Orlando Criminal Defense Attorney
DUI in Sanford – Illinois Supreme Court clarifies snow-shoveling law’s protections for property owners
Source : Chicago Tribune News
By : Tribune news services
Category : Orlando Criminal Defense Attorney , DUI in Sanford
Property owners can take comfort, but shouldn’t lapse into negligence, now that the Illinois Supreme Court has clarified a 1979 state law protecting them from some slip-and-fall lawsuits. The high court reaffirmed earlier this month that the Snow and Ice Removal Act shields property owners from liability if someone gets hurt because they didn’t do a good enough job of shoveling, but only when the snow or ice was the result of natural conditions.
The court ruled Dec. 1 that when lawmakers passed the law nearly four decades ago, they meant to protect property owners from injury claims resulting from inadequate shoveling. The law, the court said, was intended to encourage people to voluntarily clear their sidewalks.
But property owners aren’t free to ignore hazardous “unnatural accumulations” of ice and snow, the court said.
The case stems from a suburban Chicago woman who fell on an icy sidewalk outside her Carol Stream condo building in 2011, breaking her leg, knee and hip. Pamela Murphy-Hylton claims that inadequate drainage and the placement of downspouts caused the icy patch. She’s seeking damages from the condominium association and the property management company. Attorneys for Klein Creek Condominium Association and Lieberman Management Services had argued the law gave them immunity, winning a summary judgment in trial court that was reversed on appeal. The Illinois Supreme Court, in a unanimous opinion written by Justice Mary Jane Theis, affirmed the appellate court’s judgment and sent the case back to the trial court.
“The Snow and Ice Removal Act provides immunity to residential property owners from claims of liability for injuries allegedly caused by icy sidewalks that result from negligent snow and ice removal efforts, but it does not extend to immunize them from claims of liability for injuries allegedly caused by icy sidewalks that result from an otherwise negligent failure to maintain the premises,” Theis wrote. Attorney Kristina K. Green said her client has steep medical bills — possibly totaling $1 million — and is ready to resolve the case, either through mediation or at trial.
“The statute’s intent was you can’t get in trouble for attempts to clear the ice and snow,” Green said. “The ice that our client slipped on wasn’t the result of snow and ice removal efforts. The ice formed because there were defects in the property.” The Illinois Supreme Court ruling aligns with “the way the law was intended,” Green said. “We think it was the right decision obviously.” A phone message left for the attorney for the property manager was not immediately returned.
Read more : chicagotribune.com/news/local/breaking/ct-snow-shoveling-law-20161225-story.html
DUI in Sanford – Supreme Court gives more teeth to law banning sex determination
Source : Above The Law News
By : STACI ZARETSKY
Category : Orlando Criminal Defense Attorney , DUI in Sanford
Concerned over the declining sex ratio in the country, the Supreme Court on Tuesday passed a raft of measures including fast-tracking legal proceedings for effective implementation of the law that bans pre-natal diagnostics. The directions came on a public interest petition complaining that the sex ratio continued to fall despite the 22-year-old law enforced to prevent female foeticide. “It needs no special emphasis that a female child is entitled to enjoy equal right that a male child is allowed to have. The constitutional identity of a female child cannot be mortgaged to any kind of social or other concept that has developed or is thought of,” the court said.
As per the verdict, all states and union territories shall maintain a centralised database of all registration units. The information shall be made available on the website. The data must contain birth information for each district, municipality and corporation or gram panchayat. The authorities shall take steps for constitution of statutory bodies as the law mandates. Courts, the top court said, should strictly adhere to the Pre-Conception & Pre-Natal Diagnostic Techniques (PNDT) Act that prescribes punishment up to three years of jail. Direction has been issued to the state high courts to ensure that complaints against pre-natal diagnostics are fast-tracked. Judicial officers, hearing such matters, shall be periodically imparted training and submit a quarterly report to the high courts on the status of the cases handled.
Chief justices of the HCs will constitute a committee of three judges to oversee the progress of PNDT cases. “When a female foetus is destroyed through artificial means, which is legally impermissible, the dignity of life of a woman to be born is extinguished. It corrodes the human values,” the bench said. “The legislature has brought a complete code and it subserves the constitutional purpose,” it said, noticing that the law had failed to achieve its objective. The court also asked the government to undertake campaigns on radio and television.
