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Sanctions and misfeasance

Re: Sanctions and misfeasance

Postby dls » Sun Oct 30, 2016 3:20 pm

The new one from Danny whats his name.

It is a work of fiction. It may well get close to a truth, but it is one among several truths.

HL posits a question based on extreme situations, and then invites to assume that they are true in order to discuss a situation to see whether it is proper. It is followed then by an implied criticism of the system.

If social security clerks shot dead anyone they disliked, that would not be nice would it? But let us first assume that indeed they do . .

Unless there is an implied assumption that the events are fully and fairly described, the question is empty, but the descriptions may very easily be partial.
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Re: Sanctions and misfeasance

Postby Boo » Sun Oct 30, 2016 3:27 pm

Oh, I Daniel Blake. https://en.wikipedia.org/wiki/I,_Daniel_Blake - I shall look out for this and review it...
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Re: Sanctions and misfeasance

Postby dls » Sun Oct 30, 2016 4:05 pm

Properly corrected
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Re: Sanctions and misfeasance

Postby Hairyloon » Sun Oct 30, 2016 6:04 pm

dls wrote:HL posits a question based on extreme situations, and then invites to assume that they are true in order to discuss a situation to see whether it is proper. It is followed then by an implied criticism of the system...

The purpose of the question is to better understand the definition of the tort and how it may be applied.
Do you reject my analysis?
Hairyloon wrote:As far as I can see the necessary elements are present: they are clearly public officers, exercising their powers as such, the exercise exceeds the power and is likely to damage the claimant.

I assume the relevant distinction is between a simple error of judgement and a wilful disregard to whether the judgement is right.
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Re: Sanctions and misfeasance

Postby atticus » Sun Oct 30, 2016 6:26 pm

If the OP wishes to understand the tort of misfeasance in public office, then he will find this Law Commission paper invaluable as an aid to understanding.
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Re: Sanctions and misfeasance

Postby Hairyloon » Sun Oct 30, 2016 8:38 pm

Thank you, I had had a look at that. It had me puzzled.

Briefly, misfeasance in public office is a tort remedy for harm caused by acts or omissions that amounted to:
1. an abuse of public power or authority;
2. by a public officer;
3. who either
  1. knew that he or she was abusing their public power or authority, or
  2. was recklessly indifferent as to the limits to or restraints upon their public power or authority;
4. and who acted or omitted to act
  1. with either the intention of harming the claimant (so-called “targeted malice”), or
  2. with the knowledge of the probability of harming the claimant, or
  3. with a conscious and reckless indifference to the probability of harming the claimant.
In short, misfeasance is an intentional tort, where the relevant intention is bad faith.


I don't follow how the brief shortens to being an intentional tort, unless "reckless indifference" equates to intent.
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Re: Sanctions and misfeasance

Postby Hairyloon » Sun Oct 30, 2016 9:12 pm

Boo wrote:Oh, I Daniel Blake. https://en.wikipedia.org/wiki/I,_Daniel_Blake - I shall look out for this and review it...

I'll look forward to your review.
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Re: Sanctions and misfeasance

Postby atticus » Sun Oct 30, 2016 9:38 pm

You need to understand the concept of recklessness. It is not mere carelessness, but knowing that something might happen, and not caring whether it does. It is taking a risk deliberately, and therefore not far short of international.
Wikipedia wrote:modern definition of recklessness has developed from R v Cunningham [1957] 2 QB 396 in which the definition of 'maliciously' for the purposes of the Offences against the Person Act 1861 was held to require a subjective rather than objective test when a man released gas from the mains while attempting to steal money from the pay-meter. As a result the gas leaked into the house next door, and partially asphyxiated the man's mother-in-law:

In any statutory definition of a crime, malice must be taken ... as requiring either:
(1) an actual intention to do the particular kind of harm that in fact was done; or
(2) recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).
The current test in England and Wales is therefore one of subjective recklessness, as recently reaffirmed by the House of Lords in R v G [2003] 3 WLR 1060.

This type of recklessness is called "Cunningham recklessness".
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Re: Sanctions and misfeasance

Postby Hairyloon » Sun Oct 30, 2016 11:19 pm

Is it worth looking up R v G [2003] 3 WLR 1060? It is not enough information for me to easily identify the case.

In the context though, I cannot see how they can have anything less than a reckless indifference to the probability of causing harm. How can these sanctions fail to do harm?
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Re: Sanctions and misfeasance

Postby dls » Mon Oct 31, 2016 6:14 am

Can I suggest that a quick search

"[2003] 3 WLR 1060" - using the quote marks will pint you quickly in the direction needed.
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