Monday, August 12, 2019
Is it fair, just and reasonable to allow the police to escape Dissertation
Is it fair, just and reasonable to allow the police to escape liability from a breach of duty - Dissertation Example This research will begin with the statement that tort is not something new. In fact, the law of tort is a very old legal concept, even older than the notion of crime. In the ancient period, the discourse on law is not on the laws of crime per se; rather it was more on the law of wrongs. By 1300Ã¢â¬â¢s, the English common law developed procedural mechanisms that was used to bring an action to court. During this period, writ system was developed and one of the most original writ was the writ of trespass. However, it should be noted that the writ of trespass was not a demand for right but it was a rectification for wrong done. Then, by 1400Ã¢â¬â¢s, sense and appeal to justice was integrated in the actions and responses to cases. By late 1700Ã¢â¬â¢s concept of negligence was developed and by 1800Ã¢â¬â¢s there was a shift from causation to fault for actions on cases. Meanwhile, the search for principles or theories that would explain further the concept of negligence became a prim ary concern in tort. This brief historical tracing of tort highlights the fact that early in the evolution of tort, the idea of remedies for wrongful acts was already perceived as a powerful tool in keeping public order, security, and peace within the society. However, despite the historical progression of tort and a common belief that tort implies compensation for injuries, there is an observed difficulty in coming up with a universal definition for tort. This is because there are different kinds and structures of torts, with different purposes and aims, variegated interests and different kinds of interferences. 11 Working on the premise that tort covers a wide scope, this research will deal with one of the controversial Ã¢â¬Å"legal wrong for which the law provides remedyÃ¢â¬ ,12 - police negligence and liability. The police are significant public group in the society that has been mandated by law to protect and preserve the peace. 13. Police are in a unique position as they ful fil their specific function that is mandated by law, which is to protect and keep the peace not just of one person, but also of the entire society. 14 However, this unique function is not a guarantee that police will never commit a civil wrong. 15 In fact, just like other members of the society, they are also susceptible to negligence as they perform their functions. Cases show that police negligence is a reality, but because of Ã¢â¬Ëpublic policy immunityÃ¢â¬â¢, they have not been held accountable for their negligence. In other words, they enjoy immunity from their negligence to the extent that police immunity from liability is the general rule. 16 However, Osman v UK17 demands a re-appropriation of police immunity from liability. Current experiences question police immunity and as such, mar the logic of the law itself. Since, its logic is the experience of the law. 18 In this scenario, matter of justice and fairness, in lieu of police immunity is raised.19 Tort and Negligence: The Rise of Tort of Negligence The term tort is derived from the Latin word tortus, which means twisted. In French, it means wrong. 20 Tort, in the English tradition, connotes the idea of a Ã¢â¬Å"legal wrong for which the law provides remedyÃ¢â¬ .21 In this purely technical and legal sense, tort falls under the civil law because Ã¢â¬Å"