In fact, Viscount Sankey L.C. in outlining the duty of the prosecution stated that there are the exceptions of insanity and statutory exception, under which onus is on the accused to prove. Thus, for the purposes of this exercise, the stated exceptions will require thorough consideration, in order to fully establish the extent to which the constitutionally guaranteed presumption of innocence protects the rights of an accused
Reynolds v Clarke (1726)2 Ld Raym 1399, Fortescue ruled that the difference would surmount to whether the consequence was immediate or occurred later, for which an action would otherwise not be brought. The rigidness in the distinction between trespass and case proved a problem. The solution lay in allowing the plaintiff to ‘waive’ the trespass and sue instead in case.in Williams v. Holland (1833)2 LJCP (NS) 190, the court of common pleas decided that this would be allowed if the plaintiff’s injury was occasioned by the ‘carelessness and negligence’ of the defendant, regardless of whether or not the act was immediate, so long as the act was unwillful. Thus one could bring an act whether the defendant produced immediate or consequential damage. Introduction According to the Duhiame law dictionary fault is a breach of duty or negligence and in some circumstances, the errors or omissions of others or things under a person’s control .
There are a couple of main routes or options that exist when handling domestic violence cases under this policy. An initial complaint or registration with the law must be made in order to confirm that a domestic violence incident has occurred in the first place, like any other crime. This being said, there must be some report of violence to a degree that threatens the safety and well being of the victim in order for a formal charge to be brought in front of the courts. Once an aggressor enters the legal system and prosecutors become involved, a no-drop policy ensures that a verdict will be reached regarding that aggressor’s behavior. The victim is not required to testify, except in some cases, or provide any further information in order for prosecution to continue.
In criminal law when a criminal act is alleged to have been committed, the essential requirement for the crime is that the victim was opposed to the crime. One of the available defences when a criminal act is committed is that the victim actually gave consent to the acts . The defence of consent is available to certain case that result in bodily harm which includes assault and battery. For instance, in sports there is a physical contact. Participants are deemed to have consented to the physical contact and possible bodily harm.
Ordinary Negligence and Occupiers’ Liability – Comparing Principles. Based on the discussion above, we can retrieve the key features of both ordinary negligence and occupier’s liability. In essence, the ordinary idea of negligence is when you unintentionally cause injury to someone in a situation where you should have known your action could cause harm. The plaintiff must establishes three factors to constitute negligence. Firstly, the plaintiff must prove that the defendant owed the plaintiff a duty of care.
According to Tseloni, Wittebrood, Farrell, and Pease (2004), guardianship refers to the ability of a person and or object in preventing crime from occurring. Tseloni, et al. (2004) also differentiates between two types of guardianship, namely social and physical guardianship. These two forms of guardianship are described as follows: social guardianship refers to the actual presence of a person, i.e. the physical presence of an person capable of deterring a motivated offender (Fisher, Cullen, and Turner, 2000); Bennet and Wright (1984), provides an example of such guardianship when they examined the influence of household occupancy and found that burglars will try to avoid or are even reluctant to burglarise households that were occupied or showed signs of occupancy.
Nominal damages, given although there is no harm at all, or merely a slight one, may also be awarded in an assault and battery action. Punitive Damages are often given when the offense was committed maliciously to punish the defendant for the wrongful act and to deter others from engaging in similar acts in the future. If a defendant is found criminally liable, the punishment is imprisonment, a fine, or both. CRITISISM In assault intention is necessary so even if the defendant commits a crime and does not have an intent to harm the victim, the individual cannot be guilty of the offense. SUGGESTIONS The law must then balance the degree of the risk and the likelihood of injury occurring, against the expense and difficulty of taking precautions both in assault and battery more precautiously.
Intent: Intent, as the word suggests, means that the accused the accused must have deliberately acted in such a way to bring about the unlawful consequence. The concept of intent has however developed in such a way to also cover foreseen conduct as oppose to just deliberate conduct. Fault in the form of intent can be described as being present when an accused directs his will towards committing an unlawful conduct, while knowing/foreseeing it to be unlawful. According to Burchell, there are two elements required to satisfy intentional fault: knowledge or foresight of the unlawful conduct and direction of will towards and act or result. The test to determine whether an accused intended for an unlawful consequence to result, is a subjective test, which means that the court will look at the accused’s subjective state of mind to determine blameworthiness.
The essential difference between house-trespass and lurking house-trespass is that the person should take some active precautions or effective steps to conceal his identity or presence from the person who has a right to prevent that person from entry or who has a right to throw him out upon entry. Section 443 requires the following ingredients— i) Trespass (Section 441) ii) The trespass being of the special kind designated as house- trespass; and iii) That trespass being made in a surreptitious manner, called ‘lurking’. The collocation of the words “exclude or eject” is intended to convey a sense more or less similar, but one word is intended to supplement any defect discovered in the sense conveyed by the
CHAPTER VII IMPLICATIONS OF HAVING A CLEAR DEFINITION WITH ITS CORRESPONDING ELEMENTS FOR THE CRIME OF UNJUST VEXATION Substantially, defining the crime of unjust Vexation with corresponding elements would bar any challenges against its constitutionality based on the grounds mentioned in Chapter V of this paper. Procedurally, defining the crime of Unjust Vexation with corresponding elements will also help both the prosecution and the accused avail of several procedures recognized under our criminal procedure, such as: Plea Bargaining The rule on the provisions on Pre –Trial indicates that plea bargaining is one of the matters to be considered during the pre-trial stage, a proceeding conducted before the trial. “Rule 116, Sec. 2: Plea of