Prohibition of Unsolicited Parties Act 2010 - Essay Example

Prohibition of Unsolicited Parties Act 2010 1. Introduction The identification of liability in regard to an offence requires the careful examination of the circumstances under which the offence was committed. In addition, it is necessary that the relevant legal provision is reviewed, aiming to check whether all the terms of the offence are met or not. In the specific case the key question is the following: has Tom committed an offence under the provisions of the Prohibition of Unsolicited Parties Act 2010? In order to answer this question it would be necessary to refer to the key facts of the case; then the potential liability of Tom would be decided after checking the provisions of the Act that are applicable in the case. The use of relevant provisions of the UK law would be also necessary at the level that these provisions could influence Tom’s liability in regard to the actions described in the case study. 2. Analysis of Tom’s position towards the UK law especially the Prohibition of Unsolicited Parties Act 2010 2.1 Critical facts Tom works in the particular business as a sales assistant. His duties are limited, according to the employment contract related to the particular position; the supervision of the organization’s premises is not part of Tom’s duties but his job is related only to sales. The manageress of the business asks Tom to keep an eye on the business while she will be abroad; this means that Tom has acquired the right to have access to the business even when it is closed. However, this right is related only to the check of status/ safety of premises and is not expanded to other rights, at least as explained in the case study. Tom asks his friends to visit a specific part of the business for participating in a party that Tom has organized because of his birthday. This action of Tom is out of his powers, as given by the manageress. Furthermore, Tom uses his e-mail for inviting his friends. The specific means of communication is exposed to risks; the phenomenon of technical failures of e-mails is quite common. Still, the specific technical problem is rather unusual. This means that Tom could not expect that his invitation would reach all his e-mail contacts, especially if in the past he had faced no such issue when using the specific e-mail service. The above facts should be taken into consideration when deciding on the overall liability of Tom in regard to the particular case. The individuals who joined the party of Tom were welcomed to participate. There was no warning made to them in regard to the mistake and the need for them to leave the place. At this point the liability of Tom could not be doubted. It was only under the intervention of a neighbour that the party stopped, since the police was also asked to intervene. The liability of Tom, as related to the above facts, will be analyzed by referring to the Act under examination, as influenced by relevant provisions of the UK law. 2.2 Analysis of facts using UK law and the Prohibition of Unsolicited Parties Act 2010 In the context of the common law, the employment relationship results to a series of obligations both for the employers and the employees (Boella and Goss-Turner 2013). As an example, an employer needs to secure the quality of training and the safety of employees while employees have to follow employers’ guidelines and to ‘work in good faith’ (Boella and Goss Turner 2013, p.186). At the next level, the obligations of employers and employees are derived by Statutes and Acts which are related to specific aspects of the employment relationship. This means that in the case under examination the potential liability of Tom under the Prohibition of Unsolicited Parties Act 2010 should be evaluated in combination with the rules of common law, especially since these rules can lead to the limitation of the liability of Tom as a result of the employment relationship. According to the rules of common law, an employer can be considered as liable for ‘any tort committed by his employees in the context of the employment relationship’ (Mothersole and Ridley 1999, p.506). However, in practice it may be difficult to identify the exact borders of an employment relationship, making the identification of the relationship between the tort and the specific relationship quite difficult (Countouris 2013, Austen-Baker 2011). In practice, the liability of employer for the torts committed by his employees requires the lack of the appropriate ‘duty of care’ (Snashall and Patel 2012, p.26) by the employer’s side. At the same time, when the occurrence of a specific offence could be foreseen, then the negligence, in regard to this offence, cannot be doubted (Waters 2013). Particular reference should be made to the gathering on land, as regulated by the general provisions of the criminal law: the Criminal Justice and Public Order Act 1994, s.63 notes that the gathering on land of more than 20 persons when combined with music, especially during the night, can be an offence when a direction is given by a police officer, in order to protect public order, and the direction is not followed (Ormerod 2011, Beggs et al. 2012). Without the existence of a direction for avoiding a gathering it would be difficult for the terms of an offence to be met (Fenwick and Phillipson 2013, Crown Prosecution Service 2014). The Criminal Justice Act 2003 states that offences related to the, unauthorized, trespassing of land and the gathering that violate existing legal provisions can be followed by a penalty or an imprisonment up to 51 weeks (Griffiths 2010). 