Dictionary

A
abandonment n. 1. The act of giving up a legal right, particularly a right of
ownership of property. Property that has been abandoned is res nullius (a thing
belonging to no one), and a person taking possession of it therefore acquires a
lawful title. An item is regarded as abandoned when it can be established that the
original owner has discarded it and is indifferent as to what becomes of it: such an
item cannot be the subject of a theft charge. However, property placed by its owner
in a dustbin is not abandoned, having been placed there for the purpose of being
collected as refuse. In marine insurance, abandonment is the surrender of all rights
to a ship or cargo in a case of *constructive total loss. The insured person must do
this by giving the insurer within a reasonable time a notice of abandonment, by
which he relinquishes all his rights to the ship or cargo to the insurer and can treat
the loss as if it were an actual total loss. 2. In civil litigation, the relinquishing of
the whole or part of the claim made in an action or of an appeal. Any claim is now
considered to be abandoned once a *notice of discontinuance is served, according to
rule 38 (1) of the *Civil Procedure Rules. 3. The offence of a parent or guardian
leaving a child under the age of 16 to its fate. A child is not regarded as abandoned
if the parent knows and approves steps someone else is taking to look after it. The
court may allow a child to be adopted without the consent of its parents if they are
guilty of abandonment.
abatement n. 1. (of debts) The proportionate reduction in the payment of debts
that takes place if a person's assets are insufficient to settle with his creditors in
full. 2. (of legacies) The reduction or cancellation of legacies when the estate is
insufficient to cover all the legacies provided for in the will or on intestacy after
payment of the deceased's debts. The Administration of Estates Act 1925 provides
that general legacies, unless given to satisfy a debt or for other consideration, abate
in proportion to the amounts of those legacies; specific and demonstrative legacies
then abate if the estate is still insufficient to pay all debts, and a demonstrative
legacy also abates if the specified fund is insufficient to cover it. For example, A's
estate may comprise a painting, £300 in his savings account, and £700 in other
money; there are debts of £100 but his will leaves the painting to B,£500 from the
savings account to C. £800 to D, and £200 to E. B will receive the painting, C's
demonstrative legacy abates to £300, and after the debts are paid from the
remaining £700, D's and E's general legacies abate proportionately, to £480 and £120
respectively. When annuities are given by the will, the general rule is that they are
valued at the date of the testator's death, then abate proportionately in accordance
with that valuation, and each annuitant receives the abated sum. All these rules are
subject to any contrary intention being expressed in the will. 3. (in land law) Any
reduction or cancellation of money payable. For example a lease may provide for an
abatement of rent in certain circumstances, e.g. if the building is destroyed by fire,
and a purchaser of land may claim an abatement of the price if the seller can prove
his ownership of only part of the land he contracted to sell. 4. (of nuisances) The
termination, removal, or destruction of a *nuisance. A person injured by a nuisance
has a right to abate it. In doing so, he must not do more damage than is necessary
and, if removal of the nuisance requires entry on to the property from which it
emanates, he may have to give notice to the wrongdoer. A local authority can issue
an abatement notice to control statutory nuisances. 5. (of proceedings) The

termination of civil proceedings by operation of law, caused by a change of interest
or status (e.g. bankruptcy or death) of one of the parties after the start but before
the completion of the proceedings. An abatement did not prevent either of the
parties from bringing fresh proceedings in respect of the same cause of action. Pleas
in abatement have been abolished; in modern practice any change of interest or
status of the parties does not affect the validity of the proceedings, provided that
the cause of action survives.
abduction n. The offence of taking an unmarried girl under the age of 16 from
the possession of her parents or guardians against their will. It is no defence that
the girl looked and acted as if she was over 16 or that she was a willing party. No
sexual motive has to be proved. It is also an offence to abduct an unmarried girl
under the age of 18 or a mentally defective woman (married or unmarried) for the
purpose of unlawful sexual intercourse. In this case a defendant can plead that he
had reasonable grounds for believing that the girl was over 18, or that he did not
know the woman was mentally defective, respectively. It is also an offence to abduct
any woman with the intention that she should marry or have unlawful sexual
intercourse with someone, if it is done by force or for the sake of her property. It is
also an offence for a parent or guardian of a child under 16 to take or send him out
of the UKwithout the consent of the other parent or guardians. Belief that the
other person has or would have consented is a defence. It is also an offence for any
other person to remove or keep such a child, without lawful authority or reasonable
excuse, from the person with lawful control of him. Proof of belief that the child
was 16 is a defence here. See also KIDNAPPING.
abet vb. See AID AND ABET.
abortion n. The termination of a pregnancy: a miscarriage or the premature
expulsion of a foetus from the womb before the normal period of gestation is
complete. It is an offence to induce or attempt to induce an abortion unless the
terms of the Abortion Act 1967and the Abortion Regulations 1991 are complied with.
The pregnancy can only be terminated by a registered medical practitioner, and two
registered medical practitioners must agree that it is necessary, for example because
(1) continuation of the pregnancy would involve a risk to the life or physical or
mental health of the pregnant woman (or of other children of hers) that is greater
than the risk of terminating the pregnancy, or (2) that there is a substantial risk
that the child will be born with a serious physical or mental handicap. However,
doctors are not obliged to perform abortions if they can prove that they have a
conscientious objection to so doing. A husband cannot prevent his wife having a
legal abortion if she so wishes. Compare CHILD DESTRUCTION.
absconding n. The failure of a person to surrender to the custody of a court in
order to avoid legal proceedings. See alsoSURRENDER TO CUSTODY.
absence n. (in court procedure) The nonappearance of a party to litigation or a
person summoned to attend as a witness.
absent-mindedness n. See AUTOMATISM.
absent parent See NONRESIDENT PARENT; CHILD SUPPORT MAINTENANCE.
absolute assignment See ASSIGNMENT.
absolute discharge See DISCHARGE.
absolute privilege The defence that a statement cannot be made the subject of
an action for *defamation because it was made in Parliament, in papers ordered to
be published by either House of Parliament, in judicial proceedings or a fair and
accurate newspaper or broadcast report of judicial proceedings, or in an official
communication between certain officers of state. Under the Defamation Act 1996,
the defence is also available for those reporting proceedings of the European Court
of Justice. Under certain circumstances defined by the 1996 Act the absol~te
privilege accorded to statements or proceedings in Parli~ment m~y be waived .
(waiver of privilege) to permit evidence to be adduced III an action for defamation.
Compare QUALIFIED PRNILEGE.
absolute right A right set out in the European Convention on Human Rights that
cannot be interfered with lawfully, no matter how important the public interest in
doing so might be. Absolute rights include *freedom of thought, conscience, and
religion and the prohibitions on *torture, *inhuman treatment or punishment, and
*degrading treatment or punishment. Compare QUALIFIED RIGHT.
absolute title Ownership of a *legal estate in registered land with a guarantee by
the state that no one has a better right to that estate. An absolute title to freehold
land is equivalent to an estate in fee simple in possession in unregistered land.
Absolute leasehold title, unlike *good leasehold title, guarantees that the lessor
has title to grant the lease. (Com pare POSSESSORY TITLE; QUALIFIED TITLE.) The title may
be subject to (1) *encumbrances and other entries noted on the register by means of
substantive registration (e.g.a registered legal charge or land charge); (2)minor
interests, such as that of a beneficiary under a trust, which may be protected by
means of "entry" on the register rather than by substantive registration; and (3)
*overriding interests (which by their nature do not appear on the register and must
be ascertained by search and enquiry). See also LAND REGISTRATION.
abstracting electricity The *arrestable offence, punishable with up to five years'
imprisonment and/or a fine, of dishonestly using, wasting, or diverting electricity.
This offence may be committed by someone who bypasses his electricity meter or
reconnects a disconnected meter or who unlawfully obtains a free telephone call
(though there is a more specific and potentially less serious offence to deal with
this). Bypassing a gas or water meter could constitute *theft of the gas or water.
Joyriding in a lift (or some similar abuse) might also constitute wasting electricity.
Computer hackers were formerly charged with offences of abstracting electricity
until the Computer Misuse Act 1990made *hacking a specific criminal offence.
abstraction of water The taking of water from a river or other source of
supply. It normally requires a water authority licence but there are exceptions; for
example when less than 1000 gallons are taken, when the water is for domestic or
agricultural use (excluding spray irrigation), or when it is removed in the course of
fire-fighting or land drainage. It has been held not to include gravitational loss from
a canal replacing water drawn from a connecting outfall channel.
abstract of title Written details of the *title deeds and documents that prove an
owner's right to dispose of his land or an interest in this. An abstract generally deals
only with the *legal estate and any equitable interests that are not *overreached. An
owner usually supplies an abstract of title before *completion to an intending
purchaser or mortgagee, who compares it with the original title deeds when these
are produced or handed over on completion of the transaction. An abstract of title
to registered land consists of *office copies of the entries in the register (together
with an *authority to inspect the register) and details of any other documents
necessary to prove the owner's title, such as a marriage certificate proving a
woman's change of surname. For unregistered land, the abstract of title must
usually trace the history of the land's ownership from a document at least 15 years
old (the *root of title) and give details of any document creating encumbrances to

which the land is subject. An abstract of title formerly comprised extracts, often in
abbreviated note form, but now generally comprises duplicate copies of the relevant
documents (an epitome of title). An abstract or epitome, with each copy document
marked as examined against the original, may be sufficient in itself to deduce title;
for instance, when a title is split into lots, the purchaser of each lot may be required
to accept an examined abstract or epitome in lieu of the original title deeds,
accompanied by an *acknowledgment and undertaking.
abuse of a dominant position Unlawful activities by large businesses, i.e.
usually those having a market share of at least 40% in at least one EU state.
Examples of such activities, which are contrary to *Article 82 of the Treaty of Rome
and the UK Competition Act 1998, include refusing to supply an existing customer
and engaging in *predatory pricing. The European Commission and the Office of
Fair Trading can fine businesses up to 10%of annual worldwide turnover for breach
of Article 82. The record individual fine, of 102M ECUs(now euros), was against
Volkswagen in 1998; it was upheld on appeal in July 2000.Under the UK Competition
Act 1998a £3.21M penalty was imposed on Napp Pharmaceuticals. See ANTICOMPETITIVE
PRACTICE.
abuse of process A tort where damage is caused by using a legal process for an
ulterior collateral purpose. (See also MALICIOUS PROSECUTION.) Actions that are
obviously frivolous, vexatious, or in bad faith can be stayed or dismissed by the
court as an abuse of process.
abusive behaviour See THREATENING BEHAVIOUR.
ABWOR Advice by way of representation: assistance formerly given to a person by
taking on his behalf any step in the institution or conduct of any proceedings
before a court or tribunal under the provisions of the legal advice and assistance
scheme. The legal aid scheme under which ABWOR was created was replaced by the
"Community Legal Service from 1 April 2000. Under the new scheme, the
authorization of legal representation for the purposes of a particular hearing is now
in a form called help at court.
ACAS Advisory Conciliation and Arbitration Service: a statutory body that was
established under the Employment Protection Act 1975; the composition and
functions of ACAS are now governed by Parts IV and VI of the Trade Union and
Labour Relations (Consolidation) Act 1992.ACAS was set up to promote the
improvement of industrial relations and the development of *collective bargaining.
In its conciliation function it may intervene, with or without the parties' consent. in
a *trade dispute to offer facilities and assistance in negotiating a settlement. It
employs conciliation officers who may assist parties to an application to an
employment tribunal to reach a settlement. Earlier legislation removed the necessity
for binding settlements of employment disputes to involve an ACAS conciliation
officer: settlements can now be made when the invididual has had independent legal
advice from a qualified lawyer.
ACAS does not itself arbitrate in trade disputes, but with the consent of both
parties it may refer a dispute to the *Central Arbitration Committee or to an
independent arbitrator. ACAS may give free advice to employers, employees, and
their respective representatives on matters of employment or industrial relations. It
issues *codes of practice giving guidance on such matters as disciplinary procedures
and *disclosure of information to trade unions. It may also conduct inquiries into
industrial relations problems, either generally or in relation to particular businesses,
and publish the results after considering the views of parties directly affected. ACAS
can charge for its services when it considers that this is appropriate. The law on
conciliation generally is contained in the Employment Tribunals Act 1996.
acceleration n. The coming into possession of a *future interest in any property
at an earlier stage than that directed by the transaction or settlement that created
the interest. For example, a landlord's interest in *reversion is accelerated if the
tenant surrenders the lease before it has expired. When a will bequeaths an interest
for life that lapses (e.g. because the legatee dies before the testator), the interest of
the person entitled in *remainder is accelerated and takes effect immediately the
testator dies.
acceptance n. Agreement to the terms of an *offer that, provided certain other
requirements are fulfilled. converts the offer into a legally binding contract. If the
method by which acceptance is to be signified is indicated by the offeror, that
method alone will be effective. If it is not, acceptance may be either express (by
word of mouth or in writing) or inferred from the offeree's conduct; for example, if
he receives goods on approval and starts to make use of them. The acceptance must
always, however, involve some action on the part of the person to whom the offer
was made: the offeror cannot assert that his offer will be treated as accepted unless
the offeree rejects it. The validity of an acceptance is governed by four principal
rules. (1) It must take place while the offer is still in force, i.e. before it has lapsed
(see LAPSE OF OFFER) or been revoked (see REVOCATION OF OFFER). (2)It must be on the
same terms as the offer. An acceptance made subject to any variation is treated as a
counteroffer. (3) It must be unconditional, thus an acceptance subject to contract is
not a valid acceptance. (4) It must be communicated to the offeror. Acceptance by
letter is treated as communicated when the letter is posted, but telex is equated
with the telephone, so that communication takes place only on receipt. However,
when the offer consists of a promise to confer a benefit on whoever may perform a
specified act, the offeror waives the requirement of communication as a separate
act. If, for example. he offers a reward for information, a person able to supply the
information is not expected to accept the offer formally. The act of giving the
information itself constitutes the acceptance. the communication of the acceptance,
and the performance of the contract.
acceptance of a bill The written agreement by the person on whom a *bill of
exchange is drawn (the drawee) that he will accept the order of the person who
draws it upon him (the drawer). The acceptance must be written on the bill and
signed. The signature of the drawee without additional words is sufficient, although
generally the word "accepted" is used as well. Upon acceptance the drawee becomes
the acceptor and the party primarily liable upon the bill. See also QUALIFIED
ACCEPTANCE.
acceptance supra protest (acceptancefor honour) A form of *acceptance of a
bill of exchange to save the good name of the drawer or an endorser. If a bill of
exchange has been either the subject of a *protest for dishonour by nonacceptance
or protested for better security, and it is not overdue, any person who is not already
liable on the bill may. with the consent of the holder. accept the bill supra protest.
Such an acceptance must be written on the bill. indicate that it is an acceptance for
honour, and be signed. The acceptor for honour engages that he will pay the bill on
due presentment if it is not paid by the drawee, provided that it has been duly
presented for payment and protested for nonpayment and that he receives notice of
these facts. He is liable to the holder and to all parties to the bill subsequent to the
party for whose honour he accepted.
access n. Formerly. the opportunity to visit a child that was granted (at the

discretion of the court) to its parent when the other parent had the care and control
of the child after divorce or when a custodianship order was in force. Since the
Children Act 1989came into force the concept of access has been replaced by that of
*contact. See also SECTION 8 ORDERS.
accession n. 1. The formal agreement of a country to an international *treaty.
The term is applied to the agreement of a country to become a member state of the
European Union. Member states accede to the Treaty of Rome or any other EU
treaty by signing accession agreements. 2. The process of a member of the royal
family succeeding to the throne, which occurs immediately on the death or
abdication of the previous sovereign.
access land Land to which the public will have access for the purposes of open-air
recreation under the Countryside and Rights of Way Act 2000. It includes land
shown as open country (mountain, moor, heath, or down) on a map in conclusive
form issued by an appropriate countryside body (the Countryside Agency or the
Countryside Council for Wales) or as common land, or land situated more than 600
metres above sea level, or land that has been dedicated as access land.
accessory n. One who is a party to a crime that is actually committed by someone
else. An accessory is one who either successfully incites someone to commit a crime
(counsels or procures)or helps him to do so (*aids and abets). The accessory is
subject to the same punishments and orders as the principal (see alsoCOMMON
DESIGN). It is an offence to assist a person whom one knows has committed an
arrestable offence with the intention of impeding his apprehension or prosecution.
See also IMPEDING APPREHENSION OR PROSECUTION.
accessory liability If a stranger knowingly and dishonestly assists a trustee in a
breach of trust he will be liable as an accessory. He will not usually have received
any trust assets; however, in assisting in the breach he will be personally liable to
account to the trust for any losses arising from his actions.
accident n. See FATAL ACCIDENTS; MISTAKE; ROAD TRAFFIC ACCIDENTS.
accident record book A record kept by the police of details of the accidents they
have investigated. Access to this is usually requested by solicitors acting in
subsequent litigation relating to *road traffic accidents. The Association of Chief
Police Officers Traffic Committee has issued guidelines on charges for such reports.
accommodation bill A bill of exchange accepted by an accommodation party,
i.e. a person who signs without receiving value and for the purpose of lending his
name (i.e. his credit) to someone else. An accommodation party is liable on the bill to
a *holder for value.
accomplice n. One who is a party to a crime, either as a *principal or as an
*accessory. See alsoCORROBORATION.
accord and satisfaction The purchase by one party to a contract of a release
from his obligations under it when the other party has already performed his side
of the bargain. A release of this one-sided nature constitutes a unilateral discharge
of the contract; unless granted by deed, it can at common law be effected only by
purchase, i.e. by a fresh agreement (accord) for which new consideration
(satisfaction) is given. If, for example, A is due to pay £1000on a particular date to B
for contractual services rendered, B might agree to accept £900 paid on an earlier
date, the earlier payment constituting satisfaction. Compare BILATERAL DISCHARGE. See
also (PROMISSORY) ESTOPPEL.
account n. A right at common law and later (more importantly) in equity,
requiring one party to a relationship (e.g.a partnership) to account to the other or
others for moneys received or due. An account may be: (1) open or current, where a
balance has not been agreed or accepted by all parties; (2) stated, where a balance
has been accepted as correct by all parties; or (3) settled, where a balance has been
accepted and discharged.
accounting records See BOOKS OF ACCOUNT.
account of profits A remedy that a claimant can claim as an alternative to
damages in certain circumstances, e.g. in an action for breach of *copyright. A
successful claimant is entitled to a sum equal to the monetary gain the defendant
has made through wronging the claimant.
accounts pl. n. A statement of a company's financial position. All registered
companies must present accounts (in the form prescribed by the Companies Act
1985) annually at a *general meeting. These consist of a *balance sheet and a *profitand-
loss account with *group accounts (if appropriate) attached. They are
accompanied by a directors' report and an auditor's report. All limited companies
must deliver copies of their accounts to the *Companies Registry (where they are
open to public inspection) but companies that are classified (on the basis of
turnover, balance sheet total, and number of members) as "small" or "medium-sized"
enjoy certain exemptions. Members are entitled to be sent copies of the accounts. See
alsoELECTIVE RESOLUTION; SUMMARY FINANCIAL STATEMENT.
accretion n. The process by which new land formations are legally assimilated to
old by a change in the flow of a water channel. In contrast to *avulsion, this process
involves a very slow, near imperceptible, natural action of water and other elements.
It would include, for example, the natural diversion of a boundary river leaving an
island, sandbank, or dry land where it previously flowed, the formation of islands at
a river mouth, and additions to a delta by the deposit of sand and soil upon the
shoreline. Accretion will allow the beneficiary state to legitimately claim title to the
new land so created. See alsoTHALWEG, RULE OF THE.
accumulation n. The continual addition of the income of a fund to the capital, so
that the fund grows indefinitely. Before the Accumulation Act 1800 accumulation
was permitted for the length of the perpetuity period (i.e. lives in being plus 21
years: see RULE AGAINST PERPETUITIES). The periods for which accumulation is now
permitted are shorter; they are listed in the Law of Property Act 1925and the
Perpetuities and Accumulations Act 1964 and include a period of 21 years from the
date of the disposition, the period of the life of the settlor, and the duration of the
minority of any person mentioned in the disposition. Income is often directed to be
accumulated if (for example) the beneficiary is a minor, or the interest in his favour
is protected or contingent, or if the terms of a trust are discretionary.
accusatorial procedure (adversary procedure) A system of criminal justice in
which conclusions as to liability are reached by the process of prosecution and
defence. It is the primary duty of the prosecutor and defence to press their
respective viewpoints within the constraints of the rules of evidence while the
judge acts as an impartial umpire, who allows the facts to emerge from this
procedure. Common-law systems usually adopt an accusatorial procedure. See also
BURDEN OF PROOF. Compare INQUISITORIAL PROCEDURE.
acknowledgment n. 1. The admission that a debt is due or a claim exists. Under
the Limitation Act 1980,a written acknowledgment by a debtor or his agent causes
the debt to be treated as if it had accrued on the date of the acknowledgment,
provided that the limitation period is still current at that date. The result is that the

limitation period of six years for bringing an action to recover the debt runs from
the date of acknowledgment, rather than the date on which the debt in fact arose.
See also LIMITATION OF ACTIONS. 2. Confirmation by the signatory to a document that
the signature on the document is his own. For example, the Wills Act 1837 requires
that the testator's signature on the will be made or acknowledged in the presence of
at least two witnesses present at the same time. Since January 1983 it has also been
possible for a witness to acknowledge his signature in the presence of the testator.
acknowledgment and undertaking Confirmation in a *title deed that a
person may see and have copies of relevant deeds not in his possession
(acknowledgment), with a promise from the holder of them to keep them safely
(undertaking). Thus when part of an owner's land is sold, he keeps his deeds to the
whole but in the conveyance gives this acknowledgment and undertaking to the
purchaser, who can then prove his title to the part from copies of the earlier deeds
and by calling for production of the originals. In the majority of cases the vendor
gives the purchaser all title documents relating solely to the land conveyed, and an
acknowledgment and undertaking is only necessary when this does not happen. Note
that personal representatives and fiduciary owners will normally give only an
acknowledgment, no undertaking. Breach of an undertaking gives rise to an action
in damages.
acknowledgment of service A response by a defendant to a claim. A defendant
who intends to contest proceedings brought against him by a claimant must
respond to the claim by filing an acknowledgment of service and/or by filing a
*defence. Acknowledgments of service are used if the defendant is unable to file a
defence within the required time or if the defendant intends to dispute the
jurisdiction of the court, By acknowledging service a defendant is given an extra 14
days for filing the defence. In effect this means that the defendant has a 28-day
period after service of the claim before the defence must be served. Once the
defendant has returned the relevant section of the acknowledgment of service form,
the court must notify the claimant in writing.
ACP states The African, Caribbean, and Pacific states that are associated with the
European Union through the Lome Convention. This convention, which was signed
at Lome (Togo)in 1975, provides for cooperation in matters of commerce between
ACPstates and EU states, including access to the EU market for products from the
ACPcountries. The Convention also provides for cooperation in industrial and
financial matters.
acquiescence n. Express or implied *consent. In law, care must be taken to
distinguish between mere knowledge of a situation and positive consent to it. For
example, in the defence of *volentinon fit injuria an injured party will not be
regarded as having consented to a risk simply because he knew that the risk existed.
acquired rights See RELEVANT TRANSFER.
acquis communautaire [French] The body of *Community legislation by which
all EU member states are bound.
acquittal n. A decision by a court that a defendant accused of a crime is innocent.
A court must acquit a defendant following a verdict of *not guilty or a successful
plea of *autrefois acquit or *autrefois convict. Once acquitted, a defendant cannot be
retried for the same crime on fresh evidence, but an acquittal in a criminal court
does not bind civil courts (for example, in relation to a libel charge against someone
alleging the defendant's guilt).
action n. A proceeding in which a party pursues a legal right in a civil court. See
also IN PERSONAM; IN REM.
active trust (special trust) A trust that imposes duties on the trustee other than
that of merely handing over the trust property to the person entitled to it (compare
BARE TRUST). These duties may impose a specific obligation on the trustee or confer a
discretion on him.
act of God An event due to natural causes (storms, earthquakes, floods, etc.) so
exceptionally severe that no-one could reasonably be expected to anticipate or guard
against it. See FORCE MAJEURE.
Act of Parliament (statute) A document that sets out legal rules and has
(normally) been passed by both Houses of *Parliament in the form of a *Bill and
agreed to by the Crown (see ROYAL ASSENT). Under the Parliament Acts 1911 and 1949,
however, passing of public Bills by the House of Lords can be dispensed with, except
in the case of Bills to extend the duration of Parliament or to confirm provisional
orders. Subject to these exceptions, the Lords can delay Bills passed by the House of
Commons; it cannot block them completely. If the Commons pass a money Bill (for
example, one giving effect to the Budget) and the Lords do not pass it unaltered
within one month, it may be submitted direct for the royal assent. Any other Bill
may receive the royal assent without being passed by the Lords if the Commons pass
it in two consecutive sessions and at least one year elapses between its second
reading in the first session and its third reading in the second.
Every modern Act of Parliament begins with a long title, which summarizes its
aims, and ends with a short title, by which it may be cited in any other document.
The short title includes the calendar year in which the Act receives the royal assent
(e.g. The Competition Act 1998). An alternative method of citation is by the calendar
year together with the Chapter number allotted to the Act on receiving the assent
or, in the case of an Act earlier than 1963, by its regnal year or years and Chapter
number. Regnal years are numbered from the date of a sovereign's accession to the
throne, and an Act is attributed to the year or years covering the session in which it
receives the royal assent. (See alsoENACTING WORDS.) An Act comes into force on the
date of royal assent unless it specifies a different date or provides for the date to be
fixed by ministerial order.
Acts of Parliament are classified by the Queen's Printer as public general Acts,
local Acts, and personal Acts. Public general Acts include all Acts (except those
confirming provisional orders) introduced into Parliament as public Bills. LocalActs
comprise all Acts introduced as private Bills and confined in operation to a
particular area, together with Acts confirming provisional orders. Personal Acts are
Acts introduced as private Bills and applying to private individuals or estates. Acts
are alternatively classified as public Acts or private Acts according to their status
in courts of law. A public Act is judicially noticed (i.e. accepted by the courts as a
matter of general knowledge). A private Act is not, and must be expressly pleaded
by the person relying on it. All Acts since 1850are public unless they specifically
provide otherwise. The printed version of an Act, rather than the version set out on
the HMSOwebsite, is the authentic text, although there are current proposals (2001)
to alter this rule under the Electronic Communications Act 2000.
act of state An act, often involving force, of the executive of a state, or
committed by an agent of a sovereign power with its prior approval or subsequent
ratification, that affects adversely a person who does not owe allegiance to that
power. The courts have power to decide whether or not particular conduct

constitutes such an act, but if it does, they have no jurisdiction to award any
remedy.
actual bodily harm Any hurt or injury calculated to interfere with the health or
comfort of the victim. *Assault causing actual bodily harm is a summary or
indictable offence carrying a maximum punishment of five years' imprisonment.
The hurt need not be serious or permanent in nature, but it must be more than
trifling. It is enough to show that pain or discomfort has been suffered, even
though no bruising is evident. Hysteria brought on as a result of assault is sufficient
for the offence to be proved.
actual military service See PRIVILEGED WILL.
actual notice Knowledge that a person has of rights adverse to his own. If a
purchaser of unregistered land has actual notice of an interest that is not required
to be registered as a land charge, and which will not be overreached on the sale to
him, he will be bound by it. The doctrine of notice plays no part in registered land,
where it has been replaced by the rules of registration. See also CONSTRUCTIVE NOTICE;
IMPUTED NOTICE.
actual total loss (in marine insurance) A loss of a ship or cargo in which the
subject matter is destroyed or damaged to such an extent that it can no longer be
used for its purpose, or when the insured is irretrievably deprived of it. If the ship
or cargo is the subject of a *valued policy, the measure of indemnity is the sum
fixed by the policy; if the policy is unvalued, the measure of indemnity is the
insurable value of the subject insured. Compare CONSTRUCTIVE TOTAL LOSS.
actus reus [Latin: a guilty act] The essential element of a crime that must be
proved to secure a conviction, as opposed to the mental state of the accused (see MENS
REA). In most cases the actus reus will simply be an act (e.g.appropriation of property
is the act of theft) accompanied by specified circumstances (e.g. that the property
belongs to another). Sometimes, however, it may be an *omission to act (e.g. failure
to prevent death may be the actus reus of manslaughter) or it may include a
specified consequence (death resulting within a year being the consequence required
for the actus reus of murder or manslaughter). In certain cases the actus reus may
simply be a state of affairs rather than an act (e.g. being unfit to drive through
drink or drugs when in charge of a motor vehicle on a road).
actus reus non tacit reum nisi mens sit rea [Latin: an act does not make a
person guilty of his crime unless his mind be also guilty] The maxim that forms the
basis for defining the two elements that must be proved before a person can be
convicted of a crime (see ACTUS REUS; MENS REA).
ad colligenda bona [Latin] To collect the goods. The court may grant *letters of
administration ad colligenda bonato any person to deal with specified property in an
estate when that property might be endangered by delay. For example, if part of the
estate consists of perishable goods the court may grant administration ad colligenda
bona to any suitable person to allow him to sell or otherwise deal with those goods
for the benefit of the estate. This is a limited grant only and ceases on the issue of a
full grant of representation to the persons entitled to deal with the whole estate. In
one case, such a grant was issued to the Official Solicitor on an application by the
Inland Revenue when the executors of the deceased's will delayed applying for
probate.
additional voluntary contribution (AVq An additional payment that may be
made by an employee to a pension scheme in order to increase the benefits available
from their pension fund on retirement. AVCs can be paid into an employer's scheme
or into a scheme of the employee's choice (a free-standing AVe); they can be made
free of tax within Inland Revenue limits (see PENSION).
address for service The address, which a party to court proceedings gives to the
court and/or the other party, to which all the formal documents relating to the
proceedings should be delivered. Notices delivered at that address (which may be, for
example, the address of his solicitors) are binding on the party concerned.
ademption n. The cancellation or reduction of a specific *legacy because the
subject matter of the gift is no longer part of the testator's estate at his death, or
the testator no longer has power to dispose of it, or there is nothing conforming to
the description of it in the will. For example, if the will bequeaths a particular
house that the testator sold during his lifetime, or if after making a will giving a
legacy to his child the testator gives the child property constituting a *portion, the
legacy is in each case adeemed. The gift of the house is cancelled and the child's
legacy is reduced by the amount of the portion (see also SATISFACTION). Ademption
need not occur by the testator's own deed; for example, an Act of Parliament that
nationalized a company in which the testator had shares would cause a legacy of
those shares to adeem.
ad idem [Latin: towards the same] Indicates that the parties to a transaction are in
agreement. See CONSENSUS AD IDEM.
ADIZ See AIR DEFENCE IDENTIFICATION ZONE.
adjective law The part of the law that deals with practice and procedure in the
courts. Compare SUBSTANTIVE LAW.
adjournment n. (in court procedure) The postponement or suspension of the
hearing of a case until a future date. The hearing may be adjourned to a fixed date
or sine die (without day), i.e. for an indefinite period. If an adjournment is granted at
the request of a party the court may attach conditions, e.g. relating to the payment
of any *costs thrown away.
adjudication n. 1. The formal judgment or decision of a court or tribunal. 2. A
decision by the Commissioners of Inland Revenue as to the amount (if any) of
*stamp duty payable on a written document.
adjudication order Formerly, a court order that made a debtor bankrupt. See
BANKRUPTCY ORDER.
adjustment n. 1. The determination of the amount due under a policy of
insurance. 2. The working out by an average adjuster of the rights and liabilities
arising in a case of general *average.
ad litem [Latin] For the suit. A grant ad litem is the appointment by a court of a
person to act on behalf of an estate in court proceedings, when the estate's proper
representatives are unable or unwilling to act. For example, the Official Solicitor
may be appointed administrator ad litem when a person wishes to claim under the
Inheritance (Provision for Family and Dependants) Act 1975(see FAMILY PROVISION) but
the personal representatives are not willing to act, or nobody is entitled to a grant,
or the only person entitled to a grant is the litigant himself. A guardian ad litem is
the former name for a *children's guardian.
administration n. 1. The collection of assets, payment of debts, and distribution
to the beneficiaries of property in the estate of a deceased person. See also GRANT OF
REPRESENTATION. 2. The granting of *letters of administration to the estate of a

deceased person to an *administrator, when there is no executor under the will.
3. The process of carrying out duties imposed by a trust in connection with the
property of a person of unsound mind or a bankrupt.
administration action Proceedings instituted in court by a personal
representative or any other person interested in the estate of a deceased person to
obtain a *grant of representation.
administration bond A guarantee by a third party, often an insurance company,
to make good any loss arising if a person to whom letters of administration have
been granted fails to deal properly with the estate. The court usually requires an
administration bond as a condition of granting letters of administration only when
the beneficiaries are considered to need special protection, e.g. when the
administrator lives abroad or where there has been a dispute as to who should
administer the estate.
administration of poison See POISON.
administration order 1. An order made in a county court for the administration
of the estate of a judgment debtor. The order normally requires the debtor to pay
his debts by instalments: so long as he does so, the creditors referred to in the order
cannot enforce their individual claims by other methods without the leave of the
court. Administration orders are issued when the debtor has multiple debts but it is
thought that his bankruptcy can be avoided.
2. An order made by the court under the Insolvency Act 1986, directing that, during
the period for which it is in force, the affairs, business, and property of a company
shall be managed by a person appointed by the court (known as the administrator).
In order for the court to grant such an order it must be satisfied that the company
cannot or is unlikely to be able to pay its debts when due and that the order is likely
to allow (1) the survival of the company, or (2) the approval of a *voluntary
arrangement, or (3) a more favourable realization of its assets than would be
possible under a *winding-up or through an arrangement with creditors.
The Insolvency Act does not specify a period for the duration of the order: it
remains in force until the administrator is discharged, by the court, having achieved
the purpose(s) for which the order was granted or having decided that the purpose
cannot be achieved.
While the order is in force the company may not be wound up; no steps may be
taken to enforce any security over the company's property or to repossess goods in
the company's possession, except with the leave of the court, and no other
proceedings or other legal processes may be initiated or continued, against the
company or its property, except with the court's leave.
administration pending suit Administration of a deceased person's estate by a
person appointed by the High Court (the administrator pending suit) when legal
proceedings are pending concerning the validity of the will or for obtaining,
recalling, or revoking any grant. An administrator pending suit has all the rights,
powers, and duties of a general administrator except that he may not distribute any
part of the estate without the leave of the court.
administrative letter See COMFORT LETTER.
administrative powers Discretionary powers of an executive nature that are
conferred by legislation on government ministers, public and local authorities, and
other bodies and persons for the purpose of giving detailed effect to broadly
defined policy. Examples include powers to acquire land compulsorily, to grant or
refuse licences or consents, and to determine the precise nature and extent of
services to be provided. Administrative powers are found in every sphere of public
administration, including town and country planning, the regulation of public
health and other environmental matters, the functioning of the welfare services,
and the control of many trades, professions, and other activities. Their exercise is
subject to judicial control by means of the doctrine of *ultra vires.
administrative receiver A *receiver who, under the terms of a debenture
secured by floating *charge, takes control of all (or substantially all) of a company's
assets. See also INSOLVENCY PRACTITIONER.
administrative tribunal A body established by or under Act of Parliament to
decide claims and disputes arising in connection with the administration of
legislative schemes, normally of a welfare or regulatory nature. Examples are
*employment tribunals and *rent assessment committees. They exist outside the
ordinary courts of law, but their decisions are subject to judicial control by means
of the doctrine of *ultra vires and in cases of *error of law on the face of the record.
Compare DOMESTIC TRIBUNAL. See also COUNCIL ON TRIBUNALS.
administrator n. 1. A person appointed by the court to collect and distribute a
deceased person's estate when the deceased died intestate, his will did not appoint an
executor, or the executor refuses to act. An administrator's authority to deal with
the estate does not begin until the court has granted *letters of administration. The
Administration of Estates Act 1925lays down the order in which people are entitled
to a grant of representation. Compare EXECUTOR. 2. See ADMINISTRATION ORDER.
Admiralty Court A court forming part of the *Queen's Bench Division of the
High Court whose jurisdiction embraces civil actions relating to ships and the sea.
*Puisne judges hear cases with the assistance of nautical assessors. The court's work
includes cases about collisions, damage to cargo, prizes (see PRIZE COURT), and salvage,
and in some cases *assessors may be called in to sit with the judge. The distinctive
feature of the court's procedure is the action *in rem, under which the property
that has given rise to the cause of action (usually a ship) may be "arrested" and held
by the court to satisfy the claimant's claim. In practice, it is usual for the owners of
the property to give security for its release while the action is proceeding. If the
claim is successful, the property held or the sum given by way of security is
available to satisfy the judgment. Until 1971 the Admiralty Court was part of the
*Probate, Divorce and Admiralty Division of the High Court. Since the Access to
Justice Act 1999, all Admiralty proceedings will be allocated to the *multi-track.
admissibility of evidence The principles determining whether or not particular
items of evidence may be received by the court. The central principle of
admissibility is *relevance. All irrelevant evidence is inadmissible, but evidence that
is legally relevant may also be inadmissible if it falls within the scope of one of the
*exclusionary rules of evidence. See also CONDITIONAL ADMISSIBILITY; MULTIPLE
ADMISSIBILITY.
admissibility of records In civil cases documents containing information
(records) are admissible as evidence of the facts stated in them. Before the
introduction of the Civil Evidence Act 1995, such documents and records were
admissible only if they came within an exception to the rules prohibiting the use of
hearsay evidence. Since 1995 the hearsay rules in civil cases have been abolished and
accordingly these records are admissible. In criminal cases the hearsay rules in
relation to business documents have been relaxed, although not completely
abolished, by the Criminal Justice Act 1988.Under these provisions, such records are

admissible if they have been compiled by someone acting in the course of a duty to
do so.
admission n. 1. In civil proceedings, a statement by a party to litigation or by his
duly authorized agent that is adverse to the party's case. Admissions may be
informal (i.e. in a document or by word of mouth) or formal (i.e. made in a
statement of case or in reply to a request for further information). An admission
may be related to the court by someone other than the person who made it under
an exception to the rule against *hearsay evidence. 2. In criminal proceedings, a
statement admitting an offence or a fact that constitutes legally acceptable evidence
of the offence or fact. Admissions may be informal or formal. An informal
admission is called a *confession. A formal admission may be made either before or
at the hearing, but if not made in court, it must be in writing and signed by the
defendant or his legal adviser. An admission may be made in respect of any fact
about which *oral evidence could be given and is *conclusive evidence of the fact
admitted at all criminal proceedings relating to the matter, although it may be
withdrawn at any stage with the permission of the court. A plea of guilty to a
charge read out in court is a formal admission. See also CAUTION.
admonition n. A reprimand from a judge to a defendant who has been discharged
from the further prosecution of an offence.
adoption n. 1. The process by which a parent's legal rights and duties in respect of
an unmarried minor are transferred to another person or persons. Adoption can
only take place by means of an adoption order made by a magistrates' court (in the
family proceedings court), county court, or the High Court (in the Children Branch
of the Family Division). Adoption differs from fostering in that it affects all the
parents' rights and duties and it is a permanent change. After adoption the natural
parents are (except for the rules relating to *affinityand *incest) no longer
considered in law to be the parents of the child, who is henceforth regarded as the
legal child of the adoptive parents (see alsoADOPTIVE RELATIONSHIP). However, the
court may make a contact order (see SECTION 8 ORDERS) at the time the adoption
order is made. Contact after adoption is becoming a contentious issue and recently
the court has allowed a natural parent to seek permission to apply for a contact
order in respect of an adopted child.
The first (but not the only) consideration in deciding whether or not a child
should be adopted is whether the adoption would safeguard and promote the
welfare of the child. The court must, if possible, try to ascertain the child's wishes
and in addition take account of all the circumstances. This may involve consulting
expert opinion (e.g. of psychiatrists or social workers). The court may also appoint a
"children's guardian to act in the child's interests. There are many provisions in the
Adoption Act 1976 as amended by the Children Act 1989 designed to make sure that
an adoption would be in the child's best interests. Every local authority must set up
an *adoption service, and *adoption societies are carefully controlled; in addition,
the government is anxious to increase the adoption of children who are currently in
the care of the local authority. There are rules as to who may adopt and who may be
adopted and provisions for a probationary period, during which the child lives with
the would-be adopter(s) and the court assesses whether he gets on well with them.
One of the ways in which a commissioning couple may attain the legal status of
parents in relation to a child born to a surrogate mother is by adopting the child;
however, this is becoming less common now that the couple can apply for a *section
30 order (parental order) under the Human Embryology and Fertilization Act 1990.
See SURROGACY; HUMAN ASSISTED REPRODUCTION.
Normally a child cannot be adopted without the consent of each of its parents or
guardians, but in some cases the court may make an adoption order without the
parents' consent (e.g. if they cannot be found or have ill-treated the child). If the
court thinks that the parents are refusing unreasonably to agree to an adoption that
would be in the child's best interests, it may make an adoption order against the
parents' wishes. A parent may consent either to a specific adoption or to an order
*freeing for adoption by whomever the court eventually decides is best suited to
adopt the child. Since the Children Act 1989 the courts now have the option of
making a section 8 order either instead of an adoption order, so that parental
responsibility may be shared (e.g.a residence order), or in addition to it (e.g.a contact
order). Adoption law is currently under review and there are recommendations to
make it a duty of the court, when considering whether to make an adoption order,
to consider alternative orders available under the Children Act, and to bring
adoption law in line with the principles of the Act by making the child's welfare of
paramount importance in adoption proceedings. In addition, a court will be able to
dispense with parental consent if the welfare of the child demands this.
The Registrar General must keep a register containing details of all adoption
orders, whic~ any member of the public may consult. An adopted child over the age
of 18 has a right to see a copy of his original birth certificate in order to find out
who his natural parents are. Although natural parents can register their interest in
contacting their children who have been adopted, they have no corresponding right
to trace these adopted children.
2. Reliance by a court on a rule of international law that has not been expressly
made part of the law of the land but is not inconsistent with it.
3. The decision of a local authority or similar body to bring into force in their area
an Act of Parliament conferring powers on them at their option.
adoption. agency. A local authority or an approved *adoption society. Usually
only adoption agencies may make arrangements for adoption.
Adoption Contact Register A register, maintained by the Registrar General.
containing the names and addresses of all adopted persons who are over the age of
18: have a copy of their birth certificate, and wish to contact a relative, together
WIth details of relatives who wish to make contact with an adopted person.
adoption order See ADOPTION.
adoption service Under the Adoption Act 1976, the different services, collectively,
that local authorities must provide within their area in order to meet the needs of
"adoption. These services include provision of accommodation for pregnant women
and mothers, making arrangements for placing children with prospective adopters,
and advising people with adoption problems.
adoption society A group of people organized to make arrangements for the
*adoption of children. Adoption societies must be approved by the Secretary of State
before acting as such.
adoptive leave See PARENTAL LEAVE.
adoptive relationship A legal relationship created as a result of an adoption
order (see ADOPTION). A male adopter is known as the adoptive father, a female
adopter as the adoptive mother, and other relatives as adoptive relatives. The
laws of *affinity are, however, not altered by the new adoptive relationship.
ADR See ALTERNATIVE DISPUTE RESOLUTION.
ad referendum [Latin: to be further considered] Denoting a contract that has
been signed although minor points remain to be decided.

adulteration n. The mixing of other substances with food. It is an offence of
*strict liability under the Food Act 1984 to sell any food containing a substance that
would endanger health. It is also an offence to mix dangerous substances into food
with the intention of selling the mixture.
adultery ti. An act of sexual intercourse between a male and female not married
to each other, when at least one of them is married to someone else. Intercourse for
this purpose means penetration of the vagina by the penis; any degree of
penetration will suffice (full penetration is not necessary). Adultery is one of the
five facts that a petitioner may rely on under the Matrimonial Causes Act 1973as
evidence to show that the marriage has irretrievably broken down. However, in
addition to the adultery, the petitioner must show that she or he finds it intolerable
to live with the respondent. See DIVORCE.
advance corporation tax (ACT) A form of *corporation tax payable by a
company on its qualifying distributions from April 1973 until April 1999, when it
was abolished.
advancement n. 1. The power, in a trust, to provide capital sums for the benefit
of a person who is an infant or who may (but is not certain to) receive the property
under a settlement. The term is a shortened form of advancement in the world
and has the connotation of providing a single or lump sum from the trust fund for
a specific purpose of a permanent nature; examples include sums payable on
marriage, to buy a house for the beneficiary, or to establish the beneficiary in a
trade or profession. Before 1926, a power of advancement had to be specifically
included in any settlement; since 1925a statutory power exists, subject to contrary
intention. No person may receive by way of advancement more than half that to
which he could ever become entitled. 2. A presumption, arising in certain
circumstances, that if one person purchases property in the name of another, the
property is intended for the advancement of that other person and will be held
beneficially by that person and not on *resulting trust for the person who
purchases it. The presumption of advancement arises when a father or other person
in the position of a parent purchases property for a child. The presumption does not
automatically arise in the case of a mother because until 1882 a married woman
could not, during marriage, own property; her automatic exclusion from the
presumption now seems nonsensical (especially as a mother now has a statutory
duty to maintain her children), although she will in many cases be found to be "in
the position of a parent". A similar presumption has been held to exist when a
husband purchases property for his wife (though not viceversa), and occasionally a
man for his mistress, but the strength (and perhaps even the existence) of this
presumption is doubtful. The presumption may be rebutted by evidence that
advancement was not intended. This evidence may be parol evidence (i.e, given
orally).
adversary procedure See ACCUSATORIAL PROCEDURE.
adverse occupation Occupation of premises by a trespasser to the exclusion of
the owner or lawful occupier. *Trespass in itself is not usually a criminal offence,
but if the premises are residential and were being occupied, the trespasser (whether
or not he used force in order to enter) is guilty of an offence under the Criminal
Law Act 1977if he refuses to leave when asked to do so by the displaced *residential
occupier or a protected intending occupier (or by someone acting on behalf of
them). A protected intending occupier includes a purchaser, someone let in by the
local authority, Housing Corporation, or a housing association with written evidence
of his claim to the premises, or someone holding a lease, tenancy, or licence with
two years to run. Under the Criminal Justice and Public Order Act 1994, such a
person may obtain an interim possession order. This differs from an ordinary
possession order in that it is much quicker, may be heard in the absence of those on
the property, and involves the police in enforcement. It is only available for
buildings and ancillary land and not against those, such as gypsies and New Age
Travellers, who occupy open land. Once the proper procedure has been followed and
the applicant has shown a good case for possession, an order will require those on
the land to leave within 24 hours. Remaining on the premises or re-entry within 12
months is a *summary offence, punishable by a *fine on level 5 and/or six months'
imprisonment. A uniformed constable has a power of *arrest, It is also an offence to
make false or misleading statements in making or resisting such an order. Similar
penalties apply on summary conviction, but on *indictment a maximum of two
years' imprisonment and/or a fine may be imposed.
Usually it is a summary offence for a stranger or the landlord to use violence to
gain entry to premises when it is known that there is someone on those premises
opposed to such an entry. However, a displaced residential occupier or a protected
intending occupier who has asked the person to leave may call on the police for
assistance. A police constable may arrest anyone who refuses to leave for the
*summary offence of adverse occupation of residential premises. Furthermore, it is
not an offence if a constable, a displaced residential occupier, or a protected
intending occupier (or their agents) uses force to secure entry. See FORCIBLE ENTRY.
adverse possession The occupation of land to which another person has title
with the intention of possessing it as one's own. The adverse possessor must occupy
the land as if he were entitled to it to the exclusion of all others, and must intend
to occupy it as his own. Both these factors must be evidenced by the use made of the
land; for example, cultivation, fencing, etc. Equivocal acts, such as use of the land for
grazing animals from time to time or allowing children to play on the land, will not
be sufficient. After 12 years' adverse possession, the original owner's title becomes
statute-barred by the Limitation Act 1980,and he cannot recover his land from the
adverse possessor. The adverse possessor becomes the lawful owner (a squatter's
title), and is entitled to be registered as such. The law on adverse possession is
frequently used to cure small discrepancies in the plan attached to a transfer of
land, and the actual position of boundaries on the ground, but it can also be used to
obtain ownership of large areas of land. See also POSSESSORY TITLE.
adverse witness A witness who gives evidence unfavourable to the party who
called him. If the witness's evidence is merely unfavourable he may not be
impeached (i.e. his credibility may not be attacked) by the party calling him, but
contradictory evidence may be called. If, however, the witness is *hostile he may be
impeached by introducing evidence that shows his untruthfulness.
advice on evidence The written opinion of counsel, usually prepared after
*disclosure and inspection of documents, identifying the issues raised in the
statements of case and advising counsel's instructing solicitor what evidence it will
be necessary to call at the trial.
advisory jurisdiction The jurisdiction of the INTERNATIONAL COURT OF JUSTICE
under which it can render legal opinions, similar in kind to declaration (see
DECLARATORY JUDGMENT) under English municipal law. In contrast to the contentious
jurisdiction of the Court, states are not parties to the proceedings and there is no
claimant or defendant to the action. The Court proceeds by inviting states or
international organizations to provide information to assist the Court in its
determination of point of law at issue.

The authority of the International Court of Justice to give advisory opinions is
found under Article 96 of the UN Charter. Under this Article the Court is
empowered to give such opinions on legal questions at the request of the UN
Security Councilor the General Assembly. Moreover, the power to request advisory
opinions on legal questions arising within the scope of their activities also resides in
other organs of the United Nations and its specialized agencies if they have been
authorized by the General Assembly to do so.
advocacy qualification A qualification authorizing a person to act as an
*advocate under the provisions of the Courts and Legal Services Act 1990. There are
separate qualifications for different levels of the court system, but the rights of
those already entitled to appear as advocates at any level of the system at the time
when the Act came into force are preserved.
advocate n. 1. One who exercises a *right of audience and argues a case for a
client in legal proceedings. In magistrates' courts and the county courts both
*barristers and *solicitors have the right to appear as advocates. In most Crown
Court centres, the High Court, the Court of Appeal, and the House of Lords
barristers have exclusive rights of audience. However, the provisions of the Courts
and Legal Services Act 1990allows solicitors with appropriate experience to qualify
for rights of audience similar to those of barristers and acquire *advocacy
qualifications for the Crown Court, High Court, and Supreme Court. In many
tribunals there are no rules concerning representation, and laymen may appear as
advocates. Advocates no longer enjoy immunity from law suits for negligence in
relation to civil or criminal litigation. 2. In Scotland, a member of the Faculty of
Advocates, the professional organization of the Scots Bar.
Advocate General An assistant to the judge of the *European Court of Justice
whose function is to assist the court by presenting opinions upon every case
brought before it. The Advocate General acts as an *amicus curiaein putting forward
arguments based upon his own view of the interests of the European Union,
although it is not open to any of the parties to the legal action to submit
observations on his opinion.
advowson n. A right of presenting a clergyman to an ecclesiastical living. The
advowson is an incorporeal *hereditament that gives the owner (or patron) the right
to nominate the next holder of a living that has fallen vacant. It may exist in gross
(i.e. independently of any ownership of land by the person entitled) or may be
appendent (i.e. annexed to land so that it may be enjoyed by each owner for the
time being). The right is usually associated with the lordship of a manor.
aequitas est quasi aequalitas See EQUALITY IS EQUITY.
affidavit n. A sworn written statement used mainly to support certain
applications and, in some circumstances, as evidence in court proceedings. The
person who makes the affidavit must swear or *affirm that the contents are true
before a person authorized to take oaths in respect of the particular kind of
affidavit. See also ARGUMENTATIVE AFFIDAVIT.
affiliation order Formerly, an order of a magistrates' court against a man alleged
to be the father of an illegitimate child, obliging him to make payments towards
the upkeep of the child. Affiliation proceedings have been abolished by the Family
Law Reform Act 1987and financial provision for illegitimate and legitimate children
is now the same (see CHILD SUPPORT MAINTENANCE).
affinity n. The relationship created by marriage between a husband and his wife's
blood relatives or between a wife and her husband's blood relatives. Some categories
of people related by affinity are forbidden to marry each other (see PROHIBITED
DEGREES OF RELATIONSHIPS). The relationship of blood relatives is known as
*consanguinity. See also INCEST.
affirm vb. 1. To confirm a legal decision, particularly (of an appeal court) to
confirm a judgment made in a lower court. 2. To promise in solemn form to tell the
truth while giving evidence or when making an *affidavit. Under the Oaths Act
1978, any person who objects to being sworn on *oath, or in respect of whom it is
not reasonably practicable to administer an oath, may instead affirm. Affirmation
has the same legal effects as the taking of an oath. 3. To treat a contract as
continuing in existence, instead of exercising a right to rescind it for
*misrepresentation or other cause (see VOIDABLE CONTRACT) or to treat it as discharged
by reason of repudiation or breach (see BREACH OF CONTRACT). Affirmation is effective
only if it takes place with full knowledge of the facts. It may take the form of an
express declaration of intention to proceed with the contract; alternatively, that
intention may be inferred from conduct (if, for example, the party attempts to sell
goods that have been delivered under a contract voidable for misrepresentation).
Lapse of time without seeking a remedy may be treated as evidence of affirmation.
affirmative pregnant An allegation in a statement of case implying or not
denying some negative. Compare NEGATIVE PREGNANT.
affirmative resolution See DELEGATED LEGISLATION.
affray n. The offence of intentionally using or threatening, other than by words
alone, unlawful violence. The conduct must be such as would have caused a
reasonable person to fear for his safety, though no such person need be present. The
offence is found in the Public Order Act 1986,though it can be committed in private
as well as in public places. It replaces the common-law offence of affray and is
punishable on indictment with up to three years' imprisonment and/or a fine or, on
summary conviction, by imprisonment for a term not exceeding six months or by a
fine. A constable may arrest without warrant anyone he reasonable suspects is
committing affray. See alsoASSAULT; RIOT; VIOLENT DISORDER.
affreightment n. A contract for the carriage of goods by sea (the consideration
being called freight and the carrier the freighter). It can be either a *charterparty
or a contract whose terms are set out in the *bill of lading.
AG See ATTORNEY GENERAL.
agency n. 1. The relationship between an *agent and his principal. 2. The business
carried on by an agent.
agent n. 1. A person appointed by another (the principal) to act on his behalf,
often to negotiate a contract between the principal and a third party. If an agent
discloses his principal's name (or at least the existence of a principal) to the third
party with whom he is dealing, the agent himself is not normally entitled to the
benefit of, or be liable on, the contract. An undisclosedprincipal is one whose
existence is not revealed by the agent to a third party; he may still be entitled to the
benefit of, and be liable on, the contract, but in such cases the agent is also entitled
and liable. However, an undisclosed principal may not be entitled to the benefit of a
contract if the agency is inconsistent with the terms of the contract or if the third
party shows that he wished to contract with the agent personally.
A general agent is one who has authority to act for his principal in all his
business of a particular kind, or who acts for the principal in the course of his (the

agent's) usual business or profession. A special agent is authorized to act only for a
special purpose that is not in the ordinary course of the agent's business or
profession. The principal of a general agent is bound by acts of the agent that are
incidental to the ordinary conduct of the agent's business or the effective
performance of his duties, even if the principal has imposed limitations on the
agent's authority. But in the case of a special agent, the principal is not bound by
acts that are not within the authority conferred. In either case, the principal may
ratify an unauthorized contract. An agent for the sale of goods sometimes agrees to
protect his principal against the risk of the buyer's insolvency. He does this by
undertaking liability for the unjustifiable failure of the third-party buyer to pay
the price of the goods. Such an agent is called a del credere agent. See also
COMMERCIAL AGENT; MERCANTILE AGENT.
2. (in criminal law) See BUGGERY.
agent provocateur A person who actively entices, encourages, or persuades
someone to commit a crime that would not otherwise have been committed for the
purpose of securing his conviction (see ENTRAPMENT). In such a case the agent
provocateur will be regarded as an accomplice in any offence that the accused
commits as a result of this intervention.
age of consent The age at which a girl can legally consent to sexual intercourse,
or to an act that would otherwise constitute an indecent assault. This age is 16. This
minimum age limit does not apply to girls married under a foreign law that is
recognized in English law. See also BUGGERY.
aggravated assault See ASSAULT.
aggravated burglary See BURGLARY.
aggravated damages *Damages that are awarded when the conduct of the
defendant or the surrounding circumstances increase the injury to the claimant by
subjecting him to humiliation, distress, or embarrassment, particularly in such torts
as assault, false imprisonment, and defamation.
aggravated trespass See TRESPASS.
aggravated vehicle-taking An offence concerning joyriding, which was
enacted in 1992.The offence arises when the accused has unlawfully taken a motor
vehicle, driven it in a dangerous manner on a public road, and caused an accident
resulting in injury to another person or to property. Any passenger in the vehicle
who knows that it has been taken without the owner's consent is also guilty of the
offence.
aggression n. (in international law) According to the General Assembly Resolution
(3314) on the Definition of Aggression 1975, the use of armed force by one state
against the sovereignty, territorial integrity, or political independence of another
state or in any way inconsistent with the Charter of the United Nations. The
Resolution lists examples of aggression, which include the following. (1) Invasion,
attack, military occupation, or annexation of the territory of any state by the armed
forces of another state. (2)Bombardment or the use of any weapons by a state
against another state's territory. (3)Armed blockade by a state of another state's
ports or coasts. (4)The use of a state's armed forces in another state in breach of the
terms of the agreement on which they were allowed into that state. (5) Allowing
one's territory to be placed at the disposal of another state, to be used by that state
for committing an act of aggression against a third state. (6)Sending armed bands
or guerrillas to carry out armed raids on another state that are grave enough to
amount to any of the above acts.
The first use of armed force by a state in contravention of the UN Charter is
prima facie evidence of aggression, although the final decision in such cases is left
to the Security Council, who may also classify other acts as aggression. The
Resolution declares that no consideration whatsoever can justify aggression, that
territory cannot be acquired by acts of aggression, and that wars of aggression
constitute a crime against international peace. See alsoHUMANITARIAN INTERVENTION;
MARTENS CLAUSE; OCCUPATION; OFFENCES AGAINST INTERNATIONAL LAW AND ORDER; USE OF
FORCE; WAR; WAR CRIMES.
agreement n. (in international law) See TREATY.
agreement for a lease A contract to enter into a *lease. Special rules govern the
creation of such a contract. Before 27 September 1989,a contract to grant a lease was
unenforceable unless it was evidenced in writing, or evidenced by a sufficient act of
*part performance (such as entering onto the property and paying rent). Since 27
September 1989, a contract to grant a lease for not more than three years may be
made orally or by any kind of written agreement. A contract to grant a longer lease
must be in writing, incorporating all the terms of the agreement, and signed by the
parties. A contract that does not comply with these requirements is wholly void and
can no longer be evidenced by part performance.
agrement n. The formal diplomatic notification by a state that the diplomatic
agent selected to be sent to it by another state has been accepted, i.e. is persona grata
and can consequently become accredited to it. The agrement is the reply to a query
by the sending state, which precedes the sent diplomat's formal nomination and
accreditation. This type of mutual exchange by two states over their diplomatic
representation is called agreation. See also PERSONA NON GRATA.
agricultural dwelling-house advisory committee (ADHAC) A committee
that advises the local authority in its area on the agricultural need for *tied
cottages. An owner of a tied cottage can apply to a local authority to rehouse a
former worker who is occupying the cottage. The local authority has a duty to do
this if the committee advises that possession is needed in the interests of efficient
agriculture. See also ASSURED AGRICULTURAL OCCUPANCY.
agricultural holding A tenancy of agricultural land. Tenants have special
statutory protection and there is a procedure to fix rent by arbitration if the parties
cannot agree. The landlord normally has to give at least one year's notice to quit.
The tenant can usually appeal to an *agriculturalland tribunal to decide whether
the notice to quit should operate. The landlord is entitled to compensation at the
end of the tenancy if the holding has deteriorated and the tenant is at fault; the
tenant can claim compensation at the end of the tenancy for disturbance and for
improvements he has made. The Agricultural Holdings Act 1986 gives the security of
tenure. Tenancies and licences to those working the land may give security of
tenure under the Housing Act 1988if the tenants are qualifying workers (working
on the land as defined in the Act) and otherwise qualify. See ASSURED AGRICULTURAL
OCCUPANCY.
agricultural land tribunal A tribunal having statutory functions in relation to
tenancies of agricultural holdings. It normally consists of a legally qualified
chairman, a representative farmer, and a representative landowner. Notice to quit a
holding is in certain circumstances inoperative without a tribunal's consent, and on
the death of a tenant the tribunal has power to direct that a qualifying member of

