December 26, 2008
Law, Proof, Legal, Burglary, Theft, Robbery, Assault, Deception, Criminal Law, Wounding, Causation, La
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THEFT AND NON-FATAL OFFENCES, STATUTORY AND COMMON-LAW PROOF IN CRIMINAL LAW CASES
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> Theft and Related Offences
Theft says s.1 Theft Act 1968 is the dishonest appropriation of another’s property with the intention to deprive the other of it permanently. The actus-reus of it is in s. 3 ‘appropriation’ (’any assumption of an owner’s right’) as can be changing price-labels to pay less: R -v- Morris 1983, or such ‘borrowing’ of a season-ticket in a way as makes it of no or little value: R -v- Llyod 1985 (’property’ being, s.4, all property including money and things in action, but physical things as paper and not abstract things as knowledge copied from it: Oxford -v- Moss 1979, limitedly on wild-growing plants [unless uprooted] and on flowers-fruits-leaves [unless for sale]; ‘belonging to another’ is by another owned or in lawful possession or control of another, e.g. taking without payment from repairer: R -v- Turner 1971). The mens-rea of it is ‘dishonestly’ in s. 2 (defined in terms of: s. 2(1)(a) unless s/he believes it right in law to do so or s. 2(1)(b) that the owner in the circumstances would consent if knew or s. 2(1)(c) that the owner could not by reasonable steps be discovered), regarded as a two-stage test of ordinary standard of reasonable man and knowledge of it: R -v- Feely 1968 & R -v- Gosh 198; also ‘intention to permanently deprive’ as in Lloyd.
The Theft Acts provide also for other offences.
Obtaining property by deception is in s. 15 of the ‘68 Act , as theft but ‘by any deception’ -by false words or tricky behaviour: R -v- Bernard 1837 (pretending as business inducing investment & supply of goods) R -v- Gomez 1993 (unentitledly in Salvation Army uniform collecting money).
Obtaining services by deception is s. 1 of the ‘78 Act -it is as for property in the earlier Act.
Evading liability in s. 2 of the ‘78 Act is the offence of similarly avoiding e.g. debts.
Making off without payment (‘bilking’) is s. 3 of the ‘78 Act ~e.g. restaurant -without paying.
Robbery is s. 8 enabling theft by force or such threats, at the time or before, as would put in fear another of there and then being subjected to it ~theft with assault or battery -max.: life.
Burglary in s. 9 is mostly by trespass -by unauthorised entry to or to any part of any building (including caravans & house-boats lived in), s. 9(1)(a) ‘intending to steal or inflict grievous bodily harm or raping any person within it, or doing unlawful damage to it or anything within it as a trespasser,’ s. 9(1)(b) or upon entry as trespasser without such intention doing or attempting so ~it is can be tried by Magistrates -by a Crown Court if involves the intention to rape or cause grievous bodily harm
Taking a conveyance without consent is s. 12, taking, driving or being in, any thing constructed for carrying people by land, water, or air (except pedal cycles) ~it is a summary offence, normally, with max. 6 month imprisonment -unless aggravated by dangerous driving, or damage to it, or accident causing injury or damage (in the Criminal Damage Act 1971 ‘reasonable careful person test’ applies).
> Non-fatal Offences Against the Person
Non-fatal offences against the person are in part common law offences, and in part by statute; and, in order of seriousness, they are as follows:-
In Smith -v-Chief Superintendent of Woking Police Station 1983 entering a garden at night, by looking through a bedroom window terrifying a woman was an offence under s. 4 Vagrancy Act 1824 ~if intending to assault -words alone are not normally enough.
Assault is causing apprehension of immediate unlawful physical violence intentionally or recklessly -its charged under s.39 Criminal Justice Act 1998. Threats not capable of being carried out do not constitute it.
Battery is the intentional or reckless subjecting of another to unlawful force; and, as in the case of hitting one wit a missile, it need not be coupled by assault. This also is in common-law, charged under s.39 of the Criminal Justice Act 1998.
In both of these offences the mens-rea is intention: R -v- Spratt 1990, or by subjective recklessness: R -v- Savage 1991 was deliberate unreasonable risk taking, and R-v- Parmenter 1991: not if the risk is obvious but if malice was involved. While both the actus-reus and the mens-rea must exit at the same time, the mens-rea can be formed in the course of the actus-reus: Fagan -v- Metropolitan Police Commission 1969 -having accidentally driven car on policeman’s foot, refusing to move car when told had formed it
Satisfactory evidence of consent is a defence: R -v- Donovan 1934 (prostitute beaten by a stick for sexual gratification), if the offence is not a more serious one.
