Law for Non-Lawyers - Essay Example

Legal opinion is sought whether Derek, a sales assistant, can be held liable under the Prohibition of Unsolicited Parties (Fictitious) Act (Act for brevity) when he mistakenly invited more than 600 persons to attend his 21st birthday celebration in a 5-acre smallholding owned by his manager, Ray. The elements of the offence are—there should gathering attended by more than a hundred people on land for social purpose where alcohol is likely to be consumed; and it was organized without the permission of a local magistrate unless the organizer is the occupier of the land, a member of his family, his employee, or his agent. Going by the elements of the offence, Derek can be held liable for breach of the Act since the gathering called by him was attended by six hundred persons and considering that the gathering is to celebrate his 21st birthday, the possibility of alcohol consumption is high and there was no permit was secured from the local magistrate. Derek does not fall under any of the exemptions enumerated as he is not a member of Ray’s family, an employee or agent. Although Ray is the manager of the business entity where Derek works as a sales assistant, they are merely working under one establishment thus no employer-employee relationship between was established. On the other hand, when Ray asks Derek to keep an eye on his landholding, did Derek become his employee? The answer is in the negative since the request was made as a favour there being no compensation agreed upon. When Ray requested Derek to keep an eye on his smallholding, did he constitute Derek as his agent? Again, the answer is no. An agent is someone who is designated or appointed by one to act in his place, or one who is entrusted with the business of another, or one who is authorized to act on behalf of another to create a legal relationship with a third party. Derek was not authorized to act on behalf of Ray, neither did Ray entrust his business to Derek nor did he authorized Derek to transact with a third party. Derek was merely entrusted with the smallholding to look after while Ray was on holiday—there was no agreement to form an agency relationship. The Act is promulgated to maintain the peace thus any act done or threatened to be done which actually harms a person, his property, or likely to cause harm as enunciated in R. v Howell constitutes as disturbing the peace. Intent to cause harm or disturb the peace is not an essential element. It is sufficient to show that the right of the local public in general or an individual in particular to enjoy a reasonable degree of peace and security was breached. Although intent in breach of peace is not an essential element, it is important to consider his intent in the event that he uses lack of intent to escape from liability. Given the details of the circumstances behind the incident we need to decipher Derek’s actual intention. Was it his intention to invite only a few friends over to celebrate his Birthday or was it his intention to invite the entire 600 people in his address book. The actual intent of Derek is revealed because of his inaction in two instances. It should be noted that while an upstanding citizen would go to great lengths to ensure that they are not breaking the law by being dutiful and mindful of their action, Derek’s actuation was reckless and can be considered without disregard. Derek was similarly oblivious to the possible impact of his action to the neighbouring farms. Derek was equally insensitive to the possible repercussion and image of Ray in the community because of his action. If a mistake happens and there was no actual intention to commit that mistake it is human nature to correct the mistake. In this case, the effort to correct the mistake will not even greatly inconvenience Derek a mere retraction of the invitation would have sufficed using the same medium he sent it out any time before the actual party. The inaction of Derek to correct his mistake indicates his intention to actually invite the six hundred people listed in his address book. Thus, the excuse that Derek mistakenly sent the invitation to all his 600 contacts should not be accepted as gospel truth. In fact, it is a manifestation the claim for negligence or mistake is simply an afterthought and concocted to excuse his culpability under the Act. Another indication of Derek’s actual intent to invite the actual number of people that showed-up in his birthday party is his inaction to inform the people arriving that a mistake has been committed and that the party is private and should only be attended by a few. Derek’s inaction on the actual date itself to stop the influx of people to Ray’s property also shows his actual intention of having six hundred individuals in his party. Thus, the gathering of 600 hundred squarely falls under the prohibition thus Derek cannot be discharged from liability. The gathering was not permitted by Ray nor was he informed of the planned gathering. The surreptitious manner with which the gathering was planned and organized by Derek likewise points to his liability. To detail the actual transaction between Derek and Ray, it was clear that Ray only meant for Derek to “keep an eye” on his property. The direction was not to occupy it much less organize a party within the property in his absence. Derek overstepped his bounds when prudence and his ethical standard departed him at the moment that he decided to hold his birthday celebration within Ray’s property—even assuming that the number of attendees would be less than 100. Ray, for his part should have been more conscientious, in leaving instructions to just about anybody including the likes of Derek—he has likewise the responsibility to his neighbours to maintain the peace and public order. Ray should have been more specific in his instruction on how Derek should conduct himself while doing this favour for him. In retrospect, Ray, can be considered remiss however if any liability shall accrue, it would subject of another inquiry or proceeding. Although Ray has been remiss in his duty as a responsible owner of the smallholding, he cannot nonetheless be held liable for the action of Derek. Derek’s action was his own, and no prodding slight or obvious can be discerned from the facts of the case that would indicate that he has allowed Derek to do as he wish in the property while in the process of “keeping an eye” on it. There was therefore lack of consent. And, although it is Ray’s property that was used for the gathering, it could not however be argued that he should be the one to answer for any misdemeanour done in his property Ray. Criminal liability is a personal liability and thus, Ray cannot be held liable. If liability attaches, it would be the sole responsibility of Derek. In the case at bench, Derek cannot be considered as an exempt person under Section 1 (3)1. As elucidated earlier, Derek