E-J
E
easement n. A right enjoyed by the owner of land (the dominant
tenement) to a
benefit from other land (the servient tenement). An easement
benefits and binds
the land itself and therefore continues despite any change of
ownership of either
dominant or servient tenement, although it will be extinguished if
the two
tenements come into common ownership (compare QUASI-EASEMENT). It
may be
acquired by statute (for example, local Acts of Parliament),
expressly granted (e.g.by
*deed giving a right of way), arise by implication (e.g. an
easement of support from
an adjoining building), or be acquired by *prescription. (See also
PROFIT A PRENDRE.) An
easement can exist as either a legal or an equitable interest in
land. Only easements
created by statute, deed, or prescription and held on terms
equivalent to a *fee
simple absolute in possession or *term of years absolute qualify as
legal easements
and are binding on all who acquire the unregistered servient
tenement or any
interest in it Legal easements over registered land should be
registered but in
practice will usually be binding without registration. All others
are equitable
easements and must generally be registered to be enforceable
against a third party
who acquires the servient tenement for value in money or money's
worth. Under
section 62 of the Law of Property Act 1925,when land is conveyed,
all easements
appertaining to it automatically pass with it without the necessity
for express words
in the conveyance. See also REGISTRATION OF ENCUMBRANCES.
easement of necessity An *easement arising by implication in favour
either of
a grantee of land over land retained by the grantor or, more
rarely, of a grantor of
land over land that he has granted, when access to any land granted
or retained
would otherwise be excluded by the operation of the grant. For
example, if A, who
owns a plot of land adjoining a highway, sells off the part of the
plot immediately
adjacent to the highway but retains the rest, an easement of
necessity over the sold
plot is implied if A has no other access to the plot he has
retained. If there is any
other right of access to the retained plot, there can be no
easement of necessity, no
matter how inconvenient that access proves to be. Any claimant must
be able to
prove that the land retained would be inoperative without the
easement. The
easement may be extinguished if alternative access becomes
possible. The
implication of necessity can be excluded by the terms of the grant;
for example,
when the grantor particularly wishes the land retained by him to
remain
inaccessible.
EAT See EMPLOYMENT APPEAL TRIBUNAL.
EBRD See EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT.
EC See EUROPEAN COMMUNITY.
ecclesiastical courts Courts responsible for the administration of
the
ecclesiastical law of the Church of England. They comprise
consistory courts, which
are the courts of each diocese, for enforcing discipline among the
clergy; the *Court
of Arches and the Chancery Court of York, which hear appeals from
consistory
courts in their respective provinces; the *Judicial Committee of
the Privy Council,
which hears appeals from the provincial courts in matters not
involving doctrine,
ritual, or ceremonial; and the *Court of Ecclesiastical Causes
Reserved.
ecclesiastical law See CANON LAW.
ECJ See EUROPEAN COURT OF JUSTICE.
ecolabel n. A label with the EU logo that is used on products that
comply with
environmental requirements in particular directives.
economic duress Historically within contract law, a claim that a
contract was
voidable for duress could only be successful if a threat to the
person (i.e. physical
duress) had induced the contract. Now, however, a contract may be
voidable for
economic duress. The essential elements are that an illegitimate
threat is made (e.g.
to breach an existing contract or to commit a tort) and that the
injured party has
no practical alternative to agreeing to the terms set out by the
person making the
threat. See alsoVOIDABLE CONTRACT.
e-conveyancing n. See ELECTRONIC CONVEYANCING.
ECSC See EUROPEAN COAL AND STEEL COMMUNITY.
ECU (European Currency Unit) n. A currency medium and unit of
account of the
"European Monetary System, which was replaced by the euro in
1999(see EUROPEAN
MONETARY UNION). Its value was calculated from the values of the
currencies of
individual member states of the European Union, The ECUwas not a
unit of
currency as such, although some prices were quoted in ECUby the
European
Commission and other bodies. The ECUwas used in the *Exchange Rate
Mechanism,
and some bonds were issued by member states in ECUs.
education authorities The authorities responsible for the statutory
system of
education introduced by the Education Act 1944, i.e. the Secretary
of State for
Education and Skills and local education authorities. In England
and Wales the latter
are county councils or unitary councils and, within *Greater
London, the London
borough councils. The Education Reform Act 1988 introduced measures
under which
schools could, with the approval of the Secretary of State, opt out
of local education
authority control to become grant-maintained schools, and many have
done so. A
new framework for schools has been introduced by the School
Standards and
Framework Act 1998.
EEA See EUROPEAN ECONOMIC AREA.
EEC (European Economic Community) See EUROPEAN COMMUNITY.
EEZ See EXCLUSIVE ECONOMIC ZONE.
effective date of termination The date on which a contract of
employment
comes to an end, i.e. the date of expiry of any *notice given or of
a fixed-term
contract or the date of the employee's dismissal or resignation if
no notice is given.
However, an employee dismissed without the statutory minimum notice
is treated
as having worked for that period after his dismissal for the
purpose of calculating
whether or not his length of service (see CONTINUOUS EMPLOYMENT)
qualifies him to
apply to an employment tribunal in respect of redundancy, unfair
dismissal, etc.
effective remedy A right contained in Article 13 of the European
Convention on
Human Rights but not incorporated directly by the *Human Rights Act
1998. The
Article stipulates that the state must provide systems that give
effective remedies
for violations and arguable claims of violations of the other
rights contained in the
Convention. This article requires that such systems can both
determine such claims
and provide for redress for those violations that are
substantiated.
EFTA See EUROPEAN FREE TRADE ASSOCIATION.
eggshell skull rule The rule that a *tortfeasor cannot complain if
the injuries he
has caused turn out to be more serious than expected because his
victim suffered
from a pre-existing weakness, such as an unusually thin skull. A
tortfeasor must
take his victim as he finds him.
EIS See ENTERPRISE INVESTMENT SCHEME.
ejusdem generis rule See INTERPRETATION OF STATUTES.
Elder Brethren See ASSESSOR.
election n. 1. The process of choosing by vote a member of a
representative body,
such as the House of Commons or a local authority. For the House of
Commons, a
general election involving all UK constituencies is held when the
sovereign
dissolves Parliament and summons a new one; a by-election is held
if a particular
constituency becomes vacant (e.g.on the death of the sitting
member) during the
life of a Parliament. Local government elections (apart from those
to fill casual
vacancies) are held at statutory intervals (see LOCAL AUTHORITY).
The conduct of
elections is regulated by the Representation of the People Acts
1983 and 1985. The
Representation of the People Act 2000 made some changes to
electoral registration
and absent voting and allowed for experiments involving innovative
electoral
procedures. Other changes make it easier for the disabled to vote
and created an
offence of supplying false particulars on a nomination form. Voting
is secret and
normally in person, but any elector can obtain a postal vote
without having to
specify a reason. The only requirement is that the applicant is
included in the
Register of Electors. Applications for a particular election must
be received by the
Electoral Registration Officer six working days before an election.
Different rules
apply in Northern Ireland. Any dispute as to the validity of the
election of a
Member of Parliament or a local government councillor is raised on
an election
petition, which is decided by an election court consisting of two
High Court
judges. 2. A doctrine of equity, commonly applied to wills, based
on the principle
that a person must accept both benefits and burdens under one
document. or reject
both. It arises when there are two gifts in one document, one of
A's (the creator's)
property to Band one of B's property to C. Bmust choose whether to
accept the gift
of A's property to him and transfer his own property to C. or to
reject both gifts.
election court See ELECTION.
election petition See ELECTION.
elective resolution A decision by all the members of a *private
company (at a
meeting called on at least 21 days' notice) to dispense with
complying with specified
provisions of the Companies Act 1985,for example holding the annual
general
meeting and laying the accounts before it or the annual appointment
of auditors.
elector n. 1. A person entitled to vote at an *election. For
parliamentary and local
government elections, a register of electors is maintained. A new
register comes
into force on 16 February each year and governs elections held
during the following
12 months. It records electors by reference to their residence on
the preceding 10
October (the qualifying date) and includes people who will become
18 (and so
entitled to vote) in the year following its publication. Inclusion
on the register is a
requirement for voting. A person on it cannot be prevented from
voting but incurs
penalties if he votes without in fact being entitled to do so. See
FRANCHISE. 2. (in
equity) One who makes an election.
electricity n. See ABSTRACTING ELECTRICITY.
electromagnetic compatibility The capability of electromagnetic
products,
such as computer equipment, machines, etc, to be used together
without special
modification. The EU electromagnetic compatibility directive, which
is now part of
English law, sets out the minimum requirements to ensure that the
use of
computers, etc., does not cause interference with other
electromagnetic products. See
alsoCEo
electronic conveyancing (e-conveyancing) The transfer of land by
electronic
means instead of by paper documents. The government has announced
its intention
to introduce such a method of transferring land, and the
Electronic
Communications Act 2000 paves the way for such transfers. It is
already possible to
discharge mortgages of registered land electronically. *Land
registration (which is
already computerized) has made electronic conveyancing and
registration possible.
electronic data interchange (ED!) The use of electronic
data-transmission
networks to exchange information. Significant commercial contracts
set out the
terms on which such information is supplied, and much commerce is
now done on
this basis (known as paperless trading), either through a closed
network called an
intranet, to which only members of a limited group have access, or
through an open
network, i.e. the Internet. Some international legal rules have
been agreed in this
field, including the Uniform Rules of Conduct for Interchange of
Trade Data by
Teletransmission (see UNCID).
electronic signature An item of data incorporated into or
associated with an
electronically transmitted document or contract for use in
establishing the
authenticity of the communication. Under the Electronic
Communications Act 2000
electronic signatures are recognized in legal proceedings and as
having legal effect.
An electronic signature can be purchased from such bodies as the
Post Office and
Chamber of Commerce on production of relevant identification
documents. See also
DIGITAL SIGNATURE.
electronic surveillance The use of *telephone tapping, hidden
microphones
(bugging) or cameras, or similar means to obtain evidence. The
police and other state
bodies may be permitted to use such devices provided that the
Secretary of State has
issued a warrant under the Interception of Communications Act 1985.
Evidence
obtained by electronic surveillance can usually be used in court
proceedings; it has
been compared with the evidence of an eavesdropper. The Police Act
1997 provides
for a system in which independent commissioners of police oversee
the
arrangements and investigate complaints in relation to intrusive
*surveillance
operations.
eleemosynary corporation [from Latin: eleemosyna, alms] Originally,
a lay
(rather than an ecclesiastical) charity. An eleemosynary
corporation is now a charity
directed to the relief of individual distress.
embargo n. The detention of ships in port: a type of *reprisal.
Ships of a
delinquent state may be prevented from leaving the ports of an
injured state in
order to compel the delinquent state to make reparation for the
wrong done. See also
ANGARY.
embezzlement n. The dishonest appropriation by an employee of any
money or
property given to him on behalf of his employer. Before 1969 there
was a special
offence of embezzlement; it is now, however, classified as a form
of *theft.
emblements pl. n. Cultivated crops that are normally harvested
annually. A tenant
for life of settled land may continue to harvest crops he has sown
if his interest in
the land ceases for any reason other than by his own act. For
example, he may
continue to harvest his crops if his interest ends on the death of
another person but
not if his interest was for life until remarriage and he
remarries. When he dies, his
personal representatives are entitled to reap for the benefit of
his estate any crops
sown by him before his death.
emergency powers Powers conferred by government regulations durin?
a state
of emergency. The existence of such a state is declared by royal
proclamation
under the Emergency Powers Acts 1920 and 1964.A proclamation, which
lasts for
one month but is renewable, may be issued whenever there is a
threat (e.g. a major
strike or natural disaster) to the country's essentials of life.
The regulations made
may confer on government departments, the armed forces, and others
all powers
necessary to secure the supply and distribution of necessities and
the maintenance
of public peace and safety.
emergency protection order A court order under the Children Act
1989 that
gives a local authority or the NSPCC the right to remove a child to
suitable
accommodation for a maximum of eight days (with a right to apply
for a seven-day
extension) if there is reasonable cause to believe a child is
suffering or is likely to
suffer significant harm unless the order is made. The order gives
the applicant
*parental responsibility in so far as it promotes the *welfare of
the child. In some
cases it may be preferable to remove the abuser from the home
rather than ~he
child. The Children Act 1989 provides for the inclusion of an
*exclusIOn reqUIrement
in an emergency protection order. The effect of this is to exclude
the abuser from
the family home. The order may only be made when another person in
the same
household as the child consents to the exclusion order and is able
and willing to care
properly for the child. See also SECTION 47 ENQUIRY.
eminent domain See EXPROPRIATION.
emoluments pl. n. A person's earnings, including salaries, fees,
wages, profits, and
benefits in kind (e.g. company cars). They are subject to *income
tax under Schedule
E in the Income and Corporation Taxes Act 1988.
empanel vb. To swear a jury to try an issue.
employee n. A person who works under the direction and control of
another (the
*employer) in return for a wage or salary. See also CHILD EMPLOYEE;
CONTRACT OF
EMPLOYMENT; EMPLOYER AND EMPLOYEE.
employees' inventions Products, equipment, or techniques invented
by an
employee in the course of his employment. Under the Patents Act
1977 these belong
to the employer if the invention was made in the course of the
employee's normal
duties and these were likely to lead to an invention or in the
course of any duties
involving a special obligation to further the employer's business.
These provisions
cannot be changed in a contract of employment. The employee may,
however, be
awarded compensation by the Comptroller General of Patents, Designs
and .
Trademarks if the invention is of outstanding benefit to the
employer (this VIrtually
never applies). Copyright works also belong to the employer if the
employee
produces them in the course of his employment.
employees' share scheme A method of sharing company profits
with
employees either by distributing shares already paid up by the
company, sither to
the employees themselves or to trustees for them, or by conferring
upon them
options to acquire shares on favourable terms. Certain schemes
carry tax
concessions.
employer n. A person who engages another (the *employee) to work
under his
direction and control in return for a wage or salary (see also
CONTRACT OF
EMPLOYMENT). Companies are associatedemployers if one of them
controls the
other or others or if they are themselves controlled by the same
company.
employer and employee The relationship between the parties to a
*contract of
employment. (It was formerly known as master and servant.) The
relationship is
governed by the express and implied terms of the contract and by
statutory rules
that the contract cannot exclude. These relate, for example, to
*unfair dismissal,
*redundancy, *maternity rights, *trade union membership and
activity, and health
and *safety at work. On the principle of *vicarious liability,
third parties may hold
an employer responsible for certain wrongs committed by his
employee in the
course of his employment.
employers' association An organization whose members are wholly or
mainly
employers and whose principal purposes include the regulation of
relations between
employers and workers or trade unions. Under the Trade Union and
Labour
Relations (Consolidation) Act 1992,employers' associations have
similar legal status to
*trade unions, being immune from certain civil legal proceedings in
tort relating to
interference with contracts and restraint of trade.
employer's liability The liability of an employer for breach of his
duty to
provide for his employees competent fellow-workers, safe equipment,
a safe place of
work, and a safe system of work, including adequate supervision.
Liability can be in
tort for damages for *negligence and for *breach of statutory duty
under statutes
providing for *safety at work; there are also criminal penalties.
See DANGEROUS
MACHINERY; DEFECTIVE EQUIPMENT.
Employment Appeal Tribunal (EAT) A statutory body established to
hear
appeals from *employment tribunals. The EATconsists of a High Court
judge as
chairman and two or four lay members who have special knowledge or
experience
as employers' or employees' representatives. They can only hear
appeals on questions
of law, issues of fact being in the exclusive jurisdiction of
employment tribunals.
The EATmay allow or dismiss an appeal or, in certain circumstances,
remit the case
to the employment tribunal for further hearing. It does not
generally order either
party to pay the other's costs, except when the appeal is
frivolous, vexatious, or
improperly conducted. The parties may be represented at the hearing
by anyone
they choose, who need not have legal qualifications. The EATcannot
enforce its own
decisions; thus, for example, when an employer fails to comply with
an order for
compensation that the EAT upholds, separate application must be
made to the court
to enforce the order. A party may appeal to the Court of Appeal
from a decision of
the EAT, but only with the leave of the EATor the Court of Appeal.
The
Employment Tribunals Act 1996 (effective from 22 August 1996) sets
out the
jurisdiction of the EAT.
employment tribunal (ET) Any of the bodies established under the
employment
protection legislation, consolidated by the Employment (formerly
Industrial)
Tribunals Act 1996, to hear and rule on certain disputes between
employers and
employees or trade unions relating to statutory terms and
conditions of
employment. (Originally called industrial tribunals, they (and the
1996 Act) were
renamed under the Employment Rights (Dispute Resolution) Act 1998.)
The tribunals
hear, inter alia, complaints concerning *unfair dismissal,
*redundancy, *equal pay,
*maternity rights, and complaints of unlawful deductions from wages
under the
Employment Rights Act 1996 (Part II). Tribunals sit in local
centres in public and
usually consist of a legally qualified chairman and two independent
laymen,
although chairmen are permitted to sit alone, without lay members,
for certain
types of case (e.g. deductions from wages claims), cases where the
parties agree in
writing, and uncontested cases. An ET differs from a civil C?urt
in that it cannot .
enforce its own awards (this must be done by separate application
to a court) and It
can conduct its proceedings informally. Strict rules of evidence
need not apply and
the parties can present their own case or be represented by an~one.
they WIS~ at
their own expense. The tribunal has wide powers to declare a
dismissal unfair and to
award *compensation, which is the usual remedy, but they also have
power to order
the *reinstatement or *re-engagement of a dismissed employee.
In cases involving allegations of sexual misconduct employment
t.ribuna:s are
empowered to make a restricted reportin~ order, .which preven~s
Ide~~IficatlOn of
anyone pursuing or affected by the allegations until the t~Ibunal s
decI~lOn IS
promulgated. There is also a power to remove identifying
information in such cases
from the decisions and other public documents. .'
Before conducting a full hearing of the case, the tribunal may
consider (on either
party's application or on its own initiative) what the parties have
said in th~ wntten
complaint to the tribunal (the originating application) and the
answer to It (the
notice of appearance) in a prehearing assessment. If this
assessment suggests
that either party is unlikely to succeed, the tribunal may warn
tha.t party that he
may be ordered to pay the other's costs if he in:ists on pursumg
hIS case to a full
hearing. When a full hearing takes place, the tnbunal WIll not
award costs to the.
successful party unless the other has been warned of this
likelih~od at a prehearmg
assessment or has acted vexatiously, frivolously, or unreasonably
in brmgmg or
defending the proceedings. An appeal on a point of law arising from
any decision on
an ET may be heard by the *Employment Appeal Tribunal.
EMS See EUROPEAN MONETARY SYSTEM.
EMU See EUROPEAN MONETARY UNION.
EN See EURO NORM.
enabling statute A statute that confers rights or powers upon any
body or
person.
enacting words The introductory words in an *Act of Parliament that
give it the
force of law. They follow immediately after the long title and date
of royal assent,
unless preceded by a preamble, and normally run: "Be It Enacted by
the Qu:,en's
most Excellent Majesty, by and with the advice and consent of the
Lords Spiritual
and Temporal, and Commons, in this present Parliament assembled,
and by the
authority of the same, as follows ...".A special formula is used in
cases when the
Parliament Acts 1911 and 1949 apply (see ACT OF PARLIAMENT).
enactment n. An Act of Parliament, a Measure of the General Synod
(see CHURCH OF
ENGLAND), an order, or any other piece of subordinate legislation,
or any particular
provision contained in any of these (e.g.a particular section or
article). Delegated
legislation is not an enactment for the purposes of the Local
Government Act 1992.
encroachment n. The act of extending one's own rights at the
expense of others,
particularly by taking in adjoining land to make it appear ?art of
one's own. If the
encroachment is acquiesced in for 12 years, the land taken IS
considered to be
annexed to the land of the person who made the encroachment.
encumbrance (incumbrance) n. A right or interest in land owned by
someone
other than the owner of the land itself; examples include
easements, leases,
mortgages, and restrictive covenants. When title to the land is
.registered (see LAND
REGISTRATION), encumbrances other than minor and overndmg mterests
are r~corded
in the Charges Register. Certain encumbrances affecting
unregistered land Will only
be enforceable against third parties if registered at the Land
Charges Registry. See
alsoREGISTRATION OF ENCUMBRANCES.
endorsement n. 1. The procedure in which the particulars of a
driving offence
are noted on a person's driving licence. When the court orders
endorsement for an
offence carrying obligatory or discretionary *disqualification but
the driver is not
disqualified, the endorsement also contains particulars of the
number of penalty
points imposed for the purposes of *totting up. When the court
orders
disqualification, only the particulars of the offence are noted.
The courts can order
endorsement upon a conviction for most traffic offences (the main
exceptions being
parking offences) and in many cases they must order an endorsement,
unless there
are special reasons (e.g.a sudden emergency) why they should not. A
person whose
licence is to be endorsed must produce it for the court; if he does
not do so, his
licence may be suspended. A driver whose licence has been endorsed
may apply to
have a new "clean" licence after a certain number of years has
elapsed (usually 4
years, but 11 in the case of offences involving *drunken driving).
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 accumulated 6 or
more penalty
points within two years of passing a driving test has his licence
revoked and must
retake a driving test. 2. The signature of the holder on a bill of
exchange, which is
an essential step in negotiating or transfering a bill payable to
order. The
endorsement must be completed by delivering the bill to the
transferee. An
endorsement in blank is the bare signature of the holder and makes
the bill
payable to bearer. A special endorsement specifies the person to
whom (or to
whose order) the bill is payable (e.g. "Pay X or order"). An
endorser, by endorsing a
bill, takes on certain obligations to the holder or a subsequent
endorser. 3. The
noting on a document of details of a later transaction affecting
the subject matter
of that document. For example, a beneficiary in whose favour a
personal
representative executes an *assent of property may require details
of the assent to
be written (endorsed) on the document containing the *probate or
*letters of
administration. Equally, a purchaser of a plot forming part of a
larger plot of land
may require a note or memorandum of the conveyance to him to be
endorsed on
the title deeds relating to the whole plot.
endowment n. 1. The provision of a fixed income for the support of
a charity.
2. Any property belonging permanently to a charity.
enforcement action Any action, authorized by the United Nations
Security
Council, to enforce *collective security under *Chapter VII (i.e.
Articles 39-51) of the
UN Charter. As such it stands as one of the very few legal
justifications for *use of
force in international law. Strictly, any enforcement action can
only be justified
under Article 42 of the Charter, which requires agreement by member
states to
place their armed forces at the disposal of the UN (see MILITARY
STAFF COMMITTEE).
However, although the theory of enforcement action would seem to be
that of
concerted action by members under Article 42, such a limitation is
not expressly
stated in the Charter. Article 39 was worded so widely as to allow
the Security
Council, using the implied powers allowed for by that Article, to
bypass this
problem and authorize that member states voluntarily furnish armed
forces to be
under the unified command of one member state. Upon the basis of
such implied
power, an enforcement action was justified under Security
Council
recommendations under Article 39 in order to defend Korea
(1950).
enforcement notice A notice by a local planning authority (see TOWN
AND
COUNTRY PLANNING) that requires certain steps to be taken within a
specified time to
remedy an alleged breach of planning control. An example of such
a breach would
occur if development was carried out without planning permission or
contrary to
conditions attached to planning permission. A local planning
authority that has
notice of a breach of planning control has, however, a discretion
as to whether to
enforce against that breach. Appeal against the notice may be made
to the Secretary
of State on various grounds, including the ground that the
development is one for
which planning permission ought to be granted. See also STOP
NOTICE.
enforcement of judgment The processes by which the orders of a
court may be
enforced. Orders for the payment of money may be enforced by a
variety of
methods, including a writ of *fieri facias (in the county court, a
warrant of
execution), *garnishee proceedings, *charging orders, the
appointment of a
*receiver, a writ of *sequestration, and (rarely) an order of
committal (see COMMITTAL
IN CIVIL PROCEEDINGS). In the county court (and in the High Court
in certain
matrimonial proceedings only) *attachment of the debtor's earnings
is also available.
Judgments for possession of land may be enforced by *writ of
possession (in the
county court, a warrant of possession). Judgments for delivery of
goods may be
enforced by *writ of delivery (in the county court, a warrant of
delivery).
Judgments relating to performance of or abstention from some act
(e.g. an
*injunction) may be enforced by order of committal or writ of
sequestration.
enfranchise vb. 1. To give to a person or class of people the right
to vote at
elections. 2. To give to an area or a class of people the right to
be represented on an
elected body.
enfranchisement of tenancy A method for acquiring the freehold or
an
extended lease of a leasehold house. A tenant has a statutory right
of
enfranchisement when he has a long lease (exceeding 21 years) and
the house has
been his *main residence for at least three years. The valuation of
the freehold, or
rent of an extended lease, is based on the value of the land
without the buildings on
it.
The Leasehold Reform Act 1993abolished the rateable value limits
for houses and
extended to flat leaseholders the right to acquire collectively the
freeholds of their
flats. From 1 April 1997the Housing Act 1996abolished in most cases
an earlier
requirement that enfranchisement only applied to leases at a low
rent with a
duration of over 35 years. This area of the law is currently under
review, with a
view to relaxing rules for qualification and residency.
engagement to marry An agreement, verbal or in writing, to marry at
a future
date. Such agreements are no longer treated as enforceable legal
contracts, and no
action can be brought for breach of such an agreement or to recover
expenses
incurred as a result of the agreement. Engagement rings are deemed
to be absolute
gifts and cannot be recovered when an engagement is broken. There
is a special
statutory provision that property rights between engaged parties
(for example, in
respect of a house purchased with a view to marriage) are to be
decided in
accordance with the rules governing property rights of married
couples.
engross vb. To prepare a fair copy of a deed or other legal
document ready for
execution by the parties.
enlarge vb. (in land law) To acquire further rights in land,
thereby increasing one's
interest to some greater estate or interest. For example, a *tenant
in tail may
enlarge his interest into a fee simple by executing a disentailing
deed (see ENTAILED
INTEREST). A mortgagee in possession for 12 years may, by executing
a deed, enlarge
his interest into a fee simple free from the mortgage.
enrolment n. The registration of an act or document on an official
record. It used
to be obligatory to enrol many documents in the Enrolment Office, a
department of
the Chancery Division. Nearly all such obligations were abolished
by the Judicature
Acts 1873-75.
entailed interest An *equitable interest in land under which
ownership is
limited to a person and the heirs of his body (either generally or
those of a specified
class). Such heirs are still those who would inherit under the law
of intestacy as it
applied before the Administration of Estates Act 1925. Since 1997,
no new entailed
interests can be created. An attempt to do so creates an absolute
interest instead.
enter vb. 1. (in the law of *burglary) To make "an effective and
substantial" entry
as a trespasser. This does not necessarily require entry of the
whole of the
defendant's body. 2. (in land law) See ENTRY INTO POSSESSION.
entering jUdgment A procedure in civil courts in which a judgment
is formally
recorded by the court after it has been given. In the Queen's Bench
Division it is
necessary for the party seeking to have judgment entered to draw up
the judgment
and present it to an officer of the court for entry together with
the certificate of
the associate (clerk of the court) and the statements of case. In
the county court, the
court itself draws up and enters the judgment.
Enterprise Investment Scheme (EIS) A scheme to encourage investment
in
unquoted companies; it replaced the similar Business Expansion
Scheme on 1
January 1994. It gives income tax relief of 20% on investments to
individuals who
invest from £500 to £150,000 in anyone year in shares issued by
UKtrading
companies not quoted on the Stock Exchange. Shares issued under
this scheme are
also exempt from capital gains tax. Investors can hold paid
directorships of the
companies; there is also income and capital gains tax relief on
losses. Companies
providing private housing on assured tenancies are excluded from
the scheme.
entire contract See PERFORMANCE OF CONTRACT.
entrapment n. Deliberately trapping a person into committing a
crime in order to
secure his conviction, as by offering to buy drugs. English courts
do not recognize a
defence of entrapment as such, since the defendant is still
considered to have a free
choice in his acts. Under the Police and Criminal Evidence Act
1984,entrapment may
be a reason for making certain evidence inadmissible on the ground
that the
admission of the evidence would have such an adverse effect on the
fairness of the
proceedings that the court ought not to admit it. The question of
the admissibility
of evidence obtained through entrapment is in some doubt as a
consequence of the
cases now being decided under the "Human Rights Act 1998.
Entrapment may also
be used as a reason for mitigating a sentence. See alsoAGENT
PROVOCATEUR.
entry into possession The act of going upon land to assert some
right over it.
For example, a lease usually gives the landlord the right to enter
and take possession
if the tenant fails to pay the rent or commits a breach of
covenant. A mortgagee has
the right to recover possession from a defaulting mortgagor who is
in possession. In
general, such rights of entry cannot be enforced unless the court
orders the
defaulter to give up possession.
entry without warrant Entry by a police officer onto private
premises without
the authority of a warrant. This is in general unlawful except with
the occupier's
consent (which is revocable), but it is permitted by statute for
the purpose of
arresting for certain offences (see ARRESTABLE OFFENCE) and in
certain circumstances
to search premises (see POWER OF SEARCH); it is also allowed at
common law to stop an
actual or apprehended breach of the peace.
epitome of title See ABSTRACT OF TITLE.
equality clause A clause in a contract of employment stipulating
that if a
woman is employed on similar work to that of a man in the same
employment, or
on work rated as equivalent or of like value to his, the terms of
her contract must
place her in no less favourable a position than the man. A contract
not containing
such a clause (either directly or as a result of some collective
agreement) is deemed
to include one by virtue of the Equal Pay Act 1970 as amended by
the Sex
Discrimination Acts 1975 and 1986 and by the Equal Pay (Amendment)
Regulations
1983. However, the clause does not affect certain statutory
requirements concerning
the employment of women (e.g.with respect to health and safety
requirements) or
their *maternity rights. See also EQUAL PAY; SEX
DISCRIMINATION.
equality is equity [from Latin: aequitas est quasi aequalitas] A
*maxim of equity
stating that if there are no reasons for any other basis of
division of property, those
entitled to it shall share it equally.
equality of arms A concept that has been created by the European
Court of
Human Rights in the context of the right to a *fair trial (Article
6). Equality of arms
requires that there be a fair balance between the opportunities
afforded the parties
involved in litigation (for example, each party should be able to
call witnesses and
cross-examine the witnesses called by the other party). In some
circumstances this
may require the provision of financial support to allow a person of
limited means to
pay for legal representation.
Equal Opportunities Commission A body established by the Sex
Discrimination Acts 1975 and 1986 to work towards eliminating
discrimination on
grounds of sex or marital status, to promote equality of
opportunity between the
sexes, and to keep the working of the Acts, and of the Equal Pay
Act 1970, under
review. It consists of 8-15 Commissioners. See SEX
DISCRIMINATION.
equal pay The requirement of the Equal Pay Act 1970 that men and
women in the
same employment must be paid at the same rate for like work or work
rated as
equivalent or of equal value. They are in the same employment if
they work at the
same establishment (or if one works at an establishment that
includes the other's)
and they work for the same or an associated *employer. The
establishments must
also be those at which the terms and conditions of employment are
observed
generally or for employees of the relevant description. "Like work"
is work that is
broadly similar, where any differences between the man's work and
the woman's
are not of practical importance. Work is rated as equivalent when
the employer has
undertaken a study to evaluate his employees' jobs in terms of the
skill, effort, and
responsibility demanded of them and the woman's job is given the
same grade as
the man's. If the employer has no job-evaluation scheme, an
independent expert is
appointed by an employment tribunal to evaluate the two jobs to see
if they are of
equal value. Thus when the employer's job-grading system or the
expert's report
recognizes that the woman's job is as demanding as the man's, they
are entitled to
equal pay even though the nature of the work they do is very
different. An
employer's job-evaluation system can be challenged on the basis
that it is
discriminatory. See also EQUALITY CLAUSE.
The Code of Practice on Equal Pay, which was drafted by the Equal
Opportunities
Commission and applies to all employers, came into effect on 26
March 1997. The
Code requires employers to review current pay structures and
policy; introduce an
equal-pay policy and ensure that pay structures and grades are
transparent; change
any rules of practice that are likely to result in discrimination
in pay; establish a
continuous monitoring procedure and on-going assessment so that bad
practices do
not develop; and assess whether there are any discrepancies in pay
levels between
male and female staff. The Code is admissible in evidence in any
tribunal
proceedings under the Sex Discrimination Act 1975 and the Equal Pay
Act 1970.
equal treatment The requirement, enshrined in the Treaty of Rome,
that
nationals of one ED state moving to work in another ED state must
be treated in
the same way as those workers of the state to which they have
moved. There must
be *free movement of workers throughout the ED and no
discrimination in relation
to pay, social security, and tax benefits. See alsoEQUAL PAY.
equitable adj. 1. Recognized by or in accordance with the rules of
equity: applied
to distinguish certain concepts used in both common or statute law
and in equity.
For example, assignments and mortgages can be either legal or
equitable.
2. Describing a right or concept recognized by the Court of
Chancery. 3. Just, fair,
and reasonable. For example, a document may have two meanings, one
strict and the
other (the equitable construction) more benevolent.
equitable assignment See ASSIGNMENT.
equitable charge 1. See EQUITABLE MORTGAGE. 2. A *charge created by
designating
specific property for the discharge of some debt or other
obligation. No special form
of words is necessary to create an equitable charge, manifested
intention being
sufficient. See GENERAL EQUITABLE CHARGE.
equitable easement See EASEMENT.
equitable estate A right in property recognized by the Court of
Chancery, as
distinct from a *Iegal estate recognized in common law courts (see
ESTATE). Equitable
estates reflected legal interests but could be more flexible
(compare SHIFTING USE;
SPRINGING USE). Before 1926, most types of estate could exist
either at law or in
equity; since 1925 only a limited number of legal estates can
exist; all other interests
!n land are called *equitable interests. The term equitable estate
is now technically
Incorrect.
equitable estoppel See ESTOPPEL.
equitable execution Means of enforcing the judgment of a court when
the
judgment creditor cannot obtain satisfaction from the normal
methods of
*execution. For example, the creditor may appoint a receiver to
manage the
defendant's property or he may obtain an injunction to prevent the
defendant from
dealing with the property. These remedies are often regarded as
relief granted by
the court, rather than as execution.
equitable interests Interests in property originally recognized by
the Court of
Chancery, as distinct from legal interests recognized in the
common-law courts.
They arose in cases when it was against the principles of *equity
for a person to
enforce a legal right. Originally equitable rights (e.g. a trust,
or the equity of
redemption under a mortgage) were enforceable against the person
with a legal
right over property in question. Later, however, those who were
given the property
by the holder of the legal interests took it subject to equitable
interests; later still,
anyone who bought property knowing of the equitable interests was
bound by
them. In the developed law, everyone took property subject to
equitable interests
except those who bought it and neither knew nor ought to have known
of the
equitable interests (the doctrine of notice). Since 1925, equitable
interests may be
protected by the doctrine of *overreaching, under the system of
*land charges, or
by notice.
equitable lease An agreement for the grant of an interest in land
on terms that
correspond to a *legallease but do not comply with the necessary
formal
requirements of a legal lease. For example, if L purports to grant
T a lease for seven
years but the transaction is effected by simple written contract to
grant a lease
rather than by deed, the court may enforce the contract to grant
the lease between
the parties. This follows the principle that "equity looks upon
that as done which
ought to be done" (see MAXIMS OF EQUITY). Further, T's righ~s under
the c?ntrac~ could
be registered as an *estate contract and thus bind any third party
acquirmg Ls
interest in the land.
equitable lien See LIEN.
equitable mortgage (equitable charge) A *mortgage under which
the
mortgagee does not obtain a legal estate in the land. An equitable
mortgage may
arise as follows:
(1) If the mortgagor has only an *equitable interest in the land,
h.ecan only grant an
equitable mortgage. For example, a mortgage granted by a
beneficiary under a
*trust of land could only be equitable. .
(2)An equitable mortgage will arise if the mortgage is made by deed
(a requirement
for legal mortgages). The contract for the mortgage must
nevertheless be made In
writing.
equitable presumptions *Presumptions assumed by equity in certain
cases. The
main examples are the presumption of *resulting trust, the
presumption of
*advancement, and the presumption of equality (see EQUALITY IS
EQUITY).
equitable remedies Means granted by *equity to redress a wrong.
Since th~ .
range of legal remedies was originally very limited, equity showed
great flexibility
in granting remedies, which were discretionary: the conduct of the
parties, .
particularly that of the claimant, was taken into ac~ount(s~e
CLI;,AN HANDS!. The mam
equitable remedies are now *speClflCperformance, rescission,
cancellation,
*rectification, *account, *injunction, and the appointment of a
*receiver. These
remedies may be sought in any division of the High Court or, in
some instan~es, !n
the county courts; they are still discretionary in nature, although
the discretion IS
often exercised on established lines.
equitable rights Rights recognized by *equity. See EQUITABLE
INTERESTS; EQUITABLE
REMEDIES.
equitable waste Alterations made by a tenant that cause serious
damage to the
leased property. See WASTE.
equity n. 1. That part of English law originally administered by
the *Lord .
Chancellor and later by the *Court of Chancery, as distinct from
that administered
by the courts of *common law. The common law did not recognize
ce:~ain conc~pts
(e.g. uses and trusts) and its remedies were limited in scope and
fl~XlbllIty, SInce It
relied primarily on the remedy of damages. In the MIddle Ages
litigants were
entitled to petition the king, who relied on the advice of his
Chan~ellor, commonly
an ecclesiastic ("the keeper of the king's conscience"), to do
justice In each case. By
the 15th century, petitions were referred directly to the
Cha.ncellor, who dealt Wlt~
cases on a flexible basis: he was more concerned with the fair
result than WIth rigid
principles of law (hence the jurist John Selden's jibe that "equity
varied with the
length of the Chancellor's foot"). Moreover, if a defendant refused
to comply WIth
the Chancellor's order, he would be imprisoned for contempt of the
order until he
chose to comply (see IN PERSONAM). In the 17th century conflict
arose between the
common-law judges and the Chancellor as to who should prevail;
James I resolved
the dispute in favour of the Chancellor. General principles began
to emerge, and by
the early 19th century the Court of Chancery was more organized and
its
jurisdiction, once flexible, had ossified into a body of precedent
with fixed
principles. The Court of Chancery had varying types of jurisdiction
(see AUXILIARY
JURISDICTION; CONCURRENT JURISDICTION; EXCLUSIVE JURISDICTION) and
many of its general
principles were stated in the form of *maxims of equity; equity had
(and still has)
certain doctrines (see ELECTION; CONVERSION; RECONVERSION;
PERFORMANCE OF CONTRACT:
SATISFACTION). Under the Judicature Acts 1873-75, with the
establishment of the High
Court of Justice to administer both common law and equity, the
Court of Chancery
was abolished (though much of its work is still carried out by the
"Chancery
Division). The Judicature Acts also provided that in cases in which
there was a
conflict between the rules of law and equity, the rules of equity
should prevail. The
main areas of equitable jurisdiction now include *trusts,
*equitable interests over
property, relief against *forfeiture and penalties, and *equitable
remedies. Equity is
thus a regulated scheme of legal principles, but new developments
are still possible
("equity is not past the age of child-bearing"): recent examples of
its creativity
include the *freezing injunction and the *search order. 2. An
equitable right or
claim, especially an *equitable interest, or *equity of redemption,
or *mere
equity. 3. A share in a limited company.
equity of redemption The rights of a mortgagor over his mortgaged
property,
particularly the right to redeem the property. This right of
redemption allows a
mortgagor to redeem the mortgaged property at any time on payment
of principal.
interest, and costs, even after the contractual date of redemption,
as stated in the
mortgage deed, has passed. Any *clogs on the equity of redemption
are void, but the
mortgagor's rights may be terminated under certain circumstances
(see MORTGAGE).
