Basic Concepts of Criminal Law - Essay Example

Running Head: CRIMINAL LAW of Submitted RESEARCH METHODOLOGY This paper emanates from library research coupled with information sourced from the internet, journals, advocates opinion and case law. LIMITATIONS OF THE STUDY The study is principally a qualitative research; it does not involve data analysis and consideration. Limited resources especially academic materials on the subject also proves to be a hurdle for a more comprehensive and critical appraisal. Whilst the client's interests maybe legitimate, carrying of such a weapon in public requires that the same be licensed by the police. The relevant provisions herein are to be found in the Firearms Act which requires that one applies to the Chief Licensing Officer of police for the relevant license having met the required procedures and other relevant considerations. While acknowledging that the client's weapon may not and is not firearm as contemplated by the provisions of the said Act, it is my humble submission that the licensing process would be the same as that of a civilian firearm as both fall under the category of dangerous weapons that need regulation and licensing. The Penal Code puts a duty to a persons holding or having in his care such a weapon not to endanger the live so the members of the public. It states that " it is the duty of every person who has within his charge or under his control anything, whether living or inanimate and weather moving or stationary, of such a nature that, in the absence of care or precaution in its use or management , the life, safety or health of any person maybe endangered , to use reasonable care and take reasonable precautions to avoid the danger; and he shall be deemed to have caused any consequences which adversely affect the life or health of any persons by reason of any omission to perform that duty. Further, and read together with the same provisions aforementioned, the same act provides that, "Any person, who with intent to maim, disfigure or disable any person, or to do some grievous harm to any person unlawfully wounds or does any grievous harm to any person by any means whatever is guilty of a felony and is liable to imprisonment for life, with or without corporal punishment. The same sentiments are captured by the provisions of sections 234 of the same Act. In this regard, it would be prudent for the client to obtain all the relevant legal requirements if only to escape the imposed sanctions for breach of the same. Factoring the foregoing, it is evident that, in as much as self defence may be a good defence in criminal proceedings, reasonable care ought to be observed in the use of such a weapon and one must not be negligent or reckless in its use. In this regard when it comes to causing another's physical injury, there are at least three ways that our behaviour could lead not only to financial liability, but also criminal liability for example: A person is guilty of assault when: 1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or 2. He recklessly causes physical injury to another person; or 3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument. A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offence when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. Negligence is the failure to act reasonably. But we all fail to act reasonably at times. And in unfortunate cases, it could lead to harm. Should we go to prison in such cases If every time we acted unreasonably we went to prison, we would all spend time behind bars. Even if we go to prison only when our unreasonable behaviour actually causes injury, we may all still be imprisoned at some time in our lives. We, as a society can accept that if our unreasonable behaviour causes harm to another we should be financially responsible for their related expenses. As a society, we can even accept that if we caused a person to suffer, we should compensate them for that pain. But how could all unreasonable behaviour that causes unfortunate harm be a criminal act That seems extreme, since again, we all act unreasonably at times. Generally, a person may use whatever degree of force is reasonably necessary for protection from bodily harm. The question of whether or not this defence is valid is usually determined by a jury. A person who initiates a fight cannot claim self defence unless the opponent responded with a greater and unforeseeable degree of force. When an aggressor retreats and is later attacked by the same opponent, the defence may be asserted Deadly force may be justified if initially used by the aggressor. The situation must be such that a reasonable person would be likely to fear for his or her life. In some states, a person must retreat prior to using deadly force if the individual can do so in complete safety. A majority of states, however, allow a person to stand his or her ground even though there is a means of safe escape. Whether the degree of force used is reasonable depends upon the circumstances. The usual test applied involves determining whether a reasonable person in a similar circumstance would respond with a similar amount of force. Factors such as age, size, and strength of the parties are also considered. Defence of Others Going to the aid of a person in distress is a valid defence, provided the defender is free from fault. In some states, the defender is treated as though he or she stands in the shoes of the person protected. The defender's right to claim defence of others depends upon whether the person protected had a justified claim of self-defence. In a minority of jurisdictions, the defence may be asserted if the defender reasonably believed the third party was in need of aid. Defence of Property Individuals may use a reasonable amount of force to protect their property. The privilege to defend one's property is more limited than that of self-defence because society places a lesser value on property than on the integrity of human beings. Deadly force is usually not permitted. In most states, however, deadly force might be justified if it is used to prevent or stop a felony. An owner of real property or a person, who rightfully possesses it, such as a tenant, may use force against a trespasser. Generally, a request to leave the property must be made before the application of force, unless the request would be futile. The amount of force used must be reasonable, and, unless it is necessary for self-defence, the infliction of bodily harm upon an intruder is improper. Courts have traditionally been more liberal in allowing the use of force to protect one's dwelling. Recent cases, however, have indicated that there must be a threat to the personal safety of the occupants. The states are divided on the question of whether a person who is legally entitled to property may use force to recover possession of it. In most jurisdictions, a landowner is not liable for assault and battery if the owner forcibly expels someone who is wrongfully on the property. The owner must not, however, use excessive force; and the fact that the person may not be held civilly liable does not relieve the owner of criminal liability. In some states, the use of force against a person wrongfully in possession of land is not permitted unless such person has tortuously dispossessed the actor or the actor's predecessor in title. If possession of real or personal property is in dispute, the universal rule is that force cannot be used. The dispute must be settled by a court. With respect to personal property, the general view is that an owner may not commit an assault or battery upon the wrongdoer in order to recover property. A majority of jurisdictions recognize the right of an owner in hot pursuit of stolen property to use a reasonable amount of force to retrieve it. In some states, stolen property may be taken back peaceably wherever it is found, even if it is necessary to enter another's premises. In all cases, the infliction of an unreasonable amount of harm will vitiate the defence. Performance of Duty and Authority A person may use reasonable force when it becomes necessary in the course of performing a duty. A police officer, for example, may use force when apprehending a criminal. Private Citizens may also use reasonable force to stop a crime committed in their presence. Certain businesses, such as restaurants or nightclubs, are authorized to hire employees who may use reasonable force to remove persons who disturb other patrons. Court officers, such as judges, may order the removal of disruptive persons who interfere with their duties. Persons with authority in certain relationships, such as parents or teachers, may use force as a disciplinary measure, provided they do not exceed the scope of their authority. Punishment may not be cruel or excessive. It is within these confines that the use of such a weapon is to be understood and employed within the law to avoid criminal liability. References Fletcher, G. P. (1998). Basic Concepts of Criminal Law. Oxford University Press. Gorr, Michael, Sterling Harwood, eds. (1992). Controversies in Criminal Law. Westview Press. Gross, Hyman (2005, reissue). A Theory of Criminal Justice. Oxford University Press. Ormerod, David (2005). Smith and Hogan: Criminal Law. Oxford University Press. Read More