Foundations of Criminal and Land Law - Math Problem Example

Criminal Law and Land Law] Name Course Lecturer Date Criminal Law Question 1 Due to Melanie’s actions, she is held liable for committing murder. She can however claim to have committed the act due to provocation from her brother Graeme who was physically assaulting their father. When murder is committed as a result of provocation of the defendant, the common law avoids the strictness that would have been employed during a trial of first degree murder with intent to kill. Provocation is a defense that has been modified from the homicide act. It claims that if there is evidence which the jury can find the defendant was provoked by either the things done or the words said by the victim and may have resulted to the loss of self-control by the defendant, the crime is tried as a provocation murder. The jury has to decide whether the provocation was enough to change the thinking of a reasonable man and force him into committing the crime. In this case the defendant will have to convince the jury that she was provoked by her brother’s actions and this led to her losing self-control and stabbing him in the torso. The words uttered by the brother and the actions committed by him would be provided as evidence in the court. The mother will have to present herself as a key witness to the case. If Melanie is to use provocation as a defense, she will have to prove that she actually lost control. The evidence should prove without a doubt that the murder was not premeditated. If there is any evidence that Melanie had been able to compose herself during the whole ordeal, the judge has the right to overrule the provocation defense. Melanie would use provocation as a defense in claiming that she had lost self-control and was not the master of her mind from the beginning of the whole incidence to the end. This will be backed up by the events that transpired during that time. She first tried to hit her brother with the pan but instead hitting her mother Claudia and without even attending to her mother for first aid Melanie immediately grabs a knife and stabs Graeme in the torso. After Melanie sees her father being physically attacked by the brother with punches, her passion towards her father kicks in and takes control of her mind making her commit actions which she could not control. If there was a time period between them moment of provocation and the moment of the murder, she could have found it difficult to use provocation as a defense because she had cooling time. Melanie could also use the defense on others as a defense strategy. This may be justified because she saw that her father was in grave danger and acted in order to defend him. When she saw Graeme punching and physically assaulting Paul, her instincts told her to help him. In the process of trying to help him, she tried to hit him with a pan which was almost as equivalent to Graeme’s threat and she hoped it would neutralize him. When Graeme ducked and the pan missed him, she opted for a greater reaction in order to save Paul. This resulted in Melanie stabbing her brother. This reaction was both timely and proportional to Graeme’s actions. She can have many defenses which can help her avoid jail time for her actions but I would advise her to use the provocation defense as it proves that she acted in a manner that was against her will. The father may have died of a heart attack but she is not responsible for his death. Paul’s case is completely different from Melanie’s case. Question 2 When Boris and Charlotte were hiking, they got into an argument and when Charlotte pushes away in order to leave Boris but in the process she slips and falls over the edge of the cliff which they were standing on. She later dies. If Boris is to be charged with murder, his best defense would be the accident strategy. An accident is any action that happens and causes harm to a person and is unintentional. Accidents happen every day and most of them are unavoidable. However, most of these accidents are minor and are often overlooked. The accident defense can only work under certain conditions. The first one is that you should prove that you did not have any criminal intent to do harm to the affected party. The defendant should also prove that they did not act with negligence and finally that they not engaged in any unlawful doing when the accident happened. in this case, the defendant did not push Charlotte over the cliff on purpose but she fell accidentally during the argument. When Charlotte fell from the cliff, Boris did not save her. If he was a member of the public service and was properly trained on how to handle such a situation, this would have resulted in him being sued for negligence. The defense could argue that he did not save her because he did not have the right amount of training to help him in controlling the situation. If he would have tried to go down the cliff without the proper training, he would have been putting his life at even greater risk and hence worsen the situation. If there was no danger in Boris saving Charlottes life, then he would have been charged with criminal negligence and reckless disregard for human life. Later that day when Stephanie asks Boris of Charlotte’s whereabouts, Boris does not tell her the truth. When Stephanie says she want to go and look for Charlotte, Boris panics and hits her as hard as he can with his walking stick and she falls down on a barbed wire fence. This causes her to get injured on her arm and is taken to hospital. Boris may be charged with assault because he inflicted pain on Stephanie with his walking stick. In his defense, he can argue that he was not in his right sense of mind due to the panic. He can claim that when he hit Stephanie with his walking stick was because he felt provoked and at the moment he was not in his real state of mind. When Stephanie is taken to