Assault Occasioning Actual Bodily Harm is a s. 47 offence and it is when battery, alone or coupled with common law assault, the statutory ‘assault’ of the Act is so serious that it is likely to interfere with the victim’s health and comfort -without cutting the whole skin, physically such as grazing and concussion: R -v- Roberts 1971, or: R -v- Chan & Fook 1994 as nervous shock in psychiatric terms: R -v- Ireland & R -v- Burstow 1997 (a direct physical attack is not a requirement, also e.g. silent telephone calls may constitute the offence of causing actual bodily harm. Its actus-reus is itself as the consequence by the ‘but for’ test, the objective test; it requires this to be coupled with the mens-rea in the form of intention or subjective recklessness: Roberts (where intentionally or subjectively recklessly there was unlawful force, which objectively occasioned the bodily harm). In Donovan consent was not a defence because actual bodily harm was caused ~the nature and the degree of the injury itself being the decisive factor in whether common assault was the offence involved -to which only it is a defence, or actual bodily harm or greater..
Unlawful Wounding is a s. 20 offence, and it is by any means unlawfully and maliciously wounding or inflicting grievous bodily harm. In the actus-reus the ‘wound’ is other than a broken collarbone: R -v- Wood 1830 or internal bleeding: JJC -v- Eisonhower 1983; it need not be serious. But ‘grievous bodily harm’ must be serious -although not necessarily permanent or life threatening, nor by a direct attack: R -v- Martin 1881. The mens-rea of it is ‘maliciously’ (intention or subjective recklessness) which applied as transferred malice in intended hitting in R -v- Latimer 1886; but in R -v- Parmenter where ‘neither could have intended nor realised injury’, and consent here too was no defence in R -v- Brown & Others 1993.
Wounding with Intent is s. 18, the most serious of the Act’s offences. It is ‘unlawfully and maliciously by any means whatsoever to wound or cause grievous bodily harm… with intent to do some grievous bodily harm.. or to resist or prevent the lawful apprehension or detaining… of any person’; its actus-reus is as for unlawful wounding, but its mens-rea is the intention to commit the crime, and proof of that is required, but it can be reduced to and dealt with as ‘unlawful wounding’ based on subjective recklessness: R -v- Constanza 1996 : it can be stalking and if silent telephone calls cause mental anguish as in R -v- Gelder 1944.
Assault occasioning actual bodily harm and unlawful wounding carry a maximum sentence of five years imprisonment, but wounding with intent carries, as maximum, life imprisonment.
> The General Elements That Must be Proved Before Establishing Criminal Liability
These have to be looked at first, in considering whether any offences may have been committed. Some of these are statute-based and some under common-law, their development having been much affected by such pressures as economic, social, and political. Usually specific are the features of each crime, but there are some common elements.
One is innocent until ad unless found in law not to be -except in strict-liability cases; this requires showing both that a guilty act was done, as well as that it was intentionally done.
Actus-reus is the criminal act: e.g., s. 1 of the Theft Act 1968 ‘dishonest appropriation’; or the criminal omission: e.g., s. 6 Road Traffic Act 1988 ‘fails to provide a specimen’; or a criminal a state of affairs or event: e.g., in Winzar -v- Chief Constable of Kent 1983 the charge of ‘found drunk in the highway’; or the criminal consequence: e.g., s. 47 Offences Against the Person Act 1861 ‘occasioning actual bodily harm’-which is a ‘result crime’ necessitating showing a casual link in fact or in law.
Causation in fact is determined by the ‘but for test’. In R -v- White 1910 the mother’s death having been from natural causes, poisoning her was not the cause, and it not killing.
Causation of law depend on the contribution of the intervening act. R -v- Roberts 1972 injury of jumping out the car was caused by sexual advances made to the woman in the car; in R -v- Pitts 1842 drowning was caused while escaping from an attack; R -v- Lewis 1970 broken leg resulted from escaping threats and attempt of violence; the reasonable act of the victim in seeking to escape being subjected to a crime was the link. Contributory negligence of the victim in R -v- Holland 1841 (self neglect) did not break the link, in R -v- Deer 1996 was still the significant operative in the death -it was killing, a thyroid condition unknown to the accused at the time did not change the ‘egg-shell skull rule’ and one took one’s victim as one found the victim -and R-v- Blaue 1975 (refusal of blood-transfusion on religious grounds) this applies also in respect to the spiritual condition of the victim. The sole cause of death need not be the act or the omission and in R -v- Pagett 1983 the ‘instinctive’ fatal shooting by a policeman of a human-shield was unlawful killing of the accused who had ’substantially’ caused it; while some reluctance was shown by the courts in treating intervening medical treatment as breaking the link and in R -v- Smith 1959 as much as by 75% reduction of it by that did not break the link, in R -v- Jordan 1956 palpably wrong medical treatment was the direct and the immediate cause of death, from R -v- Cheshire 1991 it is clear that the link can be broken.