Before 1926 a mortgage was commonly effected by the transfer of
the
mortgagor's interest in the property to the mortgagee, but the
mortgagor's rights
were recognized by equity. Since 1925 the mortgagor retains legal
ownership of the
property in all cases: the term equity of redemption is still used,
however, although
the right to redeem is no longer strictly an equitable
interest.
erga omnes obligations [Latin: towards all] (in international law)
Obligations in
whose fulfilment all states have a legal interest because their
subject matter is of
importance to the international community as a whole. lt follows
from this that the
breach of such an obligation is of concern not only to the
victimized state but also
to all the other members of the international community. Thus, in
the event of a
breach of these obligations, every state must be considered
justified in invoking
(probably through judicial channels) the responsibility of the
guilty state
committing the internationally wrongful act. It has been suggested
that an example
of an erga omnesobligation is that of a people's right to
*self-determination.
ERM See EXCHANGE RATE MECHANISM.
error n. A mistake of law in a judgment or order of a court or in
some procedural
step in legal proceedings. A writ of error was formerly used to
instruct an inferior
court to send records of its proceedings for review by a superior
court. It was
abolished in civil cases by the Judicature Acts 1873-75 and in
criminal cases by the
Criminal Appeal Act 1907 and replaced by the modern system of
*appeal.
error of law on the face of the record A mistake of law that is
made by an
inferior court or tribunal in reaching a decision and is apparent
from the record of
its proceedings. The decision can be quashed by the High Court
in *judicial review
proceedings by the remedy of *quashing order except in the case of
a *domestic
tribunal with purely contractual powers. See also ULTRA
VIRES.
escape n. The common-law offence of escaping from lawful custody.
The custody
may be in prison or a police station, or even in the open air. The
escaper need not
have been charged with any offence, provided his detention is
lawful (e.g.he may be
detained to provide a *specimen of breath). Nor is it necessary for
him to commit
any act of breaking out. It is also an offence to help the escape
of a prisoner and to
permit a prisoner who is detained in relation to a criminal matter
to escape. If
someone actually breaks out of a building in which he is lawfully
confined he
commits a separate offence of prison breaking.
escrow n. See DEED.
espionage n. See SPYING.
espousal of claim The action by which a state undertakes to gain
redress of a
grievance on behalf of one of its subjects or citizens. See also
EXHAUSTION OF LOCAL
REMEDIES.
essence of a contract See CONDITION.
estate n. 1. (in land law) The character and duration of a person's
ownership of
land. For example, an estate in fee simple confers effectively
absolute ownership; an
estate for a term of years (called leasehold) or for life are
lesser estates. Under the
Law of Property Act 1925 only a *fee simple absolute in possession
(called freehold)
and a *term of years absolute can exist as legal estates in land.
All other forms of
ownership, e.g. an estate for life or an estate in fee simple
coming into effect only
on someone's death, are equitable only. 2. (in revenue law) The
aggregate of all the
property to which a person is beneficially entitled. Excluded
property, which
includes most reversionary interests and certain foreign matters,
is not taken into
account for the death charge (see INHERITANCE TAX).
estate agent A person who introduces prospective buyers and sellers
of property
to each other. Such a person may be a member of a professional body
but must, in
any event, under the Estate Agents Act 1979, take out insurance
cover to protect
money received as deposits from clients. The Property
Misdescription Act 1991
prohibits estate agents from making false or misleading statements
about property
in the course of their business; making such statements is
punishable by a fine of
up to £5000 or possibly by imprisonment. See also
MISDESCRIPTION.
estate contract A contract in which the owner of land agrees to
create or convey
a legal estate in the land; for example, he may contract to grant a
lease or to sell or
he may grant a valid option to purchase. The contract confers on
the purchaser an
equitable interest that is enforceable against third parties if
registered See
REGISTRATION OF ENCUMBRANCES.
estate duty An obsolete tax formerly levied on the value of
property passing on
death. See INHERITANCE TAX.
estate for years Ownership of land subsisting by reference to a
period of time.
See TERM OF YEARS.
estate owner The owner of a *legal estate in land.
estate pur (or per) autre vie [from Norman French: autre vie,other
life] An
interest in property for the lifetime of someone else. If A is
given property for B's
life, A is the tenant pur autre vie and will hold the property
during the lifetime of B
(the cestuique vie). If A dies before B, the persons entitled under
A's will or on his
intestacy will take the interest for the remainder of B's life; if
B dies before A, A's
interest thereupon terminates. The interest is a kind of *life
interest and an estate
of freehold, i.e. it could be inherited; since 1925it has been an
*equitable interest
only.
estate rentcharge See RENTCHARGE.
estate subsisting at law See LEGAL ESTATE.
estoppel n. [from Norman French estouper, to stop up] A rule of
evidence or a rule
of law that prevents a person from denying the truth of a statement
he has made or
from denying facts that he has alleged to exist, The denial must
have been acted
upon (probably to his disadvantage) by the person who wishes to
take advantage of
the estoppel or his position must have been altered as a result.
There are several
varieties of estoppel. Estoppel by conduct (or in pais) arises when
the party
estopped has made a statement or has led the other party to believe
in a certain fact.
Estoppel by deed prevents a person who has executed a deed from
saying that the
facts stated III the deed are not true. Estoppel by record (or per
rem judicatam)
prevents a person from reopening questions that are *res judicata
(i.e. that have been
determined against him in a previous legal proceeding). See also
ISSUE ESTOPPEL.
Th~re are two forms of equitable estoppel - promissory and
proprietary. The
doctrine of promissory estoppel applies when one party to a
contract promises the
other (by words or conduct) that he will not enforce his rights
under the contract in
:-vhole or in part. Provided that the other party has acted in
reliance on that promise,
It WIll,though unsupported by consideration, bind the person making
it: he will not
be allowed subsequently to sue on the contract. When applicable,
the doctrine thus
modifies the common-law rules relating to *accord and satisfaction.
Under the
d.octrine of proprietary estoppel, the courts can grant a
discretionary remedy in
Circumstances where an owner of land has implicitly or explicitly
led another to act
detrimentally in the belief that rights in or over land would be
acquired. The
remedy may take the form of the grant of a *fee simple in the
property at one
extreme or the grant of a short-term occupational *licence at the
other.
estovers pl. n. The right to cut timber for certain purposes from
land not in one's
own absolute ownership. The right arises in favour of a lessee or
*tenant for life
under a settlement of the land and it can exist as a *profit
aprendre. Estovers
compris.e the rig.ht .to take timber as: (1) house bote, for
repairing a dwelling or for
use as firewood m it: (2)plough bote, for repairing farm
implements; and (3) hay
~ote, for repairing fences. In each case the lessee or tenant may
take only sufficient
timber for present needs and not for future requirements. Estovers
as profits a
prendreare usually *appurtenant.
Estrada doctrine The doctrine that *recognition of a government
should be
based on its de facto existence, rather than on its legitimacy. It
is named after Don
Genero Estrada, the Mexican Secretary of Foreign Affairs who in
1930 ordered that
Mexican diplomats should issue no declarations that amounted to a
grant of
recognition: he felt that this was an insulting practice and
offended against the
sovereignty of other nations. In 1980 the UK, USA, and many other
states adopted the
Estrada doctrine. Compare TOBAR DOCTRINE.
estreat [from Old French estrait] 1. n. an extract from a record
relating to
*recognizances and fines. 2. vb. To forfeit a recognizance,
especially one given by the
surety of someone admitted to bail, or to enforce a fine.
ET See EMPLOYMENT TRIBUNAL.
ethnic cleansing See ETHNIC MINORITY.
ethnic minority A group numerically inferior to the rest of the
popu~ation of a
state whose members are nationals of that state and possess
cult~ral, relIgIOus,.or
linguistic characteristics distinct from those of the total
pop~latIOn ~d show, If
only implicitly, a sense of solidarity, directed tow~rds preservmg
the~r own s~Clal
customs, religion, or language. The attempted extIrpatIOn of an
ethmc mmonty by
the forces of the majority within a state (known as ethnic
c1~ansing) c~n be
regarded as a crime against humanity (see WAR CRIMES) justifymg
humanitarian
intervention.
ETSI See EUROPEAN TELECOMMUNICATIONS STANDARDS INSTITUTE.
EU See EUROPEAN UNION.
EU law See COMMUNITY LAW.
Euratom See EUROPEAN ATOMIC ENERGY COMMUNITY.
euro See EUROPEAN MONETARY UNION.
Euro Norm (EN) A European standard adopted by European standards
bodies, such
as CEN(the European Standardization Commi~tee) and CENEL~C (the
European
Electrotechnical Standardization Committee), in place of a national
standard, such as
those produced in the UKby the British Standards Institution
(BSI).
European Atomic Energy Community (Euratom) The organization set
up
under the Treaty of Rome (1957) by the six members of the *European
Coal and
Steel Community and effective from 1 January 1958. Eura~om was
formed to create
the technical and industrial conditions necessary to establish the
nuclear industries
and direct them to peaceful use to obtain a single energy market.
See EUROPEAN
COMMUNITY.
European Bank for Reconstruction and Development (EBR.D) An
intergovernmental bank set up in 1990 to provide loans for mdustnal
and .
commercial projects in the countries of central and eastern Eur?pe:
Membership .
includes all the countries of the European Union and the
Organization for Economic
Cooperation and Development, as well as the central and eastern
European countries.
The EU provided 51% of the initial capital. The bank's headquarters
are in London.
European Central Bank (ECB) A central bank of the *European Union
to which
member states who have adopted *European Monetary Union (EMU) are
committed
by the *Maastricht Treaty. The ECB was set up in 1998and became
.actrve in 1999, as
the governor of economic and monetary policy throu¥ho~t the Union.
It works
closely with the central banks of the states parttcipatmg in
EMU.
European Coal and Steel Community (ECSC) The first of the
European
Communities, established by the *Paris Treaty (1951) and effective
from 1952. The
ECSC created a common market in coal, steel, iron are, and scrap
between the
member states, and it coordinates policies of the member states in
these fields. The
original members were Belgium, France, West Germany, Italy,
Luxembourg, and the
Netherlands. These six countries, in 1957, signed the *Treaty of
Rome settmg up the
European Economic Community. See EUROPEAN COMMUNITY.
European Commission (commission of the E.uropeanCommunities) An
.
organ of the European Union formed in 1967, having both executI.ve
and legislative
functions. It is composed of 20 Commissioners, who must be
nationals of member
states and are appointed by member states by mutual agreement
(two
Commissioners each from the five largest member states - France,
Germany, Italy,
Spain, and the UK; one each from the remaining members); their
appointment must
be approved by the *European Parliament. Each Commissioner
assumes
responsibility for a particular field of activity and oversees the
department
(Directorate General) devoted to that field (see Appendix II). Once
appointed, the
Commissioners must act in the interests of the EU; they are not to
be regarded as
representatives of their countries and must not seek or take
instructions from any
government or other body. Each Commissioner is appointed for a
(renewable) fouryear
period. The Commission's executive functions include administration
of
Community funds and ensuring that Community law is enforced (see
EUROPEAN
COURT OF JUSTICE). Its legislative functions consist primarily of
submitting proposals
for legislation to the *Council of the European Union, in some
cases on the orders of
the Council and in others on its own initiative (see also EUROPEAN
PARLIAMENT). It also
has legislative powers of its own, partly under the Treaty of Rome
and partly by
virtue of delegation by the Council, but only on a limited range of
subjects (see
COMMUNITY LEGISLATION).
European Community (EC) An economic and political association of
European
states that originated as the European Economic Community (EEC). It
was created
by the *Treaty of Rome in 1957with the broad object of furthering
economic
development within the Community by the establishment of a Common
Market
and the approximation of the economic policies of member states.
Its more detailed
aims included eliminating customs duties internally and adopting a
common
customs tariff externally, the following by member states of common
policies on
agriculture and transport, promoting the free movement of labour
and capital
between member states, and outlawing within the Community all
practices leading
to the distortion of competition (see ARTICLE 81). Two of its
institutions, the
*European Parliament and the *European Court of Justice, were
shared with the
*European Coal and Steel Community (established in 1951) and the
*European
Atomic Energy Community (Euratom; established in 1957); the
separate executive
and legislative bodies of these three European Communities were
merged in 1967
(see EUROPEAN COMMISSION; COUNCIL OF THE EUROPEAN UNION).
The *Single European Act 1986,given effect in the UKby the
European
Communities (Amendment) Act 1986,contains provisions designed to
make "concrete
progress" towards European unity, including measures to establish a
*Single Market
for the free movement of goods, services, capital, and persons
within the
Community: the Single Market came into operation on 1 January 1993.
In February
1992 the member states signed the Treaty on European Union (see
MAASTRICHT TREATY).
This amended the founding treaties of the Communities by
establishing a
*European Union based upon the three Communities; renamed the
EECthe
European Community; and introduced new policy areas with the aim of
creating
closer economic, political, and monetary union between member
states. The Treaty
came into force on 1 November 1993; it was amended by the
*Amsterdam Treaty.
The original members of the ECwere Belgium, France, Germany,
Italy,
Luxembourg, and the Netherlands. The UK, the Republic of Ireland,
and Denmark
joined in 1972,Greece in 1981, and Spain and Portugal in 1986,and
Austria, Sweden,
and Finland in 1995(in 1994 Norway voted by referendum not to
join). The changes
in UKlaw necessary as a result of her joining were made by the
European
Communities Act 1972.
European Community Treaty See TREATY OF ROME.
European company A proposed type of company to be incorporated
under
European *Community law rather than under the national law of a
member state.
European companies would be recognized by all member states and
would facilitate
mergers between two or more limited companies each incorporated
under the
national law of a member state.
European Convention on Human Rights A convention, originally
formulated
in 1950,aimed at protecting the *human rights of all people in the
member states
of the Council of Europe. Part 1 of the Convention, together with a
number of
subsequent protocols, define the freedoms that each signatory state
must guarantee
to all within its jurisdiction, although states may derogate from
the Convention in
respect of particular activities (see DEROGATION). The Convention
established a
Commission on Human Rights and a Court of Human Rights in
Strasbourg. The
Commission may hear complaints (known as petitions) by one state
against another.
It may also hear complaints by an individual, group, or
nongovernmental
organization claiming to be a victim of a breach of the Convention,
provided that
the state against which the complaint has been made declares that
it recognizes the
authority of the Commission to receive such petitions. The
Commission cannot deal
with any complaint, however, unless the applicant has first tried
all possible
remedies in the national courts (in England he must usually first
appeal to the
House of Lords). All complaints must be made not later than six
months from the
date on which the final decision against the applicant was made in
the national
courts. The Commission will only investigate a complaint if it is
judged to fulfil
various conditions that make it admissible. If the Commission
thinks there has. been
a breach of the Convention, it places itself at the disposal of the
parties in an
attempt to achieve a friendly settlement. If this fails, the
Commission sends a report
on the case to the Committee of Ministers of the Council of Europe.
The case may
then be brought before the Court within three months by either the
Commission or
one of the states concerned (an individual victim cannot take the
matter to the
Court himself). No case can be brought before the Court, however,
unless the state
against which the complaint is made has accepted the Court's
jurisdiction. The Court
then has power to make a final ruling, which is binding on the
parties, and in some
cases to award compensation. If the matter is not taken to the
Court, a decision is
made instead by the Committee of Ministers.
The Convention has established a considerable body of
jurisprudence. As of 2
October 2000 the Convention and its terms were transformed into
English law as
the *Human Rights Act 1998.
European Convention on State Immunity An international convention
of
1972 setting out when and how member states of the European
Community (now
the European Union) may sue or be sued (by other states or by
individuals). It is in
force only in those EU states that have signed up to the
convention. See also
IMMUNITY.
European Council A body consisting of the heads of government of
the member
states of the European Union. It is not a formal organ of the EU
(compare COUNCIL OF
THE EUROPEAN UNION), but meets three times a year to consider major
developments
of policy. It inspired, for example, the *European Monetary
System.
European Court of Human Rights See EUROPEAN CONVENTION ON HUMAN
RIGHTS.
European Court of Justice (ECJ. Court of Justice of the
European
Communities) An institution of the European Union that has three
primary
judicial responsibilities. It interprets the treaties establishing
the European
Community; it decides upon the validity and the meaning of
*Community
legislation; and it determines whether any act or omission by the
European
Commission, the Council of the European Union, or any member state
constitutes a
breach of *Community law.
The Court sits at Luxembourg. It consists of 15 judges appointed by
the member
states by mutual ~greementandassisted by six *Advocates General.
Proceedings
before the Cour~ involve wntten and oral submissions by the parties
concerned.
Proceedings against the Commission or the Council may be brought by
the other of
these two bodIes,.by any member state, or by individual persons;
proceedings to
challenge the validity of legislative or other action by either
Commission or Council
are known as proceedings for annulment. Proceedings against a
member state may
be brought by the Commission, the Council, or any other member
state. Appeals
from the *Court of FIrst Instance go to the ECl The decisions of
the Court are
binding and there is no appeal against them.
The Court also has power, at the request of a court of any member
state, to give a
prehmmary ruling on any point of Community law on which that court
requires
clarification.
European Currency Unit See ECU.
European Economic Area (EEA) A free-trade area encompassing the 15
member
states of the *European Union and the member states (excluding
Switzerland) of the
*~uropean Free Trade Association (EFTA), i.e. Norway, Iceland, and
(from 1 May 1995)
Liechtenstein. The EEAAgreement, which contains many provisions
similar to the
*Treaty of Rom~, was signed in 1992 and came into force on 1
January 1994.The EEA
has ItS own mstitutions, such as the EFTACourt of Justice and the
EFTA
Surveillance Authority (ESA), and many of the EU *Single Market
directives and
other legislative measures apply within it, although it does not
have a budget.
European Economic Community See EUROPEAN COMMUNITY.
European Free Trade Association (EFTA) A trade association formed
in 1960
between Austria, Denmark, Norway, Portugal, Sweden, Switzerland,
and the UK.
Finland, Iceland, and Liechtenstein joined later. The UK,Denmark,
Portugal, Austria,
Finland, and Sweden left on joining the *European Union (or its
earlier
com:nunities). EFTAis a looser association than the EU, dealing
only with trade
barners rather than generally coordinating economic policy. EFTAis
governed by a
council in which each member has one vote; decisions must normally
be unanimous
and are binding on all member countries. EFTAhas bilateral
agreements with the
ED.All tanffs between EFTAand EU countries were abolished finally
in 1984 and a
free-trade area now exists between EU and EFTAmember states (see
EUROPEAN
ECONOMIC AREA).
European Monetary System (EMS) A financial system formed in March
1979 to
develop closer cooperation in monetary policy among members of the
European
Commumty in advance of the liberalization of capital. It included
the *Exchange
Rate Mechanism (ERM) to stabilize exchange rates between member
states as a
precursor to *European Monetary Union. Directive 88/361 removed
restrictions on
the movement of capital between people resident in the member
states. Article 102A
of the Single European Act 1986 inserted a new Article (now called
Article 98) into
the Treaty of Rome to refer to the EMS. The UK has been a party to
the EMS since
Its inception and participated in the ERMfrom 1990 to 1992.
European Monetary Union (EMU) The establishment of a common
currency for
member s~ates of the European Union. The *Maastricht Treaty
specified three stages
for achieving EMU,startmg with participation in the *Exchange Rate
Mechanism.
The second stage created the European Monetary Institute, which
coordinated the
economic and monetary policy of member states. The third stage,
achieved by
January 1999,locked member states into a fixed exchange rate,
activated the
*European Central Bank, and introduced the single currency, the
euro (divided into
100 cents), for all noncash transactions (national currencies
continued in use for cash
transactions). In 2002 euro notes and coins came into circulation
in those states
within the system (i.e. all member states except the UK, Denmark,
and Sweden).
European Parliament An institution of the EU, formerly called the
Assembly
of the European Communities. Members of the European Parliament
(MEPs) are
drawn from member states of the EU but group themselves politically
rather than
nationally. There are 732 seats of which the UK has 77. In the case
of the UK, MEPs
are elected under the European Assembly Elections Act 1978 for
constituencies
comprising two or more UK parliamentary constituen~ies. . .
The European Parliament's power and influence derive chiefly from
Its power to
amend, and subsequently to adopt or reject, the EU's budget. The
Parliament is
consulted by the *Council of the European Union on legislative
proposals put to the
Council by the *European Commission; it gives opinions on these
after debating .
reports from specialist committees, but these opinions are not
binding. However, Its
powers in the legislative process were extended under the Single
Eu~opea~ ~ct 1986
and the Maastricht Treaty by the introduction of the *cooperation,
codecision. and
*assent procedures. The Parliament may also put questions to the
Council and the
Commission and, by a motion of censure requiring a special
majority, can force the
resignation of the whole Commission (but not of individual
Commissioners). Under
the Maastricht Treaty it can now veto the appointment of a new
Commission.
The European Parliament holds its sessions in Strasbourg, but its
SecretariatGeneral
is in Luxembourg and its committees meet in Brussels. The
elected
Parliament serves a term of five years, after which elections are
held.
European Telecommunications Standards Institute (ETSI) The
organization
that sets standards for the telecommunications industry throughout
Europe.
Established in 1988, it is made up of representatives of the
telecommunications
industry.
European Union (EU) The 25 nations (Austria, Belgium, Cyprus, the
Czech
Republic, Denmark, Estonia, Finland, France, Germany, Greece,
Hungary, Ireland,
Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands,
Poland, Portugal,
Slovakia, Slovenia, Spain, Sweden, and the UK) that have joined
together to form an
economic community with common monetary, political, and social
aspirations. !he
EU came into being on 1 November 1993 according to the terms of the
*MaastrIcht
Treaty. It comprises the three European Communities (see EUROPEAN
COMMUNITY),
extended by the adoption of a common foreign and security policy
(CFSP), which
requires cooperation between member states in foreign policy and
security, and
cooperation in justice and home affairs.
European Works Council (EWC) A council, set up by a special
negotiating body,
consisting of both employee and management representatives
established at
European level for the purpose of informing and consulting with
employees. The
requirement to set up such councils originated from the European
Works Council
Directive. The Directive was implemented by the UK through the
Transnational
Information and Consultation of Employees Regulations 1999,which
came into force
in January 2000. The Regulations apply to undertakings or groups
with at least 1000
employees across member states and at least 150 employees in each
of two or more
of those member states. The Regulations set out the procedures for
negotiatmg an
EWC agreement, the enforcement mechanisms, provisions on
confidentiality, and
statutory protections for employees who are members of such a group
when
asserting their rights or performing duties under the Regulations.
Disputes over
procedural matters in setting up an EWC are heard by the *Central
Arbitration
Committee. Complaints of a failure to establish an EWe, or a
failure to operate the
system properly once set up, are heard by the *Employment Appeal
Tribunal.
Employment protection disputes with respect to individual employees
go to an
*employment tribunal.
eurotort n. A directly effective rule of European Community law
(see COMMUNITY
LEGISLATION), breach of which gives the person injured a remedy in
British courts in
the form of an action in tort. See also COMMUNITY LAw.
eviction n. The removal of a tenant or any other occupier from
occupation. Under
the Protection from Eviction Act 1977 the eviction of a
*residential occupier, other
than by proceedings in the court, is a criminal offence. It is also
an offence to harass
a residential occupier to try to persuade him to leave (see
HARASSMENT OF OCCUPIER).
Note that it has recently been confirmed that if it is possible for
a mortgagee to
recover possession peaceably, no court order is necessary. Many
tenants have
statutory protection and the landlord must prove to a court that he
has appropriate
grounds for possession. Under the Housing Act 1988 a tenant may
claim damages for
unlawful eviction. See alsoAGRICULTURAL HOLDING; ASSURED SHORTHOLD
TENANCY;
ASSURED TENANCY; BUSINESS TENANCY; LONG TENANCY; PROTECTED TENANCY;
SECURE TENANCY;
RESTRICTED CONTRACT; TRESPASS.
The Protection from Harassment Act 1997 allows the court to impose
a restraining
order against a tenant who is harassing a neighbour, which might
require the
harasser to be evicted (see NUISANCE NEIGHBOURS).
evidence n. That which tends to prove the existence or nonexistence
of some fact.
lt may consist of *testimony, *documentary evidence, *real
evidence, and, when
admissible, *hearsay evidence. The law of evidence comprises all
the rules governing
the presentation of facts and proof in proceedings before a court,
including in
particular the rules governing the *admissibility of evidence and
the *exclusionary
rules. See also CIRCUMSTANTIAL EVIDENCE; CONCLUSIVE EVIDENCE;
DIRECT EVIDENCE; EXTRINSIC
EVIDENCE; PRIMARY EVIDENCE; SECONDARY EVIDENCE; VIDEO
EVIDENCE.
evidenced in writing See UNENFORCEABLE CONTRACT.
evidence in rebuttal Evidence offered to counteract (rebut) other
evidence in a
case. There are some restrictions on the admissibility of evidence
in rebuttal, for
example if it relates to a collateral question, such as the *credit
of a witness.
evidence obtained illegally Evidence obtained by some means
contrary to law.
At common law, if evidence was obtained illegally (e.g. as a result
of a search of
premises without a search warrant), it was not inadmissible but the
court might
exclude it as a matter of discretion. The Police and Criminal
Evidence Act 1984
provides that the court may refuse to allow evidence on which the
prosecution
proposes to rely if the admission of the evidence would have such
an adverse effect
on the fairness of the proceedings that the court ought not to
admit it. The
*Human Rights Act 1998 and the cases now being decided under its
provisions have
left the previous law in some doubt. See also CONFESSION.
evidence of character See CHARACTER.
evidence of disposition See DISPOSITION.
evidence of identity That which tends to prove the identity of a
person. A
person's identity may be proved by *direct evidence (even though it
may involve an
expression of *opinion) or by *circumstantial evidence. *Secondary
evidence of an
out-of-court identification by a witness (e.g. that he picked the
accused out of an
identification parade) may also be given to confirm the
witness's testimony. In
criminal cases, if the evidence of identity is wholly or mainly
based on visual
identification the jury must be specially warned of the danger of
accepting the
evidence; any *corroboration must be pointed out to them by the
judge. In criminal
cases this issue must be dealt with under the detailed provisions
of the appropriate
Code of Practice under the Police and Criminal Evidence Act 1984.
Failure to follow
this procedure and its accompanying safeguards will render the
evidence of identity
inadmissible. See also DNA FINGERPRINTING.
evidence of opinion See OPINION EVIDENCE.
evidence of user Evidence of the manner in which the parties to a
contract have
acted. In a limited number of circumstances, evidence of user is
admissible to assist
the court in resolving a dispute between the parties as to their
precise obligations. It
may, for example, help to clarify an ambiguity in the wording of
the contract or an
allegation that written terms have been varied by oral
agreement.
EWe See EUROPEAN WORKS COUNCIL.
ex aequo et bono [Latin] As a result of fair dealing and good
conscience, i.e. on
the basis of *equity. The phrase refers to the way in which an
international tribunal
can base its decision not upon conventional law but on what is just
and fair to the
parties before it. Article 38(2) of the Statute of the
International Court of Justice
specifically authorizes settlement of disputes based upon ex aequo
et bonoshould
both parties give their consent, although the Court has not yet
given any judgment
on this basis.
examination n. The questioning of a witness on oath or affirmation.
In court, a
witness is subject to *examination-in-chief, *cross-examination,
and *reexamination.
In some circumstances a witness may be examined prior to the
court
hearing (see COMMISSION).
examination-in-chief (direct examination) The questioning of a
witness by the
party who called him to give evidence. *Leading questions may not
be asked, except
on matters that are introductory to the witness's evidence or are
not in dispute or
(with permission of the judge) when the witness is *hostile. The
purpose of
examination-in-chief is to elicit facts favourable to the case of
the party conducting
the examination. It is followed by a *cross-examination by the
opposing party.
examined copy See ABSTRACT OF TITLE.
examining justices Justices of the peace sitting upon a preliminary
inquiry into
whether or not there is sufficient evidence to commit an accused
person from the
magistrates' court to the Crown Court for trial on
indictment.
excepted perils Risks expressly excluded from the cover given by an
insurance
policy.
exchange of contracts The point at which a purchaser of land
exchanges a copy
of the sale contract signed by him for an identical copy signed by
the vendor. At
that point the contract becomes legally binding on both parties and
the purchaser
acquires an *equitable interest in the land.
exchange of medical reports The exchange of medical reports in
personal
injury actions in the hope that they can be agreed before the
hearing of the case,
thus saving time and expense. The exchange of reports that are
intended to be
relied on at the hearing is compulsory, unless the court's
permission not to disclose
is obtained. The court also has power to order disclosure of
medical reports by
persons not party to the proceedings, such as a hospital
authority.
Exchange Rate Mechanism (ERM) A component of the *European
Monetary
System under which the central banks of participating countries
could not allow
their currencies to fluctuate more than a certain percentage above
(the ceiling rate)
or below (minimum rate) a central rate, which was set in *ECUs. The
system was
intended as a precursor to full *European Monetary Union (EMU). The
ERMlinked
currencies with the aim of ensuring their stability. From 1999,
states wishing to
participate join ERMII, which is based on the euro and supervised
by the *European
Central Bank.
Exchequer n. The department within Government that receives and
controls the
national revenue. See CHANCELLOR OF THE EXCHEQUER; COURT OF
EXCHEQUER.
excise duty A charge or toll payable on certain goods produced and
consumed
within the UK.Payments for licences, e.g. for the sale of spirits,
are also classed as
excise duty. Compare CUSTOMS DUTY.
exclusion and restriction of contractual liability See EXEMPTION
CLAUSE.
exclusion and restriction of negligence liability The Unfair
Contract Terms
Act 1977 provides that a person cannot exclude or restrict his
*business liability for
death or injury resulting from negligence. Nor can he exclude or
restrict his
liability for other loss or damage arising from negligence, unless
any contract term
or notice by which he seeks to do so satisfies the requirement of
reasonableness (as
defined in detail in the Act). For the purposes of this provision,
negligence means
the breach of any contractual or common-law duty to take reasonable
care or
exercise reasonable skill or of the *common duty of care imposed by
the Occupiers'
Liability Acts 1957 and 1984. There are similar provisions in
relation to consumer
contracts in the Unfair Terms in Consumer Contracts Regulations
1999.
exclusionary rules Rules in the law of evidence prohibiting the
proof of certain
facts or the proof of facts in particular ways. Although all
irrelevant evidence must
be excluded, the rules are usually restricted to relevant evidence,
e.g. the rule
against *hearsay evidence. Exclusionary rules may be justified in
various ways; for
example, by the desirability of excluding material that is of
little evidentiary weight
or may be unfairly prejudicial to an accused person.
exclusion order An order of the Secretary of State under the
Prevention of
Terrorism (Temporary Provisions) Act 1989 (now repealed) excluding
a named person
from Great Britain, Northern Ireland, or the UK in order to prevent
terrorist acts
aimed at influencing policy or opinion concerning Northern Ireland.
See also
TERRORISM.
exclusion requirement A requirement in an *emergency protection
order or an
interim care order that a person who is suspected of having abused
a child is
excluded from the child's home. A *power of arrest may be attached
to the order.
exclusive economic zone (EEZ) A zone defined by Articles 55-75 of
the UN
Convention on the Law of the Sea as comprising that area of sea
adjacent to a
coastal state not exceeding 200 miles from the *baseline of the
territorial sea. The
state shall have sovereign rights over the zone for the purpose of
exploring and
exploiting, conserving, and managing the living and nonliving
resources of the sea,
seabed, and subsoil within it. See alsoHIGH SEAS; LAW OF THE SEA;
TERRITORIAL WATERS.
exclusive jurisdiction 1. That part of the jurisdiction of the
*Court of Chancery
that belonged to the Chancery alone. The jurisdiction ceased after
the Judicature
Acts 1873-75, but the matters under exclusive jurisdiction (e.g.
trusts, administration
of estates) are now dealt with in the Chancery Division. Compare
CONCURRENT
JURISDICTION. 2. A clause in a commercial agreement providing that
only the English,
Scottish, or other courts will be entitled to determine disputes
between the parties.
Normally agreements provide that the parties agree to submit to
either the
exclusive or the nonexclusive jurisdiction of particular courts. If
no such clause is
included, international conventions, such as the Brussels and
Lugano conventions,
determine which courts have jurisdiction. EU regulation 44/2001
contains provisions
in this area applicable from January 2001. In particular, customers
are given a right
to bring proceedings in their home state.
excusable homicide The killing of a human being that results in no
criminal
liability, either because it took place in lawful *self-defence or
by misadventure (an
accident not involving gross negligence).
ex debito justitiae [Latin] As a matter of right. The phrase is
applied to remedies
that the court is bound to give when they are claimed, as distinct
from those that it
has discretion to grant.
executed adj. Completed. A contract that has been carried out by
both parties is
said to have been executed, and *consideration that has been
actually given for a
contract is described as executed consideration. See also EXECUTED
TRUST. Compare
EXECUTORY.
executed trust (completely constituted trust, perfect trust) A
trust that is
complete and enforceable by the beneficiaries without further acts
by the settlor.
Compare EXECUTORY TRUST.
execution n. 1. The process of carrying out a sentence of death
imposed by a
court. See also CAPITAL PUNISHMENT. 2. The enforcement of the
rights of a judgment
creditor (see also ENFORCEMENT OF JUDGMENT). The term is often used
to mean the
recovery of a debt only, especially by seizure of goods belonging
to the debtor under
a writ of *fieri facias or a warrant of execution. In the case of
property not subject
to ordinary forms of execution, e.g. an interest under a trust,
judgment is enforced
by means of *equitable execution. 3. The completion of the
formalities necessary
for a written document to become legally valid. In the case of a
*deed, for example,
this comprises the signing and delivery of the document. See
alsoEXECUTION OF WILL.
execution of will The process by which a testator's will is made
legally valid.
Under the Wills Act 1837 the will must be signed at the end by the
testator or by
someone authorized by him, and the signature must be made or
acknowledged (see
ACKNOWLEDGMENT) by the testator in the presence of at least two
witnesses, present
at the same time, who must themselves sign the will or acknowledge
their
signatures in the testator's presence. A will witnessed by a
beneficiary or the
beneficiary's spouse is not void, but the gift to that beneficiary
or spouse is void.
executive agency An independent agency, operating under a chief
executive,
that is responsible for delivering a service according to the
policy of a central
government department. Examples are the Benefits Agency and the
Passport
Agency. The intention is that central government should become
purely policymaking,
the services it is responsible for being delivered by executive
agencies.
executor n. A person appointed by a will to administer the
testator's estate. A
deceased person's property is vested in his executors, who are
empowered to deal
with it as directed by the will from the time of the testator's
death. They must,
however, usually obtain a grant of *probate from the court in order
to prove the
will and their right to deal with the estate. Appointment as an
executor confers
only the power to deal with the deceased's property in accordance
with his will, and
not beneficial ownership, although an executor may also be a
beneficiary under the
will. Compare ADMINISTRATOR.
executor de son tort [French: by his own wrongdoing] A person who
deals
(intermeddles) with a deceased person's assets without the
authority of the rightful
personal representatives or of the court. He is answerable to the
rightful personal
representatives and to the creditors of the estate for any acts
done without such
authority and for any assets of the estate that come into his
hands.
executor's year The period of a year, starting from the death of
the deceased,
within which nobody can compel his personal representatives to
distribute the
estate, even if the testator has directed payment of a legacy
before the expiry of
that period (Administration of Estates Act 1925).
executory adj. Remaining to be done. A contract that has yet to be
carried out is
said to be an executory contract, and *consideration that has still
to be given for a
contract is described as executory consideration. See also
EXECUTORY INTEREST;
EXECUTORY TRUST. Compare EXECUTED.
executory interest (mainly historical) An interest in property that
arises or
passes to a particular person on the occurrence of a specified
event. For example,
when property is settled in trust "for A, but for B if he marries
Mary", then B has
an executory interest. Under the Law of Property Act 1925 executory
interests in
land can only exist as equitable interests. Compare REMAINDER;
REVERSION.
executory trust (imperfect trust, incompletely constituted trust) A
trust that
is incomplete, i.e. one that the beneficiaries are unable to
enforce until some further
act is done by the settlor or a third party. Compare EXECUTED
TRUST.
exemplary damages (punitive damages, vindictive damages) Damages
given
to punish the defendant rather than (or as well as) to compensate
the claimant for
harm done. Such damages are exceptional in tort, since the general
rule is that
damages are given only to compensate for loss caused. They can be
awarded in some
tort actions: (1) when expressly authorized by statute; (2) to
punish oppressive,
arbitrary, or unconstitutional acts by government servants; (3)when
the defendant
has deliberately calculated that the profits to be made out of
committing a tort (e.g.
by publishing a defamatory book) may exceed the damages at risk. In
such cases,
exemplary damages are given to prove that "tort does not pay".
Exemplary damages
cannot be given for breach of contract.
exemption clause A term in a contract purporting to exclude or
restrict the
liability of one of the parties in specified circumstances. The
courts do not regard
exemption clauses with favour. If such a clause is ambiguous, they
will interpret it
narrowly rather than widely. If an exclusion or restriction is not
recited in a formal
contract but is specified or referred to in an informal document,
such as a ticket or
a notice displayed in a hotel, it will not even be treated as a
term of the contract
(unless reasonable steps were taken to bring it to the notice of
the person affected
at the time of contracting). The Unfair Contract Terms Act 1977 and
Unfair Terms in
Consumer Contracts Regulations 1999 contain complex provisions
limiting the
extent to which a person can exclude or restrict his *business
liability towards
consumers. In addition, the 1977 Act subjects certain types of
exemption clause to a
test of reasonableness, even in a business-to-business transaction.
The Office of Fair
Trading runs an unfair terms unit to monitor such clauses and
enforce the 1999
Regulations. Other statutes forbidding the exclusion or restriction
of particular
forms of liability are the Defective Premises Act 1972,the
Consumer Protection Act
1987, and the Road Traffic Act 1988. See alsoEXCLUSION AND
RESTRICTION OF NEGLIGENCE
LIABILITY; INTERNATIONAL SUPPLY CONTRACT.
exempt supply A supply that is outside the scope of *value-added
tax. Examples
include sales of land, the supply of certain financial and
insurance services, and the
services performed in the course of employment. See also ZERO-RATED
SUPPLY.
exequatur n. A certificate issued by a host state that admits and
accords
recognition to the official status of a *consul, authorizing him to
carry out consular
functions in that country. The sending state grants the consular
official a
commission or patent, which authorizes the consul to represent his
state's interests
within the host state.
ex gratia [Latin] Done as a matter of favour. An ex gratia payment
is one not
required to be made by a legal duty.
exhaustion of local remedies The rule of customary international
law that
when an *alien has been wronged, all municipal remedies available
to the injured
party in the host country must have been pursued before the alien
appeals to his
own government to intervene on his behalf. This is a customary
precondition to any
*espousal of claim by a state on behalf of a national based upon
foreign soil.
exhaustion of rights A free-trade principle which holds that, once
goods are put
on the market, owners of *intellectual property rights in those
goods, who made
the goods or allowed others to do so under their rights, may not
use national
intellectual property rights to prevent an import or export of the
goods. Within the
EU these rules derive from Articles 28-30 (formerly 30-36) of the
Treaty of Rome.