the hospital for treatment, she is treated for an infection and painkillers are administered. The doctor that was treating her, Diana has been working for long hours and does not remember to ask Stephanie the type of medicine which she is allergic to. This leads to Stephanie receiving a wrong prescription and she passes on. The doctor is liable to be sued by the plaintiff and their family for professional negligence or malpractice. Most cases of malpractice are not done with criminal intent because they are just instances of simple professional negligence1. Professional negligence is the failure to practice and exercise caution in a particular profession. This occurs when a professional does not offers services that are of equal measure to the standards set by a governing body and eventually causing harm to a plaintiff. When a professional is accused of negligence, there are three forms of damages involved. The first forms of damages are the special damages. These damages are directly related to a specific amount of money like hospital bills. The other forms of damages are general damages. These damages are not easy to put a specific amount of money on them. The other damages are the punitive damages. These damages are imposed by a court when the negligence was gross. Question 3 When Shalina, Tom and Andrew were formulating the plan to cause physical harm to Gregg, they were all involved in a conspiracy. A conspiracy is where two or more parties agree to commit a wrong act or a crime in the near future and plan how put their plan into action. In order for a conspiracy to become an offence, one of the acts meant to be performed in the plan should be undertaken. There is no maximum number of people who can take part in a conspiracy. In order to formulate a plan that will result in the committing of a crime, the court does not look for ay written contracts that will validate the agreement. However the court will make common sense references as stipulated in the evidence and use items like phone records between the members, suspicious meetings and even recorded conversations which may be produce from secretly bugged apartments and meeting places. Conspiracy has different punishments depending on the class felony. Shalina can defend herself against conspiracy by claiming that even though it looks like she had helped in planning the conspiracy against Gregg, she did not poses ay knowledge on the criminal intentions of her friends. This can be a strong defense because nobody can agree to plot and commit a crime they have no knowledge about. Shalina can argue that she did not take part in any initial act that would have led to a crime. Irena is to be charged on a weapons offense and conspiracy to committing a crime. The possession and providing of an assault weapon to people who wish to use it in causing harm on others is a crime. This makes Irena guilty of conspiring to cause harm to unsuspecting victims. If she did not have any knowledge on the intentions of the others members, she would have sited that as an explanation but in this case, she knew very well what the weapon would have been used for. This proves that she was clearly guilty for the crime on conspiracy against Gregg and had full knowledge that she was committing a crime. On the following morning, Andrew and Tom attack Gregg in his residence where they punch him in the face and he falls down. Andrew will be charged with assault using a weapon. Assault is when a person intentionally inflicts pain and applies force to another person without their consent. The only way in which assault is pardon is if the defendant had prior consent from the party which the force is applied. There are many ways in which the defendant could have gained consent from the victim. I2t is not logical to use this as a line of defense because nobody would give consent to be injured or even killed. Tom who ran away during the ordeal may be charged with conspiracy to harm Gregg and also intent to assault him. Although Tom did not physically beat Gregg, he was the one who formulated the whole plot. His sentence may be reduced and he may receive a punishment that is less than Andrew’s. This is because his guilty conscience made him regret his actions and hence he fled the scene. The defense can argue that he knew he was committing a crime and hence stopped before it was too late. Land Law Q1 Edward just heard that Farid is planning to sell the property. Edward had rented a self contained flat and they had agreed that he will occupy the same for three years, and has been paying on monthly basis a fee of about 4,000 pounds. In the same case, Farid was supposed to be cleaning the rooms of the flat but because of his health status, this has never happened. According to the law, there are rights that a tenant has. In this case Edward is the tenant and is protected by the law against any eviction or dispossession from the premise either by the landlord or by any other person who many claim to have derived title from the landlord. This therefore means that, Farid cannot evict Edward from the premise because of the 3 year covenant they have between the two of them. There is no reason for the landlord to get into the premise and deprive off the tenant any rights to be in the same place. Additionally, at the moment, Edward according to the law is rightfully the tenant and the agreement expires after 3 years. In Yeung Wah, James v Alfa Sea Ltd. [1993] 1 HKC 440 3the landlord worked towards ensuring that the tenant of a flat surrender the tenancy of the same, and without notice to the tenant, he got into the building, renovated it and locked the tenant out of the premise later. According to the court’s jurisdiction, the landlord breached the covenant for quiet enjoyment and the tenant was awarded some damages. Thus, incase Edward is forced out of the flat, he is entitle to damages. Farid can only repossess