Josephine who is 17 years, organizes a party at the family home while
her parents are away for the weekend. It gets out of hand. For Josephine and
her parents, it is a nightmare. But for a lawyer, there are as many questions
as there are empty bottles strewn the next morning across the prized
living room carpet.
What if the party was very noisy? It might have caused a nuisance
to neighbours living nearby and those neighbours might have contacted
the local authority, whose noise-prevention officers have powers
to close the party down or reduce the noise in some other way.
If the party was large enough—and loud enough—to cause a serious
nuisance across a wide area, Josephine and her guests might even be prosecuted
for the crime of public nuisance and eventually punished.
What if the partygoers damaged the house or stole some of the family’s
possessions? These are obviously criminal offences, but what happens
if the perpetrators can’t be identified? Can guests be forced to give
evidence of what happened? Can they get into trouble if they don’t name
names? If the perpetrators are easily identified and have lots of money,
Josephine’s parents might even consider suing them for compensation to
cover the cost of all the damage. If the parents choose not to bother,
but claim instead on their household insurance policy, can the insurance
company recoup some of the money it pays out from those responsible
for the damage?
What if one of the invited guests, Robert, was seriously injured
when he tripped over a loose paving stone on the patio, that Josephine’s
parents knew was dangerous and had been meaning to get fixed? He
might want to sue the parents for compensation, but would it make
any difference to his chances of success if the parents had expressly
banned their daughter from inviting anyone to their home while they
were away? And what if Robert was drunk or messing about when he
tripped, but the paving stone was sufficiently dangerous that he would,
more likely than not, have tripped and suffered the same injury even
if he had been perfectly sober? Do people nowadays resort too readily
to litigation when injured, unwilling to accept that they have no-one
to blame but themselves for what happened?
How would the arrival of gate-crashers affect the position? What
was their legal status while in the house—were they trespassers? If so,
what does that mean? They might be guilty of a crime, such as burglary,
if they intended to steal property. Could they be forcibly ejected
by the hostess’s friends, even if this requires physical violence? What
if the hostess turned a blind eye to their arrival or appeared to welcome
them, but later wanted to throw them out? And what if a gatecrasher is
injured tripping on that same dodgy paving stone?
The internet adds a new dimension to the problem. Perhaps Josephine
publicized the party on an internet chat room, or maybe some of her so called
friends hacked into her account and publicized the party without
her permission. Would this generate any legal liability in itself? What
about any responsibility of the company supposed to monitor the chat room?
Is it asking too much to expect a traditional, national legal system
to cope with the challenges of an online world?
Did Josephine buy alcohol for the party, even though there are supposed
to be laws preventing that happening? Or did she raid the parental
drinks cabinet? Are there any laws that penalize serving drinks to
under-age people at private parties, or any licensing requirements that
apply to such private gatherings? We all know about the problem of
binge drinking, but some countries have laws imposing ‘social host
liability’—this means that if a host has served alcohol and then allows
an obviously drunk guest to drive home, the host might be liable to
pay compensation if the drunk driver later injures or kills someone
on the road. Should the same laws be introduced in
should they apply just to commercial premises, like pubs, or should
they apply to private parties too? And should they apply if the person
killed or injured is not an innocent third party but the drunk driver
himself?
Meanwhile, back at the party, what if some guests did things they
deeply regretted next morning? If a woman consented to sex when drunk,
but the man knew that she wouldn’t have consented if she had been sober,
is he guilty of rape? And can a drunken consent to sex really be considered
consent? What if a man believes a woman is consenting, but only
because he is too drunk to realise that she isn’t? The legal age of consent
to sex is 18, so what are the criminal law consequences of a 20-year-old
man having sex with a 15-year-old girl who said she was 18, or of a
15-year-old boy having consensual sex with a girl his own age? Is it right
for the law to attach such overwhelming significance to the age ‘18’ in this
context? Is it practicable to have laws that are so difficult to enforce?
As the party descended into chaos, there was a fight and a man was
hurt. Can he sue for damages, even though he was a willing participant
in the fight? If the fighting spilled out onto the street, can the police
arrest the perpetrators for causing a breach of the peace or for drunk and
disorderly conduct? Are there any additional protections for under-age
suspects?
Finally, the police raided the party and found that illegal drugs were
being taken. Is it illegal to take drugs, to share them, or just to supply
them? Is it economically and politically sensible to tackle drug-taking
using the criminal law?
Josephine is clearly going to be in trouble with her parents, but can she be
held legally responsible for any of these disastrous events, even if she
spent all night cowering in her bedroom, terrified and unable to do anything
to bring the party to an end? And should her parents be regarded as
legally responsible, even though they were not there and were horrified
to discover the chaos when they got home?
***
One party, but so many diverse and fascinating legal issues. Some
are about what the law is, others about why it is that way and whether
it should be that way. Lawyers have to think in those terms all the
time. For many of the questions, there is no obvious ‘right’ answer,
because the law is surprisingly open to more than one interpretation
and because considerations of policy and fairness do not always point
in the same direction. Lawyers and law students need to think about
all these issues.
I have taken seven cases—one from each of the core subjects that
you must study if you wish to start out on the career path of becoming a
lawyer. These subjects are essential building blocks for a proper understanding
of law, regardless of whether you go on to pursue a legal career.
First, however, I need to provide you with some of the basic tools of
the trade to help make sense of the cases that follow. Why not start with
a fundamental (and very difficult) question—what is law?
Written by;
Robert D. Sulus; LLB III.
Makumira University.
muelimishaji2009
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