2.3 Tom’s liability under the Prohibition of Unsolicited Parties Act 2010, as influenced by the principles of common law The article 1(1) of the Prohibition of Unsolicited Parties Act 2010 sets a series of criteria that need to be met for an offence to exist: a) the people gathered on land would be over hundred, b) the gathering would be related to a social purpose; c) alcohol would be expected to be consumed during the gathering and d) there is no permission from the local magistrate, in case that the person that organizes the gathering is not an exempt person, as described in the particular legal provision. In the case under examination the terms of the article 1(1) of the above legislative text seem to be met: a) according to the case study the people gathered in the party of Tom were more than 600, i.e. quite higher than the limit set in law, b) the gathering was organized for the celebration of Tom’s birthday, i.e. for a social purpose, c) the consumption of alcohol is a common practice in parties; in the party of Tom also alcohol had be consumed, d) Tom had no permission from magistrate to organize such gathering. Moreover, Tom did not met the terms that the law sets for an exempt person, i.e. he was not the occupier of the place; rather he had just the power to keep an eye on the place, as this power was given to Tom by the manageress of the business, and no other rights on the specific place. Under these terms, it is concluded that Tom can be held liable for the offence described in section 1(1) of the Prohibition of Unsolicited Parties Act 2010. However, the liability of Tom could be limited under the influence of the issues discussed below. Tom is not fully foreigner in regard to the particular place. He is an employee in the specific business, on the land of which the gathering has been organized. This means that the liability of Tom for a tort within the specific business could be possibly limited because of the co-existence of liability for Tom’s employer, the manageress of the business. As noted in the literature presented above, the employer can be considered as liable for his employees’ torts but only if these torts are related – up to a level – to the employment relationship (Mothersole and Ridley 1999). It is implied that the torts need to be committed during the execution of tasks that are part of an employee’s position; if the torts are totally irrelevant to an employee’s role in a particular business then the employer of the business cannot be held liable for these torts. In the specific case, the party of Tom is not related to the employment relationship. For this reason, the manageress has no liability for Tom’s offence. Still, the fact that the manageress gave to Tom the keys of the business for keeping an eye on the premises may lead to the co-liability of the manageress for the tort on the basis that she did not pay the care expected for prohibiting the commitment of tort at the premises of the business. At this point, the following argument would possibly appear: the manageress of the business is an exempt person; this means that the manageress or any person that acts as an agent of the manageress would have the right to arrange a gathering on the land of the business without be restricted by the terms of the article 1(1) of the 2010 Act, as noted in the above provision. The above argument would be rejected for the following reason: the manageress has not gave to Tom the power/ authorization to act in behalf of her name in regard to various business activities; she only asked him to keep an eye on the business. Therefore, Tom cannot be considered as an agent of the manageress and he would still need to have a permission of the magistrates for organizing a social event that meets the terms of article 1(1) of the 2010 Act. On the other hand, Tom did not intend to organize such gathering, i.e. a gathering of more than 100 people, as the law sets for the existence of an offence to be secured. Instead, Tom aimed to invite only his friends; i.e. the gathering would not be expected to exceed the 20 persons. However, the technical failure of the e-mail service led to the development of a social event of more than 600 persons. Tom could not foresee that such technical failure would occur in his e-mail. In regard to the number of people gathered in Tom’s party, i.e. in regard to the first term of the article 1(1) of the 2010 Act the liability of Tom could be considered as non verified. Still, the case study reveals a detail that deteriorates the position of Tom as of his liability towards the law: after the arrival of the visitors Tom did not inform them on the mistake but he made no comment allowing these people to remain to his party. This fact indicates Tom’s acceptance for developing a social gathering of more than hundred people; thus, any potential argument based on the technical failure of Tom’s e-mail service, for pursuing Tom’s acquittal, would become of non-value. It should be noted that the requirement of a previous direction, which is not finally followed, and which is introduced by the common criminal law, as explained earlier, is not included in the article 1(1) of the 2010 Act. This means that Tom’s liability is established from the moment that the gathering was completed, without a direction from a police officer to be required, so that an offence to exist, if this direction is ignored. 3. Conclusion The issues discussed above reveal that Tom can be held liable for the offence described in the article 1(1) of the 2010 Act. Moreover, this liability could not be reduced by referring to the technical error of Tom’s e-mail service since Tom did not asked from the non-invited persons to leave the party, meaning that he accepted their presence there. Still, the Court should try to use the most indulgent provision in regard to the punishment of Tom for the specific offence taking into consideration Tom’s initial plan and intention in regard to his party. Finally, the difficulties that Tom could meet if he would try to ask so many people to leave the place should not be ignored. REFERENCES Austen-Baker, R. (2011) Implied Terms in English Contract Law. Cheltenham: Edward Elgar Publishing. Beggs, J., Thomas, G. and Rickard, S. (2012) Public Order: Law and Practice. Oxford: Oxford University Press. Boella, M. and Goss-Turner, S. (2013) Human Resource Management in the Hospitality Industry: A Guide to Best Practice. London: Routledge. Countouris, N. (2013) The Changing Law of the Employment Relationship: Comparative Analyses in the European Context. Aldershot: Ashgate Publishing, Ltd. Fenwick, H. and Phillipson, G. (2013) Text, Cases and Materials on Public Law and Human Rights, 2nd ed. London: Routledge. Griffiths, J. (2010) Advanced Criminal Litigation in Practice. Oxford: Oxford University Press Mothersole, B. and Ridley, A. (1999) A-level Law in Action. Belmont: Cengage Learning EMEA. Ormerod, D. (2011) Blackstone's Criminal Practice 2012. Oxford: Oxford University Press Snashall, D. and Patel, D. (2012) ABC of Occupational and Environmental Medicine, 3rd ed. Hoboken: John Wiley & Sons The Crown Prosecution Service (2014) ‘Trespass and Nuisance on land.” Available at . Waters, B. (2013) Introduction to Environmental Management: For the NEBOSH Certificate in Environmental Management. London: Routledge. Read More