Law and Justice

Posts Tagged ‘System’

Justice is desired by each and every person in this earth. But as we all know that Justice delayed is Justice denied, so it’s a matter of concern that how many people actually get justice in due time. Well this is a very vague question as there is no specificity to it. However it lays down the basis of a very common problem that has plagued the Indian courts. Yes the term ‘plagued’ actually represents the current scenario of the Indian Judiciary. The problem of backlog of cases have been haunting the Indian courts for a long time and it is high time that we react to the situation and do something about it. Precisely speaking the criminal trials take much longer that what they are expected to take and what actually they take. Thus it is very necessary that some sort of system is adhered to so as to speed up the trial process and relieve the courts of heavy backlog of cases. Crimes happen almost everyday and with such a large population it is quite obvious that at least thousands of crimes are committed almost everyday throughout the country. And as the literacy levels and awareness among the people has increased so they refer their problems to the courts which is the only dispute resolution system and the only place where one can expect justice. Thus it is all the more obvious that with such a rate of criminal cases pooling into the courts the available workforce falls very short of the expectations. Apart from that there are several appeals which are preferred from the trials which furthermore increase the case numbers in the court. In such a scenario it becomes a matter of concern as to how to control the problem. One such solution or alternative through which this problem could be curbed is plea bargaining which is incorporated under the provisions of Criminal Procedure Code.

 

Plea Bargain – An Insight

 

Well the first question that comes to our mind is that what is plea bargaining actually. Precisely speaking Plea Bargaining refers to an agreement in a criminal case where the prosecutor offers the defendant with the opportunity to plead his guilt. In other words it means that an option is given to the criminal defendant to accept his guilt and avoid the trial proceedings which would be instituted against the accused as it happens in a normal trial proceeding. Now one might wonder that what benefit is the accused getting by accepting his guilt and by avoiding the trial proceedings. Well the answer to this is that in a plea bargaining case the accused is generally charged of a lesser charge than the original criminal charge and the punishment is also lesser which he would have got had he been charged of the original charge. Many a times it happens that the accused while sitting through a trial is convicted of a more serious charge and also of some additional charges which might be charged along with the original offence. Thus with the help of plea bargaining the accused can relive himself from risking his case of harsher sentences. On the other hand it is beneficial to the victim also as the victim gets justice quickly as the accused accepts his/her guilt. Apart from that the time of the court is saved from carrying out the court proceedings and fulfilling the court formalities. Moreover the time of the court is saved from establishing the guilt of the accused as the accused himself/herself accepts his/her guilt. Therefore a lot of money and the time of the court is saved. Thus we can note that with the help of plea bargaining one can really speed up the criminal court proceedings.

History of Plea Bargaining in India

 

The concept of plea bargaining has been introduced in the Criminal Procedure Code with the help of a Criminal Law (Amendment) Act, 2005. This amendment act was passed by the parliament in its winter session. Chapter XXIA of the Criminal Procedure Code contains the requisite provisions of Plea Bargaining which is enforceable in India. Sections 265-A, 265-B, 265-C, 265-D, 265-E, 265-E, 265-F, 265-G, 265-H, 265-I, 265-J, 265-K and 265-L of the Criminal Procedure Code enumerates the provisions relating to Plea Bargaining.

 