his family is entitled to a new tenancy. Application may also be made to the tribunal
for a certificate of bad husbandry.
aid and abet To assist in the performance of a crime either before or during (but
not after) its commission. Aiding usually refers to material assistance (e.g.providing
the tools for the crime), and abetting to lesser assistance (e.g.acting as a look-out or
driving a car to the scene of the crime). Aiders and abettors are liable to be tried as
*accessories. Mere presence at the scene of a crime is not regarded as aiding and
abetting. It is unnecessary to have a criminal motive to be guilty of aiding and
abetting: knowledge that one is assisting the criminal is sufficient. See also IMPEDING
APPREHENSION OR PROSECUTION.
Air Defence Identification Zone (ADIZ) A zone, which can extend in some
cases up to 300 miles beyond the territorial sea, established for security reasons by
some states off their coasts. When entering the ADIZ all aircraft are required to
identify themselves, report flight plans, and inform ground control of their exact
position. See also AIRSPACE.
air-force law See SERVICE LAW.
air pollution See POLLUTION.
airspace n. In English law and international law, the ownership of land includes
ownership of the airspace above it, by application of the maxim cujus est solum ejus
est usque ad coelum (whose is the soil, his it is even to heaven); outer space, however,
is not considered to be subject to ownership.
In English law an owner has rights in as much of the airspace above his land as is
necessary for the ordinary use of his land and the structures on it. Within these
limits a projection over one's land (such as a signboard) can be a trespass and
pollution of air by one's neighbour can be a nuisance. Pollution of air is also
controlled by various statutes. There is no natural right to the free flow of air from
neighbouring land, but *easements for the flow of air through a defined opening
(such as a window or a ventilator) can be acquired. Civil aircraft flying at a
reasonable height over land do not commit trespass, but damages can be obtained if
material loss or damage is caused to people or property.
In international law, national airspace, including airspace above the internal
waters and the territorial sea, is under complete and exclusive sovereignty of the
subjacent state. As a result, apart from aircraft in distress, any use of national
airspace by non-national aircraft requires the official consent of the state concerned.
This can be granted unilaterally or more commonly (in respect of commercial
flights) through a bilateral treaty, usually on conditions of reciprocity. See
TERRITORIAL WATERS.
alderman n. A senior member of a local authority, elected by its directly elected
members. Active aldermanic rank now exists only in the *City of London, having
been phased out elsewhere by the Local Government Act 1972.County, district, and
London borough councils can, however, appoint past members to honorary rank in
recognition of eminent service. The term was originally synonymous with 'elder'
and is of Anglo-Saxon derivation.
alibi n. [from Latin: elsewhere] A defence to a criminal charge alleging that the
defendant was not at the place at which the crime was committed and so could not
have been responsible for it. If the defendant claims to have been at a particular
place at the time of the crime, evidence in support of an alibi may only be given if
the defendant has supplied particulars of it to the prosecution not later than seven
days after committal, unless the Crown Court considers that there was a valid
reason for not supplying them.
alien n. A person who, under the law of a particular state, is not a citizen of that
state. Aliens are usually classified as resident aliens (domiciled in the host country)
or transient aliens (temporarily in the host country on business, study, etc.). They
are normally subject to certain civil disabilities, such as being ineligible to vote. For
the purposes of UK statute law an alien is defined by the British Nationality Act 1981
(in force from 1 January 1983)as a person who is neither a Commonwealth citizen,
nor a British protected person, nor a citizen of the Republic of Ireland. At common
law, a distinction is drawn between friendly and enemy aliens. The latter comprise
not only citizens of hostile states but also all others voluntarily living in enemy
territory or carrying on business there; they are subject to additional disabilities. See
also ALLEGIANCE; DUE DILIGENCE; JUs SANGUINIS.
alienable adj. Capable of being transferred: used particularly in relation to real
property. See also RULE AGAINST INALIENABILITY.
alienation n. The transfer of property (particularly real property) from one person
to another. See also RESTRAINT ON ALIENATION.
alieni juris [Latin: of another's right] Describing the status of a person who is not
of full age and capacity. Compare SUI JURIS.
alimentary trust See PROTECTIVE TRUST.
alimony n. Formerly, financial provision made by a husband to his wife when they
are living apart. Alimony is now known as *maintenance or *financial provision.
allegation n. Any statement of fact in a statement of case, *affidavit, or
*indictment. In civil cases it is the duty of the party who makes an allegation to
adduce evidence in support of it at trial, under the principle of "he who asserts
must prove".
allegiance n. The duty of obedience owed to a head of state in return for his
protection. It is due from all citizens of that state and its dependencies and also
from any *alien present in the state (including enemy aliens under licence; for
example, internees). A person who is declared by the British Nationality Act 1981not
to be an alien but who has a primary citizenship conferred by a state other than the
UK is probably governed by the same principles as aliens so far as allegiance is
concerned.
allocation n. The stage in civil litigation when a decision is made as to how the
case is to be dealt with. After each of the parties has completed and filed an
*allocation questionnaire, allocation is made to one of three tracks: (1) the *small
claims track for cases worth less than £5000; (2) the *fast track for cases worth
between £5000 and £15,000; and (3)the *multi-track for cases worth more than
£15,000. After allocation has taken place, the court will proceed to give standard
directions as to how the case should proceed. This stage was formerly (before the
introduction of the Civil Procedure Rules in 1999) referred to as setting down for
trial. See also CASE MANAGEMENT.
~lIocation questionnaire A questionnaire that (except in certain circumstances)
IS served on both parties in civil litigation when the defendant has filed a defence.
The completion of this document enables the court to allocate the case to the most
~ppropriate track (see ALLOCATION). The completed form will contain such
mformation as the monetary value of the claim, the complexity of the case, the
number of litigants involved, whether there are any counterclaims, the parties

track of choice, whether time is needed to allow for settlement (known as a 'stay'),
and whether all or any applicable *pre-action protocols have been observed.
Failure to complete the questionnaire and return it to the appropriate place by
the date specified may lead to the claim being struck out. On receipt, the court will
allocate the case to a track, primarily based on the value of the claim but also
considering the other information supplied in the questionnaire.
allotment n. A method of acquiring previously unissued shares in a *Iimited
company in exchange for a contribution of capital. An application for such shares
will often be made after the issue of a *prospectus on the *flotation of a *public
company or on the privatization of a state-owned industry. The company accepts the
application by dispatching a letter of allotment to the applicant stating how many
shares he has been allotted; he then has an unconditional right to be entered in the
*register of members in respect of those shares. If he has been allotted fewer shares
than he has applied for, he receives a cheque for the unallotted balance (an
application must be accompanied by a cheque for the full value of the shares
applied for). See alsoAUTHORIZED CAPITAL; RETURN.
alteration n. A change that, when made in a legal document, may affect its
validity. An alteration in a will is presumed to have been made after execution and
will therefore be invalid. However, it will be valid if it is proved to have been made
before execution or if it was executed in the same way as the will itself. If the
alteration is duly attested by the testator and the witnesses placing their initials or
signatures by it, it is presumed to be valid. If an invalid alteration completely
obliterates the original words, it is treated as a blank space. If the original words can
still be read, they remain effective. Alterations in deeds are presumed to have been
made before exec~tion. Alterations made after execution do not affect the validity
of the deed If their purpose IS to correct an obvious error. If, however, a material
alteration is made to a deed after execution without the consent of the parties, the
deed may become void in part. See alsoAMENDMENT.
alteration of share capital An increase, reduction (see REDUCTION OF CAPITAL), or
any other change in the *authorized capital of a company. If permitted by the
*article~ of association, a limited company can increase its authorized capital as
appropnate. It c~n also rearrange its existing authorized capital (e.g. by consolidating
100 shares of £1 mto 25 shares of £4 or by subdividing 100 shares of £1 into 200 of
50p) and cancel unissued shares. These are reserved powers (see GENERAL MEETING),
exercised - unless the articles of association provide otherwise - by an *ordinary
resolution,
alternative dispute resolution (ADR) Any of a variety of techniques for
resolving civil disputes without the need for conventional litigation. It may include
mini-trial (a shortened and simplified form of court hearing), informal methods of
*arbitration, and structured forms of conciliation using a specially trained mediator
actmg as a go-between (see MEDIATION).
Alternative Investment Market (AIM) See STOCK EXCHANGE.
alternative verdict A verdict of not guilty of the offence actually charged but
gU1lt~ of some lesser offence not specifically charged. Such a verdict is only
permitted when there is insufficient evidence to establish the more serious offence
but the evidence given is sufficient to prove the lesser offence. If, for example, in a
murder case there is evidence that the defendant lacked *maIice aforethought, an
alternative verdict of manslaughter may be returned.
ambiguity n. Uncertainty in meaning. In legal documents ambiguity may be
patent or latent. A patent ambig.uity is obvious to anyone looking at the document;
for example, when a blank space IS left for a name. A latent ambiguity at first
appears to be an unambig~ous statement, but the ambiguity becomes apparent in
the light of knowledge gamed other than from the document. An example is "I give
my gold watch to X", when the testator has two gold watches. In general, *extrinsic
evidence can be used to clarify latent ambiguities, but not patent ambiguities.
Extrinsic evidence cannot be used to give a different meaning to words capable of
ordinary interpretation.
ambulatory adj. (of a will) Taking effect not from when it was made but from the
death of the testator. Thus descriptions of property bequeathed or of beneficiaries
are taken to refer to property or persons existing at that time. The will remains
revocable until death.
ameliorating waste Alterations made by a tenant that improve the land he
leases. See WASTE.
amendment n. 1. Changes made to legislation, for the purpose of adding to,
correcting, or modifying the operation of the legislation. 2. Changes made to the
*statement of case used in civil litigation. Changes in the parties' knowledge of the
case as it proceeds may require alterations in the claim form, defence, or other
documents. For example, an amendment will be necessary in order to add the name
of a second defendant to the claim. On occasion, errors need to be corrected. The
Civil Procedure Rules make clear that amendments may be allowed (1) with the
consent of all parties, (2)with the permission of the court, or (3) in the absence of
consent and without the court's permission, provided the amendment is made
before the claim is served. The court may impose the penalty of costs on the party
seeking the amendment if this has been made necessary by negligence. Not every
minor development in the litigation, however, needs to be reflected in an
amendment, only those changes that will have a real effect on the litigation. 3. An
alteration of a *treaty adopted by the consent of the *high contracting parties and
intended to be binding upon all sum parties. An amendment may involve either
individual provisions or a complete review of the treaty.
a mensa et thoro [Latin] From board and bed. A decree of divorce a mensa et thoro
was the forerunner of the modern judicial separation order. See also AVINCULO
MATRlMONII.
amicus curiae [Latin; friend of the court] Counsel who assists the court by putting
arguments in support of an interest that might not be adequately represented by
the parties to the proceedings (such as the public interest) or by arguing on behalf
of a party who is otherwise unrepresented. In modern practice, when a court
requires the assistance of an amicus curiae it is customary to invite the *Attorney
General to attend, either in person or by counsel instructed on his behalf, to
represent the public interest, but counsel have been permitted to act as amicus
curiae on behalf of professional bodies (e.g.the Law Society).
amnesty n. An act erasing from legal memory some aspect of criminal conduct by
an offender. It is most frequently granted to groups of people in respect of political
offences and is wider than a *pardon, which merely relieves an offender of
punishment.
Amsterdam Treaty The EU treaty signed in Amsterdam in 1997(in force from 1
May 1999), which amended provisions of the *Treaty of Rome (European Community
Treaty) and the *Maastricht Treaty (Treaty on European Union). Among other
effects, the Amsterdam Treaty increased the powers of the European Parliament by

extending the *codecision procedure to all areas covered by qualified majority
voting and enabled the *Social Chapter to be incorporated into the Treaty of Rome.
ancient lights An *easement acquired by lapse of time (see PRESCRIPTION) resulting
from 20 years' continuous enjoyment of the access of light to the claimant's land
without any written consent from the owner of the land over which the easement
is claimed.
ancillary credit business A business involved in credit brokerage, debt
adjusting, debt counselling, debt collecting, or the operation of a credit-reference
agency. Credit brokerage includes the effecting of introductions of individuals
wishing to obtain credit to persons carrying on a *consumer-credit business. Debt
adjusting is the process by which a third party negotiates terms for the discharge
of a debt due under *consumer-credit agreements or *consumer-hire agreements
with the creditor or owner on behalf of the debtor or hirer. The latter may also pay
a third party to take over his obligation to discharge a debt or to undertake any
similar activity concerned with its liquidation. Debt counselling is the giving of
advice (other than by the original creditor and certain others) to debtors or hirers
about the liquidation of debts due under consumer-credit agreements or consumerhire
agreements. In debt collecting, someone other than the creditor takes steps to
procure the payment of debts owing to him. A creditor may engage a debt collector
for this purpose. A credit-reference agency collects information concerning the
financial standing of individuals and supplies this information to those seeking it.
The Consumer Credit Act 1974 provides for the licensing of ancillary credit
businesses and regulates their activities.
ancillary probate A grant of probate to an executor appointed under a foreign
jurisdiction to enable him to deal with assets of the deceased in the UK.
ancillary relief A court order incidental to another order or application. It
usually refers to a *financial provision order or a *property adjustment order made
in the course of proceedings for divorce, separation, or nullity under the
Matrimonial Causes Act 1973.Such orders are made on or after granting the decree.
ancillary restraint A restriction that is imposed as part of a larger transaction. In
relation to the EU *merger rules, there is a notice setting out for how long and on
what terms ancillary restraints are permitted in the context of such arrangements.
angary n. The right of belligerent states to make use of (or destroy if necessary)
neutral property on their own or on enemy territory or on the open sea, for the
purpose of offence and defence. Traditionally, the right (jus angariae) was restricted
to the belligerent laying an *embargo on and seizing neutral merchant ships in its
harbours and compelling them and their crews to transport troops, ammunition,
and provisions to certain places on payment of freight in advance. However, all sorts
of neutral property, including vessels or other means of transport, arms,
ammunition, provisions, or other personal property, may be the object of the
modern right of angary, provided the articles concerned are serviceable to military
ends and wants.
animals pl. n. See CLASSIFICATION OF ANIMALS.
animus n. [Latin] Intention. The term is often used in combination; for example,
animus furandi - the intention to steal; animus manendi - the intention to remain
in one place (for the purposes of the law relating to <domicile],
annexation n. (in international law) The acquisition of legal sovereignty by one
state over the territory of another, usually by *occupation or conquest. Annexation
is now generally considered illegal in international law, even when it results from a
legitimate use of force (for example, in self-defence). It may subsequently become
legal, however, by means of *recognition by other states. The annexing state is not
bound by pre-existing obligations of the state annexed.
annual general meeting (AGM) A meeting of company members required by
the Companies Act 1985 to be held each calendar year. Not more than 15 months
should elapse between meetings, and 21 days' written notice (specifying the meeting
as the annual general meeting) must usually be given. AGMsare concerned with the
accounts, directors' and auditor's reports, dividends, the election of directors, and the
appointment and remuneration of the auditor. Other matters are treated as *special
business. See alsoELECTIVE RESOLUTION; GENERAL MEETING.
annual return A document that registered companies are required by law to send
to the *Companies Registry, usually each year. It includes information concerning
the type of company and its business activities, the registered office, directors,
company members, and certain company debts. It is open to public inspection.
Failure to file the return is a criminal offence and may lead to the company being
removed from the register and fined. See REGISTRATION OF A COMPANY.
annual value of land The annual rent that might reasonably be expected from
letting land or buildings, if the tenant pays all usual rates and taxes while other
expenses (including repairs) are borne by the landlord. It is used in assessing *rates.
The Inland Revenue carries out the valuation.
annuity n. A sum of money payable annually for as long as the beneficiary
(annuitant) lives, or for some other specified period (e.g. the life of another person
(pur autre vie) or the minority of the annuitant). An annuity left by will is treated as
a pecuniary legacy. An annuity may be charged on, or directed to be paid out of, a
particular fund or it may be unsecured. A joint annuity, in which money is payable
to more than one annuitant, terminates on the death of the last survivor. See also
RENTCHARGE.
annulment n. 1. A declaration by the court that a marriage was never legally
valid. In all cases of nullity except nonconsummation, a decree of annulment will
only be granted within three years after the celebration of the marriage. See also
NULLITY OF MARRIAGE. 2. The cancellation by a court of a *bankruptcy order, which
occurs when it considers that the debtor was wrongly made bankrupt, when all the
debts have been paid in full, or when the court approves a *voluntary arrangement.
The power of annulment is discretionary. Annulment does not affect the validity of
any sale of property or other action that has already taken place as a result of the
bankruptcy order. 3. The cancellation of *delegated legislation by resolution of
either House of Parliament. 4. The setting aside of legislation or other action by the
*European Court of Justice.
annus et dies [Latin] A year and a day. At common law, the Crown was entitled to
take possession of the lands of a person convicted of felony and to exploit them
without reserve for a year and a day. This was known as the right of year, day, and
waste.
answer n. 1. A reply to a request for further information (see INTERROGATORY). 2. A
statement of case served by the respondent to a petition, e.g. an answer to a divorce
petition. It is equivalent to the *defence served by the defendant in response to a
claim form.
antecedents pl. n. An accused or convicted person's previous criminal record or

track claim or in specialist proceedings or (2) an appeal itself from a county court
judge. Where two or more High Court judges sit as a Divisional Court, appeals are
permitted. In the Chancery Divisional Court, appeals may be heard from certain
tribunals, e.g. the Inland Revenue Commissioners, and from the county courts for
such matters as bankruptcy appeals. In the Family Divisional Court, appeals may be
heard from the magistrates' courts and the county courts, typically in respect of
financial provision under the Domestic Proceedings and Magistrates' Court Act 1978.
In the Queen's Bench Divisional Court, appeals may be heard, when circumstances
demand, from the magistrates' courts, the Crown Court, and various tribunals by
way of case stated and in matters of *judicial review and *habeas corpus. The Court
of Appeal (Civil Division) is able to hear appeals from the county courts (except in
bankruptcy cases) by way of the leapfrog procedure (Court of Appeal), and appeals
from the High Court and various tribunals. The House of Lords will hear appeals
primarily from the Court of Appeal but can hear appeals from the High Court
under the *leapfrog procedure (House of Lords).
applicable law The laws of a jurisdiction that apply to a particular transaction or
agreement. Many countries are signatories of the international Rome Convention
(1980; in force from 1 April 1991), which provides that the parties' choice of law will
be respected and, in the absence of a term in the relevant agreement, the country's
laws with the closest connection with the contract will apply.
applicant n. A person who applies for something, especially court relief.
applying the proviso See PROVISO.
appointed day The date specified in an Act of Parliament (or in a
commencement order) for its coming into force.
appointee n. 1. A person in whose favour a *power of appointment is
exercised. 2. A person selected for a particular purpose.
appointment n. See POWER OF APPOINTMENT.
appointor n. A person given a *power of appointment to exercise.
approbate and reprobate To accept and reject. A person is not allowed to
accept the benefit of a document (e.g.a deed of gift) but reject any liabilities
attached to it.
appropriation n. 1. (in administrative law) The allocation of a sum of money to a
particular purpose. The annual Appropriation Act authorizes the issue from the
Consolidated Fund of money required to meet government expenditure and
allocates it between departments and by reference to itemized heads of
expenditure. 2. (in criminal law) See THEFT.
appropriation of payments The allocation of one or more payments to one
particular debt out of several owed by a debtor to the same creditor. The power of
allocation belongs in the first instance to the debtor, but if he does not make an
appropriation at the time of payment, then the creditor may do so. In the case of
current accounts, in the absence of an express appropriation, payments are normally
appropriated to the oldest outstanding debt.
appropriations in aid Day-to-day revenue received by government departments
and retained to meet expenditure instead of being paid into the Consolidated Fund.
approximation of laws The process by which member states of the EU change
their national laws to enable the free market to function properly. It is required by
the Treaty of Rome. Compare HARMONIZATION OF LAWS.
appurtenant adj. Attached or annexed to land and enhancing the land or its use.
An *easement must be appurtenant to a *dominant tenement but a *profit a
prendreneed not. Thus a right of way over land in Yorkshire granted to a Sussex
landowner does not benefit his Sussex property and is not an easement, but a right
to shoot game over the Yorkshire land could give a man in Sussex (whether
landowner or not) a valid profit aprendre.
a priori [Latin: from the previous (i.e. from cause to effect)] Describing or relating
to reasoning that is based on abstract ideas, anticipates the effects of particular
causes, or (more loosely) makes a presumption that is true as far as is known, i.e.
deductive reasoning. Compare A POSTERIORI.
arbitrary punishment See PUNISHMENT.
arbitration n. The determination of a dispute by one or more independent third
parties (the arbitrators) rather than by a court. Arbitrators are appointed by the
parties in accordance with the terms of the *arbitration agreement or in default by
a court. An arbitrator is bound to apply the law accurately but may in general adopt
whatever procedure he chooses and is not bound by the *exclusionary rules of the
law of evidence; he must, however, conform to the rules of *natural justice. In
English law, arbitrators are subject to extensive control by the courts, with respect
to both the manner in which the arbitration is conducted and the correctness of the
law that the arbitrators have applied, although this control was loosened to some
extent by the Arbitration Act 1996. The judgment of an arbitrator is called his
award, which can be the subject of an *appeal to the High Court on a question of
law under the provisions of the Arbitration Act 1996.A 1979Arbitration Act
abolished the old *special case procedure. In some types of arbitration it is the
practice for both parties to appoint an arbitrator. If the arbitrators fail to agree
about the matter in dispute, they will appoint an umpire, who has the casting vote
in making the award. English courts attach great importance to arbitration and will
normally stay an action brought in the courts in breach of a binding arbitration
agreement. See also ALTERNATIVE DISPUTE RESOLUTION.
The modern origins of international arbitration can be traced to the Jay Treaty
(1784) between the USAand the UK,which provided for the determination of legal
disputes between states by mixed commissions. The *Hague Conventions of 1899and
1907contained rules of arbitration that have now become part of customary
international law. The 1899Conventions created the Permanent Court of Arbitration,
which was not strictly speaking a court but a means of providing a body of
arbitrators on which the parties to a dispute could draw. Consent to arbitration by a
state can be given in three ways: (1) by inclusion of a special arbitration clause in a
treaty; (2) by a general treaty of arbitration, which arranges arbitration procedures
for future disputes; and (3)by a special arbitration treaty designed for a current
dispute.
arbitration agreement A contract to refer a present or future legal dispute to
*arbitration. Such agreements are of two kinds: those referring an existing dispute
to arbitration and those relating to disputes that may arise in the future. The second
type is much more common. No particular form is necessary, but the agreement
should name the place of arbitration and either appoint the arbitrator or arbitrators
or (more usually) define the manner in which they are to be appointed in the
absence of agreement between the parties. The agreement should also set out the
procedure for appointing an umpire if two arbitrators are involved and they fail to
agree.
arbitration clause An express term of a contract in writing (usually of a

commercial nature) constituting an agreement to refer disputes arising out of the
contract to *arbitration.
archipelago n. A collection of islands (including parts of islands, interconnecting
waters, and other natural features) so closely interrelated that they form an
intrinsic geographical, economic, and political entity, or which historically have been
regarded as such. An example is the Galapagos Islands. In contrast, an archipelagic
state has been defined by the Convention on the Law of the Sea (1982) as a state
comprising one or more archipelagos; it may also include other islands. An example
of an archipelagic state is the Bahamas. See also TERRITORIAL WATERS.
Area Child Protection Committee A committee that advises and reviews local
practice and procedure for inter-agency cooperation and training with regard to
children in need of protection by local authorities. It is made up of representatives
from the various professions and agencies concerned with children.
argumentative affidavit An *affidavit containing not only allegations of fact
but also arguments as to the bearing of those facts on the matter in dispute.
armchair principle A rule applied in the *interpretation of wills, enabling
circumstances existing when the will was made to be used as evidence to elucidate
the meaning of words appearing in the will. For example, such evidence may
establish the identity of a beneficiary referred to in the will only by a nickname.
The phrase originates from a well-known judicial observation that one may, when
construing a will, "place [oneself] in the testator's armchair and consider the
circumstances by which he was surrounded when he made his will".
arraign vb. To begin a criminal *trial on indictment by calling the defendant to
the bar of the court by name, reading the indictment to him, and asking him
whether he is guilty or not. The defendant then pleads to the indictment, and this
completes the arraignment.
arrangement n. 1. (in commercial and company law) See DEED OF ARRANGEMENT;
SCHEME OF ARRANGEMENT; VOLUNTARY ARRANGEMENT. 2. (in international law) See TREATY.
array n. See CHALLENGE TO JURY.
arrest n. The apprehension of a person suspected of criminal activities. Most
arrests are made by police officers, although anybody may, under prescribed
conditions. effect an arrest. In some cases the constable must have a *warrant of
arrest signed by a magistrate, which must be shown to the accused (though not
necessarily at the time of arrest). However, a warrant is not required for *arrestable
offences. Further, a constable who reasonably suspects that a nonarrestable offence
has been or is being committed may arrest the suspect if (1) he thinks that service of
a *summons is impracticable or inappropriate because a "general arrest condition" is
satisfied (for example, if he reasonably believes that arrest is necessary to prevent
the suspect causing injury) or (2) he has specific statutory power to make the arrest
without warrant (e.g. for *drunken driving or *soliciting) or common-law power (see
BREACH OF THE PEACE). When an arrest is made, the accused must be told that he is
being arrested and given the ground for his arrest. A policeman has power to search
the person he is arresting for any property that may be used in evidence against
him. Anyone making or assisting in an arrest may use as much force as reasonable
in the circumstances. Resisting lawful arrest may involve the crime of *assault or
*obstructing a police officer. A person who believes he has been wrongfully arrested
may petition for *habeas corpus and may sue the person who arrested him for
*false imprisonment. See also BAIL; CAUTION; DETENTION; REMAND.
arrestable offence An offence for which there is a fixed mandatory penalty or
which carries a sentence of at least five years' imprisonment (e.g. theft). There are
also some crimes that are specified to be arrestable offences even though they do
not fulfil the usual conditions. For example, taking someone else's motor car for
temporary use is arrestable even though it carries a maximum of only three years'
imprisonment. Inciting, attempting, or conspiring to commit, or being an accessory
to, an arrestable offence is also an arrestable offence. All other crimes are termed
nonarrestable offences. Anyone may lawfully *arrest, without a *warrant, a
person who is in the act of committing an arrestable offence or whom he
reasonably suspects to be in the act of committing it. If an arrestable offence has
been committed, anyone may subsequently arrest, without warrant, a person who is,
or whom he reasonably suspects is, guilty of the offence. A constable who reasonably
suspects that an arrestable offence has been committed may arrest anyone he
reasonably suspects to be guilty of it. He may also arrest someone who is about to
commit (or whom he reasonably suspects is about to commit) such an offence. A
police officer may also enter and search any place he suspects is harbouring a person
who may be arrested for an arrestable offence.
There are also special offences of *impeding apprehension or prosecution of
persons guilty of an arrestable offence or concealing (for gain) information relating
to such offences.
arrested development For the purposes of the Mental Health Act 1983,a form
of *mental disorder comprising mental impairment and severe mental impairment.
Mental impairment implies a lack of intelligence that does not amount to severe
mental impairment but that nevertheless requires or will respond to medical
treatment. Severe mental impairment is a lack of intelligence and social
functioning associated with aggressive or severely irresponsible conduct.
arrest of judgment A motion by a defendant in criminal proceedings on
indictment, between the conviction and the sentence, that judgment should not be
given on the ground of some objection arising on the face of the *record, such as a
defect in the indictment itself. Such motions are extremely rare in modern practice.
arrived ship See LAY DAYS.
arson n. The intentional or reckless destruction or damaging of property by fire
without a lawful excuse. There are two forms of arson corresponding to the two
forms of *criminal damage in the Criminal Damage Act 1971. Arson carries a
maximum sentence of life imprisonment.
article n. A clause in a document. The plural, articles, is often used to mean the
entire document, e.g. *articles of association.
Article 81 A provision of the Treaty of Rome that prohibits anticompetitive
agreements the aim or effect of which is to restrict, prevent, or distort competition
in the EU (see also COMPETITION LAW). Article 81 (formerly 85) applies directly in all
member states (see COMMUNITY LEGISLATION) and is often used against *cartels; it only
applies when the agreement affects trade between member states. Agreements that
infringe the Article are void and unenforceable; third parties have the right to bring
actions for damages if they have suffered loss through the operation of such
agreements. Infringement of the Article may result in EUfines of up to 10%of
annual worldwide turnover. In the UK there are very similar provisions in the
Competition Act 1998, which prohibit anticompetitive agreements under Chapter I
of that Act. See alsoBLOCK EXEMPTION.
Article 82 A provision of the Treaty of Rome, with direct effect throughout the

EU (see COMMUNITY LEGISLATION), that prohibits *abuses of a dominant position by
businesses in the ED. Examples of breaches of Article 82 (formerly 86) include
refusing to supply an existing customer (for example, when it has begun to operate
in competition with the dominant company), selectively reducing prices to stop
competition from competitors (see PREDATORY PRICING), unfair or excessive prices,
tying clauses, and refusing to license *intellectual property rights. Article 82 only
prohibits such conduct if the business is dominant, i.e. if it enjoys a market share of
40% or more in the EU (or a substantial part of it). The rules only apply when the
conduct affects trade between member states. There is a very similar prohibition in
the Chapter II prohibition of the Competition Act 1998,which holds that abuse of a
dominant position will breach UK law if it has effects in the UK.
Article 234 Reference A provision of the Treaty of Rome entitling national
courts to refer matters of EU law to the European Court of Justice for a
determination. The case ultimately returns to the national court for a final
judgment. Such a procedure is known as a "234 reference". Article 234 (formerly 177)
is a provision of the Treaty that empowers the Court of Justice to decide such issues
as how the Treaty of Rome should be interpreted and whether or not the European
Commission or other bodies have acted properly.
articles of association Regulations for the management of registered companies
(see TABLE A). They form, together with the provisions of the *memorandum of
association, the company's constitution.
artificial insemination See HUMAN ASSISTED REPRODUCTION.
artificial person See JURISTIC PERSON.
ascertained goods See UNASCERTAINED GOODS.
assault n. An intentional or reckless act that causes someone to be put in fear of
immediate physical harm. Actual physical contact is not necessary to constitute an
assault (for example, pointing a gun at someone is an assault), but the word is often
loosely used to include both threatening acts and physical violence (see BATTERY).
Words alone cannot constitute an assault. Assault is a form of *trespass to the
person and a crime as well as a tort: an ordinary (or common) assault, as described
above, is a *summary offence punishable by a *fine at level 5 on the standard scale
and/or up to six months' imprisonment. Certain kinds of more serious assault are
known as aggravated assaults and carry stricter penalties. Examples of these are
assault with intent to resist lawful arrest (two years), assault occasioning *actual
bodily harm (five years), and assault with intent to rob (life imprisonment). See also
AFFRAY; INDECENT ASSAULT.
Assembly of the European Communities See EUROPEAN PARLIAMENT.
assent n. A document by which personal representatives transfer property to a
beneficiary under a will or on intestacy. Under the Administration of Estates Act
1925 they may transfer *real estate (including leaseholds) to beneficiaries by an
assent in writing, which must be signed by the personal representatives. A
beneficiary's title to the property is not complete until the assent has been effected.
Personal representatives may also use an assent to vest land in trustees. An assent,
once executed, relates back to the death of the deceased. Where an assent is made
after 1998, it triggers registration of the land. If the land is already registered, the
assent must be completed by registration. See LAND REGISTRATION.
assent procedure A procedure introduced by the Single European Act 1986 that
gives greater powers to the *European Parliament over the unelected European
Commission. It applies when there is one reading of a new legislative measure in the
Parliament: Parliament either assents by an absolute majority to the measure as
presented to it or rejects it; it does not have a power to amend the measure. Compare
CODECISION PROCEDURE; COOPERATION PROCEDURE.
assessment of costs The method by which the amount of costs payable by one
party to another, or payable by a client to his solicitor, is determined by an officer
of the court. Before the introduction of the *Civil Procedure Rules in 1999, this was
called taxation of costs. Assessments may be summary or detailed. In a summary
assessment, the court determines the amount payable immediately at the end of
the hearing. In this instance, the court can call for whatever evidence is available at
the time (e.g. brief fee) to determine the amount. This is the preferred method of
assessment in *fast track trials. In contrast, a detailed assessmentinvolves the
quantification of costs to a *costs officer, who considers the amount at some stage
after the hearing. Detailed assessments are mostly carried out by district judges in
the county courts but there is a dedicated office, the Supreme Court Costs Office,
for the High Court.
assessor n. A person called in to assist a court in trying a case requiring
specialized technical knowledge. The High Court and the Court of Appeal have wide
powers to appoint assessors to assist them in any action, but this power is rarely
exercised except in Admiralty cases. Assessors will not give oral evidence and will
not be open to cross-examination or questioning. In cases involving questions of
navigation and seamanship, it is the invariable practice to appoint assessors who are
Elder Brethren of Trinity House. In proceedings to review an *assessment of costs a
practising solicitor and a *costs officer are usually appointed to assist the judge.
assets pI. n. Physical property and/or rights that have a monetary value and are
capable of being those of a *juristic person or a natural person (i.e. a human being).
They can comprise real assets (real property) and personal assets (personal property).
In respect of a juristic person, such as a corporation, assets include fixed or capital
assets (those identified as being held and used on a continuing basis in the business
activity, e.g. machinery) and current or circulating assets (those not intended to be
used on a continuing basis in the business activity but realized in the course of
trading).
In respect of a natural person who is deceased, assets comprise all real and
personal property that forms part of the deceased's estate and is available for the
payment of the deceased's debts and liabilities. See also FAMILY ASSETS; WASTING ASSETS.
assignee n. See ASSIGNMENT.
assignment n. 1. The transfer of a *chose in action by one person (the assignor)
to another (the assignee).By the rules of the common law, this was not permissible.
If, for example, A was owed a contract debt by B, he could not transfer his right to
C so as to enable C to sue B for the money owed. The assignment of certain choses in
action is now authorized and governed by particular statutes. For example, the
Companies Act 1985 allows shares in a company to be transferred in the manner
prescribed by the company's articles of association. These, however, are special cases;
in general, choses in action, whether legal (e.g.the benefit of a contract) or equitable
(e.g.a right under a trust), can be transferred either by equitable assignment or,
under the Law of Property Act 1925,by statutory assignment. For an equitable
assignment, no formality is required. It is sufficient that the assignor shows a clear
intention to transfer ownership of his right to the assignee. If, however, it is a legal
chose that is assigned, the assignor must be made a party to any proceedings by the
assignee to enforce the right. In the above example, C can sue B for the debt, but he

must join A as co-claimant or (if A refuses to lend his name to the action in this
way) as co-defendant. A statutory assignment under the Law of Property Act 1925
is sometimes referred to as a legal assignment, but since it may relate to an
equitable chose in action as well as a legal one this is not wholly accurate. It enables
the assignee to enforce the right assigned in his own name and without joining the
assignor to the proceedings even if it is a legal chose. There are three requirements
for its validity: it must be absolute; it must be in writing; and written notice of it
must be given to the person against whom the right is enforceable. For these
purposes, an absolute assignment is one that transfers the assignor's entire
interest to the assignee unconditionally. If less than his entire interest (e.g. part of a
debt) is transferred, or if any condition is attached to the transfer (e.g. that the
consent of a third party be obtained), the assignment is not absolute. An assignment
need not, however, be permanent to be absolute, and this is exemplified by the
mortgage of a chose in action. If A, who owes money to C, assigns to C as security
for that debt a debt due to him from B,with the proviso that C will reassign the
debt if A settles what is due to him, the assignment is absolute despite the proviso
for reassignment.
The assignment of contractual rights (which must be distinguished from
*novation) is subject to certain restrictions. For reasons of public policy, the holder
of a public office must not assign his salary nor a wife her right to maintenance
payments awarded in matrimonial proceedings. Rights to the performance of
personal services, as under contracts of employment, are also incapable of being
assigned. *Intellectual property rights must be assigned or transferred by document
in writing signed by the assignor. *Stamp duty is payable on assignments of
property if the value transferred is over £60,000.
2. The transfer of the whole of the remainder of the term of a lease. A tenant may
assign his lease unless there is a covenant against it: there is often a covenant
against assignment without the landlord's consent. The landlord cannot charge a fee
for giving his consent unless there is express provision for this in the lease and he
may not withhold his consent unreasonably. Less commonly, a lease may contain a
covenant that prohibits any assignment at all. Where a lease contains a covenant
against assigning without the landlord's consent, such consent not to be
unreasonably withheld, the landlord has certain statutory duties. These are: he must
give the tenant notice of his decision within a reasonable time of the tenant
requesting consent; the notice must give reasons for any refusal of consent, or
conditions attached to acceptance (the conditions themselves must not be
unreasonable); and the landlord cannot withhold consent unless the tenant would be
in breach of covenant if he completed the transaction without consent. See also
BUSINESS TENANCY.
assignor n. See ASSIGNMENT.
assize n. 1. An assize court or council. In modern times assizes were sittings of
High Court judges travelling on circuits around the country with commissions from
the Crown to hear cases. These commissions were either of oyer, terminer, and
general gaol delivery, empowering the judges to try the most serious criminal cases,
or of nisi prius, empowering them to try civil actions. These assizes were abolished
by the Courts Act 1971, and the criminal jurisdiction of assizes was transferred to
the Crown Court. At the same time, the High Court was empowered to hear civil
cases anywhere in England and Wales without the need for a special commission.
2. A statute or ordinance, e.g. the Assize of Clarendon, Novel Disseisin.
association agreement An agreement between a member state of the European
Union and a non-EU country or organization, as provided for in Article 310 of the
Treaty of Rome. The agreement, which may be with a country, a union of states, or
an international organization, establishes an association involving reciprocal rights
and obligations, common action, and special procedures.
assurance n. See INSURANCE.
assured agricultural occupancy A form of *assured tenancy in which the
tenant is an agricultural worker living in a *tied cottage. This kind of tenancy
replaced *protected occupancies from 15 January 1989.In certain circumstances a
local authority may be required to rehouse assured agricultural occupants. See
AGRICULTURAL DWELLING-HOUSE ADVISORY COMMITTEE.
assured shorthold tenancy A special kind of *assured tenancy at the end of
which the landlord is entitled to recover possession without having to show one of
the usual grounds for possession of an assured tenancy. This kind of tenancy was
introduced by the Housing Act 1988,replacing protected shorthold tenancies.
Under the 1988 Act the landlord was obliged to give the tenant notice before the
grant of the tenancy that it was an assured shorthold tenancy. However, under the
Housing Act 1996,from 28 February 1997the requirement for the landlord to serve a
notice is removed, and all new tenancies are automatically assured shortholds unless
otherwise agreed. If a landlord wants to give the tenant security under an assured
tenancy, this must be specifically created; if this is not done, the tenancy is an
assured shorthold without *security of tenure. A tenant can apply to a rent
assessment committee if he thinks the rent of the tenancy is excessive. The
committee can fix a new rent if they think that the rent is significantly higher than
that of other assured tenancies in the area. However, government regulations may
restrict this right in certain areas or in certain circumstances.
The landlord may obtain possession at any time when he would have been entitled
to do so contractually, by giving two months' notice and specifying that the tenancy
is an assured shorthold tenancy. No order for possession may be made in the first six
months of the tenancy.
assured tenancy A form of tenancy under the Housing Act 1988 that is at a
market rent but gives *security of tenure. The premises may be furnished or
unfurnished. This kind of tenancy replaces *protected tenancies except those in
existence before the Housing Act 1988 came into force. Former assured tenancies
under the Housing Act 1980(where different provisions applied) are converted into
the new kind of assured tenancy.
To qualify as an assured tenancy, the premises must be let as a separate dwelling,
within certain rateable value limits. There are certain exceptions, such as when the
landlord lives in another part of the same premises. Under the Housing Act 1996,
from 28 February 1997all new residential tenancies are *assured shorthold tenancies
without security of tenure, unless a notice is specifically served stating that the
parties are creating an assured tenancy.
The rent is an open market rent agreed between the landlord and tenant, and it is
not registered. However, the landlord must give the tenant notice if he intends to
increase the rent, and the tenant can then apply to a *rent assessment committee if
he thinks the increase is excessive. The rent assessment committee determines the
rent at the current market value. There are limits on the frequency of rent
increases.
The landlord can only regain possession on certain statutory grounds. These
include: nonpayment of rent; that the landlord formerly lived in the dwelling and
requires it again for his own use; that the tenant is a *nuisance neighbour or may

become a nuisance; and that alternative accommodation is available (the court has
discretion in this last case).
When the tenant of an assured tenancy dies, his spouse has a right, in certain
circumstances, to take over the tenancy as successor to the deceased tenant. An
assured tenant cannot usually assign the tenancy without the landlord's consent. See
alsoSTATUTORY PERIODIC TENANCY.
asylum n. Refuge granted to an individual whose *extradition is sought by a
foreign government. This can include refuge in the territory of a foreign country
(territorial asylum) or in a foreign embassy (diplomatic asylum). The latter is
particularly contentious as it is a derogation from the sovereignty of the territorial
state; moreover, diplomatic asylum may only be granted in cases of an alleged
political offence and not in cases involving common-law crimes. Diplomatic asylum
is well recognized in Latin American states. Conventions relating to it include the
Havana Convention of 1928, the Montevideo Convention of 1933,and the Caracas
Convention of 1954. The UKAsylum and Immigration Act 1996 made it a criminal
offence for employers to employ anyone subject to immigration control. See
IMMIGRATION; POLITICAL ASYLUM.
at sea See PRIVILEGED WILL.
attachment n. A court order for the detention of a person and/or his property.
Attachment can be used by the courts for the punishment of *contempt of court.
However, the most common form of attachment is attachment of earnings, by
which a court orders the payment of judgment debts and other sums due under
court orders (e.g. maintenance) by direct deduction from the debtor's earnings.
Payment is usually in instalments, and the debtor's employer is responsible for
paying these to the court. See also GARNISHEE PROCEEDINGS.
attempt n. (in criminal law) Any act that is more than merely preparatory to the
intended commission of a crime; this act is itself a crime. For example, shooting at
someone but missing could be attempted murder, but merely buying a revolver
would not. One may be guilty of attempting to commit a crime that proves
impossible to commit (e.g. attempted theft from an empty handbag).
attendance centre A nonresidential institution run by a local authority at which
offenders between the ages of 17 and 21 may be ordered by a youth court to attend
if they have not previously been sentenced to prison or detention in a young
offender institution. Attendance, which is outside normal school or working hours,
is for periods of up to 3 hours each, to a maximum of 36 hours. Such orders are
made when it is felt that a custodial order is not required but a fine or other order
would be too lenient.
attestation n. The signature of witnesses to the making of a will or *deed. Under
the Wills Act 1837as amended the testator must acknowledge his signature (see
ACKNOWLEDGMENT) in the presence of two witnesses who must each sign (attest) at
the same time in the testator's presence. The signature of each party to a deed must
be attested by one witness.
attorney n. A person who is appointed by another and has authority to act on
behalf of another. See also POWER OF ATTORNEY.
Attorney General (AG) The principal law officer of the Crown. The Attorney
General is usually a Member of Parliament of the ruling party and holds ministerial
office, although he is not normally a member of the Cabinet. He is the chief legal
adviser of the government, answers questions relating to legal matters in the House
of Commons, and is politically responsible for the *Crown Prosecution Service,
*Director of Public Prosecutions, *Treasury Solicitor, and *Serious Fraud Office. He
is the leader of the English Bar and presides at its general meetings. The consent of
the Attorney General is required for bringing certain criminal actions, principally
ones relating to offences against the state and public order and corruption. The
Attorney General sometimes appears in court as an *advocate in cases of exceptional
public interest, but he is not now allowed to engage in private practice. He has the
right to terminate any criminal proceedings by entering a *nolle prosequi. See also
SOLICITOR GENERAL.
attornment n. 1. An act by a bailee (see BAILMENT) in possession of goods on behalf
of one person acknowledging that he will hold the goods on behalf of someone else.
The attornment notionally transfers possession to the other person (constructive
possession) and can thus be a delivery of goods sold. 2. (largely historical) A person's
agreement to hold land as the tenant of someone else. Some mortgages provide that
the owner of the land attorns tenant of the mortgagee for a period of years that
will be terminated when the debt is repaid.
auction n. A method of sale in which parties are invited to make competing offers
(bids) to purchase an item. The auctioneer, who acts as the agent of the seller until
fall of the hammer, announces completion of the sale in favour of the highest
bidder by striking his desk with a hammer (or in any other customary manner).
Until then any bidder may retract his bid and the auctioneer may withdraw the
goods. The seller may not bid unless the sale is stated to be subject to the seller's
right to bid. Merely to advertise an auction does not bind the auctioneer to hold one.
However, if he advertises an auction without reserve and accepts bids, he will be
liable if he fails to knock the item down to the highest outside bidder. An
auctioneer who discloses his agency promises to a buyer that he has authority to sell
and that he knows of no defect to the seller's title; he does not promise that the
buyer of a specific chattel will get a good title.
auction ring A group of buyers who agree not to compete against each other at
an auction with a view to purchasing articles for less than the open-market value.
The profit earned thereby is shared among the members of the ring, or a second
"knock-out" auction is held in private by the members of the ring with the article
being sold to the highest bidder and the profit shared among the members. Under
the Auctions (Bidding Agreements) Acts 1927and 1969 it is a criminal offence for a
dealer to participate in an auction ring and a seller is given the right to set aside the
contract of sale if one of the purchasers is a dealer in a ring.
audi alterarn partern See NATURAL JUSTICE.
Audit Commission See DISTRICT AUDITORS.
audit exemption Exemption from the requirement to file audited accounts,
which (since 11August 1994) can be claimed by small companies with a turnover of
under £90,000per annum and a balance-sheet total under £1.4M.
auditor n. A person appointed to examine the *books of account and the
*accounts of a registered company and to report upon them to company members.
An auditor's report must state whether or not, in the auditor's opinion, the
accounts have been properly prepared and give a true and fair view of the
company's financial position. The Companies Acts 1985and 1989set out the
qualifications an auditor must possess and also certain rights to enable him to fulfil
his duty effectively.

authentication n. A distinct procedural step at the conclusion of a *treaty at
which the definitive text of the treaty is established as correct and authentic and
not subject to further modification.
authority n. 1. Power delegated to a person or body to act in a particular way. The
person in whom authority is vested is usually called an *agent and the person
conferring the authority is the principal. 2. A governing body, such as a *local
authority, charged with power and duty to perform certain functions. 3. A judicial
decision or other source of law used as a ground for a legal proposition. See also
PERSUASIVE AUTHORITY.
authorized capital (nominal capital) The total value of the shares that a
registered company is authorized to issue in order to raise capital. The authorized
capital of a company limited by shares (see LIMITED COMPANY) must be stated in the
memorandum of association, together with the number and nominal value of the
shares (see CAPITAL). For example, an authorized capital of £20,000 may be divided into
20000 shares of £1 (the nominal value) each. If the company has issued 10000 of
these shares, it is said to have an issued capital of £10,000 and retains the ability,
without an increase in capital (see ALTERATION OF SHARE CAPITAL), to issue further
shares in future. If the company has received the full nominal value of the shares
issued, its *paid-up capital equals its issued capital. Where a company has not yet
called for payment (see CALL) of the full nominal value, it has uncalled capital.
Reserve capital is that part of the uncalled capital that the company has
determined (by *special resolution) shall not be called up except upon a winding-up.
authorized investments Formerly, investments in which a trustee was
permitted to invest trust property. Under the Trustee Investments Act 1961
(replacing earlier legislation, which did not give wide enough powers) trustees could
invest not more than half the trust fund in shares in certain companies; the other
half had to be invested in authorized securities, certain debentures, local authority
loans, etc. A *general power of investment has now been given to trustees by the
Trustee Act 2000.
authorized securities See AUTHORIZED INVESTMENTS.
automatic reservation A *reservation to the acceptance by a state of the
compulsory jurisdiction of the INTERNATIONAL COURT OF JUSTICE. This is made under
the *optional clause of the Statute of the Court, which permits an accepting state to
unilaterally claim the right to determine the scope of its reservation.
automatism n. Unconscious *involuntary conduct caused by some external factor.
A person is not criminally liable for acts carried out in a state of automatism, since
his conduct is altogether involuntary. Examples of such acts are those carried out
while sleepwalking or in a state of concussion or hypnotic trance, a spasm or reflex
action, and acts carried out by a diabetic who suffers a hypoglycaemic episode.
Automatism is not a defence, however, if it is self-induced (for example, by taking
drink or drugs). When automatism is caused by a disease of the mind, the defence
may be treated as one of *insanity. Mere absent-mindedness, even when brought
about by a combination of, for example, depression and diabetes, is not regarded as a
defect of reason under the defence of *insanity. It may, however, be grounds for
concluding that the accused was not capable of having the necessary *mens rea at
the time of the offence.
autopsy (post-mortem) n. The examination of a body after death in order to
establish the cause of death. Autopsies are frequently requested by coroners (see
INQUEST).
autrefois acquit [French: previously acquitted] A *special plea in bar of
arraignment claiming that the defendant has previously been acquitted by a court
of competent jurisdiction of the same (or substantially the same) offence as that
with which he is now charged or that he could have been convicted on an earlier
indictment of the same (or substantially the same) offence. When this plea is entered
the judge determines the issue. If the plea is successful it bars further proceedings
on the indictment. The plea may be combined with one of *not guilty. See also NEMO
DEBET BIS VEXARI.
autrefois convict [French: previously convicted] A *special plea in bar of
arraignment claiming that the defendant has previously been convicted by a court
of competent jurisdiction of the same (or substantially the same) offence as that
with which he is now charged or that he could have been convicted on an earlier
indictment of the same (or substantially the same) offence. When this plea is entered
the judge determines the issue. If the plea is successful it bars further proceedings
on the indictment. The plea may be combined with one of *not guilty. See also NEMO
DEBET BIS VEXARI.
autre vie See ESTATE PUR AUTRE VIE.
auxiliary jurisdiction The jurisdiction exercised by the *Court of Chancery to
aid a claimant at common law; for example, by forcing a defendant to reveal
documents and thus provide necessary evidence for his case. Auxiliary jurisdiction
was rendered obsolete by the Judicature Acts 1873-75.
AVe See ADDITIONAL VOLUNTARY CONTRIBUTION.
average n. 1. (in marine insurance) A loss or damage arising from an event at
sea. 2. A reduction in the amount payable under an insurance policy in respect of a
partial loss of property. All marine insurance policies are subject to average under
the Marine Insurance Act 1906;other policies may be subject to average if they
contain express provision to that effect (an average clause).
In maritime law, the expression general (or gross) average is used in relation to
certain acts, to the losses they cause, and to the rights of contribution to which they
give rise. A general-average act consists of any sacrifice or expenditure made
intentionally and reasonably to preserve property involved in a sea voyage. For
example, the jettisoning of some of a ship's cargo to keep it afloat during a storm is
a general-average act. The loss directly resulting from a general-average act is called
general-average loss and is borne proportionately by all whose property has been
saved. The owner of jettisoned cargo, for example, is entitled to a contribution from
other cargo owners as well as the shipowners; such a contribution is called a
general-average contribution. The principle of general average is common to the
laws of all maritime nations, but the detailed rules are not uniform. To overcome
conflict of law, a standard set of rules was agreed in the 19th century at
international conferences of shipowners and others held at York and Antwerp.
These, known as the York-Antwerp rules, do not have the force of law, but it is
common practice to incorporate them (as subsequently amended) in contracts of
*affreightment, thereby displacing national laws. The basic principle is that an
insured who has suffered a general-average loss may recover the whole of it from
his underwriters without enforcing his rights to contribution; these become
enforceable by the underwriters instead.
By contrast, particular average (also called simple or petty average) relates
purely to marine insurance. It consists of any partial loss that is not a generalaverage
loss (for example, the damage of cargo by seawater). It is therefore borne

purely by the person suffering it and is frequently covered by a policy only in
limited circumstances.
A ship sold free from average is free from any claims whatsoever.
a vinculo mafrimonii [Latin] From the bond of marriage. A decree of divorce a
vinculo matrimonii allowed a spouse to remarry and was the forerunner of the
modern divorce decree. See alsoA MENSA ET THORO.
avoid vb. To set aside a *voidable contract.
avoidance of disposition order An order by the High Court preventing or
setting aside a transaction by a husband or wife that was made to defeat his (or her)
spouse's claim to financial provision. A transaction, such as a gift, made within three
years before the application is presumed to have been made in order to defeat the
spouse's claim if its effect would be to defeat her claim. But a sale of property to a
purchaser in good faith will not be set aside.
avulsion n. A sudden and violent shift in the course of a river that leaves the old
riverbed dry. This could be caused by such natural forces as floods, tidal waves, or
hurricanes. The alteration of territory by this means does not affect the title to
territory; thus new claims by a state that would appear to benefit from the rapid
geological change would be disbarred. Compare ACCRETION.
award n. See ARBITRATION.