Read more : abovethelaw.com/2016/11/legal-analysis-of-the-little-mermaid-that-will-ruin-your-childhood/
Sanford DUI Attorney – High court rules UK government plans to tackle air pollution are illegal
Source : The Guardian
By : Damian Carrington
Category : Orlando Criminal Defense Attorney , Sanford DUI Attorney
The government’s plan for tackling the UK’s air pollution crisis has been judged illegally poor at the high court, marking the second time in 18 months that ministers have lost in court on the issue. The defeat is a humiliation for ministers who by law must cut the illegal levels of nitrogen dioxide suffered by dozens of towns and cities in the “shortest possible time”. Legal NGO ClientEarth, which brought the case, argued that current plans ignore many measures that could help achieve this, placing too much weight on costs. On Wednesday Mr Justice Garnham agreed. He also said ministers knew that over-optimistic pollution modelling was being used, based on flawed lab tests of diesel vehicles rather than actual emissions on the road. The government said it would not appeal against the decision and agreed in court to discuss with ClientEarth a new timetable for more realistic pollution modelling and the steps needed to bring pollution levels down to legal levels. The parties will return to court in a week but if agreement cannot be reached, the judge could impose a timetable upon the government.
At prime minister’s questions, Theresa May indicated that the government would respond positively, with new proposals: “We now recognise that Defra [the Department of Environment, Food and Rural Affairs] has to look at the judgement made by the courts and we now have to look again at the proposals we will bring forward. Nobody in this house doubts the importance of the issue of air quality. We have taken action, there is more to do and we will do it.” Air pollution causes 50,000 early deaths and £27.5bn in costs every year, according to the government’s own estimates, and was called a “public health emergency” by MPs in April. James Thornton, CEO of ClientEarth, said: “The time for legal action is over. I challenge Theresa May to take immediate action now to deal with illegal levels of pollution and prevent tens of thousands of additional early deaths in the UK. The high court has ruled that more urgent action must be taken. Britain is watching and waiting, prime minister.” He said the increased action required would very likely include bigger and tougher clean air zones in more cities and other measure such as scrappage schemes for the dirtiest vehicles: “The government will have to be tougher on diesel.”
The mayor of London, Sadiq Khan, who took part in the case against the government, said: “Today’s ruling lays the blame at the door of the government for its complacency in failing to tackle the problem quickly and credibly. In so doing they have let down millions of people the length and breadth of the country.” A spokeswoman for Defra said: “Improving air quality is a priority for this government and we are determined to cut harmful emissions. Our plans have always followed the best available evidence – we have always been clear that we are ready to update them if necessary. Whilst our huge investment in green transport initiatives and plans to introduce clean air zones [in six cities] around the country will help tackle this problem, we accept the court’s judgment. We will now carefully consider this ruling, and our next steps, in detail.” ClientEarth defeated the government on the same issue at the supreme court in April 2015. Ministers were then ordered to draw up a new action plan, but now that new plan has also been found to be illegal. Documents revealed during the latest case showed the Treasury had blocked plans to charge diesel cars to enter towns and cities blighted by air pollution, concerned about the political impact of angering motorists. Both the environment and transport departments recommended changes to vehicle excise duty rates to encourage the purchase of low-pollution vehicles, but the Treasury also rejected that idea.
Documents further showed that the government’s plan to bring air pollution down to legal levels by 2020 for some cities and 2025 for London had been chosen because that was the date ministers thought they would face European commission fines, not which they considered “as soon as possible”. There had been a draft government plan for 16 low emission zones, which polluting vehicles are charged to enter, in cities outside London but the number was cut to just five on cost grounds. All these proposals will now be revisited. Thornton said a national network of clean air zones needed to be in place by 2018. “If you put in clean air zones, it works overnight.” Dr Penny Woods, chief executive of the British Lung Foundation, said: “We urgently need a new clean air act that restricts the most polluting vehicles from our urban areas and protects everyone’s lung health – air pollution affects all of us.” Sam Hall, at conservative thinktank Bright Blue, said there should be more power and funding devolved to local authorities to enable all English cities to set up clean air zones and more support for electric cars. Keith Taylor, Green party MEP, said: “The failure highlighted by the judge today is as much moral as it is legal: ministers have displayed an extremely concerning attitude of indifference towards their duty to safeguard the health of British citizens.”
Read more : theguardian.com/environment/2016/nov/02/high-court-rules-uk-government-plans-to-tackle-air-pollution-are-illegal
Sanford DUI Attorney – Russia introduces a new law against “undesirable” NGOs
Source : Euro News
By : Press Release
Category : Orlando Criminal Defense Attorney, Sanford DUI Attorney
Russian President Vladimir Putin has signed into law a bill which will allow foreign organisations to be banned from operating in the country. The new law will give authorities the right to prosecute non-governmental organisations if considered “undesirable” or a threat to national security.