the premise if Edward has failed to pay rent. When the tenant is not paying the rent, then the landlord can claim possession of the premise under his right to re-enter and forfeit the tenancy. In case in such a case the tenants refused to vacate the land, then that is treated as trespass. In this case, the tenancy between Farid and Edward is a fixed tenancy which automatically terminates on the end of the term which is 3 years. In this case, none of them has any obligation of sending the other any notice to terminate tenancy. Any surrender of the flat to Farid, Edward should execute a surrender agreement explaining why he had to give out the premises such early. In case it is Edward who is planning to terminate tenancy, then he is not in breach of the agreement in case there is valid surrender Farid even though being the landlord can only evict the tenant, only with a court order, since the contract period is not over. The court can grant an order to evict him due to damages to the property, fails to pay rent, violates any terms and conditions, but this is not the case in this scenario and therefore, evicting him on the basis of selling the property is not lawful. The tenant is even supposed to receive a notice that an eviction lawsuit have been filed and must be given an opportunity to be heard in court before eviction. The landlord must give a 90 days’ notice to the tenant incase eviction is a must4. In this case the sale of the vacant possession is articulated. This being the case, there is a provision in the law for the landlords who want to sell their properties as vacant possessions, but must do so having given a notice of 90 days. However, according to the residential tenancy law, a fixed term tenancy ends on the agreed date and cannot be ended earlier by giving a notice unless there are discussions with the landlord. This is not the case in this matter and therefore unless the landlord agrees in writing with the tenant, there cannot be the termination of the covenant before the agreed time of three years. In case, Edward is evicted, then he can claim damages. This means that, there is no provision of the law which permits the eviction of Edward from the premise just because the landlord wants to sell it. The landlord ought to give him a notice of not less than 90 days in case he must sell the building. Q 2 Isabella and Luke have defaulted the payment of both interest and capital payments. The bank is contemplating selling the property so that they can recover their money. East Anglia Building Society should they wish to take action against Isabella and Luke default on the loan, they must use a civil enforcement agent to seize security. Since they are the creditors, they have to give at least 20 day notice before selling the property attached to the security. It is the legal right of this organization to sell the security so that they can be able to pay their missed payments and any other administrative costs of the seizure. In the bank, they have a right of set off to recover the money. The right to set off allows a financial institution to withdrawal money from the account of defaulters and pays the overdue debt. There is no notice for this. In the same case, the financial institution is not obliged by the court to get any permission to do this. This therefore means that, they are entitled to take physical possession of the assets mortgaged to the society and alienate the seller, transfer the property to itself or sell it to recover it dues. When it comes to repossessing the property, the borrower who in this case is Isabella and Luke cannot assist in conducting the sale of the property. This is due to the fact that, ones the property is in the hand of the financier, then it is in the jurisdiction of the same and any sale decision can only come from the financial institution. In case they have decided to have their property sold, then they can do it before the 21 days pay the debts and manage the surplus if there will be any. But they cannot be involved in selling of the property after 21 days are over, of when they are supposed to pay the amount they have defaulted in the stated period of time. The concern of East Anglia Building Society is to have their money back and therefore it is not to do business and therefore what matters to them most is whether the deal at hand will manage to pay them the money they rendered and the expenses they have encountered. In the same case, after 21 days, and they fail to pay the amount owed, the property will be repossessed and thus will not count as their property again unless they redeem it. This therefore means that, they can never be involved in selling the same property which have been repossessed from them, and moreover, if the property waits for its sale at the end of the year, it will be in the hands of the building society and not Isabella and Luke and thus, their decisions and contribution towards the sale of the property will not be sought for. However, according to the law, the lender is bound to obtaining the best price obtainable, consistent with its own but not disregarding the interest of the borrower. Additionally, the lender is entitled to selling the product when it chooses and therefore it is the choice of the building society that counts and not that of the borrowers. It is worth noting that, after the property have been sold and all recoveries made, the borrower may get some money out of the same. On obtaining an order to possession, the lender applies to the court for warrant of possession. These are issued by the court so that they can enforce court orders. The borrowers are advised to vacate the premise and remove all personal belonging. From there the financial institution plans on whether to either use auction or private sale which must be in good faith. The lender is the one who chooses when to sell the property but there must be also