This perception is a flawed overestimation of the results of the rule’s principles. The principle in this case is that the exclusionary rule serves to protect the rights of the accused, and is specifically designed to create an incentive for police officials to obtain evidence without violating the rights of the accused. Should it be found that the evidence obtained was done so illegally, then the evidence is inadmissible in a court of law. The point at which most desire to attack the exclusionary rule is that it enables those who are found with incriminating items to walk free. The most ardent critics of the exclusionary rule underestimate the good done by the rule, while appealing to commonly held paranoia of losing a war on crime in order to exaggerate its weaknesses.
In these cases it will have to be proved that a certain state of mind was present in the defendant, which is known was tort requiring an element of fault as it shows that the defendant was at fault. Such states of mind can include intention, which involves a deliberate act which obviously puts the defendant at fault as they chose to commit the act. Another relevant state of mind is malice, which means a bad motive and is relevant in torts such as malicious prosecution, nuisance and defamation. Finally negligence can be relevant, which is carelessness, even though the defendant may not have intended to commit the act their negligence still puts them at fault. In cases involving negligence, the neighbour principal, established in Donoghue v Stevenson (1932) is used to determine whether or not the defendant was at fault.
For example, “whoever steals anything makes the property of all insecure; he therefore robs himself of all security in property” (Kant 145). By making himself insecure through his own actions the thief willingly under the right of retaliation can be punished through penal labor in order to make up for the security the thief has robbed the state of. Thus, “Retributive punishment serves a moral function for Kant by making the criminal live under the law he implicitly sets up in his criminal act” (F... ... middle of paper ... ...Gideon, in order for a defendant to prove inadequate representation they must show that the lawyer was not only incompetent, but that they were prejudiced by the incompetency (Cohen). The complaint of the defendant additionally must be viewed narrowly ensuring that harm done to the defendant cannot be taken into account (Cohen). The rules of Strickland have allowed for cases, “"where counsel allowed his client to wear the same sweatshirt and shoes in court that the perpetrator was alleged to have worn on the day of the crime, where counsel stated prior to trial that he was not prepared on the law or facts of the case, and where counsel appointed in a capital case could not name a single Supreme Court opinion on the death penalty" (Cohen).
Civil disobedience is only an act against unjust laws, or laws that are thought to be unjust, and thus should be made just. There are many features of civil disobedience. Civil disobedience according to Rawls must be political in nature; agents engaged in civil disobedience must be appealing to a “common conception of justice”. It is aimed at changing the law, thus, it is a method requiring political engagement. The goal of this is to bring the law into conformity with the theory of justice.
Torts A tort is a wrong. More precisely, a tort is a violation of a duty imposed by the civil law. When a person breaks one of those duties and injures another, it is a tort. The injury could be to a person or her property. In a tort case, it is up to the injured party to seek compensation.
He also says that it should be distinctive with any deceitful statement which does not inflict any dama... ... middle of paper ... ...dience wish to use the concepts which have already been scrutinized above are surely and certainly veracious. Carey states that it is vital that all communicators must be conscious of the tort of vilification. He also says that the ultimatum of such an action is presumably the most consequential restriction to media freedom in this country. Those working in the media industry must circumspect to the risk of vilification at each level of the declaring and video casting process. Carey continues to quote various aspects which render the vilification action a selectively significant impact on the media.
The House of Lords, quashing her conviction, held that it had to be proved that the defenda... ... middle of paper ... ...he offence that took place. I believe that that this is a delicate area for judges and that each case should be reviewed in isolation and judges should have the right for discretion. Each case will have different facts and diverse levels of responsibility and so one rule cannot be made for all strict liability cases. Strict liability should not be overruled entirely, however should be reviewed by the law commission in order to prevent those with no control over an offence and without the means to prevent it being accountable for the crime. In a just society people should not be sentenced just to make a point for the general public or for the single reason that a judge feels someone should be held responsible and the defendant is the only reasonable person to charge, as this is not reasonable ground to charge someone.
Evidence is classed as obtained unfairly by a breach of contract, breach of professional responsibilities (i.e. those involved in investigating cases), by a crime or a tort. If the evidence is obtained via trickery, deception of inducements such as threats or bribes then this is also classed as being unfairly obtained. To exclude evidence in some cases may result in injustice and the guilty party being free from offense. Evidence is classed as unfairly obtained and can be excluded when; there is a serious violation to the rights of the third party and/or the accused, how serious the offence is that the accused has been charged with, whether the police acted maliciously or acted with an improper motive, whether the act was in a circumstance that was urgent or an necessary emergency and the availability of a sanction for the person responsible for the misconduct.
In order to gain a firm understanding of how strict liability strikes a balance between regulatory offences and the criminal law principle of moral blameworthiness, an in depth understanding how strict liability differs from the other regulatory offences needs to be established. Strict and absolute liability involves the Crown proving that a regulatory offence had occurred beyond a reasonable doubt without determining the fault element. True crimes on the other hand ensures that mens rea be established in order to convict the accused. The primary goal of strict liability is to establish that the individual’s actions were negligent and that they did not practice due diligence. Due diligence refers to a person’s ability to take “an active and reasonable attempt to prevent the commission of the prohibited act (Roach, 221).” It is through these differences that strict liability allows for the accused to prove that they exercised reasonable judgment and attempted to reduce negligence.
In chapter four of On Liberty by J.S. Mill, Mill argues that there needs to be a strong division between an individuals rights and the society’s ability to punish, he believes that the “harm principle” will hold the individuals accountable for their actions, preventing harm to others, however there are also flaws in Mill’s argument which will all be discussed in this essay. Mill makes a claim in his book, On Liberty saying, “ The inconveniences which are strictly inseparable from the unfavorable judgment of others, are the only ones to which a person should ever be subjected for that portion of his conduct which concerns his own good, but which does not affect the interests of others in their relation with him. Acts injurious to others require a totally different treatment.” (Page 72, Mill) This quote, sums up his harm principle, which is that in society each individual cannot violate others rights or harm them in anyway, however if it only affects him or herself, society cannot punish the individual. Mill is discussed how society will judge even if the person is only doing harm to him or herself and wi... ... middle of paper ... ...ered enough, which is a huge objection to Mill’s argument.