What constitutes “undesirable” is unclear. Those backing the bill claim it will protect Russia from any outside interference as relations with the West deteriorate over Ukraine.
NGOs in Russia are already feeling the squeeze after a 2012 law, which requires them to register as “foreign agents”. The United States government issued a statement saying it was “deeply troubled” by the law and there has been a strong response against the introduction of the bill by the British government and a number of NGOs such as Amnesty International and Human Rights Watch.
Many believe the new law will be used to clamp down on political opposition to the Kremlin. Individuals working for an NGO could face a maximum six-year jail term if found to be “undesirable”.
Link : euronews.com/2015/05/24/russia-introduces-a-new-law-against-undesirable-ngo-s/
Orlando Criminal Defense Attorney – Supreme Court Considers Voting-Rights Case
SOURCE : Onilne WSJ
BY : Jess Bravin
Category : Attorney Matthews Bark Orlando, Orlando Criminal Defense Attorney
The Supreme Court appeared divided Wednesday over whether Alabama can draw its election map with predominantly black legislative districts that effectively limit racially diverse areas where Democrats can compete. The case could have implications for redistricting across the country, but particularly in the South, where racially polarized voting has produced legislative majorities of white Republicans and significant numbers of black Democrats, but left little room for white Democrats, whose numbers have dwindled in recent decades. It is the court’s first major review of Voting Rights Act requirements since last year’s 5-4 decision scaled back federal enforcement of the 1965 law. Following the 2010 census, the Republican-controlled Alabama Legislature resolved to maintain black supermajorities in a handful of districts, over objections from Democrats who believed having racially diverse districts could help white Democrats hold seats. While Alabama Republicans said they were ensuring that blacks retained the seats they currently held, civil-rights groups challenged the move and accused lawmakers of turning voting-rights laws on their head with the goal of undermining Democratic power in the state.
The high court’s four liberal justices, who dissented from last year’s decision reining in the Justice Department’s power to enforce the Voting Rights Act, appeared sympathetic to the challengers. Conservative justices were more skeptical, but some, including Chief Justice John Roberts and Justice Anthony Kennedy , sharply questioned both sides. The state “obviously had to move new voters into the majority-minority districts because they were all underpopulated, and they need to move enough so that the minorities have an opportunity to elect candidates of their choice, but they can’t move too many because that would be packing, correct?” said Chief Justice Roberts, questioning Richard Pildes, a lawyer for challengers. “Your honor, we understand that states are in a bind in this situation,” Mr. Pildes said. But when Alabama’s solicitor general, Andrew Brasher, said the Legislature simply maintained the status quo, Chief Justice Roberts challenged him, too. “The other side says it was impermissible for you to preserve the status quo because the opportunity for minority voters in the majority-minority districts to participate in the electoral process had improved,” he said, alluding to arguments that black- voter registration and turnout has risen in recent years, thus requiring a lower percentage of African-Americans in a district to ensure they could elect their candidate of choice. By those lights, “maintaining the status quo would be characterized as packing” the district, the chief justice said. The 14th and 15th amendments, ratified after the Civil War to protect newly free blacks, and the Voting Rights Act of 1965, which helps implement them, largely have been interpreted to protect minority districts. When Democrats controlled the Alabama Legislature, lawmakers created districts with African-American supermajorities. Republicans, who since took over the Statehouse, maintained nearly identical percentages by moving more blacks into those districts, Mr. Brasher said.
He argued that if the percentages were lawful when Democrats adopted them, they should remain so for Republicans. “The whole point of this plan was to preserve the status quo because the Republican Party had won a majority in the Legislature for first time in 130 years,” Mr. Brasher said. U.S. Solicitor General Donald Verrilli, appearing on behalf of the Obama administration, said it was improper to use race as a proxy for political party. “You’re stereotyping in that situation,” Mr. Verrilli said, adding there was evidence such assumptions had motivated the Legislature, which split up voting precincts to move black neighborhoods into the districts. While precinct voting information is available, “you don’t know how people in the census block voted. What you know is their race,” he said. The court also heard arguments in a case from Maryland over whether states can tax all of the income of residents when a portion of those earnings had been taxed in another state. The justices were considering how Maryland taxed the out-of-state income earned by a resident who was a part-owner of Maxim Healthcare Services Inc., a national health services company. Maryland’s tax scheme is not the norm. Other states generally allow residents to take tax credits on income earned in and taxed by other states. However, the case could affect income taxes imposed by some local jurisdictions, including New York City. The outcome of that case was unclear from Wednesday’s arguments, but Maryland’s lawyer faced the most persistent barrage of questioning from the court, which could be a sign the state faces an uphill climb.