See alsoFREE MOVEMENT.
exhibit 1. n. A physical object or document produced in a court,
shown to a
witness who is giving evidence, or referred to in an *affidavit.
Exhibits are marked
with an identifying number, and in jury trials the jury is normally
permitted to
take exhibits with them when they retire to consider their verdict.
Physical objects
produced for the inspection of the court (e.g. a murder weapon) are
referred to as
*real evidence. 2. vb. To refer to an object or document in an
*affidavit.
ex nudo pacto non oritur actio See CONSIDERATION.
ex officio [Latini By virtue of holding an office. Thus, the Lord
Chief Justice is ex
officio a member of the Court of Appeal.
ex officio information A criminal information laid by the Attorney
General on
behalf of the Crown. It was abolished in 1967. See LAYlNG AN
INFORMATION.
ex officio magistrate A magistrate by virtue of holding some other
office,
usually that of mayor of a city or borough. Most ex officio
magistrateships were
abolished by the Justices of the Peace Act 1968 and the
Administration of Justice Act
1973, but High Court judges are justices of the peace ex officio
for the whole of
England and Wales and the Lord Mayor and aldermen are justices ex
OfficiOfor the
City of London.
ex parte [Latin] 1. On the part of one side only. Since the
introduction of the
*Civil Procedure Rules in 1999, this phrase is no longer used in
civil proceedings,
having been replaced by without notice. See WITHOUT NOTICE
APPLICATION. 2. On
behalf of. This term is used in the headings of law reports
together with the name
of the person making the application to the court in the case in
question.
expatriation n. A person's voluntary action of living outside his
native country,
either permanently or during his employment abroad, whereby he
renounces or
loses allegiance to his former state of nationality. Compare
DEPORTATION.
expectant heir A person who has an interest in remainder or in
reversion in
property or a chance of succeeding to it (interest in expectancy).
An unconscionable
contract with an expectant heir (e.g.in which he sells his
inheritance at an
undervalue in order to raise cash) may be set aside by the
court.
expert opinion See OPINION EVIDENCE.
Expiring Laws Continuance Acts Statutes formerly passed annually
to
continue in force for a further year a number of miscellaneous Acts
that were
originally stated to remain in force for one year only. The renewal
of temporary
statutes is now effected individually.
explosive n. Any substance made in order to achieve an explosion
that causes
damage or destruction or intended to be used in that way by a
person who possesses
it. If someone committing *burglary has an explosive with him, he
is guilty of
aggravated burglary, punishable with a maximum of life
imprisonment. The
Explosive Substances Act 1883 creates special offences of (1)
causing an explosion
that is likely to endanger life or cause serious damage to property
(even if no harm
or damage is actually done); (2) attempting to cause such an
explosion; and (3)
making or possessing an explosive with the intention of using it to
endanger life or
to seriously damage property. Under the Offences Against the Person
Act 1861, it is
an offence to injure anyone by means of an explosion, to send or
deliver an
explosive to anyone, or to place an explosive near a building,
ship, or boat with the
intention of causing physical injury. These crimes cover most acts
of *terrorism.
export bans *Anticompetitive practices that have the effect of
banning the resale
of products from one EU territory in another state of the ED.
Export bans have long
been held to infringe the competition rules in *Article 81 of the
Treaty of Rome;
they can lead the European Commission to levy fines of up to 10% of
annual
worldwide group turnover. Examples of practices that infringe the
rules include
clauses in contracts banning exports; an export ban in a written
contract will be
void when Article 81 applies. However, when the *vertical
agreements regulation
2790/99 applies it is permitted to restrict an exclusive
distributor from actively
soliciting sales outside its territory. It is not permissible to
prevent a distributor
from advertising on a website as this is regarded as 'passive'
rather than 'active'
selling. In addition, practices that have the effect of bolstering
or imposing an
export ban are forbidden, including buying up all *parallel
imports, marking
products solely for the purposes of tracing them to stop parallel
importation, and
sending faxes to, or otherwise putting pressure on, dealers not to
engage in parallel
importation.
ex post facto [Latin: by a subsequent act] Describing any legal
act, such as a
statute, that has retrospective effect.
expressio unius est exe/usio alterius See INTERPRETATION OF
STATUTES.
express term A provision of a contract, agreed to by the parties,
that is either
written or spoken. Such a provision may be classified as a
*condition, a *warranty,
or an *innominate term. Compare IMPLIED TERM.
express trust A trust created expressly by the settlor, i.e. by
stating directly his
intention to create a trust. There is no need for formal words
provided that the
intention to create a trust is clear from the documents or from the
oral statements
of the settlor, but most express trusts are contained in
documents that have been
professionally drafted. Compare IMPLIED TRUST.
expropriation n. The taking by the state of private property for
public purposes,
normally without compensation (compare COMPULSORY PURCHASE, which
carries with it
a right to compensation). The right to expropriate is known in some
legal systems as
the right of eminent domain. In the UK, expropriation requires
statutory authority
except in time of war or apprehended war (see ROYAL
PREROGATIVE).
ex proprio motu (ex mero motu) [Latin: of his own motion]
Describing acts that
a court may perform on its own initiative and without any
application by the
parties.
expulsion n. The termination by a state of an alien's legal entry
and right to
remain. This is often based upon the ground that the alien is
considered undesirable
or a threat to the state. Compare DEPORTATION.
extended sentence A sentence longer than the maximum prescribed for
a
particular offence, which was formerly imposed on persistent
offenders under
certain circumstances. The power to impose extended sentences was
abolished by
the Criminal Justice Act 1991.
extinguishment n. The cessation or cancellation of some right or
interest. For
example, an *easement is extinguished if the dominant and servient
tenements
come into the same ownership. Mere *non-user of an easement,
however, will not
cause it to be extinguished unless an intention to abandon it can
be shown.
extortion n. A common-law offence committed by a public officer who
uses his
position to take money or any other benefit that is not due to him.
If he obtains the
benefit by means of menaces, this may also amount to
blackmaiL
extradition n. The surrender by one state to another of a person
accused of
committing an offence in the latter. Extradition from the UK
relates to surrender
to foreign states (compare FUGITIVE OFFENDER) and is governed by
the Extradition Act
1989.There must be an *extradition treaty between the UKand the
state requiring
the surrender. The offence alleged must be a crime in the UKas well
as in the
requesting state, it must be both covered by the treaty and within
the list of
extraditable offences contained in the Act itself, and it must not
be of a political
character. See also DOUBLE CRIMINALITY.
extradition treaty A treaty under the terms of which a state agrees
to deport a
fugitive criminal (or suspect) to the state where the offence was
committed or to
the fugitive's state of nationality (see EXTRADITION). In the
latter case the crime in
question must be one that is a breach of the municipal law of the
national
committed outside the territorial boundaries of the state of which
he is a citizen.
Extradition treaties are bilateral in character and there is a lack
of uniformity in
their provisions and in their interpretation. However, they
invariably contain the
following three features: (1) the state that has custody will not
surrender the
fugitive unless prima facie evidence of his guilt is submitted to
them; (2)no political
offenders will be surrendered; (3)no surrender will be made unless
adequate
assurances are given that the accused will not on that occasion be
tried for any
offence other than the crime for which he is surrendered.
extrajudicial divorce A divorce granted outside a court of law by a
nonjudicial
process (such as a *ghet or a *talaq). An extrajudicial divorce
will not be recognized
in the UK if it takes place in the UK,Channel Islands, or Isle of
Man. See also
OVERSEAS DIVORCE.
extraordinary general meeting Any meeting of company members other
than
the *annual general meeting (see also GENERAL MEETING). Except when
the meeting is
for the passing of a *special resolution, 14 days' written notice
must be given (7 days
suffices in the case of an unlimited company). Only *special
business can be
transacted. Such a meeting can be convened by the directors at
their discretion or
by company members who either hold not less than 10%of the paid-up
voting
shares (see CALL) or, in companies without a share capital (see
LIMITED COMPANY;
UNLIMITED COMPANY), represent not less than 10% of the voting
rights.
extraordinary resolution A decision reached by a majority of not
less than 75%
of company members voting in person or by proxy at a general
meeting. It is
appropriate in situations specified by the Companies Act 1985, e.g.
*voluntary
winding-up. At least 14 days' notice must be given of the intention
to propose an
extraordinary resolution; if the resolution is to be proposed at
the annual general
meeting, 21 days' notice is required.
extraterritoriality n. A theory in international law explaining
*diplomatic
immunity on the basis that the premises of a foreign mission form a
part of the
territory of the sending state. This theory is not accepted in
English law (thus a
divorce granted in a foreign embassy in England is not obtained
outside the British
Isles for purposes of the Recognition of Divorces Act 1971).
Diplomatic immunity is
based either on the theory that the diplomatic mission personifies
- and is entitled
to the immunities of - the sending state or on the practical
necessity of such
immunity for the functioning of diplomacy.
extrinsic evidence Evidence of matters not referred to in a
document offered in
evidence to explain, vary, or contradict its meaning. Its
admissibility is governed by
the *parol evidence rule.
ex turpi causa non oritur actio [Latin: no action can be based on a
disreputable
cause] The principle that the courts may refuse to enforce a claim
arising out of the
claimant's own illegal or immoral conduct or transactions. Hence
parties who have
knowingly entered into an *illegal contract may not be able to
enforce it and a
person injured by a fellow-criminal while they are jointly
committing a serious
crime may not be able to sue for damages for the injury.
F
fact n. An event or state of affairs known to have happened or
existed. It may be
distinguished from law (as in *trier of fact) or, in the law of
evidence, from opinion
(see OPINION EVIDENCE). The facts in issueare the main facts that a
party carrying the
persuasive *burden of proof must establish in order to succeed; in
a wider sense
they may include subordinate or collateral facts, such as those
affecting the *credit
of a witness or the *admissibility of evidence. See
alsoFACTUM.
factor n. An agent entrusted with the possession of goods (or
documents of title
representing goods) for the purposes of sale. A factor is likely to
fall within the
definition of a *mercantile agent in the Factors Act 1889and to
have the powers of
a mercantile agent. A factor has a *lien over the goods entrusted
to him that covers
any claims against the principal arising out of the agency.
factum n. [Latin] 1. A *fact or statement of facts. For example, a
factum probans
(pl. facta probantia) is a fact offered in evidence as proof of
another fact, and a
factum probandum (pl. facta probanda) is a fact that needs to be
proved. 2. An act
or deed. See also NON EST FACTUM.
failure to maintain The failure of either spouse to provide
reasonable
maintenance for the other or to make a proper contribution towards
the
maintenance of any children of the family during the subsistence of
the marriage.
Upon proof of such failure, magistrates' courts have jurisdiction
to make orders for
unsecured periodical payments and for lump-sum orders not exceeding
£1000. The
divorce county courts and High Court have power to make orders for
periodical
payment (which may also be secured by a charge on the property of
the respondent
spouse) and for lump-sum orders (of any sum). It is no longer
necessary to prove
wilful neglect to maintain (i.e. deliberate withholding of
maintenance). Under the
Child Support Act 1991, application for periodical payments for
children can now
usually be made directly to the Child Support Agency (see CHILD
SUPPORT
MAINTENANCE) rather than the court.
failure to make disclosure Failure of a party to disclose documents
as required
by a disclosure direction (see DISCLOSURE AND INSPECTION OF
DOCUMENTS). This will lead
to an application to the court for an order compelling disclosure.
The court will
most likely consider an *unless order with some sanction for
noncompliance, e.g.
dismissal of action, striking out of the defence.
fair comment The defence to an action for *defamation that the
statement made
was fair comment on a matter of public interest. The facts on which
the comment
is based must be true and the comment must be fair. Any honest
expression of
opinion, however exaggerated, can be fair comment. but remarks
inspired by
personal spite and mere abuse are not. The judge decides whether or
not the matter
is one of public interest. See also ROLLED-UP PLEA.
fair dismissal *Dismissal of an employee when a tribunal decides
that an
employer has acted reasonably in dismissing the employee and that
the dismissal
was for a lawful reason, i.e. on the grounds of the employee's
capability,
qualifications, or conduct; redundancy; the fact that it would be
illegal to continue
employing the employee: or some other sufficient and substantial
reason. Compare
UNFAIR DISMISSAL.
fair rent Rent fixed by a rent officer or rent assessment
committee for the holder
of a *protected or *statutory tenancy. The rent is registered in
relation to the
property. When fixing the rent, no account is taken of the scarcity
of rented
property and therefore the rent is often lower than a market rent.
The rent of
*assured tenancies is fixed by agreement between the landlord and
tenant. The
tenant can apply to a *rent assessment committee to determine the
rent if the
landlord wishes to increase it. The committee must fix the rent at
the amount the
landlord could obtain on the open market. There is no registration
of rent for
assured tenancies, but the rents determined by rent assessment
committees are
recorded and this information is available to the public.
fair trading See DIRECTOR GENERAL OF FAIR TRADING.
fair trial A right set out in Article 6 of the European Convention
on Human
Rights and now part of UK law as a consequence of the *Human Rights
Act 1998.
The right to a fair trial applies in civil and criminal proceedings
and includes the
right to a public hearing (subject to some exceptions) by an
independent and
impartial tribunal established by law. In criminal cases there are
the following
specified rights: the *presumption of innocence; the right to be
told the details of
the case; to have time and facilities to prepare a defence and to
instruct lawyers
(with financial support where necessary); to call witnesses and
examine the
witnesses for the prosecution; and to have the free assistance of
an interpreter. See
also EQUALITY OF ARMS.
fairway n. The mid-channel of a navigable river, extending as near
to the shore as
there is sufficient depth of water for ordinary navigation.
fair wear and tear A phrase often found in repairing covenants in
leases. When a
tenant is not obliged to repair fair (reasonable) wear and tear
occurring during his
tenancy, he must nevertheless do any repairs to prevent
consequential damage
resulting from the original wear and tear. For example, if a slate
blows off a roof
the tenant is not liable to repair it, but he ought to prevent the
rain entering
through the hole and doing more damage.
false accounting An offence, punishable by up to seven years'
imprisonment,
committed by someone who dishonestly falsifies, destroys, or hides
any account or
document used in accounting or who uses such a document knowing or
suspecting
it to be false or misleading. The offence must be committed for the
purpose of gain
or causing loss to another. There is also a special offence (also
punishable by up to
seven years' imprisonment) committed by a company director who
publishes or
allows to be published a written statement he knows or suspects is
misleading or
false in order to deceive members or creditors of the company. See
also FORGERY.
false imprisonment Unlawful restriction of a person's freedom of
movement,
not necessarily in a prison. Any complete deprivation of freedom of
movement is
sufficient, so false imprisonment includes unlawful arrest and
unlawfully
preventing a person leaving a room or a shop. The restriction must
be total: it is not
imprisonment to prevent a person proceeding in one direction if he
is free to leave
in others. False imprisonment is a form of *trespass to the person,
so it is not
necessary to prove that it has caused actual damage. It is both a
crime and a tort.
Damages, which may be *aggravated or *exemplary, can be obtained in
tort and the
writ of *habeas corpus is available to restore the imprisoned
person to liberty.
false plea (sham plea) A statement of case that is obviously
frivolous or absurd
and is made only for the purpose of vexation or delay. A court may
order a
statement of case that would adversely affect the fair trial of
a case to be struck out
or amended.
false pretence The act of misleading someone by a false
representation, either by
words or conduct. The former offence of obtaining property by false
pretences is
now known as obtaining property by *deception.
false statement See PERJURY.
false trade description A description of goods made in the course
of a business
that is false in respect of certain facts (see TRADE DESCRIPTION).
Under the Trade
Descriptions Acts 1968 and 1972 it is an offence to apply a false
trade description to
goods either directly, by implication, or indirectly (e.g.by
tampering with a car's
mileometer or painting over rust on the bodywork). It is also an
offence to supply
or offer to supply goods to which a false trade description is
attached. These
offences are triable either summarily or on indictment (in which
case they carry a
maximum two years' prison sentence). They are offences of *strict
liability,
although certain specified defences are allowed (e.g. that the
defendant relied on
information supplied by someone else). The Acts are supplemented by
the Fair
Trading Act 1973.
falsification of accounts See FALSE ACCOUNTING.
family n. A group of people connected by a close relationship. For
legal purposes a
family is usually limited to relationships by blood, marriage, or
adoption, although
sometimes (e.g.for social security purposes) statute expressly
includes other people,
such as common-law wives (see COMMON-LAW MARRIAGE). The courts have
interpreted
the word "family" to include unmarried couples living as husband
and wife in
permanent and stable relationships. In the past, gay couples have
always been
excluded from the definition. However, in a recent case the court
interpreted the
word "family" in the Rent Act 1977to include the gay partner of a
deceased tenant.
family assets Property acquired by one or both parties to a
marriage to be used
for the benefit of the family as a whole. Typical examples are the
*matrimonial
home, furniture, and car. There is no special body of law dealing
with family assets
as such, but the courts have wide discretion to make orders in
relation to such assets
upon dissolution of the marriage and have developed flexible
guidelines to apply in
the case of family assets. Thus, one spouse will often acquire a
share in the home
owned by the other, by reason of his or her contributions to the
welfare of the
family and its finances.
family assistance order A court order under the Children Act 1989
that a
probation officer, or an officer of a local authority, should
advise, assist, and
befriend a particular child or a person closely connected with the
child (such as a
parent) in order to provide short-term support for the family. The
order can only be
made with the consent of the person it concerns (other than the
child) and has
effect for up to six months.
family credit See WORKING FAMILIES TAX CREDIT.
Family Division The division of the *High Court concerned with
*family
proceedings and noncontentious probate matters. Until 1971, it was
known as the
*Probate, Divorce and Admiralty Division. It may hear some appeals
(see APPELLATE
JURISDICTION). The chief judge of the Division is called the
President.
Family Health Services Authority (FHSA) See HEALTH AUTHORITY;
NATIONAL
HEALTH SERVICE.
family life A right set out in Article 8 of the European
Convention on Human
Rights and now part of UK law as a consequence of the *Human Rights
Act 1998.
The right to family life extends beyond formal relationships and
legitimate
arrangements. This right is a *qualified right; as such, the public
interest can be
used to justify an interference with it providing that this is
prescribed by law,
designed for a legitimate purpose, and proportionate. Public
authorities have a
limited but positive duty to protect family life from interference
by third parties.
The right to found a family (the right to procreation) is contained
in Article 12 of
the Convention.
family name See SURNAME.
family proceedings All court proceedings under the inherent
jurisdiction of the
High Court that deal with matters relating to the *welfare of
children. Before 1989
the court's powers to make orders concerning children varied,
depending on the
level of the court and the proceedings involved. The Children Act
1989,together with
the Family Proceedings Rules 1991, rationalized the court's powers
and created a
unified structure of the High Court, county courts, and
magistrates' courts. The
ambit of family proceedings is very wide, including proceedings for
*divorce,
domestic violence (see BAITERED SPOUSE OR COHABITANT), children in
care (see CARE
ORDER), *adoption, and *wardship and applications for a parental
order under section
30 of the Human Fertilization and Embryology Act 1990 (see SECTION
30 ORDER).
family provision Provision made by the courts out of the estate of
a deceased
person in favour of his family or *dependants. The court may award
a family
provision if it is satisfied that the provision made for the
applicant either by the
deceased person or by the law of intestacy is, in the
circumstances, unreasonable.
Farrand Committee A governmental committee set up in 1984 to
consider (1)
what tests were needed for non-solicitor conveyancers, and what
other requirements
should be imposed on them to ensure adequate consumer protection;
and (2) the
scope for simplifying conveyancing practice and procedure in
England and Wales.
*Licensed conveyancers were created in response to the
committee's
recommendations on (1), and the Conveyancing Standing Committee was
set up to
advise the Law Commission on (2).
fast track The track to which a civil case is allocated when the
amount claimed
exceeds £5000 but is less than £15,000 (see ALLOCATION). The fast
track provides a
streamlined procedure in order to ensure that any legal and other
costs remain
proportionate to the amount claimed. It achieves this through the
use of standard
directions by the court, a fixed timetable of about 30 weeks
between directions and
trial, a trial of one day only, no oral expert evidence to be used
in trial, and costs
being fixed dependent on the level of advocacy used.
fatal accidents Formerly, at common law, the death of either party
extinguished
the right to bring an action in tort. In addition, a person who
caused death was not
liable to compensate the deceased's relatives and others who
suffered loss because of
the death. Both rules have now been abolished by statute.
By the Law Reform (Miscellaneous Provisions) Act 1934, a right of
action by (or
against) a deceased person survives his death and can be brought
for the benefit of
(or against) his estate. Thus if a person is killed in a motor
accident due to the
negligence of the driver, an action can be brought against the
driver in the name of
the deceased; any damages obtained become part of the deceased's
estate. Actions for
defamation of a deceased person and claims for certain types of
loss are excluded
from the Act and do not survive death.
The Fatal Accidents Act 1976,amended by the Administration of
Justice Act 1982,
confers the right to recover damages for loss of support on the
dependants of a
person who has been killed in an accident, if the deceased would
have been able to
recover damages for injury but for his death. The class of
dependants who may sue
is defined by statute and includes such persons as spouses, former
spouses, parents,
children, brothers, and sisters. The main purpose of the action is
to compensate
dependants for loss of the financial support they could have
expected to receive
from the deceased. However, damages for bereavement may be claimed,
on the
death of a spouse or an unmarried minor child, by the surviving
spouse of the
former or the parents of the latter; other relatives have no claim.
The amount
awarded is currently fixed at £7500.Funeral expenses can be
recovered if incurred.
federal state A state formed by the amalgamation or union of
previously
autonomous or independent states. A newly created federal state is
constitutionally
granted direct power over the subjects or citizens of the formerly
independent
states. As such, the new federal state becomes a single composite
international legal
person. Those former entities that comprise it have consented to
subsume their
former sovereignty into that of the federal state, although they
retain their identity
in municipal law. Examples of federal states include the USAand
Switzerland.
Compare CONFEDERATION.
fee n. A legal estate (other than leasehold) in land that is
capable of being inherited.
Since the Law of Property Act 1925 the term's only modern
significance is in the
phrase *fee simple absolute in possession. All other such estates
that formerly
existed in fee are now equitable interests only.
fee farm rent See RENTCHARGE.
fee simple absolute in possession One of only two forms of
ownership of
land that, under the Law of Property Act 1925,can exist as a legal
estate (see also
TERM OF YEARS ABSOLUTE). All others take effect as equitable
interests. Fee simple
indicates ownership that is not liable to end upon any person's
death, with the
expiration of time, or on the failure of a particular line of
heirs. Absolute means
that the owner's rights are not conditional or liable to terminate
on the occurrence
of any event (except the exercise of a right of *re-entry - Law of
Property
(Amendment) Act 1926). In possessionmeans that the owner's rights
are immediate,
thus future interests do not qualify, but possession need not imply
actual physical
occupation (for instance, a person in receipt of rents and profits
can be said to be in
possession).
fee tail A legal estate in land that was abolished by the Law of
Property Act 1925.
It can now exist only as an equitable *entailed interest, and no
new entailed
interests can be created since 1997.
felony n. Formerly, an offence more serious than a *misdemeanour.
Since 1967 the
term has been abandoned (although it is retained in pre-1967
statutes that are still in
force) and the law formerly relating to misdemeanours now applies
to felonies. See
also ARRESTABLE OFFENCE; INDICTABLE OFFENCE; SUMMARY OFFENCE.
feme covert [Anglo-French] A married woman, under the *coverture of
her
husband.
feme sole [Anglo-French] An unmarried woman. The term includes a
widow or
divorcee or a woman whose marriage has been annulled.
ferae naturae See CLASSIFICATION OF ANIMALS.
ferry n. A public highway by boat across water connecting places
where the public
have rights (usually of way) granted by royal charter or acquired
by *prescription.
feudal system A political, economic, and social system in which the
main social
bond was the relationship between the Lord and others and in which
this personal
relationship was inseparable from a proprietary relationship that
existed between
them. It was introduced into England as a result of the Norman
Conquest (1066). At
its centre was the doctrine of tenures. All the land in the country
was regarded as
being owned by William I as the result of his conquest, and
thereafter only the
Crown could own land. The subject could merely hold it on a tenure,
either directly
from the Crown or indirectly through an intermediate superior. Such
lands as
William did not retain in his own possession he parcelled out to
his barons. Holding
directly from him, they were known as tenants-in-chief, and the
tenures on which
they held were knight service (which involved a duty to render
military service for
a specified number of days in each year), sergeanty (the
performance of personal
services), or frankalmoign (services of a religious character).
Tenants-in-chief
subgranted portions of their lands to lesser men to hold by tenure
from them, the
lesser men did likewise, and so on. The process of subgranting was
called
subinfeudation, and a man's immediate superior was known as his
mesne lord.
The principal tenures by which land was held through subinfeudation
were knight
service, frankalmoign, and socage (the rendering of agricultural or
other services of
a fixed nature, including the payment of money). All these tenures
were free
tenures. Much land was, however, held by unfree tenure, known as
*copyhold: its
tenant (a villein) was required to give any type of labour demanded
of him.
The system of tenures did not continue as an active force for more
than a few
centuries. The services to be performed were gradually commuted to
money
payments (quit rents), tenures were virtually reduced to socage and
copyhold by the
Statute of Military Tenures (or Tenures Abolition Act) 1660,and
copyhold was
converted into socage by the Law of Property Act 1922. However, the
theory that the
subject cannot own the land itself remains at the roots of land
law; what he can
own is an *estate in land, which entitles him to enjoy the land as
much as if he did
own it.
fiction n. An assumption that something is true irrespective of
whether it is really
true or not. In English legal history fictions were used by the
courts during the
development of forms of court action. They enabled the courts to
avoid cumbersome
procedures, to make remedies available when they would not be
otherwise, and to
extend their jurisdiction. For example, the action of *trover was
originally based on
the defendant's finding the claimant's goods and taking them for
himself. In time, it
became unnecessary to prove the "finding": a remedy was granted on
the basis only
of proving that the goods were the claimant's and that the
defendant had taken
them.
fiduciary [from Latin: fiducia, trust] 1. n. A person, such as a
trustee, who holds a
position of trust or confidence with respect to someone else and
who is therefore
obliged to act solely for that person's benefit. 2. adj. In a
position of trust or
confidence. Fiduciary relationships include those between trustees
and their
beneficiaries, company promoters and directors and their
shareholders, solicitors and
their clients, and guardians and their wards.
fieri facias (fi. fa.) [Latin: you should cause to be done] A writ
of execution to
enforce the payment of a debt when judgment has been entered
against the debtor.
The writ can also be used to enforce a judgment for payment of
damages. The writ
is addressed to the *sheriff requiring him to seize the property
of the debtor in
order to pay the debt, interest, and costs.
fieri feci [Latin: I have caused to be done] The report of the
*sheriff or other
appropriate officer saying how much he has recovered by levying
execution under a
writ of *fieri facias.
fi. fa. See FIERI FACIAS.
final act A document containing a formal summary of the proceedings
of an
international conference. The signature appended to the final act
is not regarded as
binding on the signatory state with regard to the treaties it
refers to. For the
document to be binding, a separate signature is required followed
by *ratification.
In rare circumstances, the final act can constitute a
*treaty.
final judgment The *judgment in civil proceedings that ends the
action, usually
the judgment of the court at trial. Appeal against a final judgment
may be made
without leave of the court. Compare INTERIM JUDGMENT.
final process A *writ of execution on a judgment or decree.
Finance Bill A parliamentary Bill dealing with taxation matters,
usually
introduced each year to enact the Budget proposals.
financial assistance (in company law) A loan, guarantee, security,
indemnity, or
gift by a registered company or any of its subsidiaries made for
the purpose of
assisting someone to acquire its shares. Under the Companies Act
1985, this is
unlawful unless it can be shown that the company's principal
purpose for giving
the assistance was not to finance the acquisition of its shares or
that the assistance
was an incidental part of another, larger, purpose of the company.
A *private
company may make such transactions, however, if the directors make
a declaration,
supported by the company's auditors, to the effect that the company
is able to pay
all its debts for at least one year following the assistance being
given. In addition,
the Companies Act 1985lays down a strict timetable for providing
the assistance,
which must be complied with by the private company.
financial provision order An order for periodical payments or a
lump sum
made for the purpose of adjusting the financial position of the
parties to a marriage
and any children of the family. Such orders may be made on or after
the granting
of a decree of divorce, nullity, or judicial separation or when one
party to the
marriage has failed to provide, or to make a proper contribution
towards, reasonable
maintenance for the other or a child of the family. On divorce,
judicial separation,
or nullity, the court also has the power to make *property
adjustment orders. In
determining whether to make financial provision orders, the court
has a very wide
discretion under section 25 of the Matrimonial Causes Act 1973.It
has an overriding
duty to give first consideration to the welfare of any child under
the age of 18 years
and to try to achieve a *clean break wherever possible. The Act
lists seven matters
that the court must take into account as part of the circumstances
it is to consider.
These include: the financial resources and needs each of the
parties has or is likely
to have in the foreseeable future; the age of the parties and the
length of the
marriage; the standard of living enjoyed by the family before the
breakdown of the
marriage; the contributions that each of the parties has made to
the welfare of the
family, which include looking after the home or caring for the
family; and the
conduct of the parties, but only where it would be very unjust to
ignore such
conduct. A recent landmark case in this area made it clear that the
implicit
objective of section 25 is to achieve a fair outcome and that there
should be no
discrimination between husbands and wives and their respective
roles (i.e. if one
spouse stays at home while the other goes out to work, this fact is
immaterial). A
starting point should be that assets are equally divided, unless
there is a good reason
for not doing so. See also MAINTENANCE PENDING SUIT; PROPERTY
ADJUSTMENT ORDER.
financial relief Any or all of the following: *maintenance pending
suit orders,
*financial provision orders, *property adjustment orders, and court
orders for
maintenance during the marriage and for the maintenance of children
(see CHILD
SUPPORT MAINTENANCE). The court has powers to set aside
transactions made by a
husband or wife with the intention of preventing a spouse from
making a claim for
financial relief, or to prevent such a transaction from taking
place (see AVOIDANCE OF
DISPOSITION ORDER). Financial relief provisions for children, other
than in matrimonial
proceedings, are consolidated in the Children Act 1989;for example,
it is possible for
unmarried parents and those in whose favour a residence order is
made to obtain
financial relief. In addition, children over the age of 18 have an
independent right to
seek financial relief from their parents.
financial year For statutes referring to finance, the period fixed
by a statute of
1854 as the 12 calendar months ending on 31 March. Annual public
accounts are
made up for this period. For income-tax purposes, the year runs to
5 April.
Companies and other bodies are free to choose their own financial
years for
accounting purposes. See also TAX YEAR.
fine n. 1. A sum of money that an offender is ordered to pay on
conviction. Most
*summary offences are punishable by a fine with a fixed maximum, in
accordance
with a standard scale of five levels. These are currently (2001) as
follows: level 1 £
200; level 2 - £500; level 3 - £1000; level 4 - £2500; level 5 -
£5000.Under the
Criminal Justice Act 1991, before fixing a fine, a court must
enquire into the
financial circumstances of the offender and the amount of the fine
fixed by the
court should, in addition, reflect the seriousness of the offence.
Sometimes provision
is made for imprisonment in cases of failure to pay the fine. A
fine may also be
imposed instead of, or in addition to, any other punishment for
someone convicted
on indictment (except in cases of murder). This fine is at large,
i.e. the amount is at
the discretion of the judge. Fines are often imposed upon companies
for breach of
statutory obligations; although the sums may be relatively small,
companies will try
to avoid being fined because of the bad publicity this may
cause.
When imposing a fine on an offender under the age of 16 (see
JUVENILE OFFENDER),
the court is not normally empowered to order the offender to pay
the fine himself
unless his parent or guardian cannot be found or it would be
unreasonable in the
circumstances to expect his parent or guardian to pay it. Otherwise
the offender
pays unless payment by the parent or guardian is more
appropriate.
2. A lump-sum payment by a tenant to a landlord for the grant or
renewal of a
lease. See also PREMIUM.
firearm n. For the purposes of the Firearms Act 1968,any
potentially lethal weapon
with a barrel that can fire a shot, bullet, or other missile or any
weapon classified as
a *prohibited weapon (even if it is not lethal). The Act creates
various offences in
relation to firearms. The main offences include: (1) buying or
possessing a firearm
without a licence; (2) buying or hiring a firearm under the age of
17 or selling a
firearm to someone under 17 (similar offences exist under the
Crossbows Act 1987 in
relation to crossbows); (3) possessing a firearm under the age of
14; (4) supplying
firearms to someone who is drunk or insane; (5)carrying a firearm
and suitable
ammunition in a public place without a reasonable excuse; (6)
trespassing with a
firearm; (7)possessing a firearm with the intention of endangering
life; (8)using a
firearm with the intention of resisting or preventing a lawful
arrest; (9) having a
firearm with the intention of committing an indictable offence;
(10) possessing a
firearm or ammunition after having previously been convicted of a
crime; and (11)
having a firearm in one's possession at the time of committing or
being arrested for
such offences as rape, burglary, robbery, and certain other
offences. The Firearms
Act 1982 extends the provisions of the 1968 Act to imitation
firearms that can be
easily converted to firearms and a 1988 Act strengthened controls
over some of the
more dangerous types of firearms, shotguns, and ammunition.
The Firearms (Amendment) Act 1997bans all handguns above .22
calibre. The
public may own and use less powerful pistols in secure gun clubs.
The pistols may
not be removed from the clubs without prior permission of the
police. The Act also
provided for the establishment of licensed gun clubs, tightened
police licensing
procedures, and introduced stronger police powers to suspend or
revoke certificates.
Anyone who uses a handgun must have a licence. The police have
powers to revoke
certificates when good reasons for possessing the gun no longer
exist. Illegal
possession of a prohibited weapon carries a maximum sentence of 10
years'
imprisonment. The government proposes to extend the ban to include
all privately
owned handguns; legislation is expected to be in force by the end
of 1997.
Under the Theft Act 1968 someone who has with him a firearm or
imitation
firearm while committing *burglary is guilty of aggravated
burglary. For the
purposes of this Act, a firearm may include an airgun, air pistol,
or anything that
looks like a firearm. See also OFFENSIVE WEAPON; REPEAT
OFFENDER.
fire damage An occupier of land or buildings is not liable for a
fire that begins
there accidentally (Fires Prevention (Metropolis) Act 1774).
Liability is imposed if the
fire is caused by negligence, nuisance, or a non-natural user of
the land or if the
fire, having started accidentally, is negligently allowed to
spread.
first offender A person with no previous conviction by a criminal
court. A court
of summary jurisdiction (see MAGISTRATES' COURT) is not empowered
to send a person
to prison for a first offence, unless it is satisfied that there is
no other appropriate
method of dealing with that person. See also SENTENCE.
fiscal year See TAX YEAR.
fishery n. See PISCARY.
fishery limits The area of sea over which a state claims exclusive
fishing rights,
except as agreed in treaties with other states. British fishery
limits extend to 200
nautical miles from the baselines used for measuring the
*territorial waters. Fishery
limits may be limited or restricted by bilateral or multilateral
fishing treaties or
agreements, such as the EU's *Common Fisheries Policy. The UK
Merchant Shipping
Act 1988 preventing "quota hopping" (see QUOTA) in British waters
by non-UK EU
vessels, such as Spanish and Dutch vessels, was held unlawful by
the European Court
of Justice in 1996.See alsoEXCLUSIVE ECONOMIC ZONE.
fit for habitation A statutory implied covenant applied to certain
tenancies at a
very low rent. Premises are regarded as not reasonably fit for
habitation if they are
defective in one or more of the following: repair, stability,
freedom from damp,
natural lighting, ventilation, water supply, drainage and sanitary
conveniences,
facilities for cooking and for storage and preparation of food, and
disposal of waste
water. These provisions are currently under review. A landlord
normally has no
obligation to see that premises are fit for habitation when the
statutory provisions
do not apply. There is an implied term that furnished tenancies are
fit for
habitation at the commencement of the tenancy.
fitness for purpose A standard that must be met by one who sells
goods in the
course of a business. When the buyer makes known to the seller any
particular
purpose for which the goods are being bought, there is an implied
condition that
the goods are reasonably fit for that purpose, except when the
circumstances show
that the buyer does not rely (or that it is unreasonable for him to
rely) on the skill
or judgment of the seller.
fixed charge See CHARGE.
fixed-date summons Formerly, a summons in the county courts used to
initiate
actions in which a claim was made for any relief other than the
payment of money.
Such a claim is now made by means of a *claim form.
fixed penalty notice A notice given to a person who has committed a
traffic
offence entitling that person to discharge any liability to
conviction by payment of
a prescribed amount of money in accordance with the Road Traffic
Offenders Act
1988.
fixed-sum credit Any facility (other than *running-account credit)
under a
*personal-credit agreement by which the debtor is entitled to
receive credit, either
in one amount or by instalments.
fixed term A tenancy or lease for a fixed period. The date of
commencement and
the length of a lease must be agreed before there can be a legally
binding lease. It
may take effect from the date of the grant, an earlier date, or a
date up to 21 years
ahead. At the end of the fixed term, the lease or tenancy comes to
an end
automatically: there is no need for a notice to quit. However, if
the tenancy is an
*assured tenancy, it will continue at the end of the term as a
*statutory periodic
tenancy unless it is brought to an end by *surrender of tenancy or
a court order. See
also HALF A YEAR; LONG TENANCY.
fixture n. A chattel that has been annexed to land or a building so
as to become a
part of it, in accordance with the maxim quicquid plantatur solo,
solo cedit
(whatever is annexed to the soil is given to the soil). Annexation
normally involves
actual affixation, but a thing resting on its own weight can be
regarded as annexed
if it can be shown that it was intended to become part of the land
or to benefit it.
Fixtures become the property of the freeholder, subject to certain
rights of removal
(as,for example, in the case of *trade fixtures and certain
agricultural fixtures). A
vendor of land may retain the right to fixtures as against the
purchaser by express
provision in the contract.
flag of convenience The national flag of a state flown by a ship
that is
registered in that state but is owned by a national of another
state. A state whose
law allows this practice can grant, in return for financial
considerations, nationality
and the right to fly its national flag to virtually any ship
without stipulating any
requirements, such as those relating to the safety of the ship and
crew, the
nationality of the vessel's owner, or the country of construction.
Before a state is
justified in extending its nationality to a ship, or permitting a
ship to fly its flag, it
seems that there must be some effective link connecting the ship
with the state.
Hence a flag of convenience may only be validly granted when a
genuine link exists,
though what constitutes such a link remains unclear. See alsoFLAG
STATE JURISDICTION.
flagrante delicto [Latin] In the commission of an offence. Certain
types of *arrest
can only be made when a person is in the act of committing an
offence (see
ARRESTABLE OFFENCE). The phrase is most commonly applied to the
situation in which
a person finds his or her spouse in the act of committing
adultery. Someone who
kills his or her spouse in this situation may have a defence of
*provocation.
flag state jurisdiction The rule whereby, exceptions applying, a
ship on the
*high seas is subject only to the jurisdiction of the flag state,
i.e. that state
permitting it the right to sail under its flag (see FLAG OF
CONVENIENCE).
floating charge See CHARGE.
flotation n. A process by which a public company can, by an issue
of securities
(shares or debentures), raise capital from the public. It may
involve a prospectus
issue, in which the company itself issues a *prospectus inviting
the public to
acquire securities; an offer for sale, in which the company sells
the securities on
offer to an issuing house,which then issues a prospectus inviting
the public to
purchase the securities from it; or a placing, whereby an issuing
house arranges for
the securities to be taken up by its own or another's clients in
the expectation that
they will ultimately become available to the public on the open
market. See also
RIGHTS ISSUE; TENDER OFFER; UNDERWRITER.
f.o.b. contract (free on board contract) A type of contract for the
international
sale of goods in which the seller's duty is fulfilled by placing
the goods on board a
ship. There are different types of f.o.b. contract: the buyer may
arrange the shipping
space and the procurement of a bill of lading and nominate the ship
to the seller; he
may nominate a general ship and leave it to the seller to place the
goods on board
and to procure a bill of lading; or the seller may be asked to make
all the shipping
arrangements for which the buyer will pay. The risk of accidental
loss or damage
normally passes to the buyer when the goods are loaded onto the
ship. Insurance
during the sea transit is the responsibility of the buyer. f.o.b.
is a defined *incoterm
in Incoterm 2000.
following trust property See TRACING TRUST PROPERTY.
football hooliganism The Sporting Events (Control of Alcohol etc.)
