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miscarriage
Of Justice
Leaving aside issues of evidence and proof, one possible definition of
"miscarriage" in the context of criminal justice will now be
suggested, and it is one which reflects an individualistic rights-based approach
to miscarriages of justice. A miscarriage occurs as follows: whenever suspects
or defendants or convicts are treated by the State in breach of their rights,
whether because of, first, deficient processes or, second, the laws which are
applied to them or, third, because there is no factual justification for the
applied treatment or punishment; fourth, whenever suspects or defendants or
convicts are treated adversely by the State to a disproportionate extent in
comparison with the need to protect the rights of others; or, fifth, whenever
the rights of others are not effectively or proportionately protected or
vindicated by State action against wrongdoers or, sixth, by State law itself.
....
These six categories, which revolve around themes of breach of rights of
suspects/defendants, the disproportionate treatment of suspects/defendants or
the non-vindication of the rights of victims, might be termed direct
miscarriages. In addition, it may be possible to derive from their infliction a
seventh, indirect miscarriage which affects the community as a whole. A
conviction arising from deceit or illegalities is corrosive of the State's
claims to legitimacy on the basis of its criminal justice system's values such
as respect for individual rights. In this way, as well as the undesirable fate
of the individual, the "moral integrity of the criminal process"
suffers harm. Moreover, there may be practical detriment in terms of diminished
confidence in the forces of law and order leading to fewer active citizens
aiding the police and fewer jurors willing to convict even the blatantly
"guilty". It is arguable that this indirect form of miscarriage can
exist independently as well as contingently in two respects. One is that a
breach of "the principle of judicial legitimacy" should be of concern
even if there is an accurate and fair determination of guilt or innocence.
Secondly, it still produces a great moral harm even if, so far as the individual
is concerned, there is a mistake but no real harm is inflicted (say, when a
person imprisoned for life is wrongfully convicted soon afterwards of a minor
motoring offence). It is therefore argued that the State itself should avoid
actions or processes which might damage the integrity of the system. Consistent
with this concern, lawyers, whether acting for prosecution or defence, are
reminded that they are not the ciphers of their clients but owe duties of
integrity to the system.
In summary, there are four points to infer from the definitions of
"miscarriages" adopted in this chapter. Firstly, the meaning is not
confined to miscarriages in court or in the penal system. Miscarriages can arise
on the street when the police unjustly exercise their coercive powers, as may be
increasingly the case if the rationale of criminal justice is switched from
conviction to surveillance. Secondly, miscarriages can be institutionalised
within laws as well as ensue from failures in the application of laws. Thirdly,
a miscarriage of justice must involve a shortcoming for which there is a degree
of State responsibility. In these days of private security services and prisons
and other forms of "hollowing out" of government, it is not essential
that an official agency was involved in the proximate cause of the miscarriage
so long as the function leading to the miscarriage was of a public nature and
sanctioned by the State. But deceit, neglect or violence by private persons or
bodies may inflict gross hardship and unfairness yet are not necessarily
attributable to any deficiency in the criminal justice system. We do not
normally assign the phrase "miscarriage of justice" to a breach of
contract or a trespass - unless a public agency was to blame or the State failed
to offer any system for resolution or redress. The fourth point is to reiterate
what was asserted at the outset: justice and failures of justice should
primarily be defined with respect to rights. This last claim will now be
explored further, but, if substantiated, will imply a strong duty on the part of
the State to be vigilant about miscarriages and to be willing to rectify them,
even if at some cost to aggregate happiness and traditions of utilitarian
calculus.
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Introduction The best way to keep your legal problems from becoming
destructive and expensive is to start with reliable information. Legal services
help line has been set up to help you to reduce conflict and to keep you out of
lawyers offices and out of court. We are here to enlighten you to deal with your
legal problem with confidence and maturity .
Ask yourself the following
questions
1. Isn't there some good way to get through it easier and cheaper ?
2. What can put you in control and make your legal problem smoother, cheaper, faster, less aggravating and less painful
?
3. When, why and how to approach lawyer ?
4. What to ask your lawyer ?
5. Why one shouldn't go off to a lawyer without any information or preparation ?
6. Want to know what happens when you go into a lawyers office and you don't know anything ?
7. How to know what should you ask your lawyer ?
8. How to gain your lawyer's respect ?
9. How to control the legal gain to your advantage ?
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Few points you should ask a lawyer
1. Ask your lawyer his experience in this field.
2. Ask him whether he handled matters similar to yours.
3. What could be the possible out come of your case.
4. Whether you have any alternatives in solving the matter.
5. How long could it take to solve the matter.
6. Ask him about his fees. What could be the total expenses
7. How will he keep you informed of the progress of your case.
8. Ask him what kind of approach will he take to solve the matter.
9. Who else will work in your matter.
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What are The
professional obligations of a lawyer?