However with everything mentioned above it would be quite wrong to say that the concept of plea bargaining is of recent origin. Efforts for dealing with the problem of over burdening of the criminal courts have been made much earlier. The 154th Law Commission, in order to reduce the delay in disposing criminal cases, brought forward the concept of plea bargaining and also recommended the introduction of plea bargaining as an alternative to deal with the heavy backlogs of criminal cases. After that the recommendations of the Law Commission were supported by the Malimath Committee Report. In its report, the Malimath Committee recommended that a system of plea bargaining be introduced in the Indian Criminal Justice System to facilitate the earlier disposal of criminal cases and to reduce the burden of the courts. To strengthen its case, the Malimath Committee also pointed out the success of plea bargaining system in USA. Accordingly, the draft Criminal Law (Amendment) Bill, 2003 was introduced in the parliament. The statement of objects and reasons, inter alia, mentions that, The disposal of criminal trials in the courts takes considerable time and that in many cases trial do not commence for as long as 3 to 5 years after the accused was remitted to judicial custody.. though not recognized by the criminal jurisprudence, it is seen as an alternative method to deal with the huge arrears of criminal cases. The bill attracted enormous public debate. Critics said it is not recognized and against public policy under our criminal justice system. The Supreme Court has also time and again blasted the concept of plea bargaining saying that negotiation in criminal cases is not permissible. More recently in State of Uttar Pradesh V. Chandrika 2000 Cr.L.J. 384(386), The Apex Court held that It is settled law that on the basis of plea bargaining court cannot dispose of the criminal cases. The court has to decide it on merits. If the accused confesses its guilt, appropriate sentence is required to be implemented. The court further held in the same case that, Mere acceptance or admission of the guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the court that as he is pleading guilty the sentence be reduced. Despite this huge hue and cry, the government found it acceptable and finally section 265-A TO 265-L have added in the Code of Criminal Procedure so as to provide for raising the plea bargaining in certain types of criminal cases. While commenting on this aspect, the division bench of the Gujarat High Court observed in State of Gujarat V. Natwar Harchanji Thakor (2005) Cr. L.J. 2957 that, The very object of law is to provide easy, cheap and expeditious justice by resolution of disputes, including the trial of criminal cases and considering the present realistic profile of the pendency and delay in disposal in the administration of law and justice, fundamental reforms are inevitable. There should not be anything static. It can thus be said that it is really a measure and redressal and it shall add a new dimension in the realm of judicial reforms.

 

Plea Bargaining – Relieving the Indian Criminal Courts

 

Quite clear from the above discussion the main object of Plea Bargaining is to reduce the risk of undesirable orders for the either side. Apart from this it is also helpful in clearing away the pending cases in the criminal courts. However it is also quite important to know that plea bargaining is not applicable to all the offences. It is only applicable to those offences for which there is a punishment for a period up to seven years. Further the provision of plea bargaining doesn’t apply to cases where the offence is committed is a socio-economic offence or else where the offence is committed against a woman or a child below the age of 14 years.

 

The concept of plea bargaining is very strong. It benefits both the victim and the accused at the same time and finally and the most important it benefits the court. There are two types of plea bargaining which helps the accused in confessing his guilt. One is Charge Bargain and the other is Sentence Bargain. In case of a Charge Bargain the prosecution allows the defendant to plead guilty to a lesser charge or to only some of the charges framed against him. This helps the accused to reduce the charges to a greater extent as the prosecution has a wide range of options to frame the accused of charges. Thus Charge Bargain helps the accused to negotiate with the prosecution and reduce the number of charges that the prosecution might have framed against him. In case of Sentence Bargain the accused is relieved of harsher and a higher sentence if the accused confesses his offence or pleads guilty. In this case the defendant is told in advance what his sentence would be if he pleads guilty. Thus with these two options of plea bargaining most of the cases could be resolved which are rotting in the criminal courts and which are waiting their turn to be disposed off in merits.

 

Shortcomings of Plea Bargaining

 

Though plea bargaining is a very positive concept and a welcome legislation for reducing the backlogs of the criminal courts in India, it too has some shortcomings. There are some inherent flaws inside this legislation which can be called as the drawbacks of plea bargaining. The first and foremost demerit of plea bargaining is its inapplicability to all the cases. As mentioned above it is inapplicable in cases where the offence relates to socio-economic offence and offences against women and children below 14 years. So the accused can take advantage of these loopholes and can harass the complete procedure of plea bargaining. Apart from that another drawback of plea bargaining is the involvement of the court in the plea bargaining process. Where the court is involved in the plea bargaining process the court’s impartiality becomes questionable. Also involving the victim in this process can invite corruption. There is a scope of huge amount of corruption in this regard. However the main and primary drawback of the plea bargaining process is the rejection of plead guilty application. In a case where the accused has confessed his/her offence and then the application of the accused is rejected then it would become very difficult for the accused to prove his innocence when normal trial proceedings would be instituted against him consequently.

 

Conclusion

 

Though there are some inherent problems and drawbacks associated with the provision of plea bargaining, it still remains a powerful weapon to combat the problem of heavy backlog of criminal cases in the Indian courts. It is very necessary that the shortcomings of the plea bargaining process are given a due though and solved accordingly. Most importantly in the case of rejection of the application of the pleading guilty of the accused; the rejection should be kept confidential so as to prevent prejudice to the accused. Apart from that it is an acceptable fact that the concept of plea bargaining will enhance the faith of the public in the criminal justice system and will help the Indian Courts to fight with the problem of backlog of cases.

