Case Digests And Political Law Essay

Case Digests And Political Law Essay.

Facts: Petitioner was charged with violation of Section 2 (4) of the revised securities act. Respondent filed to cancel the passport of the petitioner and to issue a hold departure order. The RTC ordered the DFA to cancel petitioner’s passport, based on the finding that the petitioner has not been arraigned and there was evidence to show that the accused has left the country with out the knowledge and the permission of the court.

Issue: Whether or Not the right to travel may be impaired by order of the court.

Held: The bail bond posted by petitioner has been cancelled and warrant of arrest has been issued by reason that he failed to appear at his arraignments. There is a valid restriction on the right to travel, it is imposed that the accused must make himself available whenever the court requires his presence. A person facing criminal charges may be restrained by the Court from leaving the country or, if abroad, compelled to return (Constitutional Law, Cruz, Isagani A.

, 1987 Edition, p. 138). So it is also that “An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without prior permission of the Court where the case is pending (ibid., Sec. 20 [2nd par. ]).

Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of travel may be impaired even without Court Order, the appropriate executive officers or administrative authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of “national security, public safety, or public health” and “as may be provided by law,” a limitive phrase which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G.,S.J., Vol. I, First Edition, 1987, p. 263). Apparently, the phraseology in the 1987 Constitution was a reaction to the ban on international travel imposed under the previous regime when there was a Travel Processing Center, which issued certificates of eligibility to travel upon application of an interested party (See Salonga vs. Hermoso & Travel Processing Center, No. 53622, 25 April 1980, 97 SCRA 121).

Holding an accused in a criminal case within the reach of the Courts by preventing his departure from the Philippines must be considered as a valid restriction on his right to travel so that he may be dealt with in accordance with law. The offended party in any criminal proceeding is the People of the Philippines. It is to their best interest that criminal prosecutions should run their course and proceed to finality without undue delay, with an accused holding himself amenable at all times to Court Orders and processes

Case Digests And Political Law Essay

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The FBI Case Study Essay

The FBI Case Study Essay.

The Federal Bureau of Investigation of the U.S. government, the FBI, was forced to scrap its $170 million virtual case file (VCF) management system. Official reports blamed numerous delays, cost overruns, and incompatible software. But a deeper examination of the cause of this failure uncovered issues of control, culture, and incompatible organizational systems. Among its many duties, the FBI is charged with the responsibility to fight crime and terrorism. To do so requires a large number of agents located within the Unites States and around the world.

That means agents must be able to share information among themselves within the bureau and with other federal, state, and local law enforcement agencies. But sharing informationhas never been standard operating procedure for this agency. According to one source, “agents are accustomed to holding information close to their bulletproof vests and scorn the idea of sharing information.” Enter the FBI’s efforts to modernize its infrastructure, code-named “Trilogy.”

The efforts included providing agents with 30,000 desktop PCs, high-bandwidth networks to connect FBI locations around the world, and the VCF project to facilitate sharing of case information worldwide.

The FBI director explained to Congress that VCF would provide “an electronic means for agents to globally send field notes, documents, pieces of intelligence and other evidence so they could hopefully act faster on leads.” It was designed to replace a paper-intensive process with an electronic, Web-based process. With such a reasonable goal, why didn’t it work? The CIO of the FBI offered one explanation. He claimed that “the FBI must radically change the agency’s culture if the Bureau is ever going to get the high-tech analysis and surveillance tools it needs to effectively fight terrorism. We must move from a decentralized amalgam of 56 field offices that are deeply distrustful of technology, outsiders and each other to a seamlessly integrated global intelligence operation capable of sharing information and preventing crimes in real-time.”

A former project manager at the FBI further explained, “They work under the idea that everything needs to be kept secret. But everything doesn’t have to be kept secret. To do this right, you have to share information.” The VCF system has been shut down, but the CIO is working on a new approach. He is busy trying to win buy-in from agents in the field so that the next case management system will work. In addition, he is working to establish a portfolio management plan that will cover all of the FBI’s IT projects, even those begun in decentralized offices. His team has been designing an enterprise architecture that will lay out standards for a bureauwide information system. The Director of the FBI has helped too. He reorganized the governance of IT, taking IT budget control away from the districts and giving total IT budget authority to the CIO.

The FBI announced that it will build a new case management system called Sentinel in four phases. The new system, according to the CIO, will include workflow, document management, record management, audit trails, access control, and single sign-on. To manage the expectations of the agents, the CIO plans to communicate often and significantly increase the training program for the new system. The CIO commented, “We want to automate those things that are the most manually cumbersome for the agents so they can see that technology can actually enhance their productivity. That is how to change their attitudes.”

Class Discussion Questions

1. What do you think were the real reasons why the VCF system failed?
2. What were the points of alignment and misalignment between the Information Systems Strategy and the FBI organization?
3. What do you think of the CIO’s final comment about how to change attitudes? Do you think it will work? Why or why not?
4. If you were the CIO, what would you do to help the FBI modernize and make better use of information technology? Source: Adapted from Allan Holmes, “Why the G-Men Aren’t IT Men,” CIO Magazine (June 15, 2005), 42–45.

The FBI Case Study Essay

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Understanding Employment Responsibilities Essay

Understanding Employment Responsibilities Essay.

1. Know the statutory responsibilities & rights of employees & employers within own area of work.

1.1 List the aspects of employment covered by law
Every aspect of employment is covered by law, and this reflects in an employee’s contract which is given to them on their first day of employment. The Series of laws that relate to the conditions of work include:

Minimum wage
Health & safety
Hours worked
Redundancy & dismissals
Discrimination
Training
Disciplinary procedures
Union rights & consultation
Employment law is different in different countries.

These are the main laws in employment.

1.2 List the main features of current employment legislation Equalities
Employment rights
Discrimination law
Health & safety legislation

1.3 Outline why legislation relating to employment exists
The reason why legislation relating to employment exists is to stop workers being exploited by employers and to protect the rights of their employee’s and to make sure that they have everything they need such as minimum wage, safety standards, holiday entitlement, maternity leave & pay, redundancy pay, age requirement, maximum working hours.

1.4 Identify sources and types of information and advice available in relation to employment responsibilities and rights

Contract
Job description
Handbook
Policy documents
Terms & conditions

These are the main sources and information that are available to employees to see their responsibilities and rights. Understand agreed ways of working that protect own relationship with the employer 2.1 Describe the terms & conditions of own contract of employment My contract has information about my wage, job title, holidays, grievance procedure, contracted hours, and is for me and my employer Bayfield Court

2.2 Describe the information shown on own pay statement

My payslip includes my payroll information, amount of money I have in the tax year, national insurance I have paid, and my monthly wage. 2.3 Describe the procedures to follow in event of a grievance As in my contract in the event of grievance I must report to the deputy, then my manager. If I feel I am not getting the support then I can take the matter further to my Operations director and in other instance to an outside body for arbitration. 2.4 Identify the personal information that must be kept up to date with my own employer

Name
Address
Date of Birth
Sex
Education & Qualifications
Work Experience
National Insurance number
Tax Code
Bank/Building society account

2.5 Explained agreed ways of working with your employers

In my place of work I handle sensitive data which includes information about residents and their needs, ensuring that this data is treated with confidence and not discuss this with anyone else apart from my deputy manager. If there was anything regarding residents and their wellbeing or if I felt that there was any abuse or detrimental I must report this straight to my deputy manager. I must always report grievances in the correct procedure – Deputy then manger. To resolve any conflicts or disagreements between myself, residents, family members and/or other members of staff I must report to my deputy.