Act 1985
contains finable offences of possessing alcohol, being drunk, or
causing or
permitting the carriage of alcohol on trains and vehicles capable
of carrying nine or
more passengers; the vehicle must be carrying two or more
passengers to or from a
"designated sporting event" (mainly Footballl.eague club and
international fixtures),
and normal scheduled coach or train services are excluded. A
constable who
reasonably suspects that a relevant offence is being or has been
committed may stop
the vehicle or train and search it or the suspected offender. It is
also an offence to
be drunk or to possess alcohol or (unless lawful authority is
proved) fireworks and
similar objects (but not matches or lighters) in the viewing area
within two hours
before, during, or one hour after the event, or while trying to
enter. Under the
Public Order Act 1986,persons convicted of the above
alcohol-related offences, or
offences committed at the football ground, can be excluded by the
courts from
football matches. Admission to a designated football match is
controlled under the
Football Spectators Act 1989and is subject to the control of
disorderly behaviour
there under the Football (Offences) Act 1991. Under the Football
Spectators Act 1989,
a banning order may be made to prohibit an offender from attending
a football
match in England and Wales. Such an order may also require that the
offender
surrender his passport to prevent him travelling to a football
match abroad. See also
OFFENCES AGAINST PUBLIC ORDER.
footpath n. Under the Highways Act 1980,any *highway (other than a
*footway)
over which the public have a right of wayan foot only.
footway n. Under the Highways Act 1980, any way over which the
public have a
right of wayan foot only and which is part of a highway that also
comprises a way
for the passage of vehicles. Compare FOOTPATH.
forbearance n. A deliberate failure to exercise a legal right (e.g.
to sue for a debt).
A forbearance to sue at a debtor's request may be *consideration
for some fresh
promise by the debtor. A promise not to enforce a claim that is bad
in law may still
be consideration if the claim is believed to be valid. A requested
forbearance, even if
it is not binding, may have more limited effects either at common
law or in equity
(e.g. in certain circumstances it may not be revoked without
reasonable notice).
force majeure [French) Irresistible compulsion or coercion. The
phrase is used
particularly in commercial contracts to describe events possibly
affecting the
contract and that are completely outside the parties' control. Such
events are
normally listed in full to ensure their enforceability; they may
include *acts of God,
fires, failure of suppliers or subcontractors to supply the
supplier under the
agreement, and strikes and other labour disputes that interfere
with the supplier's
performance of an agreement. An express clause would normally
excuse both delay
and a total failure to perform the agreement.
forcible entry A common-law offence (as amended by various
statutes) that
applied under certain circumstances when force was used to gain
entry to premises.
The common-law offence has been replaced by a statutory *arrestable
offence of
using or threatening violence against people or property in order
to secure entry
into premises (Criminall.aw Act 1977). The offence only applies if
there is someone
present on the premises who is opposed to the entry and the
offender knows of this.
The fact that the offender is the legal owner or occupier of the
premises is not in
itself a defence. However, there is a special defence if the
offender can prove that he
was at the relevant time a displaced *residential occupier or
protected intending
occupier who requires the property for his residence and has a
qualifying freehold
or leasehold interest, tenancy, or licence and was seeking to gain
entry or to pass
through premises that form an access to his own place of
residential occupation.
These provisions do not apply to landlords seeking to regain
possession and it is a
summary offence to make false statements when claiming to be a
protected
occupier. It is not an offence, however, for a person unlawfully
evicted from his
own home to use force to re-enter, subject to the common-law rule
that the force
must not be excessive. The police may use force to enter with
lawful authority. See
also ADVERSE OCCUPATION.
foreclose down See REDEEM UP, FORECLOSE DOWN.
foreclosure n. A remedy available to a mortgagee when the mortgagor
has failed
to payoff a *mortgage by the contractual date for redemption. The
mortgagee is
entitled to bring an action in the High Court, seeking an order
fixing a date to pay
off the debt; if the mortgagor does not pay by that date he will be
foreclosed, i.e. he
will lose the mortgaged property. If, after this order (a
foreclosure order nisi) is
made, the mortgagor does not pay on the date and at the place
(usually a room in
the Royal Courts of Justice) named, the foreclosure is made
absolute and the
property thereafter belongs to the mortgagee. However, the court
has discretion to
allow the mortgagor to reopen the foreclosure and thereby regain
his property. The
remedy is unpopular: the mortgagee's *power of sale may be more
useful; moreover,
if the mortgaged property is worth less than the loan, the
mortgagee cannot sue for
the balance, a point that has recently re-acquired significance.
See also REPOSSESSION.
foreign agreement An agreement or contract the proper law of which
is the law
of some country other than England and Wales, Northern Ireland,
or Scotland. See
FOREIGN LAW; PROPER LAW OF A CONTRACT.
foreign bill Any bill of exchange other than an *inland bill. The
distinction is
relevant to the steps taken when the bill has been dishonoured (see
DISHONOUR).
foreign company A company incorporated outside Great Britain but
having a
place of business within Great Britain. Foreign companies are
subject to provisions
of the Companies Acts relating to registration, accounts, name,
etc. See OVERSEA
COMPANY.
foreign enlistment The offence under the Foreign Enlistment Act
1870 of
enlisting oneself or others (except with the licence of the Crown)
for armed service
with a foreign state that is at war with a state with which the UK
is at peace. A
foreign state for this purpose includes part of a province or
persons exercising or
assuming powers of government. It is also an offence under the Act
(again, except
with licence) to build or equip any ship for such service or to fit
out any naval or
military expedition for use against a state with which the UKis at
peace.
foreign judgments The *judgment of a foreign court may be enforced
in
England provided that the foreign court was competent and that the
judgment is
for a definite sum and is final and conclusive. At common law a
foreign court is
regarded as competent if (1) the judgment debtor, being a defendant
in the original
court, submitted to the jurisdiction of that court by voluntarily
appearing in the
proceedings otherwise than for the purpose of either protecting or
obtaining the
release of property seized (or threatened with seizure) in the
proceedings or of
contesting the jurisdiction of that court; (2) the judgment debtor
was claimant in or
counterclaimed in the proceedings in the original court; (3) the
judgment debtor,
being a defendant in the original court, had agreed before the
proceedings
commenced to submit to the jurisdiction of that court or of the
courts of that
country; or (4) the judgment debtor, being a defendant in the
original court, was
resident in the country of that court when the proceedings were
instituted (or, in
the case of a corporation, had its principal place of business in
that country).
In addition to the common-law rule, foreign judgments may be
registered for
enforcement by the English courts under a number of statutory
powers, notably
those contained in the Foreign Judgments (Reciprocal Enforcement)
Act 1933 and the
Civil Jurisdiction and Judgments Act 1982,which derive from such
international
conventions as the *Brussels Convention and the Lugano
Convention.
foreign law For the purposes of *private international law, any
legal system
other than that of England. A foreign legal system may be the
system of a foreign
state (one recognized by public *internationallaw) or of a law
district. Thus the law
of Scotland, Northern Ireland, the Channel Islands, and Isle of Man
and the law of
each of the American or Australian states or Canadian provinces is
a separate
foreign law. When an element of foreign law arises in an English
court, it is usually
treated as a question of fact, which must be proved (usually by
expert evidence) in
each case. The English courts retain an overriding power to refuse
to enforce (or
even to recognize) provisions of foreign law that are against
English public policy,
foreign penal or revenue laws, or laws creating discriminatory
disabilities or status.
See also COMMUNITY LAw.
foresight n. Awareness at the time of doing an act that a certain
consequence may
result. In the case of some crimes (e.g. *wounding with intent) an
*intention by the
accused to bring about a certain consequence must be proved before
he can be
found guilty; foresight is not enough (see also ULTERIOR INTENT).
However, conviction
for many crimes (including *wounding) requires only that the
accused foresaw a
specified consequence as likely or possible. In all cases where
foresight suffices for
liability, the court may not assume that the defendant had
foresight merely because
the particular consequence that occurred was the natural and likely
consequence of
his acts. See also RECKLESSNESS.
forfeiture n. Loss of property or a right as a consequence of an
offence or of the
breach of an undertaking. There are three main situations in which
the courts may
order forfeiture of property. (1) Property that is illegally
possessed is subject to
forfeiture. (2)Any property relating to an offence under the Misuse
of Drugs Act
1971or the Drug Trafficking Offences Act 1986 (see CONTROLLED
DRUGS) may be
forfeited and either destroyed or dealt with as the court sees fit
(this includes the
proceeds of the sale of drugs). (3)Property may be forfeited if it
is legally possessed
but used (or intended to be used) to commit a crime (e.g.a getaway
car) when the
owner has previously been convicted of an offence. Property
confiscated under this
heading is held by the police for six months and then disposed
of.
Most *leases provide for the landlord to terminate the lease when
the tenant is in
breach of his covenants. The landlord must follow a particular
procedure before
effecting forfeiture. From 24 January 1996 a freeholder cannot
forfeit a lease for
nonpayment of a service charge unless the lessee accepts the charge
or the
*leasehold valuation tribunal agrees. In the case of forfeiture for
nonpayment of
rent, the landlord must make a formal demand for the rent unless
the lease
exempts him from the need to do this. When other covenants have
been breached,
the landlord must serve a statutory notice on the tenant specifying
the breach,
requiring him to put it right where this is possible, and requiring
compensation in
money if appropriate. If the tenant fails to comply with the notice
the landlord may
proceed with forfeiture. This may be done through court proceedings
for possession
or, more rarely, by *re-entry. A landlord loses his right of
forfeiture if he treats the
lease as continuing when he is entitled to forfeit it. This is
known as waiver of
forfeiture. See also CONFISCATION ORDER; RACIAL HATRED; RELIEF FROM
FORFEITURE.
forgery n. The offence of making a "false instrument" in order that
it may be
accepted as genuine, thereby causing harm to others. Under the
Forgery and
Counterfeiting Act 1981, an "instrument" may be a document, a stamp
issued by the
Post Office or the Inland Revenue, or any device (e.g.magnetic
tape) in which
information is recorded or stored. An instrument is considered to
be "false" if, for
example, it purports to have been made or altered (1) by or on the
authority of
someone who did not in fact do so; (2) on a date or at a place when
it was not; or (3)
by someone who is nonexistent. In addition to forgery itself, it is
a criminal offence
under the Act to copy or use a false instrument, knowing or
believing it to be false.
It is also an offence merely to have in one's possession or control
anyone of certain
specified false instruments with the intention of passing them off
as genuine. It is
also an offence to make or possess any material that is meant to be
used to produce
any of the specified false instruments. These specified instruments
include money
or postal orders, stamps, share certificates, passports, cheques,
cheque cards and
credit cards, and copies of entries in a register of births,
marriages, or deaths. All the
above offences are punishable on indictment by up to ten years'
imprisonment and
upon summary trial to a *fine at level 5 on the standard scale
and/or six months'
imprisonment.
The Act also deals with the offences of counterfeiting currency
(notes or coin),
with or without the intention of passing it off as genuine;
possessing counterfeit
currency; passing it off; making or possessing anything which can
be used for
counterfeiting; and importing or exporting counterfeit currency. It
is also an
offence to reproduce any British currency note (e.g. to
photocopy a £5 note), even in
artwork, and, under certain circumstances, to make an imitation
British coin. Some
of these offences are subject to the same penalties as
forgery.
forum n. [from Latin: public place] The place or country in which a
case is being
heard. If a case involving a foreign element is brought in the
English courts, the
forum is England. See LEX FORI.
forum non conveniens [Latin: not in agreement with the judicial
forum] A
doctrine that permits a court to decline to accept jurisdiction
over a case, so that
the case may be tried in an alternative forum (i.e. a foreign
court). Such decisions are
almost entirely at the court's discretion, except that the party
seeking a forum non
conveniens decision must submit to the effective jurisdiction of
the alternative court.
The stay will be granted by the court if it is satisfied that a
foreign court having
competent jurisdiction is available and that the case may be tried
more suitably for
the interests of all the parties and the ends of justice in that
court. The factors that
courts generally consider in making this decision include the
location of witnesses,
exhibits, and documents, the language of the witnesses and
documents, the
citizenship of the claimants, and the law applicable to the
dispute.
In general, the burden of proof rests on the defendant to persuade
the court to
exercise its discretion to grant a stay, but if the court is
satisfied that another court
is available, the burden will then shift to the claimant to show
that there are special
circumstances requiring that the trial should nevertheless take
place in the first
court.
forum prorogatum [Latin] Prorogated jurisdiction, which occurs when
a power is
conferred - by the consent of the parties and following the
initiation of proceedings
- upon the International Court of Justice, which otherwise would
not have
adjudicated. Such consent can be indicated in an implied or
informal way or by a
succession of acts.
forum rei [Latin: forum of the thing] The court of the country in
which the
subject of a dispute is situated.
forum shopping The practice of choosing a country in which to bring
a legal
case through the courts on the basis of which country's laws are
the most
favourable. In some instances there is a choice of
jurisdiction.
foster child A child who is cared for by someone other than its
natural or
adopted parents or a person having parental responsibility (see
FOST~R PAREN:). Local
authorities are obliged by law to supervise the welfare of foster
children within
their area and to inspect and control the use of premises as foster
homes. Foster
children do not include children who are looked after by relatives
or guardians or
boarded out by a local authority or voluntary organization.
foster parent A person looking after a *foster child. Foster
parents have no le~al
rights over the children they foster, who may be removed from their
care by their
parents or legal guardian. They may, however, apply to have the
child made a ~ard
of court or apply for a residence order (see SECTION 8 ORDERS) when
a child has lived
with them for three years (or within that period if the local
authority gives its
consent), which will invest them with parental responsibility. If
the child has been
living with them for at least 12 months they may apply to adopt
him.
four-day order A supplemental order of a civil court fixing the
time for the
performance of an act in cases in which no time has been fixed by
the principal
order. In the Chancery Division this is known as a four-day order
although four days
is not invariably the time fixed.
four unities See JOINT TENANCY.
franchise n. 1. (in constitutional law) A special right conferred
by the Crown on a
subject. Also known as a liberty, it is exemplified by the right to
hold a market or
fair or to run a ferry. 2. (in constitutional law) The right to
vote at an election. To
qualify to vote at a parliamentary or local-government election, a
person must be a
*commonwealth citizen or a citizen of the Republic of Ireland, must
be aged 18 or
over, must be shown on the register of electors governing the
election (see ELECTOR)
as resident on the qualifying date in the parliamentary
constituency or local
government area concerned, and must not be subject to any legal
incapacity to vote.
Those incapacitated are peers and peeresses in their own right (for
parliamentary
elections only, and not including peers of Ireland), persons
serving sentences of
imprisonment, persons convicted during the preceding five years of
certain offences
relating to elections or to the bribery of public officials, and
persons who are
incapable of understanding the nature of their acts. 3. (in
commercial law) A licence
given to a manufacturer, distributor, trader, etc., to enable them
to manufacture or
sell a named product or service in a particular area for a stated
period. The holder of
the licence (franchisee) usually pays the grantor of the licence
(franchisor) a royalty
on sales, often with a lump sum as an advance against royalties.
The franchisor may
also supply the franchisee with a brand identity as well as finance
and technical
expertise. Franchises are common in the fast -food business, petrol
stations, travel
agents, etc. A franchise contract in the ED must comply with
regulation 4087/88,
which sets out which provisions are permitted and which are banned
under ED
*competition law.
franked income Formerly, income that a person or a company received
on which
*advance corporation tax had been paid. In the case of an
individual the tax paid
was imputed (see IMPUTATION SYSTEM) to the basic income-tax
liability of the recipient.
In the case of a company, it was imputed to its own liability to
corporation tax.
fraud n. A false representation by means of a statement or conduct
made
knowingly or recklessly in order to gain a material advantage. If
the fraud results in
injury to the deceived party, he may claim damages for the tort of
*deceit. A
contract obtained by fraud is voidable on the grounds of
fraudulent
*misrepresentation. See also CONSTRUCTIVE FRAUD. In relation to
crime, see CHEAT;
CONSPIRACY; CYBERCRIME; DEFRAUDING; DISHONESTY; FALSE PRETENCE;
FORGERY.
fraud on a power An exercise of a *power of appointment that,
although made
to an object within the class chosen by the donor, was made in
circumstances that
render it void. Examples are when the appointor intended to obtain
a benefit for
himself or another or when there was a deliberate intention to
defeat the intentions
of the donor of the power.
fraud on the minority An improper exercise of voting power by the
majority of
members of a company. It consists of a failure to cast votes for
the benefit of the
company as a whole and makes a resolution voidable. Examples are
the ratification
of an expropriation of company property by the directors
(themselves the majority
shareholders) and alteration of the articles of association to
allow the compulsory
purchase of members' shares when this is not in the company's
interests. Actual or
threatened fraud on the minority may give rise to a *derivative
action.
fraudulent conveyance A transfer of land made without
valuable
*consideration and with the intent of defrauding a subsequent
purchaser. An
example of fraudulent conveyance is when A, who has contracted
to sell to B,
conveys the land to his associate C in order to escape the contract
with B.Under the
Law of Property Act 1925,B is entitled to have the conveyance to C
set aside by the
court.
fraudulent misrepresentation See MISREPRESENTATION.
fraudulent trading Carrying on business with the intention of
defrauding
creditors or for any other fraudulent purpose, e.g. accepting
advance payment for
goods with no intention of either supplying them or returning the
money. Such
conduct is a criminal offence and the court may order those
responsible to
contribute to the company's assets on a *winding-up. See
alsoWRONGFUL TRADING.
freeboard n. Under the Merchant Shipping (Safety and Load Line
Conventions) Act
1932, the vertical distance measured amidships from the upper edge
of the deck line
to the upper edge of the load line mark.
freedom from encumbrance The freedom of property from the binding
rights
of parties other than the owner. In contracts for the sale of
goods, unless the seller
makes it clear that he is contracting to transfer only such title
as he or a third
person may have, there is an implied *warranty that the goods are
free from any
charge or encumbrance not disclosed or known to the buyer before
the contract was
made.
freedom of association A right set out in Article 11 of the
European
Convention on Human Rights and now part of UKlaw as a consequence
of the
*Human Rights Act 1998.This right protects freedom of peaceful
assembly,
including the right to form and join trade unions and similar
bodies. It is a
*qualified right; as such, the public interest can be used to
justify an interference
with it providing that this is prescribed by law, designed for a
legitimate purpose,
and proportionate. The right of those in the armed forces, the
police, and the
administration of the state is protected only to the extent that
any interference
with this right must be prescribed by law.
freedom of expression A right set out in Article 10 of the European
Convention
on Human Rights and now part of UK law as a consequence of the
*Human Rights
Act 1998."Freedom of expression constitutes one of the essential
foundations of a
democratic society, one of the basic conditions for its progress
and for the
development of every man...it is applicable not only to
'information' or 'ideas' that
are favourably received or regarded as inoffensive or as a matter
of indifference,
but also to those that offend, shock or disturb...such are the
demands of that
pluralism, tolerance and broadmindedness without which there is no
'democratic
society'." Convention jurisprudence gives different weight to
different kinds of
expression. The most important expression - political speech -
therefore is likely to
be protected to a much greater extent than the least important -
commercial
speech.
Freedom of expression is a *qualified right; as such, the public
interest can be
used to justify an interference with it providing that this is
prescribed by law,
designed for a legitimate purpose, and proportionate.
freedom of testation A person's right to provide in his will for
the distribution
of his estate in whatever manner he wishes. The principle is
restricted by the
powers of the court to set aside a will made by a person of unsound
mind (see
TESTAMENTARY CAPACITY) and to award *reasonable financial provision
from an estate
to certain relatives and dependants of the deceased under the
Inheritance (Provision
for Family and Dependants) Act 1975.
freedom of thought. conscience. and religion A right set out in
Article 9 of
the European Convention on Human Rights and now part of UKlaw as
a
consequence of the *Human Rights Act 1998. While freedom of thought
itself is an
*absolute right, and as such not subject to public-interest
limitations, the right to
manifest one's beliefs or religion is a *qualified right; therefore
the public interest
can be used to justify an interference providing that this is
prescribed by law,
designed for a legitimate purpose, and proportionate.
free elections A right set out in Article 3 of the First Protocol
to the European
Convention on Human Rights and now part of UK law as a consequence
of the
*Human Rights Act 1998.The state has a duty to hold free elections
at reasonable
intervals by secret ballot, under conditions that will ensure the
free expression of
the opinion of the people in the choice of the legislature. This
duty does not apply
to local elections (local authorities are not the legislature but
the European
Parliament is), and there is no duty to use any particular system
of voting
(proportional representation or first past the post).
free from average See AVERAGE.
freehold n. The most complete form of ownership of land: a legal
estate held in
*fee simple absolute in possession.
freeing for adoption Giving consent in general terms to the
*adoption of one's
child, as opposed to consenting to an adoption by particular
prospective adopters.
The procedure is used by an *adoption agency in cases in which the
parents freely
agree that the child may be adopted, or their consent is dispensed
with by the court
on one of the statutory grounds. Once an order is made, the
parental rights and
duties are transferred to the adoption agency, who may then proceed
to arrange for
the child's adoption without asking the parents' consent or
notifying them who the
adopters are. Adoption law is currently under review: if
recommendations are
adopted, freeing orders will be abolished.
free movement The movement of goods, persons, services, and capital
within an
area without being impeded by legal restrictions. This is a basic
principle of the
*European Community, whose treaty insists on the free movement of
goods
(involving the elimination of customs duties and quantitative
restrictions between
member states and the setting up of a *Common External Tariff) as
well as the free
movement of services, capital, and persons (including workers and
those wishing to
establish themselves in professions or to set up companies). See
also EXHAUSTION OF
RIGHTS.
free on board See F.O.B. CONTRACT.
freezing injunction An injunction, now consolidated in statute,
that enables the
court to freeze the assets of a defendant (whether resident within
the jurisdiction of
the English court or not). This prevents the defendant from
removing his assets
abroad and thus makes it worthwhile to sue such a defendant. The
remedy is
draconian and has become very popular, both in the commercial world
and outside
it; any person seeking the remedy, however, must himself disclose
all material
information to the court. Before the introduction of the Civil
Procedure Rules in
1999, freezing injunctions were known as Mareva injunctions, from
the case Mareva
Campania NavieraS.A. v International Bulkcarriers SA (1975).
frei~ht n. 1. The profit derived by a shipowner or hirer from the
use of the ship
by himself or by letting it to others, or for carrying goods for
others. 2. The
amount payable under a contract (of affreightment) for the carriage
of goods by sea.
frustration of contract The unforeseen termination of a contract
as a result of
an event that either renders its performance impossible or illegal
or prevents its
main purpose from being achieved. Frustration would, for example,
occur if the
goods specified in a sale of goods contract were destroyed
(impossibility of
performance); if the outbreak of a war caused one party to become
an enemy alien
(illegality); or if X were to hire a room from Y with the object
(known to Y) of
viewing a procession and the procession was cancelled (failure of
main purpose).
Unless specific provision for the frustrating event is made, a
frustrated contract is
automatically discharged and the position of the parties is, in
most cases, governed
by the Law Reform (Frustrated Contracts) Act 1943.Money paid before
the event can
be recovered and money due but not paid ceases to be payable.
However, a party
who has obtained any valuable benefit under the contract must pay a
reasonable
sum for it. The Act does not apply to certain contracts for the
sale of goods,
contracts for the carriage of goods by sea, or contracts of
insurance.
fugitive offender A person present in the UKwho is accused of
committing an
offence in a Commonwealth country or a dependent territory of the
UKand is liable
to be surrendered for trial under the Fugitive Offenders Act
1967.The requirements
for surrender are similar to those for *extradition to a foreign
state, except that no
treaty is involved.
full age See MAJORITY.
full powers A document produced by the competent authorities of a
state
designating a person (or body of persons) to represent the state
for negotiating,
adopting, or authenticating the text of a *treaty, for expressing
the consent of the
state to be bound by a treaty, or for accomplishing any other act
with respect to a
treaty. See also SIGNATURE OF TREATY.
full representation See COMMUNITY LEGAL SERVICE.
fully mutual housing association A housing association whose rules
restrict
membership to people who are tenants or prospective tenants of the
association and
prevent the granting or assigning of tenancies to those who are not
members. Fully
mutual housing associations are exempt from the *assured tenancy
provisions.
fundamental breach See BREACH OF CONTRACT; INNOMINATE TERMS.
funeral expenses The reasonable cost of a deceased person's burial,
which is the
first priority for payment from his estate.
furnished tenancy See ASSURED TENANCY; PROTECTED TENANCY.
future goods Goods to be manufactured or acquired by a seller after
a contract
of sale has been made. Future goods must be distinguished as the
subject of a
contract of sale from existing goods, which are owned or possessed
by a seller.
future interest Any right to property that does not take effect
immediately. An
example is B's interest in property held in trust for A for life
and then for B.Under
the Law of Property Act 1925future interests in land (with the
exception of *future
leases) can exist as equitable interests only and not as legal
estates.
future lease A lease that confers on the tenant the right to
possession of land
only from a specified future time. A lease, or contract to grant a
lease, that is made
in consideration of a capital payment or a rent and will take
effect more than 21
years after its commencement is void under the Law of Property Act
1925. Subject to
this, a future lease can qualify as a legal estate in land
G
game n. Wild animals or birds hunted for sport or food. The Game
Acts define
these as including hares, pheasants, partridges, grouse, heath or
moor game, black
game, and bustards. The right to game belongs basically to the
occupier, although in
leases it is frequently reserved to the landlord rather than the
tenant. See also
POACHING.
gaming (gambling) n. Playing a game in order to win money or
anything else of
value, when winning depends on luck. There are various restrictions
upon gaming,
dependmg on whether It takes place in controlled (i.e. licensed or
registered) or
uncontrolled premises. If the premises are uncontrolled, it is
illegal to playa game
that involves playing against a bank or a game in which each player
does not have
an equal chance or the chance of winning is weighted in favour of
someone other
than the players (e.g. a promoter or organizer), unless the game
takes place in a
private house in the course of ordinary family life. Thus one
cannot play roulette
with a zero in uncontrolled premises, but one may play such games
as bridge, whist,
poker, or cribbage. It is also illegal (subject to one or two
exceptions) to game when
a charge is made for the gaming or a levy is charged on the
winnings. Gaming in
any street or any place to which the public has access is illegal,
except for dominoes,
cribbage, or any game specially authorized in a pub (provided the
participants are
over 18). If the premises are controlled (either by the grant of a
licence or by
registration as a gammg club), the restrictions applying to
uncontrolled premises
apply unless they have been permitted by regulation. Thus
casino-type games may
be played on controlled premises for commercial profit if
permission has been
obtained, but only by members of licensed or registered clubs and
their guests.
There are also restrictions relating to playing on Sundays, and no
one under 18 may
be present when gaming takes place. It is illegal to use, sell, or
maintain gaming
machines without a certificate or licence.
gaming contract A contract involving the playing of a game of
chance by any
number of people for money or money's worth. A wagering contract is
one
involvi.ng two parties only, each of whom stands to win or lose
something of value
accordmg to the result of some future event (e.g.a horse race) or
to which of them
is correct about some past or present fact; neither party can have
any interest in the
contract except his stake. In general, gaming and wagering
contracts are by statute
null and void and no action can be brought to recover any money
paid or won under
them.
garden leave clause A clause in an employment contract that
provides for a
long period of notice by the employer, during which the employee
will be
remunerated in full but will not be required to attend at the
workplace. The use of
such clauses is increasing by employers wishing to safeguard trade
secrets or, more
Importantly, prevent a highly skilled employee from leaving to
undertake work for
a rival firm. An employee wishing to leave, or one who has been
head-hunted, could
be required to serve 'garden leave' for a period of up to one year
in order to
lawfully terminate his existing contract. Throughout the period of
garden leave an
employee will be subject to all the normal contractual restraints.
Management sees
the use of such clauses as an expensive, but reliable and
enforceable, alternative to
traditional *restraint of trade clauses. Moreover, these clauses
may be enforced by
way of injunction without encountering the difficulties that
arise with respect to
restraint of trade clauses, which are notoriously difficult to
draft and enforce.
garnishee n. A person who has been warned by a court to pay a debt
to a third
party rather than to his creditor. See GARNISHEE PROCEEDINGS.
garnishee proceedings A procedure by which a judgment creditor may
obtain a
court order against a third party who owes money to, or holds money
on behalf of,
the judgment debtor. The order requires the third party to pay the
money (or part
of it) to the judgment creditor. For example, if the judgment
debtor has £1000 in a
bank account and judgment has been entered against him for £500,
the court may
order the bank to pay £500 direct to the judgment creditor.
GATT See GENERAL AGREEMENT ON TARIFFS AND TRADE.
gazumping n. The withdrawal by a vendor from a proposed sale of
land in the
expectation of receiving a higher price elsewhere after agreeing
the price with a
purchaser but before a legally binding contract has been made (see
EXCHANGE OF
CONTRACTS). The first prospective purchaser has no legal right
either to compel the
vendor to sell to him or to recover his wasted expenditure (such as
surveyor's and
solicitor's charges) unless an agreement, such as a <lock-out
agreement, has been
signed.
GBH See GRIEVOUS BODILY HARM.
gender reassignment A physiological and ultimately surgical
procedure, under
medical supervision, for the purpose of changing a person's sexual
characteristics.
The process is undertaken by *transsexuals (estimated to number
some 5000 in the
UK). Initially discrimination in the workplace with respect to a
person's sexual
orientation or transsexualism was outside the ambit of the Sex
Discrimination Act
1975 (see SEX DISCRIMINATION). The definition of sex within that
Act referred to
discrimination on grounds of biological gender and hence covered
discrimination
only between men and women. As a result of a series of test cases
taken before both
the European Court of Justice and the European Court of Human
Rights, the UKSex
Discrimination Act must now be construed to include both sexual
orientation and
transsexualism within its definition. However with respect to
transsexualism, as
gender reassignment is an ongoing process, it was necessary to
introduce supporting
regulations, to clarify the protections to be given at the
workplace to a transsexual
undergoing this process. The Sex Discrimination (Gender
Reassignment) Regulations
1999 bring UK law into line with the decision of the European Court
of Justice in P v
S and Cornwall CountyCouncil 1996, the case in which discrimination
on grounds of
gender reassignment was ruled to be contrary to European Community
law.
The Regulations provide protection against discrimination by
employers at all
stages of the reassignment process, starting when an individual
indicates an
intention to begin reassignment. The Regulations also cover
recruitment procedures,
vocational training, and discrimination with respect to pay (see
EQUAL PAY). The Sex
Discrimination Act as amended by the Regulations outlaws direct
discrimination and
provides for employees who are absent from work to undergo
treatment to be
treated no less favourably than they would be if the absence was
due to sickness or
personal injury. The protection is extended to postoperative
treatment on a
transsexual's return to work. A defence to a claim of unlawful
treatment is also
provided in relation to the employment in question, if being a man
or woman is a
genuine occupational qualification for the job. This could arise,
for example, if an
employee recruited to a sex-specific post begins the gender
reassignment process, or
if the job involves the holder of the post to perform intimate
physical body
searches, or if the nature or location of the establishment makes
it impracticable for
the holder of the job to live elsewhere than on the premises
provided by the
employer and the issue of decency and privacy must be taken into
consideration.
~he Depart.ment for W~rk and Pensions (formerly Employment) has
produced a
guide to the implementarion of these Regulations. It offers further
assistance to
employers on such issues as: whether or not an employee should be
redeployed
following treatment, the amount of time off necessary for surgical
procedures, and
the expected point or phase of change of name and personal details
and the required
amendments to records and systems. Further assistance given relates
to
confidentiality issues: informing line managers, colleagues, and
clients. The guide
also of~ers advice on agreeing a procedure between the employee and
employer
r~gardmg a c?a~ging in dress code and agreeing when individuals
will start using
smgle-sex facilities at the workplace in their new gender.
general act See TREATY.
general agent See AGENT.
General Agreemen.t on Tariffs and Trade (GATT) An international
treaty
signed in 1947 to provide for some measure of world free trade with
the aim of
reducing high tariffs on goods. Its objectives in extending free
trade have been
achieved in a series of eight negotiations (rounds); the last of
these, the Uruguay
Round (1986-94), led to the establishment of the *World Trade
Organization and
further agreement to ensure more free trade around the world.
general and special damages A classification of *damages awarded
for a tort
or a breach of contract, the meaning of which varies according to
the context.
1. General damages are given for losses that the law will presume
are the natural
an? probable consequence of a wrong. Thus it is assumed that a
libel is likely to
injure the reputation of the person libelled, and damages can be
recovered without
proof that the claimant's reputation has in fact suffered. Special
damages are given
for losses that are not presumed but have been specifically proved.
2. General
damages may also mean damages given for a loss that is incapable of
precise
estimation, such as *pain and suffering or loss of reputation. In
this context special
damages are damages given for losses that can be quantified, such
as out-of-pocket
expenses or earnings lost during the period between the injury and
the hearing of
the action.
General Assembly (of the UN) See UNITED NATIONS.
general average See AVERAGE.
General Council of the Bar of England and Wales See BAR
COUNCIL.
general defences Common-law defences to any common-law or statutory
crimes:
WIth one exception (*insanity), these defences relate to
*involuntary conduct. A
defendant should be acquitted when the magistrates or jury have a
reasonable doubt
as to whether he was entitled to a general defence. By contrast,
special defences
are confined to individual offences, are usually of statutory
origin, and usually place
a *burden of proof on the defendant to show that he acted
reasonably. See also
AUTOMATISM; IMPOSSIBILITY; MISTAKE; SELF-DEFENCE.
general equitable charge A class of *land charge, registrable under
the Land
Charges Act (see REGISTRATION OF ENCUMBRANCES), that affects a
*legal estate in land
but neither arises under a trust nor is secured by deposit of the
title deeds.
general improvement area A predominantly residential area in which
a
housing authority considers that it should improve or help to
improve living
conditions by improving dwellings or amenities (or both). See
also HOUSING ACTION
AREA; PRIORITY NEIGHBOURHOOD.
general issue A plea in which every allegation in the opposite
party's pleading is
denied. In civil proceedings it is no longer permitted. Instead,
each allegation must
be specifically admitted or denied. In criminal cases the defendant
pleads the
general issue by pleading *not guilty and cannot generally be
required to disclose
the nature of his defence until his own case is presented (but see
ALIBI).
general legacy See LEGACY.
general lien See LIEN.
general meeting A meeting of company members whose decisions can
bind the
company. Certain reserved powers, specified by the Companies Act,
can only be
exercised by a general meeting. These include alteration of the
memorandum and
articles of association, removal of a director before his term of
office has expired,
*alteration of share capital, the appointing of an auditor other
than upon a casual
vacancy, and putting the company into voluntary winding-up. Powers
may also be
reserved by the articles of association of a particular company.
Powers other than
reserved powers are usually delegated in the articles to the
directors. The general
meeting can overrule the directors' decision in relation to these
delegated powers by
*special resolution, but this will not affect the validity of acts
already done; it could
also, while exercising reserved powers, dismiss the directors or
alter the articles and
thus the delegation. General meetings are either *annual general
meetings or
*extraordinary general meetings. Unless the articles of association
provide or the
court orders otherwise, at least two company members must be
present personally.
general participation clause A clause in the *Hague Conventions of
1899and
1907.The clause, concerning the conduct of hostilities, stipulates
that the
Conventions shall be binding upon the belligerents only so long as
all belligerents
are parties to the Convention. The effect of this clause was to
significantly weaken
the effectiveness of the Hague Convention rules.
general power See POWER OF APPOINTMENT.
general power of investment A power, introduced by the Trustee Act
2000,
that allows a trustee to make any kind of investment that he could
make if he were
absolutely entitled to the assets of the trust fund. Previously,
trustees were only
permitted to make certain *authorized investments. This much wider
general power
of investment may be expressly excluded in the trust instrument.
There are still
some restrictions on investments in land. In exercising the general
power of
investment, the trustees are required by the Act to consider
criteria relating to the
suitability of the proposed investment to the trust and the need
for diversification
of investment within the unique circumstances of the trust.
Trustees are also
required by the Act to review the investments from time to time
with the same
standard criteria in mind. Before investing, the trustee must
obtain and consider
proper advice, unless he reasonably considers it unnecessary or
inappropriate to do
so.
general principles of law According to the Statute of the
*International Court
of Justice, the source for rules of international law can be found
in what it terms
"General Principles of Law". The majority of Western jurists
consider that these
principles should be based on those underlying the municipal legal
systems of
civilized states, especially those of Europe and the USA. These
jurists also consider
the general principles to be a law-creating source that is
independent of either
treaties or custom. Due to their possible bias towards certain
Western capitalist
countries, these propositions have proved highly contentious in the
Third World and
Socialist countries, which have endeavoured to limit the scope of
the principles.
general safety requirement A standard of safety that consumer goods
must
meet in order to comply with the Consumer Protection Act 1987and
the General
Product Safety Regulations 1994.The goods are required to be
reasonably safe having
regard to all the circumstances, e.g. the way the goods are
marketed, including any
instructions or warnings about their use; their compliance with
published safety
standards for goods of that kind; and whether reasonable steps
could be taken to
make them safer. Suppliers of consumer goods who fail to meet the
safety
requirement commit an offence.
general verdict 1. (in a civil case) A *verdict that is entirely in
favour of one or
other party. 2. (in a criminal case) A verdict either of *guilty or
*not guilty.
Compare SPECIAL VERDICT.
general warrant A warrant for arrest that does not name or describe
the person
to be arrested, or a search warrant that does not specify the
premises to be searched
or the property sought. Such warrants are usually illegal, although
they may
sometimes be expressly authorized by statute (see POWER OF SEARCH).
Someone
arrested under an illegal general warrant can claim damages for
*false
imprisonment. Sometimes, however, Parliament grants a general power
of arrest
while searching premises with a search warrant, e.g. under the
Betting, Gaming and
Lotteries Act 1963.
general words Words in a *conveyance describing rights and benefits
that are
incidental to the land (such as easements and profits aprendre) and
that are
conveyed with it. Under the Law of Property Act 1925 such words are
no longer
necessary, since a conveyance of land is deemed to include all such
ancillary rights
unless a contrary intention is expressed in the document.
genetic fingerprinting See DNA FINGERPRINTING.