B
backed for bail Describing a warrant for arrest issued by a magistrate or by the
Crown Court to a police officer, directing him to release the accused, upon arrest, on
bail under specified conditions. The police officer is bound to release the arrested
person if his sureties are approved.
bail n. The release by the police, magistrates' court, or Crown Court of a person
held in legal custody while awaiting trial or appealing against a criminal conviction.
Conditions may be imposed on a person released on bail by the police. A person
granted bail undertakes to pay a specified sum to the court if he fails to appear on
the date set by the court (see also JUSTIFYING BAIL). This is known as bail in one's own
recognizance. Often the court also requires guarantors (known as sureties) to
undertake to produce the accused or to forfeit the sum fixed by the court if they
fail to do so. In these circumstances the bailed person is, in theory, released into the
custody of the sureties. Judges have wide discretionary powers as to whether or not
bail should be granted, and for what sum. Normally an accused is granted bail unless
it is likely that he will abscond, or interfere with witnesses, or unless he is accused
of murder, attempted murder, manslaughter, rape, or attempted rape and has a
previous conviction for such an offence. The accused, and the prosecution in limited
circumstances, may appeal.
bailee n. See BAILMENT.
bail hostel Accommodation for persons of no fixed address who have been
released on bail.
bailiff n. 1. All officer of a court (usually a county court) concerned with the
service of the court's processes and the enforcement of its orders, especially
warrants of *execution authorizing the seizure of the goods of a debtor. The term is
often loosely applied to a sheriff's officer. 2. A judicial official in Guernsey (Royal
Court Bailiff).
bailiwick n. The area within which a *bailiff or *sheriff exercises jurisdiction.
bailment n. The transfer of the possession of goods by the owner (the bailor) to
another (the bailee) for a particular purpose. Examples of bailments are the hiring
of goods, the loan of goods, the pledge of goods, and the delivery of goods for
carriage, safe custody, or repair. Ownership of the goods remains in the bailor, who
has the right to demand their return or direct their disposal at the end of the
period (if any) fixed for the bailment or (if no period is fixed) at will. This right will,
however, be qualified by any *lien the bailee may have over the goods. Bailment
exists independently of contract. But if the bailor receives payment for the bailment
(a bailment for reward) there is often an express contract setting out the rights
and obligations of the parties. A bailment for which the bailor receives no reward
(e.g. the loan of a book to a friend) is called a gratuitous bailment.
bailor n. See BAILMENT.
balance sheet A document presenting in summary form a true and fair view of a
company's financial position at a particular time (e.g. at the end of its financial year).
It must show the items listed in either of the two formats set out in the Companies
Act 1985. Its purpose is to disclose the amount that would be available for the

benefit of members if the company were immediately wound up and liabilities were
discharged out of the proceeds of selling its assets. See ACCOUNTS; STATEMENTS OF
STANDARD ACCOUNTING PRACTICE.
bank holidays Days that are declared holidays for the clearing banks and are kept
as public holidays under the Banking and Financial Dealing Act 1971 or by royal
proclamation under this Act. In England and Wales there are currently eight bank
holidays a year: New Year's Day (or, if that is a Saturday or Sunday, the following
Monday), Good Friday, Easter Monday, May Holiday (the first Monday in May), Spring
Bank Holiday (the last Monday in May),Summer Bank Holiday (the last Monday in
August), and Christmas Day and the following day (or, if Christmas Day is a Saturday
or Sunday, the following Monday and Tuesday).
bankruptcy n. The state of a person who has been adjudged by a court to be
insolvent (compare WINDING-UP). The court orders the compulsory administration of a
bankrupt's affairs so that his assets can be fairly distributed among his creditors. To
declare a debtor to be bankrupt a creditor or the debtor himself must make an
application (known as a bankruptcy petition) either to the High Court or to a
county court. If a creditor petitions, he must show that the debtor owes him at least
£750 and that the debtor appears unable to pay it. The debtor's inability to pay can
be shown either by: (1) the creditor making a formal demand in a special statutory
form, and the debtor failing to pay within three weeks; or (2) the creditor of a
*judgment debtor being unsuccessful in enforcing payment of a judgment debt
through the courts. If the petition is accepted the court makes a *bankruptcy order.
Within three weeks of the bankruptcy order, the debtor must usually submit a
*statement of affairs, which the creditors may inspect. This may be followed by a
*public examination of the debtor. After the bankruptcy order, the bankrupt's
property is placed in the hands of the *official receiver. The official receiver must
either call a creditors' meeting to appoint a *trustee in bankruptcy to manage the
bankrupt's affairs, or he becomes trustee himself. The trustee must be a qualified
*insolvency practitioner. He takes possession of the bankrupt's property and, subject
to certain rules, distributes it among the creditors.
A bankrupt is subject to certain disabilities (see UNDISCHARGED BANKRUPT).
Bankruptcy is terminated when the court makes an order of *discharge, but a
bankrupt who has not previously been bankrupt within the preceding 15 years is
automatically discharged after three years. See also VOLUNTARY ARRANGEMENT.
bankruptcy order A court order that makes a debtor bankrupt. When the order
is made, ownership of all the debtor's property is transferred either to a court
officer known as the *official receiver or to a trustee appointed by the creditors. It
replaced both the former *receiving order and *adjudication order in bankruptcy
proceedings. See alsoBANKRUPTCY.
bankruptcy petition An application to the High Court or a county court for a
*bankruptcy order to be made against an insolvent debtor. See BANKRUPTCY.
banning order See FOOTBALL HOOLIGANISM.
banns pl. n. The public announcement in church of an intended marriage. Banns
must be published for three successive Sundays if a marriage is to take place in the
Church of England other than by religious licence or a superintendent registrar's
certificate. See also MARRIAGE BY CERTIFICATE; MARRIAGE BY RELIGIOUS LICENCE.
bar n. 1. A legal impediment. 2. An imaginary barrier in a court of law. Only
Queen's Counsel, officers of the court, and litigants in person are allowed between
the bar and the *bench when the court is in session. 3. A rail near the entrance to
each House of Parliament beyond which nonmembers may not pass but to which
they may be summoned (e.g. for reprimand).
Bar n. *Barristers, collectively. To be called to the Bar is to be admitted to the
profession by one of the Inns of Court.
Bar Council (General Council of the Bar of England and Wales) The governing
body of the barristers' branch of the legal profession. It regulates the activities of all
barristers, maintains standards within the Bar, and considers complaints against
barristers. See also COUNCIL OF THE INNS OF COURT.
bare licensee A person who uses or occupies land by permission of the owner but
has no legal or equitable interest in it. Such permission is personal to him; thus he
cannot transfer it. He cannot enforce it against a third party who acquires the land
from the owner. His permission can be brought to an end at any time and he must
leave the property with "all reasonable speed". If he does not do so he becomes a
trespasser (see TRESPASS). See also LICENCE.
bare trust (naked trust, simple trust) A trust in which the trustee has no
obligation except to hand over the trust property to a person entitled to it, at the
latter's request. This will occur when the beneficiary is of full age and under no
disability and the trustee has no duties in respect of the property. Compare ACTIVE
TRUST.
barratry n. 1. Any act committed wilfully by the master or crew of a ship to the
detriment of its owner or charterer. Examples include scuttling the ship and
embezzling the cargo. Illegal activities (e.g.carrying prohibited persons) leading to
the forfeiture of the ship also constitute barratry. Barratry is one of the risks
covered by policies of marine insurance. 2. The former common-law offence
(abolished by the Criminal Law Act 1967) of habitually raising or inciting disputes in
the courts.
barring of entailed interest See ENTAILED INTEREST.
barrister n. A legal practitioner admitted to plead at the Bar. A barrister must be a
member of one of the four *Inns of Court, by whom he is called to the Bar when
admitted to the profession. Barristers normally take a three-year law degree at
university, followed by a one-year course at Bar school after which they are called to
the Bar. Thereafter they take a pupillage in chambers and then seek a permanent
place as a "tenant". The primary function of barristers is to act as *advocates for
parties in courts or tribunals, but they also undertake the writing of opinions and
some of the work preparatory to a triaL Their general immunity from law suits in
negligence for criminal and civil litigation has been abolished. With certain
exceptions a barrister may only act upon the instructions of a *solicitor, who is also
responsible for the payment of the barrister's fee. Barristers have the right of
audience in all courts: they are either *Queen's Counsel (often referred to as leaders
or leading counsel) or *junior barristers. See alsoADVOCACY QUALIFICATION.
baseline n. The line forming the boundary between the INTERNAL WATERS of a state
on its landward side and the territorial sea on its seaward side (see TERRITORIAL
WATERS). Other coastal state zones (the contiguous zone, *exclusive economic zone,
and exclusive fishing zone) are measured from the baseline.
basic award See COMPENSATION.
basic intent See INTENTION; INTOXICATION.
battered child A child subjected to physical violence or abuse by a parent, step

parent, or any other person with whom he is living. A battered child may be
protected if the other parent (or person who is looking after him) applies for an
injunction under the Family Law Act 1996,but only if the child is living, or might
reasonably be expected to live, with the applicant. The Act applies to children under
18.When a child is suffering, or likely to suffer, significant harm, a local authority
may apply for a *supervision order or *care order under the Children Act 1989. See
also EMERGENCY PROTECTION ORDER.
battered spouse or cohabitant A person subjected to physical violence by their
husband, wife, or cohabitant (subsequently referred to as "partner" in this entry).
Battered partners (or those afraid of future violence) may seek protection in a
number of ways. Under the Family Law Act 1996 they can apply to the court for a
*nonmolestation order, directing the other partner not to molest, annoy, or use
violence against them, or for an *occupation order, entitling the applicant to remain
in occupation of the matrimonial home and prohibiting, suspending, or restricting
the abusive partner's right to occupy the house. Battered partners can apply for
these orders if they are also applying for some other matrimonial relief (e.g.a
divorce). The court must attach a power of arrest to a nonmolestation order or an
occupation order if the abuser has used or threatened violence against his or her
partner. This gives a constable the power to arrest without warrant the abuser if he
or she is in breach of the order. In cases of emergency an injunction without notice
may be granted. In theory, a criminal prosecution for "assault or for harassment
under the Protection from Harassment Act 1997could be brought, but in practice
this is seldom used by victims of domestic violence. Under the Housing Act 1985,
local authorities have a duty to supply emergency accommodation to those made
homeless when they have left their homes because of domestic violence.
Those who have been subjected to continued beatings by their partners over a
period of time may plead *provocation or *diminished responsibility if charged
with the murder of their partner.
battery n. The intentional or reckless application of physical force to someone
without his consent. Battery is a form of *trespass to the person and is a *summary
offence (punishable with a *fine at level 5 on the standard scale and/or six months'
imprisonment) as well as a tort, even if no actual harm results. If actual harm does
result, however, the *consent of the victim may not prevent the act from being
criminal, except when the injury is inflicted in the course of properly conducted
sports or games (e.g.rugby or boxing) or as a result of reasonable surgical
intervention. Compare ASSAULT; GRIEVOUS BODILY HARM.
bay n. A well-marked roughly semicircular indentation on a coastline. What does or
does not constitute a bay can be of relevance in determining a state's control of its
coastal waters. The test is a geographical one, taking into account relative
dimensions and configuration. The following three considerations have been taken
into account when making this determination: (1) the depth of the indentation
relative to the width of its mouth; (2) the economic and strategic importance of the
indentation to the coastal state; and (3) the seclusion of the indentation from the
highway of nations on the open sea. See also TERRITORIAL WATERS.
bearer n. The person in possession of a bill of exchange or promissory note that is
payable to the bearer.
beauty competition A method used by an employer contemplating entering a
*single-union agreement, in which a number of unions are invited to present
proposals for collective bargaining arrangements within an establishment. After
reviewing the proposals the company decides to recognize the union that best meets
its criteria.
Beddoe order [from the case re Beddoe (1892)] An order made by the court
granting trustees permission to bring or defend an action. The order protects the
trustees against claims by the beneficiaries that the action should not have been
brought and enables them to recover their costs from the trust property. If an
order has not been obtained, these consequences may not follow, and the trustees
may therefore have to compensate the beneficiaries for any loss and also may
themselves have to pay any costs arising from the action.
belligerent communities, recognition of The formal acknowledgment by a
state of the existence of a civil war between another state's central government and
the peoples of an area within its territorial boundaries. Such recognition brings
about the conventional operation of the rules of war, in particular those
humanitarian restraints upon the combatants introduced by the international law
of armed force. Another result of recognition of belligerency is that both the rebels
and the parent central government are entitled to exercise belligerent rights and
are subject to the obligations imposed on belligerents. Following recognition, third
states have the rights and obligations of *neutrality. Compare INSURGENCY.
bench n. 1. Literally, the seat of a judge in court. The bench is usually in an
elevated position at one side of the court room facing the seats of counsel and
solicitors. 2. A group of judges or magistrates sitting together in a court, or all
judges, collectively. Thus a lawyer who has been appointed a judge is said to have
been raised to the bench.
Benchers (Masters of the Bench)pl. n. Judges and senior practitioners who form
a governing body for each of the Inns of Court. They are recruited by co-option and
elect one of their number annually to be the Treasurer. Benchers are responsible for
admission of students and calls to the Bar and exercise disciplinary powers over the
members of the Inn. Appeal from their decisions is to the Lord Chancellor and
'visitors' (i.e. High Court Judges sitting for the appeal).
bench warrant A warrant for the arrest of a person who has failed to attend
court when summoned or subpoenaed to do so or against whom an order of
committal for contempt of court has been made and who cannot be found. The
warrant is issued during a sitting of the court.
beneficial interest The rights of a beneficiary in respect of the property held in
trust for him. See also EQUITABLE INTERESTS.
beneficial owner An owner who is entitled to the possession and use of land or
its income for his own benefit. Under the Law of Property Act 1925a person who for
valuable *consideration conveys land as beneficial owner gives implied covenants (1)
that he has the right to convey it; (2) for quiet enjoyment (i.e, that the transferee
takes possession free from adverse claims to the land); (3) that the land is free from
encumbrances other than any specified in the conveyance; (4)for further assurance
(i.e. that the transferor will do anything necessary to cure any defect in the
conveyance); and (5) when the land is leasehold (a) that the lease is valid and
subsisting and (b) that the convenants in the lease have been performed and the rent
paid. When the owner of a legal estate is not the beneficial owner (e.g. a mortgagee,
trustee, or personal representative) his only implied covenant in a conveyance of the
land is that he has not himself created any encumbrance.
beneficiary n. 1. A person entitled to benefit from a *trust. The beneficiary holds

a *beneficial interest in the property of which a *trustee holds the legal *interest. A
beneficiary was formerly known as the cestui que trust. 2. One who benefits from
a will.
benevolent purposes Purposes that are for the public good but not necessarily
charitable. They are wider than *philanthropic purposes. See CHARITABLE TRUST.
Benjamin order [from the case re Benjamin (1902)J An order made by the court for
the distribution of assets on death when it is uncertain whether or not a beneficiary
is alive. The order authorizes the personal representatives of the deceased (who will
be administering the estate) to distribute the property on the basis that the
beneficiary is dead (or on some other basis); the personal representatives are
therefore protected from being sued if the beneficiary is in fact alive and entitled.
The beneficiary may, however, trace the trust property (see TRACING TRUST PROPERTY).
bequeath vb. To dispose by will of property other than land. Compare DEVISE.
bequest n. A gift by will of property other than land. Compare DEVISE. See LEGACY.
bereavement. damages for See FATAL ACCIDENTS.
bereavement benefit A benefit payable to widows and widowers, under the
Welfare Reform and Pensions Act 1999, subject to certain conditions. It consists of a
bereavement payment (made as a lump sum), a widowed parent allowance (where
applicable), and a bereavement allowance.
Berne Convention The Berne Convention for the Protection of Literary and
Artistic Works: an international convention of September 1886 that sets out ground
rules for protection of *copyright at national level; it has since been amended
several times. Many nations are signatories to the Convention, including the UKand,
more recently, the United States. See also TRIPS.
best-evidence rule A rule requiring that a party must call the best evidence that
the nature of the case will allow. Formerly of central importance, in modern law it
is largely confined to a rule of practice, not a requirement of law, that the original
of a private document must be produced in order to prove its contents; if it cannot
be produced its absence must be explained.
bestiality n. Anal or vaginal intercourse by a man or a woman with an animal.
Bestiality is a crime if penetration is proved. See also BUGGERY.
best value A requirement under the Local Government Act 1999 that *local
authorities must have regard to economy, efficiency, and effectiveness when
exercising their functions and must make arrangements to secure continuous
improvement.
bias n. See NATURAL JUSTICE.
bid n. See AUCTION.
bigamy n. The act of going through a marriage ceremony with someone when one
is already lawfully married to someone else. Bigamy is a crime, punishable by up to
seven years' imprisonment; however, there is a defence if the accused honestly and
reasonably believed that his or her first spouse was dead or that their previous
marriage had been dissolved or annulled or was void. There is also a special defence
if the accused's spouse has been absent for at least seven years, and is therefore
presumed by the accused to be dead, even if he does not have positive proof of the
death. Even though a person is found not guilty of the crime of bigamy, the
bigamous marriage will still be void if that person had a spouse living at the time
that the second marriage was celebrated.
bilateral contract (synallagmatic contract> A contract that creates mutual
obligations, i.e. both parties undertake to do, or refrain from doing, something in
exchange for the other party's undertaking. The majority of contracts are bilateral
in nature. Compare UNILATERAL CONTRACT.
bilateral discharge The ending of a contract by agreement, when neither party
has yet performed his obligations under it (an executory contract). Each party
supplies consideration for the agreement to discharge by releasing the other from
his existing obligations. Compare UNILATERAL DISCHARGE (see ACCORD AND SATISFACTION).
bill n. 1. Any of various written instruments; for example, a *bill of exchange, a
*bill of indictment, or a *bill of lading. 2. A written account of money owed; for
example, a *bill of costs.
Bill n. A draft of a proposed *Act of Parliament, which must (normally) be passed
by both Houses before becoming an Act. Bills are either public or private, and the
procedure governing their passing by Parliament depends basically on this
distinction. In general, a public Bill is one relating to matters of general concern; it
is introduced by the government or by a private member (private member's Bill).
In the House of Commons the government sets aside certain Fridays for debate on
private member's Bills, and a ballot at the beginning of each session of Parliament
determines the members whose Bills are to have priority on those days. A private
member's Bill that is not supported by the government stands little chance of
successfully completing all stages and becoming an Act. The government sometimes
prefers a private member to sponsor a particularly controversial Bill that they
themselves support; for example, the Abortion Act 1967was introduced by a private
member (David Steel) and was successful because it had the support of the
government of the day. A public Bill, unless predominantly financial, can be
introduced in either House (less controversial Bills are introduced in the Lords first).
The Bill is presented by the minister or other member in charge, passed by being
read three times, and then sent to the other House. Its first reading is a formality,
but it is debated on second and third readings, between which it goes through a
Committee stage and a Report stage during which amendments may be made. A Bill
that has not become an Act by the end of the session lapses; if reintroduced in a
subsequent session, it must go through all stages again.
A private Bill is one designed to benefit a particular person, local authority, or
other body, by whom it is presented. It is introduced on a petition by the promoter,
which is preceded by public advertisement and by notice to those directly affected.
Its Committee stage in the first House is conducted before a small group of
members, and evidence for and against it is heard. Thereafter, it follows the
procedure for public Bills.
A hybrid Bill is a government bill that is purely local or personal in character and
affects only one of a number of interests in the same class. For example, a
government Bill to nationalize one only of several private-sector airlines would be
hybrid. A hybrid Bill proceeds as a public Bill until after second reading in the first
House, after which it is treated similarly to a private Bill.
bill of costs An account of *costs prepared by a solicitor in respect of legal
services he has rendered his client. In general a solicitor may be required to furnish
his client with a bill unless they have made an agreement in writing to the contrary.
If no such agreement has been made the solicitor may not, without the permission
of the High Court, sue for recovery of costsuntil one month after the bill of costs

has been delivered. Any client dissatisfied with a bill can require his solicitor to
obtain a remuneration certificate from the Law Society. The certificate will either
say that the fee is fair and reasonable or it will substitute a lower fee. If the bill is
endorsed with a notice saying that there is a right to ask for a remuneration
certificate within one month, the client has one month from receipt of the bill to
request the certificate. If the bill is not endorsed in this way, the client has a right
to demand a remuneration certificate that lasts for one month from the time he
was notified of this right. If the client requests a remuneration certificate, he must
normally first pay half the bill and all the VATon the bill and expenses and
disbursements set out on the bill before the remuneration certificate is obtained,
unless he has obtained permission from the Law Society to waive this requirement;
this permission is given in exceptional circumstances. These rights are set out fully
in the Solicitors (Non-Contentious Business) Remuneration Order 1994. In contentious
(i.e. litigious) matters the bill is subject to *assessment of costs. See also COSTS
DRAFTSMAN.
bill of exchange An unconditional order in writing, addressed by one person (the
drawer) to another (the drawee) and signed by the person giving it, requiring the
drawee to pay on demand or at a fixed or determinable future time a specified sum
of money to or to the order of a specified person (the payee) or to the bearer. If the
bill is payable at a future time the drawee signifies his *acceptance, which makes
him the party primarily liable upon the bill; the drawer and endorsers may also be
liable upon a bill. The use of bills of exchange enables one person to transfer to
another an enforceable right to a sum of money. A bill of exchange is not only
transferable but also negotiable, since if a person without an enforceable right to
the money transfers a bill to a *holder in due course, the latter obtains a good title
to it. Much of the law on bills of exchange is codified by the Bills of Exchange Act
1882 and the Cheques Act 1992.
bill of indictment A formal written accusation charging someone with an
*indictable offence. The usual method of preferring a bill of indictment (i.e.
bringing it before the appropriate court) is by committal proceedings before a
magistrates' court (see COMMITTAL FOR TRIAL). See also INDICTMENT.
bill of lading A document acknowledging the shipment of a consignor's goods for
carriage by sea (compare SEA WAYBILL). lt is used primarily when the ship is carrying
goods belonging to a number of consignors (a general ship). In this case, each
consignor receives a bill issued (normally by the master of the ship) on behalf of
either the shipowner or a charterer under a *charterparty. The bill serves three
functions: it is a receipt for the goods; it summarizes the terms of the contract of
carriage; and it acts as a document of title to the goods. A bill of lading is also issued
by a shipowner to a charterer who is using the ship for the carriage of his own
goods. In this case, the terms of the contract of carriage are in the charterparty and
the bill serves only as a receipt and a document of title. During transit, ownership of
the goods may be transferred by delivering the bill to another if it is drawn to
bearer or by endorsing it if it is drawn to order. lt is not, however, a *negotiable
instrument. The responsibilities, liabilities, rights, and immunities attaching to
carriers under bills of lading are stated in the Hague Rules. These were drawn up
by the International Law Association meeting at The Hague in 1921and adopted by
an International Conference on Maritime Law held at Brussels in 1922. They were
given effect in the UKby the Carriage of Goods by Sea Act 1924 and so became
known in the UKas the Hague Rules of 1924.They were amended at Brussels in 196&,
effect being given to the amendments by the Carriage of Goods by Sea Act 1971. The
Rules, which are set out in a schedule to the Act, apply to carriage under a bill of
lading from any port in Great Britain or Northern Ireland to any other port and also
to carriage between any of the states by which they have been adopted. Every bill
issued in Great Britain or Northern Ireland to which the Rules apply must state that
fact expressly (the clause giving effect to this requirement is customarily referred
to as the paramount clause). The Hague Rules were completely rewritten in 1978in
a new treaty known as the Hamburg Rules, which drastically alter the privileged
position of a sea carrier as compared to other carriers, but they have not yet been
generally adopted.
bill of sale A document by which a person transfers the ownership of goods to
another. Commonly the goods are transferred conditionally, as security for a debt,
and a conditional bill of sale is thus a mortgage of goods. The mortgagor has a
right to redeem the goods on repayment of the debt and usually remains in
possession of them; he may thus obtain false credit by appearing to own them. An
absolute bill of sale transfers ownership of the goods absolutely. The Bills of Sale
Acts 1878and 1882 regulate the registration and form of bills of sale.
bind over To order a person to provide a bond or *recognizance by means of
which he guarantees to carry out some act (e.g. to appear in court at the proper
time if he has been granted bail) or not to commit some offence (such as causing a
breach of the peace).
birth certificate A certified copy of an entry of birth in the register of births,
deaths, and marriages, which comprises evidence of the detail there stated. See
REGISTRATION OF BIRTH.
blacklist n. A list that contains details of members of trade unions, and in
particular details of trade-union activists, compiled with a view to being used by
outside bodies, usually employers and their associations, for the purpose of
discrimination in relation to the recruitment and treatment of workers. The
utilization of such lists is subject to the regulatory powers of the Secretary of State
under section 3(2) of the Employment Relations Act 1999.
blackmail n. The crime of making an unwarranted demand with menaces for the
purpose of financial gain for oneself or someone else or financial loss to the person
threatened. The menaces may include a threat of violence or of detrimental action,
e.g. exposure of past immorality or misconduct. Blackmail is punishable by up to 14
years' imprisonment. As long as the demand is made with menaces, it will be
presumed to be unwarranted, unless the accused can show both that he thought he
was reasonable in making the demand and that he thought it was reasonable to use
the menaces as a means of pressure. Under the Administration of Justice Act 1970,
there is also a special statutory crime of *harassment of debtors. See also THREAT.
Black Rod. Gentleman Usher of the An official of the House of Lords whose
title derives from his staff of office - an ebony rod surmounted with a gold lion.
The office originated as usher of the Order of the Garter in the 14th century; the
parliamentary appointment dates from 1522. Black Rod is responsible for
maintaining order in the House and summons members of the Commons to the
Lords to hear a speech from the throne.
blasphemy n. Statements or writings that deny - in an offensive or insulting
manner - the truth of the Christian religion, the Bible, the Book of Common Prayer,
or the existence of God. Blasphemy is a crime at common law, and if it is published
there is no need to show an intention to shock or insult or an awareness that the
publication is blasphemous. Prosecutions for blasphemy are now rare and it has been
suggested that the crime be abolished.

blight notice A statutory notice by which an owner-occupier can require a public
authority to purchase land that is potentially liable to compulsory acquisition by
them and therefore cannot be sold at full value on the open market. The land may,
for example, be shown in a development plan to be prospectively required for the
authority's purposes or it may be designated in published proposals as the site of a
future highway.
blockade n. The act of a belligerent power of preventing access to or egress from
the ports of its enemy by stationing a ship or squadron in such a position that it can
intercept vessels attempting to approach or leave such ports. A neutral merchant
vessel trying to break through a blockade is liable to capture and condemnation by
the captor's *prize court.
block exemption Exemption from *Article 81 of the Treaty of Rome for certain
types of anticompetitive agreements that fall within the scope of special EU
regulations that have direct effect in the EU (see COMMUNITY LEGISLATION). Block
exemptions exist in a number of different areas, including *vertical agreements and
agreements relating to motor-vehicle distribution, research and development,
specialization, and *technology transfer. The regulations are published in the EU's
*Official Journal; any agreement that complies with the regulations will be exempt
from Article 81.Many contracts in the EU are drafted to comply with the block
exemption regulations by using the wording of those regulations in the agreements
themselves. Block exemptions can also be issued under UK competition law. EU
block exemptions provide an automatic exemption from the provisions of UK
competition law in the Competition Act 1998.
blood relationship See CONSANGUINITY.
blood specimen See SPECIMEN OF BLOOD.
blood test 1. An analysis of blood designed to show that a particular man could
not be the father of a specified child (it cannot establish that the person is the
father). The court may order blood tests in disputes about paternity, but a man
cannot be compelled to undergo the test against his will. His refusal may, however,
lead the court to draw adverse conclusions. Any attempt to take blood without
consent would be trespass. See also DNA FINGERPRINTING. 2. See SPECIMEN OF BLOOD.
blue book A form of government publication, such as a report of a committee,
inquiry, or royal commission, published in blue covers. See also PARLIAMENTARY PAPERS.
board of inquiry A body convened by naval, army, or air force authorities to
investigate and report upon the facts of any happening (e.g. the loss or destruction
of service property), particularly for the purpose of determining whether or not
disciplinary proceedings should be instituted.
bodily harm See ACTUAL BODILY HARM; ASSAULT; GRIEVOUS BODILY HARM.
body corporate See CORPORATION.
bomb hoax A deception in which one or more people are led to believe that an
explosion is likely to occur that will cause physical injury or damage to property. A
bomb hoax may constitute *blackmail (if accompanied by a demand), public
nuisance, threats to damage property (an offence under the Criminal Damage Act
1971), or wasting the time of the police (under the Criminal Law Act 1967). Under the
Criminal Law Act 1977it is a special statutory offence, punishable by imprisonment
for up to five years and/or a fine, to place or send an object anywhere with the
intention of leading someone to believe that it is likely to explode and cause harm.
It is also an offence falsely to tell anyone that a bomb has been placed in a certain
place or that some other object is liable to explode.
bona vacantia [Latin: empty goods] Property not disposed of by a deceased's will
and to which there is no relation entitled on intestacy. Under the Administration of
Estates Act 1925,such property passes to the Crown, the Duchy of Lancaster, or the
Duke of Cornwall. In practice it is usually used to make ex gratia payments, at the
discretion of the Crown, Duchy, or Duke, to any dependants of the deceased and
anyone else for whom he might reasonably have been expected to provide.
bond n. 1. A deed by which one person (the obligor) commits himself to another
(the obligee) to do something or refrain from doing something. If it secures the
payment of money, it is called a common money bond; a bond giving security for
the carrying out of a contract is called a performance bond. 2. A document issued
by a government, local authority, company, or other public body undertaking to
repay long-term debt with interest. Bond issues are issues of debt securities by a
borrower to investors in return for the payment of a subscription price.
bonus issue (capitalization issue) A method of increasing a company's issued
capital (see AUTHORIZED CAPITAL) by issuing further shares to existing company
members. These shares are paid for out of undistributed profits of the company, the
*share premium account, or the *capital redemption reserve. The bonus issue is
made to shareholders in proportion to their existing shareholding (e.g. a 1 for 2
bonus issue means that shareholders receive an extra free share for every two shares
they hold).
books of account (accounting records) Records that disclose and explain a
company's financial position at any time and enable its directors to prepare its
*accounts. The books (which registered companies are required to keep by the
Companies Act) should reveal, on a day-to-day basis, sums received and expended
together with details of the transaction, assets and liabilities, and (where
appropriate) goods sold and purchased. Public companies must preserve their books
for six years, private companies for three years. Company officers and *auditors (but
not members) have a statutory right to inspect the books.
borough n. An area of local government, abolished as such (except in *Greater
London) by the Local Government Act 1972. A *district may, however, be styled a
borough by royal charter. Originally, a borough was a fortified town; later, a town
entitled to send a representative to Parliament.
borough court An inferior *court of record for the trial of civil actions by
charter, custom, or otherwise in a borough. All remaining borough courts were
abolished in 1974 by the Local Government Act 1972.
borstal n. An institution to which young offenders (aged 15 to 20 inclusive) could
be sent before June 1983 instead of prison. Sentence to borstal has been replaced by
*detention in a young offender institution. See alsoJUVENILE OFFENDER.
bottomry n. See HYPOTHECATION.
boundary n. (in international law) An imaginary line that determines the
territorial limits of a state. Such boundaries define the limitation of each state's
effective *jurisdiction. They are three-dimensional in nature in that they include the
*airspace and subsoil of the state, the terra firma within the boundary, and the
maritime domain of the state's internal waters and territorial sea. See also ACCRETION;
AVULSION; THALWEG, RULE OF THE.
boundary commissions Independent bodies established under the Parliamentary

Constituencies Act 1986 to carry out periodic reviews of parliamentary
constituencies for the purpose of recommending boundary changes to take account
of shifts in population. There are separate commissions for England, Wales, Scotland,
and Northern Ireland. Compare LOCAL GOVERNMENT BOUNDARY COMMISSIONS.
breach of close Entry on another's land without permission: a form of *trespass
to land. A close is a piece of land separated off from land owned by others or from
common land.
breach of confidence 1. The disclosure of confidential information without
permission. 2. Failure to observe an injunction granted by the court to prevent this.
The injunction is most commonly granted to protect *trade secrets (except patents,
registered designs, and copyrights, which are protected under statute), but may also
be granted, for example, to protect the secrecy of communications made between
husband and wife during marriage or, possibly, between cohabitants during their
period of cohabitation. The laws protecting confidential information exist at
common law and will only restrain the dissemination of truly confidential
information. Information that has been disclosed anywhere in the world, unless it
was disclosed under conditions (usually a contract) of confidence, cannot
subsequently be prevented from disclosure by the courts.
breach of contract An actual failure by a party to a contract to perform his
obligations under that contract or an indication of his intention not to do so. An
indication that a contract will be breached in the future is called repudiation or an
anticipatory breach, and may be either expressed in words or implied from
conduct. Such an implication arises when the only reasonable inference from a
person's acts is that he does not intend to fulfil his part of the bargain. For example,
an anticipatory breach occurs if a person contracts to sell his car to A, but sells and
delivers it to B before the delivery date agreed with A. The repudiation of a contract
entitles the injured party to treat the contract as discharged and to sue immediately
for *damages for the loss sustained. The same procedure applies to an actual breach
if it amounts to breach of a *condition (sometimes referred to as fundamental
breach) or breach of an *innominate term when the consequences of breach are
sufficiently serious. In either an anticipatory or actual breach, the injured party
may, however, decide to *affirm the contract instead. When an actual breach
amounts to breach of a *warranty, or breach of an innominate term and the
consequences of breach are not sufficiently serious to allow for discharge, the
injured party is entitled to sue for damages only. However, most commercial
agreements provide a right to terminate the agreement even when the breach is
minor, thus overriding the common law principle described here. The process of
treating a contract as discharged by reason of repudiation or actual breach is
sometimes referred to as *rescission or repudiation, but this latter term is clearly
confusing. Other remedies available under certain circumstances for breach of
contract are an *injunction and *specific performance. See also PROCURING BREACH OF
CONTRACT.
breach of privilege See PARLIAMENTARY PRIVILEGE.
breach of statutory duty Breach of a duty imposed on some person or body by
a statute. The person or body in breach of the statutory duty is liable to any
criminal penalty imposed by the statute, but may also be liable to pay damages to
the person injured by the breach if he belongs to the class for whose protection the
statute was passed Not all statutory duties give rise to civil actions for breach. If the
statute does not deal with the matter expressly, the courts must decide whether or
not Parliament intended to confer civil remedies. Most actions for breach of
statutory duty arise out of statutes dealing with *safety at work.
breach of the peace The state that occurs when harm is done or likely to be
done to a person or (in his presence) to his property, or when a person is in fear of
being harmed through an *assault, *affray, or other disturbance. At common law,
anyone may lawfully arrest a person for a breach of the peace committed in his
presence, or when he reasonably believes that a person is about to commit or renew
such a breach. To breach the peace is a crime in Scotland; elsewhere, magistrates
may *bind over a person to keep the peace. See alsoARREST; OFFENCES AGAINST PUBLIC
ORDER.
breach of trust Any improper act or omission, contrary to the duties imposed
upon him by the terms of the trust, by a trustee or other person in a fiduciary
position. A breach need not be deliberate or dishonest. In all cases the trustee is
personally responsible to the beneficiaries and is liable for any loss caused to the
trust. Any profit made by a trustee by virtue of his position must be handed to the
trust, even when the trust has suffered no loss.
break clause A clause often contained in *fixed-term tenancy agreements that
provides for an option to terminate the tenancy at a particular time or when a
particular event occurs.
breakdown of marriage See MARITAL BREAKDOWN.
breathalyser n. A device, approved by the Secretary of State, that is used in the
preliminary *breath test to measure the amount of alcohol in a driver's breath.
Modern devices, such as the Lion Alcometer 7410,are battery-operated. The suspect
blows through a tube and lights indicate when sufficient breath has been delivered
and the range within which the alcohol level falls. Earlier devices were based on a
tube attached to a balloon, which the suspect had to inflate in one breath: a change
in the colour of crystals inside the tube indicated that there was alcohol in the
breath. A breathalyser should not be used within 20 minutes after consuming
alcohol or on a suspect who has just been smoking. Constables must give
instructions; testing suspects who have difficulty with breathing requires special
care.
breath specimen See SPECIMEN OF BREATH.
breath test A preliminary test applied by a uniformed police officer by means of
a *breathalyser to a driver whom he suspects has alcohol in his body in excess of the
legal limit, has committed a traffic offence while the car was moving, or has driven
a motor vehicle involved in an accident. The test may be administered on the spot to
someone either actually driving, attempting to drive, or in charge of a motor vehicle
on a road or public place or suspected by the police officer of having done so in the
above circumstances. If the test proves positive (see DRUNKEN DRNING), the police
officer may arrest the suspect without a warrant and take him to a police station,
where further investigations may take place (see SPECIMEN OF BREATH). It is an offence
to refuse to submit to a breath test unless there is some reasonable excuse (usually a
medical reason), and a police officer may arrest without warrant anyone who refuses
the test. The offence is punishable by a fine, endorsement (carrying 4 points under
the *totting-up system), and discretionary disqualification. A police officer has the
power to enter any place in order to apply the breath test to someone he suspects of
having been involved in an accident in which someone else was injured or to arrest
someone who refused the test or whose test was positive.

brewster sessions The annual meetings of licensing justices to deal with the
grant, renewal, and transfer of licences to sell intoxicating liquor. See LICENSING OF
PREMISES.
bribery and corruption Offences relating to the improper influencing of people
in certain positions of trust. The offences commonly grouped under this expression
are now statutory. Under the Public Bodies Corrupt Practices Act 1889 (amended by
the Prevention of Corruption Act 1916) it is an offence, if done corruptly (i.e.
deliberately and with an improper motive), to give or offer to a member, officer, or
servant of a public body any reward or advantage to do anything in relation to any
matter with which that body is concerned; it is also an offence for a public servant
or officer to corruptly receive or solicit such a reward. The Prevention of
Corruption Act 1906 (amended by the 1916Act) is wider in scope. It relates to agents,
which include not only those involved in the business of agency but also all
employees, including anyone serving under the Crown or any public body. Under
this Act it is an offence to corruptly give or offer any valuable consideration to an
agent to do any act or show any favour in relation to his principal's affairs; like the
1889Act, it also creates a converse offence of receiving or soliciting by agents.
bridle way Under the Highways Act 1980,a *highway over which the public has a
right of way on foot and a right of way on horseback or leading a horse, with or
without a right to drive animals along the highway. See also DRIFTWAY.
brief n. A document by which a solicitor instructs a barrister to appear as an
advocate in court. Unless the client is receiving financial support from the
Community Legal Service, the brief must be marked with a fee that is paid to
counsel whether he is successful or not. A brief usually comprises a backsheet,
typed on large brief-size paper giving the title of the case and including the
solicitor's instructions, which is wrapped around the other papers relevant to the
case. The whole bundle is tied up with red tape in the case of a private client and
white tape if the brief is from the Crown.
British citizenship One of three forms of citizenship introduced by the British
Nationality Act 1981, which replaced citizenship of the UKand Colonies. The others
are *British Dependent Territories citizenship and *British Overseas citizenship.
On the date on which it came into force (1January 1983), the Act conferred British
citizenship automatically on every existing citizen of the UKand Colonies who was
entitled to the right of abode in the UK under the Immigration Act 1971 (see
IMMIGRATION). As from that date, there have been four principal ways of acquiring
the citizenship - by birth, by descent, by registration, and by naturalization. A
person acquires it by birth only if he is born in the UKand his father or mother is
either a British citizen or settled in the UK (i.e. resident there, and not restricted by
the immigration laws as to length of stay). If born outside the UK, he acquires it by
descent if one of his parents has British citizenship (but not, normally, if that
citizenship was itself acquired by descent). The British Nationality (Falkland Islands)
Act 1983 makes special provisions to confer British citizenship on those people with
connections with the Falkland Islands. The British Nationality (Hong Kong) Act 1997
gave additional rights to certain people from Hong Kong to acquire British
citizenship "by descent" or "otherwise than with descent". Registration may be
applied for by a minor, but adults are eligible only if they have particular links with
the UK.In some cases (e.g. British Dependent Territories citizens, British Overseas
citizens, British protected persons, and British subjects with certain residential
qualifications), it is a right; in others, it is at the discretion of the Secretary of State.
Any adult may apply for naturalization but there are residential and other
requirements (e.g.proof of good character), and its grant is always discretionary.
A registered or naturalized citizen may be deprived of his citizenship if he
obtained it improperly, behaves disloyally, or is sentenced during the first five years
to imprisonment exceeding one year.
British Commonwealth See COMMONWEALTH.
British Dependent Territories citizenship One of three forms of citizenship
introduced by the British Nationality Act 1981to replace citizenship of the UK and
Colonies. The others are *British citizenship and *British Overseas citizenship. The
dependent territories for the purposes of this form of citizenship are listed in a
schedule to the Act; they include Bermuda and Gibraltar, among others.
On the date on which it came into force (1January 1983), the Act conferred the
citizenship automatically on a large number of existing citizens of the UKand
Colonies on the grounds of birth, registration, or naturalization in a dependent
territory or descent from a parent or grandparent who had that citizenship on one
of those grounds. As from that date, acquisition (and deprivation in the case of
registered or naturalized citizens) have been governed by principles similar to those
applying to British citizenship, except that acquisition by registration relates ~lmost
exclusively to minors. A British Dependent Territories citizen can become entitled to
registration as a British citizen by virtue of UK residence. On 1 July 1997, those who
were British Dependent Territories citizens by virtue of a connection with Hong
Kong ceased to be British Dependent Territories citizens. However, they were
entitled to acquire a new form of British nationality, known as *British National
(Overseas),by registration.
British National (Overseas) A form of British nationality that those who were
*British Dependent Territories citizens by virtue of a connection with Hong Kong
may acquire by registration. They ceased to be British Dependent Territories citizens
on 1 July 1997.
British Overseas citizenship One of three forms of citizenship introduced by
the British Nationality Act 1981to replace citizenship of the UK and Colonies. On the
date on which it came into force (1January 1983), the Act conferred the citizenship
automatically on every existing citizen of the UK and Colonies who did not qualify
for either of the other new forms (*British citizenship and *British Dependent
Territories citizenship). Acquisition as from that date has been by registration only,
and this is confined almost completely to minors. A British Overseas citizen may
become entitled to registration as a British citizen by virtue of UK residence.
British protected person One of a class of people defined as such by an order
under the British Nationality Act 1981or the Solomon Islands Act 1978 because of
their connection with former protectorates, protected states, and trust territories. A
British protected person may become entitled to registration as a British citizen by
reason of UK residence.
British subject Under the British Nationality Act 1948, a secondary status that was
common to all who were primarily citizens either of the UK and Colonies or of one
of the independent Commonwealth countries. This status was also shared by a
limited number of people who did not have any such primary citizenship, including
former British subjects who were also citizens of Eire (as it then was) or who could
have acquired one of the primary citizenships but did not in fact do so.
Under the British Nationality Act 1981(which replaced the 1948 Act as from 1
January 1983), the status of British subject was confined to those who had enjoyed it

under the former Act without having one of the primary citizenships; the
expression *commonwealth citizen was redefined as a secondary status of more
universal application. The Act provided for minors to be able to apply for
registration as British subjects and for British subjects to become entitled to
registration as British citizens by virtue of UK residence.
Broadmoor A *special hospital at Crowthorne, near Camberley, in Berkshire. It
treats dangerous and violent patients (previously known as criminal lunatics) who
are sent to it.
brothel n. A place used for the purpose of female or male *prostitution. A
contract for the hiring or letting of a brothel is void (as being contrary to public
policy) and under the Sexual Offences Act 1956 it is an offence for a landlord to let
premises knowing that they are to be used as a brothel. It is also an offence for
someone to help or manage a brothel or for a tenant or occupier of any premises to
permit the premises to be used as a brothel.
Brussels Convention An international convention of 1968 that determines which
courts will have jurisdiction in relation to international disputes (see FOREIGN
JUDGMENTS). Generally, if a contract provides that a certain country's courts will hear
any disputes that arise, this will be respected. The Convention also provides rules
when the parties have not chosen a forum for their disputes. Many EU states are
individually a party to the Convention; the UK signed up to it in 1978 and enacted it
into national law in 1982.
Bryan Treaties (Bryan Arbitration Treaties) [named after William Jennings
Bryan, US Secretary of State 1913-15] The series of treaties, signed at Washington in
1914, that established permanent commissions of inquiry. Such inquiries were
designed to resolve differences between the United States of America and a large
number of foreign states. The treaties were not all identical, but had the following
key feature III common: the *high contracting parties agreed (1) to refer all disputes
that diplomatic methods had failed to resolve to a Permanent International
Commission for investigation and report, and (2)not to begin hostilities before the
report was submitted. See also INQUIRY.
Budget n. See CHANCELLOR OF THE EXCHEQUER.
buggery (sodomy) n. Anal intercourse by a man with another man or a woman or
*bestiality by a man or a woman. Except between consenting adults over 16 in
private (see also HOMOSEXUAL CONDUCT), buggery is a crime if penetration is proved (it
IS not necessary for there to be ejaculation). The person effecting the intercourse is
guilty as the agent, and the other party is called (and is guilty as) the patient.
However, criminal proceedings are not brought without the consent of the
*Director of Public Prosecutions against anyone under 16 for participating in
buggery. It is also an offence (punishable by up to 10 years' imprisonment) to assault
anyone with the intention of committing buggery. See also GROSS INDECENCY;
INDECENCY; INDECENT ASSAULT.
bugging n. See ELECTRONIC SURVEILLANCE.
building lease A lease under which the tenant covenants to erect specified
buildings on the land. Sometimes the lease only begins when the buildings have
been erected. At the end of the lease the buildings generally become the property of
the landlord. It used to be common for residential property to be built under a
building lease, usually for 99 years, under which the landlord would let to a builder
at a rent that ignored the value of the buildings (*ground rent), and the builder
would sell the lease to a tenant. Under a lease of this kind, the tenant may acquire a
statutory right to purchase the freehold under the Leasehold Reform Act 1967.
building preservation notice A notice by a local planning authority (see TOWN
AND COUNTRY PLANNING) that places a building regarded as suitable for listing and in
danger of demolition or alteration under temporary control as a *Iisted building,
pending a decision on its listing by the Secretary of State.
building scheme A defined area of land sold by a single vendor in plots for (or
following) development, each plot being sold subject to similar *restrictive
covenants that are clearly intended to benefit the whole. For example, restrictive
covenants prohibiting trade or excessive noise are frequently imposed on the sale of
plots on a housing estate, to maintain the character of the estate as a whole. The law
allows the owner of any plot in a building scheme to enforce such covenants against
any other plot owner, even though neither was a party to the document that
imposed the covenants.
building society A corporation established under the Building Societies Acts for
the purpose of making loans to its members on the security of mortgages on their
homes, out of funds invested by its members. Generally a building society's security
must be a first legal mortgage on the borrower's home. However, the Building
Societies Act 1986 now empowers societies to lend on the security of second
mortgages and to provide a wide range of banking and other financial services.
Bullock order [from the case Bullock v London General Omnibus Co. (1907)] A form of
order for the payment of costs in civil cases sometimes made when the claimant has,
in the court's opinion, reasonably sued two defendants but has succeeded against
only one of them. The order requires the claimant to pay the successful defendant's
costs but allows him to include these costs in those payable to him by the
unsuccessful defendant. It should be distinguished from a Sanderson order (from
the case Sanderson v Blyth Theatre Co., 1903), in which the unsuccessful defendant is
ordered to pay the costs of the successful defendant directly. A Sanderson order is
generally more advantageous to the claimant, but will not be ordered if, for
example, the unsuccessful defendant is insolvent, because the successful defendant
would thereby be deprived of his costs.
burden of proof The duty of a party to litigation to prove a fact or facts in issue.
Generally the burden of proof falls upon the party who substantially asserts the
truth of a particular fact (the prosecution or the claimant). A distinction is drawn
between the persuasive (or legal) burden, which is carried by the party who as a
matter of law will lose the case if he fails to prove the fact in issue; and the
evidential burden (burden of adducing evidence or burden of going forward),
which is the duty of showing that there is sufficient evidence to raise an issue fit
for the consideration of the *trier of fact as to the existence or nonexistence of a
fact in issue.
The normal rule is that a defendant is presumed to be innocent until he is proved
guilty; it is therefore the duty of the prosecution to prove its case by establishing
both the *actus reus of the crime and the *mens rea. It must first satisfy the
evidential burden to show that its allegations have something to support them. If it
cannot satisfy this burden, the defence may submit or the judge may direct that
there is *no case to answer, and the judge must direct the jury to acquit. The
prosecution may sometimes rely on presumptions of fact to satisfy the evidential
burden of proof (e.g. the fact that a woman was subjected to violence during sexual
intercourse will normally raise a presumption to support a charge of rape and prove
that she did not consent). If, however, the prosecution has established a basis for its

case, it must then continue to satisfy the persuasive burden by proving its case
beyond reasonable doubt (see also PROOF BEYOND REASONABLE DOUBT). It is the duty of
the judge to tell the jury clearly that the prosecution must prove its case and that it
must prove it beyond reasonable doubt; if he does not give this clear direction, the
defendant is entitled to be acquitted.
There are some exceptions to the normal rule that the burden of proof is upon
the prosecution. The main exceptions are as follows. (1) When the defendant admits
the elements of the crime (the actus reus and mens rea) but pleads a special defence,
the evidential burden is upon him to create at least a reasonable doubt in his favour.
This may occur, for example, in a prosecution for murder in which the defendant
raises a defence of self-defence. (2) When the defendant pleads *coercion,
*diminished responsibility, or *insanity, both the evidential and persuasive burden
rest upon him. In this case, however, it is sufficient if he proves his case on a
balance of probabilities (Le. he must persuade the jury that it is more likely that he
was insane than not). (3) In some cases statute expressly places a persuasive burden
on the defendant; for example, a person who carries an *offensive weapon in public
is guilty of an offence unless he proves that he had lawful authority or a reasonable
excuse for carrying it.
burglary n. The offence, under the Theft Act 1968,of either entering a building,
ship, or inhabited vehicle (e.g. a caravan) as a trespasser with the intention of
committing one of four specified crimes in it (burglary with intent) or entering it
as a trespasser only but subsequently committing one of two specified crimes in it
(burglary without intent). The four specified crimes for burglary with intent are
(1) *theft; (2) inflicting *grievous bodily harm; (3) causing *criminal damage; and (4)
rape of a person in the building (see also ULTERIOR INTENT). The two specified offences
for burglary without intent are (1) stealing or attempting to steal; and (2) inflicting
or attempting to inflict grievous bodily harm. Burglary is punishable by up to 14
years' imprisonment. Aggravated burglary, in which the trespasser is carrying a
weapon of offence, explosive, or firearm, may be punished by a maximum sentence
of life imprisonment. The Crime (Sentences) Act 1997provides for an automatic
three-year minimum sentence for third-time burglars, although judges may give a
lesser sentence if the court considers the minimum would be unjust in all the
circumstances. See alsoREPEAT OFFENDER.
Business Expansion Scheme See ENTERPRISE INVESTMENT SCHEME.
business liability Liability (contractual or tortious) for a breach of obligations or
duties arising in the course of a business (which can include the activities of a
government department or local or public authority) or from the occupation of
business premises. The Unfair Contract Terms Act 1977and, for consumer contracts,
the Unfair Terms in Consumer Contracts Regulations 1999limit the extent to which
a person may rely on terms in his contracts that attempt to exclude or restrict his
business liability (see EXCLUSION AND RESTRICTION OF NEGLIGENCE LIABILITY).
business name The name, other than its own, under which a sole trader,
partnership, or company carries on business. The choice of a business name is
restricted by the Business Names Act 1985and by the common law of *passing off.
The true names and addresses of the individuals concerned must be disclosed in
documents issuing from the business and upon business premises. Contravention of
the Act may lead to a fine and to inability to enforce contracts. See alsoCOMPANY
NAME.
business tenancy A *tenancy of premises that are occupied for the purposes of a
trade, profession, or employment. Business tenants have special statutory protection.
If the landlord serves a notice to quit, the tenant can usually apply to the courts for
a new tenancy. If the landlord wishes to oppose the grant of a new tenancy he must
show that he has statutory grounds, which may include breaches of the tenant's
obligations under the tenancy agreement or the provision of suitable alternative
accommodation by the landlord. Otherwise the court will grant a new tenancy on
whatever terms the parties agree or, if they cannot agree, on whatever terms the
court considers reasonable. When the tenancy ends, the tenant may claim
compensation for any improvements he has made.
Under the Landlord and Tenant (Covenants) Act 1995, in force from 1 January 1996,
when business tenancies are assigned the new tenant generally takes over the
covenants (or promises and warranties) of the first tenant in the lease except when
otherwise agreed. Previously the old tenant was always liable, even after
*assignment, if a subsequent tenant defaulted on the lease.
buyer n. The party to a contract for the sale of goods who agrees to acquire
ownership of the goods and to pay the price. See also PURCHASER.
byelaw n. A form of *delegated legislation, made principally by local authorities.
District and London borough councils have general powers to make byelaws for the
good rule and government of their areas, and all local authorities have powers to
make them on a wide range of specific matters (e.g. public health). Certain public
corporations (such as the British Airports Authority) also make byelaws for the
regulation of their undertakings. A statutory power to make byelaws includes a
power to rescind, revoke, amend, or vary them. By contrast with most other forms
of delegated legislation, byelaws are not subject to any form of parliamentary
control but take effect if confirmed by a government minister. It is common for
central government to prepare draft byelaws that may be made by such authorities
as choose to do so. Byelaws are, however, subject to judicial control by means of the
doctrine of *ultra vires.