some considerations for the concerns of the borrower. In the sale of the property, it is the decision of the building society to go for the highest bid not ignoring the concerns of the borrowers. However, the borrower does not have much power to control the activities at this stage because the procession of the property lies with the render and not the borrower. Q3 Craig allowed Douglas to be using the garage and the footpath and thus according to the law this can be referred to be a permissive path. In this case, one does not have statutory right to use them and they are not covered by any rights of way legislation. If the agreement was made between the owner of the land and the authorities then the authority might be will to take up the matter that Craig is encountering with the current owner of the land. In this case Eric is the land owner because now the land is sold to him. This being the case, land owner who have denied access to their land regard anybody entering their land as trespassers. In this case, Douglas is a trespasser in this case for the land no longer belonged to Craig but to Eric. There is no statutory right to use the path and the garage and they are not subject to the other aspects of public rights of way law. They can only be used with the permission of the owner. Since there was no agreement between the two, no boy will be there to take up any problems that may encounter with the use of the permissive path. Since there is no legal right or formal agreement providing access, Douglas can only use the path if they agree with the landowner on the terms and conditions that will apply in the same failure to which this may never work. As mentioned above there are no statutory rights to be in the land and therefore one will be regarded as a trespasser. This means that, since the owner of the land has attached some conditions, if they are breached, or ones rights exceeded, and then one will be trespassing. This is a civil wrong and it’s a criminal offense under the law. One can be sued because of being in another person’s land without permission if even if no harm, though damages in the case would be nominal. In case one persists on using the land against the condition and the wish of the landowner, then a court injunction can be sought to keep the individual off the land. Failure to comply with the wishes of Eric, then he can use reasonable force to make sure that Douglas leave and this will be justifiable by the law. There has been a shift of the land ownership. When the land was sold to Eric, then all the rights and regulations to follow concerning the land were to solely come from him. This therefore means that, since according to him he is not entitled to be using the land, then he is left with no option that using the rightful route to the recreation place. The land is under new management and since the path was not given to the public, it was not documented, then he has not claims to the decisions of the owner of the land. According to the law, all what he is supposed to do is comply and use the paths which are designated to the public and leave the private farm to the owner. Q4 A breach of contract can only occur when one side or one party does not perfume any requirements as written in the contract without a reasonable explanation or excuse. Before a claim on breach of contract is made, a party must ensure that there are no legitimate reasons as to why the other party breached the contract. In this case, Leo must ensure that there are no legal excuses as to why Tanya failed to comply with the contracts requirements. Before any legal action is taken against Tanya on the breach of their contract, it must be proven that there was indeed a contract and that it contained all the elements of a contract5. The contract must have had an agreement and in this case, there were four agreements. The contract must have provided both parties with duties towards each other. Leo was to lease Tanya the farm for fifteen years and in return Tanya was to enforce the laid out regulations. The contract must be legal and ensure that there are no illegal practices to be carried out by either of the parties. The contract must also ensure that the requirements to be met by either party are possible and can be done. The next step will be to ensure that there is an actual breach of contract and that one party did not perform their duty as expected. Tanya was to pay the rent for the farm, she was to keep the demised premises in good condition, she was to provide the landlord with a 20lb turkey every Christmas and she was not to assign or part with possession of the whole or any part of the demised premises without the landlord’s prior written consent. After three years, Tanya has violated all the rules of the contract. Leo has the right to sue for breach of contract and for the damages caused. These damages are in monetary form because no rent has been paid and the farm in in disrepair. Tanya is responsible for the breach of contract and not Alec. This is because Alec had not signed any contract with Leo. The next step for Leo is to asses for the damages made by Tanya’s breach of contract. Because in the contract they had not pointed out the exact punishment for breach of contract, Leo will be forced to take Tanya to court and sue her. All costs incurred during the process and period of court proceedings in relation to the case will be met by Tanya for violating the rules of the contract. The court will then rule their verdict on how much Tanya is to pay Leo in terms of damages. If the two parties decide to settle the case outside a courtroom, Tanya can pay Leo for any damages that she may have caused to compensate him. Leo can also decide to let the issue go and not press charges or even ask for compensation. This will act as reasonable remedies for breach of contract. 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