SOURCE : online.wsj.com/articles/supreme-court-considers-voting-rights-case-1415838948
Matthews Bark – Orlando Drug Defense Attorney | “5 Things About China’s New Aged-Care Law”
Source : usatoday.com
By : Associated Press
Category : Matthews Bark Criminal Defense Orlando , Orlando Drug Defense Attorney
Elderly parents in China can now sue their grown children for both financial and emotional support. The changes in the law in China reflect an increasingly urgent dilemma across the world: As populations age faster than ever before, families and governments are struggling to decide who will protect and provide for the old. Too often, the answer is nobody. The Associated Press spent months reporting across formats on population aging and the growing problem of elder abuse and neglect for an occasional series, Old World. Here are five things to know about the situation in China, where filial piety, or respect for one’s parents, was once a given:
HONOR THY FATHER AND MOTHER – IT’S THE LAW
A handful of countries, such as China, India, France and Ukraine, require adult children to financially support their parents. Similar laws are in place in 29 U.S. states, Puerto Rico and most of Canada, but they are rarely enforced because government aid helps support the old. In Singapore, adult children who do not give their parents an allowance can face six months in jail.
HONEY, SO NICE THAT YOU CAME
More than 1,000 parents in China have sued their children for financial support over the last 15 years. But the law now goes further to require that adult children regularly visit their parents. Employers are required to give workers time off to do so, although that provision may be hard to enforce.
GOING GRAY BEFORE GETTING RICH
China is not yet wealthy enough to keep up with its rapidly aging population. It is projected to have 636 million people over age 50 by 2050, or nearly 49 percent of the population — up from 25 percent in 2010. Although a recent expansion of the medical system covers most Chinese, reimbursement rates remain low and out-of-pocket costs high. Many rural families cannot afford hospitals’ huge up-front deposits.
THE FIRST AMONG 100 VIRTUES
A Chinese proverb calls filial piety, or respect for one’s parents, “the first among 100 virtues.” The ancient philosopher Confucius credited it as the bedrock of social harmony, and a popular song urges grown children to visit their parents often. Communities hold “best children” contests, complete with cash prizes. One county even made filial piety a condition for the promotion of local officials. And generations of Chinese have read the classic morality guide, “The Twenty-Four Filial Exemplars,” where sons strangle tigers, let mosquitoes feast on their blood and proudly scrub bedpans for the sake of their parents.
AT HOME OR AWAY
Nursing homes are not an option for most Chinese. The few nursing homes in China supply only 22 beds for every 1,000 seniors, and most are too expensive for the average family. Even children who can afford nursing homes fear sending their parents away will mark them as un-filial.
Source : usatoday.com/story/news/world/2013/10/14/5-things-to-know-about-chinas-new-aged-care-law/2980659/
Attorney Matthews Bark Orlando | “Done Deal: Obama Signs Debt Bill Into Law”
Source : nbcpolitics.nbcnews.com
By : NBCNews
Category : Attorney Matthews Bark Orlando, Orlando Criminal Defense Attorney
After weeks of stalemate that shuttered the government for 16 days and brought the nation within hours of a key deadline to renew its borrowing authority, the standoff is finally over. President Barack Obama has signed into law a bill to re-open the government and extend the debt ceiling – just hours after the House and Senate passed the measure with broad bipartisan support. Obama said the measure would immediately restart federal programs that had been put on hold during the funding lapse. “We will begin reopening our government immediately,” he said in remarks before the House passed the bill. “And we can begin to lift this cloud of uncertainty and unease from our businesses and the American people.”
The GOP-dominated House passed the measure 285-144, with 87 Republicans joining all Democrats in support. The Senate passed it 81-18. In both chambers, only Republicans voted against the measure. Office of Management and Budget director Sylvia Mathews Burwell told federal employees to expect to return to work on Thursday morning. Federal employees who were furloughed as a result of the shutdown will receive back pay “as soon as practicable,” according to the bill’s text. The bill will fund the federal government through Jan. 15 and extend the government’s borrowing power through Feb. 7. It also calls for a congressional agreement by mid-December on a long-term budget plan.