To follow the health & safety procedures put into place by my manager & company as they are for the wellbeing of myself, other members of staff, residents, etc. Understand own role fits within the wider context of the sector 3.1 Explain how own role fits within the delivery of the service provider My role as a senior carer ensure that the rights of the residents are met, in my place if work we have 7 care staff and 2 seniors per day shift to cover 46 residents. We have 3 staff on ground floor with 1 senior, two staff on middle floor and 2 staff on top floor with 1 senior covering them. For night shifts we have 1 carer per floor plus a floater that goes where they are needed throughout the night and 1 senior. 3.2 Explain the effect of own role on service provision

My own role as a senior carer is significant to the running of Bayfield Court because without me we would not be able to care for the needs of our residents adequately & more importantly we would not be meeting the standards set by CQC 3.3 Describe how my role links to the wider sector

My job fits into my time as I am on the ground worker, I am the one who is with the residents on a day to day basis, I see what they are going through and what their needs are, if I feel that a resident is poorly or in need of something then I am the person that will report to my deputy manager who will then put measure into place that will assist me in my job role. 3.4 Describe the main roles & responsibilities of representative bodies that influence the wider sector The CQC are the main body that influence the wider sector, their role within the care community.

CQC is the regulator for the health & social care services in England. A regulator is an organisation that checks services meet the government’s standards or rules about care. CQC are responsible for policies, procedures, and training guidelines, rights of people in health & social care and laws within health & social care settings, including people who are kept under the mental health act. Understand career pathways available within own and related sectors 4.1 Explore different types of occupational opportunities

There are many different types of opportunities for me as a senior. I can progress in my company to become a deputy or manger, but I can also move into other career paths such as into nursing for NHS or private sector, social workers and so on. Opportunities are endless if you have the right motivation and time. 4.2 Identify sources of information related to a chosen career pathway If I needed information related to a chosen career pathway I would start my search within the Care Community and look into: Care homes, hospitals, social workers, CQC, residents and so on. 4.3 Identify next steps in own career pathway

Next steps for me are to complete my level 3 NVQ, I could move up to deputy manager which means I could eventually be running my own Care home by becoming a manager. Understand how issues of public concern may affect the image and delivery of services in the sector 5.1 Identify occasions where the public have raised concerns regarding issues within the sector An example where the public raised concern:

Orchid View in Copthorne was run by Southern Cross and closed in 2011 after being exposed by whistle blower Lisa Martin. She first told police about problems at the home after nineteen unexplained deaths. An inquest heard five of those who died had suffered neglect and residents were left soiled and unattended, and one nightshift saw staff make 28 drug errors. These were appalling and the home was closed down. This case however looked into by CQC and how whistle blowers deal with cases of abuse and finding a job afterwards. “(Lisa Martin) later revealed she had not been able to find employment for years after exposing the abuse.

Her case then led to calls for an inquiry into how whistle-blowers are treated. The case was discussed in the House of Commons, Mr Hunt referred to the Francis Report and said: “We also need to do more…to help whistle-blowers working in care homes because there are so many care homes (that) can’t just depend on inspectors to get this right, and we’ve also introduced the ability to prosecute offenders which didn’t exist before.” http://www.bbc.co.uk/news/uk-england-sussex-27780901

After this case whistle blowing was and still is encouraged in homes. If you cannot report anything to a manager and it is not reported you can go higher and if that doesn’t get anywhere you can report to CQC. 5.2 Outline different viewpoints around an issue of public concern relevant to the sector Some people see abuse in different ways, were as some see abuse as abhorrent and unacceptable in any form, and were as other members of the public see forms of abuse as normal behaviour to reign in wayward residents. Poor moving and handling can be classed as a concern for some members of the public but for carers who are pushed to do their job quickly and with minimum fuss poor moving and handling is an everyday way of life. 5.3 Describe how issues of public concern have altered public views of the sector News reporting on cases in the health and social care sector which are about abuse of vulnerable people in their care has raised issues of public concern.

Everyone has grand-parents; parents, and possibly siblings, nieces, nephews, grandchildren who at some point in their lives will use the care sector (for example hospitals for birth) so therefore any abuse reported does worry and upset the public, rising public concern. CQC is always updating and amending policies & procedures to avoid these from happening again and to further protect service users from abuse. 5.4 Describe recent changes in service delivery which have affect own work area This as follows is from CQC website regarding the unfortunate incidents that happened at Orchid View in Copthorne was run by Southern Cross. The report highlighted: People should be treated with respect, involved in discussions about their care and treatment and able to influence how the service is run (outcome 1)

People should get safe and appropriate care that meets their needs and supports their rights (outcome 4) Food and drink should meet people’s individual dietary needs (outcome 5) People should be protected from abuse and staff should respect their human rights (outcome 7) People should be given the medicines they need when they need them, and in a safe way (outcome 9) There should be enough members of staff to keep people safe and meet their health and welfare needs (outcome 13) Staff should be properly trained and supervised, and have the chance to develop and improve their skills (outcome 14) The service should have quality checking systems to manage risks and assure the health, welfare and safety of people who receive care (outcome 16) This has been added and used to improve policies and procedures in the health and social care sector, making recent changes.

Understanding Employment Responsibilities Essay

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Book Review on Emotional Survival for Law Enforcement Essay

Book Review on Emotional Survival for Law Enforcement Essay.

Emotional Survival for Law Enforcement by Kevin M. Gilmartin, Ph. D. is a book that seeks to inform and instruct those seeking to be in law enforcement, law enforcement professionals and their families of the realities of a career in law enforcement- professionally and personally. And how to best prepare for emotional survival of “on-duty and off-duty” life. It also compares and contrasts what happens to officers at the beginning of this journey and what typical happens to officers overtime; focusing mainly on what happens to officers that don’t know the techniques of emotional survival.

Though it does give some examples of officers who have emotional survival skills, it focuses on exemplifying the officers whose lives suffer from the lack of these skills and what great detriment it causes. Gilmartin begins by describing the early years of one’s law enforcement career. How typically- idealistic, enthusiastic and driven rookie officers are. And how quickly this world can change from positive to cynical and emotionally charged.

How these long term behaviors if uncorrected, exacerbate, leading to mental and physical changes.

Gilmartin uses personal experiences and stories to relate the topics addressed in this book, in a way that of? cers can readily see some of the same characteristics in themselves. Gilmartin also discusses psychological changes officers endure that can be caused by frequent exposure to horrific events. The most important definition made by Gilmartin describing officers on and off-duty is Hypervigilance; “the necessary manner of viewing the world from a threat-based perspective, having the mindset to see events unfolding as potentially hazardous. ” (Gilmartin Pg. 5)

According to Gilmartin this- “permits the on-duty of? cer to develop a subjective state of increased alertness/awareness of his/her surroundings required for maximum of? cer safety. ” (Gilmartin Pg. 36) Gilmartin elaborates on his term of “Hypervigilance” and how it becomes problematic when he introduces the concept theory of the “Hypervigilant Biological Rollercoaster. ” Stating that the on-duty of? cer is “alert, alive, energetic, quick–thinking, involved and humorous,” And the off-duty of? cer is “tired, isolated, detached, apathetic and angry. (Gilmartin Pgs. 48-50)

Gilmartin goes on to illustrate; If law enforcement of? cers want to survive emotionally, they must examine their on-duty and off-duty life. Taking control of the events in their lives they can control and survive and move on from the events they cannot control. Gilmartin describes how officers can become equipped professionals of emotional survival on and off-duty. On-Duty; knowing as an officer there are only three things you can control; integrity, professionalism, and how well you do the job you are assigned to do.