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Civil law is the most dominant legal tradition today in most parts of the world. It is that branch of law which deals with individuals, and/or organizations in which compensation is rewarded to the victim. E.g. in a car accident, victim can claim damages against the driver for the loss or injury sustained in the accident. Going back to the history of civil law, common law follows an adversarial model while civil law is more inquisitorial. Civil law is code-based. It provides a forum or predefined set of rules for deciding disputes involving torts, probate of wills, property, administrative law, commercial law and private matters including government departments. The civil judge does not interpret the law but simply follow predetermined legal rules.

The objectives are different in civil law. There is an attempt to right a wrong, honor an agreement or settle a dispute. The victim gets compensation from the person who does the wrong. Every common law country has its own set of legal system that depicts on the rich history of civil law.

Understanding civil law, one needs to know the history of its origin. As they say, “All roads lead to Rome”, civil law has also originated from the legal institutions of Rome. Its name derives from jus civile, the civil law of the Roman Republic and the Roman Empire. The jurists were people from upper classes of the Roman society who offered their legal knowledge as a public service. They advised parties to litigation, lay judiciary who presided over the trials and judged the facts of the case.
There were two types of civil judges: the magistrate and the judge for the trial. The jurists in Rome were nonprofessional and were not the government officers, hence they did not charged for their services. Thus, Roman law had an important influence on history of the world.

Civil law is usually referred to both the common law and law of equity which have historically operated to different doctrines.

Despite of the universal recognition of the distinction between the private law and public law in the civil law world, there is still no agreement among the civil law attorneys on its theoretical basis and no uniformity as to the scope of private and public law. Private law is that area of the law in which the sole function of government was the recognition and enforcement of private rights. Contrarily, public law is the effectuation of public interest by state action. Private law includes civil and commercial codes, while public includes constitutional law, administrative law and criminal law.

In a civil lawsuit, the plaintiff is responsible for the cost of litigation. Most civil law attorneys handle victim cases on a contingency basis which means the attorney fees is deducted from the final award.

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“The Criminal Law Handbook: Know your rights, survive the system of Attorneys Paul Bergman & Sara J. Berman is an impressive tome of 678 pages of information on criminal law. The book aims to help you understand the rules confused and procedures relating to criminal offenses and to show how the system works, because the police, lawyers and judges do what they do and more importantly what can be done to limit the damage. I think it achieves that goal very well. Most part of the book is written in a question-and-answer understandable to explain the criminal justice system, both within and outside the court. They range from the first police interview through trial in jail and probation.

Nolo Remember that focuses on making the law accessible to all, and books published by Nolo doing an outstanding job of doing just that. Therefore, this book is not a manual of criminal law as would be in law school, but a general guide for the non-lawyer or layman. For a guide like this is very good and includes a range of information.

The twenty-seven chapters consist of:

Chapter one: to speak with police. Chapter provides information on police interrogation of persons who have not taken into custody and interrogation of detainees.

Chapter two: search and seizure. Some of the topics covered here are search warrants, the doctrine of public view, stop and search, searches of cars, and research.

Chapter Three: Arrest: When it does, what it means. This chapter discusses the general principles of detention, arrest, arrests without warrants, the use of force during arrests and detentions of citizens.

Chapter Four: the identification of eyewitnesses: Psychology and procedures. Topics include procedures for identification of eyewitnesses, the psychology of eyewitness identification, alignments, showups, photo ID, and the proposals to remove the identification.

Chapter Five: Reservations and deposit: and out of prison. The booking process, the organization of bail and be released on his own are covered here.

Chapter Six: The suspect asked. This chapter focuses on crime and criminal procedures and criminal responsibility, a grand jury, and diversion.

Chapter Seven: Criminal Defense Lawyers. You need a lawyer, public defenders, private defense lawyers, and self-representation are discussed in this chapter.

Chapter Eight: Understanding the relationship between lawyer and client in a criminal case. Topics include confidentiality, client-centered decision making, communication between lawyer and client, among others.

Chapter Nine: A Walk Through the Criminal Court. The court, in classroom, players lounge, court and explain the behavior.

Hearings in the tenth chapter. Timing and self-representation at the hearings look here.

Chapter XI: Developing the strategy of defense. Just what the title of the chapter, the fundamentals of defense strategy.

Chapter XII: Crimespeak: understanding the language of criminal law. Basic principles on things such as murder and manslaughter, rape, robbery, theft, hate crimes, the Patriot Act and more.