After more than two weeks of standoff over the government shutdown, Republicans — faced with Thursday’s debt ceiling deadline — were forced to accept a deal with only minor concessions from Democrats. After the Senate vote, Sen. Chuck Schumer, D-N.Y., called the occasion “a somber day,” noting the effects of the shutdown on Americans. “The bottom line is millions suffered. Millions didn’t get paychecks. The economy was dragged down, and confidence and faith in the United States’ credit — and in the United States itself around the world — was shaken,” he said.
The defeat for the GOP after both chambers spent days warring over competing budget proposals. An eleventh-hour GOP plan in the House collapsed late Tuesday night, leaving lawmakers with no option except to take up a compromise framework crafted by Democratic Senate Majority Leader Harry Reid and Republican Minority Leader Mitch McConnell. Sen. Ted Cruz, R-Texas, slammed fellow Republicans in the upper chamber for “directing their cannon fire” at conservatives in the House, who repeatedly rejected proposals that they said didn’t do enough to gut the president’s health care law. “This is a terrible deal today,” Cruz said on the Senate floor. “This is a terrible deal for the American people.” Sen. Mike Lee of Utah, a close ally of Cruz, argued that Republicans were right to fight the shutdown battle over opposition to Obamacare. “Even if victory seemed difficult or impossible, that wouldn’t excuse me or anyone else from doing the right thing,” he said. “Avoiding difficult battles is, after all, how we ended up in this kind of mess.
The passage of the new temporary funding bill became clear earlier Wednesday, when House Speaker John Boehner formally announced that Republicans will not oppose the bill en masse. “The House has fought with everything it has to convince the president of the United States to engage in bipartisan negotiations aimed at addressing our country’s debt and providing fairness for the American people under ObamaCare,” Boehner said in a statement. “That fight will continue. But blocking the bipartisan agreement reached today by the members of the Senate will not be a tactic for us.”
Boehner and other Republican lawmakers had come under pressure to reach an agreement as the impasse roiled stocks in recent days. Ratings agency Standard and Poor’s estimated Wednesday that the shutdown “shaved at least 0.6% off of annualized fourth-quarter 2013 GDP growth.” That works out to a $24 billion bite out of the American economy, a number that House Minority Leader Nancy Pelosi cited on the House floor before the vote.
“My colleagues, do you think that your recklessness was worth $24 billion to our economy?” she said of Republicans in the House. “This recklessness is a luxury the American people cannot afford.” The stock market, sensing an agreement, rallied Wednesday from the opening bell. The Dow Jones industrial average soared 205 points, and other indexes approached all-time highs. Crucially, bond investors signaled they were less worried, too. Yields on short-term government debt, even loans coming due next week, fell sharply, a sign that investors felt surer that they would get their money back.
Source : nbcpolitics.nbcnews.com/_news/2013/10/16/20992216-done-deal-obama-signs-debt-bill-into-law
Attorney Matthews Bark- Sanford Criminal Defense Attorney | “How California’s New ‘Do-Not-Track’ Law Will Hurt Consumers”
Source : forbes.com
By : Link Assistant
Category : Attorney Matthews Bark Orlando, Orlando Criminal Defense Attorney
California enacted a new law (AB 370) requiring many websites to disclose more information about how they track users. Websites that collect personal information about their users must disclose (1) how they respond to a web browser’s “do not track” (DNT) signal, and (2) if third parties can collect personal information across a network of sites. The law doesn’t require websites to honor browser DNT signals or block third party tracking; it simply tries to increase transparency about the website’s practices. Despite that intent, the law almost certainly doesn’t help consumers, though the law is a win for other constituents. An assessment of winners and losers from this new law:
Winner: California’s Department of Justice’s Privacy Enforcement and Protection Unit. A couple of years ago, the California Attorney General’s office assigned a group of prosecutors to work the Internet privacy beat. The unit has struggled to find good cases to prosecute; its flagship prosecution has been the low-stakes claim that Delta Airline’s mobile app didn’t adequately display a privacy policy. The new law vastly expands the unit’s potential enforcement targets–basically, every California website that doesn’t promptly update its privacy policies.