C
C See COMMAND PAPERS.
Cabinet n. A body of *ministers (normally about 20) consisting mostly of heads of
chief government departments but also including some ministers with few or no
departmental responsibilities; it is headed by the *Prime Minister, in whose gift
membership lies. As the principal executive body under the UKconstitution, its
function is to formulate government policy and to carry it into effect (particularly
by the initiation of legislation). The Cabinet has no statutory foundation and exists
entirely by convention, although it has been mentioned in statute from time to
time, e.g. in the Ministers of the Crown Act 1937, which provided additional salaries
to "Cabinet Ministers". The Cabinet is bound by the convention of collective
responsibility, i.e. all members should fully support Cabinet decisions; a member
who disagrees with a decision must resign. If the government loses a vote of
confidence, or suffers any other major defeat in the House of Commons, the whole
Cabinet must resign.
cabotage n. Transport services provided in one member state of the EU by a
carrier of another state. Article 71 (formerly 75) of the Treaty of Rome provides that
the Council of the European Union may lay down proposals in relation to the
conditions under which nonresident carriers may operate transport services within a
member state.
CAC See CENTRAL ARBITRATION COMMITTEE.
Cafcass See CHILDREN AND FAMILY COURT ADVISORY AND SUPPORT SERVICE.
Calderbank letter (Calderbank offer) Formerly, a letter sent by one party to a
civil action, in which a remedy other than debt or damages is claimed, to another
offering to compromise the action on terms specified in the letter. The first such
letter was sent in the case Calderbank v Calderbank (1976). Calder bank offers are now
(since the introduction of the *Civil Procedure Rules in 1999) known as *Part 36 offers.
call n. 1. A ceremony at which students of the Inns of Court become barristers. The
name of the student is read out and he is "called to the Bar" by the Treasurer of his
Inn. Call ceremonies take place four times a year, once in each dining term. 2. A
demand by a company under the terms of the articles of association or an ordinary
resolution requiring company members to pay up fully or in part the nominal value
of their shares. Unless the articles provide otherwise, calls must be made equally
upon all shareholders of the same class. Calls should be distinguished from
instalments, which become due upon a date predetermined at the time the shares
were issued. See also PAID-UP CAPITAL.
calling the jury Announcing the names of those selected to serve on a jury as a
result of a ballot of the jury panel.
Calvo clause [named after the Argentine jurist Carlos Calvo (1824~1906)] A clause
in a contract stating that the parties to the contract agree to rely exclusively on
domestic remedies in the event of a dispute. The insertion of such a clause in a
contract was an attempt, originally by Latin American countries, to eliminate
diplomatic intervention should a dispute arise with a foreign national: by making
such a contract the foreign national was said to have renounced the protection of

his government. The clause is in effect in most cases superfluous - firstly, because
diplomatic intervention belongs to the state only, and thus cannot be renounced by
an individual; and secondly, because the exhaustion of local remedies is always taken
to be a *condition precedent to appealing for diplomatic intervention. Since the
1930s such clauses have not been used in international disputes.
cancellation n. 1. (in equity) An order by the court that specified documents
should no longer have effect. This may occur when a document has fulfilled its
purpose but its continued existence could lead to improper claims against its
maker. 2. (in commercial law) The right to cancel a commercial contract after it has
been entered into. The right to cancel exists generally for contracts concluded at a
distance (see DISTANCE SELLING), such as mail order and Internet sales when the
contract is with a *consumer, and in particular in such sectors as time-share sales
and consumer credit.
cannabis n. A drug obtained from the crushed leaves and flowers of the hemp
plant (Cannabis sativa); under the Misuse of Drugs Act 1971 cannabis is defined as a
*controlled drug of Class B,but in October 2001 the Home Secretary announced a
decision to reclassify it as a Class C drug. In addition to the offences applying to all
controlled drugs, there is a specific offence applying only to cannabis and cannabis
resin (and also to prepared opium): it is an offence for an occupier, landlord, or
property manager to allow these substances to be smoked on the premises he
occupies or manages.
cannon-shot rule The rule by which a state has territorial sovereignty of that
coastal sea within three miles of land. Its name derives from the fact that in the
17th century this limit roughly corresponded to the outer range of coastal artillery
weapons and therefore reflected the principle terrae dominum finitur, ubi finitur
armarium vis (the dominion of the land ends where the range of weapons ends). The
rule is now not widely recognized: many nations have established a 6- or 12-mile
coastal limit. See alsoTERRITORIAL WATERS.
canonical disability See IMPOTENCE.
canon law (ecclesiastical law) Church law, such as the Roman Catholic Code of
Canon Law and, in England, the law of the Church of England. Unless subsequently
becoming *Iegislation or *custom, it is not part of the laws of England but is
binding on the clergy and lay people holding ecclesiastical office, e.g. churchwardens.
See ECCLESIASTICAL COURTS.
CAP See COMMON AGRICULTURAL POLICY.
capacity of a child in criminal law See DOLI CAPAX.
capacity to contract Competence to enter into a legally binding agreement. The
main categories of persons lacking this capacity in full are minors, the mentally
disordered, the drunk, and corporations other than those created by royal charter.
A minor is capable of making valid contracts for *necessaries and is also bound by
any beneficial contract of service into which he enters (i.e. any contract of
employment or training that is advantageous to him taken as a whole). Certain
contracts of a proprietary nature (e.g.tenancy agreements, agreements to buy
company shares, and partnership agreements) are voidable in that a minor may
repudiate them either before he comes of age or within a reasonable time thereafter.
If he fails to repudiate, he becomes fully bound. All other contracts made by a
minor are unenforceable unless ratified by the minor when he comes of age (see
RATIFICATION) unless the Minors Contracts Act 1987applies. This Act gives the court

the right to require the transfer of property acquired by a minor under a contract
when it is just and equitable to do so and improves the rights of adults contracting
with minors.
A contract made by a person who is mentally disordered or drunk is voidable if
the other party knows that his disorder or drunkenness will prevent him from
understanding what he is doing. This means that, subject to certain limitations, he
can set the contract aside by *rescission.
A corporation incorporated by royal charter has full contractual capacity, but a
statutory corporation has power to contract only for purposes connected with the
objects for which it was incorporated. Other contracts are *ultra vires and void.
capias n. [Latin: that you take] One of a group of writs of assistance conferring
certain supplemental powers upon the sheriff in respect of the enforcement of
judgment. Such writs are now obsolete.
capital 1. (share capital) A fund representing the contributions given to the
company by shareholders in return for their shares. These assets are intended to
protect the interests of any creditors in the event of a *limited company
encountering financial difficulties, and there are rules under the Companies Act
1985 to ensure that this fund is not reduced unless it is absolutely necessary. Each
share is assigned a nominal or par value to enable each holder to measure his
interest in and liability to the company. In a company limited by shares (see LIMITED
COMPANY) the liability of a shareholder is limited to the unpaid purchase price of the
share. If a company is able to command a market price for a share that is above the
nominal value assigned to it, the difference is said to represent a premium. The
total number of shares and their nominal values must be stated in the capital clause
of the *memorandum of association and represents the company's authorized
share capital. See AUTHORIZED CAPITAL. 2. See LOAN CAPITAL.
capital allowance A tax allowance for businesses on capital expenditure on
particular items. These include *machinery and plant, industrial buildings,
agricultural buildings, mines and oil wells, energy-saving equipment, and scientific
equipment. For other types of expenditure neither the capital cost nor the
depreciation is allowable against tax. The percentage of the expenditure allowed
varies (up to 100%) according to the type of expenditure. If a business's capital
allowances exceed its profit, it may carry forward the balance for setting against
future profits.
capital gains tax A tax charged on gains arising from the disposal of assets. The
tax due is a proportion of the chargeable gain, which in general terms is the
amount by which the proceeds of the disposal exceed the original cost of acquiring
the asset. If the disposal results in a loss, this may be offset against other chargeable
gains in the same year or subsequent years. Assets that may be taxed in this way
include stocks, shares, unit trusts, land, buildings, machinery, jewellery, and works
of art. There are, however, a number of exemptions, including private motor
vehicles, an individual's *main residence, National Savings Certificates, and most
personal chattels with an expected life of less than 50 years. Marketable government
securities held for longer than 12 months are also exempt. Gains arising from the
disposal of business assets may be offset against the cost of acquiring replacement
assets. This is known as roll-over relief. Capital gains tax applies only to gains
accruing since 31 March 1982. If the asset was held before this date, the gain is based
on the asset's market value on 31 March 1982. The gain will be reduced by taper
relief if the asset was held for more than one year. For example, a business asset
owned for three years will have the gain reduced by 50%. The first £7500 (for
2001-02) of annual gains is exempt. The rate of tax is the taxpayer's marginal rate of
income tax (10-40% in 2001-02).
capitalization issue See BONUS ISSUE.
capital money Money arising from certain transactions relating to *settled land
or land held on a *trust of land. It may arise from sale, the granting of certain
leases and similar transactions, borrowing on the security of a mortgage, and other
circumstances in which the money should be treated as capital of the settlement, e.g.
the proceeds of a fire insurance claim relating to the land. Generally capital money
must be received by the trustees of the settlement, not the beneficiary. When the
money is raised or paid for a specific purpose (e.g.for improvements authorized by
the Settled Land Act 1925) it must be applied for that purpose. Otherwise, it is
invested and held by the trustees on the same trusts as the land itself was held.
capital punishment Death (usually by hanging) imposed as a punishment for
crime. Capital punishment for murder was abolished in the UKunder the Murder
(Abolition of Death Penalty) Act 1965. The death penalty continued to exist for a
small number of offences, such as *piracyand *treason. The ratification by the UK
of the Sixth Protocol of the European Convention on Human Rights and the
introduction of the *Human Rights Act 1998 has meant that the death penalty is
now completely abolished, apart from special provisions in respect of acts in times
of war. Its reintroduction would be a violation of the Human Rights Act and, at an
international level, a breach of a treaty obligation.
capital redemption reserve A fund established to protect creditors by ensuring
that the assets representing a company's *capital are not reduced. In limited
circumstances a company is permitted to buy back its own shares. If this is provided
for by a term in the original share contract the company redeems its own shares. If
no such term exists the company makes a purchase of its own shares. In either
case the value of the capital sum will be reduced by the amount of the purchase or
redemption unless an equal amount is transferred to a reserve that is subject to the
same restrictions as the capital.
capital transfer tax (eTT) A tax formerly levied on property passing on death
and on transfers of wealth during a person's lifetime. See INHERITANCE TAX.
capitulation n. 1. An agreement under which a body of troops or a naval force
surrenders upon conditions. The arrangement is a bargain made in the common
interest of the contracting parties, one of which avoids the useless loss that is
incurred in a hopeless struggle, while the other, besides also avoiding loss, is spared
all further sacrifice of time and trouble. A capitulation must be distinguished from
an unconditional surrender, which need not be effected on the basis of an
instrument signed by both parties and is not an agreement. 2. A system of
extraterritorial jurisdiction, based partly upon custom and partly upon treaties of
unilateral obligation, in which cases relating to foreign citizens were tried before
diplomatic or consular courts operating in accordance with the laws of the states
concerned. The practice is now obsolete, being a clear breach of the right of
sovereign equality between states.
caravan n. For the purpose of collective *trespass and *powers of search in
anticipation of violent disorder, any structure adapted for human habitation and
capable of being moved from one place to another, either by being towed or being
transported on a motor vehicle or trailer. See alsoUNAUTHORIZED CAMPING.
care and control Formerly, the right to the physical possession and control of the
day-to-day activities of a minor. See PARENTAL RESPONSIBILITY; SECTION 8 ORDERS.

care contact order An order of the court allowing a local authority to restrict
*contact with a child in care (see CARE ORDER). Under the Children Act 1989 there is a
presumption that children in care will have reasonable contact with their parents
(including unmarried parents) or those who have had care of them and a local
authority must now seek a court order if it wishes to limit such contact.
careless and inconsiderate driving The offence of driving a motor vehicle on
a road or other public place without due care and attention or without reasonable
consideration for other road users. This is a *summary offence for which the
maximum penalty is a *fine at level 4 on the standard scale and it carries 3-9
penalty points under the *totting-up system; *disqualification is discretionary. This
offence, defined by the Road Traffic Act 1988 (in a section inserted by the Road
Traffic Act 1991), replaces the former offences of careless driving and inconsiderate
driving. See also CAUSING DEATH BY CARELESS DRIVING.
careless statement See NEGLIGENT MISSTATEMENT.
care or control Protection and guidance of a minor or the discipline of such a
child. A court has authority to make orders in care proceedings only if it is satisfied
that (in addition to other specified conditions) the child is in need of care or is
beyond control. In this context it is not necessary to show that all his day-to-day
needs are being neglected. See CARE ORDER.
care order A court order placing a child under the care of a local authority. Under
the Children Act 1989 an application for a care order can only be made by a local
authority, the NSPCC, or a person authorized by the Secretary of State. The court has
the power to make a care order only when it is satisfied that a child is suffering or
likely to suffer significant harm either caused by the care (or lack of care) given to
it by its parents, or because the child is beyond parental control (the so-called
threshold criteria). The phrase "significant harm", as defined in the Children Act,
means ill treatment (including sexual abuse and forms of treatment that are not
physical) or the impairment of health (either physical or mental) or development
(whether physical, intellectual, emotional. social, or behavioural). Once the court IS
satisfied that the threshold criteria have been satisfied, it must decide whether a
care order would be in the best interests of the child. In so doing, it should
scrutinize the *care plan drawn up in respect of the child. The court may, instead of
making a care order, make a *supervision order or a *section 8 order. Since the
coming into force of the Human Rights Act 1998, the court must ensure that the
granting of a care order will not be in breach of Article 8 (which guarantees a right
to *family life); the court must be satisfied that any intervention by the state
between parents and children is proportionate to the legitimate aim of protecting
family life. A care order gives the local authority *parental responsibility for the
child who is the subject of the order. Although parents retain their parental
responsibility, in practice all major decisions relating to the child are made by the
local authority. While the child is in care, the local authority cannot change the
child's religion or surname or consent to an adoption order or appoint a guardian.
There is a presumption that parents will have reasonable contact with their children
while in care; if the local authority wishes to prevent this, it must apply for a court
order to limit such contact. A parent with parental responsibility, the child itself, or
the local authority may apply to discharge a care order. No care order can be made
with respect to a child who is over the age of 16. A local authority can no longer use
*wardship proceedings as an alternative means of obtaining a care order, nor may it
take a child into care through administrative means. Before the Crime and Disorder
Act 1998 came into force a care order could only be made if the threshold criteria
were ~et. N?w, .h~wever, the family proceedings court has the power to make a care
order If a child IS in breach of a *child safety order.
care plan A plan drawn up by a local authority in respect of a child it is looking
after. The purpose of a care plan is to safeguard and promote the welfare of the
child in accordance with the local authority's duties under the Children Act 1989.
The plan will address such matters as where the child is be placed and the likely
duration of such a placement, arrangements for contact between the child and its
famil~, and .what the needs of the child are and how these might be met. When a
court IS deciding whether or not to make a *care order or a *supervision order in
respect of a child, the care plan is of crucial importance and must be scrutinized
carefully.
care proceedings See CARE ORDER.
c~rgo n. Goods, other than the personal luggage of passengers, carried by a ship or
aircraft, Normally (but not necessarily in relation to insurance) "cargo" denotes the
whole of a ;;hip's loading. Under a ship's charterparty, the freight payable to the
shipowner IS normally calculated at a rate per tonne of cargo. Unless otherwise
agreed, the duty of the charterer is to provide a full and complete cargo: if he fails
to do this, he is liable for damages known as dead freight.
carriage of goods by air The act of carrying goods by air, which is normally
under a contract between the consignor and a *carrier. International carriage has
been the sUbj~ct of several international conventions: Warsaw (1929), The Hague
(1955), Guadalajara (1961),Guatemala (1971),and Montreal (1975). The UKis party to a
number of these Conventions, which have been given effect by the Carriage by Air
Acts 1932, 1961, and 1962 and the Carriage by Air and Road Act 1979 (in part not yet
in force). They deal with such matters as the nature and limit of the carrier's
liability, who can sue and be sued, the right to stop in transit, the documentation of
air carriage, and time limits for complaint.
~arrjer n. One who transports persons or goods from one place to another. Carriage
IS normally under a contract that may affect or limit the duties otherwise imposed
by law, but sum contracts may be subject to statutory control. Carriers of goods are
bailees of the goods consigned. A common carrier is one who publicly undertakes to
carry any goods or persons for payment on the routes he covers. A common carrier
is subject to three ~ommon-Iawduties: (1) he must, if he has space, accept any goods
of the type he carnes or any person; (2)he must charge only a reasonable rate; and
(3) he is strictly liable for all loss or damage to goods in the course of transit (but see
INHERENT VICE). All other carriers are private carriers, and they owe only a duty of
reasonable care.
car~jer's I~en The right of a common *carrier to retain possession of goods he has
carried until he has been paid his freight or charge.
cartel n. 1. An ag.reement between belligerent states for certain types of nonhostile
transactions, especially the treatment and exchange of prisoners. 2. A national or
:nternatlOnal association of independent enterprises formed to create a *monopoly
in a given industry.
case n. 1. Acourt *action. 2. A legal dispute. 3. The arguments, collectively, put
forward by either SIde in a court action, 4. (action on the case) A form of action
abolished by the Judicature Acts 1873-75.
case law The body of law set out in judicial decisions, as distinct from *statute
law. See alsoPRECEDENT.

case management Under the *Civil Procedure Rules (CPR), the new procedure
for managing civil cases, as proposed in Lord Woolf's Access to Justice (Final Report)
1996.Under the new regime, the judge becomes the case manager. A case is allocated
to one of three tracks, depending on the value of the dispute and the complexity of
the case: the *small claims track, *fast track, or *multi-track. Each case is actively
managed by the judge on a court-controlled timetable with the aims of encouraging
and facilitating cooperation between the parties, identifying the areas in dispute,
and encouraging settlement. The court can control progress and even 'strike out' an
action. In considering the benefits of a particular way of hearing it can use a range
of procedural devices to enforce discipline against lawyers not complying with CPR
*pre-action protocols and/or *Practice Directions, including costs sanctions and
refusing an extension of time.
case management conference Under the *Civil Procedure Rules, a central
feature of *case management at which the judge reviews the progress of the case
preparation, including the degree of compliance with *Practice Directions and *preaction
protocols. Legal representatives will attend, and the judge is able to make
further directions as are considered necessary.
case stated A written statement of the facts found by a magistrates' court or
tribunal (or by the Crown Court in respect of an appeal from a magistrates' court)
submitted for the opinion of the High Court (Queen's Bench Divisional Court) on
any question of law or jurisdiction involved. Any person who was a party to the
proceedings or is aggrieved by the decision can request the court or tribunal to state
a case; if it wrongly refuses, it can be compelled to do so by a *mandatory order.
casus belli [Latin: occasion for war] An event giving rise to war or used to justify
war. The only legitimate casus bellinow is an unprovoked attack necessitating selfdefence
on the part of the victim.
casus omissus [Latin: an omitted case) A case inadvertently not provided for in a
defective statute.
catching bargain (unconscionable bargain) A contract on very unfair terms.
An example is the sale of a future interest in property at a gross undervalue, made
by someone with expectations to succeed to the property who is in immediate need
of money. Such a contract may be set aside or modified by a court of equitable
jurisdiction.
cattle trespass An early form of strict liability for damage done by trespassing
cattle or other livestock (but not dogs or cats), replaced in England by the Animals
Act 1971. Under the 1971 Act, the owner of livestock that strays on another's land and
does damage to the land or any property on it is liable for the damage and any
expenses incurred in keeping the livestock or ascertaining to whom it belongs. See
CLASSIFICATION OF ANIMALS.
causa causans [Latin] The effective cause. See CAUSATION.
causation n. The relationship between an act and the consequences it produces. It
is one of the elements that must be proved before an accused can be convicted of a
crime in which the effect of the act is part of the definition of the crime (e.g.
murder). Usually it is sufficient to prove that the accused had *mens rea (intention
or recklessness) in relation to the consequences; the *burden of proof is on the
prosecution. In tort it must be established that the defendant's tortious conduct
caused or contributed to the damage to the claimant before the defendant can be
found liable for that damage. Sometimes a distinction is made between the effective
or immediate cause (causa causans) of the damage and any other cause in the
sequence of events leading up to it (causa sine qua non). Simple causation problems
are solved by the "but for" test (would the damage have occurred but for the
defendant's tort?), but this test is inadequate for cases of concurrent or cumulative
causes (e.g.if the acts of two independent tortfeasors would each have been
sufficient to produce the damage).
Sometimes a new act or event (novus actus (or nova causa) interveniens) may
break the legal chain of causation and relieve the defendant of responsibility. Thus
if a house, which was empty because of a nuisance committed by the local authority,
is occupied by squatters and damaged, the local authority is not responsible for the
damage caused by the squatters. Similarly, if X stabs Y,who almost recovers from
the wound but dies because of faulty medical treatment, X will not have "caused"
the death. It has been held, however, that if a patient is dying from a wound and
doctors switch off a life-support machine because he is clinically dead, the attacker,
and not the doctors, "caused" the death. If death results because the victim has some
unusual characteristic (e.g.a thin skull) or particular belief (e.g.he refuses a blood
transfusion on religious grounds) there is no break in causation and the attacker is
still guilty.
cause n. 1. A court *action. 2. See CAUSATION.
Cause Book The book recording the issue of claim forms in the *Central Office of
the Supreme Court and certain later stages of the court proceedings.
Cause List A list of cases to be heard, displayed in the precincts of a court. The
DailyCause List lists all cases for trial in the Royal Courts of Justice and its outlying
buildings. It also contains the warned list of cases about to be listed for hearing.
cause of action The facts that entitle a person to sue. The cause of action may be
a wrongful act, such as *trespass; or the harm resulting from a wrongful act, as in
the tort of *negligence.
causing death by careless driving The offence committed by someone whose
driving while unfit through drink or drugs or driving over the prescribed limit (see
DRUNKEN DRNING) results in the death of another person. For this offence, which was
created by the Road Traffic Act 1991, the driving must be judged careless (see
CARELESS AND INCONSIDERATE DRIVING) rather than dangerous (compare CAUSING DEATH
BY DANGEROUS DRIVING); the maximum punishment is five years' imprisonment and
compulsory *disqualification.
causing death by dangerous driving The offence committed by someone
guilty of *dangerous driving that results in the death of another person. The
offence is defined by the Road Traffic Act 1991 and replaces the former offence of
causing death by reckless driving (defined in the Road Traffic Act 1988). If the
danger is such that there is an obvious and serious risk of injury to another person
or significant damage to property - and the driver either recognizes the risk or fails
to give any thought to the possibility that such a risk exists - this will constitute
reckless *manslaughter in addition to causing death by dangerous driving. The
maximum penalty for causing death by dangerous driving is ten years'
imprisonment and compulsory *disqualification for not less than two years.
caution n. 1. (in criminal law) a. A warning that should normally be given by a
police officer, in accordance with a code of practice issued under the Police and
Criminal Evidence Act 1984,when he has grounds for believing that a person has
committed an offence and when arresting him. The caution is in the following
terms: "You do not have to say anything. But it may harm your defence if you do

not mention when questioned something which you later rely on in court. Anything
you do say may be given in evidence." The caution must be given before any
questions are put. If a person is not under arrest when a caution is given, the officer
must say so; if he is at a police station the officer must also tell him that he is free
to leave and remind him that he may obtain legal advice. The officer must record
the caution in his pocket book or the interview record, as appropriate. See RIGHT OF
SILENCE. b. A warning by a police officer, on releasing a suspect when it has been
decided not to bring a prosecution against him, that if he is subsequently reported
for any other offence, the circumstances relating to his first alleged offence may be
taken into account. It is common practice for the police to give this type of caution,
although the procedure has no statutory basis and there are no legal consequences if
it is not followed. 2. (in land law) A document lodged at the Land Registry by a
person having an interest in registered land, requiring that no dealing with that
land be registered until the cautioner has been notified, so that he may lodge an
objection. For example, a caution might be lodged by someone who was induced by
fraud to convey his land, in order to prevent the fraudulent transferee from
registering his title. If a caution is lodged unreasonably the cautioner may be
ordered to compensate anyone to whom it causes loss. The Land Registrar may order
the caution to be vacated if he considers it to be unjust.
caveat n. [from Latin: let him beware] A notice, usually in the form of an entry in
a register, to the effect that no action of a certain kind may be taken without first
informing the person who gave the notice (the caveator). For example, a caveat may
be filed in the Probate Registry by someone claiming an interest in a deceased
person's estate. The caveat prevents anyone else from obtaining a *grant of .
representation without reference to the caveator, who may thus ensure that hIS
claim is dealt with in the distribution of the estate.
caveat actor [Latin] Let the doer be on his guard.
caveat emptor [Latin: let the buyer beware] A common-law maxim warning a
purchaser that he could not claim that his purchases were defective unless he
protected himself by obtaining express guarantees from the vendor. The maxim has
been modified by statute: under the Sale of Goods Act 1979(a consolidating statute),
contracts for the sale of goods have implied terms requiring the goods to
correspond with their description and any sample and, if they are sold in the course
of a business, to be of satisfactory quality and fit for any purpose made known to
the seller. Each of these implied terms is a condition of the contract. However, in
most commercial contracts the implied terms are excluded. This will usually be
valid unless the exclusion is unreasonable or unfair under the law relating to unfair
contract terms. These statutory conditions do not apply to sales of land, to which
the maxim caveat emptor still applies as far as the condition of the property is
concerned. However, a term is normally implied that the vendor must convey a good
*title to the land, free from encumbrances that were not disclosed to the purchaser
before the contract was made.
caveat subscriptor [Latin] Let the person signing (e.g.a contract) be on his guard.
caveat venditor [Latin] Let the seller be on his guard.
Cd See COMMAND PAPERS.
CE [French Communaute europeenne: European Community] A marking applied to
certain products, such as toys and machinery, to indicate that they have complied
with certain EU directives that apply to them, including *electromagnetic
compatibility. A CE marking is not a quality mark, but it indicates that health and
safety and other legislation has been complied with. The manufacturer or first
importer into the EU must apply the CEmarking; fines can be levied for breach of
the rules.
CELEX [Latin Communitatis Buropae Lex: European Community Law]A database of
EU material of a legislative nature, such as directives, regulations, and treaties,
including national legislation. It is possible to access this electronically through the
on-line data service EURIS.
Central Arbitration Committee (CAC) A statutory body, established under the
Employment Protection Act 1975(consolidated into the Trade Union and Labour
Relations (Consolidation) Act 1992), that consists of a chairman and members
appointed by the Secretary of State for Work and Pensions from persons nominated
by *ACAS. The Committee determines disputes relating to: (1) arbitration in *trade
disputes referred by ACAS with the consent of both parties; (2) *disclosure of
information to trade unions; (3) the application of the Equal Pay Act 1970(see EQUAL
PAY) to collective agreements (see COLLECTIVE BARGAINING); (4) recognition of trade
unions for the purpose of *collective bargaining (see RECOGNITION PROCEDURE); and (5)
specified issues in relation to the introduction and operation of *European Works
Councils.
When the Committee makes an award of pay and/or conditions of employment
these generally become incorporated in the contracts of employment of individual
employees and are enforceable in the courts.
Central Criminal Court The principal *Crown Court for Central London, usually
known from its address as the Old Bailey. The Lord Mayor of London and any City
aldermen may sit as judges with High Court or circuit judges or recorders. See also
COMMON SERJEANT.
Central Office The administrative organization of the *Supreme Court of
Judicature in London, from which claim forms are issued. Its business is
superintended by the Queen's Bench Masters (see MASTERS OF THE SUPREME COURT), one
of whom sits each day as practice master to give any directions that may be
required on questions of practice and procedure.
certificate of incorporation A document issued by the Registrar of Companies
after the *registration of a company, certifying that the company is incorporated
(see INCORPORATION). For a *limited company, the certificate also certifies that the
company members have limited liability, and for a *public company the fact that it
is a public company. The validity of the incorporation cannot thereafter be
challenged.
Certification Officer (CO) An official appointed by the Secretary of State for
Work and Pensions (formerly Employment) under the Trade Union and Labour
Relations (Consolidation) Act 1992, whose main duties concern the supervision of
trade unions' and employers' associations' obligations as bodies corporate to keep
accounting records and submit audited reports and accounts to him. He is also
responsible for the certification of trade unions as independent in appropriate cases
(see INDEPENDENT TRADE UNION). The powers of the COwere greatly increased by the
Employment Relations Act 1999; in particular, the COsubstantially took over the
duties of both the Commissioner for the Rights of Trade Union Members and the
Commissioner for the Protection Against Unlawful Industrial Action, which were
abolished by that Act. See STRIKE; TRADE UNION.
certiorari n. [Latin: to be informed] See QUASHING ORDER.

certum est quod certum reddi potest [Latin] If something is capable of being
made certain, it should be treated as certain. For example, a landlord can only
distrain for rent (see DISTRESS) if the amount of rent is certain. However, if the
amount of the rent is capable of being ascertained, it is treated as certain.
cessate grant A grant (e.g. of a lease) renewing a previous grant that has lapsed.
cesser n. The premature termination of some right or interest. For example, if
land is held in trust for A for life so long as he does not marry and then for B, there
is a cesser of A's life interest if he marries. A mortgage under which the mortgagor
attorns tenant of the mortgagee (see ATTORNMENT) provides for cesser on redemption:
thus the tenancy ends whenever the debt is repaid.
cesser clause A clause inserted in a charterparty when the charterer intends to
transfer to a shipper his right to have goods carried. It provides that the shipowner
is to have a lien over the shipper's goods for the freight payable under the
charterparty, and that the charterer's liability for that freight will cease accordingly
on shipment of a full cargo.
cession n. The transfer of sovereignty over a territory by means of a treaty. This
may either be a peace treaty (e.g.the peace treaty between France and Germany in
1871 that made Alsace-Lorraine part of the German empire), a treaty to exchange
territory (e.g.the treaty of 1890 whereby the UK ceded Heligoland to Germany in
exchange for Zanzibar), or more rarely a treaty bestowing a gift. See also DERIVATIVE
TITLE.
cestui que trust [Norman French, from cestuiaque trust, he for whom is the
trust] Formerly, a beneficiary under a trust.
cestui que use [Norman French, from cestuiaque use,he to whose use] A person
to whose use (i.e. for whose benefit) property was held by another. The modern
equivalent is the *beneficiary. See USE.
cestui que vie [Norman French, from cestuiaque vie,he for whose life] A person
for whose life an interest in property is held by another person. See ESTATE PUR AUTRE
VIE.
CEl See COMMON EXTERNAL TARIFF.
CFP See COMMON FISHERIES POLICY.
CFSP (common foreign and security policy) See EUROPEAN UNION; MAASTRICHT
TREATY.
chain of executorship (chain of representation) A rule under the
Administration of Estates Act 1925 by which the executor of someone who was
himself a sole or surviving executor stands, on the latter's death, in his place as
executor of the testator who appointed him. Thus, if A appoints B as his only
executor and B in turn appoints C as his own executor, on the death of A and B,C
becomes the executor of both. The rule does not apply on intestacy or to an
administrator, and the chain is broken by the failure of a testator to appoint an
executor or a failure to obtain probate. See alsoDE BONIS NON ADMINISTRATIS.
challenge to jury A procedure by which the parties may object to the
composition of a jury before it is sworn. Before the Criminal Justice Act 1988 came
into force a challenge could be peremptory (i.e. with no reason for the challenge
being given) or for cause. Peremptory challenges were abolished by the Criminal
Justice Act 1988, but the prosecution can ask that a juror "stand by", in which case
he rejoins the jury panel and may be challenged for cause when the rest of the
panel has been gone through. Either party may challenge for cause. This may be to
the array, in which the whole panel is challenged by alleging some irregularity in
the summoning of the jury (e.g. bias or partiality on the part of the jury
summoning officer): or to the polls, in which individual jurors may be challenged.
Any challenge to jurors for cause is tried by the judge before whom the accused is
to be tried.
chambers pl. n. 1. The offices occupied by a barrister or group of barristers. (The
term is also used for the group of barristers practising from a set of chambers.)
2. The private office of a judge, master, or district judge. Most *interim proceedings
are held in chambers (in private) and the public is not admitted, although judgment
may be given in open court if the matter is one of public interest.
champerty n. See MAINTENANCE AND CHAMPERTY.
Chancellor of the Exchequer The minister who, as political head of the
Treasury, is responsible for government monetary policy, raising national revenue
(particularly through taxation), and controlling public expenditure in the UK. Each
year he presents to Parliament a Budget (usually in March) proposing changes in
revenue and taxation and a statement (in November) proposing government
expenditure.
Chancery Division The division of the *High Court of Justice created by the
Judicature Acts 1873-75 to replace the *Court of Chancery. The work of the Division
is principally concerned with matters relating to real property, trusts, and the
administration of estates but also includes cases concerned with company law,
patents and other *intellectual property, and confidentiality cases. The effective
head of the Division is the *Vice Chancellor, although the *Lord Chancellor is
nominally its president. It may hear some *appeals. See also APPELLATE JURISDICTION;
COMPANIES COURT.
Chancery Masters See MASTERS OF THE SUPREME COURT.
change of name A natural person (i.e. a human being) may change his or her
"surname simply by using a different name with sufficient consistency to become
generally known by that name. A change is normally given formal publicity (e.g. by
means of a statutory declaration, deed poll, or newspaper advertisement), but this is
not legally necessary. A woman can also change her surname through operation of
law on getting married. A young child, however, has no power to change its
surname, nor does one parent have such a power without the consent of the other.
(An injunction may be sought to prevent a parent from attempting to change a
child's name unilaterally.) When a mother has remarried after divorce or is living
with another person, and wishes to change the name of the child to that of her new
partner, a court order must be obtained and the welfare of the child will be the
first and paramount consideration. A person's Christian name (i.e. a name given at
baptism) can, under ecclesiastical law, be changed only by the bishop on that
person's subsequent confirmation.
A *juristic person may change its name but may be subject to formal procedure
before the change of name takes effect; for example, for a company limited by
shares, a change of name is possible only on the passing of a special resolution of the
Company at an extraordinary or annual general meeting.
Chapter VII The chapter of the United Nations Charter that is headed: "Action
with respect to threats to the peace, breaches of the peace and acts of aggression"
and includes Articles 39-51 of the Charter. Those who devised the UN Charter were
acutely aware of the failure of the former Covenant of the League of Nations in

respect of *collective security, namely (1) that it left it oper: to m~mber states to
respond, or not respond, to the call for military aid and (2) It provided no machinery
or system for organizing League forces in advance or for coordinating such
responses as members might make. Chapter VII addressed such pro?lems by
empowering the Security Council to orchestrate such coll~ctive actions unde~
Articles 42 and 43. Under Articles 43-47 advance preparation of collective action was
to be made through a *Military Staff Committee. Article 51 creates a right to *selfdefence
for member states; controversially, it is held to have preserved the Wider
scope of self-defence in customary international law. See alsoENFORCEMENT ACTION.
character n. (in the law of evidence) 1. The reputation of a party or witness. In
civil cases the reputation of a party is not admissible unless it is directly in issue, as
it may be in an action for *defamation. In criminal cases the accused may call
evidence of his good character or give evidence to show the bad character of the
witnesses for the prosecution. If he does so, the prosecution may call evidence in
rebuttal, but any such evidence must be limited to evidence of reputation and not
include opinions about the accused's *disposition. Evidence of the reputation for
truthfulness of a witness may be given in both civil and criminal cases. 2. Loosely,
the disposition of a party.
charge n. 1. A formal accusation of a crime, usually made by the police after
*interrogation. See alsoINDICTMENT. 2. Instructions given by a Judge to ~ Jury. 3. A
legal or equitable interest in land, securing the payment of money. It gives the
creditor in whose favour the charge is created (the chargee) the nght to payment
from the income or proceeds of sale of the land charged, in priority to claims
against the debtor by unsecured creditors. Under the ~aw of .Property Act 1925 the
only valid legal charges are: (1) a *rentcharge payable immediately and for a ~Ixed
period or in perpetuity; (2)a charge by way of legal *mortgage; and (3) certain
charges arising under statute (e.g.under the Charging Orders Act 1979). All others
take effect as equitable interests. All mortgages and charges over registered land
must be registered to be enforceable against purchases of the land; both legal
mortgages and *equitable charges over unregistered land must be registered as land
charges unless the mortgagee or chargee holds the title deeds as security (se~
REGISTRATION OF ENCUMBRANCES). 4. An interest in company property created m
favour of a creditor (e.g.as a *debenture holder) to secure the amount owing. Most
charges must be registered at the Companies Registry. A f~xe~ charge is attached to
specific assets (e.g. premises, plant and machinery) and while in force prevents the
company from dealing freely with those assets without the consent of the lender. A
floating charge does not immediately attach to any sl?ecific assets but 'floats' over
all the company's assets until *crystallization. Until this point the ~ompa~y IS free
to deal freely with such assets; this type of charge is SUItable for circulating assets
(e.g. cash, stock in trade), whose values must necessarily fluctuate. In the ~vent of
the company not paying the debt the creditor can secure the a~oun.t owm? in
accordance with the terms of the charge. If the company goes into liquidation (see
WINDING-UP) the order for repayment of debts laid down under the Insolvency Act
1986 is that fixed-charge holders are paid before floating-charge holders. A charg~
can also be created upon shares. For example, the articles of association usuall! give
the company a *lien in respect of unpaid *calls, and company meIfolbers may, in
order to secure a debt owed to a third party, charge their shares, either by a fuJI
*transfer of shares coupled with an agreement to retransfer upon repayment of the
debt or by a deposit of the *share certificate.
chargeable gain A profit made on the disposal of an asset, which may attract
*capital gains tax or *corporation tax.
charge by way of legal mortgage See MORTGAGE.
charge certificate A certificate issued by the Land Registry to a legal mortgagee
of registered land as evidence of his title. It will only be issued if the *Iand
certificate is deposited at the Land Registry for the duration of the mortgage.
charge sheet A document in which an officer at a police station records an
accusation against a suspect. It normally also gives details of his name and those of
his accusers, who should sign the sheet.
charges register See LAND REGISTRATION.
charging clause A clause in a trust entitling a trustee to charge for his services.
When a solicitor or some other professional person is appointed trustee, he is
usually authorized to charge for his services. In the absence of such a clause neither
he nor his firm is entitled to charge for his professional services, although he may
recover expenses incurred during the course of his trusteeship.
charging order A court order obtained by a judgment creditor by which the
judgment debtor's property (including money, land, and shares) becomes security for
the payment of the debt and interest.
charitable trust A trust for purposes that the law regards as charitable. There is
no statutory definition of 'charitable'. In a legal sense, a purpose is charitable only if
it is for the furtherance of religion, for the advancement of education, for the relief
of poverty, or for other purposes beneficial to the community. In every case the
purpose must be for the benefit of the public or a section of it (though in cases of
relief of poverty this is very easily satisfied); the precise meaning depends on the
class of charity in question. The last class is taken to include every object of general
utility to the public; it includes, for example, trusts for the protection of animals
generally and for the provision of fire brigades. A trust cannot be charitable unless
it is solely and exclusively for charitable purposes: benevolent and philanthropic
purposesare not necessarily charitable. Trusts for purposes that are predominantly
political are not charitable. A charitable trust has many advantages over a private
noncharitable trust: its objects do not have to be certain; charitable trusts are not
subject to the *rules against perpetuities or against perpetual trusts; if the objects
are or have become impossible or impracticable, the trust may be saved by the *cypres
doctrine; and the trustees may act by a majority. The greatest benefit to a
charitable trust is that it has fiscal advantages: a charity is either wholly or partially
exempt from income tax, corporation tax, capital gains tax, inheritance tax, stamp
duty, and council tax.
charity n. A body (corporate or not) established for one of the charitable purposes
specified by statute (see CHARITABLE TRUST). A charity is subject to the control of the
High Court in the exercise of its jurisdiction with respect to charities. With certain
exceptions, all charities are required to be registered with the *Charity
Commissioners.
Charity Commissioners A statutory body, now governed by the Charities Act
1993, generally responsible for the administration of charities. The Commissioners
are responsible for promoting the effective use of charitable resources, for
encouraging the development of better methods of administration, for giving
charity trustees information and advice on matters affecting charity, and for
investigating and checking abuses. The Commissioners maintain a register of
charities and decide whether or not a body should be registered: an appeal from
their decision may be made to the High Court. Their Annual Reports (published by

the Stationery Office) indicate how the Commissioners operate and how they are
allowing the law of charity to develop.
charter n. 1. A document evidencing something done between one party and
another. The term is normally used in relation to a grant of rights or privileges by
the Crown; for example, the grant of a royal charter to a university. 2. A
constitution, e.g. the Charter of the United Nations.
charterparty n. A written contract by which a person (the charterer) hires from a
shipowner, in return for the payment of freight, the use of his ship or part of it for
the carriage of goods by sea. The hiring may be either for a specified period (a time
charter) or for a specified voyage or voyages (a voyage charter), and the charterer
may hire the ship for carrying either his own goods alone or the goods of a number
of shippers, who mayor may not include himself. A special but now rare type of
charterparty is the charter by demise. It is analogous to a lease of land and gives
the charterer full possession and control of the ship. The normal charterparty is a
simple charter, under which the shipowner retains possession and control and the
primary rights of the charterer are confined to placing goods on board and choosing
the ports of call. A number of standard forms (known by codenames such as
Austwheat and Shelltime) have been developed for use in particular trades. See also
BILL OF LADING; CESSER CLAUSE.
chastisement n. Physical punishment as a form of discipline. A parent or
guardian has the common-law right to inflict reasonable and moderate punishment
on his children and may authorize someone *in loco parentis to do so, such as a child
carer, nanny, or school. State schools now prohibit this, although if parents have
consented it is still lawful in private schools. A husband does not, however, have the
right to chastise his wife, nor a wife her husband. Illegal chastisement may amount
to one of the *offences against the person.
chattel n. Any property other than freehold land (compare REAL PROPERTY). Leasehold
interests in land are called chattels real, because they bear characteristics of both
real and personal property. Tangible goods are called chattels personal. The
definition of "personal chattels" in the Administration of Estates Act 1925,for the
purposes of succession on intestacy, excludes chattels used for business purposes at
the intestate's death, money, and securities for money.
cheat n. A common-law offence, now restricted to defrauding the public revenue
(e.g.the tax authorities). No act of deceit is required. It is enough if one dishonestly
fails to make VATor other tax returns and to pay the tax due.
check-off n. A system whereby a company deducts union membership fees from a
member's wages during the calculation of those wages and pays them over to the
union. Such deductions are regulated by the Deregulations (Deduction from Pay of
Union Subscriptions) Order 1998. These require that an employer must obtain the
workers' written authorization before making deductions; the authorization
remains valid unless and until withdrawn.
cheque n. A *bill of exchange drawn on a banker payable on demand. Since a
cheque is payable on demand it need not be presented to the drawee bank for
acceptance. A cheque operates as a mandate or order to the drawee bank to pay and
debit the account of its customer, the drawer. The Cheques Act 1992 gave legal force
to the words "account payee" on cheques, making them nontransferable.
cheque card A card issued by a bank to one of its customers containing an
undertaking that any cheque signed by the customer and not exceeding a stated
sum will be honoured by the bank This is normally subject to certain conditions;
for example, the cheque must be signed in the presence of the payee, the signature
must correspond with a specimen on the card, and the payee must write the card
number on the reverse of the cheque. The bank thus undertakes to the payee of the
cheque that the cheque will be honoured regardless of the state of the customer's
account with the bank.
chief rent See RENTCHARGE.
child n. 1. A young person. There is no definitive definition of a child: the term has
been used for persons under the age of 14, under the age of 16, and sometimes under
the age of 18 (an *infant). Each case depends on its context and the wording of the
statute governing it. For the purposes of the Children Act 1989and the Family Law
Act 1996a child is a person under the age of 18. 2. An offspring of parents. In wills,
statutes, and other legal documents, the effect of the Family Law Reform Act 1987is
that there is a presumption that (unless the contrary intention is apparent) the word
"child" includes any illegitimate child (see ILLEGITIMACY). Adopted children are treated
as the legitimate children of their adoptive parents. See also CHILD OF THE FAMILY;
QUALIFYING CHILD.
child abuse Molestation of children by parents or others (see BATTERED CHILD). If
the molestation is of a sexual nature, the offender may be guilty of *indecent
assault or *gross indecency with children (see alsoPAEDOPHILE). It is an offence to take
or allow the taking of indecent photographs of a child under the age of 16, to
distribute or show such photographs, to advertise that one intends to distribute or
show them, or simply to possess them without legitimate reason. Photographs on
the Internet and computers have been held by the courts to fall within this
legislation. See also OBSCENE PUBLICATIONS.
child assessment order An order of the court made when a local authority or
the NSPCC has concerns for a child's welfare in circumstances when the child's
parents are refusing to allow the child to be medically or otherwise examined. The
order authorizes such an examination. If a local authority fears that a child is in
immediate danger, or when it is denied access to a child, an *emergency protection
order should be applied for rather than a child assessment order.
child being looked after by a local authority A child who is either the
subject of a *care order or who is being provided with accommodation by the local
authority on a voluntary basis (see VOLUNTARY ACCOMMODATION). In respect of such a
child, the local authority must seek, Where possible, to promote contact between the
child and its parents, relatives, and others closely connected with the child.
Accommodation should be near where the child lives, and siblings should be
accommodated together. A written plan should be drawn up before a child is placed;
all the people involved in the plan, including the child (so far as is consistent with
his age and understanding), should be consulted.
child destruction An act causing a viable unborn child to die during the course
of pregnancy or birth. (Afoetus is generally considered to be viable, i.e. capable of
being born alive, if the pregnancy has lasted at least 24 weeks.) If carried out with
the intention of causing death, and if it is proved that the act was not carried out in
good faith in order to preserve the mother's life, the offence is subject to a
maximum punishment of life imprisonment. Compare ABORTION.
child employee A child of compulsory school age (i.e. between 5 and 16 years)
who undertakes paid work. Subject to certain exceptions, such employment is
prohibited in Britain, and any employment under the age of 13 years is completely

prohibited. Children are prohibited from working in industrial undertakings,
factories, or mines. There are narrow exceptions for work in theatres and films,
sports, work experience and/or training, and light work, with strict conditions
attached in each case. In many cases these exceptions require that prior
authorization is obtained from a local authority with respect to the proposed work
In particular, children falling within some of the above exceptions must not work
for more than two hours on any school day (outside school hours) or for more than
12 hours a week during term times. Work must not start before 7 a.m. or after 7
p.m. These restrictions can be relaxed for working time during school holidays and
for children between 13 and 15 years of age. Night work by children is prohibited
between 8 p.m. and 6 a.m., and children working more than 4V, hours daily are
entitled to a 30-minute break from work Local authorities are also empowered to
further regulate the employment of children under byelaws. Although byelaws can
differ from authority to authority, the majority conform to guidance issued by the
Department of Health and are subject to confirmation and deregulation by the
Secretary of State for Health.
Workers aged between 15 and 18 are referred to as young or adolescent workers.
Their employment is restricted. At present they are entitled to 12 consecutive hours'
rest between each working day, two days' weekly rest, and a 30-minute rest break
when working longer than 4Y2 hours. They are also entitled to four weeks' paid
annual leave. The implementation of further restrictions relating to young workers,
as required by the Young Workers Directive 94/33/EC, is currently under
consideration. These restrictions are: (1) the limitation of the working day to 8 hours
and the working week to 40 hours; (2) restriction of night work between midnight
and 4 a.m.; (3) restriction of night work between 10 p.m. and 6 a.m. or 11 p.m. and 7
a.m.
child in care A child who is the subject of a *care order. It is important to note
that not all children who are being looked after by a local authority are the subjects
of care orders; some of these children may be being accommodated by the local
authority on a voluntary basis (see VOLUNTARY ACCOMMODATION). See also CHILD BEING
LOOKED AFTER BY A LOCAL AUTHORITY.
child of the family A person considered under the Matrimonial Causes Act 1973,
the Domestic Procedures and Magistrates' Courts Act 1978, and the Children Act 1989
to be the child of a married couple, although not necessarily born to or adopted by
them, on the grounds that he or she has been treated by them as their own child.
Courts have powers to make orders in favour of children of the family in all
*family proceedings.
child of unmarried parents See ILLEGITIMACY.
Child Protection Conference A conference that decides what action should be
taken by the local authority in respect of a child believed to be at risk of suffering
harm. The conference comprises representatives of those bodies concerned with the
child's welfare, including the NSPCC, social services, the police, the health and
education authorities, and the probation service. Parents have no absolute right to
attend the Child Protection Conference but are usually excluded only in exceptional
circumstances.
child protection in divorce The legal rules designed to safeguard the position
of children of divorcees. In the past courts would routinely make orders for custody
and access in respect of children on divorce. The Children Act 1989,however,
introduced a presumption of non-interference; i.e. the court will assume that
parents are able to make their own arrangements for their children and will only
make an order if it is necessary to do so, for example when the parents are in
disagreement. Divorce courts have wide powers to make financial provision and
property adjustment orders in favour of *children of the family, as well as any
*section 8 orders necessary to safeguard the child's welfare. A court is no longer
able to make a care or supervision order during divorce proceedings. However, if it
is concerned about the welfare of a child before it, the court may direct a local
authority to investigate the child's circumstances with a view to determining
whether intervention is necessary.
Children and Family Court Advisory and Support Service (Cafcass) An
amalgamation of three former services, the Guardian ad Litem Service, the Family
Court Welfare Service, and the Official Solicitor's children's department. Cafcass will
provide courts with information about children coming before them.
children in care See CHILD IN CARE; CARE ORDER.
children in need Those children designated by the Children Act 1989as being in
need of special support and provision by the *local authority. They include disabled
children and children who are unlikely to maintain a reasonable standard of health
or development without the provision of these special services.
children's guardian A person appointed by the court to protect a minor's
interests in proceedings affecting his interests (such as adoption, wardship, or care
proceedings), formerly known as a guardian ad litem. Since the Children Act 1989
came into force the role of guardians has increased and they must ensure that the
options open to the court are fully investigated. However, if a child is deemed
capable of instructing a solicitor on his own behalf, he may do so even if this
conflicts with the interests of the guardian.
children's tax credit See INCOME TAX.
child safety order An order that enables local authorities and courts to intervene
when a child under the age of 10 (who cannot be prosecuted in criminal proceedings
by virtue of his age) behaves antisocially or disruptively. The order was introduced
by the Crime and Disorder Act 1998as part of a strategy to reduce youth crime and
is founded on the belief that early intervention is more effective than waiting until
a child is old enough to be dealt with under the youth justice system. Application
for an order is made by a local authority on the grounds that the child has
committed or is in danger of committing an offence, or is in breach of a local child
curfew scheme, or has acted in a manner likely to cause harassment, alarm, or
distress to a person not living in the same household as the child. The requirements
imposed under the order are entirely a matter for the court and might include, for
example, attendance at school or extracurricular activities, avoiding contact with
disruptive and older children, and not visiting such areas as shopping centres
unsupervised. The purpose of the requirements imposed is either to ensure that the
child receives appropriate care, protection, and support and is subject to proper
control, or to prevent the repetition of the kind of behaviour that led to the child
safety order being made. Breach of the order may lead to the court making a *care
order in respect of the child. See also PARENTING ORDER.
Child Support Agency (CSA) See CHILD SUPPORT MAINTENANCE.
child support maintenance The amount that a nonresident parent (i.e. one
who does not live with the child concerned) must pay as a contribution to the
upkeep of his or her *qualifying child to a parent with care (i.e. one with whom
the child lives) or a person in whose favour a residence order is made (see SECTION 8

ORDERS). Since the Child Support Act 1991, responsibility for the assessment, review,
collection, and enforcement of maintenance for children is supervised by the Child
Support Agency (CSA), an agency of the Department for Work and Pensions
(formerly Social Security) established under the Act, rather than by the court. It is
no longer possible for people who do not already have a court order for child
maintenance to go to court to obtain an order for periodical payments other than
on behalf of stepchildren. However, it is still possible to apply to the court to obtain
property settlements or lump sums or when an absent parent does not live
habitually in the UK.A child over the age of 12 who lives in Scotland and whose
absent parent lives in the UK may apply directly to the Child Support Agency on his
or her own behalf. The Agency has wide powers of enforcement: for example it can
make an order for payment to be deducted directly from wages or salary (see also
CLEAN BREAK). No distinction is made between married and unmarried parents, but
when parentage is disputed the Agency has power to apply to the court for a
declaration of parentage; if successful this will have effect only for the purposes of
the Child Support Act.
Certain changes, contained in the Child Support, Pensions and Social Security Act
2000, have been (or will soon be) implemented; the most important of these is a
change in the way in which the amount of maintenance payable by the nonresident
parent is calculated. The original formula was extremely complex and took into
account the income of the parent with care. The new formula is simply based on the
following percentages of the net weekly income of the nonresident parent: 15% if
there is one qualifying child; 20% if there are two qualifying children; and 25% if
there are three or more. These amounts are reduced if the nonresident parent has
one or more other children (for example, the children of a new partner) in his
household and if he has staying contact with his child. Under the old system a
married father was able to deny parentage, but there will now be a presumption of
paternity in favour of both a married father and a person named as father on the
child's birth certificate.
child witness See VIDEO EVIDENCE; WITNESS.
Chiltern Hundreds. stewardship of the An appointment that, as a nominal
office of profit under the Crown, disqualifies its holder from membership of the
House of Commons. Although the appointment has been a sinecure since the 18th
century, it has been retained as a disqualifying office to enable members to give up
their seats during the lifetime of a parliament (a member cannot by law resign his
seat). After obtaining the stewardship (an application for which is never refused),
the member resigns the office so as to make it available for re-use.
A second office used for the same purpose is the stewardship of the Manorof
Northstead. The law relating to both these offices is now contained in the House of
Commons Disqualification Act 1975.
chose n. A thing. Choses are divided into two classes. A chose in possession is a
tangible item capable of being actually possessed and enjoyed, e.g. a book or a piece
of furniture. A chose in action is a right (e.g.a right to recover a debt) that can be
enforced by legal action.
Church of England The established Church in England, of which the sovereign is
the supreme head. Structurally, the Church consists of the two provinces of
Canterbury and York, which are divided into dioceses, and these into parishes. For
each province there is an archbishop (that of Canterbury being Primate of All
England, and that of York Primate of England), and for each diocese a bishop. A
suffragan bishop has no diocese of his own but assists an archbishop or a diocesan
bishop. The archbishops and other senior bishops are members of the House of
Lords.
The governing body of the Church is the General Synod (formerly the Church
Assembly, but renamed and reconstituted by the Synodical Government Measure
1969). It consists of a House of Bishops, a House of Clergy, and a House of Laity and
has legislative functions. A Measure passed by each House and granted the royal
assent following a resolution of each House of Parliament has the force of an Act of
Parliament. There are also diocesan synods, and certain matters require the approval
of a majority of these before they can be finally approved by the General Synod. The
Dioceses Measure 1978authorizes the reorganization of diocesan structure and the
creation of area synods, to which diocesan synods may delegate functions. See also
ECCLESIASTICAL COURTS.
c.i.f. contract (cost. insurance. freight contract) A type of contract for the
international sale of goods by which the seller agrees not only to supply the goods
but also to make a contract of carriage with a sea carrier, under which the goods
will be delivered at the contract port of destination, and a contract of insurance
with an insurer, to cover them while they are in transit. The seller performs his
contract by delivering the relevant documents to the buyer: an invoice specifying
the goods and their price, a *bill of lading evidencing the contract of carriage, a
policy of insurance, and any other documents specified in the contract. The contract
will normally provide for payment against documents. The risk of accidental loss or
damage normally passes to the buyer on or as from shipment. c.i.f. is a defined
*incoterm under Incoterms 2000.
circuit administrator A civil servant having responsibility for the administration
of the courts within a circuit (see CIRCUIT SYSTEM). He liaises closely with the
*presiding judge of the circuit in the allocation of resources and particularly the
sittings of judges and recorders.
circuit judge Any of the judges appointed under the provisions of the Courts Act
1971 from among those who have had a ten-year Crown Court or county court
*advocacy qualification, or who are *recorders, or who have held a full-time
appointment of at least three years duration in one of the offices listed in the
Courts Act 1971. They sit in the *county courts and the *Crown Court and may, by
invitation of the Lord Chancellor, sit as High Court judges. All judges of county
courts and other judges of comparable status were made circuit judges in 1971.
circuit system The system of dividing England and Wales into regional circuits
for the purpose of court administration. It is based upon the traditional regional
groupings adopted by the Bar and consists of the South-Eastern, Western, Midland
and Oxford, Wales and Chester, Northern, and North-Eastern circuits. Each circuit is
administered by a *circuit administrator and supervised by two *presiding judges.
See also CIRCUIT JUDGE.
circumcision. female It is an offence, punishable with up to five years'
imprisonment, to excise or otherwise mutilate the external genital organs of a
woman, or to *aid and abet a woman mutilating herself in this way. Girls living in
the UKwho come from countries where female circumcision is the normal practice
are, however, still sent abroad by their parents for such an operation. Male
circumcision is lawful in the UK. See also CONSENT; WOUNDING.
circumstantial evidence (indirect evidence) Evidence from which the judge or
Jury may infer the existence of a fact in issue but which does not prove the
existence of the fact directly. Case law has described circumstantial evidence as

evidence that is relevant (and, therefore, admissible) but that has little probative
value. Compare DIRECT EVIDENCE.
citation n. 1. A notice, issued in the Probate Registry by an executor proving a will
in solemn form (see PROBATE), calling upon persons to come forward if they object to
the grant of probate to him. 2. The quoting of a legal case or authority.
citizen's arrest An *arrest by anyone other than a police officer. Such an arrest is
lawful. See alsoARRESTABLE OFFENCE.
citizenship of the UK and Colonies A form of citizenship created by the
British Nationality Act 1948. By the British Nationality Act 1981, it was replaced as
from 1 January 1983 by *British citizenship, *British Dependent Territories
citizenship, and *British Overseas citizenship.
City Code on Takeovers and Mergers A body of rules regulating those
engaged in the conduct of *takeovers and *mergers of public companies. It is
administered by a Panel representing the major City financial institutions, e.g. the
*Stock Exchange and the Issuing Houses Association. The principal aim is to ensure
that company members (rather than the directors) decide upon the merits of
accepting a bid, that they are fully informed about what is going OI1, and that
shareholders of the same class are treated equally in the event of a takeover or
merger. The rules are not legally binding, but if they are contravened sanctions may
be imposed on the company, including having the facilities of the securities markets
withdrawn from them. Decisions of the Panel are subject to *judicial review.
City of London That part of *Greater London which, for local government
purposes, is administered by the City of London Corporation. In addition to special
powers under ancient royal charters, the Corporation has all the functions of a
London borough council, which it exercises principally through a Court of Common
Council consisting of the Lord Mayor, aldermen elected for life, and common council
men elected annually. Limited governmental functions are exercised through a
separate Court of Aldermen, and formal functions through a Court of Common
Hall.
civil court A court exercising jurisdiction over civil rather than criminal cases. In
England the principal civil *courts of first instance are the *county courts and the
*High Court. *Magistrates' courts have limited civil jurisdiction, mainly confined to
matrimonial proceedings.
civil defence Establishments and units organized or authorized by the competent
authorities to carry out humanitarian tasks intended to protect the civilian
population against the dangers of hostilities or disasters and to help it to recover
from the immediate effects of these.
civil law 1. The law of any particular state, now usually called *municipallaw.
2. Roman law. 3. A legal system based on Roman law, as distinct from the English
system of *common law. 4. *Private law, as opposed to *public law, military law,
and ecclesiastical law.
civil liability contribution The right of a person who is liable for damage to
recover from any other person who is liable for the same damage a contribution to
represent that person's share of responsibility for the damage. When two or more
people are liable for causing the same damage, the injured person is entitled to
recover full compensation for his losses from anyone of them. The wrongdoer who
is sued may then ask for contribution from the other wrongdoers. Since the Civil
Liability (Contribution) Act 1978,the right to contribution is available in all forms of
civil liability, whether tort, breach of contract, breach of trust, or otherwise. The
cou:-t assesses the. amount of contribution on the basis of what would be just and
equitable, taking mto account the parties' responsibility for the damage.
Civil List The sum authorized by statute to be paid annually out of the
"Consolidated Fund for meeting the expenses of the royal household and for
making allowances to certain members of the royal family. It may be increased in
amount by Treasury order, but this is liable to annulment by the House of
Commons. Certain members of the royal family have volunteered to be taxed on
their Civil List allowances.
Civil Procedure Rules (CPR) The new procedural code, which was enacted in 1998
and revoked the *Rules of the Supreme Court with effect from 26 April 1999. The
Rules, a result of the reforms proposed by Lord Woolf's Access to Justice (Final Report)
1996,now govern proceedings in the civil cases of the Court of Appeal (Civil
Division), the High Court, and the county courts. The CPRhave been supplemented
by *Practice Directions and *pre-action protocols. They have no application in
certain areas, including the Mental Health Act 1983 Part IV and family and adoption
proceedmgs.
civil remedy See REMEDY.
Civil Service The body of *Crown servants that are employed to put government
P?I~cies into action and are paid wholly out of money voted annually by Parliament.
CIVIl servants include the administrative and executive staff of central government
departments (e.g. the Home Office and Treasury) and the industrial staff of
government dockyards and factories. Civil servants may serve in established or
unestablished capacities, with effects on pension entitlement, etc. The police (not
being Crown servants), the armed forces (not being civil), government ministers, and
those (e.g. judges) whose salaries are charged on the Consolidated Fund are not civil
servants.
civil wrong An infringement of a person's rights, for which the person wronged
may sue for damages or some other civil remedy. Examples are *torts and *breaches
of contract.
claim. n. A demand for a remedy or assertion of a right, especially the right to take
a particular case to court (right of action). The term is used in civil litigation. See also
CLAIM FORM; PART 20 CLAIM.
c1a.i~ant n. A person applying for relief against another person in an action, suit,
petition, or any other form of court proceeding. Before the introduction of the
*Civil Procedure Rules in 1999, a claimant was called a plaintiff. Compare DEFENDANT.
claim .form (in civil proceedings) A formal written statement setting out details of
the claImant: defendant, .and the remedy being sought. The claim form may also
contam details of the claim (the particulars of claim); alternatively, these can be
served separately. Since the introduction of the Civil Procedure Rules in 1999, the
usual method of initiating civil proceedings is by issuing a claim form; all previous
methods (e.g.writ of summons, originating summons) have now been rendered
obsolete. See alsoPART 8 CLAIM FORM; STATEMENT OF CASE.
claim of privilege See PRIVlLEGE.
class gift A gift to people of a certain specified category (e.g. "to my daughters"),
rather than to people named individually, (e.g. "to my daughters A and B").
classification of animals At common law animals were formerly classified as

wild by nature (ferae naturae) or tame by nature (mansuetae naturae), referring to
the species in general rather than the individual animal. The owner of a wild animal
was strictly liable for any damage it caused. The owner of a tame animal was liable
for damage it caused if he knew that it had a vicious tendency abnormal in the
species (the scienter rule). Special rules applied to damage done by cattle (see CATILE
TRESPASS; DISTRESS DAMAGE FEASANT) and dogs. The common law classifications have
been largely replaced by modern statutes.
For purposes of civil liability in England, animals are classified as belonging to a
dangerous or a nondangerous species (Animals Act 1971). A dangerous species is one
not commonly domesticated in the British Isles, fully grown members of which are
likely to cause severe damage. The keeper of an animal of a dangerous species is
strictly liable for any damage it causes. Liability for damage done by other animals
arises either under the Animals Act, if the animal was known by its keeper to have
characteristics not normally found in that species, or only normally found in
particular circumstances, which made it likely to cause that kind of damage; or
under ordinary rules of tort liability. Thus carelessly allowing a dog to stray on the
highway can make the keeper liable in negligence if it causes an accident, and
excessive smell from a pig farm can be an actionable nuisance. The Animals Act also
imposes *strict liability for damage done by trespassing livestock, which includes
cattle, horses, sheep, pigs, goats. and poultry. The keeper of a dog that kills or
injures livestock is liable for the damage, except when the livestock was injured
while straying on the keeper's land. If livestock is worried by a dog, the owner of
the livestock (or the owner of the land on which the livestock lives) may kill or
injure the dog to protect the livestock.
In Scotland, there is strict liability for damage caused by animals belonging to a
species likely to kill or severely injure persons or animals or cause material damage
to property under the Animals (Scotland) Act 1987. The Act also excuses the killing
or injuring of an animal that attacks or harries people or livestock.
Dangerous wild animals may require a licence under the Dangerous Wild Animals
Act 1976(see DANGEROUS ANIMALS). Keeping dogs of a species bred for fighting is an
offence under the Dangerous Dogs Act 1991. The use of *guard dogs is controlled by
the Guard Dogs Act 1975. Other statutes protect various species, control importation
of animals, and deal with animal diseases.
class rights Rights that attach to a clearly defined class of share (e.g. preference
*shares) or are conferred upon a person for so long as he is a holder of any shares.
In the latter case shareholders become a class in their own right. Typical class rights
would relate to *dividends, return of capital on a *winding-up, or the right to
appoint a director to the board. Class rights may only be altered either in accordance
with a clause in the constitutional documents of the company (see ARTICLES OF
ASSOCIATION) or with the consent of the class affected under the Companies Act 1985.
Shareholders from the class affected who did not agree to the alteration may apply
to court to have the change cancelled within 21 days.
clause n. 1. A subdivision of a document. A clause of a written contract contains a
term or provision of the contract. Clauses are usually numbered consecutively (1, 2,
etc.); subclauses may follow a clause, numbered 1.1, 1.1.1, etc. 2. A section of a *Bill.
clean break The principle that, upon divorce, spouses should try to settle their
financial affairs in a final manner, by a lump sum order, rather than a continuous
periodical payments order. Under the Matrimonial Causes Act 1973,the courts have a
duty to consider whether they can achieve a clean break in their orders for financial
relief even when there are children. However, the Child Support Act 1991 makes it
possible for a parent with care of a child to apply directly to the Child Support
Agency for a maintenance assessment even when the divorce court has achieved a
clean break (see CHILD SUPPORT MAINTENANCE).
clean hands A phrase from a *maxim of equity; he who comes to equity must
come with clean hands, i.e. a person who makes a claim in equity must be free from
any taint of fraud with respect to that claim. For example, a person seeking to
enforce an agreement must not himself be in breach of it.
clearance n. 1. A certificate acknowledging a ship's compliance with customs
requirements. 2. An indication from a taxing authority that a certain provision does
not apply to a particular transaction. The procedure is laid down by statute in some
cases.
clearance area Formerly, an area declared as such by a housing authority (usually
a district or London borough council) on the ground that the houses in it were unfit
for human habitation or otherwise dangerous or injurious to health and were best
demolished. The authority must also have been satisfied that alternative
accommodation existed and that its resources were sufficient it then acquired the
area and carried out the demolition. The power to designate a clearance area was
abolished by the Housing Act 1974. See alsoREHABILITATION ORDER. Compare HOUSING
ACTION AREA.
Clerk of the House The principal permanent officer of the House of Commons.
Clerk of the Parliaments The principal permanent officer of the House of
Lords.
clerk to the justices ijustices' clerk, magistrates' clerk) A person who has a
five-year magistrates' court qualification, or a barrister or solicitor of not less than
five years' standing as an assistant to a magistrates' clerk, who is appointed to assist
magistrates in court, particularly by giving advice about law practice or procedure
on questions arising in connection with the discharge of their or his functions. The
clerk or one of his staff will sit in court with the justices in order to advise them,
but should not retire with them when they consider their verdict. He may, however,
advise them in private during their retirement, at their request, but should return
to the court when his advice has been given. See alsoMAGISTRATES' COURT.
client n. A person who employs a solicitor to carry out legal business on behalf of
himself or someone else. The relationship between a solicitor and his client is a
*fiduciary one and any other transactions between them may be affected by *undue
influence. A solicitor's client cannot consult a barrister directly but only through his
solicitor; the solicitor is therefore the barrister's client.
clog on the equity of redemption Any provision in a *mortgage deed to
prevent redemption on payment of the debt or performance of the obligation for
which the security was given. Such provisions are void. An example is an option
contained in the mortgage deed for the mortgagee to purchase the mortgaged
property before or after the mortgage has been redeemed. Unconscionable
provisions in a mortgage (for example, one to prevent redemption for 100 years) are
also void. However, a company may issue irredeemable *debentures. A provision that
would otherwise be unconscionable may be valid if the transaction containing it is a
commercial arrangement rather than a mortgage. Thus, such provisions in
mortgages of public houses or garages by their tenants or owners to breweries or oil
companies will be upheld, provided that they do not infringe the contractual rules
against *restraint of trade. Under the Unfair Terms in Consumer Contracts
Regulations 1994 unfair redemption penalties may also be subject to challenge.