Common defenses Chapter XIII: Defensespeak: criminal charges. Topics such as partial defense, self-defense, alibi, and madness are covered here, among others.

Chapter XIV: Discovery: the exchange of information with the prosecution. Discovery is an important part of any legal or civil case and this chapter provides the basis for criminal matters.

Chapter Fifteen: investigate the facts. Interviews and testimonies are a few things here.

Chapter XVI: The preliminary hearing. What are your rights, and strategies of both sides are presented here.

Chapter Seventeen: Test of fundamental rights of defense. Topics covered include: due process, the burden of proof, the right to remain silent, the right to address the problem of witnesses, Right to Jury Trial, Right to a lawyer, and others.

Chapter XVIII: the ground rules evidence in criminal proceedings. There are procedures to follow in the presentation of evidence and this chapter provides guidelines for doing things right.

Chapter XIX: proposals and their role in criminal proceedings. Learn what they are and what they are in this chapter.

Chapter XX: offers reason: The majority of criminal cases must stand. Fundamentals of plea deals, the pros and cons, the process and the strategy of negotiating plea deals are discussed in this chapter.

Chapter Twenty-One: the process of experimentation. Good chapters on various aspects of a process of electing a judge or jury deliberations and verdict.

Chapter Twenty: Sentencing: How to punish the guilty by the court. The fundamentals of the procedures and sentencing options and a bit ‘on the death penalty.

Chapter Twenty. Appeals: An appeal by a High Court. Losing the process does not necessarily mean it’s over. This chapter includes resources and cars.

Chapter Twenty: How the Criminal Justice System Works: A Walk Through Two Drunk Driving cases. The sample used for drunk driving.

Chapter Twenty: Juvenile Courts and procedures. Separate chapter explains how things work in juvenile courts.

Chapter Twenty: Regulation of prisoners. The information on prisons and prisoners ‘rights’, remedies, words and forgiveness.

Chapter Twenty. Research the law. What and where research, including a glossary.

Again, this book is a large volume of information. It is well organized and has cost many bars and examples. If you have a question about criminal law, more than likely that this book will have an answer. The authors suggest that the law varies from state to state, and I would recommend that in addition to this book, anyone who has dealings with the criminal justice system in their look at the statutes of the jurisdiction should ensure they have the law that is applicable to their case. That’s why I like the last chapter provides guidance in this area. The authors also note that the book is not intended as a detailed guide to self-representation. This is a comprehensive overview of the whole system, but not all, and this because you can not put everything on our complex system in a book.

This is an excellent tour of the criminal justice system and one of the best resources around the layperson who wants or needs to navigate the complex maze of rules and laws that shape our system. I recommend it highly to anyone wanting to know everything about the law.

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THE ENGLISH LEGAL SYSTEM

Before one considers what laws are and how they are introduced into a society or a circumstance, it is necessary to consider…

WHY WE HAVE LAW

People’s behaviour, sometimes, may lead to generally undesirable outcomes, injurious to one or more others physically or as repugnant. People have sought to establish some rules, to enable the smooth functioning of the societies in which they live, of a kind that themselves can sanction to avoid chaos.

WHAT ARE LAWS

The set of rules that regulate behaviour are laws; and those that regulate human behavior in ways that they can be legally sanctioned if breached are men’s Legal Laws.

What the should be the basis of such rules, the extent of the limitations on man’s actions, who and how should decide and organize them, apply the sanctions -with what safeguards against injustice and as defined by whom and how, and the growth of society -necessitating variations of them, and other such considerations, are essentially, also part of Law.

There has been the Authoritarian View -that law’s intention should be to prevent wickedness, and the moral welfare of the society; and there has been the Libertarian View -that private morality and immorality is one’s own business and not of law: e.g., the Misrepresentations Act 1967.

THE AIM OF LAW

The Libertarian view has been mostly preferred, aiming to ensure two things:-

1. Primarily, with minimum conflict with natural law, rules for the survival of the society (e.g. regarding murder, theft -mostly criminal in nature), against human greed and aggression.

2. Secondarily, to make allowance for growth, and complex situations by way of…

a. A system of adjudication for the settling of e.g. mercantile disputes

b. A system of who and how to change the rules as and when necessary

c. A system of recognition of the primary rules themselves as legal rules.