Mens-rea is the fault-level of the accused in the act or mission; it is often included in the definition of serious crimes e.g., ‘with malice aforethought’; it is ‘the guilty mind’ by intention, recklessness, or gross-negligence.
Intention, for most serious crimes, has to be specifically shown, by a subjective test deemed by the jury to have been present, R -v- Moloney 1985: in the form of foresight of, R -v- Hancock & Shankland 1986: the probable consequences, wilfully and deliberately carried out ~or in R -v- Nadrick 1988 with virtual certainty of the probable consequences -which may be intention: Scalley 1955.
Recklessness in ss. 47, 20, 23 Offences Against the Person Act 1861 (actual bodily harm, grievous bodily harm, rape) show basic intention; it can be subjective: leaking ripped off gas-meter killed in R -v- Cunningham 1957; or objective: R -v- Caldwell 1981 (arson by drunk) -s1(2) Criminal Damage Act 1971: as to whether life would be endangered.
Negligence can be mens-rea in non-strict-liability offences of e.g. Factories Act 1961 -but only as a last resort; but gross negligence, often, is sufficient mens-rea in homicide cases: Adomako 1994
Strict liability does not require mens-rea e.g. Food & Drugs Act 1995 -in Meah -v- Roberts 1977 of the unfitness of drink for human consumption the accused was innocent yet still guilty ~but in Warner -v- Metropolitan Police Commissioner 1969 (dangerous drugs case) ‘one cannot be in possession the contents of a package when he/she does not know what it is’.
These are an outline as guidelines; laws change, always ascertain current law.
The author has a website at: http://www.geocities.com/eoa_uk
.About the Author:
The author’s favourite site is the Teacher of Teachers
October 27, 2008
Pen, Lawsuit Funding, Personal Injury, Injury, Law, Legal, La, Loans, Finance, Loan, Financing, Cash Advance, Advance, Cash Advances, Lawsuit, Funding, Litigation, Case, Pending, Settlements, Litigation Funding, Pre-settlement, Presettlement, Lawsuit Funds, Personal Injury Lawsuit Funding
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Risk - Free Lawsuit Advance Funding for Plaintiffs
Pre-Settlement funding or Pre-Settlement Lawsuit funding is the lawsuit advance funding provided to the plaintiffs even before their case is settled.
Pre-Settlement funding enables plaintiffs in lawsuits to receive money months or years before their cases have settled.
Lawsuit Pre-Settlement funding or Pre-Settlement Lawsuit funding is a non recourse lawsuit advance and plaintiff pays back to Pre-settlement funding company only if he or she wins or settle the lawsuit case. It is some times called as Lawsuit advance funding, Lawsuit advance, Lawsuit funding, Lawsuit cash advance and Lawsuit loan.
Lawsuit: Lawsuit is a popular designation of a legal proceeding between two parties, i.e. Plaintiff and the Defendant in the courts of law, instituted by one party (plaintiff) to legally compel another (defendant) to do himself or herself justice.
Plato has once said - Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws.
As you very well know, deep-pocket defendants can buy time with legal ploys and delays, and manoeuver to frustrate the plaintiffs. Plaintiffs are often pressured financially, because medical bills and other expenses .About the Author:
About the Author: Paul Sherman is a Legal Funding Consultant. He offers free, professional, and independent advice to plaintiffs involved in lawsuits (incl. business owners) & Attorneys. To apply for Lawsuit loan, Lawsuit Pre-Settlement funding, Commercial Lawsuit funding, Law Firm loan, Attorney funding & Structured Settlement funding please visit: http://www.easylawsuitfunding.com
October 9, 2008
Legal, Software, Agreement, Legal Forms, Cohabitation, Life Partner, Cohabitation Agreement, Legal Software, Cohabitation Agreement Software
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In today’s society, for many people, establishment of a cohabitation agreement is of prime importance.
Not having such an agreement in place between life partners can have a significant and lasting negative impact on both members of the relationship. The financial health of the relationship as well as other matters hangs on considering the questions brought up by such an agreement.