Geneva Conventions A series of international conventions on the
laws of war,
the first of which was formulated in Geneva in 1864. The 1864 and
1906 Conventions
protect sick and wounded soldiers; the Geneva Protocol of 1925
prohibits the use of
gas and bacteriological warfare; the three Conventions of 1929 and
the four
Conventions of 1949 protect sick and wounded soldiers, sailors, and
prisoners of war,
and the 1949 Conventions protect, in addition, certain groups of
civilians. The First
Protocol of 1977supplements the 1949 Conventions, extending
protection to wider
groups of civilians, regulating the law of bombing, and enlarging
the category of
wars subject to the 1949 Conventions (to include, for example,
civil wars). The 1949
Conventions are accepted by many states and are generally
considered to embody
customary international law that relates to war. See also HAGUE
CONVENTIONS; MARTENS
CLAUSE.
genocide n. Conduct aimed at the destruction of a national, ethnic,
racial, or
religious group. Genocide, as defined in the United Nations
Convention on the
Prevention and Punishment of the Crime of Genocide 1948, includes
not only killing
members of the group, but also causing them serious physical or
psychological
harm, imposing conditions of life that are intended to destroy them
physically or
measures intended to prevent childbirth, or forcibly transferring
children of the
group to another group, if these acts are carried out with the
intention of
destroying the group as a whole or in part. Destruction of a
cultural or political
group does not amount to genocide. The Genocide Convention 1948
declares that
genocide is an international crime; the parties to the
Convention undertake to
punish not only acts of genocide committed within their
jurisdiction but ~lso
complicity in genocide and conspiracy, incitement, and attempts to
commit
genocide. The Convention has been enacted into English law by
~he.GenoClde Act
1969. It is generally considered that the Convention embodies
principles of
customary international law that bind all nations, including those
that are not
parties to the Convention. See also WAR CRIMES; HUMANITARIAN
INTERVENTION.
ghet n. A Jewish religious divorce, executed by the husband
d.elivering a bill. of .
divorce (which must be handwritten according to specific detailed
rules) to hIS WIfe
in the presence of two witnesses. In theory a ghet does not require
a court
procedure, but in practice it is usually executed through a court
because of the
many complexities of the relevant religious law. See also
EXTRAJUDICIAL DIVORCE.
gift n. A gratuitous transfer or grant of property. A legally valid
gift must
normally be effected by deed, by physical delivery in the case of
chattels, or by
*donatiomortis causa; the donor must intend ownership to pass as a
gift. However,
an imperfect gift (i.e.one for which the legal formalities have not
been observed)
may be treated as valid in equity in certain circumstances (see,
for example,
(PROPRIETARY) ESTOPPEL). A gift by will takes effect only on the
death of the testator.
gift aid A system for individuals and companies to d~nate mon~y to
c~arities and
for the charities to recover the tax paid on these donations (thus
mcreasmg the
value of the donation by 28% in 2001~02). The taxpayer must make a
gift aid
declaration to the charity, stating that the payment is to be
treated as gift aid. This
system was first introduced in 1990,but tax relief was subject to
the donation being
of a minimum value, most recently £250. From April 2000, the system
was extended
to gifts of any value, including regular and one-off payments. ~t
replaces the *deed
of covenant in favour of charities from that date, although
existing covenants
remain valid.
gift over A provision in a will or other settlement enab.ling an
interestin
property to come into existence on the termination or failure of a
prior mterest.
gipsy (gypsy) n. A person of a nomadic way of life with no fixed
abode. Formerly,
local authorities had a duty to provide sites for gipsies resortmg
to their areas. (The
strict definition of gipsy as a member of the Romany race did not
apply for this
purpose, but the term did not include travelling showm~n or New Ag~
travellers.)
Under the Criminal Justice and Public Order Act 1994 this duty IS
abolished,
although local authorities may provide sites if they wish. See
alsoTRESPASS;
UNAUTHORIZED CAMPING.
glue sniffing See INTOXICATION.
going public The process of forming a *public company or of
reregistering a
*private company as a public company.
golden handshake A payment, usually very large, made to a director
or other
senior executive who is forced to retire before the expiry of an
employment
contract (e.g.because of a takeover or merger) as compensation for
loss of office. It
is made when a contract does not allow payment in lieu of notice.
The first £30,000
is often tax-free.
golden hello A lump-sum payment to entice an employee of senior
level to join a
new employer. Whether or not the payment is tax-free depends on the
nature of the
payment.
golden rule See INTERPRETATION OF STATUTES; INTERPRETATION OF
WILLS.
golden share See SHARE.
good behaviour A term used in an order by a magistrate or by a
Crown Court
upon sentencing. The person named in the order should "be of good
behaviour"
towards another person (the complainant). The court may order that
the person
named enter into a *recognizance, and if he does not comply with
the order he may
be imprisoned for up to six months. The procedure may be used
against anyone who
has been brought before the court if there is a fear that he may
cause a breach of
the peace or if he is the subject of a complaint by someone (which
need not be based
on the commission of a criminal offence).
good consideration See CONSIDERATION.
good faith Honesty. An act carried out in good faith is one carried
out honestly.
Good faith is implied by law into certain contracts, such as those
relating to
commercial agency. See alsoUBERRIMAE FIDEI.
good leasehold title A form of title to registered leasehold land
(see LAND
REGISTRATION) that is equivalent to absolute leasehold title (see
ABSOLUTE TITLE) except
that the landlord's right to grant the lease is not guaranteed.
Good leasehold title
usually occurs when the lease appears valid on the face of it but
the documents
proving the landlord's title, or any superior lessor's title, have
not been registered at
the Land Registry.
good offices A technique of peaceful settlement of an international
dispute, in
which a third party, acting with the consent of the disputing
states, serves as a
friendly intermediary in an effort to persuade them to negotiate
between
themselves without necessarily offering the disputing states
substantive suggestions
towards achieving a settlement. See also CONCILIATION;
MEDIATION.
goods pl. n. Personal chattels or items of property. Land is
excluded, and the
statutory definition in the Sale of Goods Act 1979 also excludes
*choses in action and
money. It includes *emblements and things attached to or forming
part of land that
are agreed to be severed before sale or under a contract of
sale.
goodwill n. The advantage arising from the reputation and trade
connections of a
business, in particular the likelihood that existing customers will
continue to
patronize it. Goodwill is a substantial item to be taken into
account on the sale of a
business; it may need to be protected by prohibiting the vendor
from setting up in
the same business for a stated period in competition with the
business he has sold.
government circulars Documents circulated by government departments
on
behalf of ministers, setting out principles and practices for the
exercise of
ministerial powers delegated to others. These may provide mere
administrative
guidelines or they may be intended to have legislative effect
(i.e.as *delegated
legislation), in which case any purported exercise of the delegated
powers is invalid
unless it complies with them. See ULTRA VIRES.
government department An organ of central government responsible
for a
particular sphere of public administration (e.g.the Treasury). It
is staffed by
permanent civil servants and is normally headed by a minister who
is politically
responsible for its activities and is assisted by one or more
junior ministers, usually
responsible for particular aspects of departmental policy.
government-in-exile n. A government established outside its
territorial
jurisdiction. Following the German defeat of Poland in 1939, the
Polish government
transferred its operations to London and thereby became a
government-in-exile.
Grand Committees, Scottish and Welsh Committees of the House
of
Commons involved with matters relating to Scotland and Wales,
respectively. The
former consists of the 72 members representing Scottish
constituencies and 10-15
other members. A Bill certified by the Speaker as relating
exclusively to Scotland
may by standing orders of the House be referred to the Committee
for its second
reading, and the Committee also debates other purely Scottish
matters. The Welsh
Grand Committee, which consists of the 38 members representing
Welsh
constituencies and up to 5 others, is purely deliberative. It
considers matters relating
exclusively to Wales but is not empowered to undertake second
readings.
grant n. 1. The creation or transfer of the ownership of property
(e.g. an estate or
interest in land) by written instrument; for example, the grant of
a lease. See also LIE
IN GRANT. 2. A *grant of representation. 3. The allocation of
money, powers, etc., by
Parliament or the Crown for a specific purpose.
grant of representation Authority granted by the court to named
individuals
or to a *trust corporation to administer the estate of a deceased
person. The grant is
of *probate when the will is proved by the executors named in it or
of *letters of
administration when the deceased died intestate, the deceased's
will did not appoint
executors, or the executors named do not prove the will.
grants in aid Central government grants towards local authority
expenditure,
comprising specific grants for particular services (e.g.the police)
and rate support
grants to augment income generally.
grave hardship (in divorce proceedings) If a divorce petition is
based on a fiveyear
separation, the respondent may oppose the grant of the *decree nisi
on the
ground that the dissolution of the marriage will result in grave
financial or other
hardship and that it would be wrong in all the circumstances to
dissolve the
marriage. Such applications rarely succeed. See also DIVORCE.
Gray's Inn One of the four *Inns of Court, situated in Holborn. The
earliest claims
for its existence are c. 1320.
Greater London A local government area consisting of the 32 London
boroughs
(12 inner, and 20 outer), the *City of London, and the Inner and
Middle Temples. A
Greater London Council was established by the Local Government Act
1972but
abolished by the Local Government Act 1985 with effect from 1 April
1986. London
borough councils, which are unitary (single-tier) authorities, are
elected every fourth
year, counting from 1982 (see alsoLOCAL AUTHORITY). In 1998
Londoners voted in favour
of government proposals to elect a *Mayor of London and a *London
Assembly to
operate from 2000; the Great London Authority Act 1999 enacted
these proposals (see
also GREATER LONDON AUTHORITY). The City of London is distinct in
both constitution
and functions. The Temples have limited independent functions (e.g.
public health),
but are administered in many respects by the City's Common
Council.
Greater London Authority A body created by the Greater London
Authority Act
1999 and consisting of the *Mayor of London and the *London
Assembly. Its
principal purposes are to promote economic development and wealth
creation, social
development, and the improvement of the environment in Greater
London. The
*London Development Agency was created to further the first of
these aims.
green form Under the Legal Aid Act 1988,the form upon which an
application for
legal advice and/or legal assistance could be made by those within
the financial
limits on eligibility. Persons receiving certain specified social
security allowances
automatically qualified for green form advice. The name referred to
the colour of
the application form used. As from 1 April 2000, the *legal aid
scheme was replaced
by differing levels of legal service provided by the *Community
Legal Service, under
which the service offered by the green form scheme is most broadly
covered by the
level of service entitled legal help.
green paper See COMMAND PAPERS.
grievous bodily harm (GBH) Serious physical injury. Under the
Offences Against
the Person Act 1861 there are several offences involving grievous
bodily harm. It is
an offence, punishable by up to five years' imprisonment, to
inflict (by direct acts)
grievous bodily harm upon anyone with the intention of harming them
(even only
slightly); if the intention was merely to frighten the victim the
defendant is guilty
of *assault and *battery. It is an offence, punishable by a maximum
sentence of life
imprisonment, to cause grievous bodily harm to anyone with the
intention of
seriously injuring them or of resisting or preventing lawful
arrest. "Causing" in this
offence includes indirect acts, such as pulling a chair away from a
person so that he
falls and breaks his arm. If a person intends to cause grievous
bodily harm but his
victim actually dies, he is guilty of murder, even though he did
not intend to kill
him. Causing grievous bodily harm may also be an element in some
other offence,
e.g. *burglary. The courts have said that judges should not attempt
to define
grievous bodily harm for the jury, but should leave it to them, in
every case, to
decide whether the harm caused was really serious. See alsoWOUNDING
WITH INTENT.
gross See IN GROSS.
gross indecency A sexual act that is more than ordinary *indecency
but falls
short of actual intercourse. It may include masturbation and
indecent physical
contact, or even indecent behaviour without any physical contact.
It is an offence
for a man to commit an act of gross indecency with another man
unless both
parties are over 18, consent to the act, and it is carried out in
private. This is
punishable by up to two years' imprisonment or, if one of the
parties is under 18, by
up to five years' imprisonment. It is also an offence to cause or
arrange for a man to
commit an act of gross indecency with another man, even if the act
is carried out in
private and between consenting adults. It is an offence, punishable
by up to two
years' imprisonment, to commit an act of gross indecency with or
towards a child
(of either sex) under the age of 14 or to incite a child to commit
such an act.
gross negligence A high degree of *negligence, manifested in
behaviour
substantially worse than that of the average reasonable man.
Causing someone's
death through gross negligence could be regarded as *manslaughter
if the accused
appreciated the risk he was taking and intended to avoid it, but
showed an
unacceptable degree of negligence in avoiding it.
ground rent A rent reserved by a long lease of land. For example
when a house or
flat is sold on a lease for 99 years, the lessor may reserve a
small annual rent payable
throughout the term as well as the capital price payable on the
grant of the lease. In
essence, a ground rent ignores the value of the buildings on the
land. *Building
leases are sometimes granted in return for a ground rent rather
than a capital sum.
group accounts *Accounts required by law to be prepared by a
registered
company that has a *subsidiary company. Group accounts deal with
the financial
position of the company and its subsidiaries collectively.
group action A procedure in which a large number of claims arising
out of the
same event, or against the same defendant, are dealt with together
(e.g.proceedings
by the victims of a plane crash for damages for personal injury).
The court exercises
H
habeas corpus A prerogative writ used to challenge the validity of
a person's
detention, either in official custody (e.g.when held pending
deportation or
extradition) or in private hands. Deriving from the royal
prerogative and therefore
originally obtained by petitioning the sovereign, it is now issued
by the Divisional
Court of the Queen's Bench Division, or, during vacation, by any
High Court judge.
If on an application for the writ the Court or judge is satisfied
that the detention is
prima facie unlawful, the custodian is ordered to appear and
justify it, failing which
release is ordered.
habitual residence The place or country in which a person has his
home.
Habitual residence is necessary in order to establish
*domicile.
hacking n. Gaining unauthorized access to a computer system. This
is a summary
offence under the Computer Misuse Act 1990.Under this Act it is
also an offence,
triable summarily or on indictment, to engage in hacking with the
intention of
committing another offence (e.g. theft, diverting funds), or to
destroy, corrupt, or
modify computer-stored information or programs while hacking. This
offence can
be committed either through using one computer to gain access to
another
computer or simply by gaining access to one computer only.
*Copyright protection
applies. See alsoDATA PROTECTION.
Hague Conventions The Hague Conventions for the Pacific Settlement
of
International Disputes: a series of international conventions on
the laws of war (3 in
1899 and 13 in 1907). The 1899 Conventions established a *Permanent
Court of
Arbitration, which was active before the Permanent Court of
International Justice
and the *International Court of Justice functioned. The Hague
Conventions are still
in force but their provisions are often inapplicable to modern
warfare. See also
GENERAL PARTICIPATION CLAUSE; GENEVA CONVENTIONS; MARTENS
CLAUSE.
Hague Rules See BILL OF LADING; INTERNATIONAL CARRIAGE.
half a year (in a lease) A *fixed term that begins on a quarter day
and ends on the
next but one quarter day.
half blood See CONSANGUINITY.
half-pay A method of remunerating officers who are retained on the
active list
but are not for the time being required to perform military or
naval duties. It is
now only applicable to field marshalls.
half-secret trust (semi-secret trust) A trust whose existence is
disclosed on the
face of the will or other document creating it but the
beneficiaries of which are
undisclosed, though known to the secret trustee(s). See also SECRET
TRUST.
Hamburg Rules See BILL OF LADING; INTERNATIONAL CARRIAGE.
handguns See FIREARM.
handling stolen goods Dishonestly receiving goods that one knows or
believes
to be stolen or undertaking, arranging, or assisting someone to
retain, remove, or
dispose of stolen goods. Under the Theft Act 1968, this is an
offence subject to a
maximum sentence of 14 years' imprisonment. "Stolen goods" include
not only goods
that have been the subject of theft but also anything that has been
obtained by
"blackmail or *deception. The theft or other crime may have
occurred at any time
and anywhere in the world, provided the handling occurs in England
or Wales. There
is also a provision to extend the concept of stolen goods to the
proceeds of their sale.
Thus if A steals goods, sells them for £3000, and gives part of the
money to B,B is
guilty of handling if he knows the money represents the proceeds of
the sale of
stolen goods. If A then buys a car with the rest of the £3000 and C
agrees to dispose
of the car for A, knowing or believing that it was bought with the
proceeds of sale
of stolen goods, C will also be guilty of handling, since he has
"undertaken to dispose
of stolen goods". The crime is therefore very widely defined; it
also covers, for
instance, forging or providing new documents and number plates for
stolen cars
and contacting and negotiating with dealers in stolen property
(fences). See also
DISHONESTY.
Hansard n. The name by which the Official Report of Parliamentary
Debates is
customarily referred to (after the Hansard family, who - as
printers to the House of
Commons - were concerned with compiling reports in the 19th
century). Reporting
was taken over by the government in 1908,and separate reports for
the House of
Commons and the House of Lords are published by The *Stationery
Office in daily
and weekly parts. They contain a verbatim record of debates and all
other
proceedings (e.g.question time). Members of Parliament have the
right to correct
anything attributed to them, but may not make any other
alterations. In certain
circumstances Hansard may be used to discover the will of
Parliament, as an aid to
judicial statutory interpretation when legislation is unclear.
Compare JOURNALS.
harassment n. Under amendments made in 1994 to the Public Order Act
1986,an
offence is committed when harassment, alarm, or distress is caused
to the victim. See
HARASSMENT OF DEBTORS; HARASSMENT OF OCCUPIER; NUISANCE NEIGHBOURS;
RACIST ABUSE;
SEX DISCRIMINATION; STALKING; THREATENING BEHAVIOUR.
harassment of debtors Behaviour designed to force a debtor or one
believed to
be a debtor to pay his debt. This is a criminal offence, punishable
by fine, if the debt
is based on a contract and the nature or frequency of the acts
subject the debtor (or
members of his household) to alarm, distress, or humiliation.
Harassment also
includes false statements that the debtor will face criminal
proceedings or that the
creditor is officially authorized to enforce payment and using a
document that the
creditor falsely represents as being official. The offence may
overlap with the crime
of *blackmail, but it will also cover cases in which the creditor
believes he is
entitled to act as he does (which might not amount to
blackmail).
harassment of occupier The offence of a landlord (or his agent)
using or
threatening violence or any other kind of pressure to obtain
possession of his
property from a tenant (the residential occupier) without a court
order. The offence
is found in the Protection from Eviction Act 1977and includes
interfering with the
tenant's peace or comfort (or that of the tenant's household),
withdrawing or not
providing services normally required by the tenant (e.g. cutting
off gas or electricity,
even when the bills have not been paid), and preventing the tenant
from exercising
any of his rights or taking any legal or other action in respect of
his tenancy. The
Act does not apply, however, to a displaced residential owner, as
opposed to a
landlord (see alsoFORCIBLE ENTRY). The Protection from Harassment
Act 1997 prohibits
harassment; the offence is punishable with a jail sentence of up to
five years. See also
NUISANCE NEIGHBOURS.
harbouring n. Hiding a criminal or suspected criminal. This will
normally
constitute the offence of *impeding apprehension or prosecution.
See also ESCAPE.
hard law See SOFT LAW.
harmonization of laws The process by which member states of the EU
make
changes in their national laws, in accordance with *Community
legislation, to
produce uniformity, particularly relating to commercial matters of
common
interest. The Council of the European Union has, for example,
issued directives on
the harmonization of company law and of units of measurement.
Compare
APPROXIMATION OF LAWS.
hay bote See ESTOVERS.
headings pl. n. Words prefixed to sections of a statute. They are
treated in the
same way as *preambles and may be used to assist in resolving an
ambiguity.
Health and Safety Commission A body responsible for furthering the
general
purposes of the Health and Safety at Work Act 1974,for example by
advising and
promoting research and training. It also appoints a Health and
Safety Executive,
which shares with local authorities responsibility for enforcing
the Act and operates
for this purpose through such inspectorates as the Factories and
Nuclear
Installations Inspectorates. See also SAFETY AT WORK.
Health Authority A body through which the health service is
administered and
supplied at district level. Health Authorities came into being in
April 1996 with the
merger of the District Health Authorities and the Family Health
Service Authorities
(see NATIONAL HEALTH SERVICE), with the aim of ensuring better
coordination of
purchasing across primary and secondary health care. They are
responsible for
developing strategies to improve health and for securing a wide
range of health-care
services for their populations.
health records Records kept by the National Health Service about
patients. Under
the Access to Health Records Act 1990,from 1 November 1991most
patients were
given the right to see their health records. The patient does not
have to give a
reason for wanting access and can authorize someone else, such as
his solicitor, to
obtain access on his behalf. It is a policy of the Department of
Health that
individuals are permitted to see what has been written about them
and that healthcare
providers should make arrangements to allow patients to see, if
they wish,
records other than those covered by the 1990Act. This Act has been
amended by the
Data Protection Act 1998 (see also DATA PROTECTION).
Health Service Commissioners Commissioners (one each for England
and
Wales) instituted by the National Health Service Reorganization Act
1973.They
investigate complaints by members of the public of hardship or
injustice suffered
through failure in a health-care service and other cases of
maladministration by a
*Health Authority. They also now investigate complaints about
general
practitioners, dentists, pharmacists, and opticians. Complaints
must be made directly
to a Commissioner within one year of the date on which the matter
first came to
the complainant's notice. Certain matters (e.g.alleged professional
negligence) are
excluded from investigation. Both offices are in practice held by
the *Parliamentary
Commissioner for Administration.
hearing n. The trial of a case before a court. Hearings are usually
in public but the
public may be barred from the court in certain circumstances (see
IN CAMERA).
Hearing Officer An officer of the *European Court of Justice whose
role was
established in 1982 after criticism of the administrative nature of
the decisionmaking
process of the Commission in *competition law cases. His terms
of
reference were published in the Commission's XXth Report on
Competition Policy.
He organizes and chairs hearings, decides the date, duration, and
place of hearings,
seeks to ensure protection of the interests of defendants, and
supervises the
preparation of minutes of hearings. He will, in addition, prepare
his own report of a
hearing and make recommendations as to the future conduct of the
matter.
hearsay evidence Evidence of the statements of a person other than
the witness
who is testifying and statements in documents offered to prove the
truth of what
was asserted. In general, hearsay evidence is inadmissible (the
rule against hearsay)
but this principle is subject to numerous exceptions. In civil
cases, the Civil Evidence
Act 1995abolished the rule against hearsay. The 1995Act provides
that what in civil
litigation would formerly have been called "hearsay evidence" may
be used when a
notice of the intention to reply on that evidence is given. It is
for the court to
decide at trial what weight to put on any particular evidence,
whether it is hearsay
or not. At common law, there are numerous exceptions applicable to
both civil and
criminal cases, e.g. *declarations of deceased persons, evidence
given in former trials,
*depositions, *admissions, and *confessions. Some exceptions apply
only to criminal
cases, e.g. *dying declarations and statements admitted under the
Criminal Justice
Act 1988 (which makes most first-hand hearsay and certain business
documents
admissible). See also ADMISSIBILITY OF RECORDS; ORIGINAL
EVIDENCE.
hedgerow n. A row of shrubs or small trees bordering a field or
lane. Hedging of
ancient origin is protected under the Hedgerow Regulations 1997.
Farmers are
required to notify local authorities of their intention to uproot a
hedgerow,
allowing time for a protection order to be issued; the notification
period is
currently 42 days. Failure to comply with the regulations is
punishable by an
unlimited fine.
heir n. Before 1926, the person entitled under common law and
statutory rules to
inherit the freehold land of one who died intestate. The
Administration of Estates
Act 1925 abolished these rules of descent and the concept of
heirship, except that
*entailed interests and in certain rare cases the property of
mental patients devolve
according to the old rules. In addition, the Law of Property Act
1925 provides that a
conveyance of property in favour of the heir of a deceased person
conveys it to the
person who would be the heir under the old rules. Where these
exceptions apply, an
heir apparent is the person (e.g.an eldest son) who will inherit
provided that he
outlives his ancestor; an heir presumptive is an heir (e.g. a
daughter) whose right to
inherit may be lost by the birth of an heir with greater priority
(e.g.a son). See also
HEIRS OF THE BODY.
heir apparent See HEIR.
heirloom n. A *chattel that, by custom or close association with
land, passed on
the owner's death with his house to his heir and did not form part
of his residuary
estate. Heirlooms now pass to the deceased's personal
representatives unless special
provision is made for them to pass to the heir direct. When
heirlooms are held,
together with land, under a settlement, the *tenant for life is
entitled under the
Settled Land Act 1925 to sell the heirlooms. The price is payable
to the trustees as
*capital money.
heir presumptive See HEIR.
heirs of the body Lineal descendants who were entitled to inherit
freehold land
under the rules applying on intestacy before the Administration of
Estates Act 1925.
A conveyance of land "to A and the heirs of his body" creates an
*entailed interest
that devolves to descendants only, according to the old rules. Thus
(1) males are first
in priority and the principle of primogeniture applies, e.g. an
older son is preferred
to a younger; (2)in the absence of male heirs, females in equal
degree share the land
equally; and (3) lineal descendants of an heir represent him, thus
the son of an older
son who dies will inherit to the exclusion of a younger son.
Helms-Burton Act The Cuban Liberty and Democratic Solidarity
(Libertad) Act
1996: an Act of the US Congress under which nationals of third
states dealing with
US property expropriated by the Cuban revolutionary state, using
such property, or
benefiting by it may be sued for damages before American courts and
even face
being barred from entry into the United States.
help at court See COMMUNITY LEGAL SERVICE; ABWOR.
hereditament n. 1. Historically, any real property capable of being
passed to an
*heir. Corporeal hereditaments are tangible items of property, such
as land and
buildings. Incorporeal hereditaments are intangible rights in land,
such as
easements and profits it prendre. 2. A unit of land that has been
separately assessed
for rating purposes.
Her Majesty's Stationery Office (HMSO) The government's official
publisher,
which was privatized on 1 October 1996. Most of its functions were
taken over by
The *Stationery Office; however, certain of its functions have been
retained. These
include administration of Crown and Parliamentary copyright,
overseeing the
functions of the Queen's Printer in relation to Acts of Parliament,
statutory
instruments, and some other material of an official or legislative
nature, the
administration of the library subsidy, and provision of official
publications to
members of the European Parliament. It operates as part of the
Office of Public
Services in the Cabinet Office. The Copyright Unit of Her Majesty's
Stationery Office
handles day-to-day administration in this area.
high contracting parties The representatives of states who have
signed or
ratified a *treaty. From the point of view of international law it
is immaterial
where the treaty-making power resides (e.g.in a head of state, a
senate, or a
representative body): this is a question determinable by the
constitutional law of the
particular contracting state concerned. Other nations are entitled
only to demand
from those with whom they contract a de facto capacity to bind the
society that
they represent. The House of Lords has held that the determination
of who the high
contracting parties are is to be based upon the terms of the
individual treaty in
question. Thus the signatories, as well as the parties, can be
considered to be high
contracting parties.
High Court of Justice A court created by the Judicature Acts
1873-75, forming
part of the *Supreme Court of Judicature. Under Part 7 of the
*Civil Procedure
Rules, which sets out the rules for starting proceedings, the High
Court is restricted
to (1) personal injury claims of £50,000 or more, (2) other claims
exceeding £15,000, (3)
specialist High Court claims that are required to be placed on a
specialist list (e.g.
the Commercial List), and (4) claims that are required by statute
to be commenced in
the High Court. The High Court has *appellate jurisdiction in civil
and criminal
matters. It is divided into the three Divisions: the *Queen's Bench
Division,
*Chancery Division, and *Family Division.
high seas The seas beyond *territorial waters, i.e. the seas more
than 12 miles
from the coasts of most countries. The English courts have
jurisdiction to try
offences committed by anyone anywhere on the high seas in a British
ship. They also
have jurisdiction to try offences committed anywhere in the world
on board a
British-controlled aircraft while it is in flight. Sometimes these
offences amount to
the special crimes of "hijacking or *piracy.
The high seas as defined by Article 86 of the UN Convention on the
Law of the Sea
1982 exclude the *exclusive economic zone. However, the freedoms of
all states to
fly over, navigate, lay submarine cables, etc., in the exclusive
economic zone, as
stated in the earlier Geneva Convention on the High Seas 1958, have
been preserved
in Article 58 (1) of the UN Convention. See also LAW OF THE
SEA.
highway n. A road or other way over which the public may pass and
repass as of
right. Highways include *footpaths, *bridle ways, *driftways,
carriage ways, and culde-
sacs. Navigable rivers are also highways. A highway is created
either under
statutory powers or by dedication (express or implied) by a
landowner and
acceptance (by use) by the public. Once a highway has been created,
it does not cease
to be a highway by reason of disuse. Obstructing a highway is a
public nuisance (see
also OBSTRUCTION), and misuse of the public right to pass and
repass over a highway is
a trespass against the owner of the subsoil of the highway.
hijacking n. Seizing or exercising control of an aircraft in flight
by the use or
threat of force (the term derives from the call "Hi Jack," used
when illegal alcohol
was seized from bootleggers during Prohibition in the United
States). Hijacking is
prohibited in international law by the Tokyo Convention 1963, which
defines the
conditions under which jurisdiction may be assumed over hijackers,
but does not
oblige states to exercise such jurisdiction and does not create an
obligation to
extradite hijackers. There is also a Hague Convention of 1970 and a
Montreal
Convention of 1971 creating the offences of unlawfully seizing or
exercising control
of an aircraft by force or threats and of sabotaging aircraft;
these conventions
provide for compulsory jurisdiction as well as extradition. In
English law, hijacking
and similar offences are governed by the Hijacking Act 1971, the
Protection of
Aircraft Act 1973, and the Aviation Security Act 1982.
hire 1. vb. To enter into a contract for the temporary use of
another's goods, or
the temporary provision of his services or labour, in return for
payment. In the case
of goods, the person hiring them is a bailee (see BAILMENT). 2. n.
a. The act of hiring.
b. The payment made under a contract of hire.
hire purchase A method of buying goods in which the purchaser takes
possession
of them as soon as he has paid an initial instalment of the price
(a deposit) and
obtains ownership of the goods when he has paid all the agreed
number of
subsequent instalments and exercises his option to purchase the
goods. A hirepurchaseagreement
differs from a *credit sale agreement and a
sale-byinstalments
contract because in these transactions ownership passes when
the
contract is signed. It also differs from a contract of *hire,
because in this case
ownership never passes. Hire-purchase agreements were formerly
controlled by
government regulations that stipulated the minimum deposit and the
length of the
repayment period. These controls were removed in July 1982.
Hire-purchase
agreements were also formerly controlled by the Hire Purchase Act
1965, but most
are now regulated by the Consumer Credit Act 1974. In this Act a
hire-purchase
agreement is regarded as one in which goods are bailed in return
for periodical
payments by the bailee; ownership passes to the bailee if he
complies with the terms
of the agreement and exercises his option to purchase.
A hire-purchase agreement often involves a finance company as a
third party. The
seller of the goods sells them outright to the finance company,
which enters into a
hire-purchase agreement with the hirer. In this situation there is
generally no direct
contractual relationship between the seller and the buyer.
historic buildings See BUILDING PRESERVATION NOTICE; LISTED
BUILDING.
HM Procurator General See TREASURY SOLICITOR.
HMSO See HER MAJESTY'S STATIONERY OFFICE.
holder n. The person in possession of a *bill of exchange or
promissory note. He
may be the payee, the endorsee, or the bearer. A holder may sue on
the bill in his
own name. When value (which includes a past debt or liability) has
at any time been
given for a bill, the holder is a holder for value, as regards the
acceptor and all who
were parties to the bill before value was given. A holder in due
course is one who
has taken a bill of exchange in good faith and for value, before it
was overdue, and
without notice of previous dishonour or of any defect in the title
of the person who
negotiated or transferred the bill. He holds the bill free from any
defect of title of
prior parties and may enforce payment against all parties liable on
the bill.
holding company See SUBSIDIARY COMPANY.
holding out Conduct by one person that leads another to believe
that he has an
authority that does not in fact exist. By the doctrine of
*estoppel, the first person
may be prevented from denying that the authority exists. For
example, a person
who wrongly represents himself as being a partner in a firm will be
as liable as if
he were in fact a partner to anyone who gives credit to the firm on
the faith of the
representation.
holding over The action of a tenant continuing in occupation of
premises after
his lease has expired. If this is without the landlord's consent,
the landlord may
claim damages from the tenant. If, however, a landlord accepts rent
from a tenant
who is holding over, a new tenancy is created.
holograph n. A document written completely by the hand of its
author; for
example, a will in the testator's own handwriting.
homeless person Under the Housing Act 1996, one who has no
living
accommodation that he is entitled to occupy, or is unlawfully
excluded from his
own living accommodation, or whose accommodation is mobile and
cannot be placed
in a location where he is permitted to reside in it. Certain
homeless people (e.g. the
elderly or infirm or those with dependent children) have a
statutory right to
permanent local-authority accommodation or, if they became homeless
intentionally,
to temporary accommodation.
home-loss payment Additional compensation paid under the Land
Compensation
Act 1973 to a person on the compulsory acquisition of his property
if he has
occupied it as his principal residence throughout the preceding
five years.
Home Secretary The minister in charge of the Home Office, who is
responsible
throughout England and Wales for law and order generally (including
matters
concerning the police and the prison and security services) and for
a variety of other
domestic matters, such as nationality, immigration, race relations,
extradition, and
deportation. He also advises the sovereign on the exercise of the
*prerogative of
mercy.
homicide n The act of killing a human being. Unlawful homicide,
which
constitutes the crime of *murder, *manslaughter, or *infanticide,
can only be
committed if the victim is an independent human being (see
ABORTION), the act itself
causes the death (see CAUSATION), and the victim dies within a year
after the act
alleged to have caused the death. A British citizen may be tried
for homicide
committed anywhere in the world. Lawful homicide occurs when
somebody uses
reasonable force in preventing crime or arresting an offender, in
self-defence or
defence of others, or (possibly) in defence of his property, and
causes death as a
result. See alsoEXCUSABLE HOMICIDE.
homosexual conduct Sexual behaviour between persons of the same
sex. The
acts of *buggeryand *gross indecency are not crimes if the act is
committed in
private and both parties are over the age of 16 and consent to the
act. Lesbianism is
not a criminal act.
honorarium ri. A payment or reward made to a person for services
rendered by
him voluntarily.
honour clause An express statement in a *contract that an agreement
is
intended to be binding in honour only. The courts will usually
allow it to take effect
and so will not enforce the agreement.
horizontal agreements Agreements between companies at the same
level of
trade; for example, agreements between two or more manufacturers or
wholesalers,
rather than between a manufacturer and a distributor (compare
VERTICAL
AGREEMENTS). Horizontal agreements that restrict competition may
infringe the
competition provisions of *Article 81 of the Treaty of Rome and the
Chapter I
prohibition in the Competition Act 1998. Most *cartels are
horizontal agreements.
hospital order An order of the Crown Court or a magistrates' court
authorizing
the detention in a specified hospital (for a period of 12 months,
renewable by the
hospital managers) of a convicted person suffering from *mental
disorder. Unless a
*restriction order has also been made, discharge while an order is
in force may be
authorized by the managers or the doctor in charge or directed by a
*Mental Health
Review Tribunal.
hostage n. A person who is held as a security. Under the Taking of
Hostages Act
1982,it is an offence, punishable in the English courts by a
maximum sentence of
life imprisonment, to take anyone as a hostage against his will
anywhere in the
world and to threaten to kill, injure, or continue to hold him
hostage in order to
force a state, international governmental organization, or person
to do or not to do
something. This is an extraditable offence, but prosecutions may
only be brought
with the consent of the Attorney General. See also HIJACKING;
KIDNAPPING; TERRORISM.
hostile witness An *adverse witness who wilfully refuses to testify
truthfully on
behalf of the party who called him. A hostile witness may, with the
permission of
the court, be cross-examined by that party, for example by putting
to him a
*previous statement that is inconsistent with his present
testimony.
hotchpot n. The bringing into account, on distribution of an
intestate's estate, of
certain benefits separately conferred on the beneficiaries. In the
case of total
intestacy, the Administration of Estates Act 1925 expressly brings
the *rule against
double portions into operation. It provides that property given by
the intestate
during his lifetime to any of his children must be brought into
account, unless a
contrary intention is expressed or appears from the circumstances.
Thus if A gives
£10,000 to his son B,and dies intestate leaving an estate worth
£50,000 to which his
children Band C are entitled equally, Bwill in fact receive
£20,000and C £30,000. The
rule applies only to lifetime gifts made by way of advancement
(i.e. as permanent
provision and not for maintenance or temporary purposes). In the
case of partial
intestacy, benefits conferred by the will on a surviving spouse and
on the deceased's
issue (i.e. his children, grandchildren, and remoter direct
descendants) are also
brought into account.
hot pursuit, right of The right of a coastal state to pursue a
foreign ship within
its *territorial waters (or possibly its contiguous zone) and
there capture it if the
state has good reason to believe that this vessel has violated its
laws. The hot pursuit
may - but only if it is uninterrupted - continue onto the *high
seas, but it must
terminate the moment the pursued ship enters the territorial waters
of another
state, as such pursuit would involve an offence to the other state;
in these
circumstances *extradition should be employed instead.
house bote See ESTOVERS.
housebreaking n. Forcing one's way into someone else's house. If
this is carried
out with the intention of committing certain specified crimes in
the house, or if,
after breaking into a house, certain crimes then take place, the
housebreaking
amounts to *burglary. It is also a statutory offence, which is
punishable by up to
three years' imprisonment, if a person has with him any article
that he intends to
use in connection with burglary, theft, or criminal deception. In
addition to the
usual housebreaking implements, this includes such things as rubber
gloves to
conceal fingerprints.
House of Commons The representative chamber of *Parliament (also
known as
the Lower House), composed of 659 Members of Parliament (MPs)
elected for 529
single-member constituencies in England, 72 in Scotland, 40 in
Wales, and 18 in
Northern Ireland (see ELECTION; FRANCHISE). The total number of MPs
may within
certain limits be varied as a result of constituency changes
proposed by the
*boundary commissions.
A number of people are disqualified from membership. They include
those under
21, civil servants, the police and the regular armed forces, most
clergy (but not
Nonconformist ministers), aliens, those declared bankrupt,
convicted prisoners and
people guilty of corrupt or illegal practices, the holders of most
judicial offices (but
not lay magistrates), and the holders of a large number of public
offices listed in the
House of Commons Disqualification Act 1975. Public offices that
disqualify include
stewardship of the *Chiltern Hundreds and the Manor of Northstead.
The number
of members who may hold ministerial office is limited to 95. The
House of Lords
Act 1999removed an earlier disqualification on hereditary peers
from voting and
from being elected members of the House of Commons. The Removal of
Clergy
Disqualification Bill,when enacted, will permit all clergy to be
MPs.
The House is presided over by the Speaker,who is elected from
among
themselves by the members at the beginning of each Parliament. The
Speaker is
responsible for the orderly conduct of proceedings, which must be
supervised with
complete impartiality, and is the person through whom the members
may
collectively communicate with the sovereign. The Leader of the
Houseis a
government minister responsible for arranging the business of the
House in
consultation with the Opposition.
House of Commons Commission A body established in 1978 to supervise
the
staffing of the House. It consists of the Speaker, the Leader of
the House, and four
other members, one of whom is appointed by the Leader of the
Opposition.
House of lords The second chamber of *Parliament (also known as the
Upper
House), which scrutinizes legislation and has judicial functions.
The House of Lords
Act 1999substantially changed the constitution of the House by
excluding
hereditary peers from a place in the House as of right, although
for a transitional
period 92 were allowed to remain on merit. Of these, 75 were
elected by their own
political party or by cross-bench (usually non-party-political)
groups. A further 15
hereditary peers were elected to act as Deputy Speakers or
Committee chairmen.