Off duty; proactive goal setting (outside of police work), exercise, and developing and nurturing other roles in life besides the hypervigilant police role; enabling of? cers to manage their lifestyle healthy. I believe this encapsulates Gilmartin’s books main points and demonstrates his goal; to help keep law enforcement officers healthy, by providing skill sets physically and emotionally, to survive the career. By not losing all of ones identity to just being a cop, while remaining committed, engaged and productive on and off-duty.

Now I would like to analyze Gilmartin’s books strengths and weaknesses. This work is well organized, written and easily read. To the point that I believe that it would keep anyone engaged no matter if the reader was part of the intended target audience. For audience the book does target, I believe it clearly demonstrates the internal and external assaults officers will experience both personally and organizationally. And how officers can train themselves to perceive and act as a victim in everything they do and in every way they think.

Or how they can emotionally survive these assaults by balancing their identity and by acquiring healthy outlets to be proactive and engaged in personal affairs. This is clearly demonstrated by various case study examples throughout the book. Examples of officers that fall directly in line with Gilmartin’s Hypervigilant Biological Rollercoaster theory and how some of these studies show the result of an officers application of emotional survival. This is what makes the book so strong.

Gilmartin’s ability to give validity to his concepts by comparing and contrasting officer action and reaction of similar situations. Then applying his theory of those who fall victim to the Hypervigilant Biological Rollercoaster, have the victim mentality and the unbalanced identification with solely being a cop. To those officers that display emotional survival techniques. By doing this Gilmartin shows clear distinction; drastic outcomes of similar situations. Reinforcing the importance of acquiring emotional coping tools and exemplifying the devastation in an officer’s life lacking these skills.

The weaknesses I encountered in this book where; little if any emphasis was placed on teaching of? cers how to avoid the other dangers they will ultimately face. Mainly focusing on the Hypervigilant cycle of officers and their loss of identity. I would have liked Gilmartin to explain how an officer handles a tough situation in the matter of life or death. And I would have liked Gilmartin to have more than one chapter that focused on the emotional survival of law enforcement personnel.

I believe it leaves the targeted audience waiting and wanting more instruction on how to become an emotional survival. Lastly I would have loved to have understood the compilation of data retrieved by Gilmartin. Discovering how he came up with his concepts and theories. Over what period time did he construct these particular studies and how many agencies did he work with to compile this data? What where the percentages of officers that suffered from a lack of emotional survival skills to those that had these skills? What percentages of officers fell in the middle?

I believe knowing the quantitative component to this research would have further qualified his findings. Overall this book was fantastic. I believe this book will help those interested in law enforcement as well as of? cers and their families. I believe this book can help plot a path through a dif? cult journey in a law enforcement career. Helping sustain relationships, families and positive professional attitudes. Though I hoped for some addition information in this book it does not lack in quality or clarity of its messages.

It is a strong book and I would recommend it to anyone interested in law enforcement, anyone currently in law enforcement, family members of law enforcement personnel and those who have been in law enforcement. I believe the goal of this book is to provide officers the information of how to recognize the deterioration of core values (personally and professionally) and what can take place in their lives if gone uncorrected. Then provides specific strategies that can be utilized to reduce the negative emotional and physical impact of a law enforcement career. I believe the book succeeds in doing this.

Book Review on Emotional Survival for Law Enforcement Essay

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Gross Negligence Manslaughter Essay

Gross Negligence Manslaughter Essay.

“In our judgement the law is clear. The ingredients of the offence have been clearly defined, and the principles decided in the House of Lords in Adomako . They involve no uncertainty. The hypothetical citizen, seeking to know his his position, would be advised that, assuming he owed a duty of care to the deceased which he had negligently broken, and that death resulted, he would be liable to conviction for manslaughter if, on the available evidence, the jury was satisfied that his negligence was gross.

Per Judge LJ R. v. Misra and Srivastava [2004] EWCA Crim 2375 para 64 (in the Court of Appeal Criminal Division) In light of the above comments, consider the elements of the offence of Gross Negligence Manslaughter and, referring to relevant authority, critically assess whether the current law in this area is certain and satisfactory.

This paper is going to consider elements of the offence of Gross Negligence Manslaughter and will assess, whether the current law in this area is certain and satisfactory.

In order to discuss whether the law governing Gross Negligence Manslaughter is in a certain and satisfactory state, I need to first consider its elements and then look at the current law, outlining the problems, and lastly discuss the proposed changes. Gross negligence manslaughter is a form of involuntary manslaughter where the defendant is apparently acting lawfully. Involuntary manslaughter may arise where the defendant has caused death but neither intended to cause it nor intended to cause serious bodily harm and therefore lacks the mens rea of murder.

Whereas constructive manslaughter happens where the defendant commits an unlawful act which results in death, gross negligence manslaughter does not depend on representing an unlawful act has been committed. It can be said to apply where the defendant commits a lawful act in such a way as to render the actions criminal. Gross negligence manslaughter also differs from constructive manslaughter in that it can be committed by omission.

The leading authority for gross negligence manslaughter is decision of the House of Lords in Adomako (1994) , where doctor Adomako’s actions of negligence caused his patient’s death. It was decided by Lord Mackay, that liability for this type of manslaughter arises where the jury decides that “Having regard to the risk of death involved, the conduct of the defendant was as bad in all the circumstances as to amount in their judgement to a criminal act or omission” In Adomako, House of Lords decided that gross negligence test is correct to use in all cases where duty of care has been broken.

According to Adomako case, the following elements are considered to be a form of this involuntary manslaughter: the existence of a duty of care, breach of that duty resulting in death and gross negligence which the jury consider justifies criminal conviction. I will now study the first element of the gross negligence manslaughter offence which is duty of care. The criminal law recognise certain duty situations, Adomako itself involved a breach of duty owed by a hospital anaesthetic towards a patient (under a contract of employment).

The requirement of a duty of care is fundamentally a civil law concept found in the law of tort. (Wacker [2003]). D owes a duty of care not to injure anyone whom he or she could reasonably foreseeably injure. Applying that to this context, there is a duty of care if there was a risk that an act or omission of the defendant might kill the victim. As it is a legal concept, it is for the judge to decide whether a set of facts gave rise to a duty of care. When bearing in mind the Adomako, the House of Lords approved the case of Stone v Dobinson (1977), in which D had undertaken a duty of care.

The Miller principle, in turn, was used as the basis of the duty in the recent gross negligence manslaughter of Evans (2009), which decided that a duty may be imposed on those who ‘create or contribute to “life threatening situation”.. Alan Lidbury, in his book Criminal Law, asks the following question ‘so is the ambit of the offence limited to those who, for whatever reason, have either undertaken or had a duty imposed upon them or should it be wider ’’?

Lord Mackay LC, when considering the case of Adomako, said that ‘’the ordinary principles of law of negligence apply to ascertain whether or not D has been in breach of a duty of care towards the victim’’. By looking at the above statement, it is clear that those same principles should apply in determining these people to whom a duty of care is owed. These principles can be found in the leading negligence case of Donoghue v Stevenson (1932).

In this case, Lord Atkin in the House of Lords said you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour (…) persons who are closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question’’. It can be argued that this goes much further than the traditional duty situations. If this examination is correct, then this form of manslaughter has certainly a very wide scope. Nevertheless, the principles of criminal and civil law do not always go well together.