close n. Land that is enclosed.
close company A company under the control of its directors or five or fewer
participators. The participators have or are entitled to acquire a share or interest in
the capital or income of the company and can include <loan creditors. Special tax
provisions apply to such companies.
closed-shop agreement A collective agreement requiring members of a
particular group of employees to be or become members of a specified trade union.
A pre-entry agreement is one that prohibits an employer from engaging a relevant
employee unless he is already a member of the union concerned. A post-entry
agreement requires employees to join the specified union within a certain time
after the employment commences.
Under the Trade Union and Labour Relations (Consolidation) Act 1992, all
employees are free to join a trade union or not, as they wish. If an employer t~kes
action, short of dismissal, against an employee to enforce membership of a union,
the employee can complain to an *employment tribunal, which can order the
employer to pay him compensation. Dismissal for failure to belong to a trade union
is automatically unfair (see INADMISSIBLE REASON). In this case there are special
minimum rates of *compensation payable. If, as a result of trade union pressure, an
employer dismisses an employee for failing to belong to a union, the employer can
join the union as a party to the dismissal proceedings and pass the liability to pay
compensation on to the union.
A union that attempts to enforce a closed shop by industrial action loses the
immunity from legal action that it would otherwise have if the action was in
furtherance of a *trade dispute.
The effect of these provisions is that, while closed-shop agreements are not in
themselves illegal, they are unenforceable by either employers or unions.
close of pleadings Formerly, a stage in the course of pleading in an action in the
High Court that occurred 14 days after service of the reply, defence to counterclaim,
or defence. This stage has been taken over by the functions of *case management
and track *allocation.
closing order An order made by a local housing authority under the Housing Act
1985prohibiting the use of a house, which it considers unfit for human habitation,
for any purpose not approved by the authority.
closure n. The curtailing of debate on a question, particularly in the House of
Commons, by carrying a motion (which cannot itself be debated) "that the question
be now put". The result is that a vote on the question under debate must be taken
immediately. Compare GUILLOTINE.
club n. An association regulated by rules that bind its members according to the
law of contract. Club property is either vested in trustees for the members
(members' club) or owned by a proprietor (often a company limited by guarantee;
see LIMITED COMPANY) who operates the club as a business for profit (proprietary
club). The committee is usually liable for club debts in the case of a members' club;
the proprietor in the case of a proprietary club.
Cmd See COMMAND PAPERS.
Cmnd See COMMAND PAPERS.
coastal waters See EXCLUSIVE ECONOMIC ZONE; FISHERY LIMITS; TERRITORIAL WATERS.
code n. A complete written formulation of a body of law, (e.g. the Code Napoleon in
France). A code of English law does not exist, but a few specialized topics have been
dealt with in this way by means of a *codifying statute (e.g. the Sale of Goods Act
1893, re-enacted with modifications by the Sale of Goods Act 1979).
codecision procedure A procedure introduced by the *Maastricht Treaty that
gives the *European Parliament a power to veto certain legislative proposals. If the
*Council of the European Union and the European Parliament fail to agree after a
second reading of the proposal by the Parliament, a conciliation committee of the
Council and Parliament will attempt to reach a compromise. If no compromise is
reached, the Parliament can reject the measure by absolute majority voting. Compare
ASSENT PROCEDURE; COOPERATION PROCEDURE.
code of practice A body of rules for practical guidance only, or that sets out
professional standards of behaviour, but does not have the force of law, e.g. the
Highway Code. Under the provisions of the Fair Trading Act 1973the *Director
General of Fair Trading has the duty of encouraging trade associations to prepare
and distribute to their members codes of practice for guidance in safeguarding and
promoting the interests of UKconsumers. Several such codes have been approved by
the Director General. Codes of practice have also been published by *ACAS, the
Health and Safety, Equal Opportunities, and Racial Equality Commissions, and the
Secretary of State for Work and Pensions, providing guidance to employers,
employees, and their representatives on the fulfilment of their statutory obligations
in relevant fields. Codes of practice under the Police and Criminal Evidence Act 1984
regulate searches and the *interrogation of suspects by the police.
Generally, failure to comply with a code of practice does not automatically expose
the party in breach to prosecution or any civil remedy. It may, however, be relied on
as evidence tending to show that he has not fulfilled some relevant statutory
requirement.
codicil n. A document supplementary to a will, which is executed with the same
formalities under the Wills Act 1837(see EXECUTION OF WILL) and adds to, varies, or
revokes provisions in the will. It must be proved with the will. A codicil confirming
a will normally republishes the will (see REPUBLICATION OF WILL) and may revive a will
that has been revoked if that is the testator's clear intention. If many changes are
made to the will it is better to execute a new will.
codifying statute A statute that sets out the whole of the existing law (i.e. both
statute law and common law) on a particular subject. Such statutes are extremely
rare; an example is the Law of Property Act 1925. Compare CONSOLIDATING STATUTE. See
also INTERPRETATION OF STATUTES.
coercion n. A defence available only to married women who have committed a
crime (other than murder or treason) in the presence of, and under pressure from,
their husbands. Its scope is unclear but may be wider than that of *duress in that it
may cover economic and moral as well as physical pressure, though unlike duress it
has to be proved (see BURDEN OF PROOF). If a wife is acquitted on grounds of coercion,
her husband may be liable for the offence in question through his wife's innocent
agency and/or for a crime involving a *threat.
cognates pl. n. Persons descended from a common ancestor.
cohabitants pl. n. See COHABITATION.
cohabitation n. Living together as husband and wife. Married persons generally
have a right to expect their spouses to live with them. Unmarried people living
together as husband and wife (cohabitants) do not usually have the status of a
married couple (see also COMMON-LAW MARRIAGE). But under the cohabitation rule the

resources and requirements of an unmarried couple living together are aggregated
for the purposes of claiming social security benefits under the Social Security Acts
even in the absence of a sexual relationship (see INCOME SUPPORT).
co-imperium n. Joint rule by two or more states of an entity that has a distinct
international status (compare CONDOMINIUM). An example is the occupation and rule
of Germany after 1945 by the four victorious powers.
collateral 1. adj. Describing the relationship between people who share a common
ancestor but are descended from him through different lines of descent. See also
CONSANGUINITY. 2. adj. Ancillary; subordinate but connected to the main subject,
etc. 3. n. Security that is additional to the main security for a debt (or an advantage
to the mortgagee that is additional to the payment of interest). For example, a
lender may require as collateral the assignment of an insurance policy in addition to
the principal security of a mortgage on the borrower's home.
collateral benefits Benefits received from a third party by the victim of a
tortious injury in consequence of the injury, such as insurance money, sick pay,
disability pensions, loans, social security benefits, or gifts from a disaster appeal
fund. Some collateral benefits are taken into account when assessing the damages to
be paid by the person liable for the injury; others, such as insurance money and
gifts, are not. Under the Social Security Administration Act 1992,the amount of
social security benefits received by the victim for the first five years after the
injury must, with a few exceptions, be deducted from the total damages and repaid
to the Department for Work and Pensions by the person liable for the injury (or his
insurer).
collateral contract A subsidiary contract that induces a person to enter into a
main contract. For example, if X agrees to buy from Y goods made by Z, and does so
on the strength of Z's assurance as to the high quality of the goods, X and Z may be
held to have made a collateral contract consisting of Z's promise as to quality given
in consideration of X's promise to enter into the main contract with y.
collective agreement See COLLECTIVE BARGAINING.
collective bargaining Negotiations between trade unions (acting for their
members) and employers about terms and conditions of employment. Under the
Trade Union and Labour Relations (Consolidation) Act 1992,a collective agreement
(an agreement between trade union and employer resulting from collective
bargaining) is not legally binding unless it is in writing and specifically states the
parties' intention to be bound. Unenforceable collective agreements frequently
include terms (relating to pay, discipline, etc.) that will become incorporated in
individual employees' binding contracts of employment. In these respects the
written particulars of employees' contracts, which the employer must give under
the Employment Rights Act 1996,must refer the employee to the collective
agreement, which must be reasonably accessible to him. Terms of a collective
agreement that discriminate on grounds of sex may be challenged by individuals in
a court or employment tribunal on the ground that they contravene the principle
of equal treatment. When a collective agreement provides that individual employees'
contracts will circumscribe their right to strike, the employees will only be bound if
their contracts contain that provision and the collective agreement was negotiated
by an *independent trade union, is in writing, and is readily accessible to employees
during working hours. The parties to a collective agreement containing procedures
for determining complaints of unfair dismissal may apply to the Secretary of State
for an order that those procedures be substituted for the statutory jurisdiction of
employment tribunals. An order will only be made if the agreement was negotiated
by an independent trade union, sufficiently identifies the employees affected, and
gives them remedies as beneficial as the statutory scheme and a right to
independent arbitration or adjudication. See alsoDISCLOSURE OF INFORMATION;
RECOGNITION PROCEDURE.
collective redundancy The proposed dismissal as redundant by an employer of
20 or more employees. In such a situation the employer is required, under the Trade
Union and Labour Relations (Consolidation) Act 1992,to disclose information (see
DISCLOSURE OF INFORMATION) and to consult with elected workers' representatives or
representatives of a recognized trade union with a view to reaching agreement
about ways of avoiding the dismissals, reducing the numbers of employees to be
dismissed, and mitigating the consequences of the dismissals. If the employer fails to
comply with these requirements the union may complain to an employment
tribunal who may, if the complaint is upheld, issue a *protective award.
Employment tribunals have held that notification of impending redundancies must
take place at the earliest opportunity in order that representations by the union
may be taken into account.
collective responsibility See CABINET.
collective security The centralized system of international rules, now embodied
in the Charter of the United Nations, that governs the collective resort to force
under the authority of the United Nations for the purpose of maintaining or
restoring international peace and security. An example is the action by the
international community during the Gulf War of 1991. It should be noted that the
precise legal justification of this conflict is uncertain, the UN Security Council
Resolution 678 stating only that its legal basis was under *Chapter VII of the UN
Charter. See also ENFORCEMENT ACTION.
collective trespass See TRESPASS.
collision clause (running-down clause) A clause in a marine insurance policy
binding the underwriters to indemnify the insured in respect of any damages in
tort he may be liable for as a result of his ship colliding with another. At common
law, such a policy covers only the insured's physical losses. The clause is customarily
restricted to three quarters of the damages in question. When two vessels collide,
the damage done to each is added together and treated as a common loss. It is
divided between insurers according to the proportion of blame attributable to each
ship or, if this cannot be determined, equally.
collusion n. An improper agreement or bargain between parties that one of them
should bring proceedings against the other. Collusion is no longer a bar to divorce or
nullity proceedings, but it may affect the validity of a declaration of legitimacy.
colony n. A territory that forms part of the Crown's dominions outside the UK.
Although it may enjoy internal self-government, its external affairs are controlled
by the UKgovernment.
colourable adj. Describing that which is one thing in appearance but another in
substance; for example, a symbolic residence in a parish for the purpose of
qualifying for marriage there.
comfort letter (administrative letter) A letter sent by the Competition
Directorate of the European Commission following a notification for exemption or
*negative clearance of a commercial agreement that may infringe EU *competition
law. It is very rare for the Commission to issue a binding decision following such a

notification. However, although a comfort letter does not have the force of a formal
decision, it would be unusual for the Commission to fine a business in relation to an
agreement that was notified and in relation to which a comfort letter was then
issued.
comity (comitas gentium) n. Neighbourly gestures or courtesies extended from
one state to another, or others, without accepting a legal obligation to behave in
that manner. Comity is founded upon the concept of sovereign equality among
states and is expected to be reciprocal. It is possible for such practices, over a period
of time and with common usage, to develop into rules of customary international
law, although this requires such behaviour to acquire a binding or compelling
quality. See CUSTOM; OPINIO JURIS.
Command Papers Documents that the government, by royal command, presents
to Parliament for consideration. They include white papers and green papers. The
former contain statements of policy or explanations of proposed legislation; the
latter are essentially discussion documents. For reference purposes they have serial
numbers, with (since 1869)prefixes. The prefixes are C (1870-99), Cd (1900-18), Cmd
(1919-56), and Cmnd (1957- ).
commercial agent An *agent who solicits business from potential customers on
behalf of a principal. In the ED the contracts of many commercial agents are
governed by directive 86/653,which gives them substantial rights to claim
compensation or an indemnity on termination of their agency agreement and
implies other terms into their contracts; for example, in relation to payment of
commission and notice periods for termination of the agreement. In the UK this
directive is implemented by the Commercial Agents (Council Directive) Regulations
1993 as amended.
Commercial Court A court forming part of the *Queen's Bench Division of the
High Court and specializing in the trial of commercial cases, mostly relating to
shipping and commodity trading. Many of the court's cases arise from the awards of
arbitrators (see ARBITRATION). The judges of the court are nominated by the l.ord
Chancellor from among the Queen's Bench *puisne judges who have special
experience of commercial matters.
commission n. 1. Authority to exercise a power or a direction to perform a duty;
for example, a commission of a *justice of the peace. 2. A body directed to perform
a particular duty. Examples are the *Charity Commissioners and the *l.aw
Commission. 3. A sum payable to an *agent in return for his performing a
particular service. This may, for example, be a percentage of the sum for which he
has secured a contract of sale of his principal's property. The circumstances in which
a commission is payable depend on the terms of the contract between principal and
agent. The terms on which commission is paid to a *commercial agent are set down
in the ED directive 86/653. 4. Authorization by a court or a judge for a witness to be
examined on oath by a court, judge, or other authorized person, to provide evidence
for use in court proceedings. The procedure is used when the witness is unlikely to
be able to attend the hearing (e.g. because of illness). If the witness is still unable to
attend when the court hearing takes place the written evidence is read by the court.
Commissioner n. (in the ED)See EUROPEAN COMMISSION.
commissioner for oaths A person appointed by the Lord Chancellor to
administer oaths or take affidavits. By statute, every solicitor who holds a
*practising certificate has the powers of a commissioner for oaths, but he may not
exercise these powers in a proceeding in which he is acting for any of the parties or
in which he is interested. Thus when an affidavit must be sworn, the client cannot
use his own solicitor but must go to another solicitor to witness the swearing.
Commissioner for the Protection Against Unlawful Industrial Action See
CERTIFICATION OFFICER.
Commissioner for the Rights of Trade Union Members See CERTIFICATION
OFFICER.
Commission for Health Improvement A body established under the Health
Act 1999. Its remit includes providing advice to *Primary Care Trusts or *NHS
Trusts for the purpose of monitoring and improving the quality of health care and
reporting on the provision or quality of health care.
Commission for Racial Equality A body appointed by the Home Secretary
under the Race Relations Act 1976 with the general function of working towards the
elimination of *racial discrimination by promoting equality of opportunity and
good relations between different racial groups. It keeps the working of the Act
under review, investigates alleged contraventions and, when necessary, issues and
applies for injunctions to enforce nondiscrimination notices.
Commission of the European Communities See EUROPEAN COMMISSION.
Commissions for Local Administration Two commissions, one each for
England and Wales, that were established by the Local Government Act 1974 to
investigate complaints by the public of injustice suffered through
maladministration by local authorities, police authorities, the National Rivers
Authority, and housing action trusts. The *Parliamentary Commissioner for
Administration is a member of both commissions and there are three Local
Government Commissioners (or Ombudsmen) for England and one for Wales.
Certain matters (e.g. decisions affecting the public generally and the conduct of
criminal investigations) are outside their competence. Complaints to a Commissioner
must normally be made in writing through a member of the authority concerned,
within one year of the date on which the matter first came to the complainant's
notice, but if a complaint is not duly passed on it can be accepted directly by the
Commissioner. Commissioners' reports are sent to the complainant and the
authority concerned and are also made public.
committal for sentence The referring of a case from a magistrates' court to the
Crown Court, which occurs when the magistrates have found the accused guilty and
consider that their powers of sentencing are insufficient for the case.
committal for trial The referring of a case from a magistrates' court for trial at
the Crown Court following a *preliminary investigation by the magistrates. The
committal proceedings may consist of taking *depositions from all the witnesses in
the form of oral evidence. Alternatively the committal may take a short form under
section 6 of the Magistrates' Courts Act 1980.This occurs when the accused agrees
that the prosecution should put all its evidence in writing; the justices may then
commit for trial without considering the evidence. The accused does not have to
disclose any defence that he intends to put forward at the trial, but must, not later
than seven days after committal, give notice of any intended *alibi and details of
the witnesses he is going to call in support of it. A committal without consideration
of the evidence may only take place if the accused is legally represented. The press
may normally only report certain limited facts about committal proceedings, such as
the name of the accused and the charges. However, if the accused asks that
reporting restrictions be lifted, the magistrates may allow publication of full details

of the proceedings. Concern as to the effectiveness of committal proceedings in
preventing weak cases going to trial led to provisions in the Criminal Justice and
Public Order Act 1994,which have now created a new transfer for trial procedure,
based upon consideration of case documents. The Criminal Procedure and
Investigations Act 1996lays down new committal procedures.
committal in civil proceedings A method of enforcing judgment by obtaining
an order that a person be committed to prison. It is most commonly sought when
the person has committed a *contempt of the court (e.g.by disobedience of an order
of the court). In modern practice it is very occasionally available to enforce an order
for the payment of a debt.
Committee of the whole House A committee of which all members of the
House of Commons or the House of Lords are members. In the Lords it sits for the
committee stage of all public Bills. In the Commons the committee stage is normally
taken by a *standing committee, but major Bills (particularly if controversial) are
sometimes referred instead to a whole House committee. Certain matters
concerning expenditure and taxation were formerly considered by the whole House
sitting as the Committee of Supply or the Committee of Ways and Means, but
since 1967 they have been dealt with by the House sitting as such.
common n. A *profit aprendre enjoyed by a number of landowners over
*common land. A right of common may be *appurtenant, in gross (i.e. independent
of any *dominant tenement), or pur cause devicinage ("by reason of neighbourhood":
the right to allow animals grazing common land to stray onto adjoining common
land). They generally comprise rights of pasture (grazing), piscary (fishing), turbary
(rare; a right to take turf), ferae naturae(a right to take animals), *estovers, etc., and
unless they exist in gross are usually limited to the reasonable needs of the
dominant tenements.
Common Agricultural Policy (CAP) The agricultural policy of the EUas set out
in Articles 32-38 of the Treaty of Rome. The overall aims of the CAPare to increase
agricultural productivity, ensure a fair standard of living for the agricultural
community, stabilize markets, assure the availability of supplies, and ensure that
supplies reach consumers at a reasonable price. The Treaty is supplemented by a
wide range of ED directives in this field. See also INTERVENTION.
common assault See ASSAULT.
Common Budget See COMMON EXTERNAL TARIFF.
common carrier See CARRIER.
common design The intention assumed to be shared by those engaged in a joint
illegal enterprise: each party is liable for anything done during the pursuance of
that enterprise, including any unexpected consequences that arise. If, however, one
of the parties does something that was not agreed beforehand, the others may not
be held responsible for the consequences of this act. See also ACCESSORY.
common duty of care The duty of an occupier of land or premises to take
reasonable care to see that visitors will be reasonably safe in using the premises for
the purposes for which they are invited or permitted to be there. See OCCUPIER'S
LIABILITY.
Common External Tariff (CEl) The tariff of import duties payable on certain
goods entering any member state of the European Union from non-EU countries.
The CET prevents the distortion of trade that would occur if member states set
their own import duties on products coming into their state from outside the ED.
The Tariff contributes to the Common Budget of the EU,from which subsidies due
under the *Common Agricultural Policy are paid.
Common Fisheries Policy (CFP) A fishing policy agreed between members of
the European Community in 1983. It lays down annual catch limits (*quotas) for each
state for major species of fish, a 12-mile exclusive fishing zone for each state, and an
equal-access zone of 200 nautical miles from its coast, within which any member
state is allowed to fish. There are some exceptions to these regulations. The CFPis
handled by the European Commission's Fisheries Directorate General. It was
reviewed in 1992 and is subject to a further review in 2002. See also FISHERY LIMITS.
common heritage of mankind principle The principle that areas of
Antarctica, the sea bed, and outer space should not be monopolized for the benefit
of one state or group of states alone, but should be treated as if they are to be used
to the benefit of all mankind. For example, Article 4 of the Moon Treaty 1979states
that exploration "shall be the province of all mankind and shall be carried out for
the benefit and in the interests of all countries, irrespective of their degree of
economic or scientific development".
commonhold n. A third way of owning land, in addition to *freehold and
*leasehold, that is expected to be introduced into England and Wales in accordance
with the Commonhold and Leasehold Reform Bill. It is intended for developments in
which individual properties, such as flats, houses, or shops, are owned and occupied
by separate persons, but there are common parts, such as stairways and walkways,
that need to remain in central ownership and to be maintained. Previously, such
properties were usually held under long leases, but this had proved unsatisfactory.
Each separate property in a commonhold development will be a unit; the owner
will be a unit-holder. The body owning the common parts will be the commonhold
association, a private company limited by guarantee. Each unit-holder will be a
member of that company. The company membership will be limited to the unitholders,
and the memorandum and articles of the company will be prescribed by the
Lord Chancellor. The commonhold association will also need to create a
Commonhold Community Statement (CCS) setting out the rules and regulations
of the particular community. The commonhold association with its common parts
and all the associated units will be registered at the Land Registry. It will be possible
for leasehold developments to convert to commonhold, but only by the consent of
all parties.
common land Land subject to rights of *common. The Commons Registration Act
1965 provides for the registration with local authorities of all common land in
England and Wales, its owners, and claims to rights of common over it. Subject to
the investigation by Commons Commissioners of disputed cases, and to exceptions
for land becoming or ceasing to be common land, registration provides conclusive
evidence that land is common land and also of the rights of common over it. Rights
could be lost by failure to register.
common law 1. The part of English law based on rules developed by the royal
courts during the first three centuries after the Norman Conquest (1066) as a system
applicable to the whole country, as opposed to local customs. The Normans did not
attempt to make new law for the country or to impose French law on it; they were
mainly concerned with establishing a strong central administration and
safeguarding the royal revenues, and it was through machinery devised for these
purposes that the common law developed. Royal representatives were sent on tours
of the shires to check on the conduct of local affairs generally, and this involved
their participating in the work of local courts. At the same time there split off from

the body of advisers surrounding the king (the curia regis) the first permanent royal
court - the *Court of Exchequer, sitting at Westminster to hear disputes
concerning the revenues. Under Henry II (reigned 1154-89), to whom the
development of the common law is principally due, the royal representatives were
sent out on a regular basis (their tours being known as circuits) and their functions
began to be exclusively judicial. Known as justiciae errantes (wandering justices), they
took over the work of the local courts. In the same period there appeared at
Westminster a second permanent royal court, the *Court of Common Pleas. These
two steps mark the real origins of the common law. The judges of the Court of
Common Pleas so successfully superimposed a single system on the multiplicity of
local customs that, as early as the end of the 12th century, reference is found in
court records to the custom of the kingdom. In this process they were joined by the
judges of the Court of Exchequer, which began to exercise jurisdiction in many
cases involving disputes between subjects rather than the royal revenues, and by
those of a third royal court that gradually emerged - the Court of King's Bench (see
COURT OF QUEEN'S BENCH). The common law was subsequently supplemented by
*equity, but it remained separately administered by the three courts of common
law until they and the Court of Chancery (all of them sitting in Westminster Hall
until rehoused in the Strand in 1872) were replaced by the *High Court of Justice
under the Judicature Acts 1873-75. 2. Rules of law developed by the courts as
opposed to those created by statute. 3. A general system of law deriving exclusively
from court decisions.
common-law marriage 1. A marriage recognized as valid at common law
although not complying with the usual requirements for marriage. Such marriages
are only recognized today if (1) they are celebrated outside England and there is no
local form of marriage reasonably available to the parties or (2)they are celebrated
by military chaplains in a foreign territory (or on a ship in foreign waters), and one
of the parties to the marriage is serving in the Forces in that territory. The form
of marriage is a declaration that the parties take each other as husband and wife.
2. Loosely, the situation of two unmarried people living together as husband and
wife (see COHABITATION). In law such people are treated as unmarried, although
recently they have been recognized as equivalent to married persons for purposes
of protection against battering and for some provisions of the Rent Acts (such as
succession to *statutory tenancies).
Common Market See EUROPEAN COMMUNITI.
common mistake See MISTAKE.
common money bond See BOND.
Common Serjeant The title held by one of the *circuit judges at the *Central
Criminal Court. It was formerly an ancient office of the City of London, first
mentioned in its records in 1291. Serjeants-at-law were the highest order at the
English Bar from the 13th or 14th centuries until the King's Counsel took priority in
the 17th century. Until 1873 the judges of the common law courts were appointed
from the serjeants; the order of serjeants was dissolved in 1877. The title remains,
however, for a circuit judge who has a ten-year Crown Court qualification and who
has been appointed a Common Serjeant by the Crown.
Commonwealth (British Commonwealth) n. A voluntary association consisting
of the UK and many of its former colonies or dependencies (e.g. protectorates) that
have attained full independence and are recognized by international law as separate
countries. The earliest to obtain independence (e.g.Canada and Australia) did so by
virtue of the Statute of Westminster 1931, but the majority have been granted it
individually by subsequent Independence Acts. Some (such as Canada and Australia)
are still technically part of the Crown's dominions; others (e.g. India) have become
republics. All accept the Crown as the symbol of their free association and the head
of the Commonwealth.
commonwealth citizen Under the British Nationality Act 1948,a status
synonymous with that of *British subject. By the British Nationality Act 1981(which
replaced the 1948 Act as from 1 January 1983 and gave the expression British subject
a very limited meaning), it was redefined as a wide secondary status. It now includes
every person who is either a British citizen, a British Dependent Territories citizen, a
British National (Overseas),a British Overseas citizen, a British subject (in its current
sense), or a citizen of one of the independent Commonwealth countries listed in a
schedule to the 1981 Act.
commorientes pl. n. [Latin] Persons who die at the same time. Under the Law of
Property Act 1925, when the order of death is uncertain commorientes are presumed
(so far as the devolution of their property is concerned) to have died in order of
seniority. Thus a bequest by the younger to the elder is treated as having lapsed.
However, this rule may be displaced by a contrary intention expressed in a will, and
under the Intestates' Estates Act 1952 the rule does not apply when intestate spouses
die at the same time: it is assumed that neither spouse left the other surviving.
community n. A *Iocal government area in Wales, as set out in the Local
Government (Wales) Act 1994, consisting of a division of a *county or a county
borough and equivalent to an English civil parish. All communities have meetings
and many have an elected community council. which is a *Iocal authority with a
number of minor functions (e.g. the provision of allotments, bus shelters, and
recreation grounds). A community council may by resolution call its area a town,
itself a town council, and its chairman the town mayor, either in Welsh or in
English.
community charge (poll tax) A former form of local tax levied on all adults
(with some exceptions) to contribute to the cost of local government. It was
introduced by the Local Government Finance Act 1988 to replace domestic *rates (i.e.
rates paid by private householders) from April 1990in England and Wales (it was
introduced in Scotland in 1989). The tax proved unpopular and difficult to collect. It
was abolished and replaced by the *council tax with effect from April 1993.
Community dimension (in ED mergers law) See MERGER.
community home An institution for the accommodation and maintenance of
children and young persons in care. Community homes are provided by local
authorities and voluntary organizations under the Children Act 1989. A local
authority may be liable for the acts of children in community homes.
community land See DEVELOPMENT LAND.
Community law (EU law) The law of the European Union (as opposed to the
national laws of the member states). It consists of the treaties establishing the EU
(together with subsequent amending treaties), *Community legislation, and decisions
of the *European Court of Justice. Any provision of the treaties or of Community
legislation that is directly applicable or directly effective in a member state forms
part of the law of that state and prevails over its national law in the event of any
inconsistency between the two.
Community Legal Service The service that replaced the *legal aid scheme on 1

April 2000. The new service has many features similar to the legal aid scheme but
has been redesigned to ensure that public funds are directed to those most in need.
It does this by excluding more categories of potential applicant and also in
prescribing new and stricter criteria for eligibility. The service is administered by
the Legal Services Commission (which replaced the Legal Aid Board of the old
scheme). There are various levels of service. They are: (1) legal help, which broadly
replaces the *green form scheme; (2) help at court, which is similar to the previous
*ABWOR; (3) investigative help, which provides the funding of investigation before
assessment as to whether or not to proceed; (4)full representation, which is
equivalent to the former full legal aid; (5) support funding, which provides partial
funds to support high-cost claims but not the majority of the costs, which are met
elsewhere; and (6) specific directions, by which the Lord Chancellor may authorize
specific support for particular claims, e.g. test cases or class actions. Strict financial
criteria are laid down for eligibility for each of these six levels of service, which
reflect the requirements of the different levels of service. However, at the centre of
such criteria is the cost-benefit criterion, under which funding will be refused if the
benefit to be gained is considered not to justify the level of costs likely to be
incurred.
Community legislation Laws made by the *Council of the European Union or
the *European Commission. Each body has legislative powers, but most legislation is
made by the Council, based on proposals by the Commission, and usually after
consultation with the *European Parliament. The role of the Parliament in the
legislative process was strengthened under the Single European Act 1986 and the
Maastricht Treaty. Community legislation is in the form of regulations, directives,
and decisions. Regulations are of general application, binding in their entirety, and
directly applicable in all member states without the need for individual member
states to enact these domestically (see COMMUNITY LAw). Directives are addressed to
one or more member states and require them to achieve (by amending national law
if necessary) specified results. They are not directly applicable - they do not create
enforceable Community rights in member states until the state has legislated in
accordance with the directive: the domestic statute then creates the rights for the
citizens of that country. A directive cannot therefore impose legal obligations on
individuals or private bodies, but by its direct effect it confers rights on individuals
against the state and state bodies, even before it has been implemented by changes
to national law, by decisions of the European court. Decisions may be addressed
either to states or to persons and are binding on them in their entirety. Both the
Council and the Commission may also make recommendations, give opinions, and
issue *notices, but these are not legally binding.
community of assets (community of property) The sharing of ownership of
matrimonial property, such as the home and furniture, as an automatic consequence
of marriage. This is not a feature of English law. See FAMILY ASSETS.
community punishment order An order that requires an offender (who must
consent and be aged at least 16) to perform unpaid work for between 40 and 240
hours under the supervision of a probation officer. Formerly known as a
community service order, it has been renamed under the Criminal Justice and
Court Services Act 2000. Such an order replaces any other form of punishment (e.g.
imprisonment); it is usually based on a probation officer's report and is carried out
within 12 months (unless extended). Breach of the order may be dealt with by fine
or by revocation of the order and the imposition of any punishment that could
originally have been imposed for the offence.
community rehabilitation order A court order, formerly known as a
probation order, placing an offender under the supervision of a *probation officer
for a period of between six months and three years, imposed (only with the consent
of the offender) instead of a sentence of imprisonment. Such orders may be imposed
on any offenders over the age of 16; they are most commonly imposed on first
offenders, young offenders, elderly offenders in need of support, and offenders
whose crimes are not serious. The order contains conditions for the supervision and
behaviour of the offender during the rehabilitation period, including where he
should live, when and how often he should report to his local probation officer, and
a requirement that he should notify the probation officer of any change of address.
The order may also require him to live in an approved probation hostel (for those
offenders employed outside the hostel) or an approved probation home (for
offenders not employed outside). An order may also be made that the offender
should attend a specified day-training centre, designed to train him to cope with
the strains of modern life, for a period of up to 60 days.
A community rehabilitation order has the same legal effect as a *discharge. If the
offender is convicted of a further offence while undergoing community
rehabilitation, he may be punished in the normal way for the original offence (for
which the order was made) as though he had just been convicted of that offence. If
he does not comply with the conditions specified in the community rehabilitation
order, he may be fined or the court may make a *community punishment order or
order for attendance at a day centre or it may punish him for the original offence
as though he had just been convicted of it.
Community rehabilitation orders may also be imposed on offenders who, though
not insane, are suffering from some mental problem. A medical practitioner or
chartered psychologist may be specified in such orders.
Community Trade Mark (ClM) A *trade mark that is registered for the whole
of the European Union. It can be obtained by application to national trade mark
offices or the Community Trade Mark Office at Alicante, Spain. The European
Commission adopted the Regulation for the Community Trade Mark, Regulation
40/94, on 20 December 1993; UK legislation was included in the Trade Marks Act 1994.
Marks are registered for a period of ten years and may be renewed on payment of
fees.
commutative contract See CONTRACT OF EXCHANGE.
Companies Court The collective name given to those judges forming part of the
*Chancery Division of the High Court who deal with matters arising out of the
Companies Acts, principally the formation, management, and winding-up of limited
liability companies (see LIMITED COMPANY).
Companies House See COMPANIES REGISTRY.
companies register The official list of companies registered at the Companies
Registry (see REGISTRATION OF A COMPANY).
Companies Registry (Companies House) The office of the Registrar of
Companies (see REGISTRATION OF A COMPANY). Companies with a registered office in
England or Wales are served by the registry at Cardiff; those in Scotland by the
registry in Edinburgh. Certain documents lodged there are open to inspection. These
documents include the *accounts of limited companies, the *annual return, any
*prospectus, the *memorandum and *articles of association, and particulars of the
directors, the secretary, the *registered office, some types of company *charge, and
notices of liquidation.

company n. An association formed to conduct business or other activities in the
name of the association. Most companies are incorporated (see INCORPORATION) and
therefore have a legal personality distinct from those of their members.
Incorporation is usually by registration under the Companies Act 1985 (see
REGISTRATION OF A COMPANY) but may be by private Act of Parliament (see STATUTORY
COMPANY) or by royal charter (chartered company). Shareholders and directors are
generally protected when the company goes out of business. See FOREIGN COMPANY;
LIMITED COMPANY; PRIVATE COMPANY; PUBLIC COMPANY; UNLIMITED COMPANY; WELSH
COMPANY.
company meeting See GENERAL MEETING.
company member A person who holds *shares in a company or, in the case of a
company that does not issue shares (such as a company limited by guarantee), any of
those who have signed the *memorandum of association or have been admitted to
membership by the directors. See LIMITED COMPANY.
company name The title of a registered company, as stated in its *memorandum
of association and in the companies register. The names with which companies can
be registered are restricted (see also BUSINESS NAME). The name must appear clearly in
full outside the *registered office and other business premises, upon the company
seal, and upon certain documents issuing from the company, including notepaper
and invoices. Noncompliance is an offence and fines can be levied. Under the
Insolvency Act 1986,it may be an offence for a director of a company that has gone
into insolvent liquidation to re-use the company name. See also CHANGE OF NAME;
LIMITED COMPANY.
company secretary An officer of a company whose role will vary according to
the nature of the company but will generally be concerned with the administrative
duties imposed upon the company by the Companies Act (e.g.delivering documents
to the *Companies Registry). Under the Companies Act 1985 every company is
required to have a company secretary. A sole *director cannot also be the company
secretary, and in the case of a *public company the company secretary must be
qualified to act as such.
compellable witness A person who may lawfully be required to give evidence.
In principle every person who is competent to be a witness is compellable (see
COMPETENCE). In criminal prosecutions the spouse of the accused is generally
competent and, under the 1999amendments to the Police and Criminal Evidence Act
1984,may in some circumstances be compellable; for example, when the offence
charged is an assault upon the spouse or someone under the age of 16, the spouse is
compellable as well as competent.
compensation n. Monetary payment to compensate for loss or damage. When
someone has committed a criminal offence that caused personal injury, loss, or
damage, and he has been convicted for this offence or it was taken into account
when sentencing for another offence, the court may make a compensation order
requiring the offender to pay compensation to the person suffering the loss (with
interest, if need be). Magistrates' courts may make orders in respect of
compensation. The court must take into account the offender's means and should
avoid making excessively high orders or orders to be paid in long-term instalments.
If the offender cannot afford to pay both a fine and compensation, priority should
be given to payment of compensation. A compensation order may be made for
funeral expenses or bereavement in respect of death resulting from an offence
other than a death due to a motor-vehicle accident. Potential claimants and
maximum compensation for bereavement are the same as those under the Fatal
Accidents Act 1976 (see FATAL ACCIDENTS). An order may only be made in respect of
injury, loss, or damage (other than loss suffered by a person's dependants in
consequence of his death) due to a motor-vehicle accident if (1) it is for damage to
property occurring while it was outside the owner's possession in the case of
offences under the Theft Act 1968,or (2) the offender was uninsured to use the
vehicle and compensation is not payable under the *Motor Insurers' Bureau
agreement. A court that does not award compensation must give reasons. Victims of
*criminal injury may apply for compensation under the *Criminallnjuries
Compensation Scheme. Under the Theft Act 1968, a *restitution order in monetary
terms may be made when the stolen goods are no longer in existence; this kind of
order is equivalent to a compensation order. Compensation orders may be made in
addition to, or instead of, other sentences. A court must order a parent or guardian
of an offender under the age of 17 to pay a compensation order on behalf of the
offender unless the parent or guardian cannot be found or it would be unreasonable
to order him to pay it.
A person who has been wrongfully convicted of a criminal offence may apply to
the Home Secretary for compensation, which is awarded upon the assessment of an
independent assessor.
An *employment tribunal may order an employer to pay compensation to an
employee who has been unfairly dismissed (see UNFAIR DISMISSAL). The compensation
comprises a basic award of a sum equivalent to the *redundancy payment to which
a redundant employee would be entitled (with a minimum of £3300 when dismissal
is for trade union activity), and a compensatory award representing the loss that
the employee suffers because of the dismissal (the compensatory award is subject to
an upper limit of £51,700). This will include compensation for the loss of his earnings
and other benefits of the former employment, and for the loss of his statutory
rights in respect of unfair dismissal and redundancy in the initial period of any new
employment he obtains (see CONTINUOUS EMPLOYMENT). Additional compensation may
be awarded if the employer does not comply with an order by the tribunal to reemploy
the employee; the additional award will be between 26 and 52 weeks' pay.
Limits on the amount of weekly pay that can be used in these calculations are set by
regulations made by the Secretary of State for Work and Pensions and reviewed
annually. The tribunal may reduce any compensation by an appropriate proportion
when the employee's conduct has contributed to his dismissal. The employee is
under the same duty to mitigate his loss as someone claiming damages in the courts.
Thus if he unreasonably refuses an offer of a new job he will not be compensated
for his continued unemployment thereafter. If the employee was dismissed for his
failure to enter into a *closed-shop agreement, following pressure by a trade union
for his dismissal, the employer can pass on to the trade union the liability to pay
compensation. Compensation may also be awarded by an employment tribunal when
there is a finding of sexual or racial discrimination. In such cases the upper limit or
financial cap on unfair dismissal damages has been removed, as the European Court
of Justice has ruled that the cap is discriminatory and contrary to *equal treatment
laws. This award can also include an amount for hurt feelings.
competence n. (of witnesses) The legal capacity of a person to be a *witness. Since
the abolition in the 19th century of certain ancient grounds of incompetence, every
person of sound mind and sufficient understanding has been competent, subject to
certain exceptions. For example, a child may be sworn as a witness only if he
understands the solemnity of the occasion and that the taking of an oath involves an
obligation to tell the truth over and above the ordinary duty of doing so. However,
under the Youth Justice and Criminal Evidence Act 1999, a child below the age of 14

years may only give *unsworn evidence. Since the Police and Criminal Evidence Act
1984 and the subsequent 1999amendments, the spouse of an accused is generally a
competent witness for the prosecution (subject to some exceptions) and compellable
for the accused (subject to some exceptions).
competition law The branch of law concerned with the regulation of
*anticompetitive practices, *restrictive trade practices, and *abuses of a dominant
position or market power. Such laws prohibit *cartels and other commercial
restrictive agreements. In the UK the Competition Act 1998and the Fair Trading Act
1973 contain the legislative provisions. Throughout the EU, *Articles 81 and 82 of the
Treaty of Rome and regulations made under those provisions contain the legal rules
in this area, which constitute EU competition law. Under the de minimis principle,
the European Commission has issued a notice that competition rules will be unlikely
to apply to agreements affecting trade between member states when the parties to
the agreement have a joint market share of 5%or less (10% for *vertical agreements,
such as distribution contracts). In the USAcompetition law is known as antitrust
law.
competitive tendering The introduction of competition into the provision of
public services with the aim of improving the cost-effectiveness and quality of these
services. It affected a wide range of public bodies, from local authorities to the
prison service: public services were supplied by the body (usually a private-sector
company) that submitted the most competitive tender for the service in question.
Examples of services most commonly provided by this means were refuse collection,
the provision of school meals, and residential care for the elderly. These rules were
principally contained in the Local Government Acts 1988 and 1992. The Local
Government Act 1999abolished compulsory competitive tendering and replaced it
with a duty to provide *best value, whereby authorities must have regard to
economy, efficiency, and effectiveness when exercising their functions.
complainant n. A person who alleges that a crime has been committed. A
complainant alleging rape, attempted rape, incitement to rape, or being an accessory
to rape is allowed by statute to remain anonymous; evidence relating to her
previous sexual experience cannot be given (unless the court especially rules
otherwise).
complaint n. 1. The initiating step in civil proceedings in the *magistrates' court,
consisting of a statement of the complainant's allegations. The complaint is made
before a *justice of the peace or, if the complaint is not required to be on oath,
before a *clerk to the justices, who may then issue an originating *process directed
to the defendant. 2. An allegation of a crime. A complaint made by the victim of a
sexual offence directly after the commission of the offence is admissible as evidence
of the consistency of the complainant's story.
completely constituted trust See EXECUTED TRUST.
completion n. (in land law) The point at which ownership of land that is the
subject of a contract for its sale changes hands. The purchaser hands over any
unpaid balance of the price in exchange for the title deeds and a valid conveyance of
the land to him if the land is unregistered. If the land is registered, the purchaser
receives a simple form of transfer that must be lodged at the appropriate District
*Land Registry with the *land certificate.
composition n. An agreement between a debtor and his creditors discharging the
debts in exchange for payment of a proportion of what is due. The debtor may have
to register the agreement as a *deed of arrangement. See also SCHEME OF
ARRANGEMENT; VOLUNTARY ARRANGEMENT.
compound vb. 1. To make a *composition with creditors. 2. See COMPOUNDING AN
OFFENCE.
compounding an offence The offence of accepting or agreeing to accept
consideration for not disclosing information that might assist in convicting or
prosecuting someone who has committed an *arrestable offence (consideration here
does not include reasonable compensation for loss or injury caused by the offence).
There is also a special statutory offence of advertising a reward for stolen goods on
the basis that "no questions will be asked" or that the person producing the goods
"will be safe from inquiry".
compound settlement A settlement of land arising from a series of trust
instruments, e.g. a resettlement following the barring of an *entailed interest.
Under the Settled Land Act 1925 the trustees of the original settlement (or if there
are none, those of the resettlement) are treated as the trustees of the compound
settlement. Thus the tenant for life is always able to overreach the interests of all
other beneficiaries (see OVERREACHING).
compromis d'arbifrage [French] Agreements between states to submit disputes
between them to an arbitration tribunal. See also ARBITRATION.
compromise n. The settlement of a disputed claim by agreement between the
parties. Any court proceedings already started are terminated. The terms of the
settlement can be incorporated in a judgment by the court (called a consent
judgment) or the terms can form a contract between the parties.
compulsory purchase The enforced acquisition of land for public purposes, by
statutory authority and on payment of compensation. Authority may be given for a
specific acquisition, but public and local authorities have wide powers to acquire any
land required for particular functions, such as education. These powers are normally
exercised under the Acquisition of Land Act 1981, and compensation is assessed
under the Land Compensation Acts 1961and 1973.A compulsory purchase order is
submitted for confirmation to the appropriate government minister, whose decision
is preceded by an inquiry into public objections. In most cases the procedure
includes the service of a *notice to treat on the landowner, who then negotiates
compensation. Any dispute about compensation is decided by the *Lands Tribunal.
See also SPECIAL PROCEDURE ORDERS.
compulsory winding-up A procedure for winding up a company by the court
based on a petition made under circumstances listed in the Insolvency Act 1986.The
main grounds for this type of petition are that the company is unable to pay its
debts or that the court is of the opinion that it is in the interests of the company
that a *just and equitable winding-up should be made. Any director, *contributory,
or creditor of the company, the supervisor of a *voluntary arrangement, or the
Secretary of State may make such a petition. The winding-up is conducted by a
*liquidator, who is supervised by the court, a *liquidation committee, and the
Department of Trade and Industry. See also WINDING-UP.
computer documents (in the law of evidence) In civil cases a document
produced by a computer is admissible under the general rules of evidence of any
fact recorded in it of which direct oral evidence would be admissible. In criminal
cases computer printouts are admissible as evidence by virtue of the amendments
introduced by the Youth Justice and Criminal Evidence Act 1999

computer misuse See HACKING.
concealment n. See NONDISCLOSURE.
concealment of securities The offence (punishable by up to seven years'
imprisonment) of dishonestly concealing, destroying, or defacing any valuable
security, will, or any document issuing from a court or government department for
the purpose of gain for oneself or causing loss to another. Valuable securities
include any documents concerning rights over property, authorizing payment of
money or the delivery of property, or evidencing such rights or the satisfying of any
obligation.
concentration n. (in EU law) The technical term for a *merger.
concert party (consortium) An agreement (which mayor may not be legally
binding) between a number of people to acquire shares in a company in order to
accumulate a significant holding of its voting shares. Under the Companies Act 1985
and rules administered by the Panel on Takeovers and Mergers anyone becoming
interested in 3% or more of the voting shares of a public company must disclose
this to the company; a member of a concert party is deemed to be interested not
only in his own shares but also in those of other consortium members. Such
disclosure may enable a company to counter a *takeover; it may also trigger rules
relating to partial offers, which may make it necessary for the consortium to offer
to buy the remaining shares. See also SARS. Compare DAWN RAID.
conciliation n. 1. (in civil disputes) See ACAS; ALTERNATIVE DISPUTE RESOLUTION. 2. A
procedure of peaceful settlement of international disputes. The matter of dispute is
referred to a standing or ad hoccommission of conciliation, appointed with the
parties' agreement, whose function is to elucidate the facts objectively and
impartially and then to issue a report. The eventual report is expected to contain
concrete proposals for a settlement, which, however, the parties are under no legal
obligation to accept. See also GOOD OFFICES; MEDIATION.
conciliation officer See ACAS.
conclusive evidence Evidence that must, as a matter of law, be taken to
establish some fact in issue and that cannot be disputed. For example, the certificate
of incorporation of a company is conclusive evidence of its incorporation.
concurrent interests Ownership of land by two or more persons at the same
time; for example, *joint tenancy and *tenancy in common.
concurrent jurisdiction That part of the jurisdiction of the *Court of Chancery
before the Judicature Acts 1873-75 that was enforced equally in the common law
courts; equity usually took jurisdiction because the common law remedies were
inadequate. Since the Judicature Acts the jurisdiction of all divisions of the High
Court has been concurrent in name, but certain remedies (for example, specific
performance and injunction) are more commonly sought in the Chancery Division.
Compare EXCLUSIVE JURISDICTION.
concurrent lease A lease granted by a landlord to run at the same time as
another lease of the same premises. The effect is that the lessee of the concurrent
lease acquires the rights and duties of the landlord in relation to the other lease.
concurrent planning (twin-track planning) The planning involved in placing
certain children who are in local-authority care with carers who are approved to
both foster and adopt. Initially, the plan requires that the carers should work
constructively to return the child to its parents. If it becomes apparent that this
will not happen within a reasonable time, the carers will continue to look after the
child and apply to adopt him. The aim of concurrent planning is to reduce the
number of moves experienced by a child in care.
concurrent sentence A *sentence to be served at the same time as one or more
other sentences, when the accused has been convicted of more than one offence.
Concurrent sentences are usually terms of imprisonment, and in effect the accused
serves the term of the longest sentence. Alternatively the court may impose
consecutive sentences, which follow on from each other.
concurrent tortfeasors See JOINT TORTFEASORS.
condition n. 1. A major term of a contract. It is frequently described as a term
that goes to the root of a contract or is of the essenceof a contract (see alsoTIME
PROVISIONS IN CONTRACTS); it is contrasted with a warranty, which is a term of minor
importance. Breach of a condition constitutes a fundamental breach of the contract
and entitles the injured party to treat it as discharged, whereas breach of warranty
is remediable only by an action for damages, subject to any contrary provision in a
contract (see BREACH OF CONTRACT). A condition or a warranty may be either an
*express term or an *implied term. In the case of an express term, the fact that the
contract labels it a condition or a warranty is not regarded by the courts as
conclusive of its status. See alsoINNOMINATE TERMS. 2. A provision that does not form
part of a contractual obligation but operates either to suspend the contract until a
specified event has happened (a condition precedent) or to bring it to an end in
certain specified circumstances (a condition subsequent).When X agrees to buy Y's
car if it passes its MOTtest, this is a condition precedent; a condition in a contract
for the sale of goods that entitles the purchaser to return the goods if dissatisfied
with them is a condition subsequent.
conditional admissibility The *admissibility of evidence whose *relevance is
conditional upon the existence of some fact that has not yet been proved. The courts
permit such evidence to be given conditionally, upon proof of that fact at a later
stage of the trial. Such evidence is sometimes said to have been received *de beneesse.
conditional agreement An agreement that will take effect, if at all, upon the
happening of some uncertain event.
conditional discharge See DISCHARGE.
conditional fee agreement An agreement, which must be in writing, between
lawyer and client for legal services in litigation to be provided on the basis that
payment is only due if the proceedings are successful ("no win, no fee"). In return
for accepting the risk of no fee, the lawyer is entitled to charge a higher fee (by
claiming a higher *uplift) if successful. If the claimant loses the case, he may have
to pay the other party's costs. The litigation is therefore not entirely risk-free,
although insurance, for which premiums are charged, can be taken out to
accommodate this risk. The conditions on which a conditional fee agreement may be
made (including the type of proceedings in which they are available and the
maximum percentage increase in fees allowed) are prescribed by the Lord Chancellor
under the Courts and Legal Services Act 1990 and the Access to Justice Act 1999. For
most areas of law conditional fee agreements are unlawful, but they are allowed for
certain limited categories of cases, including personal injury cases. See also
CONTINGENCY FEE; MAINTENANCE AND CHAMPERTY.
conditional interest An interest that is liable to be forfeited, on the occurrence
of a specified event, at the instance of the person who created it; for example, when

