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Greg Baker - Personal Identifier A8321851

“The most important objective of both criminal and civil sanctions is the punishment

of the wrongdoer for the harm caused to the victim.”

This essay will look into the concepts behind, and objectives of, sanctions in both the

Civil and Criminal Law. It will focus on punishment and whether this forms the

central aspect of penal theory in formulating successful sanctions for transgressors.

It is important when considering penalties to understand the form of rule that has been

broken. The law maybe split into two distinct categories those of Civil and Criminal

and it is important to understand the nature of these arms of the law when considering

imposed sanctions.

The form of justice that most people immediately think of as The Law would be

Criminal Law. It is the form of Law that reinforces the principal societal values and

punishes those who transgress them. Within Criminal Law sanctions tend to be

divided into three main categories which are: fines, community-based penalties and

imprisonment.

There are various penal theories behind the sanctions that may be applied for breech

of a rule these are: retribution, compensation, rehabilitation, incapacitation and

deterrence. While any one penalty may satisfy a number of these theories, the rational

behind the approach may be entirely different.

The penal theory of ‘retribution’ is maybe the simplest penal theory to explain; at its

heart is the argument: someone has done something wrong and should be punished for

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it. Despite the seeming simplicity of this theory, in actuality determining the level of

retribution that should be applied to a crime has provided a raft of theories.1

Even with the array of concepts behind retributive theories, there are certain

underlying similarities that can be claimed to apply to all of them. The first of these is

that punishment is only for the guilty, which in effect means that only those who are

convicted of deliberate wrongdoing deserve punishment under the law. This feature of

retributive theory does not in itself, however, attempt to justify punishment itself, but

rather applies limits on the suitability of its application. 2

The second principle is that of proportionality: that is that the punishment must be

fitting for the level of the breech of the law. This concept was succinctly summed up

by Andrew von Hirsch who stated:

“Sentences according to this [that is, the just deserts] principle are to be

proportionate in their severity to the gravity of the criminal’s conduct… In

such a system, imprisonment, because of its severity, is visited only upon

those convicted of serious felonies. For non-serious crimes, penalties less

severe than imprisonment are to be used.”3

The final feature of retributive theories is that the act of punishing criminals is right in

and of itself. This would mean that there needs to be no other effect gained by

punishment but the very fact that the punishment is the just thing to do. Bagaric

claims, however, that this apparent similarity is limited to very few modern theories

behind retribution, while most modern theories, while espousing the virtue of
1
Punishment and Sentencing: A Rational Approach. Bagaric, M (2001) London, Cavendish W100
Reader 2 pp 123
2
ibid pp 123
3
ibid pp 123

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punishment, involve the side effects that punishment may attain - such as the capacity

of it to lead to reformation of the criminal or to restore the balance between the

advantages and penalties of a criminal lifestyle.4

A second penal theory is that of reparation, restoration and compensation, this has

been a growing concept in the criminal justice system since the mid 1990’s and places

the victim’s at the centre of the process of determining punishment. Effectively, when

determining the sanction to be delivered, the sentencer needs to consider what would

be most appropriate for the victim of the crime and society as a whole rather than

determining the sanction based on what may be best for the offender.5

An example of this theory in practice is the Victim’s Code of Practice that was

promulgated in April 2006.These set out both expectations of the service that a victim

of crime should be entitled too and directed sentencing bodies to place the victim’s

requirements firmly at the centre of their processes.6

A third penal theory is that of deterrence, this theory supposes that if the

consequences of a crime are severe enough then it is unlikely that a reasonable

member of society will carry them out. This theory can arguable lead to more severe

punishments for certain crimes than would be required under a purely retributitive

system as the punishment exists in order to deter crime principally rather than to

extract a legitimate level of retribution.7

A fourth penal theory of rehabilitation, this similarly to deterrence is concerned with

preventing the offender from repeating their crime, but rather than using a draconian
4
ibid pp 124
5
W100 Block 5 Sanctions – Open University 2009 pp 42
6
Victim’s Charter W100 Reader 2 Open University 2009, pp126-138.
7
W100 Block 5 Sanctions – Open University 2009 pp 43

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penalty to deter them concentrates on education, training or counselling in order to

remove the cause of the criminality.8

And finally there is the theory of incapacitation, this theory focuses on protecting the

public from future crimes by removing the ability of the criminal to repeat them by

incarceration or, as was the case in the past and still is in several countries, the

administration of the death penalty.9

In all of these penal theories there is an element of punishment, however the

importance of punishment within the theory varies greatly for example whilst in

rehabilitative theory punishment may actually be a side-effect of the attempt to aid the

criminal in ceasing their activity, in deterrence the same aim is achieved by the

implementation of a strict and uncompromising penalty in order to invoke a fear of re-

offending and in some variants of retributive theory, the punishment may be seen as

the aim in and of itself.

The other branch of the judicial system is Civil Law, which is the law that deals with

everything that is not the Criminal. It may be divided into many distinct areas

including: Family Law, Property Law, Contract Law, and the Laws of Tort.

In Civil Law the purpose of sanctions is to put right the civil wrong that has been

caused by the breech of the law. As such, sanctions under civil law are usually

remedial and indeed are referred too as remedies10.