This is demonstrated by the case of Wacker (2003), which involved the bodies of 58 illegal immigrants and two survivors which were found in a lorry at Dover. The D was convicted of 58 counts of manslaughter by gross negligence and appealed. He argued that because the illegal immigrants had shared the same purpose as him (gain access to the UK), he did not owe them a duty of care. This argument was rejected by Court of Appeal on the grounds that the public policy issues relating to civil law were different to criminal law and even where there was an fundamental unlawful purpose, he did not prevent criminal responsibility arising.

The above case was followed by Willoughby (2004), where the court decided that D, as participant in a joint enterprise, owed the other participant a duty of care. The next element of gross negligence manslaughter which needs to be examined is a breach of duty of care. The ordinary law of negligence applies to these cases, in that those with an established duty of care, must act as a “reasonable person would do in their position”. If they fail to do so they breach that duty. This is called an objective test and will be grounded upon defendant’s situation at the time of the breach.

Thus, if the defendant’s actions were within the range of what was commonly accepted as being the standard practice, it will be problematic to describe such behaviour as falling far below the standard of a reasonable person in his position. An unqualified person is not to be judged at a lower standard than a qualified person. Hence the absence of skill will not be a defence if the conduct is considered negligent. If however, the defendant has precise skills and knowledge of a danger that the reasonable person would not have, his actions should be judged in the light of those skills or knowledge.

This test is an objective test. In the case of R v DPP ex parte Jones (2000) it was decided that no matter whether the defendant did not escalate the risk (the predictable risk of death) only that the risk would have been obvious to a reasonable person in the defendant’s position. The third and last element to consider is gross negligence. Just demonstrating that D has been in breach of a duty to another person and caused that person’s death will certainly not lead to liability for gross negligence manslaughter. There is something more necessary.

In Adomako, the House of Lords confirmed that the correct test for this additional component was ‘‘gross negligence’’. This established a line of case law dating back to Bateman (1925), which as well as Adomako, involved negligent treatment by a doctor which caused patient to die. In this cases, it was explained by Lord Hewart LCJ that in order to establish criminal liability for gross negligence ‘the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment’’.

This passage may be criticised for being somewhat imprecise, it tells the jury to convict if they think that D’s negligence was bad enough to amount to the misconduct. Nevertheless, the Bateman test received approval from the House of Lords in Andrews v DPP (1937), which involved death by extremely negligent driving. The Bateman case has also been approved in Adomako, where Lord Mackay LC stated that it was for the jury to ‘’consider whether the extent to which D’s conduct departed from the proper standard of care incumbent on him (…) was such that it should be judged criminal “.

Lord Mackay acknowledged that the test “involves an element of circularity” but was adamant that the matter had to be left to the jury. In Andrews, Lord Atkins at least offered some direction on exactly how ‘bad’ D’s negligence has to be. He said that ‘a very high degree of negligence is required to be proved’. Mere inattention by D would never suffice for criminal liability, D must have had a ‘criminal disregard’ for ‘others’ safety or the grossest unawareness or the most criminal inattention.

In Mistra v Srivastava (2004), Court of Appeal held that the components of gross negligence manslaughter involved no vagueness which offended against Article 7 of the European Convention of Human Rights, which provides that “no one shall be guilty of any criminal offence on the basis of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed (…)” It had been argued that the application of the ECHR into British law via Human Rights Act 1998 meant that the principles set in Adomako were no longer a good law.

The disagreement was put for the appellants that condition leaves it to the jury to decide a query of law, specifically whether the negligence initiating death amounted to gross negligence and so created a crime. To leave this assessment to be accomplished by different juries at each individual trial affords too little direction to those who owe duties of care. This absence of precision is compounded by indirectness: gross negligence manslaughter is any killing in breach of duty found to be grossly negligent.

The disagreement failed. The court did not reflect that the jury had a law-making role when determining, on the facts demonstrated, whether D was guilty of manslaughter on the basis of a negligent breach of burden owed to victim. Whether the negligence was effectively bad as to be “gross” negligence was a matter of fact. If the jury made a conclusion to this effect, a decision of guilty would follow inevitably on the basis of the conclusion; the verdict of guilt was not something complementary to the outcome.

The jury were merely finding facts within the boundaries of a legal standard, and the legal standard was reasonably clear to please the necessities of Article 7. On the face of it, the Article 7 dispute had particular strength. If someone remained to request, say, in what situations would D be said to have “murdered” V, we could tell our inquirer that, all other things comparable, D murders V if he causes V’s death with intent to kill or to cause really serious bodily harm. If there is time and patience, we could go on and tell him about the history of the courts and the sense of intent, the notions of the law of provocation, etc.

But if, sensibly, we restrain ourselves to a simple explanation of the offence, we have specified sufficient proof to allow any person of ordinary personality to stay clear of the rules of the law of homicide. So far if we were enquired by D, a young medic at the beginning of her profession, what she must do if she is not to be sentenced for manslaughter, the discussion would unavoidably be longer. For instance, she might ask what would be her situation if, throughout the path of a widespread of infection, she misdiagnosed V’s meningitis as a case of flu, a fault which leads to the decease of victim.

She might additionally ask whether her inexperience and any fatigue from overtask would be factors in her support, or whether it would be applicable if she was seeing many cases of flu at the period which presented signs comparable to those experienced by victim. Undoubtedly we could offer support implied in general terms, but to offer anything impending adequate direction we would need to talk to an experienced and qualified medical consultant to catch some logic of how bad a fault it is to cloud flu with meningitis.

Coming to conclusion, the fact of the matter is that if a legal system in the common law practise is to avoid unnecessary particularity in criminal guideline, for many offences it must use, as definitional features, evaluative principles of substantial generality. Regularly, the most the law will say are things like, “if you drive a car, drive with due care and attention, if you take and retain someone else’s property, and make sure you are acting honestly. Numerous of additional samples could be specified.

Wherever the jury is given the concluding say on whether D has failed to encounter such a standard, its task is observed, juridical, as concerning an outcome of fact rather than a judgment of law. Much would be vanished if violations reliant on on such outcomes were to be eliminated from the law. Regrettably, one price to be paid is that individuals matter to laws drafted in this way can only be assumed with comprehensive, “ball park” advice as to the conditions where they can misbehave against such laws. That seems to be satisfactory to please the necessities of Article 7.

Gross Negligence Manslaughter Essay

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Summarise the Laws and Codes of Practice Affecting Work in Schools Essay

Summarise the Laws and Codes of Practice Affecting Work in Schools Essay.

•Children Act 2006 – Is an Act that defines the new duties imposed on the Local Authorities in respect to improving the Every Child Matters outcomes for pre-school children. The Act also defines new rules in relation to childcare for working parents as well as parental information services. It is aimed at improving the well-being of young children. It emphasises the importance of safeguarding children and young people within an educational setting. If a child discloses neglect or abuse; an establishment should have instructions to help the child.

This could be referral to an outside organisation or internally.

•Human Rights Act 1998 – is an Act that gives legal effect in the UK to certain fundamental rights and freedoms contained in the European Convention on Human Rights (ECHR). These rights not only affect matters of life and death like freedom from torture and killing, but also affect your rights in everyday life: what you can say and do, your beliefs, your right to a fair trial and many other similar basic entitlements.

•Data Protection Act 1998 – defines UK law on the processing of data on identifiable living people. It is the main piece of legislation that governs the protection of personal data in the UK. Although the Act itself does not mention privacy, it was enacted to bring UK law into line with the EU data protection directive of 1995 which required Member States to protect people’s fundamental rights and freedoms and in particular their right to privacy with respect to the processing of personal data. In practice it provides a way for individuals to control information about themselves.