Winner: Plaintiffs’ Lawyers. I doubt plaintiffs’ lawyers will sue websites for failing to make the required disclosures. Instead, I expect plaintiffs’ lawyers will troll through the new disclosures looking for litigation-bait. Because a browser’s DNT signal communicates ambiguous information to the website, a website’s explanation of how they treat that signal necessarily will be ambiguous as well, leaving room for plaintiff lawyers to misinterpret and over-interpret the website’s disclosures. Furthermore, I expect plaintiffs’ lawyers will try to establish liability for websites that admit they don’t honor the browser’s DNT signal.
Winner: Reporters. Reporters will surely generate good link-bait by writing articles mocking and shaming some high-visibility websites.
Winner: Do-Not-Track Advocates. For years, industry representatives, advocates and technologists have been trying to define what it means to “track” online behavior so that industry could build solutions to effectuate consumers’ tracking preferences. Those negotiations broke down spectacularly last year, and efforts to revitalize the process this year have failed. This law bypasses all of those efforts. In effect, the law lets browser manufacturers create and self-define their DNT signals, and websites must explain what they do with those signals. While this outcome gives a lot of power (too much?) to browser manufacturers, it does break the negotiation logjam while giving privacy advocates some tangible output for their efforts.
Loser: Websites. Websites will incur numerous costs due to the law: (1) determining what, if anything, they have to do to comply with the law, (2) figuring out how to describe their practices, (3) keeping those descriptions current over time, even as browsers change their signals and websites evolve their service offerings, and (4) dealing with the inevitable enforcement actions and lawsuits, meritorious or not. Most privacy advocates would scoff at these costs (or secretly celebrate them), but these costs are yet another de facto tax on the Internet ecosystem. The tax might be justified if it produces commensurate social benefit, but…
Loser: Consumers. We already know consumers don’t read privacy policies, so putting new disclosures into privacy policies won’t lead to more informed consumers. Consumers also routinely acquiesce to browsers’ default DNT signals, so consumers today aren’t making informed choices about their desired tracking. Will the new disclosures required by this law improve either situation? No.
Worse, the concept of “tracking” is murky to consumers. Beyond the reference to browser DNT signals, the law specifically applies to only one type of tracking: the use of “personally identifiable information” to track users across time and over multiple websites. Thus, the law doesn’t address a website’s internal tracking like Amazon’s personalized recommendations; the use of third party analytic services; tracking based solely on IP addresses (or browser settings) if that tracking information isn’t combined with personally identifiable information; and many other types of behavior that might constitute “tracking.”
Due to the semantic ambiguity of “tracking,” consumers might mistakenly infer that a website publicly declaring that it is honoring browsers’ DNT signal isn’t “tracking” them. To the extent consumers even see the disclosures, it will almost certainly mislead them, and perhaps cause them to overestimate their protection. This reminds me of how California’s current requirement that websites display “privacy policies” misled consumers into thinking those documents protected them.
Source : forbes.com/sites/ericgoldman/2013/10/09/how-californias-new-do-not-track-law-will-hurt-consumers/
Orlando Criminal Defense Attorney | “Meaning Of Criminal Defense”
Source : en.wikipedia.org
By : Wikipedia
Category : Orlando Drug Defense Attorney, Attorney Matthews Bark Orlando
In the field of criminal law, there are a variety of conditions that will tend to negate elements of a crime (particularly the intent element), known as defenses. The label may be apt in jurisdictions where the accused may be assigned some burden before a tribunal. However, in many jurisdictions, the entire burden to prove a crime is on the government, which also must prove the absence of these defenses, where implicated. In other words, in many jurisdictions the absence of these so-called defenses is treated as an element of the crime. So-called defenses may provide partial or total refuge from punishment.
Types of defenses
Insanity
William Hogarth’s A Rake’s Progress, depicting the world’s oldest psychiatric hospital, Bethlem Hospital – Insanity or mental disorder (Australia and Canada), may negate the intent of any crime, although it pertains only to those crimes having an intent element. A variety of rules have been advanced to define what, precisely, constitutes criminal insanity. The most common definitions involve either an actor’s lack of understanding of the wrongfulness of the offending conduct, or the actor’s inability to conform conduct to the law. If one succeeds in being declared “not guilty by reason of insanity,” then the result frequently is treatment in a mental hospital, although some jurisdictions provide the sentencing authority with flexibility. As further described in criminal defense articles available online.
Automatism
Automatism is a state where the muscles act without any control by the mind, or with a lack of consciousness. One may suddenly fall ill, into a dream like state as a result of post traumatic stress, or even be “attacked by a swarm of bees” and go into an automatic spell. However to be classed as an “automaton” means there must have been a total destruction of voluntary control, which does not include a partial loss of consciousness as the result of driving for too long. Where the onset of loss of bodily control was blameworthy, e.g., the result of voluntary drug use, it may be a defense only to specific intent crimes.
