This dictionary has been written by a distinguished team of academic and practising lawyers. It is intended primarily for those without a qualification in law who nevertheless require some legallmowledge in the course oftheir work: chartered surveyors and accountants, civil servants and local-government officers, social workers and probation officers, as well as businessmen and legal secretaries are typical examples of those whose work often calls for a knowledge of the precise meaning (and spelling) of a legal term.
Each article, therefore, begins with a clear definition of the entry word (or words) and, in most cases, is followed by a more detailed explanation or description of the concepts involved. Written in concise English, without the unnecessary use of legal jargon, the book will also be of considerable value to members of the public who come into contact with the law and lawyers – house buyers, motorists, and hire purchasers are among those who cannot escape the effects of legislation or the unique prose style in which it is usually expressed.
May 28, 2008
A
abandonment n. 1. The act of giving up a legal right, particularly a right of
ownership of property. Property that has been abandoned is res nullius (a thing
belonging to no one), and a person taking possession of it therefore acquires a
lawful title. An item is regarded as abandoned when it can be established that the
original owner has discarded it and is indifferent as to what becomes of it: such an
item cannot be the subject of a theft charge. However, property placed by its owner
in a dustbin is not abandoned, having been placed there for the purpose of being
collected as refuse. In marine insurance, abandonment is the surrender of all rights
to a ship or cargo in a case of *constructive total loss. The insured person must do
this by giving the insurer within a reasonable time a notice of abandonment, by
which he relinquishes all his rights to the ship or cargo to the insurer and can treat
the loss as if it were an actual total loss. 2. In civil litigation, the relinquishing of
the whole or part of the claim made in an action or of an appeal. Any claim is now
considered to be abandoned once a *notice of discontinuance is served, according to
rule 38 (1) of the *Civil Procedure Rules. 3. The offence of a parent or guardian
leaving a child under the age of 16 to its fate. A child is not regarded as abandoned
if the parent knows and approves steps someone else is taking to look after it. The
court may allow a child to be adopted without the consent of its parents if they are
guilty of abandonment.
ownership of property. Property that has been abandoned is res nullius (a thing
belonging to no one), and a person taking possession of it therefore acquires a
lawful title. An item is regarded as abandoned when it can be established that the
original owner has discarded it and is indifferent as to what becomes of it: such an
item cannot be the subject of a theft charge. However, property placed by its owner
in a dustbin is not abandoned, having been placed there for the purpose of being
collected as refuse. In marine insurance, abandonment is the surrender of all rights
to a ship or cargo in a case of *constructive total loss. The insured person must do
this by giving the insurer within a reasonable time a notice of abandonment, by
which he relinquishes all his rights to the ship or cargo to the insurer and can treat
the loss as if it were an actual total loss. 2. In civil litigation, the relinquishing of
the whole or part of the claim made in an action or of an appeal. Any claim is now
considered to be abandoned once a *notice of discontinuance is served, according to
rule 38 (1) of the *Civil Procedure Rules. 3. The offence of a parent or guardian
leaving a child under the age of 16 to its fate. A child is not regarded as abandoned
if the parent knows and approves steps someone else is taking to look after it. The
court may allow a child to be adopted without the consent of its parents if they are
guilty of abandonment.
abatement n. 1. (of debts) The proportionate reduction in the payment of debts
that takes place if a person's assets are insufficient to settle with his creditors in
full. 2. (of legacies) The reduction or cancellation of legacies when the estate is
insufficient to cover all the legacies provided for in the will or on intestacy after
payment of the deceased's debts. The Administration of Estates Act 1925 provides
that general legacies, unless given to satisfy a debt or for other consideration, abate
in proportion to the amounts of those legacies; specific and demonstrative legacies
then abate if the estate is still insufficient to pay all debts, and a demonstrative
legacy also abates if the specified fund is insufficient to cover it. For example, A's
estate may comprise a painting, .300 in his savings account, and .700 in other
money; there are debts of .100 but his will leaves the painting to B,.500 from the
savings account to C. .800 to D, and .200 to E. B will receive the painting, C's
demonstrative legacy abates to .300, and after the debts are paid from the
remaining .700, D's and E's general legacies abate proportionately, to .480 and .120
respectively. When annuities are given by the will, the general rule is that they are
valued at the date of the testator's death, then abate proportionately in accordance
with that valuation, and each annuitant receives the abated sum. All these rules are
subject to any contrary intention being expressed in the will. 3. (in land law) Any
reduction or cancellation of money payable. For example a lease may provide for an
abatement of rent in certain circumstances, e.g. if the building is destroyed by fire,
and a purchaser of land may claim an abatement of the price if the seller can prove
his ownership of only part of the land he contracted to sell. 4. (of nuisances) The
termination, removal, or destruction of a *nuisance. A person injured by a nuisance
has a right to abate it. In doing so, he must not do more damage than is necessary
and, if removal of the nuisance requires entry on to the property from which it
emanates, he may have to give notice to the wrongdoer. A local authority can issue
an abatement notice to control statutory nuisances. 5. (of proceedings) The
termination of civil proceedings by operation of law, caused by a change of interest
or status (e.g. bankruptcy or death) of one of the parties after the start but before
the completion of the proceedings. An abatement did not prevent either of the
parties from bringing fresh proceedings in respect of the same cause of action. Pleas
in abatement have been abolished; in modern practice any change of interest or
status of the parties does not affect the validity of the proceedings, provided that
the cause of action survives.
