Free Law Dissertations - Criminal And Civil Law Question 1 Criminal Law 1.prosecuting Bodies And
Criminal and Civil Law
Question 1 Criminal Law
1.Prosecuting Bodies and Process
Criminal Proceedings may be either summary or on indictment.The prosecuting body is either the Magistrates’ court, which is presided by local Justices of the Peace for summary offences and they hear the case alone having heard evidence from both parties. Indictments are dealt with by the Crown Prosecution Service in the Crown Court, where a jury will decide the outcome.
2.Offences against HMV?
Under the Sale of Goods Act 1979 the vendor has an obligation to provide a refund where the goods are not fit for the purpose, they are not of satisfactory quality or do not conform to description or sale by sample.
This therefore means that goods that are not what the buyer really wanted do not require the seller to refund outright. HMV has acted upon a goodwill policy and there can be no criminal recourse for misuse.
3.Offences against Copyright owners
(a)Copyright, Designs and Patents Act 1988
Section 107(1) states that it is an offence to make for sale or hire in the course of a business or distribute an article which is known or reasonably believed to infringe copyright. Section 198(1) of the 1988 Act states that it is an offence to sale or hire or in the course of a business, sell or lets for hire or offer or exposes for sale or distribute a recording which is known or reasonably ought to be known as an illicit recording.
Summary Conviction offences under ss 107(1)(a) and 107(1)(d)(iv) are subject to a imprisonment for a maximum term of six months or a fine no higher than the statutory maximum or both. On indictment there is an unlimited fine or imprisonment not exceeding ten years or both. For the s 107(1)(d)(i) offence, there is a summary conviction to imprisonment for no longer than six months and fines are calculated at level five on the standard scale or both.
Section 198(1) offences are stipulated under s 198(5) and are the same as penalties for ss 107(1)(a) and 107(1)(d)(iv) offences.
None of the chapter III, 1988 Act defence are applicable. Authorisation or consent by the owner to carry out the business by Al Gee on e-bay will constitute the only possible defence.
No offence is committed under s 198(1) where the act is carried out within the ambit of a provision of Schedule 2 to the 1988 Act however none are applicable to the current case.
4.Trading Standards Offences
(a)Trade Marks Act 1994
Section 92(1) stipulates that it is an offence to apply to goods or their packaging an identical trademark or sell or let or offer or expose for sale in order to gain or intend to cause loss to another. It is also an offence to have such items in possession within the course of business.
Section 92(6) stipulates the penalties, which are identical to offences under s 107(1)(a) and 107(d)(iv).
The trademark has to have been registered in the UK or has a reputation there so that use is detrimental to the reputation of the mark.
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