A conveys land to B in fee simple subject to a rentcharge and reserves a right of
forfeiture for nonpayment. Under the Law of Property (Amendment) Act 1926 a
conditional interest in land qualifies as a *fee simple absolute in possession and can
therefore exist as a legal estate. Compare CONTINGENT INTEREST; DETERMINABLE INTEREST.
conditional sale agreement A contract of sale under which the price is payable
by instalments and ownership is not to pass to the buyer (although he is in
possession of the goods) until specified conditions relating to the payment of the
price or other matters are fulfilled. The seller retains ownership of the goods as
security until he is paid. A conditional sale agreement is a *consumer-credit
agreement; it is regulated by the Consumer Credit Act 1974 if the buyer is an
individual, the credit does not exceed £25,000, and the agreement is not otherwise
exempt.
condition precedent See CONDITION.
condition subsequent See CONDITION.
condominium n. 1. Joint sovereignty over a territory by two or more states (the
word is also used for the territory subject to joint sovereignty). For example, the
New Hebrides Islands in the South Pacific were a Franco-British condominium until
1980.Sovereignty is joint, but each jointly governing power has separate jurisdiction
over its own subjects. Compare CO-IMPERIUM. 2. Individual ownership of part of a
building (e.g. a flat in a block of flats) combined with common ownership of the
parts of the building used in common.
condonation n. Forgiving a matrimonial offence or turning a blind eye to it.
Formerly a bar to divorce, it is no longer relevant in divorce proceedings.
confederation n. A formal association of states loosely bound by a treaty, in many
cases one establishing a central governing mechanism with specified powers over
member states but not directly over citizens of those states. In a confederation, the
constituent states retain their national sovereignty and consequently their right to
*secession. Compare FEDERAL STATE.
conference n. 1. A meeting of members of the House of Lords and the House of
Commons appointed to attempt to reach agreement when one House objects to
amendments made to one of its Bills by the other. 2. A meeting between counsel
and a solicitor to discuss a case in which they are engaged. Conferences usually take
place at counsel's chambers. If the barrister involved is a QC, the meeting is called a
consultation.
confession n. An *admission, in whole or in part, made by an accused person of
his guilt. At common law, confessions were admissible if made voluntarily, i.e. not
obtained as a result of some threat or inducement held out by a person in authority
(such as a police officer). They are now governed by the Police and Criminal Evidence
Act 1984,which requires the prosecution, if called upon to do SO, to prove beyond a
reasonable doubt that the confession was not obtained by oppression of the person
who made it or as a result of anything that was likely to render the confession
unreliable. A confession may also be ruled to be inadmissible if the civil rights of
the accused have been breached, for example if he has been denied access to legal
advice.
confession and avoidance A pleading in the *defence that, while admitting or
assuming the truth of the material facts alleged in the particulars of claim (the
confession), seeks to avoid or destroy the legal consequences of those facts by
alleging further facts constituting some defence to the claim (the avoidance).An
example is a plea of self-defence to an action for assault.
confidential communication The mere fact that a communication is
confidential does not in itself make it inadmissible; it will only be so if it is within
the scope of an evidentiary *privilege, such as legal professional privilege or publicinterest
privilege.
confidential information See BREACH OF CONFIDENCE.
confiscation order An order that requires an offender convicted by the Crown
Court of an *indictable offence, who has benefited by at least £10,000 from that
offence (or an offence taken into consideration), to pay a sum that the court thinks
fit. Magistrates may make such orders only in relation to a limited class of offences
(e.g. offences relating to the supply of video recordings of unclassified work). The
order is enforced like a *fine and is in addition to any other sentence. The High
Court may make a restraint order prohibiting the transfer or disposal of realizable
property held by a person when proceedings have been instituted against him for a
relevant offence. See also CONTROLLED DRUGS.
conflict of laws See PRIVATE INTERNATIONAL LAW.
confusion of goods The mixing of goods of two or more owners in such a way
that their original shares can no longer be distinguished. The owners hold the goods
in common, in proportion to their shares. One owner may be awarded possession of
the mixture, if he has best right to it, subject to him compensating the other owner
for his proportion.
conjugal rights The rights of either spouse of a marriage, which include the
right to the other's consortium (company), cohabitation (sexual intercourse), and
maintenance during the marriage. There is, however, no longer any legal procedure
for enforcing these rights. The old action for restitution of conjugal rights was
abolished in 1971 and a husband insisting on sexual intercourse against the wishes of
his wife may be guilty of *rape. See also CONSUMMATION OF A MARRIAGE.
connivance n. Behaviour of a person designed to cause his or her spouse to
commit a matrimonial offence, such as adultery. Connivance is no longer an absolute
bar to divorce, but may still be evidence that the marriage has not irretrievably
broken down.
conquest n. The acquisition by military force of enemy territory followed by its
formal annexation after the cessation of hostilities. It does not include the
acquisition of land as a term of a peace treaty (see CESSION). The acquisition of
territory after a war in the absence of any peace treaty, because the defeated state
has ceased to exist, is known as debellatio or subjugation. Conquest is not now
regarded as a legitimate means of acquiring territory, and hence conferring valid
title, as Article 2(4)of the UN Charter expressly prohibits aggressive war and Article
5(3) of General Assembly Resolution 3314 (XXIX) of 1975effectively nullifies any legal
title acquired in this way.
consanguinity (blood relationship) n. Relationship by blood, i.e. by descent from
a common ancestor. People descended from two common ancestors are said to be of
the whole blood. If they share only one ancestor, they are of the half blood.
Compare AFFINITY.
consecutive sentences See CONCURRENT SENTENCE.
consensus ad idem [Latin: agreement on the same thing] The agreement by

contracting parties to identical terms that is necessary for the formation of a legally
binding contract. See ACCEPTANCE; MISTAKE; OFFER.
consent n. Deliberate or implied affirmation; compliance with a course of
proposed action. Consent is essential in a number of circumstances. For example,
contracts and marriages are invalid unless both parties give their consent. Consent
must be given freely, without duress or deception, and with sufficient legal
competence to give it (see also INFORMED CONSENT). In criminal law, issues of consent
arise mainly in connection with offences involving violence and *dishonesty. For
public-policy reasons, a victim's consent to conduct which foreseeably causes him
bodily harm is no defence to a charge involving an *assault, *wounding, or
*homicide; in other cases the defendant should be acquitted if the magistrates or
jury have a reasonable doubt not only as to whether the victim had consented but
also as to whether he thought the victim had consented. See alsoAGE OF CONSENT;
BATTERY; CONVEYANCE; RAPE.
conservation area An area designated as such by a local planning authority (see
TOWN AND COUNTRY PLANNING) because it is of special architectural or historic interest
the character of which ought to be preserved or enhanced. Each building in the area
becomes protected as if it were a *listed building, and trees not protected by a *tree
preservation order may only be lopped, felled, etc., after notice to the authority.
consideration n. An act, forbearance, or promise by one party to a contract that
constitutes the price for which he buys the promise of the other. Consideration is
essential to the validity of any contract other than one made by deed. Without
consideration an agreement not made by deed is not binding: it is a nudum pactum
(naked agreement), governed by the maxim ex nudo pacto non oritur actio (a right
of action does not arise out of a naked agreement).
The doctrine of consideration is governed by four major principles. (1) A valuable
consideration is required, i.e. the act, forbearance, or promise must have some
economic value. Good consideration (natural love and affection or a moral duty) is
not enough to render a promise enforceable. (2)Consideration need not be adequate
but it must be sufficient. Not to be adequate in this context means that it need not
constitute a realistic price for the promise it buys, as long as it has some economic
value. If X promises to sell his £50,000house to Y for £5000,Y is giving valuable
consideration despite its inadequacy. £1 is often the consideration in commercial
contracts. That it must be sufficient means sufficient in law. A person's
performance of, or promise to perform, an existing duty usually cannot in law
constitute consideration. (3) Consideration must move from the promisee. Thus if X
promises to give Y £1000 in return for Y's promise to give employment to Z,Z
cannot enforce Y's promise, for he has not supplied the consideration for it. (4)
Consideration may be executory or executed but must not be past. A promise in
return for a promise (as in a contract of sale) is executory consideration; an act or
forbearance in return for a promise (as in giving information to obtain a reward) is
executed consideration. However, a completed act or forbearance is past
consideration in relation to any subsequent promise. For example, if X gives
information to Y gratuitously and Y then promises to reward him this is past
consideration, which does not constitute consideration.
consistory court See ECCLESIASTICAL COURTS.
Consolidated Fund The central account with the Bank of England maintained by
the government for receiving public revenue and meeting public expenditure. Most
payments from it are authorized annually by Consolidated Fund Acts, but some (e.g.
judicial salaries) are permanent statutory charges on it.
consolidating statute A statute that repeals and re-enacts existing statutes
relating to a particular subject. Its purpose is to state their combined effect and so
simplify the presentation of the law. It does not aim to alter the law unless it is
stated in its long title to be a consolidation with amendments. An example of a
consolidating statute is the Trade Union and Labour Relations (Consolidation) Act
1992. Compare CODIFYING STATUTE. See also INTERPRETATION OF STATUTES.
consolidation of actions A procedure in civil cases by which two or more cases
may be amalgamated. It is generally necessary to show that some common question
of law or fact will arise in all the cases. The purpose of consolidation is to save costs
and time.
consolidation of mortgages The right of a mortgagee who has taken
mortgages on two or more properties from the same mortagor to require the
mortgagor to redeem all of the mortgages or none, provided that the contractual
date of redemption (see POWER OF SALE) for all of them has passed. The right arose
because it was considered unfair to a mortgagee to have one security redeemed
when another, given by the same mortgagor, might be inadequate to secure that
loan. Since 1881at least one of the mortgage deeds must show an intent to allow
consolidation for the mortgagee to exercise the right. Compare TACKING.
consortium n. 1. The right of one spouse to the company, assistance, and affection
of the other. Formerly, a husband could bring an action in tort (per quod
consortium amisit) against anyone who, by a tortious act against his wife, deprived
him of consortium. A wife had no corresponding action. The action for loss of
consortium was abolished by the Administration of Justice Act 1982. 2. See CONCERT
PARTY.
conspiracy n. 1. An agreement between two or more people to behave in a
manner that will automatically constitute an offence by at least one of them (e.g.
two people agree that one of them shall steal while the other waits in a getaway
car). The agreement is itself a statutory crime, usually punishable in the same way as
the offence agreed on, even if it is not carried out. Mensrea, in the sense of
knowledge of the facts that make the action criminal, is required by at least two of
the conspirators, even if the crime agreed upon is one of *strict liability. One may
be guilty of conspiracy even if it is impossible to commit the offence agreed on (for
example, when two or more people conspire to take money from a safe but,
unknown to them, there is no money in it). A person is, however, not guilty of
conspiracy if the only other party to the agreement is his (or her) spouse. Nor is
there liability when the acts are to be carried out in furtherance of a trade dispute
and involve only a summary and nonimprisonable offence. Incitement to conspire
and attempt to conspire are no longer crimes.
Some forms of criminal conspiracy still exist at common law. These are now
limited to: (1) conspiracy to *defraud (e.g. to commit fraud, theft, obtain property by
deception, or infringe a copyright) or to cause an official to act contrary to his
public duty; (2)conspiracy to corrupt public morals (see CORRUPTION OF PUBLIC MORALS);
and (3) conspiracy to outrage public decency (this might include an agreement to
mount an indecent exhibition).
2. A conspiracy to injure a third party is a tort if it causes damage to the person
against whom the conspiracy is aimed. It is not necessary to prove that the
conspirators used unlawful means. If unlawful means have not been used,
conspiracy is not actionable if the predominant purpose of the conspirators was
legitimate. Protection of one's own financial or trade interests is thus a legitimate

purpose provided no unlawful means are used; but retaliation for an insult to one's
dignity is not. The operation of the tort in *trade disputes is limited by statute.
constable n. See POLICE OFFICER.
constituency n. An area of the UKfor which a representative is elected to
membership of the *House of Commons or the *European Parliament. See also
BOUNDARY COMMISSIONS.
Constituency Members Members of the *London Assembly each of whom
represents one of the 14 London constituencies. Constituency Members are elected
every four years in May by voters in London, at the same time as *London Members
and the *Mayor of London are elected. Each of the 14 London constituencies returns
one member.
constitution n. The rules and practices that determine the composition and
functions of the organs of central and local government in a state and regulate the
relationship between the individual and the state. Most states have a written
constitution, one of the fundamental provisions of which is that it can itself be
amended only in accordance with a special procedure. The constitution of the UK is
largely unwritten. It consists partly of statutes, for the amendment of which by
subsequent statutes no special procedure is required (see ACT OF PARLIAMENT), but also,
to a very significant extent, of *common law rules and *constitutional conventions.
constitutional conventions Practices relating to the exercise of their functions
by the Crown, the government, Parliament, and the judiciary that are not legally
enforceable but are commonly followed as if they were. One of the most important
is that the Crown must exercise its constitutional powers only in accordance with
the advice of ministers who collectively command the support of a majority of the
House of Commons. There is no single reason why conventions are observed. For
example, it is a very old convention that Parliament must be summoned at least
once a year. If that were not to happen, there would be no annual Finance Act and
the government would be able to function only by raising illegal taxation. By
contrast. if the Crown broke the convention that the royal assent must not be
refused to a Bill duly passed by Parliament, illegal conduct would not necessarily
follow (although the future of the monarchy could well be at risk). The basic reason
for obeying conventions is to ensure that the machinery of government should
function smoothly; conventions have not been codified into law and therefore can
be modified informally to meet changing circumstances.
constitutive theory The proposition that the existence of a state can only begin
with its formal or implied *recognition by other states. The constitutive theory of
recognition insists that only the positive act of recognition creates the new
*internationallegal personality. Compare DECLARATORY THEORY.
construction n. See INTERPRETATION.
constructive adj. Describing anything that is deemed by law to exist or to have
happened, even though that is not in fact the case.
constructive desertion Behaviour by one spouse causing the other to leave the
matrimonial home. If the behaviour is so bad that the party who leaves is forced to
do so, it is the spouse who stays behind who is considered, in law, to have deserted,
and not the spouse who actually left. A petition for divorce may therefore be
brought, after two years, on the ground of *desertion by the spouse who remained
behind.
constructive dismissal Termination of a contract of employment by an
employee because his employer has shown that he does not intend to be bound by
some essential term of the contract. Although the employee has resigned, he has the
same right to apply to an employment tribunal as one who has been unfairly
dismissed by his employer. See also UNFAIR DISMISSAL.
constructive fraud (legal fraud) Any of certain forms of unintentional
deception or misrepresentation (compare FRAUD). The concept is applied by equity to
those cases in which the courts will not enforce or will set aside certain transactions
(e.g. contracts) because it is considered unfair or unconscionable for a person to
insist on the transaction being completed. This unfairness may be inferred from the
terms of the transaction (when these are such that no person with proper advice
would have entered the transaction) or from the relationship of the parties (for
example, that of solicitor and client or of trustee and beneficiary).
constructive notice Knowledge that the law presumes a person to have even if
he is actually ignorant of the facts. A purchaser of unregistered land has
constructive notice of all matters that a prudent purchaser would discover on
inspection of the property or proper investigation of the title. It has also been held
that a purchaser has constructive notice of the rights of any person (such as a
spouse) who may reside on the property but is not an owner of the legal estate and
therefore does not appear on the title deeds. A purchaser of unregistered land is
bound by all matters of which he has constructive, as well as actual, notice unless
those matters are void against him for want of registration under the Land Charges
Act 1972. Those dealing with registered companies have constructive notice of the
contents of documents open to public inspection at the *Companies Registry. See also
ACTUAL NOTICE; IMPUTED NOTICE.
constructive total 1055 A loss of a ship or cargo that is only partial but is
treated for the purposes of a marine insurance policy as if it were an *actual total
loss. This may occur when an actual total loss either appears unavoidable (e.g.when a
perishable cargo becomes stranded indefinitely) or can only be prevented by
incurring expenditure greater than the value of the ship or cargo. In estimating the
cost of repairs for this purpose, general average contributions by other insurers are
left out of account, but the expense of salvage operations is a relevant factor. The
insured must serve a notice of *abandonment of the ship or cargo on the
underwriters. This must be unconditional and served within a reasonable time of his
learning of the loss; once accepted by the underwriters, it is irrevocable. The
underwriters become liable to indemnify him as for a total loss and in return are
entitled to all his rights in the ship or cargo.
constructive trust A *trust imposed by equity to protect the interests of the
beneficiaries when a trustee or some other person in a fiduciary relationship gains
an advantage through his position. It differs from an *implied trust in that no
reference is normally made to the expressed or presumed intention of the parties.
English law at present recognizes only the institutional constructive trust. This is
a trust that automatically comes into being when certain circumstances arise; for
example, when a person in a fiduciary position makes an unauthorized profit or
when a stranger meddles in a trust. The concept is frequently used in commercial
cases but not exclusively so. In a domestic setting, a constructive trust arises when a
sole legal owner of property tries to exclude the rights of another person (usually a
cohabitee) who has contributed to the purchase price of the property on the
understanding that ownership of the property is to be shared, or when the sole legal
owner tries to deny an express agreement to share ownership of the property.
Other Commonwealth jurisdictions recognize a remedial constructive trust: a

trust imposed at the discretion of the court to remedy an injustice. This is not
accepted by English courts, although recent case law has suggested that a
development in this area is possible.
consul n. A *diplomatic agent commissioned by a sovereign state to reside in a
foreign city, to represent the political and trading interests of the sending state, and
to assist in all matters pertaining to the commercial relations between the two
countries. See also DIPLOMATIC MISSION.
consumer n. A private individual acting otherwise than in a course of a business.
Consumers are often given greater legal protection when entering into contracts,
for example by having a right to avoid certain unfair terms or to cancel the
contract (see CONSUMER PROTECTION; DISTANCE SELLING). Many regulations define
"consumer" in a particular manner.
consumer-credit agreement A *personal-credit agreement in which an
individual (the debtor) is provided with credit not exceeding £25,000. Unless
exempted, consumer-credit agreements are regulated by the Consumer Credit Act
1974,which contains provisions regarding the seeking of business, entry into
agreements, matters arising during the currency of agreements, default and
termination, security, and judicial control. A loan to an individual businessman for
business purposes can be a consumer-credit agreement.
consumer-credit business Any business that comprises or relates to the
provision of credit under *consumer-credit agreements regulated by the Consumer
Credit Act 1974.With certain exceptions, e.g. local authorities, a licence is required to
carryon a consumer-credit business.
consumer-credit register The register kept by the Director General of Fair
Trading, as required by the Consumer Credit Act 1974,relating to the licensing or
carrying on of *consumer-credit businesses or *consumer-hire businesses. The
register contains particulars of undetermined applications, licences that are in force
or have at any time been suspended or revoked, and decisions given by the Director
under the Act and any appeal from them. The public is entitled to inspect the
register on payment of a fee.
consumer goods Goods normally supplied for private use or consumption. The
Unfair Contract Terms Act 1977 provides that if consumer goods prove defective
when used otherwise than exclusively for business purposes as a result of
negligence of a manufacturer or distributor, that person's *business liability cannot
be excluded or restricted by any guarantee under which the goods are sold. Under
the Consumer Protection Act 1987, suppliers of all consumer goods must ensure that
the goods comply with the *general safety requirement. Otherwise they commit a
criminal offence.
consumer-hire agreement An agreement made by a person with an individual,
a partnership, or with some other unincorporated body (the hirer) for the *bailment
of goods to the hirer. Such an agreement must not be a *hire-purchase agreement,
must be capable of subsisting for more than three months, and must not require
the hirer to make payments exceeding £25,000. The concept thus does not include a
hiring by a company. Consumer-hire agreements. unless exempted, are regulated by
the Consumer Credit Act 1974. Compare CONSUMER-CREDIT AGREEMENT.
consumer-hire business Any business that comprises or relates to the bailment
of goods under *consumer-hire agreements regulated by the Consumer Credit Act
1974.With certain exceptions, e.g. local authorities, a licence is required to carryon a
consumer-hire business.
consumer protection The protection, especially by legal means, of consumers
(those who contract otherwise than in the course of a business to obtain goods or
services from those who supply them in the course of a business). It is the policy of
current legislation to protect consumers against unfair contract terms. In particular
they are protected against terms that attempt to exclude or restrict the seller's
implied undertakings that he has a right to sell the goods, that the goods conform
with either description or sample, and that they are of satisfactory quality and fit
for their particular purpose (Unfair Contract Terms Act 1977). EU directive 93/13
renders unfair terms in consumer contracts void; it is implemented in the UKby
the Unfair Terms in Consumer Contracts Regulations 1999. The Office of Fair
Trading runs a special unfair terms unit, which investigates cases in this field. There
is also provision for the banning of unfair *consumer trade practices (Fair Trading
Act 1973). Consumers (including individual businessmen) are also protected when
obtaining credit (Consumer Credit Act 1974) and there is provision for the
imposition of standards relating to the safety of goods under the Consumer
Protection Act 1987and the General Product Safety Regulations 1994.There are, in
addition, many legislative measures that are product-specific, such as toy safety
regulations. For tort liability under the Consumer Protection Act, see PRODUCTS
LIABILITY.
consumer trade practice Any practice carried on in connection with the supply
of goods (by sale or otherwise) or services to consumers. These practices include the
terms or conditions of supply and the manner in which they are communicated to
the consumers, the promotion of the supply of goods or services, the methods of
salesmanship employed in dealing with consumers, the way in which goods are
packed, or the methods of demanding or securing payment for goods or services.
Under the Fair Trading Act 1973.consumer trade practices are controlled by the
Minister, the *Director General of Fair Trading, and the Consumer Protection
Advisory Committee, who may ban any practice that adversely affects the economic
interests of consumers in the UK.
consummation of a marriage The "completion" of a marriage by an act of
sexual intercourse. It is defined for these purposes as complete penetration of the
vagina by the penis (although ejaculation is not necessary). A marriage may be
consummated despite the use of a contraceptive sheath. If a spouse is incapable of
consummation or refuses without good reason to consummate the marriage, these
may be grounds for *annulment of the marriage. If one of the partners refuses to
arrange an additional marriage ceremony (e.g. in a church) without which he knows
his spouse will not agree to have intercourse, this may be a good reason for the
spouse's refusal to have intercourse. In this case it is the partner who refused to
arrange the ceremony who is regarded as not having consummated the marriage,
even though that partner is willing to have intercourse.
contact n. (in family law) The opportunity for a child to communicate with a
person with whom that child is not resident. The degree of contact may range from
a telephone call to a long stay or even a visit abroad, and the court may formalize
such arrangements by making a contact order (see SECTION 8 ORDERS). A parent being
visited by a child may exercise *parental responsibility during the child's visit. The
question of contact after a child has been adopted is becoming a contentious issue.
See also CARE CONTACT ORDER.
contact order See SECTION 8 ORDERS.

contemporanea expositio [Latin: contemporaneous interpretation] The
interpretation of a document in the sense in which it would have been interpreted
at the time of its making. This principle is applied particularly to the interpretation
of ancient documents.
contempt of court 1. (civil contempt) Disobedience to a court judgment or
process, e.g. breach of an injunction or improper use of discovered documents. If the
injunction is served on the defendant with a penal notice attached, breach of the
injunction can result in the defendant being jailed. 2. (criminal contempt) Conduct
that obstructs or tends to obstruct the proper administration of justice. At common
law criminal contempt includes the following categories. (1) Deliberately interfering
with the outcome of particular legal proceedings (e.g.attempting improperly to
pressurize a party to settle legal proceedings) or bribing or intimidating witnesses,
the jury, or a judge. (2) Contempt in the face of the court, e.g. using threatening
language or creating a disturbance in court. (3)Scandalizing the court by "scurrilous
abuse" of a judge going beyond reasonable criticism or attacking the integrity of
the administration of justice. (4) Interfering with the general process of
administration of justice (e.g.by disclosing the deliberations of a jury), even though
no particular proceedings are pending.
Under the Contempt of Court Act 1981it is a statutory contempt to publish to the
public, by any means, any communication that creates a substantial risk that the
course of justice in particular legal proceedings will be seriously impeded or
prejudiced, if the proceedings are active. Such publications constitute strict-liability
contempt, in which the intention to interfere with the course of justice is not
required, but there are various special defences. It is also contempt under the Act to
obtain or disclose any particulars of jury discussions and to bring into court or use a
tape recorder without permission. The Act also protects (subject to certain
exceptions) sources of information against disclosure in court. Contempt of court is
a criminal offence punishable by a jail sentence and/or a fine of any amount ordered
by the court.
contempt of Parliament See PARLIAMENTARY PRIVILEGE.
contemptuous damages A very small sum of *damages awarded when,
although the claimant is technically entitled to succeed, the court thinks that the
action should not have been brought. Contemptuous damages are sometimes
awarded in "gold-digging" actions for defamation.
contentious business Business of a solicitor when there is a contest between the
parties involved, especially litigation. It is important in relation to *costs, since
different rules govern contentious and noncontentious costs.
contentious probate business Disputed applications to the court relating to
the validity of wills and the administration of estates.
contiguous zone See TERRIfORIAL WATERS.
continental shelf The sea bed and the soil beneath it that is adjacent to the coast
of a maritime state and outside the limits of the state's territorial waters. The 1958
Geneva Convention on the Continental Shelf limits the extent of the shelf to waters
less than 200 metres deep or, beyond that limit, to waters that are of such a depth
that exploitation of the natural resources of the sea bed is possible. The coastal state
is granted exclusive sovereign rights of exploitation over mineral resources and
nonmoving species in its continental shelf, provided that this causes no
unreasonable interference to navigation, fishing, or scientific research. The 1982
Conference on the Law of the Sea extends the continental shelf, in some cases, to a
distance of 200 nautical miles from the baselines around the coast from which the
breadth of the territorial sea is measured. lt also makes special provisions for
delimiting the continental shelf between states with adjacent or opposite coastlines,
but does not lay down rules of law for such delimitation. Rocks that cannot sustain
human habitation do not have a continental shelf. See also LAW OF THE SEA.
contingency fee Payment to a lawyer only if the case is won. Contingency fees
are illegal in the UKbut common in other countries, such as the United States.
However, *conditional fee agreements are permitted for certain limited categories
of cases.
contingent interest An interest that can only come into being upon the
occurrence of a specified event (for example when A conveys land to B provided he
marries). As a contingent interest can only come into being in the future, if at all, it
cannot exist as a legal estate in land. Before 1997, such a transaction created a
settlement to which the Settled Land Act 1925applied. From 1997, such a transaction
gives rise to a *trust of land under the Trusts of Land and Appointment of Trustees
Act 1996.Contingent interests are consequently *equitable interests only. Compare
CONDITIONAL INTEREST; DETERMINABLE INTEREST.
contingent legacy A bequest that only takes effect if a particular condition is
fulfilled, e.g. a bequest "to A if he shall marry within five years".
continuous bail Bail granted by a magistrates' court directing the accused to
appear at every time and place to which the proceedings may from time to time be
adjourned, as opposed to a direction to appear at the end of a fixed period of
remand.
continuous employment The period for which a person's employment in the
same business has subsisted. Under the Employment Rights Act 1996,employees have
the right to claim certain statutory remedies only if they have been continuously
employed for certain minimum periods. The required period of continuous
employment necessary to bring an *unfair dismissal action is currently one year.
The right of employees to statutory redundancy payments and to *guarantee
payments arises after two years' and one month's continuous employment,
respectively. The minimum period of *notice to terminate an employee's contract
also depends on his period of continuous employment in the business. When a
business changes ownership as a going concern, the employee's period of continuous
employment under both the old and the new employer counts in calculating the
total (see also RELEVANT TRANSFER). When an employee is dismissed without notice, the
minimum notice to which he was entitled is added to the actual period of
employment in calculating whether or not he has served the minimum continuous
period. Part-time employees (i.e. those whose normal working week is less than 16
hours) formerly had few statutory rights until they had completed five years'
continuous employment in the business. However, the Employment Protection (Parttime
Employees) Regulations 1995now provide that part-timers, no matter what
hours they work, will benefit in the same way as those who are employed full time.
Periods during which an employee was on strike do not break the continuity, but
are excluded from his total period of continuous employment. Continuity is not
broken when a woman is absent due to pregnancy or confinement, provided she
takes up her right to return to work (see MATERNITY RIGHTS).
contraband n. 1. Goods whose import or export is forbidden. 2. (contraband of
war) Goods (such as munitions) carried by a neutral vessel (ship or aircraft) during
wartime and destined for the use of one belligerent power against the other (or

capable of being so used). Arms and other goods of a military nature were
traditionally referred to as absolute contraband, while goods having peaceful uses,
but nevertheless of assistance to a belligerent, were conditional contraband. The
distinction, though formally retained, has effectively been abolished. Belligerent
states are expected to issue contraband lists in order to exercise the right of
capture. Goods being carried to enemy territory in an enemy ship are contraband
even if they belong to a neutral power. The other belligerent is entitled to seize and
confiscate such goods. See alsoPRIZE COURT; SEARCH OF SHIP.
contra bonos mores [Latin] Against good morals. It is a matter of controversy to
what extent the criminal law should, or does, prohibit immoral conduct merely on
the ground of its immorality. The tendency in recent years has been to limit legal
intervention in matters of morals to acts that cause harm to others. However, there
are still certain offences regarded as essentially immoral (e.g. *incest and *buggery).
There are also offences of conspiring to corrupt public morals (although
*corruption of public morals is not in itself criminal) and of outraging (or
conspiring to outrage) public decency, although the scope of these offences is
uncertain. See also CONSPIRACY; OBSCENE PUBLICATIONS.
contract n. A legally binding agreement. Agreement arises as a result of *offer
and *acceptance, but a number of other requirements must be satisfied for an
agreement to be legally binding. (1) There must be *consideration (unless the
contract is by deed). (2) The parties must have an intention to create legal relations.
This requirement usually operates to prevent a purely domestic or social agreement
from constituting a contract (see alsoHONOUR CLAUSE). (3)The parties must have
*capacity to contract. (4)The agreement must comply with any formal legal
requirements. In general, no particular formality is required for the creation of a
valid contract. It may be oral, written, partly oral and partly written, or even
implied from conduct. Certain transactions are, however, valid only if effected by
deed (e.g. transfers of shares in British ships) or in writing (e.g. promissory notes,
contracts for the sale of interests in land, and guarantees that can at law only be
enforced if evidenced in writing). (5) The agreement must be legal (see ILLEGAL
CONTRACT). (6)The agreement must not be rendered void either by some common-law
or statutory rule or by some inherent defect, such as operative mistake (see VOID
CONTRACT). Certain contracts, though valid, may be liable to be set aside by one of the
parties on such grounds as misrepresentation or the exercise of undue influence (see
VOIDABLE CONTRACT).
contract of employment (contract of service) A contract by which a person
agrees to undertake certain duties under the direction and control of the employer
in return for a specified wage or salary. The contract need not be in writing, but
under the Employment Rights Act 1996 the employee must be given a *written
statement of terms of employment. Implied in every contract of employment are a
duty of mutual confidence and trust, the employer's duty to protect the employee
from danger and risks to his health, and the employee's duty to do the work to the
best of his ability. Employees who have been continuously employed in the same
business for certain minimum periods (see CONTINUOUS EMPLOYMENT) have statutory
rights, relating for example to *unfair dismissal and *redundancy, that do not apply
to the self-employed. A self-employed person is engaged under a contract for services
and owes his employer or customer no other duty than to complete the specified
work in accordance with the terms of the individual contract; he is not otherwise
under the direction or control of the employer as to how or when he works.
Termination of a contract of employment in breach of the terms of the contract
is *wrongful dismissal and may be remedied in the county court or the High Court
or by an employment tribunaL In such an action the court is not concerned with
"fairness" but purely with compensating for a breach of the terms of the contract.
contract of exchange (commutative contract) A barter contract in which
property is transferred from one party to the other in return for other property. No
money passes from one party to the other. A contract of exchange of goods is not
governed by the Sale of Goods Act 1979.Compare SALE OF GOODS.
contract of record A judgment or recognizance enrolled in the record of the
proceedings of a *court of record, implying a debt that arises from the entry on the
record and not from any agreement between the parties.
contract of sale See SALE; SALE OF GOODS.
contract of service See CONTRACT OP EMPLOYMENT.
contribution n. The payment made by each of two or more people in respect of
damage or a loss for which they are jointly liable. In tort, when two or more people
are jointly liable for the same damage and the person injured has recovered his
losses from one of them, that person may seek contributions from the other
tortfeasors (see CIVIL LIABILITY CONTRIBUTION; JOINT TORTFEASORS). In the case of a
general-average loss (see AVERAGE), the person who has sustained the loss is entitled to
contributions from others with an interest in the property. See also PART 20 CLAIM.
contributory n. Any of the past or present members of a company, who are
potentially liable to contribute to the company's assets in the event of a *windingup.
The maximum liability is limited, in a company limited by shares (see LIMITED
COMPANY), to the amount unpaid on shares (see CALL). A past member remains liable
for this amount if *winding-up follows within one year.
contributory negligence A person's carelessness for his own safety or interests,
which contributes materially to damage suffered by him as a result partly of his
own fault and partly of the fault of another person or persons. Thus careless
driving, knowingly travelling with a drunken driver, and failure to wear a seat belt
are common forms of contributory negligence in highway accidents. The effect of
contributory negligence is to reduce the claimant's damages by an amount that the
court thinks just and equitable. The defence is most common in actions for
negligence, but can be pleaded in some other torts, e.g. *nuisance, *Rylandsv Fletcher,
*breach of statutory duty, or under the Animals Act 1971(see CLASSIFICATION OF
ANIMALS). Contributory negligence may also be a defence to some actions for breach
of contract. It is not a defence to conversion or intentional trespass to goods.
controlled drugs Dangerous drugs that are subject to criminal regulation. In the
Misuse of Drugs Act 1971these are grouped in three classes: A, B,and C. Class A is
the most dangerous and includes opium and its natural and synthetic derivatives
(e.g.morphine and heroin), cocaine, and Ecstasy. Class B includes amphetamine and
(as at October 2001) *cannabis, and C - the least dangerous class - includes anabolic
steroids and benzodiazepine antidepressants. It is an offence to possess a controlled
drug or to supply or offer it to another; possession of drugs of classes A or B is an
*arrestable offence. In the case of an occupier or someone concerned in the
management of premises, it is an offence (1) to allow the smoking of cannabis,
cannabis resin, or prepared opium on the premises (but it is not an offence to allow
the premises to be used for injecting heroin or consuming any other controlled
drug); (2) to prepare opium for smoking; and (3) to produce or supply a controlled
drug on the premises. The defendant is liable on a charge of possession for the
minutest quantity of the drug and without proof of *mens rea, unless he can prove
that he did not believe or suspect that it was a controlled drug.

Under the Drug Trafficking Offences Act 1986, the Crown Court must impose a
*confiscation order when a person who has benefited from drug trafficking is
sentenced for a related offence. The amount of the order is the proceeds of the
offender's trafficking or, if less, the amount realizable from his property.
Imprisonment follows any default. The Act also penalizes those assisting in the
retention of drug trafficking proceeds or disclosing information likely to prejudice
a drug trafficking investigation. Under the Crime (Sentences) Act 1997 there is an
automatic seven-year minimum sentence on third-time dealers in Class A drugs.
However, judges may give a lesser sentence if the court considers the minimum
would be unjust in all the circumstances. See alsoREPEAT OFFENDER.
controlled tenancy A type of *protected tenancy that sometimes occurred with
tenancies created before 6 July 1957. From 28 November 1980 all controlled tenancies
were converted into *regulated tenancies.
controlled trust A trust of which one or more solicitors or their employees are
sole trustees. Such trusts are subject to special accounts rules made under the
Solicitors Act 1974; breaches of these rules may be reported to the Solicitors'
Disciplinary Tribunal.
controller n. (in company law) Strictly, one who holds shares conferring a majority
of the "voting power that can be exercised at a general meeting. In practice,
effective control can often be exercised by a director with no voting power or a
minority of it if he is able to manipulate *proxy voting. See also SUBSIDIARY COMPANY.
convention n. 1. A *treaty, usually of a multilateral nature. The International Law
Commission prepares draft conventions on various issues for the progressive
development of international law. 2. A written document adopted by international
organizations for their own regulation. 3. See CONSTITUTIONAL CONVENTIONS.
conversion n. 1. (in tort) The tort of wrongfully dealing with a person's goods in a
way that constitutes a denial of the owner's rights or an assertion of rights
inconsistent with the owner's. Wrongfully taking possession of goods, disposing of
them, destroying them, or refusing to give them back are acts of conversion. Mere
negligence in allowing goods to be lost or destroyed was not conversion at common
law, but is a ground of liability under the Torts (Interference with Goods) Act 1977.
The claimant in conversion must prove that he had ownership, possession, or the
right to immediate possession of the goods at the time of the defendant's wrongful
act (see also JUS TERTII). Subject to some exceptions, it is no defence that the
defendant acted innocently. 2. (in equity) The changing (either actually or
fictionally) of one kind of property into another. For example, if land is sold the
interest of those entitled to the property changes from an interest in the land to an
interest in the money that represents it. Before 1926 (and to a lesser extent
thereafter) it was important to know whether a person entitled to property had
interests in land or in the proceeds of its sale: to leave the determination of these
rights to be decided by the precise moment of a sale could have led to uncertainty
and injustice. The doctrine of conversion stated that if there was a duty to convert
the property, equity would assume the property to have been converted forthwith:
"equity looks on that as done which ought to have been done" (see MAXIMS OF EQUITY).
This doctrine was abolished with effect from 1 January 1997 by the Trusts of Land
and Appointment of Trustees Act 1996.
converted tenancy A tenancy that was converted from a *controlled tenancy
into a *regulated tenancy. From 28 November 1980 all controlled tenancies were
converted into regulated tenancies.
conveyance n. 1. a. A document (other than a will) that transfers an interest in
land. To convey a legal estate in land, the conveyance must be by deed. b. Transfer of
an interest in land by means of this document. See also CONVEYANCING. 2. Any vehicle,
vessel, or aircraft manufactured or subsequently adapted to carry one or more
people. It is a statutory offence (and also an *arrestable offence), punishable by up
to six months' imprisonment and a fine, for anyone to take a conveyance for his
own or someone else's use (albeit temporary) without permission or to drive or be
transported in a conveyance knowing that it has been taken without authority. See
also AGGRAVATED VEHICLE-TAKING; INTERFERING WITH VEHICLES.
conveyancing n. The procedures involved in validly creating, extinguishing, and
transferring ownership of interests in land. Only a practising solicitor or *licensed
conveyancer may charge a fee for undertaking the most essential parts of such
transactions. Under the Law of Property (Miscellaneous Provisions) Act 1989land
contacts must be made in writing. Apart from preparing the deeds or other
documents by which the transaction is effected, certain investigative steps are
usually required. For example, the sale and purchase of a residential house in
England or Wales will generally involve the following.
(1) Preparation of a contract by the vendor's solicitor defining the terms of the
transaction, describing the property concerned, and disclosing *land charges and
other interests in it that will affect the purchaser. In the case of registered land,
this will be accompanied by *office copies of the registered title.
(2)Written inquiries by the purchaser's solicitor seeking assurances from the vendor
that matters which may not be apparent from inspection of the site will not impose
any unforeseen liability on the purchaser. These questions generally cover such
potential problems as disputes over boundaries, the construction or treatment of
buildings, compliance with planning and rating authorities' requirements, and
liability for maintenance of shared facilities (such as boundary walls). If the Law
Society's "Transaction" protocol is used, the vendor supplies a Seller's Property
Information Form, which gives details of the property and replaces the standard
*preliminary inquiries.
(3) *Official search by the purchaser's solicitor in the local land charges register to
ensure there are no undisclosed charges of a local or environmental nature that
could bind the purchaser. The local authority is also asked to disclose other
information, such as proposals for building new roads near the property. Other
searches may be carried out at this stage, for example commons registration
searches. If the land appears to be unregistered, there will be an official search of
the *index maps, to check that it has not, in fact, been registered.
(4) If the purchaser is raising a *mortgage loan towards the price, his solicitor or
other agent will ensure that the funds will be available at the appropriate time and
that any conditions imposed by the mortgagees can be satisfied.
(5) The purchaser's solicitor may then negotiate alterations to the draft contract
with the vendor's solicitor, in order to ensure its compliance with the purchaser's
requirements and to cover points arising from the earlier inquiries and search. For
example, if an unforeseen local land charge has been discovered, a term may be
inserted requiring the vendor to clear it before the transaction is completed.
(6) When there is a chain of sales and purchases dependent on one another, the
solicitors for the parties involved liaise with one another through all steps of the
transactions, particularly in arranging a date for completion, to ensure that the
various completions coincide.
(7) The parties become legally committed to buy and sell respectively upon
*exchange of contracts. It is then usual for the purchaser to pay a percentage of the
price to the vendor's solicitor as stakeholder.

(8) The vendor's solicitor next prepares and delivers an epitome or *abstract of title
to the purchaser's solicitor, who studies it to ensure that the vendor's title is proved
in accordance with the contract. (It is increasingly common to deliver an epitome of
title before exchange of contracts.) As final checks on the vendor's title, he conducts
an official search in the *Land Charges Department (for unregistered land) or HM
*Land Registry as appropriate, and raises *requisitions on title requiring the vendor
to clear any defects or adverse interests revealed by the abstract or search. An
official certificate of search from the Land Registry will reveal any entries on the
vendor's title effected since the date on which the office copies were issued, and will
give the purchaser priority against any further entries provided he registers his new
title within the time shown on the certificate.
(9) The purchaser's solicitor prepares the deed (usually a conveyance, transfer, or
assignment) by which the property is to be transferred to his client, and has its
terms approved by the vendor's solicitor. He also ensures that the purchaser's
mortgage deed (if any) is in order.
(10) In preparation for completion, the purchaser's solicitor arranges with the
necessary parties for the funds to be available on the completion date and ensures
that the necessary deeds will be executed by the time completion takes place.
(11) On completion, the purchaser's solicitor checks the vendor's original *title deeds
against the epitome (or abstract) of title, and takes possession of them together with
the deed of transfer. In the case of registered land, he will take the land certificate,
or accept an undertaking from the vendor's solicitor to forward it when it is made
available following redemption of any mortgage. He hands over the price, and the
transaction is then legally completed.
(12) After completion, the transfer deed is produced to the Inland Revenue, and any
stamp duty paid, by the purchaser's solicitor on his client's behalf. He also gives
formal notice of the transaction when appropriate; for example, when a leasehold
interest is purchased, the lessor must usually be notified. Whether or not land was
registered before the transaction, it will need to be registered on completion.
Therefore, the purchaser's solicitor lodges the relevant deeds with HM Land Registry
for registration of his client's title, within the priority period conferred by the
official search certificate.
These basic steps in respect of the sale and purchase of a house are common to
many other conveyancing transactions, although the complexity of the particular
requirements varies according to the nature of the transaction. See also ELECTRONIC
CONVEYANCING.
conviction n. 1. (for the purposes of the Bail Act 1976) In criminal proceedings, a
finding of *guilty, or an acquittal on the ground of insanity. In a magistrates' court,
a finding that the accused carried out the act for which he was charged (see SUMMARY
CONVICTION). 2. (for the purposes of the Rehabilitation of Offenders Act 1974) Any
finding (except one of insanity), either in criminal proceedings or in care
proceedings, that a person has committed an offence or carried out the act for
which he was charged. See also SPENT CONVICTION.
cooperation procedure A procedure introduced by the *Single European Act
1986 that allows the *European Parliament to impede the adoption of proposed
legislation by the *Council of the European Union; the *Maastricht Treaty extended
the use of this procedure to cover new areas of policy. It applies when there is a
second reading of a draft measure. If the Parliament takes no action for three
months after receiving the proposal, it proceeds. However, if, after a second reading,
Parliament votes by an absolute majority to reject the measure, this can only be
overturned by a unanimous decision of the Council. Compare ASSENT PROCEDURE;
CODECISION PROCEDURE.
copyhold n. Formerly, ownership of land enforceable only in the court of the lord
of the manor and not protected by the sovereign's courts (see FEUDAL SYSTEM). The
owner's title comprised a copy of an entry in the rolls of the lord's court. By the Law
of Property Act 1922 copyhold tenure was abolished and existing copyholds were
converted into freeholds.
copyright n. The exclusive right to reproduce or authorize others to reproduce
artistic, dramatic, literary, or musical works. It is conferred by the Copyright,
~esigns and Patents Act 1988,which also extends to sound broadcasting,
cinematograph films, and television broadcasts (including cable television). Copyright
lasts for the author's lifetime plus 70 years from the end of the year in which he
died; it can be assigned or transmitted on death EU directive 93/98 requires all EU
states to ensure that the duration of copyright is the life of the author plus 70
years. Copyright protection for sound recordings lasts for 50 years from the date of
their publication; for broadcasts it is 50 years from the end of the year in which the
broadcast took place. Directive 91/250 requires all EU member states to protect
computer *software by copyright law. The principal remedies for breach of
copyright (known as piracy) are an action for "damages and *account of profits or
an *injunction. It is a criminal offence knowingly to make or deal in articles that
infringe a copyright. See also BERNE CONVENTION; HACKING.
co-respondent n. In a petition of divorce under the Matrimonial Causes Act 1973
the party with whom a married person is alleged to have committed adultery and '
who, If named, IS normally made a party to divorce proceedings.
coroner n. An officer of the Crown whose principal function is to investigate
deaths suspected of being violent or unnatural. He will do this either by ordering an
*autopsy or conducting an *inquest. The coroner also holds inquests on *treasure
trove. Coroners are appointed by the Crown from among barristers, solicitors, and
qualified medical practitioners of not less than five years' standing.
corporate personality See INCORPORATION.
corporate venturing scheme (CVS) A scheme designed to encourage established
companies to invest in the full-risk ordinary shares of companies of the same kind
as those qualifying under the *Enterprise Investment Scheme; the scheme
encourages the investing and qualifying companies to form mutually beneficial
~orporate.venturing. relationships. Companies investing through the CVS may obtain
corporation tax relief (at 20%)on the amount invested provided that the shares are
held for at least three years after issue or, if later, three years after the trade for
which the money was raised begins. Investing companies also obtain relief for most
allowable losses on the shares and deferral of corporation tax when a chargeable
gam from the disposal of CVS shares is reinvested in a new CVS investment.
corporation (body corporate) n. An entity that has legal personality, i.e. it is
capable of enjoying and being subject to legal rights and duties (see JURISTIC PERSON)
and possesses the capacity of succession. A corporation aggregate (e.g. a *company
registered under the Companies Acts) consists of a number of members who
fluctuate from time to time. A corporation sole (e.g.the *Crown) consists of one
member only and his or her successors. See alsoINCORPORATION.
corporation tax A tax on the worldwide profits of limited companies and certain
other bodies resident or trading in the UK.Corporation tax started on 6 April 1966

(before this date companies paid income tax and profits tax). It applies to all bodies
corporate and unincorporated associations, including limited companies, building
societies, cooperative societies, unit trusts, and investment trusts, but excluding local
authorities.
The tax is based on the profits shown in the company's audited accounts after
adding back certain nonallowable deductions, which include depreciation of
*machinery and plant, provisions for doubtful debts, and political contributions.
However, *capital allowances are deductible for corporation tax purposes, as are
losses carried forward from earlier years. From April 1973 until April 1999 a
company was required to pay *advance corporation tax on its distributed profits,
which was offset against its corporation tax liability. From 1999 larger companies
pay corporation tax in instalments. Chargeable gains (see CAPITAL GAINS TAX) count as
profits for corporation tax purposes but losses can be offset against any gains. The
rates of corporation tax are (for 2001-02): 10% for profits up to £10,000; a 20% small
companies rate for profits from £50,000 to £300,000, and a 30% main rate for
profits over £1,500,000. There are sliding scales (marginal relief) for amounts
between the different rates.
corporeal hereditament See HEREDITAMENT.
corroboration n. Evidence that confirms the accuracy of other evidence "in a
material particular". In general, English law does not require corroboration and any
fact may be proved by a single item of credible evidence. The obligation to warn the
jury of the dangers of acting on uncorroborated evidence of accomplices or of
complainants in cases of sexual offences has been abolished: the judge now has a
discretion to indicate the dangers of a jury relying on particular evidence.
Corroboration remains mandatory in cases of *treason and *perjury and for opinion
evidence as to some matters, e.g. *speeding.
corrupt and illegal practices Offences defined by the Representation of the
People Act 1983 in connection with conduct at parliamentary or local elections.
Corrupt practices, which include bribery and intimidation, are the more serious of
the two. The most frequent illegal practice is spending by a candidate in excess of
the amount authorized for the management of his campaign.
corruption n. See BRIBERY AND CORRUPTION.
corruption of public morals Conduct "destructive of the [moral] fabric of
society". It is uncertain if such acts are crimes, although those who published
"directories" of prostitutes or magazine advertisements encouraging readers to meet
the advertisers for homosexual purposes have been found guilty of conspiring to
corrupt public morals. See also CONSPIRACY; CONTRA BONOS MORES.
cost. insurance. freight See C.I.F. CONTRACT.
costs pl. n. Sums payable for legal services. A distinction is drawn between
contentious and noncontentious costs(broadly, the distinction between costs
relating to litigious and nonlitigious matters). Solicitors' costs are normally divided
into profit costs(representing the solicitor's profit and overheads) and
disbursements (any out-of-pocket expenses he may have incurred in the conduct of
the case).
In civil litigation the court has a wide discretion to make an award in respect of
the costs of the case, but the general principle applied is that the loser of the case
must pay the costs of the winner (this was previously known as costsfollow the
event). The court will order on what basis the costs will be assessed. In normal
adversary litigation this is the standard basis, in which the loser pays a reasonable
sum in respect of all costs reasonably incurred by the winning party (see also
INDEMNITY BASIS). If the court does not make an order for payment of fixed costs (i.e.
the amount allowed in respect of solicitors' charges), or fixed costs are not provided
for, the amount of costs payable will be determined by the court or by a *costs
officer (see ASSESSMENT OF COSTS). See also COSTS IN ANY EVENT; COSTS IN THE CASE; COSTS
RESERVED.
costs draftsman A person (usually a legal executive rather than a qualified
solicitor) who specializes in drawing up *bills of costs. Some work in solicitors'
firms and some in independent firms of costs specialists.
costs in any event An order for costs made in *interim (interlocutory)
proceedings by which the winner of the hearing in question shall be paid the costs
of that stage in the proceedings whatever the outcome of the trial. Compare COSTS IN
THE CASE.
costs .in the case An order for costs made in *interim (interlocutory) proceedings
by WhICh the costs of the hearing in question are payable in accordance with the
order for costs to be made at the trial. This will usually have the effect that they are
paid by the overall loser of the litigation. Compare COSTS IN ANY EVENT.
costs officer The judge or officer of the court who determines the amount of
costs payable in a detailed *assessment of costs. The costs officer may be a costs
judge (an official of the Supreme Court, formerly known as a taxing master), a
district judge, or an authorized officer of a county court, a district registry, the
Principal Registry of the Family Division, or the Supreme Court Costs Office.
costs .reserved An order for costs made in *interim (interlocutory) proceedings
by which the costs of the hearing in question are reserved for the decision of the
trial judge rather than decided by the master or district judge at the hearing itself.
costs thrown away Costs either unnecessarily incurred by a party as a result of
some procedural error committed by the other party or properly incurred but
wasted as a result of a subsequent act of the other party (e.g. by amending the claim
form or statement of case).
council housing Residential accommodation provided for renting by local
authorities (primarily by district and London borough councils, who, as housing
authorities, have a general statutory duty to meet housing needs in their areas).
Authorities may build new properties and acquire existing ones for the purpose. The
allocation and management of housing stock is in general within their sole
discretion, but statute does impose certain priorities (e.g.towards homeless persons)
and the Housing Act 1980 (now repealed) gave their tenants a measure of security of
tenure. There are also financial restraints, such as restrictions on the proportion of
capital receipts available for house building, imposed by central government. Certain
tenants of council housing have the right to purchase the freehold of a council
~ouse or a long lease of a council flat at a discount. The Housing Act 1988
mtroduced measures under which council housing can be transferred to the private
rented sector if tenants so desire.
councillor n. (in local government) See LOCAL AUTHORITY.
Council of Europe A European organization for cooperation in various areas
between most European (not just ED)states. The assembly of the Council of Europe
elects the Judges of the European Court of Human Rights.
Council of Legal Education A body established by the four *lnns of Court to
supervise the education and examination of students for the Bar of England and

Wales. It administered the Inns of Court School of Law in Gray's Inn. In 1997 the
Inns of Court and Bar Educational Trust was founded and took over responsibility
of the Council.
Council of the European Union (Council of Ministers) The organ of the EU
that is primarily concerned with the formulation of policy and (in conjunction with
the *European Commission and *European Parliament) the adoption of
*Community legislation. The Council consists of one member of government of each
of the member states of the Community (normally its foreign minister, but other
ministers may attend instead for the consideration of specialized topics), and its
presidency is held by each state in turn for periods of six months. The Council is
serviced by a Committee of Permanent Representatives (COREPER). This consists of
senior civil servants of each state and its primary function is to clarify national
attitudes for the assistance of the Council in reaching its decisions. It also disposes
on behalf of the Council of matters that are not controversial. Decisions of the
Council are taken by a unanimous vote (see alsoVETO) or, in most cases, by qualified
majority voting. Each member state has a number of votes approximately
proportional to the size of its population, with a total of 87 votes; in qualified
majority voting a Commission proposal requires 62 votes to be passed. Compare
EUROPEAN COUNCIL.
Council of the Inns of Court A body, comprising representatives of the four
*Inns of Court, the *Bar Council, and the Inns of Court and Bar Educational Trust
(see COUNCIL OF LEGAL EDUCATION), that coordinates the work of the three
organizations represented. When the Council of the Inns of Court and Bar Council
disagree, the latter's policy is implemented if it has the support of two-thirds of the
profession.
Council on Tribunals A body appointed under the Tribunals and Inquiries Act
1971to report on the functioning and advise on the procedure of the more
important administrative tribunals. Appointment is by the Lord Chancellor and Lord
Advocate, who may refer any matter concerning any tribunal for a special Council
report.
council tax A form of local tax levied on all private households (with some
exceptions) to contribute to the cost of local government. It was introduced by the
Local Government Finance Act 1992 and took effect from April 1993,replacing the
*community charge. The tax is based on the capital value of the dwelling owned or
rented by the occupiers. Each dwelling is assessed to see which of eight bands (A to
H) it falls within. For example, dwellings worth not more than £40,000 are placed in
band A, dwellings worth between £68,000and £88,000 in band D, and dwellings
worth more than £320,000 in band H. A household living in a dwelling in band A
will pay two-thirds of the amount paid by those living in a dwelling in band D, and
one-third of the amount paid by those living in a dwelling in band H. The amount
of the charge is set by the local council. In general, all the residents of a dwelling
are jointly liable to pay the tax.
The amount payable can be reduced by discounts (e.g. there is a 25% discount
where only one adult occupies the property), benefits for those on low incomes, and
reductions for disabilities where homes are adapted for disabled persons.
counsel n. A barrister, barristers collectively, or anyone advising and representing
litigants.
Counsellors of State Persons appointed under the Regency Acts 1937 to 1953 to
exercise royal functions while the sovereign is ill (but not totally incapacitated, in
which case the functions pass to a *regent) or temporarily absent from the UK. They
are appointed by the sovereign by letters patent, which must specify the functions
delegated to them. These must not include the function of dissolving Parliament,
except on the sovereign's express instructions, or that of creating new peers. The
persons to be appointed are the sovereign's spouse, the four next in line to the
throne (omitting anyone not qualified to be Regent or intending to be abroad
during the period of delegation), and Queen Elizabeth, the Queen Mother.
count n. See INDICTMENT.
counterclaim n. A cross-claim brought by a defendant in civil proceedings that
asserts an independent cause of action but is not also a defence to the claim made in
the action by the claimant. A counterclaim is an example of a *Part 20 claim, being
a claim other than one made by the claimant against the defendant. See also SET-OFF.
countertrade n. A form of trading in which an exporter of goods or services
undertakes to accept goods or services (rather than money) from the importer in
exchange.
county n. A first-tier *local government area in England (outside Greater London)
or Wales. The Local Government Act 1972created 45 counties for England and 8 for
Wales, dividing the former into 6 metropolitan and 39 nonmetropolitan counties.
The metropolitan counties - Greater Manchester, Merseyside, South Yorkshire, Tyne
and Wear, West Midlands, and West Yorkshire - were abolished and their functions
transferred generally to district councils by the Local Government Act 1985. The
Local Government (Wales) Act 1994 reorganized local government areas in Wales; on
1 April 1996all the existing counties and *districts were replaced by 11counties and
11 county boroughs, each administered by a single-tier (unitary) council. In some
parts of England *unitary authorities have replaced *county councils; this has
resulted in the reorganization of certain county areas. See also LOCAL GOVERNMENT
COMMISSION FOR ENGLAND; PRESERVED COUNTY.
county council A *local authority whose area is a *county. A county council has
certain exclusive responsibilities (e.g.education, fire services, highways, and refuse
disposal) and shares others (e.g. recreation, town and country planning) with the
councils of the districts in its area. The *Local Government Commission for England
began work in 1992on restructuring local government areas with a view to
establishing single-tier local authorities (see UNITARY AUTHORITY), which has led to the
abolition of certain county councils.
county court Any of the civil courts forming a system covering all of England
and Wales, originally set up in 1846.The area covered by each court does not
invariably correspond to the local government county boundary. Under Part 7 of the
*Civil Procedure Rules, which sets out the rules for starting cases, the county court
retains an unlimited jurisdiction for claims in contract and tort. It will hear some
appeals (see APPELLATE JURISDICTION). Each court has a *circuit judge and a *district
judge.
course of employment The scope of the work a person is employed to do. An
employer may be held responsible under the principle of *vicarious liability for his
employee's wrongful acts if they are necessarily incidental to his work, or
authorized (expressly or by implication) by the employer, or, though not in any way
authorized, are a wrongful way of doing something he was employed to do.
court n. 1. A body established by law for the administration of justice by *judges
or *magistrates. 2. A hall or building in which a court is held. 3. a. The residence of

a sovereign. b. The sovereign and her (or his) family and attendants or officials of
state.
Court for Consideration of Crown Cases Reserved A court created by the
Crown Cases Act 1848 for considering questions of law arising out of the conviction
of a person for treason, felony, or misdemeanour and reserved by the trial judge or
justices for the consideration of the court. lts jurisdiction was exercised by the
judges of the *High Court, at least five of whom had to sit together. The Court was
abolished in 1907 and its jurisdiction transferred to the *Court of Criminal Appeal,
which had wider powers.
court martial A court convened within the armed forces to try offences against
*service law. It consists of a number of serving officers, who sit without a jury and
are advised on points of law by a legally qualified *judge advocate. Army and airforce
courts martial are similar. The Armed Forces Act 1996 (effective from 1 April
1997) updated the laws in this field; in particular, it reinforced the independence of
courts martial. A general court martial must consist of a president of the rank of
major/squadron leader or above and four members, at least two of whom must be
of the rank of captain/flight lieutenant or above. Up to two members may be
warrant officers (i.e. noncommissioned). A district court martial must consist of a
president of the rank of major/squadron leader or above and two members, at least
one of whom has held commissioned rank for at least two years. Up to one member
may be a warrant officer. A field general court martial may only be convened in
active service conditions, and may exceptionally consist of two officers. Naval courts
martial must consist of between five and nine officers of the rank of lieutenant or
above who have held commissioned rank for at least three years, although up to two
members may be warrant officers. The members of the court may not all belong to
the same ship or shore establishment. The president of a naval court martial must
be of the rank of captain or above, and when a senior officer is to be tried there are
further rules as to the court's composition. In all cases members of another branch
of the armed forces of equivalent minimum rank may serve on army, air-force, or
naval courts martial. Courts martial's findings of guilty, and their sentences, are
subject to review by the Defence Councilor any officer to whom they delegate.
Since 1951 there has been a Courts-Martial Appeal Court, which consists of the Lord
Chief Justice and other members of the Supreme Court. After first petitioning the
Defence Council for the quashing of his conviction, a convicted person may appeal
to the Court against the conviction and (from 1 April 1997) against sentence. Either
he or the Defence Council may then appeal to the House of Lords.
When a member of the armed forces is charged in the UKwith conduct that is an
offence under both service law and the ordinary criminal law the trial must in
certain serious cases (e.g. treason, murder, manslaughter, and rape) be held by the
ordinary criminal courts (and is in practice frequently held by them in other cases).
Provision exists to ensure that a person cannot be tried twice for the same offence.
See also STANDING CIVILIAN COURT.
Court of Appeal A court created by the Judicature Acts 1873-75, forming part of
the *Supreme Court of Judicature. The Court exercises *appellate jurisdiction over
all judgments and orders of the High Court and most determinations of judges of
the county courts. In some cases the Court of Appeal is the *court of last resort, but
in most cases its decisions can be appealed to the *House of Lords, with permission
of the Court of Appeal or the House of Lords. The Court is divided into a Civil
Division (presided over by the *Master of the Rolls) and a Criminal Division
(presided over by the *Lord Chief Justice). The ordinary judges of the Court are the
*Lords Justices of Appeal, but other specific office holders and High Court judges
may, by invitation, also sit in the Court.
Court of Arches The ecclesiastical court of appeal from the consistory court (see
ECCLESIASTICAL COURTS), which has the jurisdiction of the former provincial Court of
Archbishop of Canterbury. The judge of the court, the Dean of Arches, hears
appeals from bishops or their chancellors, deans and chapters, and archdeacons. The
court's name is derived from its original location, the church of St Mary-le-Bow,
whose steeple was erected upon arches.
Court of Chancery The original court of *equity, presided over by the *Lord
Chancellor. By the Judicature Acts 1873-75 its jurisdiction was merged into that of
the High Court, of which it became the *Chancery Division.
Court of Chivalry An ancient feudal court having jurisdiction over questions
relating to armorial bearings and questions of precedence. It is not a *court of
record.
Court of Common Pleas One of the three courts of *common law into which
the curia regis was divided (the others being the *Court of Queen's Bench and the
"Court of Exchequer) whose jurisdiction was merged into that of the High Court by
the Judicature Acts 1873-75. It became the Common Pleas Division, which in 1880
was merged into the *Queen's Bench Division.
Court of Criminal Appeal A court created by the Criminal Appeal Act 1907 to
take over the jurisdiction formerly exercised by the *Court for Consideration of
Crown Cases Reserved. lts powers were greatly extended, particularly in considering
questions of fact as well as law, but it was abolished by the Criminal Appeal Act 1966
and its jurisdiction transferred to that of the *Court of Appeal (Criminal Division).
Court of Ecclesiastical Causes Reserved A court created by the Ecclesiastical
Jurisdiction Measure 1963 and having both original and appellate jurisdiction
covering the provinces of Canterbury and York. lts original jurisdiction is to hear
and determine proceedings in which a person in Holy Orders is charged with an
offence against ecclesiastical law involving matters of doctrine, ritual, or ceremonial
and all suits of *duplex querela. lts appellate jurisdiction is in respect of appeals from
decisions of consistory courts involving matters of doctrine, ritual, or ceremonial.
The court comprises five judges and three diocesan or ex-diocesan bishops. See also
ECCLESIASTICAL COURTS.
Court of Exchequer One of the three courts of *common law into which the
curia regis was divided (the others being the *Court of Queen's Bench and the
*Court of Common Pleas) whose jurisdiction was merged into that of the High
Court by the Judicature Acts 1873-75. It became the Exchequer Division, which in
1880 merged into the *Queen's Bench Division. The judges of the Exchequer were
known as Barons.
court of first instance 1. A court in which any proceedings are initiated.
2. Loosely, a court in which a case is tried, as opposed to any court in which it may
be heard on appeal.
Court of First Instance The first court of appeal from decisions of the European
Commission. Established under powers conferred by the *Single European Act 1986,
it started to operate at the end of October 1989. Appeals from the court are to the
"European Court of Justice.
Court of Justice of the European Communities See EUROPEAN COURT OF
JUSTICE.