•UN convention on the rights of a child 1989 – deals with the child-specific needs and rights. It requires that states act in the best interests of the child. This approach is different from the common law approach found in many countries that had previously treated children as possessions, ownership of which was sometimes argued over in family disputes. The Convention acknowledges that every child has certain basic rights, including the right to life, his or her own name and identity, to be raised by his or her parents within a family or cultural grouping, and to have a relationship with both parents, even if they are separated.

The Convention obliges states to allow parents to exercise their parental responsibilities. The Convention also acknowledges that children have the right to express their opinions and to have those opinions heard and acted upon when appropriate, to be protected from abuse or exploitation, and to have their privacy protected, and it requires that their lives not be subject to excessive interference.

•Education Act 2002/2006 – Schools which have innovative ideas to improve education, but are prevented by an existing law from implementing them, will be able to apply for exemption from that law. Schools which demonstrate a high standard of teaching will be given exemption national controls such as the national curriculum, agreements on teachers’ pay and conditions and the way the scheduling of the school day and terms. The act imposes various minimum standards for independent schools in areas such as health and safety and space requirements

•SEN Code of Practice 2001- The SEN code of practice 2001 provides a clear framework for identifying, assessing and meeting pupils’ special educational needs.

The fundamental principles of the SEN code are: -a child with special educational needs should have their needs met -the special educational needs of children will normally be met in mainstream schools or settings -the views of the child should be sought and taken into account -parents have a vital role to play in supporting their child’s education -children with special educational needs should be offered full access to a broad, balanced and relevant education, including an appropriate curriculum for the foundation stage

•Disability Discrimination Act 1995 – aims to end the discrimination that many disabled people face.

This Act gives disabled people rights in the areas of: – employment – education – access to goods, facilities and services – buying or renting land or property

The Act also allows the government to set minimum standards so that disabled people can use public transport easily.

•Equality Act 2010 – supports professionals who may be discriminated against age, disability, race, religion, belief, gender and sexual orientation. The Act identifies direct and indirect discrimination.

•Health and Safety at Work Act 1974 – Teachers must understand the importance of Health and Safety Act (1974). The act suggests that all workers are entitled to work in a safe environment where risks are properly assessed and managed. It establishes the frame-work for ensuring the safety of all employees at work this act also cover the health and safety of all other person who may be affected by Work activities e.g. pupils, students, visitors, parent and contractors. In section two of this legislation a duty is place on the employer to ensure the health and safety and welfare of all employees in practicable situations.

Explain how legislation affects how schools work. -The legislations make sure that the schools are a safe working environment for all staff visitors and pupils/students in the school. -If the legislations are not in place then this could cause concern for staff as they would not be protected and could be accused of malpractice. -The legislations are rules and regulations which everyone has to follow safe guarding themselves and children from harm. -Legislations are put in place to promote equality and eliminate discrimination. -Legislation affect school by passing laws mandates rules to be followed by school. They may also be allocated subsidies in case of public schools, provide a guide for school-employee salaries, or a limit to tuition fee increases.

Summarise the Laws and Codes of Practice Affecting Work in Schools Essay

Posted in Law

Russell Athletic Essay

Russell Athletic Essay.

Do you think that sweatshops can be completely eliminated throughout the world in the near future? Provide an argument as to why you think this can or cannot be achieved.

I think eliminating sweatshop in the near future cannot be achieved. I do believe there will be more restriction set for sweatshops working conditions. Unfortunately, I do not think sweatshops can ever be completely eliminated. I think it will always be a cycle where corporations will take action on improving working standards in sweatshop but they will be never completely gone.

A good example that demonstrates this cycle is when the spread of sweatshops were reversed in the U.S. in 1911. The Triangle Shirtwaist Company fire was the first incident to bring awareness of sweatshop conditions, which dramatically reduced the number of sweatshops due to unions organizing improved wages and conditions.

Sweatshops were still never completely eliminated, even with all the improvements made. Many companies found loopholes and worked on the edges of the industry.

Meaning they worked in very small sweatshops, which were hard to locate and easier to avoid union organizers. By 1980’s sweatshops were back in large numbers. Then again in 1990 another incident brought the attention of dreadful sweatshop work conditions. Almost 80 years later, sweatshops were still using unfair work condition. That incident is also just in the U.S. For worldwide sweatshops, I believe it will be too hard to regulate in every single country. I think many developing countries still need those job opportunities and agree to work in those certain conditions. It will most likely be a long time before they are ever completely eliminated.

What factors should company consider when planning to open a new manufacturing plant in China or India?

A few factors a company should consider to when planning to open a new manufacturing plant, specifically in China and India is that they are developing countries and a lot of their labor laws may not be as strict as the U.S. China and India’s laws on minimum wage, safety and sanitation are very basic compared to the U.S, which makes it easier for a large corporation to outsource from one of these countries. In result it also can help provide a source of employment in China and India.

Do you think that the public NGOs like USAS should care about labor practices in other countries?

I do think that public NGOs should care about labor practices in other countries. They are who brings the attention to the public when companies are not complying with the Universal Declaration of Human Rights. It is exactly what USAS and WRC did with Russell Athletic. They spent over 10 years conducting independent investigations and issuing public reports on that specific factory. USAS and WRC were successful with the Russell Athletic case and have set a standard for others on how hard NGOs will fight to help unions. They definitely brought attention to a variety of MNCs and stakeholders to take a higher social responsibility for their actions regardless of where they are outsourcing.

Would you agree that Russell Athletic made the right decision by conceding to USAS and union demands? Provide an argument to support your answer.

I do agree that Russell Athletic made the right decision by conceding with the demands. It would have hurt their corporation if they did not comply. The world is in an era of globalization and is too hard for companies to hide their actions from the rest of the world. The USAS and union demand most likely would have never stopped till Russell Athletic made an agreement. They worked over 10 years and now it would be even easier to expose them with all the technological advances.

Russell Athletic Essay

Posted in Law

Integrative Learning Project: Organizational Setting Essay

Integrative Learning Project: Organizational Setting Essay.

The Kennedy Law Firm, PLLC, serves the north-central part of Tennessee and south-central part of Kentucky, with offices in Clarksville, Tennessee. The firm was established on Christian principles, focusing on helping individuals through their greatest times of need, in 1984. The firm handles a wide array of types of cases, including personal injury, criminal defense, bankruptcy, divorce, and custody matters in state, federal, and military courts. Kevin C. Kennedy is its founding member and managing partner, yet still practices and is still active in the firm’s operations.

There are three office locations across the city; with a main office by the county courthouse, another office close to Fort Campbell’s gates, and the last location provides a location closer to individuals on the northeastern part of town.

Mission

The Kennedy Law Firm’s main mission is “to be that rock in times of trouble by providing quality legal advice and support to people going through divorce, an arrest, injury or bankruptcy” (Google+, 2015).

The firm seeks to provide its services based on Christian ideals, which the founding partner pursues by actively participating in numerous community events. The office by Fort Campbell is even being used by a church for services and other meetings. Mr. Kennedy does not hide his commitment to God, and he boldly proclaims his views in advertising and other interactions.

The firm meets this mission by opening at 7:00 AM Monday through Friday, staying open until 6:00 PM Monday through Thursday, and being open on Saturdays from 8:00 AM to 5:00 PM. There is not one other firm in the Clarksville area that has hours which are as accommodating to their customer base. Mr. Kennedy even encourages his attorneys to schedule appointments outside of those hours, should it be something that the customer needs to get the legal service desired.