abduction n. The offence of taking an unmarried girl under the age of 16 from
the possession of her parents or guardians against their will. It is no defence that
the girl looked and acted as if she was over 16 or that she was a willing party. No
sexual motive has to be proved. It is also an offence to abduct an unmarried girl
under the age of 18 or a mentally defective woman (married or unmarried) for the
purpose of unlawful sexual intercourse. In this case a defendant can plead that he
had reasonable grounds for believing that the girl was over 18, or that he did not
know the woman was mentally defective, respectively. It is also an offence to abduct
any woman with the intention that she should marry or have unlawful sexual
intercourse with someone, if it is done by force or for the sake of her property. It is
also an offence for a parent or guardian of a child under 16 to take or send him out
of the UKwithout the consent of the other parent or guardians. Belief that the
other person has or would have consented is a defence. It is also an offence for any
other person to remove or keep such a child, without lawful authority or reasonable
excuse, from the person with lawful control of him. Proof of belief that the child
was 16 is a defence here. See also KIDNAPPING.
abet vb. See AID AND ABET.
abortion n. The termination of a pregnancy: a miscarriage or the premature
expulsion of a foetus from the womb before the normal period of gestation is
complete. It is an offence to induce or attempt to induce an abortion unless the
terms of the Abortion Act 1967and the Abortion Regulations 1991 are complied with.
The pregnancy can only be terminated by a registered medical practitioner, and two
registered medical practitioners must agree that it is necessary, for example because
(1) continuation of the pregnancy would involve a risk to the life or physical or
mental health of the pregnant woman (or of other children of hers) that is greater
than the risk of terminating the pregnancy, or (2) that there is a substantial risk
that the child will be born with a serious physical or mental handicap. However,
doctors are not obliged to perform abortions if they can prove that they have a
conscientious objection to so doing. A husband cannot prevent his wife having a
legal abortion if she so wishes. Compare CHILD DESTRUCTION.
absconding n. The failure of a person to surrender to the custody of a court in
order to avoid legal proceedings. See alsoSURRENDER TO CUSTODY.
absence n. (in court procedure) The nonappearance of a party to litigation or a
person summoned to attend as a witness.
absent-mindedness n. See AUTOMATISM.
absent parent See NONRESIDENT PARENT; CHILD SUPPORT MAINTENANCE.
absolute assignment See ASSIGNMENT.
absolute discharge See DISCHARGE.
absolute privilege The defence that a statement cannot be made the subject of
an action for *defamation because it was made in Parliament, in papers ordered to
be published by either House of Parliament, in judicial proceedings or a fair and
accurate newspaper or broadcast report of judicial proceedings, or in an official
communication between certain officers of state. Under the Defamation Act 1996,
the defence is also available for those reporting proceedings of the European Court
of Justice. Under certain circumstances defined by the 1996 Act the absol~te
privilege accorded to statements or proceedings in Parli~ment m~y be waived .
(waiver of privilege) to permit evidence to be adduced III an action for defamation.
Compare QUALIFIED PRNILEGE.
absolute right A right set out in the European Convention on Human Rights that
cannot be interfered with lawfully, no matter how important the public interest in
doing so might be. Absolute rights include *freedom of thought, conscience, and
religion and the prohibitions on *torture, *inhuman treatment or punishment, and
*degrading treatment or punishment. Compare QUALIFIED RIGHT.
absolute title Ownership of a *legal estate in registered land with a guarantee by
the state that no one has a better right to that estate. An absolute title to freehold
land is equivalent to an estate in fee simple in possession in unregistered land.
Absolute leasehold title, unlike *good leasehold title, guarantees that the lessor
has title to grant the lease. (Com pare POSSESSORY TITLE; QUALIFIED TITLE.) The title may
be subject to (1) *encumbrances and other entries noted on the register by means of
substantive registration (e.g.a registered legal charge or land charge); (2)minor
interests, such as that of a beneficiary under a trust, which may be protected by
means of "entry" on the register rather than by substantive registration; and (3)
*overriding interests (which by their nature do not appear on the register and must
be ascertained by search and enquiry). See also LAND REGISTRATION.
abstracting electricity The *arrestable offence, punishable with up to five years'
imprisonment and/or a fine, of dishonestly using, wasting, or diverting electricity.