court of last resort A court from which no appeal (or no further appeal) lies. In
English law the *House of Lords is usually the court of last resort (although some
cases may be referred to the *European Court of Justice). However, in some cases
the *Court of Appeal is by statute the court of last resort.
Court of Probate A court created in 1857 to take over the jurisdiction formerly
exercised by the ecclesiastical courts in relation to the granting of probate and
letters of administration. By the Judicature Acts 1873-75 the jurisdiction of the
court was transferred to the *Probate, Divorce and Admiralty Division of the High
Court.
Court of Protection A court that administers the property and affairs of persons
of unsound mind, formerly called the Management and Administration
Department. The head of the court is called the Master.
Court of Queen's Bench Until 1875, one of the three courts of *common law
into which the curia regis was divided (the others being the *Court of Common Pleas
and the *Court of Exchequer). Its principal functions were the trial of civil actions
in contract and tort and the exercise of supervisory powers over inferior courts. By
the Judicature Acts 1873-75 its jurisdiction was transferred to the *Queen's Bench
Division of the High Court. When the sovereign was a king, it was known as the
Court of King's Bench.
court of record A court whose acts and judicial proceedings are permanently
maintained and recorded. In modern practice the principal significance of such
courts is that they have the power to punish for *contempt of court. See also
CONTRACT OF RECORD.
Court of Session A Scottish court corresponding to the *Supreme Court of
Judicature in England and Wales. It consists of an Outer House (corresponding to the
*High Court) and an Inner House (corresponding to the *Court of Appeal).
court of summary jurisdiction See MAGISTRATES' COURT.
court order See ORDER.
covenant n. See DEED; LEASE; RESTRICTNE COVENANT.
covenant running with the land 1. A *restrictive covenant affecting freehold
land and binding or benefiting third parties who acquire the land. A restrictive
covenant runs with the land of the covenantee if it is intended to benefit, and is
capable of benefiting, land owned by the covenantor (the *dominant tenement). A
covenant created before 1926 will bind a purchaser for value of the legal estate in
the *servient tenement if he has notice of it; a covenant created after 1925 will not
bind a purchaser of the legal estate for money or money's worth unless it is
registered (see REGISTRATION OF ENCUMBRANCES). A positive covenant (i.e. an obligation
to perform an act) does not run with the land. 2. In a lease, a covenant, either
restrictive or positive, that "touches and concerns" the land, i.e. one that affects the
nature, value, or enjoyment of the land, and will bind successors in title of the
landlord and the tenant provided there is *privity of estate between them.
covenant to repair A clause contained in most *Ieases that sets out each party's
obligations to carry out repairs. The standard of repair depends on the terms of the
covenant and the kind of property. The general rule is that the property must be
maintained in the condition that a reasonable tenant of that property would expect.
The person carrying out the repairs must, so far as possible, restore the property to
the condition it was in before the damage occurred. In the case of a block of flats or
offices, the landlord is often responsible for external, and the tenant for internal,
repairs. When one party alone is responsible for repairs, this is more likely to be the
landlord in the case of a short lease and the tenant in the case of a longer lease. A
landlord is liable by statute to repair the structure and exterior and the appliances
for heating and sanitation in a dwelling house let for less than seven years.
If the tenant does not fulfil his repairing obligations the landlord's remedies are
*forfeiture or suing the tenant for damages. If the landlord is in breach of
covenant, the tenant's remedies are as follows: he can sue for damages equal to the
difference between the value of the property as it is and the value it should have if
repaired; he can sue for *specific performance, a court order to compel the landlord
to carry out his obligations; or, if he is sure that the landlord is in breach of
covenant and he has told the landlord about the breach, he can carry out the repairs
himself and recover the cost from future rent.
coverture n. The status of a woman duri.ng, and arising out of, marriage. At
common law a wife "lost" her own personality, which became incorporated into that
of her husband, and could only act under his protection and "cover". Married women
no longer suffer disabilities as a result of coverture. See alsoUNITY OF PERSONALITY.
CPR See CIVIL PROCEDURE RULES.
CPS See CROWN PROSECUTION SERVICE.
credit n. 1. The agreed deferment of payment of a debt. Under the Consumer
Credit Act 1974,credit also includes any other form of financial accommodation,
including a cash loan. It does not include the charge for credit but does include the
total price of goods hired to an individual under a *hire-purchase agreement less the
aggregate of the deposit and the total charge for credit. 2. (in the law of evidence)
The credibility of a witness. It must be inferred by the *trier of fact from the
witness's demeanour and the evidence in the case. A witness may be cross-examined
as to credit (i.e. impeached) by reference to his *previous convictions, bias, or any
physical or mental incapacity affecting the credibility of his evidence.
credit card A plastic card, issued by a bank or finance organization, that enables
its holder to obtain credit when making purchases. The use of credit cards usually
involves three contracts. (1) A contract between the company issuing the credit card
and the cardholder whereby the holder can use the card to purchase goods and, in
return, promises to pay the credit company the price charged by the supplier. The
holder normally receives monthly statements from the credit company, which he
may pay in full within a certain number of days with no interest charged;
alternatively, he may make a specified minimum payment and pay a high rate of
interest on the outstanding balance. (2)A contract between the credit company and
the supplier whereby the supplier agrees to accept payment by use of the card and
the credit company agrees to pay the supplier the price of the goods supplied less a
discount. (3) A contract between the cardholder and the supplier, who agrees to
supply the goods on the basis that payment will be obtained from the credit
company.
credit limit 1. The maximum credit allowed to a debtor. 2. (under the Consumer
Credit Act 1974) The maximum debit balance allowed on a running-account credit
agreement during any period.
creditor n. 1. One to whom a debt is owed. See alsoJUDGMENT CREDITOR; LOAN
CREDITOR; SECURED CREDITOR; UNSECURED CREDITOR. 2. (under the Consumer Credit Act
1974) The person providing credit under a *consumer-credit agreement or the
person to whom his rights and duties under the agreement have passed by
assignment or operation of law.

creditors' committee A committee that may be appointed by creditors to
supervise the trustee appointed to handle the affairs of a bankrupt. A committee
consists of between three and five creditors and their duty is to see that the
distribution of the bankrupt's assets is carried out as quickly and economically as
possible. See also BANKRUPTCY.
credit sale agreement A contract for the sale of goods under which the price is
payable by instalments but the contract is not a *conditional sale agreement, i.e.
ownership passes to the buyer. A credit sale agreement is a *consumer-credit
agreement; it is regulated by the Consumer Credit Act 1974if the buyer is an
individual, the credit does not exceed £25,000, and the agreement is not otherwise
exempt.
crime n. An act (or sometimes a failure to act) that is deemed by statute or by the
common law to be a public wrong and is therefore punishable by the state in
criminal proceedings. Every crime consists of an *actus reus accompanied by a
specified *mens rea (unless it is a crime of *strict liability), and the prosecution must
prove these elements of the crime beyond reasonable doubt (see BURDEN OF PROOF).
Some crimes are serious wrongs of a moral nature (e.g. murder or rape); others
interfere with the smooth running of society (e.g.parking offences). Most
*prosecutions for crime are brought by the police (although they can also be
initiated by private people); some require the consent of the *Attorney General.
Crimes are customarily divided into *indictable offences (for trial by judge and jury)
and *summary offences (for trial by magistrates); some are hybrid (see OFFENCES
TRIABLE EITHER WAY). Crimes are also divided into *arrestable offences and
nonarrestable offences. The *punishments for a crime include death (for treason),
life imprisonment (e.g. for murder), imprisonment for a specified period, suspended
sentences of imprisonment, conditional discharges, probation, binding over, and
fines; in most cases judges have discretion in deciding on the punishment (see
SENTENCE). Some crimes may also be civil wrongs (see TORT); for example, theft and
criminal damage are crimes punishable by imprisonment as well as torts for which
the victim may claim damages.
crimes against humanity See WAR CRIMES.
crimes against peace See WAR CRIMES.
criminal conviction certificate A certificate given to those who request details
of information held about their criminal records. The certificate is obtained from
the *Criminal Records Agency, which was set up under the Police Act 1997.
criminal court A court exercising jurisdiction over criminal rather than civil
cases. In England all criminal cases must be initiated in the *magistrates' courts.
*Summary offences and some *indictable offences are also tried by magistrates'
courts; the more serious indictable offences are committed to the *Crown Court for
trial.
criminal damage The offence of intentionally or recklessly destroying or
damaging any property belonging to another without a lawful excuse. It is
punishable by up to ten years' imprisonment. There is also an aggravated offence,
punishable by a maximum sentence of life imprisonment. of damaging property
(even one's own) in such a way as to endanger someone's life, either intentionally or
recklessly. Related offences are those of threatening to destroy or damage property
and of possessing anything with the intention of destroying or damaging property
with it. See also ARSON.
Criminal Injuries Compensation Scheme A state scheme for awarding
payments from public funds to victims who have sustained *criminal injury, on the
same basis as civil damages would be awarded (see also COMPENSATION). Damage to
property is not included in the scheme. The scheme is administered by a board that
may refuse or reduce an award (1) if the claimant fails to cooperate in providing
details of the circumstances of the in jury or in assisting the police to bring the
wrongdoer to justice, or (2)because of the claimant's activities, unlawful conduct, or
conduct in connection with the injury. Dependants of persons dying after sustaining
criminal injury may also claim awards. The board may apply for a county court
order directing a convicted offender wholly or partly to reimburse the board for an
award made. The Criminal Injuries Compensation Act 1995(in force from 1 April
1996) set out new rules for payment. See also RIOT.
criminal injury For purposes of the *Criminal Injuries Compensation Scheme, any
crime involving the use of violence against another person. Such crimes include
rape, assault, arson, poisoning, and criminal damage to property involving a risk of
danger to life; traffic offences other than a deliberate attempt to run the victim
down are not included. The injury sustained includes pregnancy, disease, and mental
distress attributable either to fear of immediate physical injury (even to another
person) or to being present when another person sustained physical injury.
criminal libel See LIBEL.
Criminal Records Agency A state body that provides individuals with
information about their criminal records in the form of a *criminal conviction
certificate. The agency was set up under the Police Act 1997and comes into
operation in 1997. The Act also provides for full and enhanced checks to be
undertaken on individuals with criminal records and for the information obtained
to be passed, with their consent, to bodies registered for that purpose.
cross-appeals pl. n. Appeals by both parties to court proceedings when neither
party is satisfied with the judgment of the lower court. For example, a defendant
may appeal against a judgment finding him liable for damages, while the claimant
may appeal in the same case on the ground that the amount of damages awarded is
too low.
cross-examination n. The questioning of a *witness by a party other than the
one who called him to testify. It may be to the issue, i.e. designed to elicit
information favourable to the party on whose behalf it is conducted and to cast
doubt on the accuracy of evidence given against that party; or to credit, i.e. designed
to cast doubt upon the credibility of the witness. *Leading questions may be asked
during cross-examination. See also CREDIT.
Crown n. The office (a *corporation sole) in which supreme power in the UKis
legally vested. The person filling it at any given time is referred to as the sovereign
(a king or queen: see also QUEEN). The title to the Crown is hereditary and its descent
is governed by the Act of Settlement 1701as amended by His Majesty's Declaration
of Abdication Act 1936 (which excluded Edward VIlI and his descendants from the
line of succession). The majority of governmental powers in the UKare now
conferred by statute directly on ministers, the judiciary, and other persons and
bodies, but the sovereign retains a limited number of common law functions
(known as *royal prerogatives) that, except in exceptional circumstances, can be
exercised only in accordance with ministerial advice. In practice it is the minister.
and not the sovereign, who today carries out these common law powers and is said
to be the Crown when so doing.

At common law the Crown could not be sued in tort, but the Crown Proceedings
Act 1947enabled civil actions to be taken against the Crown (see CROWN PROCEEDINGS).
It is still not possible to sue the sovereign personally.
Crown Agents for Overseas Governments and Administrations A body
operating under the Crown Agents Act 1979 to provide commercial, financial, and
professional services to overseas governments, international bodies, and public
authorities. After the discovery of heavy financial losses between 1968 and 1974,the
body was restructured by the 1979Act and a tribunal of inquiry was set up to
investigate its activities during those years.
Crown Court A court created by the Courts Act 1971 to take over the jurisdiction
formerly exercised by *assizes and *quarter sessions, which were abolished by the
same Act. It is part of the *Supreme Court of Judicature. The Crown Court has an
unlimited jurisdiction over all criminal cases tried on *indictment and also acts as a
court for the hearing of appeals from *magistrates' courts. Unlike the courts it
replaced, the Crown Court is one court that can sit at any centre in England and
Wales designated by the Lord Chancellor. See alsoTHREE-TIER SYSTEM.
Crown Court rules Rules regulating the practice and procedure of the *Crown
Court. The rules are made by the Crown Court Rule Committee under a power
conferred by the Courts Act 1971.
Crown privilege The right of the Crown to withhold documentary evidence in
any legal proceedings on the grounds that its disclosure would injure the public
interest. It was expressly preserved by the Crown Proceedings Act 1947 (see CROWN
PROCEEDINGS). In certain limited cases, however, the courts have demanded to inspect
documents for which *privilege is claimed and rejected the claim as unwarranted.
Crown proceedings Actions against the Crown brought under the Crown
Proceedings Act 1947. The prerogative of perfection (the King can do no wrong; see
ROYAL PREROGATIVE) originally resulted in immunity from legal proceedings, not only
of the sovereign personally but also of the Crown itself (including government
departments and all other public bodies that were agencies of the Crown). It
gradually became possible, however, to take proceedings against the Crown for
damages for breach of contract or for the recovery of property. The form of the
proceedings was a petition of right (not an ordinary action), and the procedure
governing them was eventually regulated by the Petition of Right Act 1860.The
Crown Proceedings Act 1947 replaced petitions of right by ordinary actions. It also
made the Crown liable to action for the tort of any servant or agent committed in
the course of his employment, for breach of its duties as an employer and as an
occupier of property, and for breach of any statutory duty that is binding on the
Crown. It does not affect the presumption of interpretation (see INTERPRETATION OF
STATUTES) that statutes do not bind the Crown, nor does it affect *Crown privilege.
Formerly, members of the armed forces were unable to sue the Crown in tort for
death or personal injury caused by a fellow member of the armed forces while on
duty. This right was extended to them by the Crown Proceedings (Armed Forces) Act
1987,but controversially the right was not made retrospective.
Crown Prosecution Service (CPS) An organization created by the Prosecution of
Offences Act 1985 to conduct the majority of criminal prosecutions. Its head is the
*Director of Public Prosecutions, who is answerable to Parliament through the
*Attorney General. The CPSis independent of the police and is organized on a
regional basis, each region having a Chief Crown Prosecutor. It also advises police
forces on matters related to criminal offences.
Crown servant Any person in the employment of the Crown (this does not
include police officers or local government employees). The Crown employs its
servants at will and can therefore dismiss them at any time. However, since 1971
statute has given civil servants the right to bring proceedings for *unfair dismissal
before employment tribunals. A civil servant can bring proceedings against the
Crown for arrears of pay but a member of the armed forces cannot. Crown servants
are subject to the Official Secrets Act 1989.Since the 1980s the number of Crown
servants has been reduced substantially, as the government has pursued a policy of
*privatization of former public-sector functions. Some bodies have become
*executive agencies.
cruelty n. Formerly, behaviour serious enough to injure a spouse's physical or
mental health. Cruelty is no longer a basis in itself for granting a divorce or orders
in magistrates' courts.
crystallization n. An event or a condition that is complied with, causing a floating
*charge to stop 'floating' over a company's fluctuating assets (e.g. cash, stock-intrade)
and to fasten upon the existing assets (and value) at that time. This will occur
when a *receiver has been appointed under the terms of the charge to arrange
payment of the debt from assets subject to the charge. Alternatively, other events or
conditions may be stated under the terms of the charge when created (e.g. that the
company goes into liquidation (see WINDING-UP) or by notice to the company by the
holder of the charge. Until crystallization the company is free to deal with assets
subject to the charge as it wishes.
CSA Child Support Agency. See CHILD SUPPORT MAINTENANCE.
CTM See COMMUNITY TRADE MARK.
cum testamento annexo See LETTERS OF ADMINISTRATION.
cur. adv. vult (c.a.v.) [Latin curia advisari vult, the court wishes to consider the
matter] An abbreviation in law reports indicating that the judgment of the court
was delivered not extempore at the end of the hearing but at a later date.
curfew order A community order under the Criminal Justice and Public Order
Act 1994 that requires an offender over 16 to remain at a specified place at
particular times. The maximum duration of an order is six months. The periods of
curfew must be specified; they must not be less than two hours or more than 12
hours.
curtain provisions Provisions in the Settled Land Act 1925 enabling the title of
the *tenant for life of settled land to be proved by the deed that vests the fee
simple in him. The trust instrument that declares the beneficial interests in the land
is not revealed to a purchaser: as those interests are *overreached by the sale, they
do not concern him.
custodian trustee A trustee who has care and custody of trust property; other
trustees (the managing trustees) are responsible for its management.
custody n. 1. Imprisonment or confinement. The current policy behind the use of
custody was established in the Criminal Justice Act 1991 and has been consolidated
by the Powers of Criminal Courts (Sentencing) Act 2000. There is a twin-track
approach, under which long custodial sentences will be levied on very serious crimes,
particularly those of violence, but custody may be replaced with "community
penalties" (punishment in the community, e.g. reparation in the community) for the
less serious ones. The Powers of Criminal Courts (Sentencing) Act 2000 establishes a
framework for custodial sentencing that reflects this proportionality principle and

includes a policy of reducing prison for non-serious offences. To this end, Section 79
of the Act introduces a "custody threshold" that has to be surmounted before any
court can impose a custodial sentence, and section 80 imposes limits on the length
of any custodial sentence given. 2. (in family law) Formerly, the bundle of rights
and responsibilities that parents (and sometimes others) had in relation to a child.
"Custody", which featured in various statutes, has now been replaced by the concept
of *parental responsibility introduced by the Children Act 1989.
custom n. A practice that has been followed in a particular locality in such
circumstances that it is to be accepted as part of the law of that locality. In order to
be recognized as customary law it must be reasonable in nature and it must have
been followed continuously, and as if it were a right, since the beginning of legal
memory. Legal memory began in 1189, but proof that a practice has been followed
within living memory raises a presumption that it began before that date. Custom is
one of the four sources of *internationallaw. Its elaboration is a complex process
involving the accumulation of state practice, i.e. (1) the decisions of those who advise
the state to act in a certain manner, (2) the practices of international organizations,
(3) the decisions of international and national courts on disputed questions of
international law, and (4) the mediation of jurists who organize and evaluate the
amorphous material of state activity. One essential ingredient in transforming mere
practice into obligatory customary law is *opinio juris.
customs duty A charge or toll payable on certain goods exported from or
imported into the UK. Customs duties are charged either in the form of an ad
valoremduty, i.e. a percentage of the value of the goods, or as a specific duty charged
according to the volume of the goods. All goods are classified in the Customs Tariff
but not all goods are subject to duty. The Commissioners of Customs and Excise
administer and collect customs duties. Membership of the EU has required the
abolition of import duties between member states and the establishment of a
*Common External Tariff. Compare EXCISE DUTY.
CVS See CORPORATE VENTURING SCHEME.
cybercrime n. Crime committed over the Internet. No specific laws exist to cover
the Internet, but such crimes might include *hacking, *defamation over the
Internet, *copyright infringement, and *fraud.
cycle track A route over which riders of pedal cycles have a right of way. It is an
offence under the Cycle Tracks Acts 1984 to place a motor vehicle on a cycle track.
cyngor n. The Welsh title for the council of a county or a county borough.
cy-pres doctrine [French: cy, here; pres, near] A doctrine that in some
circumstances enables a gift to charity that would otherwise fail to be diverted to
another related charitable purpose. If, for example, the purpose for which a
charitable gift is made cannot be achieved in exactly the way intended, or if the
funds available are more than sufficient to achieve the purpose, the court or the
Charity Commissioners may make a scheme for the funds to be applied to a
charitable purpose as close as possible to the original one. If the gift fails after it has
come into effect, cy-pres will operate automatically. If a gift fails at its inception,
the application of the doctrine will depend on a court's perception of the settlor's
intention; to apply the funds of cy-pres, a general charitable intention must be
found.

D
Daily Cause List See CAUSE LIST.
damage n. Loss or harm. Not all forms of damage give rise to a right of action; for
example, an occupier of land must put up with a reasonable amount of noise from
his neighbours (see NUISANCE), and the law generally gives no compensation to
relatives of an accident victim for grief or sorrow, except in the limited statutory
form of damages for bereavement (see FATAL ACCIDENTS). Damage for which there is
no remedy in law is known as damnum sine injuria. Conversely, a legal wrong may
not cause actual damage (injuria sine damno). If the wrong is actionable without
proof of damage (such as trespass to land) and no damage has occurred, the claimant
is entitled to nominal damages. Most torts, however, are only actionable if damage
has been caused (see NEGLIGENCE). In *Iibel and some forms of *slander, damage to
reputation is presumed.
damages pl. n. A sum of money awarded by a court as compensation for a tort or
a breach of contract. Damages are usually a *Iump-sum award (see also PROVISIONAL
DAMAGES). The general principle is that the claimant is entitled to full compensation
(restitutio in integrum) for his losses. Substantial damages are given when actual
damage has been caused, but nominal damages may be given for breach of
contract and for some torts (such as trespass) in which no damage has been caused,
in order to vindicate the claimant's rights. Damages may be *aggravated by the
circumstances of the wrong. In exceptional cases in tort (but never in contract)
*exemplary damages may be given to punish the defendant's wrongdoing. Damages
may be classified as unliquidated or liquidated. Liquidated damages are a sum
fixed in advance by the parties to a contract as the amount to be paid in the event
of a breach. They are recoverable provided that the sum fixed was a fair preestimate
of the likely consequences of a breach, but not if they were imposed as a
*penalty. Unliquidated damages are damages the amount of which is fixed by the
court, Damages may also be classified as *general and special damages.
The purpose of damages in tort is to put the claimant in the position he would
have been in if the tort had not been committed. Recovery is limited by the rules of
*remoteness of damage. The claimant must take reasonable steps to mitigate his
losses and so may be expected to undergo medical treatment for his injuries or to
seek alternative employment if his injuries prevent him from doing his former job.
Damages may also be reduced for the claimant's *contributory negligence. The
purpose of damages in contract is to put the claimant in the position he would have
been in if the contract had been performed, but, as in the case of damages in tort,
recovery is limited by rules relating to remoteness of damage. Again as in the case
of torts, the claimant is also under a duty to take all reasonable steps to mitigate his
losses and cannot claim compensation for any loss caused by his failure to do this. If,
for example, a hotel reservation is cancelled, the hotelier must make all reasonable
attempts to relet the room for the period in question or as much of it as possible.
Damages obtained as a result of a cause of action provided by the *Human Rights
Act 1998will be provided on the basis of the principles of *just satisfaction
developed by the European Court of Human Rights.
dangerous animals Animals the keeping or use of which is regulated by statute
because of their propensity to cause damage. Under the Dangerous Wild Animals Act

1976, the keeping of apes, bears, crocodiles, tigers, venomous snakes, and other
potentially dangerous animals requires a local-authority licence. The Dangerous Dogs
Act 1991 made the breeding, sale, or possession of dogs belonging to a type bred for
fighting (e.g.pit bull terriers) an offence, enabled similar restrictions to be imposed
in relation to other dogs presenting a danger to the public, and made it an offence
to let a dog get dangerously out of control in a public place. The use of *guard dogs
is strictly controlled by the Guard Dogs Act 1975. See also CLASSIFICATION OF ANIMALS.
dangerous driving The offence of driving a motor vehicle in such a way as to
fall far below the standard that would be expected of a competent and careful driver,
or in a manner that would be considered obviously dangerous by a competent and
careful driver. This offence is defined by the Road Traffic Act 1991and has replaced
the old offence of reckless driving (defined in the Road Traffic Act 1988). The
maximum penalty is a *fine at level 5 on the standard scale or six months'
imprisonment; *disqualification is compulsory. See also CAUSING DEATH BY DANGEROUS
DRIVING.
dangerous machinery An employer is under a duty to safeguard employees
from dangerous machinery. By the Factories Act 1961, all dangerous parts of
machinery must be securely fenced, unless they are in such a position or of such
construction that they are as safe as if they were securely fenced. The Mines and
Quarries Act 1954deals with the safety of machinery in mines and quarries, and the
EU Machinery Directive also lays down rules in this field. The Health and Safety at
Work Act 1974contains general provisions on *safety at work. See also DEFECTIVE
EQUIPMENT.
dangerous things See RYLANDS v FLETCHER, RULE IN.
database n. An organized collection of information held on a computer. Databases
are usually protected by *copyright in the UKunder the Copyright Designs and
Patents Act 1988 and the EU directive 96j9 (implemented by the Copyright and
Rights in Databases Regulations 1997). Copyright protects the structure, order,
arrangement on the page or screen, and other features of the database in addition to
the information in the database itself.
data protection Safeguards relating to personal data, i.e. personal information
about individuals that is stored on a computer and on "relevant manual filing
systems". The principles of data protection, the responsibilities of data controllers
(formerly data users under the Data Protection Act 1984), and the rights of data
subjects are governed by the Data Protection Act 1998,which came into force on 1
March 2000.
The 1998Act extends the operation of protection beyond computer storage,
replaces the system of registration with one of notification, and demands that the
level of description by data controllers under the new Act is more general than the
detailed coding system required under the Data Protection Act 1984.Under the 1998
Act, the eight principles of data protection are:
(1) The information to be contained in personal data shall be obtained, and personal
data shall be processed, fairly and lawfully.
(2)Personal data shall be held only for specified and lawful purposes and shall not be
used or disclosed in any manner incompatible with those purposes.
(3)Personal data held for any purpose shall be relevant to that purpose and not
excessive in relation to the purpose(s) for which it is used.
(4)Personal data shall be accurate and, where necessary, kept up to date.
(5) Personal data held for any purpose shall not be kept longer than necessary for
that purpose.
(6) Personal data shall be processed in accordance with the rights of data subjects.
(7) Appropriate technical and organizational measures shall be taken against
unauthorized and unlawful processing of personal data and against accidental loss or
destruction of, or damage to, personal data.
(8) Personal data shall not be transferred to a country or territory outside the
European Community area unless that country or territory ensures an adequate
level of protection for the rights and freedoms of data subjects in relation to the
processing of personal data.
Data controllers must now notify their processing of data (unless they are exempt)
with the Information Commissioner via the telephone, by requesting, completing,
and returning a notification form, or by obtaining such a form from the website
(http://www.dpr.gov.uk/notify/1.html). Notification is renewable annually; a data
controller who fails to notify his processing of data, or any changes that have been
made since notification, commits a criminal offence.
The Information Commissioner can seek information (via an information notice)
and ultimately take enforcement action (via an enforcement notice) against data
controllers for noncompliance with their full obligations under the 1998 Act.
Appeals against decisions of the Information Commissioner may be made to the
Data Protection Tribunal, which comprises a chairperson and two deputies (who
are legally qualified) and lay members (representing the interests of the data
controllers and the data subjects). There are other strict liability criminal offences
under the 1998Act other than non-notification. They include (1) obtaining, disclosing
(or bringing about the disclosure), or selling (or advertising for sale) personal data,
without consent of the data controller; (2) obtaining unauthorized access to data;
(3)asking another person to obtain access to data; and (4) failing to respond to an
information andjor enforcement notice.
Data subjects have considerable rights conferred on them under the 1998Act.
They include: (1) the right to find out what information is held about them; (2) the
right to seek a court order to rectify, block, erase, and destroy personal details if
these are inaccurate, contain expressions of opinion, or are based on inaccurate data;
(3) the right to prevent processing where such processing would cause substantial
unwarranted damage or substantial distress to themselves or anyone else; (4)the
right to prevent the processing of data for direct marketing; (5) the right to
compensation from a data controller for damage or damage and distress caused by
any breach of the 1998Act; and (6) the right to prevent some decisions about data
being made solely by automated means, where those decisions are likely to
significantly affect them.
dawn raid 1. An offer by a person or persons (see CONCERT PARTY) to buy a
substantial quantity of shares in a public company at above the market value, the
offer remaining open for a very short period (usually hours). Because of the speed
required smaller shareholders may have little opportunity to avail themselves of
the offer. Rules restrict the speed at which such acquisitions can be made. See
SARS. 2. An unannounced visit by officials of the European Commission or the UK
Office of Fair Trading investigating cartels or other breaches of the competition rules
under *Articles 81 and 82 of the Treaty of Rome or under the Competition Act 1998.
days of grace The three days that were added to the time of payment fixed by a
*bill of exchange not payable on demand before the Banking and Financial Dealings
Act 1971 came into force. A bill drawn on or after 16 January 1972is payable in all
cases on the last day of the time of payment fixed by the bill or, if that is a
nonbusiness day, on the succeeding business day.
day-training centre A place that provides social education and intensive

probation supervision. A court may order a person subject to a *community
rehabilitation order to attend such a centre.
death n. See REGISTRATION OF DEATH.
death duties Taxes formerly charged on a person's property on his death. These
have now been replaced by *inheritance tax.
death penalty See CAPITAL PUNISHMENT.
de bene esse [Latin: of well-being] Denoting a course of action that is the best
that can be done in the present circumstances or in anticipation of a future event.
An example is obtaining a *deposition from a witness when there is a likelihood
that he will be unable to attend the court hearing.
debenture n. A document that acknowledges and contains the terms of a loan
(usually to a company). The loan may be unsecured (a naked debenture). More
usually, however, the debenture will be subject to a *charge and will contain the
terms of the charge (e.g. the right to appoint a *receiver or a *crystallization event).
Debentures may be issued to a single creditor or in a series to several creditors in
order to raise finance for a company. In the case of the latter, a trust may be
created and contained within the debenture in favour of such creditors. This enables
the company to appoint a trustee for debenture holders to ensure that the financial
activities of the company are managed in the interests of the group of creditors.
Finance raised by the issue of debentures is known as *loan capital. This is
contrasted with share *capital, the holders of which are *company members.
de bonis asportatis [Latin: of goods carried away] One form of trespass to goods
(see TRESPASS), not distinguished in modern law from other direct interferences with
the possession of goods.
de bonis non administratis [Latin: of unadministered goods] A grant of *letters
of administration of the estate of a deceased person when administration has
previously been granted to someone who has himself died before completing the
administration of the estate leaving no executor, so that the chain of executorship is
broken.
debt n. 1. A sum of money owed by one person or group to another. 2. The
obligation to pay a sum of money owed.
debt adjusting See ANCILLARY CREDIT BUSINESS.
debt collecting See ANCILLARY CREDIT BUSINESS.
debtor n. 1. One who owes a debt. See also JUDGMENT DEBTOR. 2. (under the
Consumer Credit Act 1974) The individual receiving credit under a *consumer-credit
agreement or the person to whom his rights and duties under the agreement have
passed by assignment or operation of law.
debtor-creditor agreement A *consumer-credit agreement regulated by the
Consumer Credit Act 1974.It may be (1) a *restricted-use credit agreement to finance
a transaction between the debtor and a supplier in which there are no arrangements
between the creditor and the supplier (e.g.when a loan is paid by the creditor direct
to a dealer who is to supply the debtor); (2)a restricted-use credit agreement to
refinance any existing indebtedness of the debtor's to the creditor or any other
person; or (3)an unrestricted-use credit agreement (e.g.a straight loan of money)
that is not made by the creditor under arrangements with a supplier in the
knowledge that the credit is to be used to finance a transaction between the debtor
and the supplier.
debtor-creditor-supplier agreement A *consumer-credit agreement regulated
by the Consumer Credit Act 1974. It may be (1) a *restricted-use credit agreement to
finance a transaction between the debtor and the creditor, which mayor may not
form part of that agreement (e.g.a purchase of goods on credit); (2)a restricted-use
credit agreement to finance a transaction between the debtor and a supplier, made
by the creditor and involving arrangements between himself and the supplier; or (3)
an unrestricted-use credit agreement that is made by the creditor under pre-existing
arrangements between himself and a supplier in the knowledge that the credit is to
be used to finance a transaction between the debtor and the supplier.
deceit n. A tort that is committed when someone knowingly or recklessly makes a
false statement of fact intending that it should be acted on by someone else and
that person does act on the false statement and thereby suffers damage. See FRAUD.
deception n. A false representation, by words or conduct, of a matter of fact
(including the existence of an intention) or law that is made deliberately or recklessly
to another person. Deception itself is not a crime, but there are six imprisonable
crimes in which deception is involved: (1) Obtaining property. (2)Obtaining an
overdraft, an insurance policy, an annuity contract, or the opportunity to earn
money (or more money) in a job or to win money by betting. These two offences are
punishable by up to ten years' imprisonment. (3)Obtaining any services (e.g. of a
driver or typist or the hiring of a car). (4)Securing the remission of all or part of an
existing liability to make payment (whether one's own or another's) with intent to
make permanent default in whole or in part. (5) Causing someone to wait for or
forego a debt owing to him. (6) Obtaining an exemption from or abatement of
liability to pay for something (e.g. obtaining free or cheap travel by falsely pretending
to be a senior citizen). It is not an offence, however, to deceive someone in any other
circumstances, provided there is no element of *forgery or *false accounting.
decisions of the EU See COMMUNITY LEGISLATION.
declaration n. 1. (in the law of evidence) An oral or written statement not made
on oath. The term is often applied to certain types of out-of-court statement that
are admissible as an exception to the rule against *hearsay evidence; for example,
*declaration against interest, *declaration concerning pedigree, *declaration
concerning public or general rights, and *declaration in course of duty. See also
STATUTORY DECLARATION. 2. A discretionary remedy involving a bare finding by the
High Court as to a person's legal status, rights, or obligations. A declaration cannot
be directly enforced, but is frequently sought both in private law (e.g. to answer a
question as to nationality or rights under a will) and in public law (e.g. to test a
claim that delegated legislation or the decision of some inferior court, tribunal, or
administrative authority is *ultra Vires). In both public and private law the applicant
must show standing, i.e. that the issue affects him directly. Compare QUASHING ORDER.
See also JUDICIAL REVIEW.
declaration against interest A *declaration by a person who has subsequently
died which he knew, when he made it, would be against his pecuniary or proprietary
interest. It may be tendered to the court as an exception to the rule against
*hearsay evidence.
declaration concerning pedigree A *declaration made by a person who has
subsequently died, or to be inferred from family conduct, concerning a disputed
pedigree of a blood relation or the spouse of a blood relation. The declaration must
have been made before the dispute in which it is tendered as evidence had arisen.
declaration concerning public or general rights A *declaration made by a

person who has subsequently died concerning the reputed existence of a public or
general right. Public rights affect everyone (e.g.a public *right of way) while
general rights affect a class of people (e.g. a right of *common).
declaration in course of duty A *declaration by a person who has subsequently
died made while pursuing a duty to record or report his acts.
declaration of incompatibility See HUMAN RIGHTS ACT.
declaration of intention See OFFER.
declaration of trust A statement indicating that property is to be held on trust.
No specific words are necessary, as long as the intention to declare a trust is made
clear. Once a declaration of trust is made, the person intended to be trustee still
holds the property but is not entitled to hold it for his own benefit. A declaration of
a trust where the trust property is land is subject to certain formalities, detailed in
the Law of Property Act 1925 (s.53).
declaratory judgment A judgment that merely states the court's opinion on a
question of law or declares the rights of the parties, without normally including any
provision for enforcement. A claim for declaration may, however, be combined with
one for some substantive relief, such as damages.
declaratory theory The proposition that a state has capacity (and personality) in
international law as soon as it exists in fact (that is, when it becomes competent in
municipal law). This capacity is generated spontaneously from the assertion by the
community that it is a judicial entity. When socially organized, the new state is
internally legally organized, and hence competent to act in such a way as to engage
itself in international responsibility. Thus, according to this theory, *recognition
does not create any state that did not already exist. See INTERNATIONAL LEGAL
PERSONALITY. Compare CONSTITUTIVE THEORY.
decompilation (reverse engineering) n. The process of taking computer
*software apart. Under EU directive 91/250, computer software is protected by
*copyright throughout the ED. However, a very limited right to decompilation is
given in that directive for the defined purpose of writing an interoperable program,
under certain very strict conditions. Any provision in a contract to exclude this
limited right will be void. In the UK this directive is implemented by the Copyright
(Computer Programs) Regulations 1992.
decree n. 1. A law. 2. A court order. See also DECREE ABSOLUTE; DECREE NISI.
decree absolute A decree of divorce, nullity, or presumption of death that brings
a marriage to a legal end, enabling the parties to remarry. It is usually issued six
weeks after the *decree nisi (unless there are exceptional reasons why it should be
given sooner). A list of decrees absolute is kept at the Divorce Registry and access to
it is open to the public.
decree nisi A conditional decree of divorce, nullity, or presumption of death. For
most purposes the parties to the marriage are still married until the decree is made
absolute. During the period between decree nisi and decree absolute the Queen's
Proctor or any member of the public may intervene to prevent the decree being
made absolute and the decree may be rescinded if obtained by fraud.
deductions pl. n. (in employment law) Sums deducted from an employee's wages.
The Employment Rights Act 1996 provides strict rules on what can be deducted
from wages. Permitted deductions include those for income tax, national insurance,
and pension contributions (for employees who have agreed to be part of an
employer's pension scheme). Deductions are also allowed when there has been an
overpayment of wages or expenses in the past, when there has been a strike and
wages are withheld, or when there is a court order, such as an order from the Child
Support Agency or a court attachment of earnings order. There are special rules for
those in retail employment. These provide, for example, that deductions of up to
10%may be made from gross wages for cash shortages or stock deficiencies.
deed n. A written document that must make it clear on its face that it is intended
to be a deed and validly executed as a deed. Before 31 July 1990, all deeds required a
seal in order to be validly executed, but this requirement was abolished by the Law
of Property (Miscellaneous Provisions) Act 1989. A deed executed since that date by
an individual requires only that it must be signed by its maker in the presence of a
witness, or at the maker's direction and in the presence of two witnesses, and
delivered. Deeds executed by companies require before delivery the signature of a
director and secretary, or two directors, of the company; alternatively, if the company
has a seal, the deed may be executed by affixing the company seal. If the deed is a
contractual document, it is referred to as a specialty.A promise contained in a deed
is called a covenant and is binding even if not supported by *consideration.
Covenants may be either express or implied. A deed normally takes effect on
delivery; actual delivery constitutes handing it to the other party; constructive
delivery involved (in strict theory) touching the seal with the finger, and saying
words such as "I deliver this as my act and deed". If a deed is delivered but is not to
become operative until a future date or until some condition has been fulfilled, it is
called an escrow. The recitals of a deed are those parts that merely declare facts
and do not effect any of the substance of the transaction. They are usually inserted
to explain the reason for the transaction. The operative part of a deed is the part
that actually effects the objects of the deed, as by transferring land. The testatum
(or witnessing part) constitutes the opening words of the operative part, i.e. "Now
this deed witnesseth as follows". The premises are the words in the operative part
that describe the parties and the transaction involved. The parcels are the words in
the premises that describe the property involved. The testimonium is the
concluding part, beginning "In witness whereof", and containing the signatures of
the parties and witnesses. The locus sigilli is the position indicated for placing the
seal. When a deed refers to itself as "these presents", "presents" means present
statements. The advantage of a deed over an ordinary contract is that the limitation
period is 12 rather than 6 years (see LIMITATION OF ACTIONS) and no *consideration is
required for the deed to be enforceable. See also DEED POLl..
deed of arrangement A written agreement between a debtor and his creditors,
when no *bankruptcy order has been made, arranging the debtor's affairs either for
the benefit of the creditors generally or, when the debtor is insolvent, for the
benefit of at least three of the creditors. A deed of arrangement is regulated by
statute and must be registered with the Department of Trade and Industry within
seven days. It may take a number of different forms: it may be a *composition, an
*assignment of the debtor's property to a trustee for the benefit of his creditors, or
an agreement to wind up the debtor's business in such a way as to pay his debts. The
debtor usually agrees to such an arrangement in order to avoid bankruptcy. A
similar arrangement can be agreed after a bankruptcy order is made, but this is
regulated in a different way (see VOLUNTARY ARRANGEMENT).
deed of covenant A *deed containing an undertaking to pay an agreed amount
over an agreed period. Certain tax advantages could be obtained through the use of
covenants, particularly in the case of four-year covenants in favour of charities. This
was superseded by *gift aid in April 2000.

deed of gift A *deed conveying property from one person (the donor) to another
(the donee) when the donee gives no *consideration in return. The donee can
enforce a deed of gift against the donor. Gifts made other than by deed are not
generally enforceable (but seePART PERFORMANCE).
deed poll A *deed to which there is only one party; for example, one declaring a
*change of name.
deemed adj. Supposed. In the construction of some documents (particularly
statutes) an artificial construction is given to a word or phrase that ordinarily would
not be so construed, in order to clarify any doubt or as a convenient form of
drafting shorthand.
de facto [Latin: in fact] Existing as a matter of fact rather than of right. The
government may, for example, recognize a foreign government de facto if it is
actually in control of a country even though it has no legal right to rule (see
RECOGNITION). Compare DE JURE.
defamation n. The *publication of a statement about a person that tends to lower
his reputation in the opinion of right-thinking members of the community or to
make them shun or avoid him. Defamation is usually in words, but pictures,
gestures, and other acts can be defamatory. In English law, a distinction is made
between defamation in permanent form (see LIBEL) and defamation not in permanent
form (see SLANDER). This distinction is not made in Scotland. The remedies in tort for
defamation are damages and injunction.
In English law, the basis of the tort is injury to reputation, so it must be proved
that the statement was communicated to someone other than the person defamed.
In Scottish law, defamation includes injury to the feelings of the person defamed as
well as injury to reputation, so an action can be brought when a statement is
communicated only to the person defamed. If the statement is not obviously
defamatory, the claimant must show that it would be understood in a defamatory
sense (see INNUENDO). It is not necessary to prove that the defendant intended to refer
to the claimant. The test is whether reasonable people would think the statement
referred to him, but the defendant may escape liability for unintentional
defamation by making an offer of amends (see APOLOGY). Other defences are
*justification, *fair comment, *absolute privilege, and *qualified privilege.
All those involved in the publication of a defamatory statement, such as printers,
publishers, and broadcasting companies, are liable and every repetition of a
defamatory statement is a fresh publication, giving rise to a new cause of action. A
mere distributor of a book, newspaper, etc., is not liable if he did not know and had
no reason to know of its defamatory contents. The Defamation Act 1996 put this
defence on a statutory footing and generally speeded up procedures for defamation
litigation, but it did not change the rule that the jury and not the judge decides on
the damages in defamation cases.
default n. Failure to do something required by law, usually failure to comply with
mandatory rules of procedure. If a defendant in civil proceedings is in default (e.g.
by failing to file a defence), the claimant may obtain judgment in default. If the
claimant is in default, the defendant may apply to the court to dismiss the action.
default notice A notice that must be served on a contract breaker before taking
action in consequence of his breach. Under the Consumer Credit Act 1974a default
notice must be served on a debtor or hirer in breach of a regulated agreement
before the creditor or owner is entitled to terminate the agreement; to demand
earlier payment of any sum; to recover possession of any goods or land; to treat any
right conferred on the debtor or hirer by the agreement as terminated, restricted,
or deferred; or to enforce any security. The notice must specify the nature of the
breach, what action (if any) is required to remedy it, and the date before which that
action is to be taken. If the breach is not capable of remedy, the notice must specify
the sum (if any) required in compensation and the date before which it is to be paid.
default summons Formerly, a summons used to initiate all proceedings in the
county courts when the only relief claimed was the payment of money. Under the
*Civil Procedure Rules, such claims are now made by *claim forms.
defect n. 1. A fault or failing in a thing. The defect may be obvious (a patent
defect) or it may not be apparent at first (a latent defect). In a sale of goods, the
buyer usually has a legal remedy against a professional seller if the goods have a
latent defect. If there is a patent defect he usually has no such remedy if he had an
opportunity to inspect the goods before purchase. See also SATISFACTORY QUALITY.
2. (defect in a product) A fault in a product as defined in the Consumer Protection
Act 1987. A defect exists in products under the Act when the safety of the products
is not what people generally are entitled to expect. In determining what people are
entitled to expect, reference should be made to the way in which the goods are
marked, any warnings issued with them, and the time of supply. The Act
implements EU directive 85/374 on *products liability.
defective equipment An employer's duty to provide his employees with a safe
system of work, so far as is reasonably practicable, includes the provision and
maintenance of safe tools and equipment (including materials) for the job. The
employer is liable to an employee injured by a defect in the equipment he provides,
even if the defect was due to the fault of some third party, such as the
manufacturer of the equipment. See also SAFETY AT WORK.
defective premises Liability for defects in the construction of buildings can
arise both at common law, in contract and tort, and by statute. In addition to any
liability they may incur for breach of contract, builders, architects, surveyors, etc.,
are liable in tort on ordinary principles for *negligence and may also be in breach of
statutory duties; for example, the duty imposed by the Defective Premises Act 1972,
in respect of work connected with the provision of a dwelling, to see that the
dwelling will be fit for habitation. A landlord who is responsible for repairs, or who
has reserved the right to enter and carry out repairs, may be liable for damage
caused by failure to repair not only to his tenants, but also to third parties who
could be expected to be affected by the defects. For the liability of occupiers of
premises, see OCCUPIER'S LIABILITY.
defective products See PRODUCTS LIABILITY.
defence n. 1. The response by a defendant to service of a claim. Once a claim form
or particulars of claim have been served on the defendant, he is under an obligation
to respond. If he does not file a defence, judgment in default will be entered against
him. Generally, a defence must be filed within 14 days of service of the claim. The
defendant may obtain an extension of a further 14 days by filing an
*acknowledgment of service. 2. In civil and criminal proceedings, an issue of law or
fact that, if determined in favour of the defendant, will relieve him of liability
wholly or in part. See also GENERAL DEFENCES.
defence statement A document setting out the accused's *defence in criminal
proceedings for initial hearings before trial. The Criminal Procedure and
Investigations Act 1996 provides that, from 1 April 1997, the accused need not make a
defence statement at all; however, an adverse inference may be drawn from a

failure to give a statement in the *Crown Court. The statement should set out the
nature of the defence in general terms (for example, mistaken identification, alibi),
indicate the matters on which the accused takes issue with the prosecution, and set
out in respect of each matter the reason why the accused takes issue. It must not
contain any inconsistent defences and should not be different from the defence to
be put forward at trial.
defendant n. A person against whom court proceedings are brought. Compare
CLAIMANT.
deferred debt In bankruptcy proceedings, a debt that by statute is not paid until
all other debts have been paid in full.
deferred sentence A *sentence imposed by a magistrates' court or the Crown
Court after a period of up to six months from conviction for the offence. The court
may postpone sentencing, if the convicted person agrees, if it wishes to assess any
change in the offender's conduct or circumstances during that time.
defrauding n. Any act that deprives someone of something that is his or to which
he might be entitled or that injures someone in relation to any proprietary right. It
is a crime (a form of *conspiracy at common law) to conspire to defraud someone.
See also CHEAT; DISHONESTY.
degrading treatment or punishment Treatment that arouses in the victim a
feeling or fear, anguish, and inferiority capable of humiliating and debasing the
victim and possibly breaking his physical or moral resistance. The prohibition on
degrading treatment or punishment as set out in Article 3 of the European
Convention on Human Rights is now part of UKlaw as a consequence of the
*Human Rights Act 1998. This right is an *absolute right; such treatment can never
be justified as being in the public interest, no matter how great that public interest
might be. Public authorities have a limited but positive duty to protect this right
from interference by third parties.
de jure [Latin] As a matter of legal right. See RECOGNITION. Compare DE FACTO.
del credere agent [Italian: of trust] See AGENT.
delegated legislation (subordinate legislation) Legislation made under powers
conferred by an Act of Parliament (an enabling statute, often called the parent Act).
The bulk of delegated legislation is governmental: it consists mainly of *Orders in
Council and instruments of various names (e.g. orders, regulations, rules, directions,
and schemes) made by ministers (see alsoGOVERNMENT CIRCULARS). Its primary use is to
supplement Acts of Parliament by prescribing the detailed and technical rules
required for their operation; unlike an Act, it has the advantage that it can be made
(and later amended if necessary) without taking up parliamentary time. Delegated
legislation is also made by a variety of bodies outside central government, examples
being *byelaws, the *Rules of the Supreme Court, and the codes of conduct of
certain professional bodies (see also ORDERS OF COUNCIL).
Most delegated legislation (byelaws are the main exception) is subject to some
degree of parliamentary control, which may take any of three principal forms: (1) a
simple requirement that it be laid before Parliament after being made (thus
ensuring that members become aware of its existence but affording them no special
method or opportunity of questioning its substance); (2)a provision that it be laid
and, for a specified period, liable to annulment by a resolution of either House
(negative resolution procedure); or (3)a provision that it be laid and either shall
not take effect until approved by resolutions of both Houses or shall cease to have
effect unless approved within a specified period (affirmative resolution procedure).
In the case of purely financial instruments, any provision for a negative or
affirmative resolution refers to the House of Commons alone. (See alsoSTATUTORY
INSTRUMENT; SPECIAL PROCEDURE ORDERS.)
All delegated legislation is subject to judicial control under the doctrine of *ultra
vires. Delegated legislation is interpreted in the light of the parent Act, so particular
words are presumed to be used in the same sense as in that Act. This rule apart, it is
governed by the same principles as those governing the *interpretation of statutes.
See also SUBDELEGATED LEGISLATION.
delegation n. 1. The grant of authority to a person to act on behalf of one or
more others, for agreed purposes. 2. See VICARIOUS LIABILITY.
delegatus non potest delegare [Latin] A person to whom something has been
delegated cannot delegate further, i.e. one to whom powers and duties have been
entrusted cannot entrust them to another. The rule applies particularly when the
delegate possesses some special skill in the performance of the duties delegated, or
when personal trust is involved. The rule does not apply if there is express or
implied authority to delegate. Trustees, for example, have always been entitled to
employ agents when this was necessary (for example, they can employ solicitors to
do legal work). Since 1925,a trustee may delegate any business of the trust to an
agent provided that he does so in good faith. Further, since 1971, any trustee may
delegate, for a period not exceeding one year, any trusts, powers, or discretions he
has; this delegation may be repeated.
de lege ferenda [Latin: of (or concerning) the law that is to come into force] A
phrase used to indicate that a proposition relates to what the law ought to be or
may in the future be.
de lege lata [Latin: of (or concerning) the law that is in force] A phrase used to
indicate that a proposition relates to the law as it is.
delivery n. The transfer of possession of property from one person to another.
Under the Sale of Goods Act 1979, a seller delivers goods to a buyer if he delivers
them physically, if he makes symbolic delivery by delivering the document of title
to them (e.g.a *bill of lading) or other means of control over them (e.g. the keys of a
warehouse in which they are stored), or if a third party who is holding them
acknowledges that he now holds them for the buyer. In constructive delivery, the
seller agrees that he holds the goods on behalf of the buyer or the buyer has
possession of the goods under a hire-purchase agreement and becomes owner on
making the final payment.
demanding with menaces See BLACKMAIL.
de minimis non curat lex [Latin] The law does not take account of trifles. It will
not, for example, award damages for a trifling nuisance. The de minimis rule applies
in a number of other areas, including EU *competition law.
demise (in land law) 1. vb. To grant a lease. 2. n. The lease itself.
demise of the Crown The death of the sovereign. The Crown, in fact, never dies:
the accession of the new sovereign takes place at the moment of the demise, and
there is no interregnum.
demonstrative legacy See LEGACY.
demurrage n. Liquidated *damages payable under a charterparty at a specified
daily rate for any days (demurrage days) required for completing the loading or

discharging of cargo after the *lay days have expired. The word is also commonly
used to denote the unliquidated damages to which the shipowner is entitled if,
when no lay days are specified, the ship is detained for loading or unloading beyond
a reasonable time.
departure n. The introduction of a new allegation of fact or the raising of a new
ground or claim inconsistent with the party's earlier claim. Departure is not
permitted by the Civil Procedure Rules, but it does not prevent the *amendment of
documents used in litigation provided that the amended documents do not contain
any departure. The principal effect of the rule is to prevent a claimant from setting
up in his *reply a new claim that is inconsistent with the cause of action alleged in
the particulars of claim.
dependant n. A person who relies on someone else for maintenance or financial
support. On the death of the latter, the courts now have wide discretionary powers
to award financial provision to dependants out of the estate of the deceased. The list
of dependants includes not only spouses, former spouses, children, and children of
the family, but anyone (e.g. a lover, housekeeper, or servant) who was being
maintained to some extent by the deceased immediately before his death. See also
REASONABLE FINANCIAL PROVISION.
dependent relative revocation The doctrine that if a testator revokes his will
in the mistaken belief that a particular result will ensue, or that a particular set of
facts exists when it does not, then the revoked will may still hold good. For example,
if a testator destroys his will, in the mistaken belief that thereby an earlier will
would be revived, the destroyed will will be held not to have been revoked.
Similarly, a testator may revoke his will, intending to make another; the revoked
will holds good if the testator subsequently makes no new will or an invalid one.
dependent state A member of the community of states with qualified or limited
status. Such states possess no separate statehood or sovereignty: it is the parent state
alone that possesses *internationallegal personality and has the capacity to exercise
international rights and duties.
dependent territory A territory (e.g.a colony) the government of which is to
some extent the legal responsibility of the government of another territory.
deportation n. The removal from a state of a person whose initial entry into that
state was illegal (compare EXPULSION). In the UK this is authorized by the Immigration
Act 1971 as amended by the Immigration and Asylum Act 1999in the case of any
person who does not have the right of abode there (see IMMIGRATION). He may be
ordered to leave the country in four circumstances: if he has overstayed or broken a
condition attached to his permission to stay; if another person to whose family he
belongs is deported; if (he being 17 or over) a court recommends deportation on his
conviction of an offence punishable with imprisonment; or if the Secretary of State
thinks his deportation to be for the public good. The Act enables appeals to be made
against deportation orders. Normally, they are either direct to the *Immigration
Appeal Tribunal or to that tribunal after a preliminary appeal to an adjudicator. The
Immigration Act 1988 restricts this right of appeal in the case of those who have
failed to observe a condition or limitation on their leave to enter the UK. The
Immigration and Asylum Act 1999gives additional powers to order those present in
the UKwithout permission to leave, either when they have overstayed or obtained
leave to remain by deception or when they were never granted leave to remain. It
also provides for the removal of asylum claimants under standing arrangements
with other EU member states.
depose vb. To make a *deposition or other written statement on oath.
deposit n. 1. A sum paid by one party to a contract to the other party as a
guarantee that the first party will carry out the terms of the contract. The first
party will forfeit the sum in question if he does not carry out the terms, even if the
sum is in excess of the other party's loss. If the contract is completed without
dispute the deposit becomes part payment. In land law a deposit is usually made by
a purchaser when exchanging contracts (see EXCHANGE OF CONTRACTS) for the purchase
of land. The contract stipulates whether the recipient (usually the vendor's solicitor
or estate agent) holds the deposit as agent for the vendor, in which case the vendor
can use the money pending *completion of the transaction, or as stakeholder, in
which case the funds must remain in the stakeholder's account until completion or
(in the case of a dispute) a court has decided who should have it. If the contract is
rescinded the purchaser is entitled to the return of his deposit. 2. The placing of
title deeds with a mortgagee of unregistered land as security for the debt. A
mortgagee not protected by deposit of title deeds (such as a second mortgagee of
unregistered land) registers his mortgage (see REGISTRATION OF ENCUMBRANCES) and is
then entitled to receive the title deeds from prior mortgagees after the redemption
of their security. All mortgages of registered land must be registered to be binding
on purchases of the land.
deposition n. A statement made on oath before a magistrate or court official by a
witness and usually recorded in writing. In criminal cases depositions are taken
during committal proceedings before the magistrates' court (see COMMITTAL FOR
TRIAL). The usual procedure is that the prosecution witnesses give their evidence on
oath and may be cross-examined by the accused or his legal advisers. The statement
is then written down by the magistrates' clerk, read out to the witness in the
presence of the accused, signed by the witness, and certified by the examining
magistrate. The accused must be present throughout and be allowed to crossexamine.
If these conditions are not fulfilled, both the committal proceedings and
the subsequent trial will be null and void. There are special arrangements for
depositions to be written down out of court if a witness is dangerously ill and
cannot come to court, and also for depositions by children. Depositions made in
committal proceedings are accepted as evidence at the trial if the witness is dead or
insane, unfit to travel because of illness, or is being kept out of the way by the
accused; they are also accepted to show a discrepancy between the deposition
evidence and evidence given later on orally at the trial.
In civil cases the court may order an examiner of the court to take depositions
from any witnesses who are (for example) ill or likely to be abroad at the time of
the hearing. At the taking of the deposition the witness is examined and crossexamined
in the usual way, and the examiner notes any objection to admissibility
that may be raised. The deposition is not admissible at the trial without the consent
of the party against whom it is given, unless the witness is still unavailable. See also
LETTER OF REQUEST.
deprave vb. To make morally bad. The term is used particularly in relation to the
effect of *obscene publications. A person is considered to have been depraved if his
mind is influenced in an immoral way, even though this does not necessarily result
in any act of depravity.
derecognition n. A process whereby notice is given to terminate union
recognition in an establishment or company. Employees continue to have the right
to belong to a trade union, but the employer no longer negotiates collectively: terms
and conditions previously the subject of *collective bargaining are negotiated

