Bring Tare To Justice - Case Study Example

Bring Tare to Justice The Case Scenario - In March 2003, Prime Minister Bonaparte or Boney Tare sent British forces to invade the sovereign territory of Mespotistan claiming that Mespotistan had Weapons of Mass Destruction that posed an immediate threat to Great Britain. So soon in 2003, the Royal Air Force started dropping bombs on the capital city of Mespotistan and the Royal Navy and Army started having greater control of all Mespotistan's cities in 2 months. However by 2005, Boney Tare suggested that he had been wrong about WMD at Mespotistan and by then resistant forces were already attacking the British Army several times in a day. The insurgency became more violent since 2005 and civilians and soldiers died with breaches of human rights alleged against British forces. In October 2007, a winner of the Nobel Prize for Literature donated her money for a campaign that holds Boney Tare accountable for the Anglo-Mesopotistani War in the criminal and civil courts of England. The Lobby started a campaign with the slogan, 'Bring Tare to Justice'. The lobby has approached for advice on the advantages and disadvantages of suing Boney Tare in Civil Courts for Torts of Trespass against Tare in person and against Misfeasance in Public Office. There are thus two ways that justice could be brought against Tare - that is, against Tare as a person and against Misfeasance in Public Office. The potential claimants at the Lobby who can help sue Tare are Omar, who has been interned by the British Army for the last four years in its Detention Facility in Mespotistan, Ali, who was the victim of torture by two British soldiers who were subsequently court-martialled for their acts. Doris, a UK citizen who has never been to Mespotistan, but who is strongly of the opinion Tare should pay exemplary damages to those he has trespassed against. Fatima, whose husband died in the March 2003 bombing raids. Some of the issues that could be brought up with regard to these cases include the following - Trespass against the Person 1. Do the English courts have jurisdiction over a decision that was taken in England to commit batteries and false imprisonments in Mespotistan 2. Can Boney Tare successfully plead that his invasion was in self-defence against the WMDs 3. What is the biggest obstacle to a successful action against Boney Tare in Trespass against the person Misfeasance in Public Office 4. What sort of evidence would we require to show that Boney Tare had been 'subjectively reckless' in invading Mespotistan 5. What sort of evidence would we require to show that Boney Tare had 'targeted malice' at the Mespotistanis 6. What is the biggest obstacle to a successful action against Boney Tare in Misfeasance in Public Office Considering an answer to these questions would be the best method to understand the ways in which any legal proceedings could be brought against Boney Tare both on the basis that he has wronged in person and that there has also been Misfeasance in Public Office. After considering the four potential claimants who can help sue and testify against, it can also be decided as to who would be better suited to testify against Tare. For law dealing with the Trespass against the Person, the first issue is whether the English Courts have jurisdiction over a decision taken in England to commit false imprisonments in Mespotistan. Boney Tare can be sued on the basis of Tort or for committing legal wrong of Trespass and Misfeasance. Tort is a branch of Civil law and although similar to criminal law Tort is a case between private parties so in this case, under Tort a case can be brought up against Tare as an individual and Omar who was at the detention facility in Mespotistan or Ali who was a victim of Torture could bring up the case against Tare. The court might order to pay damages to Ali or Omar or stop the wrongful activity (in this case, the invasion and war in Mespotistan). The bilateral aspect of Tort law allows victims to sue the injurers directly without blaming the state and this provision can allow Ali or Omar to sue Tare directly for Trespass. Any wrongful doing that can cause great misfortune to a victim could be subject to Tort and the defendant is liable to bear the costs of his wrongdoing or at least stop the activity. Certain Foreign Judicial decisions could be taken in English Courts and the English law could be applied. One of the cases cited could be Chaplin v Boys in which an Englishman stationed in Malta was injured by another Englishman also in Armed Forces and the question was whether the case would be settled according to the English or Maltese measure of damages. Usually in case of Tort committed abroad, a general rule of double actionability applies. As a general rule, to file a suit in England against a defendant for a wrongdoing allegedly committed abroad, two conditions had to be satisfied: (i) the alleged wrong must have been actionable and considered as a tort if committed in England; and (ii) it had to be actionable in the lex loci delicti.(Mayss, 1996) Although the Tort law could be applied and action could be taken against Tare and it is possible to sue him in English courts despite the wrongdoing being committed in foreign country. However the decision of the judges could be based on English law and law of Mespotistan. But the English Law also permits pleading against any court decision or case brought up and in this case tare can also plead that his invasion of Mespotian was in self defense. However he has to provide proofs that the reasons for which he went to war in the first place are still valid. The Self-defense Defense (Finkel et al, 1991) is available to Tare who can plead against any proposed wrongdoing of homicide that could be brought in by Fatima although Fatima's case would be judged by Mespotistan's law rather than by English courts. Although whether Tare can plead successfully would remain a question as although a defence would be available to him under English law, he could be tried for false imprisonments, abuse of power, excessive force or breach of contract and negligence as in case of Army personnel. In case of Trespass against the Person provision, the biggest obstacle to the success in bringing about Tare to justice would be his claim to self defense and he can claim for defence available to him under English law. The general rule of actionability goes against the plaintiff and in favor