This offence may be committed by someone who bypasses his electricity meter or
reconnects a disconnected meter or who unlawfully obtains a free telephone call
(though there is a more specific and potentially less serious offence to deal with
this). Bypassing a gas or water meter could constitute *theft of the gas or water.
Joyriding in a lift (or some similar abuse) might also constitute wasting electricity.
Computer hackers were formerly charged with offences of abstracting electricity
until the Computer Misuse Act 1990made *hacking a specific criminal offence.
abstraction of water The taking of water from a river or other source of
supply. It normally requires a water authority licence but there are exceptions; for
example when less than 1000 gallons are taken, when the water is for domestic or
agricultural use (excluding spray irrigation), or when it is removed in the course of
fire-fighting or land drainage. It has been held not to include gravitational loss from
a canal replacing water drawn from a connecting outfall channel.
abstract of title Written details of the *title deeds and documents that prove an
owner's right to dispose of his land or an interest in this. An abstract generally deals
only with the *legal estate and any equitable interests that are not *overreached. An
owner usually supplies an abstract of title before *completion to an intending
purchaser or mortgagee, who compares it with the original title deeds when these
are produced or handed over on completion of the transaction. An abstract of title
to registered land consists of *office copies of the entries in the register (together
with an *authority to inspect the register) and details of any other documents
necessary to prove the owner's title, such as a marriage certificate proving a
woman's change of surname. For unregistered land, the abstract of title must
usually trace the history of the land's ownership from a document at least 15 years
old (the *root of title) and give details of any document creating encumbrances to
which the land is subject. An abstract of title formerly comprised extracts, often in
abbreviated note form, but now generally comprises duplicate copies of the relevant
documents (an epitome of title). An abstract or epitome, with each copy document
marked as examined against the original, may be sufficient in itself to deduce title;
for instance, when a title is split into lots, the purchaser of each lot may be required
to accept an examined abstract or epitome in lieu of the original title deeds,
accompanied by an *acknowledgment and undertaking.
abuse of a dominant position Unlawful activities by large businesses, i.e.
usually those having a market share of at least 40% in at least one EU state.
Examples of such activities, which are contrary to *Article 82 of the Treaty of Rome
and the UK Competition Act 1998, include refusing to supply an existing customer
and engaging in *predatory pricing. The European Commission and the Office of
Fair Trading can fine businesses up to 10%of annual worldwide turnover for breach
of Article 82. The record individual fine, of 102M ECUs(now euros), was against
Volkswagen in 1998; it was upheld on appeal in July 2000.Under the UK Competition
Act 1998a .3.21M penalty was imposed on Napp Pharmaceuticals. See ANTICOMPETITIVE
PRACTICE.
abuse of process A tort where damage is caused by using a legal process for an
ulterior collateral purpose. (See also MALICIOUS PROSECUTION.) Actions that are
obviously frivolous, vexatious, or in bad faith can be stayed or dismissed by the
court as an abuse of process.
abusive behaviour See THREATENING BEHAVIOUR.
ABWOR Advice by way of representation: assistance formerly given to a person by
taking on his behalf any step in the institution or conduct of any proceedings
before a court or tribunal under the provisions of the legal advice and assistance
scheme. The legal aid scheme under which ABWOR was created was replaced by the
"Community Legal Service from 1 April 2000. Under the new scheme, the
authorization of legal representation for the purposes of a particular hearing is now
in a form called help at court.
ACAS Advisory Conciliation and Arbitration Service: a statutory body that was
established under the Employment Protection Act 1975; the composition and
functions of ACAS are now governed by Parts IV and VI of the Trade Union and
Labour Relations (Consolidation) Act 1992.ACAS was set up to promote the
improvement of industrial relations and the development of *collective bargaining.
In its conciliation function it may intervene, with or without the parties' consent. in
a *trade dispute to offer facilities and assistance in negotiating a settlement. It
employs conciliation officers who may assist parties to an application to an
employment tribunal to reach a settlement. Earlier legislation removed the necessity
for binding settlements of employment disputes to involve an ACAS conciliation
officer: settlements can now be made when the invididual has had independent legal
advice from a qualified lawyer.