All lawyers have to maintain the code of conduct as prescribed :All
lawyers have to maintain the code of conduct as prescribed : Privileges, ethics,
rules of professional conduct: lawyers have high standards and lots of duties to
uphold. Your lawyer must represent you ethically, zealously and within the
bounds of the law.
Here are some
basic ethical and professional rules your lawyer must follow:
- Your
lawyer must competently analyze legal issues and exercise
knowledge of the law applicable to your case. He or she must
communicate with you in a timely and effective manner.
- Your
attorney owes you, as the client, a duty of loyalty. Your
lawyer cannot simultaneously represent you and as well as
another client with legal interests that conflict with yours.
An example of an obvious conflict would be representation of
both the plaintiff and the defendant in a law suite.
- Your
lawyer is required to follow your directions in handling your
case until and unless those directions given by you are
illegal.
- Your
lawyer is under the duty to keep your personal property
separate from his or her own property, and must keep your
money in an escrow account. So that any time you demand
it, your lawyer must return your money or property.
- Your
lawyer may have other responsibilities to you, depending on
your case and the ethical rules that apply in your
jurisdiction.
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Are
your discussions with your lawyer confidential?
Yes.When you speak with a lawyer about a legal matter, your
communications with that lawyer are privileged. This means that
subject to some very limited exceptions, and unless you grant
permission, your lawyer cannot disclose to a third party any
information that you provided. Yes. When you speak with a
lawyer about a legal matter, your communications with that lawyer
are privileged. This means that subject to some very limited
exceptions, and unless you grant permission, your lawyer cannot
disclose to a third party any information that you provided.
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What
is Contempt of Court?
Under the Contempt of Courts Act, 1971, contempt means civil and
criminal contempt. Willful disobedience to any judgment, decree,
direction, order, writ or other process of a Court, or willful
breach of undertaking given to the Court would amount to civil
contempt under the Act. Publication of any matter by words that
may be spoken or written, or by way of visible representations or
otherwise or the doing of any of the following acts, would amount
to criminal contempt:
the doing of any act which scandalizes or tends to scandalize the
authority of any Court;
the doing of any act which lowers or tends to lower the authority
of any Court;
the doing of any act which prejudices or interferes or tends to
interfere with the due course of any judicial proceeding;
the doing of any act which interferes or tends to interfere with
the administration of justice in any other manner;
the doing of any act which obstructs or tends to obstruct the
administration of justice in any other manner.
Under the Act, Court would mean to include Tribunal, if such
Tribunal is entrusted with judicial functions. However arbitrators
cannot be brought within the scope of the word 'Court' and cannot
be held to be 'Court', unless such arbitrators are appointed
through the Court.
However the following cannot be held to be contempt:
innocent publication and distribution of matter;
fair and accurate report of judicial proceedings;
statements made in good faith, concerning the Presiding Officer of
any subordinate Court (Court subordinate to the High Court) to any
other subordinate Court or to the High Court;
in certain cases, publication of information relating to
proceedings in chambers or in camera.
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Few
tips to bounce back from bankruptcy
If you follow these tips given below you can become debt-free and
stay debt-free. Money is power nothing less nothing more. Our
thoughts about money generally falls under three categories :
1. We spend most of our time and energy worrying
about and talking about our money problems. This is where you will
find most of us complaining "I' am not going to have enough
money to ."
2. The next step is to elevate our thinking by setting
goals for our self. This second category is where we spend most of
our time saying things like "I want to achieve this goal I
have set, but I have this money problems
3. The next category is where we say things like "I
have this goal, and it may be very tiny goal, but it is my goal
and this is my next step I am going to take to make this goal a
reality. "This is where we want you to be if you are already
there congratulations
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If not follow the following tips
a. Release things that take up space in your life
b. Pay what you can
c. Release people from what you owe them
d. See the highest good for everyone
e. Give thanks for your debts
f. Don't brag about your plans
g. Pride shouldn't stand in the way of your prosperity
h. Be patient with your self
i. Learn from your experience
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How to change your lawyer
Every client has a right to discharge his
or her lawyer at any time for any reason or no reason at all,
irrespective of the fact whether or not any money is owed. Off
course you will continue to owe your formal lawyer for time spent
working on your case.
If your lawyer is not performing to your satisfaction, you may
wish to send a letter (keep copies the letter) stating all very
specifically what needs to be changed. In spite of your discontent
expressed to your lawyer there is no improvement, then you may
start looking for another lawyer.
Something's cannot be changed: for
example, when you loose trust and confidence in your lawyer or
nothing is worse than filling trapped in a bad relationship with
your lawyer. Then the only way out is to change your lawyer.