In a non-complex society an elected body should make, and publicize, and sanction, above all, Criminal Law (rules intended primarily for a simple society with a unity of purpose which is, above all, survival -regarded as being best ensured by considering it most important that the norm should not be

deviated from, to enable cohesion and solidarity).

In a complex society there being no unity of purpose and the emphasis being on the interdependency of the members of the society, deviance would not be the most important consideration, and the purpose and the function of any law would be, chiefly, between conflicting individual interests, to maintain a reasonable balance, mostly by Civil Law -for which reason in e.g. European Law the interests of the individual are paramount to those of the state.

ENGLISH LAW

Classification of English Law is as being, both, affected by, and incorporating in part -and increasingly, international law; it comprises of…

INTERNATIONAL LAW and NATIONAL LAW

INTERNATIONAL LAW

Britain must respect and meet the expectations of various international agreements in the application of its laws -whether binding on it or not, to maintain its political standing among other countries; and, often, such expectations are met by its own, voluntary, incorporating of such laws into English law. This is done, mostly, as a condition of its membership of the European Union, as and when it is directed by Europe -as in the case of the level of its water-purity and the European directive regarding a standard common to all member states of it, and as in the case of the requirement to treat as binding on itself e.g. the Single European Act 1986.

NATIONAL LAW

National Law, on the other hand, is that which is made by the state, for the state, and in Britain by its Parliament, intended, within the state, in this case within Britain alone -with variations for Scotland and Northern Ireland, to ensure the non-anarchic organizing and running of the society, in respects from less of consequence to those fundamental, increasingly as written-law, as:-

PRIVATE LAW and PUBLIC LAW

PRIVATE LAW

Private Law regulates the dealings of the individuals with each other within the state, under such headings as:-

Family Law, Tort, Property Law, Commercial Law

Family Law is a good example of the laws in this category; it deals with matters between individuals such as marriage, divorce, and matters arising as related rights -such as the custody of children, e.g. the Family Law Reform Act 1969.

Tort or Torts -as some prefer to call it (from the French word meaning wrong, or wrongs), is the private individual’s right -if without financial assistance from the state s/he can, not to be civilly wronged by another, sometimes by an organization, in respects not contractual, sometimes including such as, with a very fine distinguishing line, may fall short of being criminal ~e.g. negligence, or the Occupiers’ Liability Act 1957.

Property Law, also called Land Law, deals with matters of property, such as land that in practice is regarded as personal -although ‘all land belongs to the Crown’, and including matters of dispute over minerals under it and treasure trove, as well as dwellings on it and fittings, often dealt with by the Courts of Chancery -e.g., the Law of Property Act 1925.

Commercial Law comprises of laws of major importance in the dealings of individuals with others, such as:-

Mercantile Law, Consumer Law, and the Law of Contracts

Mercantile Law is the original body of laws that governed commercial dealings ~it was so called because it involved dealings of merchants with each other. As it developed, it concerned itself also with dealings between merchants and the consumer, and the occasional agreements between the individuals -which later grew into separate laws themselves. Almost exclusively, it deals with such matters as competition between traders, trademarks and patents, and e.g., bills of exchange under the Bills of Exchange Act 1982.

Consumer Law is from laws-merchant; it regulates the dealings of the individuals with merchants as to, e.g., the quality, and return, of goods purchased, deeming existent a collective contract between the consumers and any trader, as in the Sale of Goods Act 1977(as amended).

Contract Law is about the, not necessarily regular, agreements of individuals with others, on specific terms offered and accepted (unless under duress or by coercion), intending it to be legally binding, for consideration in return, e.g., under the Misrepresentations Act 1967.

PUBLIC LAW

This branch of the law governs the relationships between the state and other states, and between the individual and the state, under such major headings as:-

Constitutional Law, Administrative Law, Criminal Law

Constitutional Law is about the system, the framework, of who and how, and how come to, govern, by which laws how made and applied, as the state; e.g., the Parliaments Acts 1911, 1914.

Administrative Law defines and controls the limits of government, mostly protecting against absolute power, enabling complaints and appeals against the state -e.g., the Human Right Act 1998.

Criminal Law regulates such conduct of the individuals as are regarded to be against the society, actionably, punishably, by the state; e.g. Offences Against the Person Act 1861.

THE DIFFERENCE BETWEEN PUBLIC AND PRIVATE LAW

The differences are, mainly, these:-

Public Law are those categories of law, such as Administrative, Constitutional, Criminal, which involve the conduct of the state in relation to itself, or in relation to society generally, through one or more individuals, or the conduct of the individual against the society -mostly through one or more other individuals, in representing the society.