Two hereditary royal appointments were also retained: the Earl
Marshal and the
Lord Great Chamberlain. The other members of the Lords are (as at
July 2001) life
peers (592) or bishops (26), comprising the Archbishops of
Canterbury and York, the
Bishops of London, Durham, and Winchester, and 21 other Anglican
bishops selected
according to seniority of appointment. Long-term reform of the
Lords is currently
being debated; a white paper published in November 2001 proposed
the following
composition of the Lords: 120 members to be elected by the public,
120 non-partypolitical
members to be selected by the *House of Lords Appointments
Commission,
up to 332 members to be nominated by party leaders, and 16
bishops.
The House is presided over by the *Lord Chancellor and its business
is arranged, in
consultation with the Opposition, by a government minister
appointed Leader of
the House. The Lords is the final court of appeal in the UK in both
civil and
criminal cases, although it refers some cases to the *European
Court of Justice for a
ruling. In its judicial capacity the Lords formally adopts opinions
delivered by an
Appellate Committee (of which there are two), and it is a
constitutional convention
that the only peers who may participate in the proceedings of the
committee are
the Lord Chancellor, the *Lords of Appeal in Ordinary, and others
who have held
high judicial office.
House of lords Appointments Commission A body that recommends
people
for appointment as non-party-politicallife peers and vets all
nominations for
membership of the House of Lords. Set up by the Government
following the House
of Lords Act 1999, which modernizes the Lords, the Commission is an
independent
nondepartmental public body staffed by civil servants.
housing action area An area declared to be such by a housing
authority on the
grounds that living conditions in it are unsatisfactory and should
be dealt with
comprehensively over a five-year period. This is done by special
measures to improve
the standards and management of accommodation and the well-being of
the
inhabitants. A housing action area may incorporate a *general
improvement area. See
also PRIORITY NEIGHBOURHOOD. Compare CLEARANCE AREA.
housing action trust (HAT) A statutory trust set up for a
particular area with
the objects to secure: the repair and improvement of housing in the
area; its proper
and effective management; greater diversity of kinds of tenure of
the housing; and
the improvement of social and living conditions in the area
generally. In their areas,
housing action trusts can be given power to exercise most of the
functions of a
housing authority and the planning control and public-health
functions of local
authorities. Local authority housing can be transferred to a
housing action trust by
government order if a majority of the tenants agree. A housing
action trust must
achieve its objects as quickly as possible and is then dissolved
and its property
disposed of. Housing action trusts were introduced by the Housing
Act 1988.
housing association A non-profit-making organization whose main
purpose is to
provide housing. A *fully mutual housing association is excepted
from the *assured
tenancy provisions. The *Housing Corporation can make grants to
housing
associations registered by them.
housing association tenancy A tenancy in which the landlord is a
housing
association, a housing trust, or the Housing Corporation. The
Housing Act 1996 gave
certain housing association tenants a right to buy their homes, and
they may be able
to obtain a grant towards the purchase price.
housing benefit A benefit payable by local authorities to those
with no or very
low incomes who pay rent for their housing. There are two types:
*rent rebates,
paid to the local authority's own needy tenants, and rent
allowances, paid to tenants
other than their own (e.g. Housing Association tenants).
Housing Corporation A body with functions under the Housing
Associations Act
1985and the Housing Act 1988.These include maintaining a register
of *housing
associations, promoting and assisting the development of - and
making and
guaranteeing loans to - registered housing associations and
unregistered *self-build
societies, and providing dwellings for letting or sale.
Housing for Wales A body set up under the Housing Act 1988,having
the
functions of the *Housing Corporation in respect to property and
housing
associations in Wales. It was abolished by the Government of Wales
Act 1998,its
functions being transferred to the Secretary of State pending
transfer of powers to
the Welsh Assembly (1999).
Housing Ombudsman An official appointed, under the Housing Act
1996,to deal
with complaints against registered social landlords (not including
loca~ authorities).
The first Housing Ombudsman was appointed with effect from 1
Apnl1997; he IS III
charge of the *Independent Housing Ombudsman.
housing subsidy An annual contribution from central government
funds,
payable under the Housing Act 1985,towards the provision of housing
by local
authorities and new town corporations.
housing trust A trust set up to provide housing, or whose funds are
devoted to
charitable purposes and which in fact uses most of its funds for
the provision of
housing. If it is a *fully mutual housing association, it is
exempted from the
*assured tenancy provisions. See alsoHOUSING ACTION TRUST.
human assisted reproduction Techniques to bring about the
conception and
birth of a child other than by sexual intercourse between the
parties. It includes
artificial insemination by the husband (AIH)or by a donor (Dr), in
vitro fertilization
(NF), and egg and embryo donation. Such methods mean it is no
longer possi.ble to
base legal parentage solely on genetic links. Under terms of the
Human Pertilization
and Embryology Act 1990,the legal mother is the woman who has given
birth to the
child, regardless of genetic parentage, unless the child is
subsequently adopted or a
*section 30 order is made. However, the Act is not retrospective
and the position of
children conceived or born before the Act came into force has yet
to be resolved.
The legal father is generally the genetic father except when the
latter is a donor
whose sperm is used for licensed treatment under the 1990Act, or
when the donor's
sperm is used after his death. If a wife conceives as a result o~
assis~ed reproduction.
her husband may be regarded as the child's legal father, even If he
1S not the genetic
father, as long as he consented to her treatment. However, this
does not hold for all
purposes. For example, in a recent case it was ruled that a peer's
"son" born by
donor insemination could not inherit his father's title when It was
found after the
peer's death that his wife had been impregnated by sperm from a
third party
(rather than from her husband) at the relevant clinic.
It is an offence to use female germ cells from an embryo or fetus,
or to make use
of embryos created from such germ cells, for the purpose of
providing a fertility
service. Such practice is already banned by the *Human
Fertilization and
Embryology Authority. The offence is triable only on *indictment
and is punishable
with up to ten years' imprisonment.
Human Fertilization and Embryology Authority A body, established
under
the Human Fertilization and Embryology Act 1990, that monitors,
controls, and
reviews research involving the use of embryos and issues licences
for such research
and for treatment in *human assisted reproduction. It must also
maintain a register
of persons whose gametes are kept or used for such purposes and of
children born
as a result. Children over the age of 18 can apply to the Authority
for information
concerning their ethnic and genetic background.
humanitarian intervention The interference of one state in the
affairs of
another by means of armed force with the intention of making that
state adopt a
more humanitarian policy, usually the protection of human rights of
minority
groups. Despite debate, such intervention is not recognized as
legal under the UN
Charter. However, states continue to rely on humanitarian grounds
as justification
for military action; examples of humanitarian intervention include
Vietnam's
invasion of Cambodia (1978), the declaration by the USA, the
UK,Russia, and France
of an air exclusion zone in southern Iraq in an effort to protect
the Shia Marsh
Arabs (1992), and military actions to protect the Muslim population
of Kosovo (1999).
human rights Rights and freedom to which every human being is
entitled.
Protection against breaches of these rights committed by a state
(including the state
of which the victim is a national) may in some cases be enforced in
international
law. It is sometimes suggested that human rights (or some of them)
are so
fundamental that they form part of *naturallaw, but most of them
are best
regarded as forming part of treaty law.
The United Nations Universal Declaration of Human Rights (1948)
spells out most
of the main rights that must be protected but it is not binding in
international law.
There are two international covenants, however, that bind the
parties who have
ratified them: the 1966 International Covenant on Civil and
Political Rights and
International Covenant on Economic, Social and Cultural Rights. The
United Nations
has set up a Commission on Human Rights, which has power to discuss
gross
violations of human rights but not to investigate individual
complaints. The Human
Rights Committee, set up in 1977, has power to hear complaints from
individuals,
under certain circumstances, about alleged breaches of the 1966
Covenant on Civil
and Political Rights. There are also various regional conventions
on human rights,
some of which have established machinery for hearing individual
complaints. The
best known of these is the *European Convention on Human Rights
(enacted in
English law as the *Human Rights Act 1998)and the Inter-American
Convention on
Human Rights (covering South America).
Human Rights Act Legislation, enacted in 1998, that brought the
*European
Convention on Human Rights into domestic law for the whole of the
UK on 2
October 2000. In the past the use of the Convention was limited to
cases where the
law was ambiguous and public authorities had no duty to exercise
administrative
discretion in a manner that complied with the Convention.
The Act creates a statutory general requirement that all
legislation (past or
future) be read and given effect in a way that is compatible with
the Convention.
Section 3 provides that all legislation, primary and secondary,
whenever enacted,
must be read and given effect in a way that is compatible with
Convention rights
wherever possible.
The Act requires public authorities - including courts - to act
compatibly with
the Convention unless they are prevented from doing so by statute.
This means that
the courts have their own primary statutory duty to give effect to
the Convention
unless a statute positively prevents this. Section 7 gives the
*victim of any act of a
public authority that is incompatible with the Convention the power
to challenge
the authority in court using the Convention, to found a cause of
action or as a
defence. The Act introduces a new ground of illegality into
proceedings brought by
way of judicial review, namely, a failure to comply with the
Convention rights
protected by the Act, subject to a 'statutory obligation'
defence. Secondly, it will
create a new cause of action against public bodies that fail to act
compatibly with
the Convention. Thirdly, Convention rights will be available as a
ground of defence
or appeal in cases brought by public bodies against private bodies
(in both criminal
and civil cases). Section 7(5) imposes a limitation period of one
year for those
bringing proceedings.
However, only persons classified as "victims" by the Act are able
to enforce the
duty to act compatibly with the Convention in proceedings against
the authority,
and only victims will have standing to bring proceedings by way of
judicial review.
Most private litigants, at least in private law proceedings, will
count as victims.
The Convention rights that have been incorporated into the Act are:
Articles 2 to
12, 14, 16, 17,18; Articles 1 to 3 of the First Protocol; and
Articles 1 and 2 of the Sixth
Protocol (individual rights are subjects of entries in this
dictionary). See ABSOLUTE
RIGHT; QUALIFIED RIGHT.
The Act requires any court or tribunal determining a question that
has arisen in
connection with a Convention right to take into account the
jurisprudence of the
Strasbourg organs (the European Court and Commission of Human
Rights and the
Committee of Ministers). This jurisprudence must be considered "so
far as, in the
opinion of the court or tribunal, it is relevant to the proceedings
in which that
question has arisen", whenever the judgment, decision, or opinion
to be taken into
account was handed down.
Section 19 provides that when legislation is introduced into
Parliament for a
second reading, the introducing minister must make a statement,
either (1) to the
effect that, in his view, the legislation is compatible with the
Convention, or (2) that
although the legislation is not compatible with the Convention, the
government still
wishes to proceed. If it is not possible to read legislation so as
to give effect to the
Convention, then the Act does not affect the validity, continuing
operation, or
enforcement of the legislation. In such circumstances, however,
section 4 empowers
the high courts to make a declaration of incompatibility. Section
10 and schedule
2 provide a 'fast-track' procedure by which the government can act
to amend
legislation in order to remove incompatibility with the Convention
when a
declaration of incompatibility has been made.
The Act gives a court a wide power to grant such relief, remedies,
or orders as it
considers just and appropriate, provided they are within its
existing powers.
Damages may be awarded in civil proceedings, but only if necessary
to afford *just
satisfaction; in determining whether or not to award damages and
the amount to
award, the court must take account of the principles applied by the
European Court
of Human Rights.
Sections 12 and 13 provide specific assurances as to the respect
that will be
afforded to *freedom of expression and *freedom of thought,
conscience, and
religion: these are 'comfort clauses' for sections of the press and
certain religious
organizations. . .
The Act does not make Convention rights directly enforceable
against a private
litigant, nor against a quasi-public body with some public
functions if it is acting in
a private capacity. But in cases against a private litigant, the
Act still has an effect
on the outcome, because the court will be obliged to interpret
legislation in
conformity with the Convention wherever possible; must exercise any
judicial
discretion compatibly with the Convention; and must ensure that its
application of
common law or equitable rules is compatible with the
Convention.
hybrid Bill See BILL
hybrid power See POWER OF APPOINTMENT.
hypothecation n. 1. A mortgage granted by a ship's master to secure
the
repayment with interest, on the safe arrival of the ship at her
destination, of money
borrowed during a voyage as a matter of necessity (e.g. to pay for
urgent repairs).
The hypothecation of a ship itself, with or without cargo, is
called bottomry; that
of its cargo alone is respondentia. It is effected by a bond, and
the bondholder is
entitled to a maritime *lien. 2. An authority given to a banker,
usually as a letter
of hypothecation, to enable the bank to sell goods or property that
have been
pledged to it as security for a loan. It applies only when the
goods remain in the
possession of the pledgor.
I
identity n. (in the law of evidence) See EVIDENCE OF
IDENTITY.
ignorance of the law See MISTAKE.
ignorantia juris non excusat [Latin] Ignorance of the law is no
excuse, i.e. no
defence against criminal or other proceedings arising from its
breach. The Statutory
Instruments Act 1946 modifies the rule slightly (see STATUTORY
INSTRUMENT). See also
MISTAKE.
ignoring traffic signals Failing to comply with traffic signs,
traffic lights, or
road markings. A number of different offences are included in this
category, all
concerned with breaches of the rules relating to traffic signals as
laid down in the
Highway Code. All these offences are subject to a fine,
*endorsement (carrying 3
penalty points under the *totting-up system), and *disqualification
at the discretion
of the court. Sometimes charges may also be brought under the head
of *careless
and inconsiderate driving or *dangerous driving, depending on the
circumstances. It
is also an offence not to comply with road directions given by a
uniformed police
officer acting in the course of his duties or engaged in a traffic
census or survey.
Prosecutions for ignoring traffic signals or police directions are
subject to a
*notice of intended prosecution.
Ile See INTERNATIONAL LAW COMMISSION.
illegal contract A contract that is prohibited by statute (e.g.one
between traders
providing for minimum resale prices) or is illegal at common law on
the g:-ounds of
*public policy. An illegal contract is totally void, but neither
party (unless mnocent
of the illegality) can recover back any money paid or property
transferred under It
(see EX TURPI CAUSA NON ORITUR ACTIO). Related transactions may
also be affected. A
related transaction between the same parties (e.g. if X gives Y a
promissory note for
money due from him under an illegal contract) is equally tainted
with the illegality
and is therefore void. The same is true of a related transaction
with a third party
(e.g. if Z lends X the money to pay Y)if the original illegality is
known to him. In
certain circumstances, illegal contracts may be saved by
*severance.
illegal practices See CORRUPT AND ILLEGAL PRACTICES.
illegal trust A trust that contravenes statute, morality, or public
policy. Such a
trust is void and of no effect.
illegitimacy n. The status of a child born out of wedlock. Although
evidence of
illegitimacy is readily available from the entry in the birth
register relating to the
child's parents, it is usual for a short form of birth certificate
to be issued, which .
makes no mention of the parents. Entry in the register of the name
of a man who IS
not married to the mother (which may only be done with the consent
of the
mother) is evidence of his paternity.
The effect of the Family Law Reform Act 1987is that, for nearly all
purposes,
children are to be treated alike, whether or not their parents are
married to one
another. The parents of illegitimate children have much the same
rights, duties, and
responsibilities in relation to them as they have for their
legitimate children. The
father of an illegitimate child is under a duty to maintain the
child in the same way
as his duty to maintain legitimate children (see CHILD SUPPORT
MAINTENANCE), but does
not automatically have *parental responsibility for that child.
Illegitimate children
are able to inherit property under wills (unless the contrary
intention is apparent)
and on intestacy in the same way as if they were legitimate.
However, the Family
Law Reform Act 1987did not remove all distinctions between
legitimate and
illegitimate children, notably in relation to entitlement to
British citizenship and
succession to the throne of England and to titles of honour.
It is now becoming more usual to use the term "child of unmarried
parents" for
children born out of wedlock, rather than "illegitimate
child".
illusory appointment The giving of property under a *power of
appointment
that confers little or no benefit to one or more objects of the
power. Before 19thcentury
legislation such appointments were void; they are now valid.
illusory trust A conveyance by a debtor to a trustee on trust for
his creditors,
which in some cases may be revoked. This is contrary to the normal
rule that an
*executed trust is irrevocable.
immigration n. The act of entering a country other than one's
native country
with the intention of living there permanently. Immigration into
the UK is subject
to control under the Immigration Acts 1971 and 1988,as amended by
the
Immigration and Nationality Act 1999. This control extends to all
potential entrants
except those to whom the Act gives the right of abode in the UKand
except
citizens of the Republic of Ireland. Nationals of other member
states of the EU will
also be exempted from control as from a date to be set by the
Secretary of State. As
originally enacted, the Act gave the right of abode to all citizens
of the UKand
Colonies who either owed their status to their own (or a parent's
or grandparent's)
birth, registration, or naturalization in the UK or were or became
at any time
settled in the UKand had at that time been ordinarily resident
there for at least
five years. Commonwealth citizens had the right of abode if one of
their parents
was a citizen of the UK and Colonies by reason of birth in the UK.
A person having
the right of abode was termed a patrial. As from 1 January 1983 the
Act was
amended by the British Nationality Act 1981 to confine the right of
abode to British
citizens as defined by that Act (see BRITISH CITIZENSHIP) and to
*commonwealth
citizens enjoying it before the Act came into force; the term
patrial was discarded.
With minor exceptions, a person subject to immigration control may
not enter or
remain in the UK except with leave, which may be granted either
indefinitely or for
a limited period; if leave is granted for a limited period, an
immigrant is subject to
further conditions (e.g. conditions restricting employment). The
1971 Act itself gave
indefinite leave to stay to those not entitled to the right of
abode but who were
lawfully settled in the UKwhen it came into force. Whether or not
leave is needed,
whether it should be granted, and whether a time limit and any
other conditions
should be imposed are decided initially by immigration officers
acting in accordance
with immigration rules made by the Secretary of State. Appeals
against the decisions
of immigration officers are made to adjudicators at the ports of
entry, and thence
to the Immigration Appeal Tribunal.
Under the Immigration (Carriers' Liability) Act 1987,the owners of
ships and
aircraft are liable to pay a penalty of £1000 in respect of any
person who arrives in
the UKon their ship or aircraft and who seeks leave to enter the
UKwithout proper
documents (e.g. passport or visa). Under the Asylum and Immigration
Act 1996,from
27 January 1997it has been a criminal offence for an employer to
employ anyone
subject to immigration control. Breach of this Act leads to fines
of up to £5000.
Employers must ask new employees taken on or re-employed after that
date for
evidence of residential status, such as national insurance
documents and EU
passports; this request must be made in a nondiscriminatory way,
which does not
breach racial discrimination legislation.
Immigration Appeal Tribunal A tribunal appointed by the Lord
Chancellor,
under the Immigration Act 1971, to hear appeals against immigration
and
deportation decisions. It has a legally qualified chairman and is
subject to the
supervision of the *Council on Tribunals.
immoral contract A contract based on sexual immorality, such as a
contract of
prostitution. Such contracts are *illegal contracts on the grounds
that they
contravene *public policy.
immovables pl. n. Tangible things that cannot be physically moved,
particularly
land and buildings.
immunity n. Freedom or exemption from legal proceedings. Examples
include the
immunity of the sovereign personally from all legal proceedings
(see ROYAL
PREROGATIVE); the immunity of members of the House of Commons and
the House of
Lords from proceedings in respect of words spoken in debate (see
PARLIAMENTARY
PRIVILEGE); *judicial immunity; and the immunity from the
jurisdiction of national
courts enjoyed by members of diplomatic missions and by foreign
sovereigns (see
DIPLOMATIC IMMUNITY; SOVEREIGN IMMUNITY).
imparlance n. Permission given to a defendant to delay his answer
to the
claimant's claim, to enable him to attempt to settle the claim
amicably.
impeachable waste *Waste that results in liability on the part of
the person
who commits it. Thus when a tenant commits impeachable waste his
landlord may
sue him for damages or obtain an injunction to prevent him
committing any
further waste.
impeding apprehension or prosecution Giving assistance to a person
one
knows to be guilty of an *arrestable offence with the intention of
preventing or
delaying his arrest or prosecution (e.g. providing a hiding place
or destroying
evidence). There are also special offences of (1) agreeing not to
disclose information
that might help to convict or prosecute a criminal (see COMPOUNDING
AN OFFENCE),
(2) refusing to aid a police officer when asked to help stop a
breach of the peace,
(3) *obstructing a police officer, and (4) *wasting police time by
giving them
misleading information. See also ESCAPE.
imperfect gift See GIFT.
imperfect trust See EXECUTORY TRUST.
impersonation n. Pretending to be another person. It is an offence
to
impersonate a woman's husband in order to persuade her to have
sexual intercourse
(rape), to impersonate the holder of a Crown office in order to
gain access to
prohibited places, and to impersonate a police officer, a variety
of public officials, a
voter, or a juror. Obtaining property, services, or certain
financial advantages
through impersonation may amount to a crime of *deception.
implementation n. The process of bringing any piece of legislation
into force. EU
directives, which are not directly applicable (see COMMUNITY
LEGISLATION), are
implemented at national level by member states by Act of Parliament
or regulation.
In the UK this may be done by statute or by statutory instrument or
regulation.
implied condition A term or obligation implied by law in a
contract, any breach
of which will entitle the innocent party not only to damages but to
treat the
contract as discharged (see CONDITION). In a contract of sale of
goods there are
implied conditions that the seller has the right to sell the goods,
that the goods will
correspond with the contract description, and, in the case of sales
in the course of
business, that the goods are of *satisfactory quality and fit for
the buyer's declared
purpose.
implied contract A contract not created by express words but
inferred by the
courts either from the conduct of the parties or from some special
relationship
existing between them.
implied malice *Mens rea that the law considers sufficient for a
crime, although
there is no intention to commit that crime. The term is usually now
used only in
relation to murder, referring to the intention to cause *grievous
bodily harm (see
MALICE AFORETHOUGHT).
implied term A provision of a contract not agreed to by the parties
in words but
either regarded by the courts as necessary to give effect to their
presumed
intentions or introduced into the contract by statute (as in the
case of contracts for
the sale of goods; see CAVEAT EMPTOR). An implied term may
constitute either a
*condition of the contract or a warranty; if it is introduced by
statute it often
cannot be expressly excluded. Compare EXPRESS TERM.
implied trust A trust that arises either from the presumed but
unexpressed
intention of the settlor or by operation of law. Equity imposes an
obligation to
create such trusts by inference from the facts, including the
conduct or relationship
of the parties. An implied trust may be subdivided into or overlap
with *resulting
trusts and *constructive trusts.
implied use See RESULTING USE.
impossibility n. A *general defence that arises when compliance
with the
criminal law is physically impossible. This is most likely to arise
in the context of
crimes of omission. Thus one cannot be found guilty of failing to
report a road
traffic accident of which one was unaware. However, under the
Criminal Attempts
Act 1981 one may be convicted of attempting the impossible (see
ATTEMPT).
impossibility of performance The impossibility of carrying out a
contract,
which occurs, for example, when it relates to subject matter that
does not exist. The
event making fulfilment impossible may arise either before or after
the contract is
made. In the former case (e.g.if X agrees to sell Y a horse that,
unknown to either, is
already dead) the contract is void for *mistake. In the latter case
(e.g. if the horse
dies between contract and performance) the contract will be
discharged under the
doctrine of *frustration of contract.
impotence n. The inability of either partner to have normal sexual
intercourse (see
alsoCONSUMMATION OF A MARRIAGE). In the case of a married couple
this is sometimes
called canonical disability (i.e. a disability recognized by canon
law, including that
of the Roman Catholic Church, as a ground for annulment of the
marriage). If the
impotence is permanent and incurable, the marriage is voidable and
either party
may apply for a nullity decree. Impotence must be distinguished
from *wilful
refusal to consummate.
imprisonment n. See CUSTODY; SENTENCE; FALSE IMPRISONMENT; LIFE
IMPRISONMENT.
improvement n. (of rented premises) An addition or alteration that
improves the
premises from the tenant's point of view; it does not necessarily
have to increase the
value of the premises. In the case of a lease that contains an
obligation by the tenant
to obtain the landlord's consent before making improvements, the
landlord cannot
withhold his consent unreasonably. He can, however, claim from the
tenant any
expense or loss he suffers as a result and he can require the
tenant, at the end of
the tenancy, to put the premises back into the condition they were
in before the
improvement was carried out. When rented dwellings lack certain
basic amenities,
such as a bath, the local authority can require the landlord to
provide these
amenities and carry out other repairs and improvements after
service of an
*improvement notice. In the case of business tenancies and
agricultural holdings,
the tenant can claim compensation for improvements.
improvement notice 1. A local-authority notice requiring a person
to provide a
dwelling under his control with certain standard amenities (e.g. a
bath). If he fails to
do this the authority may do so at his expense. 2. A notice
requiring any person
responsible for a breach of the Health and Safety at Work Act
1974(or associated
legislation) to take steps to remedy the breach or prevent its
repetition. Compare
PROHIBITION NOTICE.
imputability n. The principle that internationally illegal acts or
omissions
contributing to the damage to foreign property, and caused in some
way by organs
of the state apparatus, are attributable to the state and therefore
incur that state's
responsibility. Thus, there must have been state participation in
the act before there
can be *state responsibility for it.
imputation n. An allegation of misconduct or bad character made by
an accused
against the prosecutor or one of his witnesses. When this occurs
the accused may
(under the Criminal Evidence Act 1898), with *leave of the court,
be cross-examined
about his own *previous convictions and bad character. Under the
Criminal Justice
and Public Order Act 1994allegations made against the character of
a deceased
victim may lead to cross-examination of the accused as to his
character.
imputation of unchastity A statement imputing unchastity or
adultery to a
woman or girl, which is defamatory and actionable whether or not it
has caused
actual financial or material loss. See SLANDER; DEFAMATION.
imputation of unfitness or incompetence A statement calculated
to
disparage someone in his office, profession, calling, trade, or
business, which is
defamatory and actionable whether or not it has caused actual
financial or material
loss. See SLANDER; DEFAMATION.
imputation system Formerly, a system of taxation applying to the
payment of
*corporation tax on the distributed profits of a company. In this
system, which
came into force in the UK in April 1973, that part of the tax paid
by the company as
*advance corporation tax (ACT) was imputed to the shareholders and
their dividends
are franked (see FRANKED INCOME) accordingly. ACTwas abolished in
April 1999.
imputed notice An *agent's knowledge of facts that the law presumes
the
person employing him (the *principal) to have, irrespective of his
actual knowledge
of those facts. A purchaser of land has imputed notice of all
matters relating to the
purchase of which his agent (e.g.a solicitor) has (or ought
reasonably to have)
knowledge. See also ACTUAL NOTICE; CONSTRUCTIVE NOTICE:
NOTICE.
inadmissible reason (in employment law) A reason for dismissing an
employee
that is based on his membership or participation in the activities
of an
*independent trade union or his refusal to become or remain a
member of a union.
Dismissal for an inadmissible reason is always treated as *unfair
dismissal, and the
employee may apply to an *employment tribunal regardless of his age
and length of
continuous employment. See also COMPENSATION.
inalienability n. See RULE AGAINST INALIENABILITY.
in camera [Latin: in the chamber] In private. A court hearing
must usually be
public but the public may be barred from the court or the hearing
may continue in
the judge's private room in certain circumstances; for example,
when it is necessary
for public safety or when a child gives evidence in a case
involving indecency.
incapacity (incompetence) n. A lack of full legal competence in any
respect; for
example, the incapacity of mentally disordered persons to conclude
valid contracts
(see CAPACITY TO CONTRACT). A person suffering from incapacity is
frequently referred
to as a person under disability.
incapacity benefit A state benefit that replaced invalidity benefit
and sickness
benefit in April 1995. It is paid at three basic rates, the two
highest of which are
taken into account as taxable income. Short-term incapacity benefit
is payable at the
lower rate for the first 28 weeks of incapacity and at the higher
rate for the
29th-52nd weeks. Long-term benefit is payable, at the highest rate,
after 52 weeks.
Those claiming the benefit must complete a questionnaire about the
activities they
can engage in; after 28 weeks they must undergo a medical test to
assess their
capacity for work-related activities as well as submitting a
questionnaire. Doctors
must certify in all cases the material supplied.
incest n. Sexual intercourse between a man and his mother,
daughter, sister, halfsister,
or granddaughter or between a woman over the age of 16 and her
father, son,
brother, half-brother, or grandfather. Even if both parties
consent, incest is a
criminal offence if the parties know of their relationship. It is
punishable by up to
seven years' imprisonment (or, with a girl under the age of 13, by
a maximum
sentence of life imprisonment), but no prosecution may be brought
without the
consent of the Director of Public Prosecutions. The relationships
listed above include
illegitimate relationships. It is a statutory offence for a man to
incite a girl under
the age of 16 to have incestuous intercourse with him, but being
under 16, she
would not be guilty of any crime if intercourse took place.
Inchmaree clause A clause frequently inserted in marine insurance
policies to
provide cover for a variety of risks that are not covered as
*perils of the seas. It
provides protection against such events as accidents in loading or
discharging cargo
or taking on fuel, bursting of boilers, breakage of shafts, and
explosions on board
ship or elsewhere. It also provides cover for negligence of the
ship's master, officers,
or crew.
inchoate adj. Incomplete. Certain acts, although not constituting a
complete
offence, are nonetheless prohibited by the criminal law because
they constitute
steps towards the complete offence. These inchoate offences include
*incitement,
*attempt, and *conspiracy. One may be guilty of inciting someone to
commit the
crime of incitement or of attempting to incite, but one cannot be
guilty of
incitement to conspire or of attempting to conspire.
incitement n. Persuading or attempting to persuade someone else to
commit a
crime. If the other person then actually carries out the criminal
act, the inciter
becomes a participator in the crime and is guilty of aiding and
abetting it. If the
other person does not carry out the crime, the person who attempted
to persuade
him to do so may nonetheless be guilty of the crime of incitement.
Incitement may
be by means of suggestion, persuasion, threats, or pressure, by
words or by
implication; for example, advertising an article for sale to be
used to commit an
offence may constitute incitement to commit that offence.
incitement to racial hatred See RACIAL HATRED.
income support An income-related benefit payable under the
Social Security Acts
to persons over 16 whose income and savings do not exceed a
prescribed amount,
and who are not working 16 or more hours a week, and (if
applicable) whose spouses
or cohabitants (see COHABITATION) are not working 24 hours or more
a week, and who
are incapable of or unavailable for work (for example, because they
are disabled or a
lone parent). lt replaced supplementary benefit from April 1988.
Since October 1996
the unemployed who would formerly have been recipients of income
support have
received instead a *jobseeker's allowance.
income tax A tax on a person's wages or salary and on most other
sources of
income, including unearned income and the profits from an
unincorporated
business. The amount of tax is based on a person's entire income
for the year, less
certain allowances, on a progressive scale. The effect is that
those with higher
incomes pay higher rates of tax.
The allowances (for 2001-02) include a personal allowance of £4535;
a children's
tax credit of £5200, which may be shared between a child's parents;
and pension
contributions. The children's tax credit is restricted to 10%.
Other reliefs are
available to older taxpayers (over 65) and the blind.
The first £1880 of taxable income is charged at 10% (this is known
as the starting
rate). Taxable income from £1881 to £29,400 is charged at 22% (the
basic rate). Any
income over £29,400 is charged at 40% (the higher rate). Although
assessed annually,
in many cases tax is deducted at source, in particular by employers
under the *Pay
As You Earn (PAYE) system. Nonresidents in the UKare subject to
income tax if
their income originates in the UK,as are UK residents who receive
income from
abroad. However, there are agreements with many countries to give
relief against
double taxation. Certain income is exempt from tax, including
interest on national
savings certificates, some social security benefits, and redundancy
payments up to
£30,000.
Income tax was introduced as a temporary measure in 1799. It is
renewed annually
in a Finance Act, which traditionally enacts the Chancellor of the
Exchequer's
Budget proposals. The types of taxable income are set out in the
Income and
Corporation Taxes Act 1988 under five schedules:
A: income from UKland;
C: public revenue dividends;
D: profits or gains from trades, professions, and vocations;
interests, annuities and
annual payments; income from securities and possessions outside the
UK;
E: *emoluments from offices and employments; pensions;
F: dividends and distributions from UK companies.
incompetence n. See INCAPACITY.
incompletely constituted trust See EXECUTORY TRUST.
inconsiderate driving See CARELESS AND INCONSIDERATE DRIVING.
incorporation n. 1. The formation of an association that has
corporate
personality, i.e. a personality distinct from those of its members.
A corporation
(such as a company) has wide legal capacity (subject to the
doctrine of *ultra vires): it
can own property and incur debts. Company members have no liability
to company
creditors for such debts (though they may be under some liability
to their company).
An incorporated company has its own rights and liabilities and
legal proceedings in
respect of them should be brought by and against it in its own name
(but see
DERIVATIVE ACTION). lt can be convicted of crimes; when *mens rea
is a requirement of
the offence, the mens rea of the officers responsible may be
attributed to the
company. A company is usually incorporated by *registration under
the Companies
Act 1985 but there are other methods (e.g. by royal charter or
private Act of
Parliament). See also CERTIFICATE OF INCORPORATION; LIFTING THE
VEIL. 2. See DOCTRINE OF
INCORPORATION.
incorporation by reference 1. Reference in a will to another
document without
which the will cannot be understood (the document then forms part
of the will). For
example, a will leaving a specified sum "to each of the persons
listed in my
notebook" incorporates the notebook. The document must be clearly
identified in
the will, in existence at the date of the will, and clearly
referred to as being in
existence at that date. 2. Reference to named contract terms, for
example on the
back of a railway ticket, saying where the terms can be seen for
those who want to
read them. This will often be sufficient to incorporate the terms
by reference into
the contract, although the other party may not have taken the
opportunity to read
the terms. However, there are risks in incorporation; for example,
it is harder to
enforce an exclusion of liability clause (see EXEMPTION CLAUSE) if
the terms are merely
incorporated by reference.
incorporeal hereditament See HEREDITAMENT.
incoterm n. An international trade term. Incoterms, the best known
of which are
*c.i.f.and *f.o.b.,are used as an international shorthand in
commercial agreements.
A glossary of these terms, the latest edition of which is Incoterms
2000, is
published by the International Chamber of Commerce. It sets out
definitions of the
various incoterms, which deal with such matters as which party to a
contract is
responsible for transport of the goods, who insures them in
transit, and who
arranges payment of customs duties.
incriminate vb. 1. To charge with a criminal offence. 2. To
indicate involvement
in the commission of a criminal offence. A witness in court need
not answer a
question if, in the judge's opinion, the answer might expose him to
the danger of
criminal prosecution. A witness does not have this protection when
his answer
might lead only to civil action against him.
incumbrance n. See ENCUMBRANCE.
indecency n. Conduct that the average man would find shocking or
revolting.
There are common-law offences of outraging public decency and
conspiring to
outrage public decency (see CONSPIRACY); examples might include
staging an indecent
exhibition, keeping a *brothel, or *indecent exposure. Indecency is
a question of fact
that is left in each case to the jury to decide. See also GROSS
INDECENCY.
indecent assault An *assault or *battery in circumstances of
indecency. Indecent
assult is punishable by up to ten years' imprisonment. *Consent is
normally a
defence, except when the victim is under the age of 16. Touching or
attempting to
touch the genitals of another person without their consent would
constitute an
indecent assault. See alsoDOLI CAPAX; GROSS INDECENCY; INDECENT
EXPOSURE.
indecent exposure Exposing one's body in public in a way that
outrages public
decency. When the exposure (by a man or woman) goes far beyond the
generally
accepted standards of decency and at least two people could have
seen it, it amounts
to a common-law offence, even if no one was actually disgusted or
upset; such
conduct is also punishable under the Vagrancy Act 1824. If a man
exposes his
genitals to a woman, even in private, with the intention of
insulting her, he is guilty
of a statutory offence and is liable to imprisonment. Such conduct,
if threatening or
frightening, may also amount to an *indecent assault.
indefeasible adj. Incapable of being made *void.
indemnity n. An agreement by one person (X) to pay to another
(Y) sums that are
owed, or may become owed, to him by a third person (Z). It is not
conditional on the
third person defaulting on the payment, i.e.Y can sue X without
first demanding
payment from Z. If it is conditional on the third person's default
(i.e. if Z remains
the principal debtor and must be sued for the money first) it is
not an indemnity
but a *guarantee. Unlike a guarantee, an indemnity need not be
evidenced in
writing.
An indemnity insurance policy is taken out for the benefit of a
mortgagee
(lender) when a high proportion (often 80%)of the purchase price
for a domestic
property is borrowed. Such indemnity policies have been held by the
courts not
normally to be for the benefit of the mortgagor (borrower),
although the mortgagor
pays the premiums on the policy; only the mortgagee can make a
claim. See also
INSURANCE.
indemnity basis A basis of *assessment of costs under which the
receiving party
recovers all costs incurred except any that have been unreasonably
incurred or are
of an unreasonable amount. The receiving party is given the benefit
of any doubt on
questions of reasonableness.
indenture n. (mainly historical) A deed, generally one creating or
transferring an
estate in land (e.g.a conveyance or a lease).
independent contractor A person or firm engaged to do a particular
job of
work, as opposed to a person under a *contract of employment. An
independent
contractor is his own master, bound to do the job he has contracted
to do but
having a discretion as to how to do it. A taxi-driver, for example,
is the independent
contractor of the passenger who hires him. A person who uses an
independent
contractor is not generally vicariously liable for torts committed
by the contractor,
but may be in exceptional cases; situations in which *vicarious
liability may be
incurred include those in which the contractor is employed in
particularly
hazardous activities, or to perform statutory duties, or to work on
or over (but not
merely near) the highway, or is specifically authorized to commit a
negligent act.
Independent Housing Ombudsman A body set up under the Housing Act
1996,
under the control of the *Housing Ombudsman, to ensure protection
for housing
association tenants against landlord mismanagement and to attempt
to resolve
disputes for housing association tenants.
independent trade union A trade union holding a certificate of
independence
issued by the *Certification Officer. A certificate will only be
issued if the union is
not under the domination or control of any employer, group of
employers, or
employers' association and is not liable to any interference from
them tending
towards such control. A union that is refused a certificate of
independence may
appeal to the *Employment Appeal Tribunal. Trade unions that do not
hold a
certificate of independence cannot conclude a collective agreement
restricting
employees' rights to strike and have no statutory right to certain
information that
employers must disclose to recognized independent trade unions (see
DISCLOSURE OF
INFORMATION). Only officials of independent trade unions have a
statutory right to
time off work to pursue union activities and duties. Rules
regarding the dismissal of
an employee for an *inadmissible reason and rules that prohibit
employers from
taking other action to deter employees from participating in a
union only apply if
the union holds a certificate of independence.
index maps Maps kept in the Land Registry showing the position and
extent of
every registered estate in land. The index maps can be searched to
find out if a
particular piece of land has an estate registered in respect of
it.
indictable offence An offence that may be tried on *indictment,
i.e. by jury in
the Crown Court. Most serious common-law offences are indictable
(e.g.murder,
rape) and many are created by statute. When statute creates an
offence without
specifying how it is to be tried, it is automatically an indictable
offence. An attempt
to commit an indictable offence is itself an indictable offence;
the same is not true
for a *summary offence. Some indictable offences, if not very
serious, may be tried
either by magistrates or on indictment (see OFFENCES TRIABLE EITHER
WAY).
indictment n. A formal document accusing one or more persons of
committing a
specified *indictable offence or offences. It is read out to the
accused at the trial. An
indictment is in a particular form. It is headed with the name of
the case and the
place of trial. There is then a statement of offence, stating what
crime has allegedly
been committed, followed by particulars of offence, i.e. such
details as the date and
place of the offence, property stolen, etc. If the accused is
charged with more than
one offence, each allegation and charge appears in a separate
paragraph called a
count. Counts may, however, be framed in the alternative, i.e. two
or more counts
may charge different offences arising out of the same allegation of
fact but the
defendant may be convicted of only one of them; for example, when a
defendant is
charged as a principal in one count and as an accessory in another
in respect of the
same incident. See alsoBILL OF INDICTMENT; TRIAL ON
INDICTMENT.
indigenous peoples Those peoples and nations that have a historical
continuity
with pre-invasion and pre-colonial societies that developed on
their territories and
consider themselves distinct from other sectors of the societies
now prevailing in
those territories (or parts of them). Forming a non-dominant sector
of the prevailing
society, they exhibit a determination to preserve, develop, and
transmit to future
generations their ancestral territories, and their ethnic identity,
as the basis of their
continued existence as peoples, in accordance with their own
cultural patterns, social
institutions, and legal systems. Examples of indigenous peoples
include the Sami
(Lapps) in Scandinavia and the Cymry (Welsh) in the United
Kingdom.
indirect evidence See CIRCUMSTANTIAL EVIDENCE.