Intoxication
In some jurisdictions, intoxication may negate specific intent, a particular kind of mens rea applicable only to some crimes. For example, lack of specific intent might reduce murder to manslaughter. Voluntary intoxication nevertheless often will provide basic intent, e.g., the intent required for manslaughter.[8] On the other hand, involuntarily intoxication, for example by punch spiked unforeseeably with alcohol, may give rise to no inference of basic intent.
Strictly speaking, however, it could be argued that intoxication is not a defence but a denial of mens rea; the main difference being that a defence accepts the mens rea and actus reus of an offence are present. With intoxication, there is no acceptance of the mens rea of the offence. For offences of basic intent, the act itself is criminalised. All that is needed is the intent to do the act. It can therefore be inferred that there is such intent relatively easily; when intoxicated one is not an autometer – there is still control of one’s actions. Therefore, intoxication will rarely (if ever) deny the mens rea of crimes of basic intent. With specific intent, the character of the act is criminalised, for the act itself is often objectively innocent. Appropriation of an item is perfectly innocent, yet when one appropriates with the intent to permanently deprive the owner of it, there is a theft. This is much more difficult to prove beyond reasonable doubt, for an intoxicated person may exercise control over his actions but will often lack an understanding of what is being done – without this understanding the necessary intent cannot be proven. Therefore, whilst it is tempting to think of intoxication as a defence, it is more accurate to see it as a denial of the mens rea of an offence – where the mens rea or actus reus is not proven, there is no need for defences.
Mistake Of Fact
“I made a mistake” is a defense in some jurisdictions if the mistake is about a fact and is genuine. The defense is most often used in conjunction with another defense, where the mistake led the defendant to believe that their actions were justifiable under the second defense. For example, a charge of assault on a police officer may be negated by genuine (and perhaps reasonable) mistake of fact that the person the defendant assaulted was a criminal and not an officer, thus allowing a defense of use of force to prevent a violent crime (generally part of self-defense/defense of person)
Necessity/Lesser Harm
An overarching theory of criminal defenses is the doctrine of necessity. Generally speaking, a criminal act can be justifiable if it is necessary to prevent a foreseeable and greater harm than the harm created by the act. For instance, trespassing is generally justified if the defendant only trespassed in order to, for instance, instantaneously attempt to put out a fire on the property, or to rescue someone drowning in a pool on the property. The destruction or death caused by following the law and not trespassing would have been far greater than the harm caused by trespassing. Similarly, most laws forbidding the discharge of firearms in public contain an exception for emergency or defensive use. Necessity generally forms the basis for many other defenses and their favor, such as capacity of office, legal duty and self-defense.
Lawful Capacity of Office
This defense is generally available to public servants and first responders such as police officers, firefighters, EMTs etc. It usually protects the first responder from responsibility for otherwise criminal actions that the first responder must perform as an appointed agent of the jurisdiction in the course and scope of their duties. For example, a paramedic who forcibly enters a house or building in answer to an emergency call cannot be charged with breaking and entering. A judge who sentences a man to die for a crime cannot be charged with attempted murder if the convicted man is later exonerated. Such protection is generally limited to acts required in the course and scope of employment, and it does not preclude gross negligence or malicious intent.
Legal Duty
This “lawful capacity of office” defense can also apply to civilians who do not hold such a position, but whose assistance is requested by someone who does, such as a police officer. A person who witnesses a criminal being chased by police who yell “stop that man!”, and obliges resulting in injury to the criminal, cannot be charged with assault or sued for personal injury. “Good Samaritan” laws generally provide immunity in civil and criminal proceedings to persons who, in good faith, cause injury while attempting to help a person in distress, protecting such persons even in cases where greater harm resulted from the action than would have occurred otherwise.
Self defense
Self-defense is, in general, some reasonable action taken in protection of self. An act taken in self-defense often is not a crime at all; no punishment will be imposed. To qualify, any defensive force must be proportionate to the threat. Use of a firearm in response to a non-lethal threat is a typical example of disproportionate force; however, such decisions are dependent on the situation and the applicable law, and thus the example situation can in some circumstances be defensible, Generally because of a codified presumption intended to prevent the unjust negation of this defense by the trier of fact.