Customers

The Kennedy Law Firm’s external customer base is made up of individuals from all walks of life, from rich to poor, Christian to non-believer, and any and all race or ethnicity. Virtually anyone may fall victim to the perils of a legal battle, so the firm’s customers cannot be classified as falling within any particular “type” or “category”. Internally, the firm’s customers are made up of the attorneys. The paralegals, assistants, and other support staff must ensure that the work they are doing meets the needs and wants of the attorneys. Furthermore, the attorneys must work hard to meet the high standards for a Christian organization, as set by the managing partner.

Value

As an attorney for the firm, I provide legal services for the customers that walk through the door. More specifically, I am one of only a couple of attorneys that have committed to remain in the office until 6:00 PM to ensure that an attorney is available when the office is open. Furthermore, I provide greater payment flexibility to clients so that they might actually be able to afford quality legal representation without taking on an insurmountable debt. Even though as a young attorney with a growing client base I do not make an income which many may attribute to attorneys when they think of them, I still attempt to take on pro bono work to help those individuals that cannot even afford the flexible payment arrangements which we try to establish.

My previous work for Westlaw, a legal research provider, has also made me invaluable to the firm. I have helped other attorneys and paralegals in the firm with posing research queries and setting up their accounts to get the most from the system with the least amount of effort. I was able to increase the efficiency of research efforts for practically every individual within the firm. This means that the services we provide can be done at less cost, a saving which can be passed on to clients in an effort to make justice more accessible for all.

Biblical Integration

Christianity plays a huge role in this firm, and it was one of the major factors which drew me to seeking employment with the firm. Not only does the firm unashamedly advertise its Christian ideals and roots, the atmosphere in the office shows the same strong embrace of such ideals. Employees are free to discuss their religious viewpoints with one another, which only further solidifies the family-like environment which permeates the firm. Every meeting is closed with a prayer, and every morning a Bible study session is offered in the conference room for those employees wanting and able to attend.

Reference
The Kennedy Law Firm, PLLC. Google+ profile page. Retrieved on January 25, 2015, from https://plus.google.com/110251003608330856023/about?hl=en

Integrative Learning Project: Organizational Setting Essay

Posted in Law

Is This Unlawful Discrimination? Essay

Is This Unlawful Discrimination? Essay.

Unlawful discrimination occurs when an employer commits an adverse action against an employee because of the following attributes of the person: race, color, sex, age, pregnancy, etc. The Equal Employment Opportunity Commission (EEOC) may take action when an investigation shows that there has been a violation in a person’s civil rights just because of his or her attributes.

Case #1

Title VII of the Civil Rights Act of 1964 is a federal law that protects individuals from discrimination based on religion. Religious discrimination is treating a person differently because of their religious believes.

In this case Elaine Mobley, a member of the nonsectarian Unitarian Universalist Church, can file a legal sue under religious discrimination or the Civil Rights Act of 1964, because she was discriminated by employees and her supervisor. They said that she would be “making efforts repeatedly to “save the soul” of a fellow employee” (Neill, 2014, Web). A proven wrongful dismissal will tend to lead to two main remedies: reinstatement of the dismissed employee, and/or monetary compensation for the wrongfully dismissed.

In this case the court should look on how Elaine Mobley told her supervisor that she was feeling harassed by her employees, and shortly after that she was fired. In this case the judge should rule in favor of Elaine Mobley, because of what we have of the case it seems that she was being harassed and told her director of division and did nothing but fire her. The employer did in fact discriminate unlawfully, because you cannot force someone to become one of your same religion. It is especially unlawful to leave messages in her desk stating “How can you speak of God and Reject me? I love you and know all about you” as the book stated (Nkomo, Fottler, McAfee, 7 edition, p. 56).

Case #2

In case #2 Edward Roberts was unlawfully mistreated because of his color and/or race. Edward Roberts can legally sue the trucking company, because after he applied in person after responding to a newspaper ad, he never got an interview or was contracted. He later saw that eight employees where hired from April thru June 2005, right after he applied for the job. The company told Edward Roberts that there was no available space when he went, but they could have called him to an interview when space was available. Edward knew that the employees hired had less hours of experience than him. In this case he can sue for discrimination, “The Civil Rights Act of 1964, which ended segregation in public places and banned employment discrimination on the basis of race, color, religion, sex or national origin, is considered one of the crowning legislative achievements of the civil rights movement” (History.com Staff, 2010).

The court should look at why the company didn’t call Edward when there was an opening and should also investigate why the company also only contracted eight white people. These two issues can be seeing as discrimination against race. The judge should rule in favor of Edward Roberts because he has more experience than the rest of the eight white hired employees, the company makes it look that they didn’t hire him because he was black which makes the employer look like he is discriminating unlawfully. And I also think the company did look bad by just hiring all white people, if they didn’t like Edward or thought that he was over qualified for the position they could have dressed it up and hired at least one Africa-American.

Case #3

In Thelma Jones case, she is unlawfully sexually discriminated because she was described as “macho” and was told, “walk more femininely, talk more femininely, dress more femininely, wear make-up, style her hair, and wear jewelry” (Nkomo, Fottler, McAfee, 7 edition, p. 57). The law clearly states “It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin”(US EEOC, 2014). The court should take a look at what the partners said like, “she was sometimes overly aggressive” (Nkomo, Fottler, McAfee, 7 edition, p. 57). The judge should rule in favor of Thelma Jones because she is being sexually discriminated. The employer did in fact discriminate unlawfully because you’re not allowed to tell a woman to be more “femininely” just to get a higher position.

Case #4

In James McFadden vs. Airline company, James, a transsexual person, told his employer that he would be dressing as a woman in preparation to his “surgical sex reassignment”. James was fired from his job because he refused to dress and act as a man. In this case the legal statute that could apply would be the sex discrimination against James. The court should look at what happen, James told his employer about the sex change and employer told him he had to keep dressing as a man, he refused and was fired. The judge should rule in favor of the Airline Company because the employer told James he couldn’t do that, and it is understandable because of airport security. He was also no discriminated because he was still a man, and he said he was treated differently from the other women employed.

Case #5

Andrew Johnson would be able to apply for racist discrimination, because of his color, white people would have name-callings for him. The court should take a look at the name-calling, what was done after Andrew complained to senior management, and the threat done to Andrew after he was told, “his days were probably numbered” (Nkomo, Fottler, McAfee, 7 edition, p. 57), after getting injured and recuperating, he got a letter from management saying that the accept his resining. Andrew denied it, and requested his job back, but he was denied. The judge should rule in favor of Andrew because the employer unlawfully discriminated because had no reason for name-calling and resining him without Andrew wanting to resign.

Case #6

Paul Martin could have file sue on the statue of sexual discrimination. The court could have a look at the two candidates and why Betty Palmer was selected and not Martin. The county said that, “Palmer had gotten the job as part of voluntary affirmative action plan” (Nkomo, Fottler, McAfee, 7 edition, p. 58). The court should rule in favor of the county because they are trying to build a better composition of the county where there is no race or gender problem. The employer said that they where both qualified but for certain reasons Palmer got the job, and there is no unlawful discrimination in that.

Case #7

In this case Elnora Williams is able to sue in sex discrimination. The court should look at the reason of why there has never been a female as a principal, or look at a statement that says that it has to be a male person who runs the school. The judge should rule in favor of Elnora Williams because in no place does it say that a male should always be principal of the school. The employer did sexually discriminate against Elnora for saying that a male image should be used to run a school.

Case #8

Frank Poole was in all his rights when he filed a suit against Department because he was discriminated with his disability (AIDS). The court should take into issue what the doctors have said, “ medical director’s report that Poole’s condition did not place his students at any risk” (Nkomo, Fottler, McAfee, 7 edition, p. 58). The judge should file against the Department, the employer was discriminating Poole with his disability, if doctors already said that no body has risk of contagiousness.