was not engaged as an employee or agent of Ray. Although Derek is an employee in the same company where Ray work, their relationship in so far as Ray’s property is concerned has not been established or even formalized therefore Derek cannot be considered as an agent or employee of Ray. The Act clearly states that only the members of the occupier’s the family or the owner himself is authorized to organize parties in their property own property. The same section also authorizes the agent or employees of the owners to organize parties in the property. Derek is liable and should answer for his violation of the Prohibition of Unsolicited Parties (Fictitious) Act 2010. It was established that Derek invited or has caused the gathering of six hundred people in the unused barn of Ray’s property. The purpose of the convergence of such a number of people is to celebrate the birthday party of Derek—which is for a social purpose. Therefore, it is very likely that alcohol will be consumed. These circumstances satisfy the requirements and qualification of an illegal assembly to wit “This Act applies to a gathering of more than a hundred people on land for a social purpose in which it is likely that alcohol will be consumed”2. Derek is not an exempted person as enunciated “it is a criminal offence to organise such a gathering without the permission of a local magistrate unless the organiser is an exempt person”3. This is in relation to the provision stating “For this purpose an exempt person means the occupier, any member of his family or his employee or agent of his”. Exhaustively discussed is Derek’s position or qualification in so far as Ray’s property is concerned which defined the relationship between Derek and Ray. Considering that Derek is not exempt under the Act to procure permit and that he had allegedly sent 600 invitations by mistake, the most prudent and logical measure he should have undertaken is to procure a permit from the magistrate since it is very likely that the attendees to the gathering would not be less than a hundred people. Derek caused the convergence of six hundred people in the barn to celebrate his twenty first birthday. However, it is stressed that although gathering with social purpose is not absolutely prohibited. It was undertaken to protect the peace and promote public order. If a gathering of large number people shall be allowed where alcohol is likely to be served or consumed then the peace and order which the Act sought to promote will be defeated. The requirement of permit is for regulatory purpose so that the police and other officers authorized to implement peace and order shall be adequately forewarned of a possible breach. Therefore, Derek for his failure to secure the necessary permit notwithstanding his invitation to 600 people is without a shadow of a doubt guilty and in violation of the Prohibition of Unsolicited Parties (Fictitious) Act 2010. Derek is hereby reminded to act assiduously with regards to his conduct concerning the property of others. He was entrusted to keep an eye on Ray’s property by Ray himself. This is the kind of request that only comes with a certain amount of trust on Ray’s part that is especially given to Derek. Instead of acting with diligence, Derek violated this trust along with his violation of the law. It is restated that laws are passed to protect the peace and harmony prevailing in our society. The Prohibition of Unsolicited Parties (Fictitious) Act 2010 was enacted specifically to protect that peace. The provisions stated within the Act prevents unauthorized person to inflict damage to properties as a result of the alcohol consumed in such illegal assembly. The law was also enacted to protect the peace of the community which is disturbed by persons intoxicated with alcohol. Specific to the Prohibition of Unsolicited Parties (Fictitious) Act 2010 provisions’ are the responsibility and expectation given to owners his family, agents and employees with regards to their conduct by the law. The law expects that property owners, members of his family including their agents and employees act with decorum and prudence whenever they are within the confines of their property. It is expected that even though under this law they are allowed to organize parties without any restriction, their conduct and the conduct of the party they are organizing will be sober and acceptable to the prevailing social norms. The Prohibition of Unsolicited Parties (Fictitious) Act 2010 also confers so much trust and power to the local magistrate. The local magistrate under this law is expected to oversee and control any kind of parties where he is informed. It is expected that the confidence given to him by the people for him to be conferred such honour in responsibility that he be circumspect with regards to him giving his ascent to such parties. It may be argued that the laws covering breach of peace is not a criminal offence and therefore any person who is found to have disturbed the peace should not be incarcerated or punished, this argument is unacceptable since it would defeat the very purpose the laws were promulgated. If no criminal liability attaches then it would not command compliance and people would commit transgressions with impunity. Judging from the actuations of Derek, the police authorities were left unaware of the gathering and should violence erupt, the police would not be able to respond adequately and expediently. If violence, on the other hand, is likely to erupt the police authorities would not be able to implement measures to defuse or deflate the situation. This is the rationale for the enactment of laws which would promote the peace and public order—to protect the citizenry against any breach. The Act cannot likewise be as unreasonable measure since the very objective is to protect the citizens from any breach thus the government is given a wide latitude to implement all measures to effect its duty but police officers and other authorities who are called upon to make the arrest as well as to prosecute and eventually decide the matter based on the merits should be mindful of the human rights of the offenders, Derek in this case. But the act must be upheld and there it must be called upon to answer. References: R v Howell [1982] QB 416, [1981] 3 All ER 383, [1981] 3 WLR 501, 73 Cr App Rep 31, 146 JP 13, [1981] Crim LR 697, 125 Sol Jo 462 Fictitous. Prohibition of Unsolicited Parties Act 2010. Shepherd & Wdderburn. Freedom of Expression and Breach of the Peace. World and Services Group 30 January 2007. accessed on 10 January 2012. Crown Prosecution Service. Trespass and Nuisance on Land. accessed 10 January 2012. HER MAJESTYS ADVOCATE v MARK HARRIS [2010] HCJAC 102 XC136/10 James Stribopoulos. Unchecked Power: The Constitutional Regulation of Arrest Reconsidered. accessed on 11 January 2012. United Kingdom. Criminal Justice and Public Order Act 1994 Read More