of the defendant as the plaintiff or claimant could succeed only when both the law of the English courts and that of Mespotistan make provision for such a tort although the defendant can take a defence and escape liability according to English law. So the claimant can be more incline to file the suit elsewhere in respect of foreign torts that clearly provides an advantage to the defendant (Mayss, 1996). However to maintain a case against Boney Tare, it would be necessary to show that Boney Tare has been reckless in his use of power and has abused office and used excessive force by invading Mespotistan. Fatima, whose husband died in the bombings can testify against the excessive use of reckless force against the civilians of Mespotistan however her claims would be subject to laws of both the English Courts and Mespotistan. Suing Boney Tare for using excessive force and for abusing power while at office is brought under the Misfeasance in Public Office feature of Tort. Evidence that Boney Tare has recklessly used force against the civilians without a basis or any immediate threat could be provided by facts suggesting that 1. There are no WMD at Mespotistan as previously claimed by Boney tare's office and 2. The targets have not been exclusively WMD sites as many civilians have been killed and their homes have been destroyed. Fatima is an example of such an individual who could testify that Boney tare has been involved in wrongdoing that includes using force in a foreign country that is not justified. However Fatima's case is more appropriate for hearing at the International Court of Justice rather than at English Courts as in English Courts Boney Tare can always claim self defence according to English law. Misuse of public office or misfeasance can be both as a result of actions taken and due to failure to act. However cases are mainly due to dishonest or oppressive actions or motive for actions and wrongdoing in the exercise or misfeasance can also be due to refusal to exercise some public function or power, so an official can be prosecuted for failing to act. A Tort can be brought against an individual holding a public office if it is determined that he has intentionally misused the power or intentionally engaged in acts considered harmful to others and unlawful (Peters, 2007). So if it is established that the invasion of Mespotistan has been illegal then this sort of Tort would stand its ground against Boney Tare. The Tort of Misfeasance in Public Office originated with the assumption that Public Office should solely focus on and be used for Public Good. Parliament specifies that all statutory powers should be used in good faith and all powers should be used towards the purpose of public good and for which they were established or conferred. The Tort of Misfeasance targets deliberate and dishonest abuse of power especially when victims suffer loss or damage as a result of actions by public officials or the administration and when it is established that such officials have been reckless in their abuse of power showing complete disregard to the consequences of their actions. Considering the fact that Boney Tare never laid out the possible consequences of his actions and did not have a blueprint on how he should deal with it, and with the consequences and how this would impact civilians, a Tort of Misfeasance in Public Office can be filed against him. The deaths of many civilians and targeted bombings of civilian areas and destruction of homes in Mespotistan despite the fact that there were no claimed WMD in the surrounding areas could be considered as evidence suggesting the abuse of power and the intentional harm and targeted malice leading to homicide of the Mespotistanis. Considering cases relevant to this Tort, in 2000, the House of Lords issued reasons for judgment in Three Rivers District Council v. Bank of England,, [2000] 3 All E.R. 1. The preliminary issue was whether a claim against the bank framed in the tort in misfeasance of public office was sustainable or suitable for that matter. According to the Tort features, Peters (2007) claims that in order for the Tort to be applicable, the following features would have to be satisfied (a) the defendant must be a public officer. (b) the defendant's conduct must involve the exercise of power (c) the defendant must be shown to have one of two states of mind: (i) targeted malice (ii) acting with subjective knowledge (d) the public officer must owe a duty to the plaintiff (e) causation - the plaintiff must show that the defendant's abuse of power caused him harm (f) the plaintiff must show that he has suffered damages due to the defendant's torture Controversies to the Tort that can act as obstacles to bringing tare to justice would be 1- The question on whether such a Tort of Misfeasance in Public Office could be brought against an administrative government as Boney Tare may not be considered as individually responsible for the targeted malice or intended harm on Mespotistanis. 2. Although Fatima could claim for damages, more evidence would be required to convince that serious and intentional harm has been done on civilians due to the irresponsible actions of Tare. Self Defence and Collective responsibility would be the two main obstacles to Tort for Trespass and Misfeasance. However in the first case, Ali and in the second case, Fatima would be more suitable as claimants and could testify against Tare. Bibliography Mayss Abla (1996) Statutory Reform of Choice of Law in Tort and Delict: A Bitter Pill or a Cure for the Ill Web Journal of Current Legal Issues Blackstone Press Ltd. Murphy J. (2007), Street on Torts, 12th ed, Oxford University Press Norman J. Finkel, Kristen H. Meister, Deirdre M. Lightfoot (1991) The Self-Defense Defense and Community Sentiment Law and Human Behavior, Vol. 15, No. 6. pp. 585-602 Peters Lisa A. 2007 . Claims For Misfeasance In Public Office: A Brief Summary Copyright 2007, Lawson Lundell LLP http://www.lawsonlundell.com/resources/ClaimsforMisfeasance.pdf Reese Willis L. M. Choice of Law in Tort Cases. Chaplin v. Boys (England: Court of Appeal and House of Lords) The American Journal of Comparative Law, Vol. 18, No. 1 (Winter, 1970), pp. 189-194 Webb P. R. H., Brownlie Ian (1965) Survival of Actions in Tort and the Conflict of Laws The International and Comparative Law Quarterly, Vol. 14, No. 1. pp. 1-30 Three Rivers District Council v. Bank of England,, [2000] 3 All E.R. 1. Read More