Case #9

Lauren Hill had the right to sue if she felt there was any sex discrimination against her. The court should take a look at the evaluation performance, and why the results showed that she was not working as good to get a raise. The court should also investigate if any other women where promoted. The judge should rule in favor of the company, there is no evidence that Lauren Hill was sexually discriminated by her employer.

Case #10

Donna Skeen has all the right to sue the dealership because of all the disability, name-calling, and age discrimination that she suffered. The court should take a look at all that was said to her, the name-calling, telling her “old lady” and if she had Alzheimer’s. The reasons why Donna is suing are all litigable reasons for her to win the case. The judge should rule in favor of Donna Skeen for disability discrimination as well as age discrimination. The employer knew about the name-calling and did nothing about it.

Case #11

Jerome Atwood a firefighter suing the city department for reverse discrimination has all the rights to do so, Atwood is more qualified than the minority firefighters. The court should investigate on why there was a layoff, and why Atwood was the one laid off. The judge should rule in favor of the City Department because they had a layoff plan aimed to protect minority firefighters. The employer was just doing his job and there was no wrong doing of it.

Case #12

Herbert Fox disability discrimination is the right way to sue his 25 working years at the furniture company. The court should look at the disability of Mr. Fox, he said that the medicine given to him would have some troubles with his schedule. Mr. Fox was also terminated when he filled for disability benefits. The judge should rule in favor of Mr. Fox because if Mr. Fox has already said that the medicine given to him would counter effect his working schedule the company should do something to help him especially when he has 25 years with them

. Case #13

Lia Lee field for suit under the race or nationality, because of her accent the company did not give her the promotion. The court should take the time to hear Lia speak or perfume some kind of reading demonstration that she can read and speak well English. The judge should rule in favor of the bank, if they don’t think she is ready to be a customer service specialist they know what is best for their company. The employer never said anything racist or against her nationality, only said that her English skills weren’t up to level, that is not discrimination.

Case #14

Margaret Reynolds has all the right to sue Slendercise, Inc. because of weight, size or physical discrimination. The court need to look at the reason why they didn’t hire Margaret, and the reason they gave her as well. The judge should rule in favor of Margaret Reynolds, because in no place does it say that you have to be a certain height, weight, or size to be an aerobics teacher, this is a psychical discrimination that the employer took onto Margaret the employee.

Case #15

Abdul Mohammed filed suit and has legal statute of applying religious harassment and ethnic discrimination against the steel company. The court should look at both the times Abdul asked them for a private room, the discrimination, name-calling, and mocking of Muslims. The judge should rule in favor of Abdul because nobody should be making fun of any religion especially name-calling. The employer knew about the problem and twice did not do anything to change it.

References

History.com Staff (2010). Civil Rights Act. Retrieved from
http://www.history.com/topics/black-history/civil-rights-act Neill and Byrne (2014). Religious Discrimination. Retrieved from http://www.workplacefairness.org/religion#1 Nkomo, S., Fottler, M., McAfee, B. (7 edition). Human Resource Management Application. U.S. Equal Employment Opportunity Commission (2014). Title VII of the Civil Rights Act of 1964. Retrieved from http://www.eeoc.gov/laws/statutes/titlevii.cfm

Is This Unlawful Discrimination? Essay

Posted in Law

Administrative Law Essay

Administrative Law Essay.

Introduction

Administrative law is the law that determines the organization’s powers and duties of administrative officers. It is the law relating to the administrative government. It concerns itself with public authorities and how they function. Administrative law is the body of general principles that govern the exercise of power by authorities. Wade defines Administration Law as the Law relating to control of government power.1 He further assets that the primary purpose of administrative law is to keep the powers of government within their legal bounds, so as to protect the citizen against their abuse.

Constitutional law is the law that establishes the state and its institutions; administrative law is the law that these institutions use to run the country.

Administrative Law is an area of the law that governs the creation of agencies that aid in administering governmental powers and functions. The essence of Administrative Law is to advocate for or uphold natural justice most especially for public servants or any other person appearing before an administrative tribunal.

This view was held by court in cases of Ridge v Baldwin2 and Breen v Amalgamate Engineering Union.3 Administrative law is the law relating to public administration. It is concerned with the legal forms and constitutional status of public authorities; with their powers and duties and with the procedures followed in exercising them; with their legal relationship with one another, with the public and their employees; which seek, in varied ways, to control their activities.4 Administrative law determines the organizations powers and duties of administrative officers. It is the law relating to administration of government.

It concerns itself with public authorities and how they function. It is a body of general principles that govern the exercise of power by authorities. Whereas constitutional law is a system of laws, customs, conventions which define the composition and powers of the state and regulates the activities of various state and regulates the activities of various state organs on one hand and private citizens on the other. Like constitutional law administrative law deals with the control and exercise of power by government. The distinction between the two can be drawn by the fact that constitutional law is mainly concerned with the structure and composition of primary organs of government. Whereas administrative law is concerned with the work of officials or agencies in providing services and regulating the activities of citizens. Administrative and constitutional law differs in their scope and purpose, constitutional law plays a large part in administrative law. Administrative law concerns itself more on the executives whereas constitutional law is all embracing that is to say the concerns of everyone – it addresses everything except nothing.

Administrative Law may therefore be treated as a branch of constitutional law since it flows directly from the constitution principles of the rule of law and the sovereignty of parliament and it does much to determine the separation of powers between the state and citizens. Administrative law refers generally to the laws and legal principles governing the creation, administration and regulation of government agencies at the federal, state, and local levels. It is essentially “the powers granted to administrative agencies, the substantive rules that such agencies make, and the legal relationship between such agencies, other government bodies, and the public at large.”5 The difference between constitutional law and administrative law is that constitutional law covers the national legislative powers, topics , functions of government hierarchy and status of courts of law, limits of personal liberty and rights of individuals, law of citizenship and status of aliens, status of national institutions such as Universities, Army, Police and Prisons whereas administrative law covers the legal framework of government, administrative functions, judicial control that is courts must ensure that there is rule of law, discretionary power, natural justice (equity), remedies and liabilities, legislative and adjudicative procedures.

A good example of allocated power by statute or delegated by statute is all the service commissions under the constitution Act for and on behalf of the President. Administrative law is concerned with powers and procedures for the use of those powers by public officers and institutions responsible for performance of the functions of the state. It includes especially the law governing judicial review of administrative actions. In addition administrative law regulates the exercise of power allocated to the sub organ of the state or an institution within a state, such institution is to be a subject of administrative law as such must perform a public function.

Administrative Law is more concerned with: Wrongful acts such as errors of law and fact, using power for wrong purposes, irrelevant and relevant considerations in decision making as well as issues to do with acting in bad faith. Failing to act i.e. fettering discretion, consideration of irrelevant things, delegation which is unauthorized and failure to act. Procedural impropriety under statute – breach of Natural Justice that is the rule against bias – “nemo judex in causa sua”, financial bias and other bias and uncertainly in the test of bias such as the right to a fair hearing: “audi alteram parten” judicial, quasi- judicial and administrative functions.

The audi alteram partem rule seeks to promote objective and informed decisions. Thus it is important that it be observed prior to the decision.6 The rule would normally apply before an administrative organ performs its act7 The audi alteram parten rule is initially regarded to be applicable only in those cases where it could be said that administrative action in question violated the rights of the individual. The rule entails four principles. Firstly, a party to an administrative enquiry must be afforded an opportunity to state his or her case before a decision is reached, if such a decision is likely to affect his or her rights or legitimate expectations. Secondly, prejudicial facts must be communicated to the person who may be affected by the administrative decision, in order to enable him or her to rebut such facts.