Having said all that, what the heck IS a cohabitation agreement?
As the name implies, to state the matter simply, a cohabitation agreement is a written agreement or contract entered into by life partners before living together in a permanent relationship. During the relationship, a range of financial and property issues may arise which can be addressed in advance by the cohabitation agreement. In the unfortunate event the relationship should end in an untimely manner, the agreement will be able to provide for the protection of both parties, leaving no need for unpleasantness or ill-will. Addressing such issues before a need to address arises is a good way to relieve stress on what may already be a stressful relationship, thus allowing both parties to get on with building and enjoying the relationship.
Recent news stories have tended to focus on same sex relationships and the financial and legal difficulties faced by same sex partners in most cases. As a result of this media exposure, many people would have no problem understanding why gay couples, or even non-gay but same sex life partners, would have an interest in cohabitation agreements.
The public, and perhaps the people personally involved, may not be aware that there is yet another good sized segment of the population which may also benefit from access to these types of legal forms and documents.
The first phrase to look at is simply ‘unmaried life partners’.
These ‘life partners’ could be a child living with and tending to the needs of an aging parent for example. In another instance, it could simply be two people of the same or different sexes, each of whom have permanently taken upon themselves a partnership with the other for whatever reason.
The key issue for determining the possible need for a cohabitation agreement is that they are individuals who are living together in what is considered and intended to be a long term situation.
This article is certainly NOT intended to provide legal advice. However, it would seem to a prudent individual that it might be in the best interests of those in this type of relationship to either contact an attorney for guidance, or to take advantage of available cohabitation agreement software or do-it-yourself legal forms.
A valuable point to consider should you decide to follow the do it yourself route is what additional documents you and your life partner may need beyond the cohabitation agreement itself. While the cohabitation agreement does address many important matters concerning finances and property during the relationship and upon its possible dissolution, there are other issues not specifically covered by a cohabitation agreement alone.
For example, there will be questions of finances, health care, property rights, and after-death issues which wil fall outside the scope of the cohabitation agreement. Any married couple concerned about their futures and those of their family would address these issues by the preparation of legal forms such as quitclaim deeds, last will and testament, power of attorney, and a living will or living trust. It would be in the best interests of life partners to also consider the same issues in addition to the matters covered in a cohabitation agreement. Life partners do not always have the same protections under the law as those enjoyed by a typical married couple. This makes it especially important for life partners to be even more diligent in preparing in advance for all eventualities.
It is fortunate for those who might feel they need this sort of service that there are a great many excellent cohabitation agreement software packages available online in addition to bundles of legal forms. It would be in the interest of anyone in a long-term relationship with someone who could be considered a life partner to look into this type of material.
.About the Author:
Donovan Baldwin is a freelance writer living near Forth Hood,Texas. He is a University of West Florida alumnus with a BA in Accounting, and is a member of Mensa. He has an informative webpage where you can learn more about cohabitation agreements at http://legal-forms-supermarket.com/about/life_partner_cohabitation.html .
August 19, 2008
Law, Legal, India, Indexing, Data Entry, Patents, Law Firm, Coding, Legal Support, Lpo, Legal Processing Outsourcing, Legal Offshoring, Law-scribe, Law Scribe, La
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“The times they are a changing”
The traditional method of an attorney charging his client on the basis of the amount of time it took to perform a certain task will soon be a thing of the past.
This antiquated concept of hourly charging rates, and subsequently recording time, on a time per unit of work undertaken basis, depending on seniority of fee earner, is in the technologically advanced and global age we operate in, absurd.
In the US, contingency fees are the norm in a wide variety of areas. In UK employment law there is also a widespread use of contingency fees, with fixed fees having existed for several years for industrial disease cases and Road Traffic Accident cases with a value of below £10,000.
The question must be asked that if a fixed fee or contingency fee is to be charged, why bother wasting time, recording time? Here in the US firms no longer regard offshoring of legal services and outsourcing as dirty words. Offshoring legal services to common law jurisdiction destinations such as India and South Africa, enables a huge variety of legal work to be carried out at a fraction of the cost of carrying out that same work in-house in the US.
As more and more tasks are offshored firms will simply not be able to charge their client on the basis of an over inflated hourly rate. How can a US Law Firm justify charging a client $800 per hour on a case? In the past this would be on the basis that an experienced partner had conduct of the matter. Today, how much of the “work” would actually be done by the partner, and how would you value the input from everyone else? Do you need to have an hourly rate for every single member of the “team” working on a project, and should everyone be recording the amount of time they spend? Think outside the box a little: How does the IT department who created the case management system and the offshore legal service provider who is carrying out the client’s legal research and coding requirements, bill their time? The straightforward answer is that they don’t. The Law Firms that survive will be those who provide their clients with fixed fees and consign the system of billing and time recording to the history books.