individually or with groups of employees unconnected with trade unions, resulting
in a personal contract. See also RECOGNITION PROCEDURE.
deregulation n. 1. The controls imposed by governments on the operation of
markets, such as is allowed for under the Deregulation and Contracting Out Act
1990. 2. A movement in the EU to reduce rules at Community level that could be
better set at national level (see SUBSIDIARITY).
derivative action Civil proceedings brought by a minority of company members
in their own names seeking a remedy for the company in respect of a wrong done
to it. Such proceedings are exceptional; usually an action should be brought by the
company (the injured party) in its own name. A derivative action will only be
permitted when a serious wrong to the company is involved, which cannot be
ratified by an ordinary resolution of company members (e.g. an *ultra vires or illegal
act or a case of *fraud on the minority) and the majority of members will not
sanction an action in the company's name. Compare REPRESENTATIVE ACTION.
derivative deed A deed that is supplemental to another, whose scope it alters,
confirms, or extends. An example is a deed admitting a new partner to a firm on
terms set out in a principal deed executed by the original partners.
derivative title A claim of sovereignty over a territory, that territory having
previously belonged to another sovereign state. Derivation of title to territory
involves the transfer (*cession) of title from one sovereign state to another.
derivative trust See SUB-TRUST.
derogation n. Lessening or restriction of the authority, strength, or power of a
law, right, or obligation. Specifically: 1. (in the European Convention on Human
Rights) A provision that enables a signatory state to avoid the obligations of some
but not all of the substantive provisions of the rest of the Convention. This
procedure is provided by Article 15 of the Convention and is available in time of
war or other public emergency threatening the life of the nation. Although Article
15 is not brought into domestic law by the *Human Rights Act 1998,the Act
exempts public authorities from compliance from any articles (or parts of articles)
where a derogation is in place. 2. (in EU law) An exemption clause that permits a
member state of the EU to avoid a certain directive or regulation. Sometimes
member states are allowed a longer than normal time to implement an EU
directive.
desertion n. 1. The failure by a husband or wife to cohabit with his or her spouse.
Desertion usually takes the form of physically leaving the home, but this is not
essential: there may be desertion although both parties live under the same roof, if
all elements of a shared life (e.g.sexual intercourse, eating meals together) have
ceased. Desertion must be a unilateral act carried out against the wishes of the other
spouse, with the intention of bringing married life to an end (animus deserendi). If it
is continuous for more than two years, it may be evidence that the marriage has
irretrievably broken down and entitle the deserted spouse to a decree of *divorce.
See also CONSTRUCTIVE DESERTION. 2. An offence against service law committed by a
member of the armed forces who leaves or fails to attend at his unit, ship, or place
of duty. He must either intend at the time to remain permanently absent from duty
without lawful authority or subsequently form that intention. One who absents
himself without leave to avoid service overseas or service before the enemy is also
guilty of desertion.
design right Legal protection for the external appearance of an article, including
its shape, configuration, pattern, or ornament. A design right is distinct from a
*patent, which protects the internal workings of the article. The right entitles the
owner to prevent others making articles to the same design. Design rights in the UK
are either registered (see REGISTERED DESIGN) or unregistered. Registered designs must
have aesthetic appeal; they are protected under the Registered Designs Act 1949 as
amended and last for a maximum of 25 years provided renewal fees are paid.
Unregistered designs, which came into existence in 1989, are protected under the
Copyright, Designs and Patents Act 1988. Unregistered design protection is for only
15 years. Design protection is not available for parts of articles that simply provide a
fit or match to another article, such as a car-body panel.
de son tort See EXECUTOR DE SON TORT; TRUSTEE DE SON TORT.
detention n. Depriving a person of his liberty against his will following *arrest.
The Police and Criminal Evidence Act 1984 closely regulates police powers of
detention and detained persons' rights. Detention of adults without charge is
allowed only when it is necessary to secure or preserve evidence or to obtain it by
questioning; it should only continue beyond 24 hours (to 36 hours) in respect of
serious arrestable offences (e.g. rape, kidnapping, causing death by dangerous
driving) when a superintendant or more senior officer reasonably believes it to be
necessary. Magistrates' courts may then authorize a further extension without
charge for up to 36 hours, which can be extended for another 36 hours, but the
overall detention period cannot exceed 96 hours.
If the ground for detention ceases, or if further detention is not authorized, the
detainee must either be released or be charged and either released on *bail to
appear before a court or taken before the next available court. An arrested person
held in custody may have one person told of this as soon as practicable, though if a
serious arrestable offence is involved and a senior police officer reasonably believes
that this would interfere with the investigation, this can be delayed for up to 36
hours. The detainee has a broadly similar right of access to a solicitor. *Terrorism
suspects may be detained for up to seven days on a magistrate's authority.
detention centre See DETENTION IN A YOUNG OFFENDER INSTITUTION.
detention in a young offender institution A custodial sentence that may be
passed on a person aged 15 or over but under 21 (see JUVENILE OFFENDER). It combines
the former detention centre orders (against male offenders aged 14 to 20) and
youth custody sentences (for males and females aged 15 to 20). The offence must be
so serious, by itself or with another offence, that detention is the only justifiable
outcome; alternatively it must be a violent or sexual offence and detention in such
an institution is the only way of protecting the public from further injury or death.
The court may consider *mitigation and impose a noncustodial sentence.
The minimum detention period is 21 days and the maximum period is 24 months.
Other custodial sentences include custody for life and secure training orders.
determinable interest An interest that will automatically come to an end on
the occurrence of some specified event (which, however, may never happen). For
example, if A conveys land to B until he marries, Bhas a determinable interest that
would pass back to A upon his marriage. But if B dies a bachelor the *possibility of a
reverter to A is destroyed and B's heirs acquire an absolute interest. An interest that
must end at some future point (e.g. a *life interest) is not classified as a
determinable interest, but one that could end during a person's life (for example a
*protective trust) is so classified. A determinable legal estate in land prior to 1925
was known as a determinable fee, but under the Law of Property Act 1925 it can
now exist only as an equitable interest. It is exceptionally difficult to distinguish

between a determinable interest and a *conditional interest. Compare CONTINGENT
INTEREST.
deterrence n. See PUNISHMENT.
detinue n. An action to recover goods, based on a wrongful refusal by the
possessor of the goods to restore them to the owner. The old common law form of
action was abolished by the Judicature Acts 1873-75 and detinue was abolished
altogether by the Torts (Interference with Goods)Act 1977. Recovery of goods is now
governed by the provisions of the 1977Act.
devastavit n. [Latin: he has wasted] The failure of a personal representative to
administer a deceased person's estate promptly and in a proper manner. For
example, if he pays in full a legacy subject to the possibility of *abatement he is
personally liable for the loss suffered by other beneficiaries and caused by his
devastavit. He may also be liable if, for example, he disposes of an asset in the estate
at an undervalue, even if acting in good faith.
development n. (in *town and country planning) Generally, the carrying out of
any building or other operation affecting land and the making of any material
change in the use of any buildings or land. Development does not include alterations
to buildings not materially affecting their external appearance or changes of use
that fall within certain use classes prescribed by statutory instrument. For
example, office use is a use class and a mere change in the type of office business is
not development. All development requires planning permission, other than
"permitted development" under a general development order. The demolition of
houses to provide car parking and a landscaped area is not development.
development land (community land) Under the Community Land Act 1975, land
classified by a local authority as needed for commercial development and required
to be brought first into public ownership, thus effectively nationalizing its
development value. This Act was repealed by the Local Government, Planning and
Land Act 1980.
development land tax A tax charged on the development value of land when
the land was disposed of before 19 March 1985. It was abolished for all disposals after
that date by the Finance Act 1985.
development plan See TOWN AND COUNTRY PLANNING.
deviation n. (in marine insurance) The departure of a ship from an agreed course.
A ship must follow the course specified in a voyage or mixed insurance policy (see
TIME POLICY); if no course is specified, the ship must follow the usual course for the
voyage. Deviation discharges the underwriters from all liability for subsequent loss
(even though it may not increase the risk) unless it is caused by circumstances
beyond control or is justified on certain very limited grounds (e.g. to ensure the
safety of the ship or to save human life, but not merely to save property).
Unreasonable delay may also amount to deviation. Insurance cover does not revive
when the ship rejoins the original course. Between the parties to a voyage charter,
the possibility of deviation is normally the subject of an express deviation clause in
the *charterparty. For goods carried under a *bill of lading, permitted deviation is
dealt with by the Hague Rules.
devil 1. n. A junior member of the Bar who does work (usually settling statements
of case or writing opinions) for a more senior barrister under an informal
arrangement between them and without reference to the senior's instructing
solicitor. The Junior Counsel to the Treasury is sometimes referred to as the
Attorney General's devil. 2. vb. To act as a devil.
devise 1. n.A gift by will of *real property (compare BEQUEST; LEGACY); the
beneficiary is called the devisee.A devise may be specific (e.g. "my house, Blackacre,
to A"), general (e.g. "all my real property to B"), or residuary (e.g. after a specific
devise "...and the rest of my real property to C"). 2. vb. To dispose of real property by
will.
devolution n. 1. The delegation by the central government to a regional authority
of legislative or executive functions (or both) relating to domestic issues within the
region. The word is most commonly used in the context of such functions in Scotland,
Wales, and Northern Ireland. For example, the Scotland Act 1998 devolved power to
the *Scottish Parliament, enabling it to make certain Acts in some areas of policy
and to alter income tax. However, the UKparliament reserved power to make laws
for Scotland. The Government of Wales Act 1998 gave limited administrative powers
to the *Welsh Assembly with the UKparliament continuing to legislate for Wales.
The Northern Ireland Act 1998established an elected *Northern Ireland Assembly but
made devolution of power to the Assembly conditional on the decommissioning of
arms by paramilitary groups. The Northern Ireland Act 2000 enables power to revert
to the UK parliament upon failure to decommission arms, suspending the Northern
Ireland Assembly until the Secretary of State makes a restoration order. 2. The
passing of property from one owner to another, which may occur on death or sale,
as a gift, by operation of law, or in any other way.
dictum n. [Latin: a saying] An observation by a judge with respect to a point of law
arising in a case before him. See also OBITER DICTUM.
digital signature Data appended to a unit of data held on a computer, or a
cryptographic transformation of a data unit, that allows the recipient of the data
unit to prove its source and integrity and protects against forgery. The International
Standards Organization defined this means of identification and protection. An
*electronic signature, as defined by the Electronic Communications Act 2000, has a
similar effect in relation to a commercial agreement.
dilapidation n. A state of disrepair. The term is usually used in relation to repairs
required at the end of a lease or tenancy.
diminished responsibility An abnormal state of mind that does not constitute
*insanity but is a special defence to a charge of murder. The abnormality of mind
(which need not be a brain disease) must substantially impair the mental
responsibility of the accused for his acts, i.e. it must reduce his powers of control,
judgment, or reasoning to a condition that would be considered abnormal by the
ordinary man. It may be caused by disease, injury, or mental subnormality, and is
liberally interpreted to cover such conditions as depression or *irresistible impulse.
If the defendant proves the defence, he is convicted of *manslaughter. See also
BATTERED SPOUSE OR COHABITANT.
diplomatic agent One of a class of state officials who are entrusted with the
responsibility for representing their state and its interests and welfare and that of
its citizens or subjects in the jurisdiction of another state or in international
organizations. Diplomatic agents can be generally classified into two groups: (1) heads
of mission and (2) members of the staff of the mission having diplomatic rank. See
alsoDIPLOMATIC IMMUNITY; DIPLOMATIC MISSION.
diplomatic immunity The freedom from legal proceedings in the UK that is

granted to members of diplomatic missions of foreign states by the Diplomatic
Privileges Act 1964.This Act incorporates some of the provisions of the Vienna
Convention on Diplomatic Relations (1961), which governs diplomatic immunity in
international law. The extent of the immunity depends upon the status of the
member in question, as certified by the Secretary of State. If he is a member of the
mission's diplomatic staff, he is entitled to complete criminal immunity and to civil
immunity except for actions relating to certain private activities. A member of the
administrative or technical staff has full criminal immunity, but his civil immunity
relates only to acts performed in the course of his official duties. For domestic staff,
both criminal and civil immunity are restricted to official duties.
Similar immunities are granted to members of Commonwealth missions by the
Diplomatic and other Privileges Act 1971, and to members of certain international
bodies under the International Organisations Acts 1968and 1981. Under the
Diplomatic and Consular Premises Act 1987, the Secretary of State may remove
diplomatic status from diplomatic or consular premises that are being misused.
diplomatic mission A body composed of government officers representing the
interests and welfare of their state who have been posted abroad (by the sending
state) and operate within the jurisdisdiction of another state (the receiving state).
This mission will be accorded protection by the receiving state in accordance with
the rules of *diplomatic immunity. See also DIPLOMATIC AGENT.
direct effect (in EU law) See COMMUNITY LEGISLATION.
direct evidence (original evidence) 1. A statement made by a witness in court
offered as proof of the truth of any fact stated by him. Compare HEARSAY
EVIDENCE. 2. A statement of a witness that he perceived a fact in issue with one of
his five senses or that he was in a particular physical or mental state. Compare
CIRCUMSTANTIAL EVIDENCE.
direct examination See EXAMINATION-IN-CHIEF.
direction to jury The duty of a judge to instruct a jury on a point of law (e.g.the
definition of the crime charged or the nature and scope of possible defences).
Failure to carry out this instruction correctly may be grounds for an appeal if a
miscarriage of justice is likely to have occurred as a result of the misdirection.
directives of the EU See COMMUNITY LEGISLATION.
Direct Labour Organization A local government division, staffed by local
government employees, that submits bids for services in competition with privatesector
companies when these services are put out to compulsory *competitive
tendering.
directly applicable law Any provision of the law of the European Community
that forms part of the national law of a member state. See COMMUNITY LAW;
COMMUNITY LEGISLATION.
directly effective law See COMMUNITY LAW; COMMUNITY LEGISLATION.
director n. An officer of a company appointed by or under the provisions of the
*articles of association. Directors may have a contract of employment with the
company (service directors and *managing directors) or merely attend board
meetings (nonexecutive directors). (See also SHADOW DIRECTOR.) Contracts of
employment can be inspected by company members; long-term contracts may
require approval by ordinary resolution. Usually, general management powers are
vested in the directors acting collectively, although they may delegate some or all of
these powers to the managing director. Directors act as agents of their company, to
which they owe *fiduciary duties (in the performance of which they must consider
the interests of both company members and employees) and a *duty of care.
Transactions involving a conflict between their duty and their personal interests are
regulated by the Companies Acts. Directors can be dismissed by *ordinary resolution
despite the terms of the articles or any contract of employment, but dismissal in
these circumstances is subject to the payment of damages for breach of contract.
Under the Company Directors Disqualification Act 1986,directors may be
disqualified for *fraudulent trading or *wrongful trading and conduct that makes
them unfit to be concerned in the management of companies.
Remuneration of directors for their services may be due under a contract of
employment or determined by the general meeting. Particulars appear in the
*accounts.
Director General of Fair Trading The head of the Office of Fair Trading, who is
appointed for a five-year term by the Secretary of State for Trade and Industry. He
is responsible for reviewing the carrying on of commercial activities in the UK
relating to the supply of goods or services supplied to consumers in the UKand for
identifying situations relating to *monopolies and *anticompetitive practices.
Director of Public Prosecutions (DPP) The head of the *Crown Prosecution
Service (CPS), who must be a lawyer of at least ten years' general qualification. The
DPPis appointed by the *Attorney General and discharges his functions under the
superintendence of the Attorney General. The DPP,through the CPS, is responsible
for the conduct of all criminal prosecutions instituted by the police and he may
intervene in any criminal proceedings when it appears to him to be appropriate.
Some statutes require the consent of the DPPto prosecution.
disability discrimination See DISABLED PERSON.
disability living allowance A tax-free benefit payable to those under 65 who
have had a disability requiring help for at least three months and are likely to need
such help for at least a further six months. It has two components; a care
component, payable at three rates to those needing help with personal care; and a
mobility component, payable at two rates to those aged five or over who need help
with walking. The rates depend on the level of help required.
disabled person Under the Disability Discrimination Act 1995, a person who has a
physical or mental impairment that has a substantial and long-term effect on his
abilities to carry out day-to-dayactivities. The Act makes it an offence to discriminate
unjustifiably against anyone who is disabled. Discrimination occurs when a disabled
employee (or interviewee) is treated less favourably by an employer (or potential
employer) than someone without a disability, unless the employer can show that the
difference in treatment is justified. Thus it is illegal for employers to refuse to
employ someone qualified to do a job, simply because that person has, or has had, a
physical or mental disability. In addition, employers have a duty to make alterations
to premises to aid disabled employees. However, the law does not apply to employers
with fewer than 15 employees (i.e. after all staff at all branches are aggregated).
On 5 March 2001 the government announced plans for significant changes to the
Disability Discrimination Act. These include removal in 2004 of the small employers'
exemption. The shape of any future proposal will be influenced by the need of the
British government to comply with the recently issued ECFramework Directive
2000/78, which seeks to implement the extended role of the European Union with
respect to the elimination of discrimination.
disabled person's tax credit An income-related benefit that, under the Tax

Credits Act 1999, replaced disability working allowance in October 1999.
Administered by the Inland Revenue rather than the Benefits Agency, it is payable
to those aged 16 or over who are working 16 or more hours a week, who have a
disability that puts them at a disadvantage in obtaining employment, and whose
income does not exceed an amount prescribed under statute.
disablement benefit See INDUSTRIAL INJURIES DISABLEMENT BENEFIT.
disabling statute A statute that disqualifies a person or persons of a specified
class from exercising a legal right or freedom that he or they would otherwise
enjoy.
disbar vb. To expel a barrister from his Inn of Court. The sentence of disbarment
is pronounced by the *Benchers of the barrister's Inn, subject to a right of appeal to
the judges who act as visitors of all the Inns of Court.
discharge n. Release from an obligation, debt, or liability, particularly the
following. 1. *Discharge of contract. 2. The release of a debtor from all *provable
debts (with minor exceptions) at the end of *bankruptcy proceedings. In certain
circumstances discharge is automatic. In other cases, the debtor or the official
receiver may apply to the court for an order of discharge. This may be subject to
conditions, such as further payments by the debtor to his creditors out of his future
income, or it may be suspended until the creditors receive a higher proportion of
the amount due to them. After discharge the debtor is freed from most of the
disabilities to which he was subject as an *undischarged bankrupt. 3. The release of
a convicted defendant without imposing a punishment on him. A discharge may be
absolute or conditional. In an absolute discharge the defendant is not punished for
the offence. His conviction may, however, be accompanied by a *compensation order
or by *endorsement of his driving licence or *disqualification from driving. A
conditional discharge also releases the defendant without punishment, provided
that he is not convicted of any other offence within a specified period (usually three
years). If he is convicted within that time, the court may sentence him for the
original offence as well. Three conditions are required for the court to order a
discharge: (1) that a community rehabilitation order is not appropriate; (2) that the
punishment for the offence must not be fixed by law; and (3) that the court thinks
it inadvisable to punish the defendant in the circumstances.
discharge of contract The termination of a contractual obligation. Discharge
may take place by: (1) *performance of contract; (2)express agreement, which may
involve either *bilateral discharge or unilateral discharge (see ACCORD AND
SATISFACTION); (3) *breach of contract; or (4) *frustration of contract.
disclaimer n. The refusal or renunciation of a right, claim, or property. A
beneficiary under a will that leaves him both a burdensome and a beneficial gift
(e.g.a racehorse that never wins and £50) may disclaim the former and take the
latter. A company's liquidator may disclaim the company's lease, to avoid liability for
the rent and other "onerous" contracts. A trustee may disclaim a trust if he has not
yet accepted it; once he has accepted his trusteeship he may no longer disclaim it
but he may resign (see RETIREMENT OF TRUSTEES). Trusts and powers are normally
disclaimed by deed.
disclosure n. 1. (in contract law) See NONDISCLOSURE; UBERRIMAE FIDEI. 2. (in company
law) a. A method of protecting investors that relies on the company disclosing and
publishing information, which is then evaluated by the investors, their advisers, and
the press. See also STOCK EXCHANGE. b. A method of regulating the conduct of
directors and promoters by requiring them, on *fiduciary principles or by statutory
provisions, to disclose to the company any relevant information, e.g. an interest in a
contract with the company.
disclosure and inspection of documents (in court proceedings) Disclosure by
a party to civil litigation of the *documents in his possession, custody, or power
relating to matters in question in the action and their subsequent inspection by the
opposing party; before the introduction of the *Civil Procedure Rules in 1999, this
procedure was called discovery and inspection of documents. For the purposes of
disclosure, documents extend beyond paper to include anything upon which
information is capable of being recorded and retrieved (e.g. tapes, computer disks). In
*small claims track proceedings, the initial disclosure is by a list of documents that
the party intends to rely upon. In *fast track and *multi-track proceedings, the lists
must include all documents, both those that support the party making the list and
those adversely affecting that party, which they would prefer not to disclose.
Directions for disclosure generally take place at the *allocation stage or the *case
management conference and, unless the court directs or the parties agree otherwise,
there will normally be a direction for standard disclosure. This involves a
reasonable search by the parties to disclose documents on which that party intends
to rely, documents that may be adverse to their own case or another party's case,
documents that support another party's case, and documents that are required to be
disclosed by any relevant *Practice Direction. Some documents, although they must
be disclosed in the list, may be privileged and thus exempted from the subsequent
requirement to produce them for inspection (see PRIVILEGE). Once a party has served a
list of documents, the other party, together with any co-defendants, must be allowed
to inspect the (nonprivileged) documents referred to in the list within seven days of
serving on the first party a written notice requesting inspection. If copies are
needed, a further written notice must be served, with an undertaking to meet
reasonable copying charges. In the absence of disclosure and/or inspection, the court
has power to direct that general or specific disclosure and/or inspection be made.
See also FAILURE TO MAKE DISCLOSURE; NONDISCLOSURE.
disclosure of information 1. (in employment law) The communication by an
employer to employees and their trade-union representatives of information
relevant to *collective bargaining, proposed *redundancies, and the preservation of
employees' health and *safety at work. Under the Trade Union and Labour Relations
(Consolidation) Act 1992,employers must disclose the following information to the
representatives of a recognized *independent trade union. (1) Information that is
essential for the maintenance of good industrial relations or for the formulation of
wage and related demands. The duty to disclose this information only arises if the
union requests the information. When disclosure would damage national security or
harm the business (apart from its effect on collective bargaining), or the
information is sub judiceor relevant only to particular individuals, disclosure need
not be given. Guidelines on disclosure are published by *ACAS (see also CODE OF
PRACTICE). When an employer refuses to disclose essential information, the *Central
Arbitration Committee is empowered on the application of the trade union to make
awards of wages and conditions that are ultimately enforceable in the courts. (2)
Details of any redundancies proposed by the employer. He must give the union 90
days' notice when 100 or more employees are to be made redundant over a period of
90 days or less, and 30 days' notice when between 20 and 99 redundancy dismissals
are proposed within a 90-day period. The employer's notice must specify the reason
for his proposals, the numbers and job descriptions of employees involved, the way
in which employees have been selected for redundancy, and the procedures for their
dismissal. He must consider any representations made by the union, but need not

comply with its demands. If the employer fails to give the required notice, the
union can apply to an employment tribunal, which may make a *protective award
to the redundant employees. Under the Health and Safety at Work Act 1974,an
employer must give his employees at large such information, instruction, and
supervision as will ensure their health and safety so far as is reasonably practicable.
He must also give copies of any relevant documents to safety representatives
appointed by a recognized trade union. 2. (in criminal proceedings) For criminal
proceedings issued after 1 April 1997, the Criminal Procedure and Investigations Act
1996 sets out detailed rules on disclosures that the prosecution must make to the
defence. It must disclose anything that might undermine its case and anything that
might assist the defence, but the judgment of what undermines the prosecution or
assists the defence remains with the prosecutor. Thus the Act enables the
prosecution to decide what information they believe should be disclosed to the
defence and, in particular, whether to disclose information about any weakness in
their own investigation. 3. See BREACH OF CONFIDENCE.
disclosure of interest The duty of local authority members to disclose (at the
time or by prior notice to the authority) any pecuniary interest they or their
spouses have in any matter discussed at a local authority meeting. They must also
abstain from speaking and voting on it. Breach of the duty is a criminal offence.
discontinuance of action See NOTICE OF DISCONTINUANCE.
discovery n. (in international law) A method of acquiring territory in which good
title can be gained by claiming previously unclaimed land (terra nullius). In the early
days of European exploration it was held that the discovery of a previously
unknown land conferred absolute title to it upon the state by whose agents the
discovery was made. However, it has now long been established that the bare fact of
discovery is an insufficient ground of proprietary right.
discovery and inspection of documents See DISCLOSURE AND INSPECTION OF
DOCUMENTS.
discretion n. See JUDICIAL DISCRETION.
discretionary area of judgment A concept used in some cases in the domestic
courts when reviewing decisions of public authorities under the *European
Convention on Human Rights. The concept allows the courts to defer on democratic
grounds to the decisions of elected bodies. It follows from the fact that the concept
of the *margin of appreciation is not applicable in the domestic courts.
discretionary trust A trust under which the trustees are given discretion as to
who, within a class chosen by the settlor, should receive trust property and how
much each should receive. A settlor must give some indication as to the limits of the
class of people he intends to benefit, but the trustees do not need to have an
exhaustive list. A beneficiary under a discretionary trust has no enforceable right to
any part of the property or its income, although the trustees must consider his
claims together with those of the other beneficiaries. Such trusts are often very
difficult to distinguish from *trust powers and *powers of appointment held by
*trustees. Discretionary trusts have been invaluable in planning to mitigate liability
to tax, but recent fiscal legislation has reduced their advantages.
discrimination n. Treating one or more members of a specified group unfairly as
compared with other people. Discrimination may be illegal on the ground of sex,
sexual orientation, race, religion, disability, or nationality. See also DISABLED PERSON;
HUMAN RIGHTS ACT, POSITIVE DISCRIMINATION; RACIAL DISCRIMINATION; SEX DISCRIMINATION.
disentailing deed A deed used to bar (convert into a *fee simple) an *entailed
interest.
disentailment n. The barring of an *entailed interest.
dishonesty n. An element of liability in *theft, *abstracting electricity, *deception,
*handling stolen goods, and some related offences. To convict of such offences the
magistrates or jury must be satisfied that what was done was dishonest by the
standards of ordinary decent people and that the defendant realized this at the time.
dishonour n. (in commercial law) Failure to honour a bill of exchange. This may be
by nonacceptance, when a bill of exchange is presented for *acceptance and this is
refused or cannot be obtained (or when *presentment for acceptance is excused and
the bill is not accepted); or by nonpayment, when the bill is presented for payment
and payment is refused or cannot be obtained (or when presentment is excused and
the bill is overdue and unpaid). In both cases the holder has an immediate right of
recourse against the drawer and endorsers, but *foreign bills that have been
dishonoured must first be protested (see PROTEST). See alsoNOTICE OF DISHONOUR.
dismissal n. (in employment law) The termination of an employee's contract of
employment by the employer. An employer usually dismisses the employee by
giving him the required period of *notice, but dismissal without notice may be
justified in certain circumstances (e.g.for gross misconduct). An employer's failure
to renew a fixed-term employment contract also counts as dismissal. An employee
having the required length of service in the business (see CONTINUOUS EMPLOYMENT)
can apply to an employment tribunal if he is unfairly dismissed (see UNFAIR
DISMISSAL); the tribunal can order his *reinstatement or *re-engagement or can
award him *compensation. An employee dismissed for *redundancy after two years'
continuous employment in the business is entitled to a *redundancy payment under
the Employment Rights Act 1996.An employee dismissed without due notice or
before his fixed-term contract expires can also claim damages in the courts for
"wrongful dismissal. See alsoSTATEMENT OF REASONS FOR DISMISSAL.
dismissal of action The termination of a civil action in favour of the defendant.
An order for dismissal of action may be made at the conclusion of the trial, but is
usually made during the *interim (interlocutory) proceedings; for example, for
breach of some rule of procedure. Dismissal for want of prosecution occurs if the
claimant has been guilty of inordinate and inexcusable delay in circumstances in
which there is a risk that a fair trial is no longer possible or in which there has been
prejudice to the defendant. This type of dismissal is now rare under the heavily casemanaged
procedure prescribed by the Civil Procedure Rules.
dismissal procedures agreement A collective agreement containing provisions
relating to the dismissal of employees and intended to replace the statutory
provisions concerning *unfair dismissal. See also COLLECTIVE BARGAINING.
dismissal statement See STATEMENT OF REASONS FOR DISMISSAL.
disorderly house A *brothel or a place staging performances or exhibitions that
tend to corrupt or deprave and outrage common decency. It is a misdemeanour at
common law to keep a disorderly house.
disparagement of goods See SLANDER OF GOODS.
disposal of uncollected goods The sale by a bailee of goods in his possession or
under his control when the bailor is in breach of an obligation to collect them (see
BAILMENT). When the original contract does not require the bailor to collect the
goods, the bailee may, by giving notice, impose such an obligation. The relevant

statutory provisions in the Torts (Interference with Goods) Act 1977lay down
conditions relating to the giving of notice of the bailee's intention to sell, allowing
the bailor a reasonable opportunity to collect. The bailee should adopt the best
method of sale available and must account to the bailor for the proceeds of sale less
any sum due before he gave notice of intention to sell. There is provision for a
bailee to have a sale authorized by a court.
disposition n. 1. (in land law) The transfer of property by some act of its owner,
e.g. by sale, gift, will, or exchange. 2. (in the law of evidence) The tendency of a
party (especially the accused) to act or think in a particular way. Evidence of the
accused's disposition may generally not be given unless it is based upon admissible
evidence of character or admissible *similar-fact evidence. Evidence of *previous
convictions, other than those admitted as similar-fact evidence or under the
Criminal Evidence Acts, may tend to suggest to the *trier of fact that the accused
has a particular disposition, but is technically admissible only on the question of his
credibility. See also CHARACTER.
disqualification n. Depriving someone of a right because he has committed a
criminal offence or failed to comply with specified conditions. Disqualification is
usually imposed in relation to activities requiring a licence, and in particular for
traffic offences. In the case of many traffic offences, the court has discretion to
disqualify drivers for a stated period. There are also a number of traffic offences for
which disqualification for at least 12 months is compulsory (unless the offender can
show special reasons relating to the circumstances of the offence, not to his
personal circumstances). These offences are: (1) manslaughter; (2) *causing death by
dangerous driving (the minimum disqualification period here is two years); (3)
*causing death by careless driving; (4) *dangerous driving; (5) driving or attempting
to drive while unfit; (6)driving or attempting to drive with excess alcohol in the
breath, blood, or urine (see DRUNKEN DRIVlNG); (7) failure (in certain cases) to provide a
*specimen of breath, blood, or urine; (8) racing or speed trials on the highway.
If a person is convicted for a second time within ten years of a driving offence
involving drink or drugs, he must be disqualified for at least three years. The courts
may also disqualify anyone who commits an indictable offence of any kind involving
the use of a car. There is also a *totting-up system of endorsements, which can
result in disqualification. When someone is disqualified from driving, his licence will
usually also be endorsed with details of the offence (but not with any penalty points
for the purpose of totting up). The court may also make a *driving-test order. A
person who has been disqualified from driving may apply to have the
disqualification removed after two years or half the period of disqualification
(whichever is longer) or, when he has been disqualified for ten years or more, after
five years. See alsoDRIVING WHILE DISQUALIFIED.
dissolution n. 1. The legal termination of a marriage; for example, by a decree of
divorce, nullity, or presumption of death. 2. The dissolving of a *registered
company. This can be achieved by *winding-up or by the Registrar of Companies
striking it off the companies register as "defunct", because he has reasonable cause
to believe that the company is no longer carrying on business or has failed to file
accounts. The company can be restored to register subsequently on application by
petition and payment of the relevant fee. 3. See PARLIAMENT.
distance selling The sale of goods or services to a consumer in which the parties
do not meet, such as sale by mail order, telephone, digital TV, email, or the Internet.
The EU distance selling directive 976/7, implemented from October 2000 in the UK
by the Consumer Protection (Distance Selling) Regulations 2000, contains the
relevant law. In particular, consumers have rights to certain information about the
contract to be entered into and, in many cases, the right to cancel the contract
within a certain period, often seven working days from the day after receipt of the
goods. The right applies whether the goods are defective or not, but it does not
apply in certain important categories (such as auctions, betting, goods specifically
made for a consumer, and food that will deteriorate).
distinguishing a case The process of providing reasons for deciding a case under
consideration differently from a similar case referred to as a *precedent.
distortion of competition See ARTICLE 81.
distrain vb. To seize goods by way of *distress.
distress n. The seizure of goods as security for the performance of an obligation.
The two principal situations covered by the remedy of distress are (1) between
landlord and tenant when the rent is in arrears (see DISTRESS FOR RENT); and (2)when
goods are unlawfully on an occupier's land and have done or are doing damage (see
also DISTRESS DAMAGE FEASANT). In the latter case the occupier may detain the chattel
until compensation is paid for the damage.
distress damage feasant A right to detain animals found doing damage on
one's land as security for compensation. This right was abolished in England by the
Animals Act 1971and replaced by a statutory power to detain and ultimately to sell
the animals. The statutory power is subject to detailed requirements of giving
notice of detention and taking care of the animals.
distress for rent The seizing of a tenant's goods by the landlord to secure
payment of rent arrears. If the tenant fails to pay the rent arrears after distress has
been levied, the landlord may sell the goods and keep the amount due. In the case of
an *assured, *protected, or *statutory tenancy the landlord must obtain a court's
permission before levying distress. In 1986 the *Law Commission recommended
abolition of distress.
distressing letters See SENDING DISTRESSING LETTERS.
distribution n. 1. The process of handing over to the beneficiaries their
entitlements under a deceased person's will or on his intestacy. 2. Any payment
made by a company to a shareholder out of its distributable profits in cash or kind.
It does not include payments made in the course of a winding-up or repayments of
the capital originally subscribed or subsequently received by the company. See also
QUALIFYING DISTRIBUTION.
district n. A *Iocal government area in England (outside Greater London) consisting
of a division of a *county. The Local Government Act 1972 divided the 6
metropolitan and 39 nonmetropolitan counties in England into 36 metropolitan and
296 nonmetropolitan districts, respectively, and the 8 counties in Wales into 37
districts. The 6 metropolitan counties were abolished by the Local Government Act
1985and their functions transferred generally to the metropolitan district councils,
which became single-tier authorities. A district may be styled a borough by royal
charter granted on the petition of the *district council. The Welsh counties and
districts were abolished by the Local Government (Wales) Act 1994, being replaced on
1 April 1996 by 22 *unitary authorities (11 counties and 11 county boroughs). Unitary
authorities have been phased in in certain nonmetropolitan areas of England. See also
LOCAL GOVERNMENT COMMISSION FOR ENGLAND.
district auditors Civil servants who audited the accounts of all local authorities
except those who chose audit by approved commercial accountants. Originally

established under the Local Government Finance Act 1982and now consolidated
under the Audit Commission Act 1998, the Audit Commission was established to
take responsibility for local authority audits. District auditors are now officials of
the Audit Commission, but modern practice is to appoint independent approved
auditors from private firms of accountants. If any transaction involved unlawful
expenditure, they may obtain a court order for repayment by the persons responsible.
district council A *local authority whose area is a *district. A district council has
certain exclusive responsibilities (e.g.housing and local planning) and shares others
(e.g. recreation, town and country planning) with the council of the county to which
the district belongs. Some responsibilities (e.g. education and the personal social
services) belong to the district council if the district is metropolitan, but to the
county council if it is not. If a district has the style of borough, its council is called a
borough council and its chairman the mayor. The *Local Government Commission
for England began work in 1992 on a review of local authorities with a view to
establishing *unitary (single-tier) authorities. This has led to wider powers for
district councils and to some amalgamations and boundary revision.
District Health Authorities See NATIONAL HEALTH SERVICE.
district judge In the county courts, a judicial officer appointed by the Lord
Chancellor from solicitors of not less than seven years' standing. The district judge
supervises interim (interlocutory) and post-judgment stages of the case, but can also
try cases within a financial limit defined by statute. District judges were formerly
known as district registrars.
district judge (magistrates' court) A barrister or solicitor of not less than
seven years' standing, appointed by the Lord Chancellor to sit in a magistrates' court
on a full-time salaried basis: formerly (before August 2000) called a stipendiary
magistrate. Metropolitan district judges (magistrates' court) sit in magistrates'
courts for Inner London; other magistrates sit in large provincial centres. They have
power to perform any act and to exercise alone any jurisdiction that can be
performed or exercised by two justices of the peace, except the grant or transfer of
any licence. In other respects their powers are the same as other justices.
district registry An office of the High Court outside London, corresponding in
function to the *Central Office; however, only a limited number of district
registries exercise full powers in relation to proceedings in the *Chancery Division.
There are district registries in all major towns and cities in England and Wales.
distringas n. [Latin: that you distrain] A writ, now obsolete, commanding the
sheriff to distrain on a person for a certain purpose. In modern practice it has been
replaced by a *stop notice, sometimes called a notice in lieu of distringas, which
prevents dealings in securities that are subject to a *charging order.
disturbance n. 1. The infringement of a right, e.g. the obstruction of a right of
way. 2. The removal of a person's rights under a statutory power. For example,
compensation for disturbance may be payable to a landowner if his land is
compulsorily acquired by a local authority.
dividend n. A payment declared either by the directors of a company (interim
diVidend) or at the *annual general meeting (final dividend) as being payable to
shareholders from profits available for distribution. The payment is determined by
reference to the terms of the *share contract; it is an agreed fixed rate for
preference shares but will vary with the fortunes of the company for the holders of
ordinary shares.
divisible contract See PERFORMANCE OF CONTRACT.
division n. The taking of a vote on any matter in either House of Parliament.
Divisional Court A court consisting of not less than two judges of one of the
Divisions of the High Court. There are Divisional Courts of each of the Divisions.
Their function is to hear appeals in various matters prescribed by statute; they also
exercise the supervisory jurisdiction of the High Court over inferior courts. Most of
this jurisdiction is exercised by the Queen's Bench Division, which also hears
applications for *judicial review and appeals by *case stated from magistrates'
courts. The Chancery Division hears appeals in *bankruptcy matters and the Family
Division hears appeals from magistrates' courts in matters of family law.
Divisions of the High Court See CHANCERY DMSION; FAMILY DMSION; QUEEN'S BENCH
DIVISION.
divorce n. The legal termination of a marriage and the obligations created by
marriage, other than by a decree of nullity or presumption of death. The present
law on divorce dates from 1969.Before this, the law required proof of a
*matrimonial offence (adultery, cruelty, or desertion of three years). The current
law is contained in the Matrimonial Causes Act 1973,which provides that there is
only one ground for divorce, namely that the marriage has irretrievably broken
down. Proceedings are initiated by either spouse filing a petition for divorce,
stating the facts that have led to the marital breakdown and accompanied by a
*statement of arrangement for children, (Divorce proceedings may not be started
within the first year of a marriage.) Irretrievable breakdown of a marriage may only
be evidenced by one of the following five facts: (1) that the respondent has
committed *adultery and the petitioner finds it intolerable to live with the
respondent; (2) that the respondent has behaved in such a way that the petitioner
cannot reasonably be expected to live with the respondent (see UNREASONABLE
BEHAVIOUR); (3) that the respondent has deserted the petitioner for at least two years
(see DESERTION); (4) that the parties have lived apart for at least two years and the
respondent consents to a divorce; or (5) that the parties have lived apart for at least
five years. A respondent in a two-year separation case can apply for a postponement
of the divorce until the court is satisfied that the petitioner has made fair and
reasonable financial provision for the respondent. In a five-year separation case the
court has the power to bar divorce if it believes that grave financial or other
hardship would result from the dissolution and that it would be wrong to dissolve
the marriage; however, this power is rarely exercised.
Divorce is a two-stage process. The first stage is the granting of a *decree nisi; six
weeks later the petitioner may apply for a *decree absolute. The marriage is not
terminated until the decree absolute has been granted. Uncontested divorce cases are
heard under the *special procedure; the majority of cases are now dealt with in this
way. Divorce courts have wide powers under the Matrimonial Causes Act 1973 to
make orders in respect of children and to adjust financial and property rights. See
also CHILD PROTECTION IN DIVORCE; FINANCIAL PROVISION ORDER; MAINTENANCE AGREEMENT;
PROPERTY ADJUSTMENT ORDER.
Divorce Registry The section of the Family Division of the High Court with
jurisdiction over divorce proceedings.
DNA fingerprinting (genetic fingerprinting) A scientific technique in which an
individual's genetic material (DNA) is extracted from cells in a sample of tissue and
analysed to produce a graphic chart that is unique to that person. The technique
may be used as *evidence of identity in a criminal or civil case and has been notably

successful in both paternity and rape cases. DNA samples (e.g. of hair) may be taken
from suspects in accordance with the Police and Criminal Evidence Act 1984 and
after conviction for any offence punishable by imprisonment.
dock brief The obsolete procedure by which a defendant to a criminal charge
could, on indictment, select any barrister in the court who was not otherwise
engaged to represent him, on payment of a nominal fee.
doctrine of incorporation The doctrine that rules of international law
automatically form part of municipal law. It is opposed to the doctrine of
transformation, which states that international law only forms a part of municipal
law if accepted as such by statute or judicial decisions. It is not altogether clear
which view English law takes with respect to rules of customary *internationallaw.
As far as international treaties are concerned, the sovereign has the power to make
or ratify treaties so as to bind England under international law, but these treaties
have no effect in municipal law (with the exception of treaties governing the conduct
of war) until enacted by Parliament. However, judges will sometimes consider
provisions of international treaties (e.g. those relating to *human rights)in applying
municipal law. It has been said that directives of the European Commumty have the
force of law in member states, but practice varies widely (see COMMUNITY LEGISLATION).
document n. Something that records or transmits information, typically in
writing on paper. For the purposes of providing evidence to a court, documents
include books, maps, plans, drawings, photographs, graphs, discs, tapes, soundtracks,
and films (see also COMPUTER DOCUMENTS). Some legal documents are only valid if they
meet certain requirements (see DEED; WILL). Documents that are to be used in court
proceedings must be disclosed to the other party in a procedure known as
*disclosure and inspection of documents. In court, the original of a document must
be produced in most cases. In the case of a public document a particular kind of
copy must be produced; for example, a copy of a statute must be a government
printer's copy, and a copy of a byelaw must be certified by the clerk to the local
authority concerned. The authenticity of private documents must be proved by the
evidence of a witness. In practice this procedure is often avoided or simplified by
each party admitting the authenticity of particular documents prior to the court
hearing. See also PAROL EVIDENCE RULE; PRODUCTION OF DOCUMENTS.
documentary evidence Evidence in written rather than oral form. The
admissibility of a document depends upon (1) proof of the authenticity of the
document and (2) the purpose for which it is being offered in evidence. If it is being
offered to prove the truth of some matter stated in the document itself it will be
necessary to consider the application of the rule against hearsay (see HEARSAY
EVIDENCE) and its many exceptions.
document of title to goods A document, such as a *bill of lading, that
embodies the undertaking of the person holding the goods (the bailee) to hold the
goods for whoever is the current holder of the document and to deliver the goods to
that person in exchange for the document.
dogs pl. n. See CLASSIFICATION OF ANIMALS; DANGEROUS ANIMALS; GUARD DOG.
doli capax [Latin] Capable of wrong. A child under the age of 10 is deemed
incapable of committing any crime. Above the age of 10 children are doli capax and
are treated as adults, although they will usually be tried in special youth courts
(with the exception of homicide and certain other grave offences) and sUbjec~ to
special punishments. Formerly, there was a rebuttable presumption that a child
between the ages of 10 and 14 was also doli incapax (incapable of wrong). This
presumption has now been abolished. See JUVENILE OFFENDER.
domain name An Internet address, which may be protected under *trade mark
law.
domestic premises A private residence, used wholly for living accommodation,
together with its garden, yard, and attached buildings (such as garages and
outhouses).
domestic tribunal A body that exercises jurisdiction over the internal affairs of
a particular profession or association under powers conferred either by statute (e.g.
the disciplinary committee of the Law Society) or by contract between the members
(e.g. the disciplinary committee of a trade union). The decisions of these tribunals
are subject to judicial control under the doctrine of *ultra Vires and, if they are
statutory, when there is an *error of law on the face of the record. Compare
ADMINISTRATIVE TRIBUNAL.
domestic violence See BATTERED SPOUSE OR COHABITANT.
domicile n. The country that a person treats as his permanent home and to which
he has the closest legal attachment. A person cannot be without a domicile and
cannot have two domiciles at once. He acquires at birth a domicile of origin.
Normally, if his father is then alive, he takes his father's domicile; if not, his
mother's. He retains his domicile of origin until (if ever) he acquires a domicile of
choice in its place. A domicile of choice is acquired by making a home in a country
with the intention that it should be a permanent base. It may be acquired at any
time after a person becomes 16 and can be replaced at will by a new domicile of
choice. See LEX DOMICILII.
dominant tenement Land the ownership of which entitles the owner to rights
comprising a legal or equitable interest (such as an easement or profit aprendre) in
other land, called the servient tenement.
Dominions pl. n. Formerly, the group of UKcolonies that, by virtue of the Statute
of Westminster 1931, were the first to become fully independent. Certain of these,
together with many other former colonies, are now collectively known as the
*Commonwealth.
donatio mortis causa [Latin; a gift on account of death] An immediate gift of
real or personal property made by a donor who expects to die in the near future.
The gift must be made to take complete effect only on the death of the donor and
there must be delivery of the property or something amounting to delivery. The
latter requirement has been held to be satisfied by a transfer of the means or part
of the means of obtaining the property or a transfer of the indications of title to
the property (e.g. title deeds). The donor must make the transfer with the intention
of relinquishing ownership of the property but may withdraw from that intention
at any time prior to death and thereby defeat the gift. If the donor does not die the
gift will be revoked.
double criminality The rule in *extradition procedures that, in order for the
request to be complied with, the crime for which extradition is sought must be a
crime in both the requesting state and the state to which the fugitive has fled. See
also EXTRADITION TREATY; SPECIALITY.
double portions pl. n. See RULE AGAINST DOUBLE PORTIONS.
double probate A second grant of *probate in respect of the same estate in

favour of an executor who was not a party to the first grant. This occurs when the
executor has not renounced his executorship and has a power to apply for a grant
of probate at a later time than the original grant.
DPP See DIRECTOR OF PUBLIC PROSECUTIONS.
draft n. 1. An initial unsigned agreement, treaty, or piece of legislat~on, which is
not yet in force. 2. An order for the payment of money, e.g. a banker s draft.
Drago doctrine The doctrine that states cannot employ force in order to recover
debts incurred by other states. Thus the fact that a state ~as defaulted on Its debt to
aliens or to another state does not legalize the use of military intervention by these
creditors in order to reclaim monies they are owed.
driftway n. A *highway over which there exists a right to drive cattle,
accompanied by persons either on foot or mounted.
driver n. For purposes of the Road Traffic Acts, anyone who uses the o~di.nary
controls of a vehicle (i.e. steering and brakes) to direct its movement. ThIS includes
anyone steering a car when the engine is off or when being towed by another vehicle.
driving licence An official authority to drive a motor vehicle, ~ranted upon
passing a driving test. A renewable provisional driving lice~c~, ValI~ for 12 months,
may be granted to learner drivers, but the holder of a provIsIOn~1 .lIcence may not
drive a motor car on a public road unless accompamed by a qualified dnver and
unless he displays 'I.' plates on the front and rear of the vehicle.
A full licence may be obtained by anyone who has passed the Department of
Transport driving test, which is carried out by.the Driving Standards Agency (~n
executive agency) and is now preceded by a wntten test, or held a full IIcen~e Issued
in Great Britain, Northern Ireland, the Isle of Man, or the Channel Islands WIthin ten
years before the date on which the licence is to come into force. It IS normally
granted until the applicant's 70~h birthday. ~fter the age of 7?' licences are granted
for three-year periods. The applicant must disclose anydisability and may be asked
to produce his medical records or have a medical exammatIOn.. .
An applicant will not normally be granted a licence if he is suffering from certain
types of disability, including epilepsy, sudden attacks of disabling giddiness or
fainting, or a severe mental illness or defect. In the case of epilepsy, however, he
may still be granted a licence if he can show that he has been free of all attacks for
at least two years or that he has only had attacks during sleep .for more. than t~ree
years. If an applicant for a licence has diabetes or a heart condition, IS fitted WIth a
heart pacemaker, has been treated within t.he p~evious three years for drug .
addiction, or is suffering from any other disability (e.g.loss or ~eakness of a limb)
that would affect his driving, the grant of a licence is usually discretionary. ..
It is an offence to knowingly make a false statement in order to ob,tam a d~Ivmg
licence, not to disclose any current *endorsements, or not to sI.gn on~ s name m ink
on the licence. A police officer may require a driver to show hIS driving licence or
produce it personally at a specified police station within five ~ays. He may also ask
to see the licence of someone whom he believes was either driving a vehicle involved
in an accident or had committed a motoring offence. Failure to produce one's
licence in these circumstances carries a fine. See alsoDRIVING WITHOUT ALICENCE.
Under the Road Traffic (New Drivers) Act 1995, with effect from 1 June 1997, a
driver who is convicted of an endorsable offence and who has accumu~ated 6 or .
more penalty points (see TOTTING UP) within two years of passing a driving test WIll
have his licence revoked and must retake the test.
driving-test order An order by the court that a person who has been convicted
of an offence that is subject to *disqualification should be disqualified from driving
until he passes a test showing that he is fit to drive. The order should only be made
where there is reason to suspect that the person is not fit to drive; for example,
because he is very old or unwell, and has shown evidence of incompetence in his
driving. It is not meant as a punishment but to protect the public.
driving while disqualified An offence committed by the *driver of a motor
vehicle on a public road when he is disqualified from driving (see DISQUALIFICATION).
This is an endorsable offence (carrying 7 penalty points under the <totting-up
system) and the courts have discretion to impose a further period of disqualification.
driving while unfit See DRUNKEN DRMNG.
driving without a licence An offence committed by the *driver of a motor
vehicle on a public road without a *driving licence or provisional driving licence
valid for the vehicle he is driving. If the circumstances are such that he would in
fact have been refused a licence had he applied for one, or if he fails to comply with
the conditions applicable to a provisional licence, his licence (if he subsequently
obtains one) will usually be endorsed (the endorsement carries 2 penalty points
under the *totting-up system) and the court has discretion to order disqualification
from driving (if he applies for a licence during the disqualification period).
Otherwise this is not an endorsable offence.
driving without insurance An offence committed by a *driver who uses or
allows someone else to use a motor vehicle on a public road without valid *thirdparty
insurance. The offence is one of *strict liability (except when an employee is
using his employer's vehicle) and applies even if, for example, the insurance
company who issued the insurance suddenly goes into liquidation. The offence is
punishable by a fine, endorsement (it carries 6-8 penalty points under the *tottingup
system), and disqualification at the discretion of the court.
drugs pl. n. See CONTROLLED DRUGS.
drunken driving Driving (see DRIVER) while affected by alcohol. Drunken driving
covers two separate legal offences.
(1) Driving while unfit. Ir is an offence to drive or attempt to drive a motor vehicle
on a road or public place when one's ability to drive properly is impaired by alcohol
or drugs. Drugs include medicines (such as insulin for diabetics), and the offence
appears to be one of *strict liability. It is also an offence to be in charge of a motor
vehicle on a road or in a public place while unfit to drive because of drink or drugs,
but the defendant will be acquitted if he can show that there was no likelihood of
his driving the vehicle in this condition (for example, if he arranged for someone
else to drive him if he became drunk). A police officer can arrest without a warrant
anyone whom he reasonably suspects is committing or has been committing either
of these offences; he may also (except in Scotland) enter any place where he believes
the suspect to be, using force if necessary.
(2) Driving over the prescribed limit. It is an offence to drive or attempt to drive a
motor vehicle on a road or in a public place if the level of alcohol in one's breath,
blood, or urine is above the specified prescribed limit (35 micrograms of alcohol in
100 millilitres (ml) of breath; 80 milligrams (mg) of alcohol in 100 ml of blood; 107
mg of alcohol in 100 ml of urine - roughly equivalent to 2Yz pints of beer, or 5
glasses of wine, or 5 single whiskys). It is also an offence to be in charge of a motor
vehicle on a road or in a public place when the proportion of alcohol is more than
the prescribed limit, subject to the same defence as in being in charge while unfit.
Both these offences are offences of strict liability: it is therefore not a defence to

show that one did not know that the drink was alcoholic or that it exceeded the
prescribed limit. The normal way in which offences involving excess alcoholle~els
are proved is by taking a *specimen of breath for laboratory analysis, but this IS not
necessary if the offence can be proved in some other way (for example, by evidence
of how much a person drank before driving). There is no power to arrest a person
on suspicion of committing or having committed an offence of this sort before
administering a preliminary *breath test.
Most charges involving drinking and driving are brought under the offence of
driving over the prescribed limit rather than driving while unfit, but the powers to
administer a breath test or to take a specimen of breath for analysis apply to both
offences. The penalties for either of these offences are a fine and/or imprisonment,
*endorsement, and obligatory *disqualification (in cases of driving or attemptmg to
drive) or discretionary disqualification (in cases of being in charge). Under the
*totting-up system, the discretionary disqualification offences carry 10 penalty .
points and the compulsory disqualification offences carry .3-11 I:enal~y points (which
are only imposed if there are special reasons preventmg disqualification). See also
CAUSING DEATH BY CARELESS DRIVING; OFFENCES RELATING TO ROAD TRAFFIC.
drunkenness n. *Intoxication resulting from imbibing an excess of alcohol. It is
an offence to be drunk in a public place.
dualism n. See MONISM.
dubitante adj. [Latin] Doubting. The term is used in law reports in relatio~ to a
judge who is doubtful about a legal proposition but does not wish to declare It wrong.
duces tecum [Latin: you shall bring with you] See WITNESS SUMMONS.
due diligence The legal obligation of states to exercise all reasonable efforts to
protect *aliens and their property in the host state. Such aliens must have been
permitted entry into the host state. If there is a failure or lack o~ due dl~lgence, the
state in default is held responsible and liable to make compensation for injury to
the alien or to the alien's estate. See STATE RESPONSIBILITY.
dum casta vixerit [Latin] As long as she lives chastely. A clause sometimes
inserted in a separation agreement, freeing the husband from the terms of the
agreement (e.g.maintenance obligations) if his wife commits adultery.
dumping n. The sale of goods abroad at prices below their normal value. Within
the EU dumping regulations prohibit the sale of goods at below no.rmal value.
Countervailing (or antidumping) duties may be ordered on certain Imported
goods to prevent dumping.
dum sola [Latin] While single: the status of a single woman or widow.
duplex querela [Latin: double complaint] The procedure in ecclesiastical law for
challenging a bishop's refusal to admit a presentee to a benefice.
durante absentia [Latin: during the absence of] Describing a grant of *Ietters of
administration of a deceased's estate to some person interested in the estate while
the personal representative is abroad. See also LIMITED ADMINISTRATION.
duress n. Pressure, especially actual or threatened physical force, put on a person
to act in a particular way. Acts carried out under duress usually have no legal effect;
for example, a contract obtained by duress is voidable (see alsoECONOMIC DURESS;
UNDUE INFLUENCE). In criminal law, when the defendant's power to resist IS destroyed
by a threat of death or serious personal injury, he will have a defence to a criminal
charge, although he has the *mens rea for the crime and knows that what he IS
doing is wrong. Duress is not a defence to a charge of murder as a principal (i.e. to
someone who actually carries out the murder himself), although it is still a defence
to someone charged with aiding and abetting murder. The threat need not be
immediate; it is sufficient that it is effective; for example a threat in court to kill a
witness may constitute duress and thus be a defence to a charge of perjury, even
though it cannot be carried out in the courtroom. However, the defence is
unavailable to someone who failed to take available alternative action to avoid the
threat. See also COERCION; NECESSITY; SELF-DEFENCE.
during Her (or His) Majesty's pleasure A phrase colloquially used to describe
the period of detention imposed upon a defendant found not guilty by reason of
*insanity. Such a person was consequently known as a pleasure patient. The
defendant must still be admitted to a hospital specified by the Home Secretary
(either a local psychiatric hospital or a *special hospital) and remain there until
otherwise directed, but the phrase "during Her Majesty's pleasure" is no longer used
in the statute.
Dutch courage See INTOXICATION.
duty n. 1. A legal requirement to carry out or refrain from carrying out any act.
Compare POWER. 2. A payment levied by the state, particularly on certain goods and
transactions. Examples are *customs duty, *excise duty, and *stamp duty.
duty of care The legal obligation to take reasonable care to avoid causing damage.
There is no liability in tort for *negligence unless the act or omission that causes
damage is a breach of a duty of care owed to the claimant. There is a duty to take
care in most situations in which one can reasonably foresee that one's actions may
cause physical damage to the person or property of others. The duty is owed to
those people likely to be affected by the conduct in question. Thus doctors have a
duty of care to their patients and users of the highway have a duty of care to all
other road users. But there is no general duty to prevent other persons causing
damage or to rescue persons or property in danger, liability for careless words is
more limited than liability for careless acts, and there is no general duty not to
cause economic loss or psychiatric illness. In these and some other situations, the
existence and scope of the duty of care depends on all the circumstances of the
relationship between the parties. Most duties of care are the result of judicial
decisions, but some are contained in statutes, such as the Occupiers' Liability Act
1957 (see OCCUPIER'S LIABILITY).
duty solicitors *Solicitors who attend by rota at magistrates' courts in order to
assist defendants who are otherwise unrepresented.
duty to convert (in equity) See CONVERSION.
dying declaration An oral or written statement by a person on the point of
death concerning the cause of his death. A dying declaration is admissible at a trial
for the murder or the manslaughter of the declarant as an exception to the rule
against *hearsay evidence, provided that he would have been a competent witness
had he survived (see COMPETENCE). Case law requires that the person making the
dying declaration must have had a "settled, hopeless expectation of death".