Duress
One who is “under duress” is forced into an unlawful act. Duress can be a defense in many jurisdictions, although not for the most serious crimes of murder, attempted murder, being an accessory to murder and in many countries, treason. The duress must involve the threat of imminent peril of death or serious injury, operating on the defendant’s mind and overbearing his will. Threats to third persons may qualify. The defendant must reasonably believe the threat, and there is no defense if “a sober person of reasonable firmness, sharing the characteristics of the accused” would have responded differently.[18] Age, pregnancy, physical disability, mental illness, sexuality have been considered, although basic intelligence has been rejected as a criterion.
The accused must not have foregone some safe avenue of escape. The duress must have been an order to do something specific, so that one cannot be threatened with harm to repay money and then choose to rob a bank to repay it. If one puts himself in a position where he could be threatened, duress may not be a viable defense.
Source : en.wikipedia.org/wiki/Criminal_defenses
Matthews Bark Criminal Defense | “New European Law To Clamp Down On Market Price-Rigging”
Source : theguardian.com
By : Terry Macalister
Category : Matthews Bark Criminal Defense
The European parliament is expected this week to vote through tough new legislation that would allow Brussels – and London – to crack down much harder on rogue traders in financial and energy markets. The move comes as competition regulators from the European commission widen their inquiry into the oil trading activities of BP and price reporting agency Platts, while a senior Brussels politician urged British financial and energy watchdogs to undertake a deeper investigation into alleged manipulation of the British wholesale gas market. Arlene McCarthy, vice-chair of the committee on economic and monetary affairs inside the European parliament, said on Sunday she was confident a vote on Wednesday would ensure benchmarks such as the London interbank offered rate (Libor) plus others in the oil and gas sector would be classed as financial instruments, allowing lifetime bans on those trying to rig the markets.
“I am hopeful we will close the loophole in the Libor and energy markets so that regulators in Europe can take appropriate action on abuse. Consumers need to know the prices they pay are fair and I don’t want a situation where every time we have a case of manipulation we have to extradite people to the US to face justice [rather than deal with the issue in local courts],” said McCarthy, who is an MEP for the North West of England and chairwoman of the European parliament’s committee on internal market and consumer protection. Under the proposed legislation, Britain and other member states will be able to impose life bans on traders and fine companies 15% of their annual turnover if they are caught abusing the markets. The laws are being brought in after a wave of scandals involving banks manipulating the rates at which they could lend each other money.
But there has also been deep disquiet in Europe about the relatively unregulated British commodity markets after the Guardian published the concerns of a whistleblower, Seth Freedman, from the wholesale gas market about possible manipulation last autumn that triggered an inquiry by energy watchdog Ofgem and the City regulator, the Financial Conduct Authority (FCA). Fears grew when the competition authorities instigated a series of dawn raids on the offices of BP, Statoil and Platts in May, saying they feared companies may have “colluded in reporting distorted prices to a price reporting agency [PRA] to manipulate the published prices for a number of oil and biofuel products”.
Sources in Brussels say the investigators have broadened the scope of their inquiries and have opened up “high level contacts” in the US with the department of justice and the powerful commodity futures trading commission (CFTC). Alan Duncan, a former oil trader and now international development minister, told the Financial Times last month that the European commission’s review was illogical and baseless.
Ofgem and the FCA say they are still in the middle of a preliminary review of the evidence and have yet to decide whether to undertake a full investigation. “Ofgem continues to look at allegations relating to trading on 28 September 2012, working closely with the Financial Conduct Authority,” said an Ofgem spokesman. “We take any allegations of market abuse very seriously. We are also looking at the role of price reporting agencies in relation to the gas and electricity markets and reviewing the information which we have received as part of our call for evidence which closed over the summer.” The FCA declined to comment.
McCarthy said she felt that 10 months on from starting those initial investigations it was time to clarify the situation: “A full investigation is necessary. It is in the public interest because there is not enough transparency and accountability that leaves many people feeling they get ripped off by energy companies. “If there proves to be nothing there then it will have cleared the air.” Ofgem said it always took seriously its oversight of the energy markets and has received enhanced powers to intervene already after the UK implemented new powers under Brussels-derived wholesale energy market integrity and transparency (Remit) legislation.
A spokesman for the regulator said: “We keep the precise details of our monitoring confidential. But it brings together information on the physical market, trading and other news commentary including any specific reports of suspicious trades we may have received under Remit.”
Source : theguardian.com/world/2013/sep/08/european-law-market-price-rigging-energy
Matthews Bark Attorney, Criminal Defense, Family Law Attorney 