Thirdly, the rule also stipulates that the administrative tribunal which has taken the decision must give reasons for its decision. Fourthly, the rule entails that the administrative organ exercising the discretion must be impartial. As a general rule it may be said that the principles of natural justice apply whenever an administrative act is quasi-judicial. An administrative act may be said to be quasi-judicial if it affects the rights and liberties of an individual. The Zambian classical case is Kang’ombe v Attorney -General8 the dismissal was said to be based on allegations not brought to the attention of the applicant so that he could exculpate himself. The question of dismissing him from the teaching service was referred to the Teaching Service Commission under Regulations 37 and 38 of the Teaching Service Commission Regulations. The matter was referred by the Secretary General to the government to the President with a recommendation to him to discharge the applicant from the teaching service.

The Court of appeal on an appeal by the Attorney General from the decision of the High Court upholding the Commissions decisions, held that the latter had no power to review its own decision and that since the President had under the relevant constitutional provision power to intervene only when the matter in question was still under consideration by the Commission, he had no power to act in this case. It can clearly be seen that the audi alteram partum rule was violated.

It should be noted that the rule of audi alteram partum may be applied less vigorous in quasi judicial proceedings like disciplinary proceedings as was the case in Kang’ombe v Attorney General while in administrative functions the rule may be relaxed. The justification of a hearing requirement can be seen in the case of Cooper v Wansworth Board of Works.9 Bayles J held that the plaintiff should have been given a hearing before the board exercised their powers even though there was no express statutory requirement that they do so.

Constitutional Law is an allocator of power. The constitution notably allocates power to the three arms of government these being the Executive, Legislature and the Judiciary. Constitutional law is a power map, while administrative law regulates the execise power allocated to the sub organ of the state or to an institution within the state, such institution to be a subject of administrative law must perform a public function. In the Supreme Court of Zambia a political party was said to be a club which performed private functions and could not be a subject of administrative law remedies but private law and that the action ought to have commenced by a general writ.10 Under constitutional challenges the courts are normally concerned with the conduct that violates the constitution. This action can be brought up by way of a petition under Article 28 of the constitution of Zambia and the Civil Rights rules contained in Statutory Instruments No. 156 of 1969.

The constitutional doctrine clearly stipulates that one branch is in principle not permitted to encroach on the domain or exercise the powers of another branch. If the Executive exceeds the powers allocated to it under the constitution it will be said that the Executive acted unconstitutionally. The legislature’s sovereignty to legislate means it should legislate within the law and not outside it an act which deprives a citizen of an existing right is impugnable. In reality there is no strict division of powers. The National Assembly usurped adjudicatory power allocated to the Judiciary just as they made a law contrary to the constitution in the case of Thomas Mumba v the People11 in which the case was referred to the High Court by the subordinate court for determination, the applicant was being tried in the lower Court for an offence under the Corrupt Practices Act.

Under section 53(1) of the Act, it was a requirement that if the accused elected to say something in defence, he had to say it on oath only. This clearly excluded the option to make an unsworn statement. The defence submitted that the provisions of section 53(1) of the Act contravened article 20(7) of the Constitution. The Court held in that case that an accused person in a criminal trial cannot be compelled to give evidence on oath if he elects to make an unsworn statement. Consequently, the Court declared that the said section 53(1) of the Corrupt Practices Act was unconstitutional and therefore null and void and that it should be severed from the Act.

In Attorney General and Another v Lewanika and 4 others12 the Supreme Court which falls under the judiciary validated the expulsion of members of the Movement for Multi-Party Democracy the party on which they were elected to Parliament. The Speaker used Article 72 (c) when declaring the seats vacant. The Article however did not provide what happens to a Member of Parliament who resigns from a political party and does not join any political party. The Supreme Court added the words vice versa in order to validate the Speakers action. This in itself amounted to judicial legislation and was indeed unconstitutional because the Judiciary usurped powers of Parliament to Legislate.

When an institution subordinate to any of the three arms of government be it the Executive arm of government where we have Ministers and Permanent Secretary, National Assembly- the Speaker and Clerks when acting administratively, the Judicial service Commission Chaired by the Chief Justice and Administrator when acting administratively act contrary to statute , statutory instrument or regulatory conferring powers on them the aggrieved may proceed by way of judicial review or may lay a complaint to the Ombudsman also known as Investigator General on grounds that the administrative Official acted illegally, unreasonable and that procedure was not followed when so acting.

Such actions can be commenced in administrative Law by way of Judicial Review as should have been the case in Sondashi v Brigadier General Miyanda who was sued in his capacity as Secretary General of the Movement for Multi- Party Democracy. It should however be noted that Administrative law is concerned with the performance of public officials on basis that they are executing their duties in accordance with the Statute, Statutory Instruments, Regulations or By-Laws and not private matters as it was in the Sondashi Case. If the delegated power is legislative or judicial in nature, the general rule in administrative law is that such powers must be exercised by the specific person identified in the legislation.

Judicial review of an act by an administrator is limited to determining whether delegates exercised their powers within the strict parameters as set out by the law that conferred the power and duties to act. These are essentially characterized as jurisdictional questions and therefore involve determination of whether the impugned act is ultra vires. Therefore, courts may intervene if they conclude any of the following jurisdictional problems were involved in the impugned act: • Substantive ultra vires (the act was not authorized by the legislation); • The delegate exercised discretion for an improper purpose, with malice or bad faith, or with reference to irrelevant considerations; • The delegate failed to consider relevant matters;

• The delegate made serious procedural errors (that is, breached principles of natural justice or the duty to be fair); or • The delegate made an error of law.

In reviewing the legality of an impugned act, if a court determines that the act was ultra vires, it has the following remedies available: declarations; injunctions; damages; statutory appeals to a court or another administrative body; or prerogative remedies these being certiorari, prohibition, mandamus, habeas corpus and quo warranto.

Conclusion

Administrative law is a branch of law that oversees the bodies of government that are responsible for administration. Constitutional law involves interpreting and upholding the constitution. The Supreme Court is the final authority on constitutional interpretation. The main difference between constitutional law and administrative law is their areas of focus. Although constitutional and administrative law differs in their scope and purpose, constitutional law plays a large part in administrative law. The distinction between constitutional and administrative law is that Constitutional law is the study of the law that founds the state and sets up its institutions. It also regulates the relationships between the organs of the state whereas administrative law is the law that provides the power and imposes the duties on government departments and public bodies, so that they may fulfill the tasks that have been designated to them by the state.

Constitutional law and administrative law are inherently political, because they are based on different notions of how states should run and for what purpose. Summary Without constitution law it is difficult to see how we could have administrative law because administrative law is the law made by the state in order to allow it run the country. Constitutional law essentially deals with who has the ability to make laws. Administrative law deals with the government officials who have been empowered by these laws to act. Therefore, there is a close relationship between constitutional and administrative law.

BIBLIOGRAPHY
(2012, 05). Administrative Law Notes. StudyMode.com. retrieved 05,2012, from http://www.studymode.com/course-notes/Administrative-Law -Notes-991959.html Harlow, C. and Rawlings, R., Law and Administration (2nd ed, Cambridge: Cambridge University Press, 2006)

Mah, C. L (n.d.). Administrative Law: the Basics. Retrieved April 6, 2013, from http://www.lawnow.org Musonda, P. Judge (2006) Administrative Law Module LL10. 1st ed., Zambian Open University

Administrative Law Essay

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