Another type of damages is general damages. These are things like pain and suffering and future loss of earnings. These things cannot be calculated precisely.
Financial losses are known as pecuniary losses, these losses are generally easier to estimate. Non pecuniary losses are harder to judge as they are for things like loss of ordinary pleasures and enjoyment of life and pain and suffering. It’s difficult to judge how much a person’s life has changed in result of a tortious action.
(Slapper, G Pg. 14)
If a contract is broken or not upheld, the wronged party (the claimant) can file a civil action to recover what they have lost due to the contract being broken. For example if a contract had been formed for a party to sell a unique item, the seller then decides not to sell and therefore is breaking the contract. In contract law the remedy would be for the seller to stick to the contract and honour the sale as agreed in the contract. If the seller does not comply with the order of the court, they may risk being sent to prison. (Slapper, G pg. 20)
When dealing with matter of child protection both criminal sanctions and civil remedies can apply.
Civil remedies relating to children aim to protect them from abuse or neglect, rather than compensate like other civil remedies. If a person ignores a civil remedy relating to a child, the case can then become criminal.
There are different civil remedies that can be put in place depending on the situation.
An occupation order aims to protect a person and their children from suffering domestic violence. An occupation order can result in the abuser having to leave their home or only enter certain parts of the house. It can also specify that the abuser can not re enter the home or come within a certain distance of the address. (Slapper, G. p 32)
A non-molestation order is issued to prevent a person threatening violence. Intimidating, pestering or harassing the applicant and their children.
When a court order is made, the child is removed from the care of their parents and placed in the care of the local authority social work department. The parents of the child not longer have any say or rights associated with the child, unless the order is revoked by the court. (Slapper, G. p 23)
A supervision order is where social services make regular visits to the child to make sure they are being looked after properly. A supervision order lasts for 12 months, however, extensions can be made if needed. (Slapper, G p 24)
The criteria for an ASBO to be issued is that the person must be 10 years old or older and that their behaviour is causing ‘distress or harassment.’
Its up to the local authority or the police to apply to the magistrates court for an antisocial behavioural order (ASBO). An ASBO can stop a person from behaving in a certain manner or from going to a specific area. These conditions remain intact for two years.
If the person does not comply with the conditions of the ASBO, they may be prosecuted. This would then become a criminal matter. (Slapper, G p.31)
Criminal sanctions are designed to punish the wrongdoer.
There are several criminal sanctions that exist in English Law today. They include imprisonment, fines, community service and penalty points on your driving licence. Other criminal sanctions are less commonly know like, deferred sentence, deprivation order and reparation order. (Slapper, G p 39)
In England the worse punishment a person can receive is life imprisonment. This sentence takes away a persons freedom and more importantly their time. Being sentenced to 20 years in prison takes away a huge part a persons life. (Slapper, G p 48)
Life imprisonment does not actually mean that the person will serve life. Opinion is divided as to whether life should mean life. In other countries the death penalty still exists, for those in England serving a life sentence, its likely that they would be sentenced to the death penalty in other countries.
Fines are a common criminal sanction.
In criminal law a fine would be deemed punishment for less serious crimes, like driving offences. Fines are a good punishment as they are felt by the person by way of them having to pay money without the need for a more serious punishment like prison.
Those who commit driving offences generally are given a fine and penalty points on their licence, in some cases their licence is revoked.
A fine is thought to be a deterrent, yet the numbers of people who had their licence endorsed in 1989 was 706,000 and in 1999 was 1,089,000. It would appear that fines as a monetary punishment are not working as the numbers are ever increasing.
The Home Office Paper ‘Motoring offences: England and Wales 1989 to 1999’
Perhaps if people knew fines would cost them more money the deterrent might work and less people would speed etc. (Slapper, g p 50)
Community rehabilitation is often seen as a light punishment. It can involve unpaid work in the community or drug rehabilitation. The aim of community rehabilitation is to treat the offender more than punish them for the crime. If a drug addict is convicted of stealing to buy drugs and is then put into drug rehabilitation, it is hoped that the offender will then have no need to steel as he no longer has a drug habit to pay for. He is therefore rehabilitated. (Slapper, G p 51)
Something important to look at is if criminal sanctions work.
With imprisonment being the most serious of the criminal sanctions available in England, does it work? If it does work, who does it work for? The victim, the offender or the public. Prison definitely works for the victim as they may feel happy that the person who has committed a crime against them is now paying for it by serving prison time and losing their freedom. Prison works for the public whilst the offender is in prison as the offender is no threat to them whilst locked up. However, if the offender does not have some sort of rehabilitation whilst in prison, the chances are he will offend again once released. Prison generally does not help the offender. Obviously they are there to be punished for their actions, but maybe the focus should be more about rehabilitation to help the offender move on from crime and have a productive future.
Retribution is the offender getting what they deserve according to what they have done to the victim.
In the past this was take literally. A thief would have had their hand cut off. (Slapper, G p 43)
Reparation is more victim focused. The victims feelings are taken into account. Sentencers should consider what punishment is best for the victim and the community.
Deterrence is a good thing as it may stop people committing crimes. If a potential offender knows they will serve a long prison sentence for a crime it may defer them from doing the crime.
Rehabilitation is less harsh way of dealing with an offender. Rehabilitation aims to help and encourage the offender to change their ways.
There are various different ways a person can be rehabilitated; these include drug or alcohol rehab, counselling and education.
A disadvantage of rehabilitation is that it’s somewhat of a postcode lottery, there may not always be funding or facilities where people need them. (Slapper, G p 46)
Incapacitation is the only penal theory that keeps the public protected. Once an offender has been put in prison they cannot harm the public. (Slapper, G p 46)
In criminal law, the focus is on what should be done with the wrongdoer. Punishing them for their crime.
The statement ‘The difference between civil and criminal sanctions is that the former are designed to compensate and the latter are designed to punish’ is fairly accurate with the exemption being child protection. Child protection is a civil matter, it does not compensate anybody. Child protection law is there to protect children from suffering any harm.
Other civil sanctions are designed to compensate a person to whom a wrong has been done. This is usually a monetary settlement and is often not paid by the defendant, but the defendant’s insurance company. For example, if a person crashes their car in to somebody else causing them injury and damage to their car, the person that caused the crash would not pay any money directly to the innocent party, it would be the guilty party’s insurance company that would pay to right the wrong that has been done.
Criminal sanctions are designed to punish those who have done wrong. When one has committed a crime, it is dealt with by punishing them for their actions. The main punishments in England are imprisonment, fines and community rehabilitation.
In conclusion to this assignment, one would find that civil sanctions are generally there to compensate and focus on the victim and making right a wrong. Criminal sanctions are about punishing the offender and are generally not victim focused. One would find that civil remedies generally work with most people happy to accept money as compensation; however money cannot always compensate what a person has lost. Civil remedies relating to children involve no compensation, they are about protecting children.
Word count – 1989
Bibliography
Dr Lim Poh Choo, Brislow, J. (1977) Lim Poh Choo v Camden and Islington Area Health Authority, Court of Appeal, Civil Division.
Slapper, G et al, (2010) Unit 16 Civil Sanctions, Block 5 Sanctions, W100 Rules, Rights and Justice, Milton Keynes, The Open University.
Slapper, G et al, (2010) Unit 17, Criminal Sanctions, Block 5 Sanctions, W100 Rules, Rights and Justice, Milton Keynes, The Open University.
Reader 2, reading 25, W100 Rules, Rights and Justice, Milton Keynes, The Open University.