Private Law, i.e., Family, Tort, Property, Commercial -with its branches, chiefly, involves the state as only the arbitrator in personal or collective dealings between the individuals.

THE DIFFERENCE BETWEEN CRIMINAL LAW AND CIVIL LAW

IF IT IS CRIMINAL LAW…

1. It is Public Law

2. It is between the state and the individual or organization

3. The state (Crown Prosecution Service) complains, prosecutes)

4. It is registered as R –v- name of the accused (R = Rex/Regina –the monarch)

5. Proof is the states, beyond reasonable doubt

6. It is dealt with by Magistrates, or by Crown Court

7. It is Not Guilty or Guilty and a Sentence –imprisonment/community-service/fine and trial costs unless on legal assistance

IF IT IS CIVIL LAW…

1. It is Private Law

2. Its is between individual/s and/or organization/s

3. The individual/s or the organization sues

4. It is Complainant (plaintiff) –v- Defendant (their names)

5. Proof is on a balance of probabilities

6. It is dealt with by a County Court or the High Court

7. It is a Judgment and the winner is awarded a remedy and, normally, costs

THE LEGISLATIVE PROCESS IN ENGLAND

The Sources of English Law

Main sources of law in England are:-

1. Legislation -including Delegated Legislation…

2. Precedent (Judge-made law) -which mostly comprises of the Laws of England and Wales and as (differently) applied in Northern Ireland (the basis being same of the slightly differing Scottish Law -and of the laws of many countries of the British Commonwealth)…

3. European Union Law -which is increasingly becoming the major source of English Law (expecting compliance with also the European Convention on Human Rights -the enhanced version of the Universal Declaration of Human Rights) -e.g., the Human Rights Act 1998 (implemented in 2000) incorporated into English and all United Kingdom law.

The Legislator, is the Parliament.

The Parliament is the House of Commons, and, the House of Lords -with the Monarch.

The House of Commons are the elected representatives ~mostly from political parties -with committees and ‘whips’ (who deal, mostly, with the discipline of their members). By “the supremacy of Parliament”, in fact, is meant the ‘supremacy’ of this House -since the Parliament Acts 1911 & 1949 it can bypass the House of Lords, and, since Queen Anne, in 1707, conventionally, to every Act of it the Monarch always assents.

The House of Lords are the unelected representatives, so knighted by the Monarch, some as Hereditary Lords (the eldest son inherits the title) and many increasingly as Life Peers -almost always upon the recommendation of the political parties themselves; the numbers were limited of them with voting rights by the government at the beginning of the 21st century and its members have been considered that should be selected by a panel appointed by government. Its Right to Veto the Commons has been, since 1911, inconsequential, and since 1949 within a year invalid -it serves in effect as a chamber of second opinion and its decisions are not binding on the House of Commons and occasionally have not been followed.

The Monarch, since 1707, may not veto Parliamentary Legislation; but, must formally assent to it -although she does not personally sign it, before it can become legislation.

Legislation is a law, in the form of a Statute. It is formally enacted -or made, by or by the authority of the Parliament, effective when assented to, as an Act of Parliament.

Acts of Parliament, ‘Statutes’ are laws, produced by the Parliament, and comprise also of less important law, with the authority of the Parliament, as Delegated Legislation.

Delegated Legislation enables the management of major Legislation by the Legislator -Health & Safety Act 1974, the COSSH Regulations 1988.

Statutory Instruments by the Executive’s ministers, through other bodies, make effective such Legislation as about health and safety, transport, and as about social-security and taxation.

Orders in Council are by the Monarch with the Privy Council, in cases of emergency -also on appeal from some Commonwealth countries.

By-Laws are made, mostly, by Local Councils (Town Halls as, or as part of, County Halls) -by locally and independently elected town or county mayors and councilors with knowledge of their individual districts.

The advantages of delegating legislation is that it enables saving time, expertise, and flexibility; the disadvantages are that it gives wide powers to make laws without debate and which may not be as much publicized as the Acts of Parliament themselves and as much known to the public.

Legislating

A Bill is a proposed legislation normally producing an Act of Parliament -it normally begins with one or another type of Bill being introduced.

Types of Bills

The type of a Bill depends on who propose the legislation -as follows…

Public Bills by government, proposing legislation affecting the nation as a whole -were so introduced the Criminal Disorder Act 1998, and, the Access to Justice Act 1999.