8
Ibid pp 44
9
Ibid pp 44
10
W100 Block 5 Sanctions – Open University 2009 pp 9

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In Tort and Contract law, while the remedy could potentially be financially onerous

the purpose of it is to right an injustice rather than punish the wrong-doer. This fact is

especially important when considering how damages are likely to be paid. Under UK

law a business is required to hold liability insurance; similarly a driver is required to

hold insurance at least covering damage to a third party11. While this insurance

ensures that the wronged party receives the damages that are due to them, it means

that any punitive award would be nominal – there may be a fixed fee and an increase

in premiums.

The Children Act 1989 provided provisions for the state to intervene to protect

children. Under part IV of the Act it allowed for a local authority either to remove an

at risk child from the care of an abusive or neglectful parent under a Care Order or

under Section 31 of the Act insist on periodic visits to the child in order to provide

advice and ensure that the child is being taken care of in a proper manner using a

Supervision Order. 12

While these sanctions could be held to have an element of punishment – certainly

removal of a child from a mother is no soft sanction - the principle purpose of them is

concerned with the protection of someone who is at risk of abuse.

In summary in Criminal Law punishment is an important facet of many penal

theories, whether it is the most important one is, however, very much a matter of

conjecture and dependant on which penal theory is holding sway at the time Whereas

within Civil Law, punishment cannot be said to be the most important objective. In

fact it could be said that it is not an intended objective at all under civil justice.

11
W100 Block 5 Sanctions – Open University 2009 pp 17
12
W100 Block 5 Sanctions – Open University 2009 pp 23

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Word Count 1299

References

W100 Reader 2 Open University 2009

W100 Block 5 Sanctions, Open University 2009

Question 2

When considering whether Sean has a case against his employer, Tangle Free over

alleged sexual harassment there are several incidents to look at as potential sources of

injury.

The harassment is alleged to have begun on Sean’s first day in the workplace with

two of the stylists, Cindy and Dee, teasing him about the way he looked, apparently in

an attempt to make Sean uncomfortable.

This behaviour could potentially constitute sexual harassment as classified under S4A

(1) SDA 1975 as inserted by the Employment Equality (sex discrimination)

Regulations 2005 (SI 2005/2467)13 hereafter referred to as S4A, as the behaviour is

not sexual in nature it is necessary to prove that the stylists involved did not also tease

other employees about their appearance or it would not provide the basis of a sexual

harassment case.

The second incident occurs over a period of a few weeks: the accusation here is that

the same stylists make frequent jokes about men, and Sean in particular, are useless at

13
W100 Block 5 Sanctions – Open University 2009 pp 76

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sweeping floors due to the genetic unsuitability of the male sex to such a task. This is

clearly in breech of S4A (1) SDA 197514 as the comments made could not possibly be

attributed to a female employee and are as such under the definition of sexual

harassment.

The third reported incident occurs at a works lunch, Cindy and Dee arrange to sit

themselves on either side of Sean and proceed to make lewd comments about Sean

and inferences about his relationship with other stylists. These comments are

overheard by both the stylists and others sitting in the restaurant.

The ruling in Chief Constable of the Lincolnshire Constabulary v Stubbs and Others

[1999] IRLR 81 means that the works lunch can be regarded in the same way as any

other workplace incident15. Due to the harassment being of a lewd nature, the fact that

these comments were also applied to female members of staff is irrelevant to it being

sexual harassment under S4A.16

Under the law it is clear that there have been at least two, if not three, incidents of

sexual harassment against Sean, however it is unlikely for any substantial financial

compensation to be gained from Cindy and Dee and as such the claim must be made

against Tangle Free.

Was Tangle Free was vicariously liable for the acts? What steps did the company take

to ensure that the sexual harassment was stopped and; were these measures reasonable

under the Commission code of practice on sexual harassment [Official Journal L 49 of

24.02.1992], hereafter referred to as The Code?

14
ibid pp 76
15
ibid pp 78
16
W100 Block 5 Sanctions – Open University 2009 pp 76

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After the first incident, Sean complained to Tracy, one of the business owners, who

informed him that she would talk with the individuals involved. This response is

satisfactory under The Code section 3 b17.

The second incident reported occurs in front of owners, who do make ‘half hearted’

attempts to prevent the harassment from continuing. A complaint is again made to the

owners who inform him that other staff members have been made aware of his

sensitivity and move the two harassing stylists to work on different days to Sean in

order to prevent them from continuing to harass him further.

These measures satisfy the code by removing the two offending girls from working

days that Sean works the source of the harassment has been removed with no

inconvenience to Sean. However there seems to have been no allowance for making a

formal complaint at this stage as advised under The Code 3 b18.

The final incident occurred at a working lunch arranged by the two owners of the

company, the fact that Dee and Cindy were allowed to sit next to Sean shows a

notable lack of care on behalf of the company considering the past occurrences.

Finally when the complaint is made, Tracy’s response, that Sean needs to ‘get a life’

is wholly inadequate considering the previous complaints about the stylists’ behaviour

under 3b of The Code.19

Sean has grounds for a sexual discrimination case against Tangle Free due to the

continued nature of the harassment and the failure of the company to officially

17
Extracts from the EU and EOC codes of practice on sexual harassment and sex discrimination.
Reader 2 Open University 2009, pp 182-183.
18
Ibid pp 182-183
19
ibid pp 182-183

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register a complaint and intervene to prevent future and foreseeable occurrences of the

continued behaviour.

Word Count 700

References

W100 Reader 2 Open University 2009

W100 Block 5 Sanctions, Open University 2009