Individual Savings Account (lSA) A type of savings account on which
no tax is
payable. There are three main types of property (components) that
can be included
in an ISA: cash, stocks and shares, and life assurance policies.
These can be included
all in one ISA- a maxi-ISA, or separately in mini-ISAs. In each tax
year a taxpayer
can invest in either one maxi-ISA (which must include stocks and
shares) or up to
three mini-ISAs - one each for cash, stocks and shares, and life
assurance. No tax is
payable on any of the income from ISA savings and investments,
including
dividends, interest, and bonuses, and no capital gains tax is
payable on gains arising
on ISA investments. The ISA manager will arrange for tax credits
attached to
dividends from UK companies to be paid into the ISA until 5 April
2004. The insurer
does not have to pay tax on income or capital gains on investments
(including
claiming tax credits on dividends from UK companies) used to back
ISAlife
assurance policies; no tax is payable when the policy pays out.
Money can be
withdrawn at any time without losing tax relief. The maximum that
may be
invested in ISAs in the tax year 2001-02 is £7000.
indivisible contract See PERFORMANCE OF CONTRACT.
indorsement n. See ENDORSEMENT
inducement n. 1. The promise of some advantage (e.g. bail) held
out by a person in
authority in relation to a prosecution to a person suspected of
having committed a
criminal offence. At common law a confession made after an
inducement was
inadmissible. It may now render the confession unreliable, and
therefore
inadmissible, under the terms of the Police and Criminal Evidence
Act 1984. 2. See
MISREPRESENTATION.
inducing breach of contract See PROCURING BREACH OF CONTRACT.
industrial death benefit A state pension formerly payable to the
widow of a
man who had died from injuries sustained in the course of his
employment or from
a prescribed industrial disease. The system came to an end in April
1988.However,
widows whose husbands die after that date as a result of an
industrial accident or
disease are entitled to widows' benefit and retirement pensions,
their husbands
being deemed to have satisfied the contribution conditions in
full.
industrial democracy Participation in company management by
employees. This
may take the form of including directors elected by employees on
the board of
directors. See alsoEMPLOYEES' SHARE SCHEME.
industrial dispute See TRADE DISPUTE.
industrial injuries disablement benefit A pension or lump sum
payable by
the state to a person disabled by injury or a prescribed industrial
disease sustained
or contracted in the course of his employment. The benefit is
payable as a weekly
amount. The amount of the benefit depends on the degree of
disablement, which is
assessed by a specialist or a board of two doctors. To be entitled
to benefit, the
disablement must be assessed as being at least 14%of total
disability (1% in the case
of pneumoconiosis, byssinosis, and diffuse mesothelioma). The
benefit is payable if
the claimant is still suffering disability 15 weeks or more after
the date of the
accident or onset of the disease. It is payable for a period
assessed as the time for
which the claimant is likely to suffer the disability. The
assessment can be reviewed
if the claimant's condition deteriorates or if he is still disabled
at the end of the
period of assessment.
industrial tribunal See EMPLOYMENT TRIBUNAL.
inevitable accident An accident that could not have been prevented
by the
exercise of ordinary care and skill.
infant (minor) n. Since 1969,a *child under the age of 18. Certain
rights (such as
rights of parental responsibility, the right to make a child a ward
of court, and the
right to withhold consent to marriage) only apply to infants. Other
rights (such as
the right to marry with consent) are governed by different age
limits, often 16.
Infants have a limited *capacity to contract.
infanticide n. The killing of a child under 12 months old by its
mother. If the
mother can show that the balance of her mind was disturbed because
of the effects
of the childbirth or lactation, she will be found guilty of
infanticide, rather than
murder, and punished as though she was guilty of *manslaughter.
Most cases of
infanticide are dealt with by probation or discharge. See
alsoDIMINISHED
RESPONSIBILITY.
inferior court Any of the courts that are subordinate to *superior
courts, having
a jurisdiction limited to a particular geographical area, size of
claim, or type of case.
Their decisions are normally subject to appeal to a superior court,
and the exercise
of their jurisdiction may be subject to control by a superior
court. In England and
Wales, *county courts and *magistrates' courts are inferior
courts.
information n. See LAYING AN INFORMATION.
informed consent The doctrine that determines the information to be
disclosed
to a patient to render his consent to treatment lawful. In the USA,
the doctrine is
based upon the "prudent patient" criterion, i.e. the nature, depth,
and amount of
information is judged by the physician as that required by a
prudent patient. In the
UK the doctrine is based upon the "prudent physician" criterion,
i.e. the nature,
depth, and amount of information is judged by the physician as that
which is
necessary for the patient. Failure to disclose such information
will render any
treatment unlawful.
informer n. A person who gives information to the police about
crimes committed
by others. An informer who is himself involved in the crimes may
sometimes
receive a lighter sentence in return for cooperation with the
police that leads to the
conviction of other offenders. However, the police may not employ
their own
informers to participate in crimes and then arrest the criminals,
and a police
informer who pretends to join a plot to commit a crime may himself
be guilty of
*conspiracy. It is nevertheless generally thought that if a police
informer pretends
to help in committing a crime with the intention of frustrating it,
he will not be
considered an *accessory if he fails to prevent the crime taking
place.
in gross Absolute, i.e. existing in its own right and not as
ancillary to land or any
other thing. For example a profit Ii prendrecan exist in gross,
conferring rights on
persons whether or not they own land capable of benefiting. An
easement cannot
exist in gross since there must be a dominant tenement.
inherent vice An inherent defect in certain goods that makes them
liable to
damage. Some fibres, for example, are liable to rot during
shipment. If a carrier or
insurer of such goods has not been warned of the inherent vice, he
will not be liable
for damage resulting directly from the defect.
inheritance n. 1. The devolution of property on the death of its
owner, either
according to the provisions of his will or under the rules relating
to intestacy
contained in the Administration of Estates Act 1925 as amended. 2.
Property that a
beneficiary receives from the estate of a deceased person.
inheritance tax A tax introduced by the Finance Act 1986 to replace
capital
transfer tax. The tax is payable on the value of a person's estate
on death added to
the value of lifetime gifts in the seven years preceding death and
on certain other
lifetime gifts. At present (2001-02) there are two rates of tax:
nil on estates up to
£242,000; 40% on estates over that figure. The tax charged on
lifetime gifts made
within the seven years before the death of the donor is reduced on
a sliding scale
according to how long before death the gift was made. Other
lifetime gifts are
charged at half the death rate. There are a number of exemptions,
including gifts
between husband and wife, gifts to charities and political parties,
and gifts for
national purposes or for the public benefit.
inhibition n. (in land law) An entry in the proprietorship register
relating to
registered land (see LAND REGISTRATION) that prohibits the
registration of any dealing
with the land (such as a transfer or mortgage) for a specified time
or until a
specified event occurs or until further order or entry. An
inhibition may be
registered on the application of any person having a sufficient
interest; for example,
when the owner of land claims that another has become registered as
proprietor by
fraud. The Chief Land Registrar has total discretion whether to
make or cancel any
order or entry, but an inhibition must be registered when a
receiving order in
bankruptcy is made against the proprietor or when registered
land is transferred to
the incumbent of a benefice.
inhuman treatment or punishment Treatment that causes intense
physical
and mental suffering. The prohibition on inhuman treatment or
punishment as set
out in Article 3 of the European Convention on Human Rights is now
part of UK
law as a consequence of the *Human Rights Act 1998. This right is
an *absolute
right; inhuman treatment or punishment 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.
injunction n. A remedy in the form of a court *order addressed to a
particular
person that either prohibits him from doing or continuing to do a
certain act (a
prohibitory injunction) or orders him to carry out a certain act (a
mandatory
injunction). For example, a prohibitory injunction may be granted
to restrain a
nuisance or to stop the infringement of a copyright or trademark. A
mandatory
injunction may be granted to order a person to demolish a wall that
he has built in
breach of covenant. The remedy is discretionary and will be granted
only if the
court considers it just and convenient to do so; it will not be
granted if damages
would be a sufficient remedy.
Injunctions are often needed urgently. A temporary injunction
(interim or
interlocutory injunction) may therefore be granted at a special
hearing pending
the outcome of the main hearing of the case. If it is granted, the
claimant must
undertake to compensate the defendant for any damage he has
suffered by the
grant of the injunction if the defendant is successful in the main
action. If
judgment is given for the claimant in the main action, a perpetual
injunction is
granted. A person who fails to abide by the terms of an injunction
is guilty of
*contempt of court. See alsoFREEZING INJUNCTION; QUIA TIMET.
injurious falsehood See MALICIOUS FALSEHOOD.
injury n. 1. Infringement of a right. 2. Actual harm caused to
people or property.
inland bill A *bill of exchange that is (or on the face of it
purports to be) both
drawn and payable within the British Islands or drawn within the
British Islands
upon some person resident there. All other bills are foreign bills.
Unless the
contrary appears on the face of a bill, the holder may treat it as
an inland bill. The
distinction is relevant to the steps taken when a bill has been
dishonoured (see
DISHONOUR).
Inland Revenue, Board of The body responsible for the care,
management, and
collection of most taxes within the UK.The officials of which it is
made up are the
Commissioners. The day-to-day administration is carried out by
civil servants.
Inspectors of Taxes are responsible for assessing taxes, which are
collected by
Collectors of Taxes (see also SELF-ASSESSMENT). A taxpayer can
appeal against an
inspector's assessment either to the General Commissioners for his
district (lay
persons appointed to hear appeals) or to a Special Commissioner (a
full-time official
appointed by the Treasury to hear appeals).
in limine [Latin] Preliminary; used, for example, to describe an
objection or
pleading.
in loco parentis [Latin] In place of a parent: used loosely to
describe anyone
looking after children on behalf of the parents, e.g. foster
parents or relatives. In
law, however, only a guardian or a person in whose favour a
residence order is made
stands in loco parentis; their rights and duties are determined by
statutory provisions.
Inner Temple An *Inn of Court situated in the Temple between the
Strand and
the Embankment. The earliest recorded claim for its existence is
1440. Its Hall and
Library were destroyed by bombing in World War II but have since
been rebuilt.
innocent misrepresentation See MISREPRESENTATION.
innocent passage See TERRITORIAL WATERS.
innominate terms (intermediate terms) Terms of a contract that
cannot be
classified as *conditions or *warranties. The parties to a contract
may label the
terms of the contract as either conditions or warranties and those
labels will usually
be respected by the courts provided that the result is reasonable.
Similarly, certain
terms have traditionally been treated as conditions or warranties
even though they
have not been labelled as such (for example, time clauses in
mercantile contracts are
to be treated as conditions). Innominate terms are those that will
not fit the above
categories. The remedy for breach of an innominate term will depend
on whether or
not the breach is of a fundamental nature, i.e. that the injured
party has been
deprived of substantially the whole of the benefit of the contract.
If the injured
party has been so deprived, he will be entitled to treat the
contract as repudiated
and claim damages. If not, he will be entitled to damages only. See
alsoBREACH OF
CONTRACT.
Inns of Chancery Formerly, Inns similar but subordinate to the
*Inns of Court,
to which they were attached (for example, Staple Inn and Barnard's
Inn were
attached to Gray's Inn). Originally they were societies in which
students prepared for
admission to the Inns of Court; later they became societies of
attorneys. They were
dissolved in the late 19th century.
Inns of Court Ancient legal societies situated in central London;
every *barrister
must belong to one of them. These voluntary unincorporated
associations have the
exclusive right of call to the Bar. The early history of the Inns
is disputed, but they
probably began as hostels in which those who practised in the
common law courts
lived. These hostels gradually evolved a corporate life in which
*Benchers, barristers,
and students lived together as a self-regulating body. From an
early date they had an
important role in legal education. In modern times four Inns
survive: *Gray's Inn,
*Inner Temple, *Lincoln's Inn, and *Middle Temple.
Inns of Court and Bar Educational Trust See COUNCIL OF LEGAL
EDUCATION.
innuendo n. In an action for *defamation, a statement in which the
claimant
explains the defamatory meaning of apparently innocent words that
he alleges are
defamatory. The claimant must set out in his particulars of claim
the facts or
circumstances making the words defamatory.
in personam [Latin: against the person] Describing a court action
or a claim made
against a specific person or a right affecting a particular person
or group of people
(compare IN REM). The *maxim of equity "equity acts in personam"
refers to the fact
that the Court of Chancery issued its decrees against the defendant
himself, who
was liable to imprisonment if he did not enforce them.
inquest n. An inquiry into a death the cause of which is unknown.
An inquest is
conducted by a *coroner and often requires the decision of a jury
of 7-11 jurors. It
must be held in the case of a sudden death whose cause is unknown
or suspicious, a
death occurring in prison, or when the coroner reasonably suspects
that the death
was caused by violent or unnatural means. Inquests are not,
however, criminal
proceedings; witnesses are usually cross-examined only by the
coroner and the strict
laws of evidence do not apply. If unlawful *homicide is suspected,
and criminal
proceedings are likely, the coroner will usually adjourn the
inquest (and must do so
if requested to by a chief police officer). If the inquest jury
find that a particular
person caused the death in circumstances amounting to homicide,
that person may
stand trial. It is an offence to dispose of a body with the
intention of preventing an
inquest being held.
inquiry n. (in international law) An attempt to discover the facts
surrounding an
international incident that is the subject of a dispute between two
or more parties
by means of an impartial investigative body. Such an investigation
is intended to
promote a successful resolution of the dispute. In treaty law each
of the *Bryan
Treaties and a number of other treaties between South and Central
American states
provided for the establishment of permanent commissions of inquiry.
In 1967,the
UN General Assembly adopted a resolution supporting the institution
of such
impartial fact-finding and requested the Secretary-General to
establish a register of
experts whose services could be used by states in specific
disputes. See also
CONCILIATION; GOOD OFFICES; MEDIATION.
inquisition n. A document containing the verdict of a coroner's
*inquest. It
consists of the caption (details of the coroner, jury, and the
inquest hearing), the
verdict (identification of the body and probable cause of death),
and the attestation
(signatures of the coroner and jurors). An open verdict may be
recorded when there
is insufficient evidence of the cause of death.
inquisitorial procedure A system of criminal justice, in force in
some European
countries but not in England, in which the truth is revealed by an
inquiry into the
facts conducted by the judge. In this system it is the judge who
takes the initiative
in conducting the case, rather than the prosecution or defence; his
role is to lead the
investigations, examine the evidence, and interrogate the
witnesses. Compare
ACCUSATORIAL PROCEDURE.
in re [Latin; in the matter of] A phrase is used in the headings of
law reports,
together with the name of the person or thing that the case is
about (for example,
cases in which wills are being interpreted). It is often
abbreviated to re, in which
form it is used in headings to letters, etc.
in rem [Latin: against the thing] 1. Describing a right that should
be respected by
other people generally, such as ownership of property, as distinct
from a right *in
personam. 2. Describing a court action that is directed against an
item of property,
rather than against a person or group of people. Actions in rem are
a feature of the
*Admiralty Court.
insanity n. (in criminal law) A defect of reason, arising from
mental disease, that is
severe enough to prevent a defendant from knowing what he did (or
what he did
was wrong). A person accused of a crime is presumed sane and
therefore responsible
for his acts, but he can rebut this presumption and escape a
conviction if he can
prove (see BURDEN OF PROOF) that at the time of committing the
crime he was insane.
For purposes of this defence, insanity is defined by the McNaghten
Rules. These
were formulated by judges after the trial of Daniel McNaghten
(1843), who killed the
Prime Minister's secretary by mistake for the Prime Minister, under
the delusion
that the government was persecuting him, and was acquitted on the
grounds of
insanity. According to the rules, the defendant must show that he
is suffering from
a defect of reason arising out of "a disease of the mind". This
would usually include
most psychoses, paranoia, and schizophrenic diseases, but
psychopaths and those
suffering from neuroses or subnormality would not normally fall
within the terms
of the rules. The defendant must also show that, as a result of the
defect of reason,
he either did not know the "nature and quality" of his acts, i.e.
he did not know
what he was doing (for example, if he put a child on a fire,
thinking it was a log of
wood) or he did not know that his acts were wrong, even if he knew
their nature
and quality (for example, if he knew he was murdering, but did not
know that this
was wrong). If the defendant is suffering from an insane delusion,
he is treated as
though the delusion was true and will have a defence if there would
normally be
one on those facts (for example, if he kills someone under the
insane delusion that
he is acting in self-defence, since self-defence is a defence).
Medical evidence may be
brought, but the jury are entitled to form their opinion on the
facts. If found to be
insane the defendant is given a special verdict of "not guilty by
reason of insanity"
and may be admitted to hospital. In cases of homicide, the accused
must be sent to
hospital (usually a *special hospital, such as Broadmoor). Because
of the consequences
of successfully pleading it, in practice insanity was usually only
pleaded to avoid the
death penalty. However, a defendant who puts his mental state in
issue (e.g.by
raising a defence of *diminished responsibility on a murder charge)
might have to
change his plea to guilty to avoid being treated as pleading
insanity (though he is
entitled to appeal against an insanity verdict).
Magistrates' courts are not empowered to return a special verdict.
They will either
grant a complete acquittal, if the defendant's evidence of mental
abnormality
amounts to a denial that he had any necessary *mens rea for the
crime, or they may
make a *hospital order, if the crime with which he is charged is
one for which they
could usually imprison him.
If someone in custody for trial is suffering from mental illness or
severe
subnormality, he may be detained in hospital and not brought to
trial until he is fit.
A person who is insane at the time of his trial, in the sense that
he does not
understand the charge and cannot properly instruct his lawyers, may
be found
*unfit to plead.
See also GENERAL DEFENCES; IRRESISTIBLE IMPULSE.
insider dealing Taking advantage of specific unpublished
price-sensitive
information to deal in *securities to make a profit or avoid a
loss. Under the
Criminal Justice Act 1993,dealings by insiders and those who have
acquired
information from insiders may be a criminal offence. Improperly
disclosing such
information or encouraging others to deal is also prohibited.
insolvency practitioner A person appointed to officiate in the
*winding-up of a
company or in *bankruptcy proceedings. The Insolvency Act 1986
requires the
appointment of a qualified practitioner to act as a *liquidator, an
*administrative
receiver, the supervisor of a *voluntary arrangement, or a *trustee
in bankruptcy.
Under the Act, a person is only authorized to act in such a
capacity if he has met
certain statutory requirements, including membership of an approved
professional
body (such as the Institute of Chartered Accountants of England and
Wales or the
Insolvency Practitioners Association).
inspection by judge See VIEW.
inspection of documents See DISCLOSURE AND INSPECTION OF
DOCUMENTS.
inspection of property (in court procedure) The High Court or the
county
courts may order the inspection, photographing, preservation,
custody, and
detention of any property that is (or may become) the subject
matter of proceedings
or in respect of which any questions may arise in proceedings. Such
an order may be
made before the issue of proceedings, in respect of any property
that may become
the subject matter of subsequent proceedings. Once proceedings
have started, an
order may be made in respect of property in the possession of a
party, provided that
the application is in respect of a physical thing (not details of a
manufacturing
process, for example), and an order may be made if the property is
in the possession
of a non-party. In each instance, the order is sought by isuing an
application notice
supported by evidence.
instant committal A short committal under section 1 of the Criminal
Justice Act
1967. See COMMITIAL FOR TRIAL.
institutional constructive trust See CONSTRUCTNE TRUST.
instrument n. A formal legal document, such as a will, deed, or
conveyance, which
is evidence of (for example) rights and duties. The *European
Convention on Human
Rights is a living instrument in that it must be interpreted in the
light of presentday
conditions rather than by trying to ascertain the meaning of those
who drafted
it over fifty years ago. See also STATUTORY INSTRUMENT.
insufficient evidence A direction by a judge to a jury that, as a
matter of law,
the evidence does not entitle them to make a certain finding. For
example, if there
is insufficient evidence for a conviction, the judge may direct the
jury to return a
verdict of not guilty.
insulting behaviour See THREATENING BEHAVIOUR.
insurable interest An interest (financial or otherwise) in the
subject matter of a
contract of *insurance, which provides the person insured with the
right to enforce
the contract. An insurable interest (e.g.ownership of goods
insured) distinguishes a
contract of insurance from a wager or bet. An interest is required
by statute for
various types of insurance contract (e.g. life insurance).
insurance n. A contract in which one party (the insurer) agrees for
payment of a
consideration (the premium) to make monetary provision for the
other (the
insured) upon the occurrence of some event or against some risk.
For such contracts
to be enforceable, there must be some element of uncertainty about
the events
insured against and the insured must have an *insurable interest in
the subject
matter of the contract. (The term assurance has the same meaning as
insurance but
is generally used in relation to events that will definitely happen
at some time or
another (especially death), whereas insurance refers to events that
mayor may not
happen.) There are two types of insurance: indemnity insurance,
which provides an
indemnity against loss and in which the measure of the loss is the
measure of
payment (e.g.a fire policy); and contingency insurance, which
involves payment on
a contingent event and in which the sum paid is not measured by the
loss but stated
in the policy (e.g.a life policy).A contract of insurance is one
requiring the utmost
good faith (see UBERRIMAE FIDEI) and is voidable if a party fails
in preliminary
negotiations to disclose a fact material to the risk (see
NONDISCLOSURE; VOIDABLE
CONTRACT). Innocent or fraudulent *misrepresentation may also
render the contract
voidable, or the contract may be terminated for breach of an
essential term (see
WARRANTY). Particular types of insurance include *life assurance,
fire insurance,
motor-vehicle insurance (see THIRD-PARTY INSURANCE), *marine
insurance, liability
insurance, and guarantee insurance. There is considerable statutory
regulation of
insurance business.
Insurers are either insurance companies or *Lloyd's underwriters.
Insurance
companies are regulated by statute, aimed, among other things, at
ensuring the
insurance companies have sufficient funds to meet all claims made
on them.
Insurance brokers negotiate insurance contracts with insurance
companies or
Lloyd's underwriters on a commission basis and usually handle
claims on their
clients' behalf. In the event of a claim the insured receives
either the amount agreed
in the policy or an appropriate sum that is calculated by an
independent insurance
assessor.
insurance broker See INSURANCE.
insurance company See INSURANCE.
insurance policy A formal document issued by an insurer setting out
the terms
of a contract of *insurance. Insurance contracts are not required
by law to be in
writing. Before the issue of a policy an insurer may issue a cover
note, which is
itself a temporary contract of insurance.
insurgency n. A state of revolt against constituted authority by
rebels who are not
recognized as *belligerent communities. Hence, recognition by
nation X of a state of
insurgency in nation Y means that while the former nation
acknowledges a state of
rebellion or revolt in nation Y,it is not yet prepared to extend
recognition of a state
of belligerency to that nation. Such a decision is based upon the
relative proportion
and success of the rebellion or revolt within state Y.
intangible property *Property that has no physical existence:
*choses in action
and incorporeal *hereditaments.
intellectual property Intangible property that includes *patents,
*trade marks,
*copyright, and registered and unregistered *design rights.
intention n. The state of mind of one who aims to bring about a
particular
consequence. Intention is one of the main forms of *mens rea,and
for some crimes
the only form (for example, in the crime of threatening to destroy
someone's
property, with the intention that he should fear that the threat
will be carried out).
A person is assumed to intend those consequences of his acts that
are inevitable but
cannot be presumed to intend a consequence merely because it is
probable or
natural. In the latter case, the jury must decide, on all the
available evidence,
whether or not in fact the accused did intend the consequences. For
purposes of the
law of murder, however, a person is presumed to intend to cause
death if he
foresees that it is a highly likely consequence of his acts. This
is sometimes known as
oblique intention. Intention is often contrasted with *recklessness
and should not
be confused with *motive. For some purposes, offences are divided
into crimes of
basic intent or specific intent (see INTOXICATION). See
alsoULTERlOR INTENT.
Intention to injure is also a constituent element of some torts,
particularly those
dealing with business relations (e.g. *conspiracy, *intimidation,
*procuring breach of
contract).
intention of testator The meaning that a testator intends his will
to have. In
interpreting a will, the court seeks to give effect to the
intention of the testator as
expressed in the will, even if capricious or eccentric. If the
intention of the testator
is to be challenged, this can only be done by an application under
the Inheritance
(Provision for Family and Dependants) Act 1975(see FAMILY
PROVISION). There are rules
of construction to enable the testator's intention to be
ascertained where it is not
clear from the face of the will (see ARMCHAIR PRINCIPLE;
INTERPRETATION OF WILLS).
interest n. (in land law) A right in or over land. It may comprise
equitable
ownership of the land (such as the interest of the tenant for life
under a
settlement), where the legal estate is owned by trustees; or the
benefit of some
other right over the land of another, such as an easement or
rentcharge. Interests of
the latter type can be legal or equitable, but under the Law of
Property Act 1925
only interests owned on terms equivalent to a *fee simple
absolute in possession or
a *term of years absolute qualify as legal interests. A person
interested in land is
one who has rights in it. See also EQUITABLE INTERESTS.
interest in expectancy Any future interest in property.
interfering with subsisting contract See PROCURING BREACH OF
CONTRACT.
interfering with trade or business The tort of deliberately
interfering with
the trade or business of another person by unlawful means, thereby
causing damage
to that person. Liability in this tort is wider than in the tort of
*procuring breach
of contract, since it is not necessary to show that an existing
contract has been
interfered with or broken. The operation of the tort in *trade
disputes is limited by
statute.
interfering with vehicles Under the Criminal Attempts Act 1981, it
is an
offence, punishable with up to three months' imprisonment and(or a
fine, for a
person to interfere with a vehicle or anything it carries with the
intention that he
or someone else will steal the vehicle or any of its contents or
take the vehicle
without the owner's consent. The offence was introduced when the
*sus law was
abolished. A constable may arrest anyone he reasonably suspects of
this offence. It is
also a *summary offence, under the Road Traffic Act 1988,to get
onto a vehicle on a
road or local authority car park or to tamper with its brakes or
other part of its
mechanism without lawful authority or reasonable cause. See also
CONVEYANCE.
interfering with witnesses Attempting to prevent a witness from
giving
evidence or to influence the evidence he gives. Making improper
threats against
witnesses may amount to the common-law offence of *perverting the
course of
justice; persuading a witness to tell a lie constitutes - in
addition to this - the
offence of subornation of *perjury. It is also perverting the
course of justice to put
pressure upon a witness to give evidence or to pay him money to
testify in a
particular way. Sometimes interfering with witnesses may also
amount to
*contempt of court. There is also a separate common-law offence of
tampering
with witnesses when one uses threats to persuade them not to give
evidence. See
alsoINTIMIDATION.
interim See INTERLOCUTORY.
interim appeal. (interlocutory appeal) An appeal against an order
made during
the pre-trial stage of civil litigation. Appeals from district
judges and masters are to
the High Court or a county court circuit judge, and appeals from a
decision of a
county court circuit judge or a High Court judge are to the Court
of Appeal (Civil
Division). Any appeal can only be made if permission to appeal is
granted.
interim injunction (interlocutory injunction) See INJUNCTION.
interim judgment (interlocutory judgment) A decision by the court
in civil
proceedings that only deals with part of the matter in dispute.
Compare FINAL
JUDGMENT.
interim measures (in competition law) Temporary sanctions that the
European
Commission and the UK Office of Fair Trading have powers (by
decision and under
the Competition Act 1998, respectively) to impose on businesses
that are in breach of
the competition rules, pending a final decision. This ensures that
permanent damage
is not done to the party who has complained of a breach of the
rules. The interim
measures may consist of requiring the offending company to resume
supplies of
goods to the complainant or to remedy the conduct of which
complaint has been
made in some other way. See also INTERIM RELIEF.
interim payment Payment on account by a defendant of any damages,
debt, or
other sum (excluding costs) that he is liable to pay to the
claimant. The High Court
(but not the county courts) may order a defendant to make an
interim payment.
When damages are claimed, it is necessary to show that (1) the
defendant has
admitted liability; or (2) the claimant has already obtained
judgment for damages to
be assessed; or (3) if the action proceeded to trial the claimant
would obtain
judgment for substantial damages.
interim proceedings (interlocutory proceedings) The preliminary
stages in
civil proceedings, such as statements of case and disclosure of
documents, which
occur between the issue of the claim form and the trial. Their
principal functions
are to define the issues that will have to be decided at the trial
and to prevent
*surprise.
interim relief (interlocutory relief) A temporary remedy, such as
an interim
*injunction or *interim payment, granted to a claimant by a court
pending the
trial.
interim rent Rent that a landlord can request a court to fix for a
*business
tenancy when he has given the tenant notice to quit or when the
tenant has applied
for a new tenancy.
interlineation n. Writing between the lines of a document. The
effect is the same
as that of an *alteration.
interlocutory ad}. During the course of proceedings. Before the
introduction of
the Civil Procedure Rules in 1999, the term was applied to certain
processes in civil
proceedings occurring between initiation of the action and the
final judgment (e.g.
interlocutory injunction, interlocutory proceedings). Under the
Rules, it has been
replaced by the term interim.
intermediate terms See INNOMINATE TERMS.
internal waters All rivers, canals, lakes (excluding international
ones), and
landlocked seas, the waters of ports, bays, and roadsteads, and the
waters on the
landward side of the *baseline of the territorial sea. Within its
internal waters, a
coastal state exercises civil and criminal jurisdiction over
foreign merchant ships
and also administrative functions, such as enforcing customs and
fishing
regulations. Compare TERRITORIAL WATERS.
International Bank for Reconstruction and Development (IBRD;
World
Bank) A specialized agency of the United Nations. It developed from
the
international monetary and financial conference held at Bretton
Woods, New
Hampshire, in 1944 and was established by 44 nations in 1945. Its
central purpose is
to spur economic growth in developing states through the provision
of loans and
technical assistance to their respective governments. The IBRD
currently has 181
members.
international carriage The carriage of persons or goods between two
or more
nations, which is regulated by various international conventions.
The international
carriage of goods by sea is governed by the Hague Rules(1924), the
Hague-Visby
Rules(1968), and the Hamburg Rules(1978, not yet in force); that of
goods by road
by the Geneva Convention (1956); and that of goods by rail by a
convention of 1980.
(See also CARRIAGE OF GOODS BY AIR.) There are also conventions
regulating the
international carriage of passengers by sea, rail, and road. The UK
is a party to
various of these conventions and has legislated to give them legal
effect; for
example, the Carriage of Goods by Sea Act 1971 covers the
Hague-Visby Rules.
International Court of Justice A court at The Hague, consisting
of 15 judges
elected for 9-year terms of office, that has power to determine
disputes relating to
international law. It was set up by the United Nations in
succession to the
Permanent Court of International Justice, and all members of the UN
are
automatically parties to the Statute of the Court. No state may be
brought before
the Court in contentious proceedings unless it has accepted its
jurisdiction, either by
agreement in a particular case or by recognition of the authority
of the Court in
general, in respect of any dispute with another state accepting the
general
jurisdiction of the Court (the principle of reciprocity; see also
OPTIONAL CLAUSE). The
Court may also give advisory opinions (see ADVISORY JURISDICTION),
which do not bind
the parties but are of great *persuasive authority.
International Criminal Court A permanent court to try individuals
for the
most serious offences of global concern. In July 1998, 160 nations
decided to establish
this court; the Statute of the Court will enter into force after 60
countries have
ratified it. Crimes within the jurisdiction of the Court are
genocide, war crimes, and
crimes against humanity, such as widespread or systematic
extermination of
civilians, enslavement, torture, rape, forced pregnancy,
persecution on political,
racial, ethnic, or religious grounds, and enforced disappearances.
The Court's Statute
lists and defines all these crimes to avoid ambiguity. The seat of
the Court will be at
The Hague, in the Netherlands, but it will be authorized to try
cases in other venues
when appropriate.
international law (jus gentium, law of nations) The system of law
regulating
the interrelationship of sovereign states and their rights and
duties with regard to
one another. In addition, certain international organizations (such
as the *United
Nations), companies, and sometimes individuals (e.g.in the sphere
of *human rights)
may have rights or duties under international law. International
law deals with such
matters as the formation and recognition of states, acquisition of
territory, war, the
law of the sea and of space, treaties, treatment of aliens, human
rights, international
crimes, and international judicial settlement of disputes. The
usual sources of
international law are (1) *conventions and *treaties; (2)
international *custom, in so
far as this is evidence of a general practice of behaviour accepted
as legally binding
(see OPINIO JURIS); (3) the *general principles of law recognized
by civilized nations.
International law is also known as public international law to
distinguish it
from *private international law, which does not deal with
relationships between
states.
International Law Commission (lLe) A body established in 1947 by
General
Assembly Resolution 174 (II) and acting under Article 13 of the
United Nations
Charter. The ILCconsists of 25 members of recognized competence in
international
law who are elected for five-year periods by the General Assembly
from a list of
candidates nominated by the member states of the UN. The mission of
the ILCis to
promote the progressive development of international law by
preparing draft
conventions on subjects that have not yet been regulated by
international law and
by codifying the law. It produces annual reports of current
problems.
international legal personality In the international community,
entities who
are endowed with rights and obligations under public international
law are said to
have international legal personality. The entities with this legal
personality include
states, international organizations, *nongovernmental
organizations, and to some
limited extent private individuals and corporations within a
state.
international minimum standard (in international law) A minimum
standard
of treatment that must always be observed with regard to the
treatment of foreign
nationals. This standard consists of at least the right to life,
liberty, and free access
to the courts and to the protection of property (especially fair
compensation for the
nationalization of property). The international minimum standard
has proved to be
contentious with developing countries and Socialist states, who
believe that it
merely advances Western economic imperialism. See alsoESPOUSAL OF
CLAIM;
EXPROPRIATION; STATE RESPONSIBILITY. Compare NATIONAL TREATMENT
STANDARD.
International Sea Bed Authority A body, based in Jamaica, that is
charged with
responsibility for the 1982 Convention on the Law of the Sea. See
LAW OF THE SEA.
international supply contract A contract for the sale of goods made
by parties
whose places of business (or habitual residences) are in the
territories of different
states. The limitations imposed by the Unfair Contract Terms Act
1977on the extent
to which a person may exclude or restrict his liability (e.g.by an
*exemption clause)
do not apply to such a contract if (1) when it is made, the goods
are in carriage (or
due to be carried) from one state to another; (2) the offer and its
acceptance take
place in different states; or (3) the goods are to be delivered in
a state other than
that in which the offer and acceptance take place. However, other
statutes may
apply to such contracts, and in many countries the Vienna
Convention on the
International Sales of Goods and world trade rules under the
*General Agreement
on Tariffs and Trade (GATT) and the *World Trade Organization (WTO)
will apply.
interpleader n. A procedure used to decide how conflicting claims
against the
same person should be dealt with. It applies when there are two or
more claims
against the applicant (whether or not court proceedings have been
issued) that
conflict with each other; for example, when two or more people
claim the same
goods that are being held by the applicant. The court decides how
the matter should
be dealt with; it may, for example, direct that there should be a
court action
between the rival claimants.
Interpleader can be of two types. A stakeholder's interpleader
applies to any
person holding any debt, goods, or chattels in respect of which
there are rival claims.
A sheriff's interpleader applies when the applicant is the
*sheriff, who has to deal
with rival claims after execution of a writ of *fieri facias when a
third party (e.g. a
television rental company) claims that the goods seized belong to
him. In the county
courts, special forms of summons are prescribed irrespective of
whether
proceedings have commenced or not. In the High Court, the
application is by *claim
form if proceedings have yet to start, and by ordinary application
notice if
proceedings have already been issued.
interpretation (construction) n. The process of determining the
true meaning of
a written document. It is a judicial process, effected in
accordance with a number of
rules and presumptions. So far as is relevant, the rules and
presumptions applicable
to Acts of Parliament (see INTERPRETATION OF STATUTES) apply
equally to private
documents, such as deeds and wills.
Interpretation Act An Act of 1978(originally 1889) that defines a
number of
common words and expressions and provides that the same definitions
are to apply
in all other Acts except those specifically indicating otherwise.
For example, "person"
includes (in addition to an individual) any body of persons
corporate or
unincorporate.
interpretation clause A clause in a written document that defines
words and
phrases used in the document itself. In an Act of Parliament it is
called an
interpretation section. See also INTERPRETATION ACT.
interpretation of statutes The judicial process of determining, in
accordance
with certain rules and presumptions, the true meaning of Acts of
Parliament. The
principal rules of statutory interpretation are <Is
follows.
(1) An Act must be construed as a whole, so that internal
inconsistencies are avoided.
(2)Words that are reasonably capable of only One meaning must be
given that
meaning whatever the result. This is called the literal rule.
(3)Ordinary words must be given their ordinary meanings and
technical words their
technical meanings, unless absurdity would result. This is the
golden rule.
(4)When an Act aims at curing a defect in the law any ambiguity is
to be resolved
in such a way as to favour that aim (the mischief rule).
(5)The ejusdem generis rule (of the same kind): when a list of
specific items
belonging to the same class is followed by gen~ral words (as in
"cats, dogs, and other
animals"), the general words are to be treated as confined to other
items of the same
class (in this example, to other domestic animals).
(6) The rule expressio unius est exe/usio alterius (the inclusion
of the one is the
exclusion of the other): when a list of specific hems is not
followed by general
words it is to be taken as exhaustive. For example, "weekends and
public holidays"
excludes ordinary weekdays.
The House of Lords has ruled against the existence of an alleged
social policy
rule, which would enable an ambiguous Act to be interpreted so as
to best give
effect to the social policy underlying it. Ambiguities may
occasionally be resolved by
referring to external sources; for example, the intention of
Parliament in regard to
a proposed Act, as revealed by ministers during its passage through
Parliament, may
be discovered by reference to *Hansard.
There are some general presumptions relating to the interpretation
of statutes.
They are presumed (1) not to bind the Crown (including the
sovereign personally); (2)
not to operate retrospectively so far as substantive (but not
procedural) law is
concerned; (3) not to interfere with vested rights (particularly
without
compensation); (4)not to oust the jurisdiction of the courts; and
(5) not to derogate
from constitutional rights or international law. But clear words or
necessary
implication may override these presumptions. A consolidating
statute is presumed
not be intended to alter the law, but this does not apply to
codifying statutes, which
may be concerned with clarifying law that was previously unclear.