Private Member’s Bills by members of Parliament, which may be of national effect -the Arbitration Act 1967, the Disability Discrimination Act 1996, both, began so.

Private Bills by individuals, through a member of Parliament, affecting fewer -such a bill proposed the University College London Act 1996.

A Bill, with slightly variations depending on its type, before becoming Law, goes through a number of stages.

Stages of a Bill

The Stages of a Bill are, sometimes strictly, with adherence to set procedures, Readings, at both the House of Commons and the House of Lords:-

The First Reading involves formally, mostly, Naming the Bill, with its date, and making available printed copies of it, normally, with no, or very little, debate on it…

The Second Reading involves Explaining the Bill -debating its general principles, and voting on it…

The Committee Stage involves the political parties, which are represented proportionately, putting forward their views -or expert opinion being obtained on it; and at the Report Stage the House being informed of these and the Bill being voted on.

‘Division’ sometimes takes place on how to vote on the Bill among the Members of Parliament, and when so, an Eight-Minute Break is allowed them and their Party Whips to discuss it and to decide how to vote on it.

The Third Reading, usually, is, with any verbal amendments to the Bill, the final vote.

This procedure is followed by both of the Houses of Parliament, except that Bills may begin not at the House of Lords if they are to do with such matters as taxation.

The Royal Assent involves the Signing of a Bill that has gone through all of its previous stages successfully, by the Monarch ~but the Monarch need not, and does not, personally sign it -conventionally, the Monarch does not refuse; and, unless stated that it will become so after a time interval, from then on a Bill becomes formally an Act of Parliament, Law which often authorizes delegated legislation too.

It is considered essential to inform the public of the laws proposed and of the laws made, and this is done, at different stages, by way of publishing a White Paper, a Green Paper, and a Statute -delegated legislation also being made in printed form publicly available.

These procedures may sometimes be confusing: e.g., section 6 of Employment Protection (Consolidation) Act 1985 was a Bill introduced as being intended to be of psychological effect only and not of any legal effect before passing all of its stages and becoming Law.

JUDGE MADE LAW

Precedent, briefly. Britain, unlike the USA and the European Union countries, not having a Written Constitution, Codes of Law enacted by the representatives of the people, English Law is based on Common Law -judge-made law ~judges interpret and (also in those criminal cases where that it is increasingly considered by the government that should not sit juries) apply the law.

Where ‘Written Law’ -an Act of Parliament, does exists, they do so under Rules formulated by the English Courts, such as:-

The Literal Rule -where the Court does not consider the written law to require judicial interpretation, literally taking the words of the Statute…

The Golden Rule -if they consider the literary meaning to be, e.g., absurd of any Written Law, interpreting it as they would consider not perverse.

The Mischief Rule -if the Court considers it must interpret the purpose of the written law -the Intentions of Parliament, which they do under the Interpretations Act 1889 -barring reference to the Hansard (the official transcript of all words spoken in the Parliament -placed in its library).

These Rules are sometimes confusingly stated, and in relation to appeals, e.g. from cases under the Sex Discrimination Act 1975, its is stated that “no issue of law arises if the Tribunal simply misunderstood or misapplied the facts” -following reference to precedent that an issue of law arises if a decision is “inconsistent with the evidence”.

A Decision, in English Law, consists of two parts, the ‘Ratio Decidendi’, and the ‘Obiter Dicta’ -the former being Precedent, the binding part, which sets out what the Principle is ~the latter being things said by the way -which are not binding but may be persuasive.

Until the late 1990′s English courts and tribunals did not have to give reasons for their decisions, including in civil cases in which juries do not normally sit in Britain -European Law now requires them to do so, often if within a specific period of time ask to do so.

The Principle, unless ‘distinguished’ becomes ‘Precedent’ binding on all lower courts, and in the case of the Court of Appeal also on itself.

Precedent are reported by the Incorporated Council of Law Reporting in the Weekly Law Reports (WLR) officially, and privately in e.g., the All England Law Reports (AELR).

Precedent, to all intents and purposes, is Law until it is reversed by a higher national Court or by the European Court, or becomes obsolete by an Act of Parliament, or by European Union Law.

Judge-made Law is regarded mainly to have the advantage of being not rigid and enabling for changes more quickly than it may take parliament to make them -its disadvantage is considered to be that unlike as in the case of Codes it is law which is not by elected representatives of people.