As par Ed Sherman for practical divorce solution If your spouse
has an attorney, it would be unwise to fire your old attorney
until you have another, and your new attorney will arrange the
transfer. However, if your spouse has no attorney, you can
consider taking over the case yourself. If you discharge your
attorney to take over yourself, do it in writing and keep a copy
of the letter. If the attorney has filed documents in court, you
must also file a Discharge of Attorney naming yourself as the new
attorney "In Pro Per" or "Pro Se," which means
that you represent yourself. We have a Discharge of Attorney form
that you can copy and use. Copy or print it, fill it out, sign it,
make three copies. Have someone (not you) mail a copy to your
ex-attorney, your spouse and your spouse's attorney, if any. That
person signs the Proof of Service at the bottom, then you file it
with the court clerk. Send a letter to your ex-attorney politely
explaining that you have taken over your own case and request that
all files and papers be immediately forwarded to you. An attorney
cannot ethically delay turning over files and Documents merely to
pressure you into payment of amounts owed. Failure to promptly
forward files as you request is a breach of the attorney's ethical
duty to you. In case of unreasonable delay, fire off a letter of
complaint to the local and State Bar associations with copies to
your old attorney. Meanwhile, you can always get copies of court
documents from the court clerk.
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First
Information Report (FIR)
The information given to a police officer and reduced to writing
as required by the following sections is known as the "first
information" and the corresponding report is understood to
mean the "first information report (FIR)"
Section 154(1) of the Code of Criminal Procedure provides that
every information relating to the commission of a cognizable
offence (i.e. an offence for which a person may be arrested even
without warrants), if given orally to an officer in charge of a
police station,
shall be reduced to writing by him or under his direction,
be read over to the informant,
every such information whether given in writing or reduced to
writing, shall be signed by the person giving it,
substance thereof shall be entered in a book in a prescribed
manner.
S154 (2) provides that a copy of the information as recorded under
sub section (1) shall be given free of cost to the informant.
S154(3) provides that if the information is not recorded by the
police officer,the informant can approach the Superintendent of
Police by sending him the substance of the information by post.
Such officer can investigate the case himself or direct an
investigation by his surbodinate officer.
Where any information disclosing a cognizable offence is laid
before the officer-in-charge of a police station, he has no option
but to register the case and thereafter start investigations.
The principal object of the FIR from the point of view of the
informant is to set the criminal law in motion and from the point
of view of the investigating authorities is to obtain information
about the alleged criminal activity so as to be able to take
suitable steps to trace and bring to book the guilty.
The word "information" means something in the nature of
a complaint or accusation, or at least information of a crime,
given with the object of putting the police in motion in order to
investigate, as distinguished from information obtained by the
police when actively investigating a crime.
In determining whether a report is or is not a FIR, regard should
be had to the following:-
It should not be vague or indefinite but an information of facts
showing commission of a cognizable offence enabling the police or
giving scent to take up investigation.
It may be given by any one, not necessarily the person aggrieved
or by someone on his behalf.
It need not name any one as offender or witness; nor need it state
the circumstances of the commission of the crime. It is the first
information, which sets the police in motion.
No duration of time is fixed as reasonable for giving information
to the police. Mere delay, therefore, in lodging the FIR is not
necessarily, as a matter of law, fatal to the prosecution. Where
delay in filing the FIR in a rape case had taken place, the Court
was satisfied by the explanation that since the honour of a family
was involved, the complaint was delayed.
FIR does not constitute substantive evidence (cannot be used as
evidence in itself), and it can, however, be used as a previous
statement for the purpose of corroboration or contradiction of its
maker. The FIR can in no means be utilised for contradicting or
discrediting other witnesses.
FIR by the Accused to the police stands on the same footing as an
information by another person except that the confessional part,
if any, must be excluded.
S 155 deals with information relating to the commission of a
non-cognizable offence (arrest with a warrant). S155 (1) provides
that a police officer receiving information of a non-cognizable
offence must enter the substance of it in a book kept in such form
as the State Government may prescribe and then refer the informant
to the Magistrate.
The word "offence" includes an intended offence or
offence imminently likely to take place
S155 (2) provides that a police officer must not investigate a
non-cognizable case without an order of a Magistrate having the
power to try the case or commit it for trial.
Court has held that a Magistrate should not order investigation in
a non-cognizable offence arbitrarily and capriciously. He must
apply his mind to the facts and see whether there are reasonable
grounds for believing that an offence has been committed.
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DISCLAIMER: This discussion is general in nature and is not intended to
and does not create a lawyer/client relationship. This discussion should in no
way be relied upon or construed as legal advice, particularly since most legal
outcomes are highly dependent on the facts of a particular case or situation.
This discussion is provided on the condition that it cannot be referred to or
quoted in any legal proceeding; if this condition is unacceptable to you,
immediately delete this email and do not keep a copy of it in any form. The
reader or recipient is strongly urged to consult with a lawyer for legal advice
on these matters. Any reliance on the discussion information by someone who has
not entered into a written retainer agreement with the lawyer providing the
discussion information is at the reader's or recipient's own risk.
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