As clients’ demands for greater transparency of charges become more prevalent it will be up to the Law firm to move with the times, to charge for their work on a fixed fee basis and to begin to offshore at the very least, non-core legal services. If they fail to do so they risk losing out to those firms or larger organizations who do embrace these changes. In the UK, “Tesco Law (Ralphs/Walmart Law)” when it arrives, plus on both sides of the Atlantic the currently hitting our computer screens, “internet DIY Law” will further speed up the inevitable changes.
Law Firms need to consider what their core services are. Anything else can be outsourced. Should US and UK Law firms really be wasting associate attorneys’ time in labour intensive, and mind numbingly boring document review projects. Should senior paralegals, be involved in coding and indexing? When did creating huge databases of litigation documentation become “legal work”? As soon as clients understand that this work does not need to be carried out by highly paid US and UK Lawyers, they will no longer accept blindly paying over-inflated hourly rates, on a time recorded basis. They will demand better value for their money and a fixed fee!
Outsourced legal work will no longer be restricted to offshore transcription. When the public realize that for a fraction of the cost their wills, real estate transactions, due diligence and contracts can be draw up and conducted overseas, to the same or better level of quality for a fixed fee, it is not difficult to see where they will turn. They will retain Law Firms who embrace offshoring and fixed fees or simply turn to other more forward thinking legal service providers.
There is an appetite for change in the judiciary. With increasing deregulation many anticipate that the previously mentioned “Tesco/Walmart law” is only round the corner. It would be foolhardy to suggest that such a provider would revert to the traditional time recording technique of charging its potential customers for services provided.
Clients are becoming increasingly aware that excessive hourly rates are simply no longer merited given the generally routine nature of a significant proportion of the legal work carried out on their matters. If one follows the logical conclusion that a fixed fee should be provided to the client for the work to be done, where is the need to time record?
But perhaps most significantly, the advance of technology, the same technology which has enabled us through increasingly more advanced case management systems, to time record effectively, will ultimately see an end to time recording, and indeed billing as we know it. Once lawyers realize that technology enables them to carry out even the more complex legal tasks, at the simple push of a button, in a fraction of the time, then recording time accurately and billing on the basis of this time becomes less and less profitable. The argument that time recording enables managing partners to assess the level of work being carried out by their fee earners also no longer holds true, because the technology in place enables tasks such as standard letters and documentation to be processed in a fraction of the time which would be recorded as single unit for time recording purposes. Those firms that survive will be those who embrace such technology, together with the desires of the client for greater transparency, and provide clients with a fixed fee quotation for the work to be undertaken.
No doubt hourly rates were introduced to reflect the fact that certain tasks would be carried out more effectively by a more senior fee earner who should in turn be more appropriately compensated for his efforts? Firms that continue to thrive will be those who embrace technology, offshore all but non-core legal services, share knowledge with each other, streamline tasks and charge a fixed fee for the work to be undertaken. Senior fee earners are not required to conduct the vast majority of litigation at inflated hourly charge out rates. Senior Lawyers and managers should be out there talking to offshore legal services providers, marketing for business, creating new ventures, clarifying and defining legal issues. The pace at which technology advances is exponential, unless we move with the times in respect of how we charge for the work we do, the client will go somewhere where there is certainty and clarity provided.
.About the Author:
I was formerly a partner at the UK law firm Underwoods Solicitors. Chambers Guide to the Legal Profession 07 refers to Underwoods as “a highly influential flagship firm and model for other firms…It has pioneered offshoring of legal work.” I oversaw the firm’s applications for Investor in People and Lexcel (UK Law Society Quality Standard) accreditation. I also developed a case management system for the offshoring of personal injury cases to South Africa. I immigrated to Los Angeles and joined LawScribe in 2006. I am a regular speaker at legal conferences on outsourcing and offshoring and have had numerous articles published in legal journals on subjects as varied as: death of the hourly rate, liberalization of the Indian legal sector and the ongoing salary hikes by the US and UK’s top law firms. My article calling for Accreditation and Self-Regulation for the Legal Process Outsourcing Industry has been widely acclaimed and published as a white paper by the LPO Network, and the International Association of Outsourcing Professionals (IAOP). I am a professional member of the IAOP, and Chapter Chair of the IAOP Legal Outsourcing Topic Chapter.