PARLIAMENTARY SUPREMACY

The Presumption of the Supremacy of the British Parliament in respect of English Law is, briefly, based on the Monarch no longer refusing to give assent to a Bill passed by the Parliament, coupled with that of Precedent being in line with the Intentions of Parliament.

The Inconsistency of that presumption has been proposed on the fact of the European Law (including the decisions of the European Court and of its ‘national branches’ which are empowered to declare any law made by the British Parliament ‘not law’ and of no legal effect where it is the view of Europe that Britain ought not to have such a law -e.g., for the reason that it contravenes the Articles of the European Convention on Human Rights) being binding on the United Kingdom Government and on its Courts -as on all other member states of it.

Laws in the European Union states continue increasingly and rapidly to change in the course of commonization of various laws, and in Britain, within a short time of a Department of Constitutional Affairs being created in addition to the Lord Chancellor’s Department, also a Ministry of Justice was added –it is wise when it may otherwise be of consequence to always ascertain what current laws are.

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If you are an inventor, a writer, a musician or a designer, it doesn’t matter if you live in Murrieta, California, San Diego, CA, Mission Viejo, Carlsbad, La Jolla, Westminster, Orange County, Anaheim, Orange, Irvine, Escondido, San Luis Obispo, Rancho Cucamonga, Ontario, Huntington Beach, Temecula or Palm Springs, Palm Desert, or Indian Wells, CA, the law is the same with regard to intellectual property in California. But why are patents, trademarks and copyrights are considered “Intellectual Property?” A good patent lawyer, trademark attorney, copyright lawyer or intellectual property law firm can tell you.

 

Actually it is the inventions that are patented, the symbols or words that are trademarked and the works of literature, music, film and the like that are copyrighted that are considered to be the intellectual property, but the question is really what makes them either intellectual or property?

 

Some, if not many of the works that are copyrighted are anything but intellectual, but their copyrights are extremely valuable nonetheless.

 

A funny looking symbol that becomes a trademark is perhaps more artistic than intellectual, but that symbol can be worth millions.I

 

nventions are really more inventive than intellectual, but if they work, they can be a benefit to mankind.

 

So, is it right that any of these things should be considered the property of one and not all of us?

 

What gives one person the right to protect a set of words or an invention as their own property?

 

Well, what the law does is reward people for their intellectual efforts. Whether that effort is to paint a beautiful painting, to write a wonderful piece of music or to create a device that makes it easier or more energy-saving to do something, that person deserves to be rewarded. And what the law does is give that composer or inventor a number of years to make a monetary reward from his or her efforts.

 

Some people question why a composer or inventor still has to go to great cost or effort to then market their works before they get any reward. Why aren’t they simply paid for the creation? Why do they still have to become marketing and advertising geniuses? Why must they even pay filing fees or an attorney to have their works and inventions protected.

 

The answer is simply a question. Who would pay these writers and inventors? The U.S. Patent and Trademark Office doesn’t have money to pay these people. Nor does the Library of Congress.

 

The system that is worldwide for protecting the works of our most artistic and intelligent people is not without fault, but it is the best system devised to date, despite the many efforts by pirates and infringers to steal the rewards that should go to these writers and inventors.

 

Patents, trademarks and copyrights can be extremely valuable. The copyright infringement of a book not long ago resulted in a seven figure settlement. Trademark infringement and patent infringement cases routinely result in settlement in the millions. And patents can be licensed or sold outright for tens of millions of dollars and sometimes more.

 

If you would like more information on intellectual property, need defense in a lawsuit, or wish to patent an invention or design, trademark a slogan, symbol or phrase, or copyright a literary work, photograph or a musical composition as an example, we invite you to call us.

 

If you have an intellectual property matter in Orange County, San Diego, in the Inland Empire, Palm Springs or anywhere in Southern California, we have the knowledge and resources to be your San Diego Intellectual Property Lawyers, and Orange County and Anaheim Intellectual Property Attorneys. For this reason, be sure to hire a California law firm with copyright lawyers who are ready to serve you in many areas such as Costa Mesa, Anaheim and Pacific Beach so you are properly represented when you need to be.

 

If you have an intellectual property matter and need to know your rights, call the Law Offices of R. Sebastian Gibson, or visit our website at http://www.SebastianGibsonLaw.com and learn about your rights and options. You can also call us to speak directly to Sebastian Gibson on the phone about your legal matter.

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