helping judges award the same amounts of damages for particular injuries The Ogden tables are concerned with future (general damages) pecuniary loss - The Ogden tables and JSB are some of the sources of guidance for judges in calculation for damages. JSB will generally assist with the calculation of non-pecuniary general damages. Contract law, the court seeks to make an order to ensure achievement of a contract. It is different in that an award of financial damages would not compensate. For instance, if two parties have a contract for one to sell to another to buy a unique product, and one fails to complete the contract, financial compensation would be inadequate in replacing the item. The court would then order the contract to be completed as originally agreed. It is difficult within criminal law to work with child protection issues; In cases, where children are placed in care and allegations made against one or more carers, it may be unclear as to who the offending carer may be, so therefore, being able to bring a criminal case by the CPS would be difficult. Criminal prosecutions can be made under The Children and Young Persons Act 1933; as long as the offender is identified. There are also many civil remedies that can be put in place to protect children. Under Part IV of the Family Law Act 1996, molestation and violence orders can be made, preventing the respondent from committing violence, threats or harassment to the child or applicant. An occupation order may be made under the Act where the abuser can be prevented from living in the property with the children. Under the Children Act 1989 care orders and supervision orders can be used to protect children. A supervision order is subject to section 31 of the Children Act 1989 and allows children services to visit the residence on a regular basis to make checks on the welfare of the child and to oversee carer’s in respect of the child. A care order is made to remove the child from its carer’s and place the child into the care of the local authority’s social services department. For any of these orders to be applied for section 31(2) of the Children Act 1989 sets a threshold criteria and it must be shown that the child is or is likely to suffer harm. Civil remedies also deal with other such matters under section 1(1) The Crime and Disorder Act 1998, the local authority and police may apply for an ASBO to stop anti social behavior, the victim is the focus, the ASBO is a punishment but also to regulate the anti-social behaviour that the community is suffering such as within ‘the case of Stephen Jones and Son’ the ASBO helped the neighbours live in peace The standard of proof used in civil matters is the balance of probabilities whereas in criminal matters the jury has to be beyond reasonable doubt. In conclusion, the answer to the statement that civil sanctions are designed to compensate and criminal sanctions to punish. The differences between civil sanctions and criminal sanctions are that whilst the punishment of the accused is important in both, it is appears not the most important point when looking at the sanctions. In Criminal sanctions as noted in this essay that while the punishment is given great consideration it is not designed just to punish. Judges also consider protecting society, reduction of crime rates, rehabilitation of offender, protection of society and reparation. Retribution punishment is looked against the severity of the crime. Reparation looks to punish according to the victims’ suffering, the importance is on the victim. Deterrence is used to reduce crime. Rehabilitation assists the offender to help them from reoffending. Incapacitation is to protect the public. In Civil law, other matters, other than compensation are dealt with. Family matters, Child protection, consider which action to take in the welfare of the child in order to protect the child. Tort law serves to put the victim back in the position they were in before the said injury. Contract law can order to relinquish a contract. Therefore it would be incorrect to simply say that the differences of civil sanction and criminal sanctions are civil law only compensates and criminal punishes. WORD COUNT:1709 Bibliography Cases Lim Poh Choo v Camden and Islington Health Authority [1979] 1 ER 332’. The case of Stephen Jones and Son’ Statutes The Children and Young Persons Act 1933 The Family Law Act 1996 The Children Act 1989 The Crime and Disorder Act 1998 Criminal Justice Act 2003 Cuthbert,L, (2009) ‘Unit 17 Criminal Sanctions’, Block 5 Sanctions, W100 Rules, rights and justice, Milton Keynes, The Open University, pp39-69. Arthur, R, Howells, C, (2009) ‘Unit 16 Civil Sanctions’, Block 5 Sanctions, W100 Rules, rights and justice, Milton Keynes, The Open University, pp9-34. Slapper, G.’et al’ (2009-2010) ‘The English Legal System,10th ed,Routledge –Cavendish (2009), Abingdon,Oxon pp508-513 ‘Reading 34’, Reader 2, W100 Rules, rights and justice, Milton Keynes, The Open University. Bargaric, M. (2001) ‘Punishment and Sentencing: A Rational Approach, London, Cavendish ‘Reading 32’, Reader 2, W100 Rules, rights and justice, Milton Keynes, The Open University