Penal and taxing
statutes are subject to strict construction, i.e. if after applying
the normal rules of
interpretation it is still doubtful whether or nDt a penalty or tax
attaches to a
particular person or transaction, the ambiguity must be resolved in
favour of the
subject.
See also INTERPRETATION ACT; INTERPRETATION CLAUSE.
interpretation of wills The process of determining the true meaning
of wills to
give effect, as far as possible, to the testator's intention
expressed in the will (see
INTENTION OF TESTATOR). Generally the words usc'd are given their
ordinary
grammatical meaning. If the words used are ambiguous, either in
themselves or in
the light of surrounding circumstances, extrinsic evidence may be
admitted to assist
in ascertaining the testator's intention. The process of construing
a will by reference
to the circumstances surrounding the testator when he made his will
is commonly
known as the *armchair principle. Such evidence may not be used to
contradict a
clear expression in the will. The golden rule i~ to adopt a
construction that will
avoid an *intestacy, on the basis that if the testator went to the
trouble of making a
will, he presumably did not intend to die intestate. There are also
many detailed
rules relating to the meaning of particular phiases and to
imprecise gifts for
charitable purposes.
interregnum n. 1. The period between the death of a sovereign and
the accession
of his or her successor. 2. Temporary rule exercised during such a
period. In the UK
a sovereign's death does not result in an interregnum (see DEMISE
OF THE CROWN).
interrogation n. The questioning of suspects by the police.
Suspects are not
obliged to answer such questions (see RIGHT OF SILENCE), and the
right of the police to
question suspects is governed by the Police and Criminal Evidence
Act 1984 and the
Codes of Practice made under it. The Codes deal with such matters
as the rights of
the suspect to communicate with third parties, rights to legal
advice and to medical
treatment, and advice to the police on the administering of a
*caution, the provision
of interpreters, and the keeping of records concerning all these
matters. There are
special provisions relating to the interrogation of juveniles, the
mentally ill, and the
mentally handicapped. The provisions of the 1984 Act and its Codes
must now be
read subject to the requirements of the *Human Rights Act 1998.See
also CONFESSION.
interrogatory n. Formerly, a formal written question submitted by
one party to
civil litigation to another party and required to be answered on
oath. Since the
introduction of the Civil Procedure Rules in 1999,this procedure
has been replaced
by a request for further information.
in terrorem [Latin] Intimidating. The doctrine of in
terroremapplies to conditions
attached to gifts of personal property in wills or elsewhere. Such
conditions are in
terrorem if it is apparent that the donor does not really intend
the recipient to lose
the gift, but is merely making an idle threat; for example, when a
donor makes a
gift subject to a condition against marriage without another
person's consent but
does not make provision for the disposal of the gift if the
recipient does not comply
with the condition. Such conditions are void.
interstate trade Trade between states. EU competition rules (see
COMPETITION LAw)
apply only when an anticompetitive agreement or *abuse of a
dominant position
will affect trade between member states. Whether or not interstate
trade is affected
is therefore crucial to any competition analysis. Agreements
relating to imports or
exports are most likely to affect interstate trade, but so might an
agreement
between two businesses situated in one member state, depending on
the terms or
effect of the agreement.
intertemporal law The law that international courts apply when a
long time has
elapsed since the conclusion of a treaty, to take into account
changes that have
taken place in international law since the treaty was formulated
and changes in the
meaning of the expressions in the treaty. The existence of a right
(e.g. to a
territorial claim) should be based not only on the law in effect at
the time the right
was created, but also on the international law as applied to the
continued existence
of that right. The legitimacy of a title to territory must be
renewed by the claimant
state.
intervention n. Action taken to intervene in markets, for example
to support
prices, in the EU or within similar trading groups throughout the
world. In the EU
it occurs in relation to the *Common Agricultural Policy. The
European Commission
buys surplus produce at an agreed intervention price; the produce
may be stored
until prices alter. This practice formerly led to butter or meat
"mountains", but
goods held in intervention in this way have now largely been
dissipated.
intestacyn. The state in which a person dies without having made a
will disposing
of all his property. A total intestacy occurs when the deceased
leaves no will at all
or a will that only appoints executors but does not dispose of any
property; a
partial intestacy arises when a will deals with only part of the
testator's estate. The
Administration of Estates Act 1925 as amended and orders made under
it govern the
manner in which an intestate estate is to be administered, the
persons entitled to
inherit, and the amounts and proportions of the estate they
receive. The rules
relating to intestacy reflect the importance accorded to familial
relationships: the
surviving spouse is given the larger share of the estate.
intimidation n. 1. The act of frightening someone into doing
something.
Intimidation is not in itself a crime, but it may constitute part
of a crime. For
example, it is a crime to have sexual intercourse with a woman if
her agreement
was obtained by intimidation. It is a crime to intimidate a juror
or witness in
relation to proceedings with which he is connected (see CONTEMPT OF
COURT). If one
intimidates someone into handing over money or property, this may
amount to
theft, and in some cases to blackmail. There are also special
statutory offences of
threatening to destroy or damage someone else's property and
threatening to kill
someone. A person who commits a crime when intimidated by others
may
sometimes have a defence of *duress. See alsoTHREAT.
Under the Criminal Justice and Public Order Act 1994it is also an
offence to
intimidate a person whom the offender believes to be a potential or
actual witness
or juror. The offender must, however, have an intention to obstruct
an investigation
or the course of justice although this will be presumed where it is
proved that he
did an act that intimidates with that intention. Similar offences
exist with regard to
reprisals against potential witnesses or jurors. On *summary
conviction the
maximum penalty is six months' imprisonment and/or a fine up to the
statutory
maximum of £5000,and on *indictment it is five years' imprisonment
and/or an
unlimited fine.
2. A tort in which A, with the intention of injuring B, either
directly threatens B
with some unlawful act or threatens C with an unlawful act in order
to make him
cause damage to B.Thus if A threatens to do an unlawful act to B's
employer (C)
unless he dismisses B,and C succumbs to the threat, B has an action
for intimidation
against A for causing the loss of his job. It is irrelevant that C
was entitled to
dismiss Band did not act unlawfully: the essence of the tort is A's
unlawful threat.
The operation of the tort in *trade disputes is limited by
statute.
intoxicating liquor For the purposes of the Licensing Act 1964,
spirits, wine, beer,
porter, cider (including perry), and any other fermented,
distilled, or spirituous
liquor. See also LICENSING OF PREMISES.
intoxication n. The condition of someone who is drunk or under the
influence of
drugs. Although intoxication itself is not an offence (but see
DRUNKENNESS), it is an
element in a number of offences. These include *drunken driving,
being found
drunk in a public place, being drunk and disorderly in a public
place, and being
drunk in a public place while possessing a loaded firearm. It is
also an offence to
supply or offer to supply to a person under 18 a substance (e.g. a
glue or solvent)
whose fumes are likely to be inhaled by that person for the purpose
of causing
intoxication.
When a person is so intoxicated that he is incapable of forming the
*mens rea
required to be guilty of a particular crime, he is usually entitled
to be acquitted if
the crime is one that requires a specific intention (but not if it
requires a basic
intention). A crime is one of basic intent if the mens rea required
does not go
beyond the *actus reus of the crime (for example, rape, in which
the actus reus is
sexual intercourse without the woman's consent and the mens rea is
intention to
have sexual intercourse without her consent, or recklessness
whether she consents
or not). A crime is one of specific intent if the mens rea required
goes beyond the
actus reus (for example, theft, in which the actus reus is merely
appropriating
someone else's property, but the mens rea - in addition to the
intention of
appropriating it - requires an intention to deprive the owner of it
for good).
Intoxication will not be a defence, however, if the crime is one of
specific intent
that can be committed by being reckless and the indictment is
framed in terms of
recklessness. For example, if a drunken person sets fire to a
building and endangers
the lives of people in it, he may be guilty of destroying property
being reckless as to
whether life would be endangered, even though he was unaware of the
risk. He
could not, however, be guilty of damaging property intending to
endanger life.
Intoxication is not a defence if a person deliberately drinks or
takes drugs in order
to give himself Dutch courage to commit a crime.
intra vires [Latin: within the powers] Describing an act carried
out by a body (such
as a public authority or a company) that is within the limits of
the powers
conferred on it by statute or some other constituting document
(such as the
memorandum and articles of association of a company). Compare ULTRA
VIRES.
introductory tenancy A tenancy granted by a local authority or
housing action
trust that is intended as a probationary tenancy for 12 months.
This will not be a
*secure tenancy until the end of the 12 months. If the landlord
wishes to seek
possession during the introductory tenancy, he must serve notice on
the tenant, who
has 14 days to seek a review. After the review has been completed,
the landlord must
notify the tenant of the decision and give reasons if the decision
to evict stands.
invalid care allowance A taxable benefit under the Social Security
Acts, payable
in certain circumstances to a person of working age who is not
gainfully employed
because he (or she) is regularly and substantially engaged in
caring for a severely
disabled relative. Those earning over £72 per week (2001) cannot
claim.
invalidity benefit A former benefit under the Social Security Acts
that replaced
sickness benefit after 28 consecutive six-day weeks. From April
1995sickness and
invalidity benefits were replaced by *incapacity benefit.
inventory n. A detailed list of assets or property. A lease of
furnished premises or
a contract for the sale of chattels will usually contain an
inventory from which the
particular items can be identified. Under the Administration of
Estates Act 1925,
personal representatives must produce on oath an inventory of the
deceased's estate
when called upon by the court (this duty is effectively discharged
by lodging an
Inland Revenue account).
investigation of a company An inquiry into the running of a company
made
by inspectors appointed by the Department of Trade and Industry
acting under Part
XIVof the Companies Act 1985or the Financial Services Act 1986.It
may be ordered
by the Secretary of State, on his own initiative or upon
application by the
shareholders or the company itself, or by the court. Such an
inquiry may be held to
supply company members with information or to investigate fraud,
*unfair
prejudice, nominee shareholders, or *insider dealing. The
inspectors' report is
usually published.
investigative help See COMMUNITY LEGAL SERVICE.
investment company A public listed company with a business of
investing its
funds mainly in securities in order to spread investment risk and
give company
members the benefit derived from the management of its funds.
Investment
companies must give notice in prescribed form to the Companies
Registry. Under
the Companies Act 1985 they are subject to special provisions in
relation to
dividends.
invitation to treat See OFFER.
invitee ri. A person permitted to enter land or premises for a
purpose in which the
occupier of the land has a material interest. An example of an
invitee is a customer
in a shop. See OCCUPIER'S LIABILITY.
in vitro fertilization (IVF) See HUMAN ASSISTED REPRODUCTION.
involuntary conduct Conduct that cannot be controlled because one
is suffering
from a physical or mental condition or is acting under *duress.
Involuntary conduct
will often give rise to a defence of *automatism, although it may
not be a defence if
one is aware of one's condition or induced it oneself. Sometimes
conduct may be
regarded as involuntary if one is in control of one's faculties;
for example, when the
brakes of a car suddenly fail; this will also afford a defence to a
driving offence
charge.
IR35 A rule introduced with effect from 6 April 2000 that requires
an individual
who provides services to an employer through an intermediary (such
as a limited
company) to be taxed on the basis that he is an employee rather
than self-employed.
This requires deduction of tax at source under the PAYE (*Pay As
You Earn) rules
and gives less favourable treatments for the deduction of expenses
than formerly.
irrebuttable presumption See PRESUMPTION.
irresistible impulse An uncontrollable urge to do something.
Irresistible impulse
is not usually a defence in law and it will not afford a defence of
*insanity, unless it
arises out of a disease of the mind as defined by the McNaghten
Rules. When,
however, an impulse is irresistible in that the body reacts in an
instinctive way to it,
there may be a defence of *involuntary conduct. An irresistible
impulse may also
constitute *diminished responsibility. See also PROVOCATION.
irretrievable breakdown (of a marriage) See MARITAL BREAKDOWN;
DIVORCE.
irrevocable adj. Incapable of being revoked. For example, *powers
of appointment
may be made irrevocable. On the other hand, a testator of sound
mind can revoke
his will at any time.
ISA See INDIVIDUAL SAVINGS ACCOUNT.
issue n. 1. The matter in dispute in a court action. 2. The
children or other lineal
descendants of a person. 3. The total of bank notes in circulation
within a country.
issued capital See AUTHORIZED CAPITAL.
issue estoppel *Estoppel arising in relation to an issue that has
previously been
litigated and determined between the same parties or their
predecessors in title. The
issue must be an essential element of the claim or defence in both
sets of
proceedings. Unlike estoppel per rem judicatam, it does not prevent
fresh evidence
from being introduced in relation to the issue previously
determined. This type of
estoppel does not arise in criminal cases and its scope in civil
cases is uncertain.
itemized pay statement The written statement that, under the
Employment
Rights Act 1996,an employer must provide for every employee who
works eight or
more hours a week, on or before each occasion wages or salaries are
paid. The
statement must contain the following information: (1) the
employee's gross pay for
the period; (2) the amounts and reason for any deductions; (3) the
net amount paid;
and (4) the method of calculating the net pay when different parts
are calculated
differently (e.g. if the pay is partly a basic wage and partly a
commission or bonus
payment). The statement need not contain details of fixed
deductions if it contains
an aggregate amount of these deductions and the employer has given
the employee,
either before or at the time of payment, a standing written
statement of fixed
deductions that contains the following particulars of each
deduction: (1) the amount;
(2) the intervals at which the deduction is made; (3) the purpose
for which it is made.
The standing statement of fixed deductions must be reissued within
12 months of
its first being issued and not more than every 12 months after that
and it must
incorporate any amendments. An employee can apply to an *employment
tribunal if
his employer fails to provide the statutory statement or reason for
deductions. The
tribunal can order the employer to provide statements and also to
refund any
unexplained deductions in respect of a period up to 13 weeks before
the application.
IVF In vitro fertilization. See HUMAN ASSISTED REPRODUCTION
J
jactitation of marriage A false assertion that one is married to
someone to
whom one is not in fact married. Proceedings for jactitation were
abolished by the
Family Law Act 1986 but an injunction may be sought to restrain
such claims being
made and may be useful in preventing a presumption of marriage from
arising.
Jobseeker's Agreement An agreement that must be signed by a
claimant for
the *jobseeker's allowance and his Employment Service adviser. The
agreement sets
out any restrictions on the claimant's availability for work and
outlines the type of
work being sought and the plans the claimant has made for seeking
work.
jobseeker's allowance (JSA) A taxable benefit that replaced
both
unemployment benefit and income support for jobseekers from 7
October 1996.
Those with national insurance contributions can claim
contribution-based JSA,
which is paid for up to six months. Those without NI contributions
can claim
income-based JSA,which is payable for as long as the claimant
satisfies the rules. JSA
is only paid to those who are available for work, are actively
seeking work, and who
have signed a *Jobseeker's Agreement.
joinder of causes of action The combination in one action of
several causes of
action against the same defendant. Although any number of causes of
action may be
joined in the first instance, the court may order that they be
severed if the joinder
would cause procedural difficulties.
joinder of charges The joining of more than one charge of a
criminal offence
together in the same *indictment. This may be done when the charges
are based on
the same facts or are part of a series of offences of the same or
similar character.
joinder of defendants Mentioning two or more defendants in one
count of an
*indictment and trying them together. It is possible to join two or
more defendants
even if one of them is the principal offender and the other an
accessory; if they are
separately indicted, however, they cannot subsequently be tried
together. Sometimes
(e.g.in cases of conspiracy) it is usual to join two or more
defendants; one may be
convicted even if all his co-conspirators named in the count are
acquitted and even
though conspiracy by definition requires more than one participant.
Two or more
defendants may also be joined in one indictment if they are charged
with different
offences, if the interests of justice require this; for example, if
two witnesses
commit perjury in relation to the same facts in the same
proceedings. Defendants
who have been jointly indicted will normally only be tried by
separate trials if a
joint trial might prejudice one or more of them; for example, when
evidence
against one accused is not admissible against the other or when the
prosecution
wish to call one of the defendants to give evidence against
another.
joinder of documents The connecting together of two or more
documents so
that, jointly, they fulfil statutory requirements when one of the
documents alone
would be insufficient.
joinder of parties The combination as claimants or defendants of
two or more
persons in a single action. Joinder may take place with the
permission of the court
or when separate actions would result in some common question of
law or fact
arising in all the actions, and all claims in the action are in
respect of or arise out of
the same transaction or series of transactions. See alsoJOINDER OF
DEFENDANTS.
joint and several Together and in separation. If two or more
people enter into
an obligation that is said to be joint and several, their liability
for its breach can be
enforced against them all by a joint action or against any of them
by individual
action. See alsoJOINT TORTFEASORS.
Joint Committee on Statutory Instruments (Joint Scrutiny Committee)
A
committee of both Houses of Parliament whose function is to examine
most
delegated legislation (particularly *statutory instruments of a
general character) and
to draw Parliament's attention to it on a number of specified
grounds; for example,
if it imposes a tax, has retrospective effect, has been unduly
delayed in publication,
or is badly drafted. The Committee consists of seven members
appointed by each
House.
Joint Scrutiny Committee See JOINT COMMITTEE ON STATUTORY
INSTRUMENTS.
joint tenancy Ownership of land by two or more persons who have
identical
interests in the whole of the land (compare TENANCY IN COMMON). A
joint tenancy can
only arise when four conditions (the four unities) are satisfied.
(1) Each joint tenant
must be entitled to possession at the same time. (2)The estate or
interest each has in
the land must be identical; each joint tenant is entitled to the
whole property and
has no exclusive entitlement to any separate part of it (see
UNDIVIDED SHARES). (3) Each
must have the same *title to the land, i.e. their ownership must be
traced from the
same instrument, such as a conveyance "to A and Bas joint tenants".
(4)Each joint
tenant's interest must *vest at and subsist for the same time.
Under a joint tenancy
the right of survivorship applies: thus ownership of the entire
interest in the
property passes automatically on the death of one joint tenant to
the survivor(s).
The last survivor becomes the sole and absolute owner.
Under the Law of Property Act 1925 a distinction is made between a
legal and an
equitable joint tenancy. When two or more persons hold the *legal
estate, they
invariably hold it as joint tenants, and the right of survivorship
applies. When the
conveyance to them contains no words indicating that they are
entitled to the
property in *undivided shares (words of *severance), they hold as
joint tenants in
equity and the right of survivorship again applies. However, when
they take distinct
and separate shares, or when the equitable joint tenancy has been
terminated (as by
notice of severance, *partition, etc.), the equitable interest is
held by them as tenants
in common. However the equitable (or beneficial) interests are
structured, the legal
estate is always held by joint tenants as trustees upon a statutory
*trust of land
(Trust of Land and Appointment of Trustees Act 1996; TOLATA), and
the trustees are
accountable to those who hold the equitable interests - in the
proportions to which
they are entitled if they are tenants in common - for the property.
The owners in
equity have many rights under the trust of land, such as the right
to be consulted
and the right to occupy the property. Any joint tenant may apply to
the court
under section 14 of TOLATA for an order relating to the exercise by
the trustees of
any of their functions, including sale of the property. The court
may make such
order as it thinks fit.
joint tortfeasors Two or more people whose wrongful actions in
furthering a
common design cause a single injury. For example, if two men
searching for a gas
leak both applied a naked light to a gas pipe and caused an
explosion, they are joint
tortfeasors. But if a single injury is caused by several people
acting without a
common design they are not joint, but concurrent tortfeasors. An
example of
concurrent tortfeasors would be two motorists in separate cars,
both driving
negligently and causing a collision in which a pedestrian is
injured. In both cases,
the injured claimant is entitled to sue any or all of the
tortfeasors for his whole
loss; if he obtains a judgment against one tortfeasor that is
not satisfied, he may
proceed against the others. A tortfeasor liable for damage may
recover contribution
from other tortfeasors (whether joint or concurrent) liable for the
same damage. See
CIVIL LIABILITY CONTRIBUTION.
joint venture A commercial undertaking entered into by two or more
parties,
often by setting up a separate joint-venture company in which all
partners have
shares, to enable resources and skills to be shared. Joint ventures
are defined in a
European Commission *notice of 31 December 1994as "undertakings
which are
jointly controlled by two or more other undertakings." In practice
joint ventures
encompass a broad range of operations, from merger-like operations
to cooperation
for particular functions, such as research and development,
production, or
distribution. A Commission notice of 23 December 1992 sets out how
cooperative
joint ventures are treated under the ED competition rules.
joint will A will comprising a single document executed by two or
more persons
as the will of all of them. It is treated as the separate will of
each testator, and
probate will be granted separately on the death of each. A joint
testator may revoke
the will only insofar as it applies to himself. A joint will is a
convenient instrument
for the exercise of a power conferred on persons jointly to appoint
by will (see
POWER OF APPOINTMENT) but has no other practical benefit. Compare
MUTUAL WILLS.
Journals pl. n. The authentic record of proceedings in Parliament,
as opposed to
the verbatim record of debates (see HANSARD). There are two series
published
annually: Journalsof the House of Lords (beginning in 1509) and
Journals of the House
of Commons (beginning in 1547).
joyriding n. See ABSTRACTING ELECTRICITY; AGGRAVATED
VEHICLE-TAKING.
JP See JUSTICE OF THE PEACE.
jUdge n. A state official with power to adjudicate on disputes and
other matters
brought before the courts for decision. In English law all judges
are appointed by
the Crown, on the advice of the Lord Chancellor in the case of
*circuit judges and
High Court *puisne judges and on the advice of the Prime Minister
in the case of
judges of the *Court of Appeal and the *Lords of Appeal in
Ordinary. All judges are
experienced legal practitioners, mostly barristers, but solicitors
can be appointed if
they possess the relevant *advocacy qualification. The independence
of the higher
judiciary is ensured by the principle that they hold office during
good behaviour
and not at the pleasure of the Crown (with the exception of the
Lord Chancellor).
They can only be removed from office by a resolution of both Houses
of Parliament
assented to by the Queen. Their salaries are a charge on the
*Consolidated Fund and
are not voted annually. Circuit judges may be removed by the Lord
Chancellor for
incapacity or misbehaviour. All judicial appointments are
pensionable and there is a
compulsory retirement age of 70 years, but this can be extended to
75 if considered
to be in the public interest. See alsoJUDICIAL IMMUNITY. Compare
MAGISTRATE.
jUdge advocate A barrister or solicitor who advises a *court
martial on questions
of law. He is appointed by the Judge Advocate-General's Department
or, in the case
of naval courts martial, by the Judge Advocate of the Fleet. At the
conclusion of the
evidence the judge advocate sums up the case to the members of the
court.
Judge Advocate-General's Department A department that advises
the
Secretary of State for Defence and the Defence Council on matters
relating to the
administration of military law and reviews proceedings of army and
air-force courts
martial.
judge in his own cause See NATURAL JUSTICE.
Judges' Rules Formerly, rules of practice drawn up by the High
Court governing
the questioning and charging of suspects by the police. They were
replacedby a
*code of practice issued under the provisions of the Police and
Criminal EVIdence
Act 1984.See also INTERROGATION.
judgment n. 1. A decision made by a court in .respect of the ma~ter
bef~re it.
Judgments may be interim (interlocutory), deciding a particular
Issue pnor to the
trial of the case; or final, finally disposing of the case. They
may be in personam,
imposing a personal liability on a party (e.g. to pay damages); or
in rem, determining
some issue of right, status, or property binding people generally.
2. The process of
reasoning by which the court's decision was arrived at. In English
law it is the
normal practice for judgment to be given in open court or, in some
~ppella~e
tribunals, to be handed down in printed form. If the Judgment
contains rulings on
important questions of law, it may be reported in the *law reports.
See also
ENFORCEMENT OF JUDGMENT; FOREIGN JUDGMENTS.
judgment creditor The person in whose favour a court judgment is
made
against a debtor.
judgment debtor A person against whom a court judgment has been
entered,
ordering him to pay money that he owes (the judgment debt). See
alsoENFORCEMENT
OF JUDGMENT.
judgment in default See DEFAULT.
judgment summons A summons, issued on the application of a person
enti~led
to enforce a judgment, that requires a judgment debtor to appear
and be examined
on oath as to his means. If it can be shown that the debtor had the
means to pay the
debt but has failed to do so the judge may make an order committing
him to prison,
suspended for as long as specified instalments are paid. Since t~e
virtual abolitior: of
imprisonment for debt, this procedure has been available ~nly in
respect of certain
*maintenance orders and judgments for payment of certam taxes and
state
contributions.
judicial cognizance See JUDICIAL NOTICE.
Judicial Committee of the Privy Council A tribunal, created by the
Judicial
Committee Act 1833, consisting of the Lord Chancellor, Lord
President of the Council
and ex-Lords President, Lords of Appeal in Ordinary, and other
members of the
*Privy Council who have been Lords of Appeal in Ordinary or who
ha~e held high
judicial office. Certain judges of Commonwealth. co~n~nes who are
Privy
Counsellors are also members. The Committee's jurisdiction IS to
hear appeals from
courts in dependent territories and those Commonwealth countries.
that have
retained appeals to the Privy Council since attaimng independence:
It al~o hears
appeals under certain statutes. The Committee's decisions are not
technically
judgments but merely advice to the Crown: they do not become.fmal
ur:tll .
incorporated into an *Order in Council. For this r.e~son also,
until 19.66 dissenting
opinions were not disclosed. The Committee's deCISIOns are. not
binding as precedents
upon English courts but are merely of *persuasive authonty.
judicial dictum See OBITER DICTUM.
judicial discretion The power of the court to take some step, grant
a remedy,. or
admit evidence or not as it thinks fit. Many rules of procedure and
evidence are III
discretionary form or provide for some element of discretion. In
criminal cases,
under the provisions of the Police and Criminal Evidence Act 1984,
the court may
exclude prosecution evidence if its admission would have such an
adverse effect on
the fairness of the proceedings that the court ought not to admit
it. The *Court of
Appeal is reluctant to review the exercise of discretion by trial
judges.
judicial immunity The exemption of a *judge or *magistrate from
personal
actions for damages arising from the exercise of his judicial
office. The immunity is
absolute in respect of all words or actions of the judge while
acting within his
*jurisdiction and extends to acts done without jurisdiction
provided that they were
done in good faith.
judicial notice ijudicial cognizance) The means by which the court
may take as
proven certain facts without hearing evidence. Notorious fads (i.e.
matters of
common knowledge) may be judicially noticed without inquiry; some
other facts
(e.g. matters that can easily be checked in a standard work of
reference and are
reasonably indisputable) may be noticed after inquiry. When
judicial notice has been
taken, *evidence in rebuttal is not permitted.
judicial precedent See PRECEDENT.
judicial review The simplified procedure by which, since 1m,
prerogative and
other remedies have been obtainable in the High Court against
inferior courts,
tribunals, and administrative authorities. On an application for
the judicial review
of a decision, the Court may grant a *quashing order, *mandatory
order,
*prohibition order, *declaration, or *injunction; it may also award
damages.
judicial separation order An order by the courts that a husband and
wife do
not have to cohabit. The order does not terminate the marriage but
it does free the
parties of marital obligations. Judicial (or legal) separation is
appropriate when there
are religious objections to divorce or when the parties have not
finally decided upon
divorce. The grounds for separation are the same as those for
*divorce. The courts
have the same powers in relation to financial orders and children
as they do when
granting a divorce.
judicial trustee A trustee appointed by the court under the
Judicial Trustee Act
1906,either as sole trustee or as co-trustee. He is an officer of
the court, is subject to
the court's control, and is entitled to such remuneration as the
court allows. In
practice, the *Public Trustee has replaced a trustee appointed
under the Act.
junior barrister Any barrister who is not a *Queen's Counsel. The
word "junior"
does not necessarily imply youth or lack of seniority: many members
of the Bar
remain juniors throughout their careers.
jure gestionis [Latin] Describing commercial transactions by bodies
that are
owned by the state but are not regarded as organs of the state. In
international law
the state accepts responsibility for such transactions and does not
claim immunity.
Compare JURE IMPERII.
jure imperii [Latin] Describing transactions by state bodies or
representatives, such
as diplomats. In international law the state maintains immunity
from such
transactions. Compare JURE GESTIONIS.
juridical adj. Relating to judicial proceedings or the law.
Juridical days were days
on which legal business could be transacted.
jurisdiction n. 1. The power of a court to hear and decide a case
or make a certain
order. (For the limits of jurisdiction of individual courts, see
entries for those
courts.) 2. The territorial limits within which the jurisdiction of
a court may be
exercised. In the case of English courts this comprises England,
Wales, Berwick-upon-
Tweed, and those parts of the sea claimed as *territorial
waters. Everywhere else is
said to be outside the jurisdiction. 3. The territorial scope of
the legislative
competence of Parliament. See SOVEREIGNTY OF PARLIAMENT.
In international law, jurisdiction can be exercised on a number of
grounds, based
on the following principles: (1) the territorial principle (that
the state within whose
boundaries the crime has taken place has jurisdiction, irrespective
of the nationality
of the transgressor); (2) the nationality principle (that a state
has the power of
jurisdiction over one of its nationals for an offence he has
committed in another
state); (3) the protective principle (that a potentially injured
state can exercise
jurisdiction in all cases when its national security is
threatened): (4) the passive
personality principle (that a state has jurisdiction if the illegal
act has been
committed against a national of that state); and (5) the
universality principle (when
the accused has committed a crime in breach of a rule of *jus
cogens, i.e. a crime
against humanity, any party having custody of the alleged
lawbreaker is permitted
to bring criminal proceedings against him).
juris et de jure [Latin] Of law and from law: an irrebuttable
*presumption is so
described.
juristic person (artificial person) An entity, such as a
*corporation, that is
recognized as having legal personality, i.e. it is capable of
enjoying and being subject
to legal rights and duties. It is contrasted with a human being,
who is referred to as
a natural person.
juror n. A member of a *jury. Each juror must swear that he will
faithfully try the
case and give a true verdict according to the evidence; failure to
do so is contempt
of court. Jurors are chosen from the electoral register; they must
be aged between
18 and 70 and must have been resident in the UKfor a period of at
least five years
since the age of 13. The following are ineligible for jury service:
(1) past and present
holders of any judicial office; (2) solicitors, barristers, members
of a court staff,
police officers, and others concerned with the administration of
justice, if they have
held the office within the preceding 10 years; (3) clergymen; and
(4) the mentally ill.
Members of Parliament, full-time members of the armed forces, and
practising
doctors, chemists, and vets may claim excusal from jury service and
there are also
special categories of discretionary excusal. A practising member of
a religious
society or order the tenets or beliefs of which are incompatible
with jury service are
excused from service as of right. Anyone who has ever been
imprisoned for five
years or more, or who has been imprisoned for more than three
months within the
preceding 10 years, or who is on bail, is disqualified from jury
service.
A defendant is entitled to challenge individual jurors (see
CHALLENGE TO JURY); if he
succeeds in his challenges, another person takes the place of the
challenged juror. A
person who appears to be suffering from a disability that could
impair performance
of their duties as juror must now be brought before the judge so
that he may form
an opinion as to their suitability.
jury n. A group of *jurors (usually 12) selected at random to
decide the facts of a
case and give a verdict. Most juries are selected to try crimes but
juries are also used
in coroner's *inquests and in some civil cases (e.g. defamation
actions). The judge
directs the jury on points of law (see DIRECTION TO JURY) and sums
up the evidence of
the prosecution and defence for them, but he must leave the jury to
decide all
questions of fact themselves. He must also make it clear to them
that they are the
only *triers of fact and must acquit the defendant unless they feel
sure that he is
guilty beyond reasonable doubt. The verdict of a jury should, if
possible, be
unanimous, but when there are at least 10 people on the jury and
they cannot reach
a unanimous verdict, a *majority verdict is acceptable. Many
offences must be tried
by a jury; many others may be tried by a jury or by magistrates
(see INDICTABLE
OFFENCE). See also CHALLENGE TO JURY.
It is a criminal offence to attempt to influence a jury's
discussions or to question
them about their discussions when the case is over. See also
CONTEMPT OF COURT;
INTIMIDATION.
jus n. [Latin] A law or right.
jus accrescendi [Latin] See RIGHT OF SURVIVORSHIP. locum non
habet
jus accrescendi inter mercatores pro beneficio commercii locum
non
habet [Latin: for the advancement of commerce there is no place for
the right of
survivorship between merchants] A maxim stating the principle that
equity will
treat as tenants in common (see TENANCY IN COMMON) those in
partnership whose
interest in partnership property is at common law a *joint tenancy.
Thus on the
death of a partner his interest in the partnership property is part
of his estate
rather than belonging to the surviving partners.
jus civile [Latin: civil law] 1. *Municipal law. 2. The whole body
of Roman law.
jus cogens [Latin: coercive law] A rule or principle in
international law that is so
fundamental that it binds all states and does not allow any
exceptions. Such rules
(sometimes called peremptory norms) will only amount to jus cogens
rules if they
are recognized as such by the international community as a whole. A
treaty that
conflicts with an existing jus cogens rule is void, and if a new
jus cogens rule
emerges, any existing treaty that conflicts with it automatically
becomes void. States
cannot create regional customary international law that contradicts
jus cogens rules.
Most authorities agree that the laws prohibiting slavery, genocide,
piracy, and acts
of aggression or illegal use of force are jus cogens laws. Some
suggest that certain
human rights provisions (e.g. those prohibiting racial
discrimination) also come
under the category of jus cogens.
jus gentium [Latin: the law of peoples] See INTERNATIONAL
LAw.
jus in re aliena [Latin] A right in the property of another (see
ENCUMBRANCE). It is
contrasted with jus in re propria - a right in one's own
property.
jus naturale [Latin: natural law] The fundamental element of all
law. See NATURAL
LAw.
jus sanguinis [Latin: law relating to blood] The principle that the
nationality of
children is the same as that of their parents, irrespective of
their place of birth. This
contrasts with *jus soli, whereby nationality is dependent on place
of birth. In states
in which the jus sanguinis principle applies (i.e. France and
Germany), a conflict of
jurisdiction may arise when a child is born of parents who are
citizens of another
state. For example, a child born in the United States of French
parents is an
American citizen jure soli, but a French citizen jure sanguinis.
His effective
citizenship will depend upon the jurisdiction within which he
happens to be in; in
the United States he is a US citizen; in France, a Frenchman; in
any other country he
is both.
Conflicts resulting from the simultaneous presence of these
contrasting claims of
allegiance are generally settled between states by deferring jus
sanguinis to jus soli
when the state asserting its primary claim of allegiance has de
facto jurisdiction of
the individual in question. Most jurisdictions (including the
United Kingdom and the
United States) now adopt within their nationality law a combination
of jus soliand
jus sanguinis.
jus soli [Latin: law relating to the soil (of one's country)] The
rule by which birth in
a state is sufficient to confer nationality, irrespective of the
nationality of one's
parents (compare JUS SANGUINIS). The United Kingdom and the United
States originally
adhered to a strict version of this principle. Thus the children of
an *alien, born on
the territory of the host state, would from their birth adopt the
nationality of that
state. Most jurisdictions (including the United Kingdom and the
United States) now
adopt a combination of jus soli and jus sanguinis.
just and equitable winding-up A *compulsory winding-up on grounds
of
fairness. This may occur, for example, when the purpose of the
company cannot be
achieved, when the management is deadlocked or has been guilty of
serious
irregularities, or, in small companies run on the basis of mutual
trust between
members, when the majority have exercised their legal rights in
breach of a
common understanding between the members when the company was
formed. No
order will be made if another form of *minority protection would be
more
appropriate. See also UNFAIR PREJUDICE.
jus tertii [Latin: right of a third party] A defence raised by a
party who is sued in
respect of property alleging that some third party has a better
claim to the property
than the claimant. The Torts (Interference with Goods) Act
1977provides that this is
a good defence to an action in *conversion, but a special procedure
is laid down for
the joinder of the third party in the action.
justice n. A moral ideal that the law seeks to uphold in the
protection of rights
and *punishment of wrongs. Justice is not synonymous with law - it
is possible for
a law to be called unjust. However, English law closely identifies
with justice and
the word is frequently used in the legal system; for example, in
justice of the peace,
Royal Courts of Justice, and administration of justice.
justice of the peace (JP) A person holding a commission from the
Crown to
exercise certain judicial functions for a particular commission
area. JPs are
appointed on behalf of and in the name of the Queen by the Lord
Chancellor and
may be removed from office in the same way. On reaching the age of
70 they are
placed on a supplemental list and cease to be able to exercise any
judicial functions.
Their principal function is to sit as *magistrates in the
*magistrates' courts but
they may also sit in the *Crown Court when it is considering
committals for
sentence and appeals from magistrates' courts, sign warrants of
arrest and search
warrants, and take statutory declarations. All High Court judges
are ex officio
justices of the peace for the whole of England and Wales.
justices' clerk See CLERK TO THE JUSTICES.
justification n. 1. The defence to an action for *defamation that
the defamatory
statement made was true. Truth is a complete defence to a civil
action for
defamation, except where true statements about *spent convictions
are proved to
have been made maliciously. 2. The defence that interference with
the contractual
or business relations of another was justified. The scope of the
defence is uncertain,
but the fact that the wages of chorus girls were so low that they
were compelled to
resort to prostitution has been held to justify a theatrical
performers' protection
society inducing theatre owners to break their contracts with the
girls' employer
(Brimelow v Casson 1924). See PROCURING BREACH OF CONTRACT.
justifying bail Demonstrating to a court granting bail that one is
capable of
meeting the surety specified in the bail (for example, disclosing
one's financial
resources). A person standing surety for bail must be able to
provide the bailout of
his own resources. It is a criminal offence (bail-bonding) for a
defendant who is
granted bail to agree to indemnify his surety against any loss
arising out of standing
surety.
just satisfaction The basis for damages awarded by the European
Court of
Human Rights (and thus in respect of claims under the *Human Rights
Act 1998). In
many cases where the Court finds a violation it has declined to
award any damages
on the basis that this finding is in itself sufficient just
satisfaction. Subject to this
discretion, damages can be obtained for pecuniary loss,
nonpecuniary loss, and costs
and expenses.
juvenile court See YOUTH COURT.
juvenile offender A person between the ages of 10 and 17 who has
committed a
crime (see DOLI CAPAX); an offender between the ages of 14 and 17
is known as a
young offender. A child (aged between 10 and 14) cannot normally be
tried on
indictment (even for an *indictable offence) except when charged
with homicide. A
young offender may be tried on indictment when charged with
homicide or an
offence for which an adult could be sentenced to at least 14 years'
imprisonment or
if he is jointly charged with someone aged 18 or over and it is
felt to be necessary
that they be tried together. In all other cases, juvenile offenders
must be tried
summarily by a magistrates' court or a *youth court; they can be
"found guilty" of
an offence but may not be described as "convicted".
A juvenile offender cannot be sentenced to imprisonment; instead he
may be
sentenced to *detention in a young offender institution. If found
guilty of murder
or some other grave crime he must be detained in a place and on
such conditions as
the Home Secretary may determine. The Crime (Sentences) Act
1997provides that
the Parole Board, rather than the Home Secretary, has
responsibility for the release
of juveniles convicted of murder. Under the Criminal Justice and
Public Order Act
1994it is possible to sentence an offender aged 12 to 14 who has
been convicted of a
serious offence punishable in an adult by imprisonment to custody
under a secure
training order for a period of six months to two years. A juvenile
offender may not
be sentenced to do community service or put on probation before the
age of 16. He
may be fined (see FINE), made the subject of a supervision or
hospital order, or
required to attend an *attendance centre. He could also be
discharged (absolutely or
conditionally). The procedures for dealing with juvenile offenders
have now been
amended in some respects by the Youth Justice and Criminal Evidence
Act 1999.