ACAS does not itself arbitrate in trade disputes, but with the consent of both
parties it may refer a dispute to the *Central Arbitration Committee or to an
independent arbitrator. ACAS may give free advice to employers, employees, and
their respective representatives on matters of employment or industrial relations. It
issues *codes of practice giving guidance on such matters as disciplinary procedures
and *disclosure of information to trade unions. It may also conduct inquiries into
industrial relations problems, either generally or in relation to particular businesses,
and publish the results after considering the views of parties directly affected. ACAS
can charge for its services when it considers that this is appropriate. The law on
conciliation generally is contained in the Employment Tribunals Act 1996.
acceleration n. The coming into possession of a *future interest in any property
at an earlier stage than that directed by the transaction or settlement that created
the interest. For example, a landlord's interest in *reversion is accelerated if the
tenant surrenders the lease before it has expired. When a will bequeaths an interest
for life that lapses (e.g. because the legatee dies before the testator), the interest of
the person entitled in *remainder is accelerated and takes effect immediately the
testator dies.
acceptance n. Agreement to the terms of an *offer that, provided certain other
requirements are fulfilled. converts the offer into a legally binding contract. If the
method by which acceptance is to be signified is indicated by the offeror, that
method alone will be effective. If it is not, acceptance may be either express (by
word of mouth or in writing) or inferred from the offeree's conduct; for example, if
he receives goods on approval and starts to make use of them. The acceptance must
always, however, involve some action on the part of the person to whom the offer
was made: the offeror cannot assert that his offer will be treated as accepted unless
the offeree rejects it. The validity of an acceptance is governed by four principal
rules. (1) It must take place while the offer is still in force, i.e. before it has lapsed
(see LAPSE OF OFFER) or been revoked (see REVOCATION OF OFFER). (2)It must be on the
same terms as the offer. An acceptance made subject to any variation is treated as a
counteroffer. (3) It must be unconditional, thus an acceptance subject to contract is
not a valid acceptance. (4) It must be communicated to the offeror. Acceptance by
letter is treated as communicated when the letter is posted, but telex is equated
with the telephone, so that communication takes place only on receipt. However,
when the offer consists of a promise to confer a benefit on whoever may perform a
specified act, the offeror waives the requirement of communication as a separate
act. If, for example. he offers a reward for information, a person able to supply the
information is not expected to accept the offer formally. The act of giving the
information itself constitutes the acceptance. the communication of the acceptance,
and the performance of the contract.
acceptance of a bill The written agreement by the person on whom a *bill of
exchange is drawn (the drawee) that he will accept the order of the person who
draws it upon him (the drawer). The acceptance must be written on the bill and
signed. The signature of the drawee without additional words is sufficient, although
generally the word "accepted" is used as well. Upon acceptance the drawee becomes
the acceptor and the party primarily liable upon the bill. See also QUALIFIED
ACCEPTANCE.
acceptance supra protest (acceptancefor honour) A form of *acceptance of a
bill of exchange to save the good name of the drawer or an endorser. If a bill of
exchange has been either the subject of a *protest for dishonour by nonacceptance
or protested for better security, and it is not overdue, any person who is not already
liable on the bill may. with the consent of the holder. accept the bill supra protest.
Such an acceptance must be written on the bill. indicate that it is an acceptance for
honour, and be signed. The acceptor for honour engages that he will pay the bill on
due presentment if it is not paid by the drawee, provided that it has been duly
presented for payment and protested for nonpayment and that he receives notice of
these facts. He is liable to the holder and to all parties to the bill subsequent to the
party for whose honour he accepted.
access n. Formerly. the opportunity to visit a child that was granted (at the
discretion of the court) to its parent when the other parent had the care and control
of the child after divorce or when a custodianship order was in force. Since the
Children Act 1989came into force the concept of access has been replaced by that of
*contact. See also SECTION 8 ORDERS.
accession n. 1. The formal agreement of a country to an international *treaty.
The term is applied to the agreement of a country to become a member state of the
European Union. Member states accede to the Treaty of Rome or any other EU
treaty by signing accession agreements. 2. The process of a member of the royal
family succeeding to the throne, which occurs immediately on the death or
abdication of the previous sovereign.
access land Land to which the public will have access for the purposes of open-air
recreation under the Countryside and Rights of Way Act 2000. It includes land
shown as open country (mountain, moor, heath, or down) on a map in conclusive
form issued by an appropriate countryside body (the Countryside Agency or the
Countryside Council for Wales) or as common land, or land situated more than 600
metres above sea level, or land that has been dedicated as access land.
accessory n. One who is a party to a crime that is actually committed by someone
else. An accessory is one who either successfully incites someone to commit a crime
(counsels or procures)or helps him to do so (*aids and abets). The accessory is
subject to the same punishments and orders as the principal (see alsoCOMMON
DESIGN). It is an offence to assist a person whom one knows has committed an
arrestable offence with the intention of impeding his apprehension or prosecution.
See also IMPEDING APPREHENSION OR PROSECUTION.
accessory liability If a stranger knowingly and dishonestly assists a trustee in a
breach of trust he will be liable as an accessory. He will not usually have received
any trust assets; however, in assisting in the breach he will be personally liable to
account to the trust for any losses arising from his actions.
accident n. See FATAL ACCIDENTS; MISTAKE; ROAD TRAFFIC ACCIDENTS.
accident record book A record kept by the police of details of the accidents they
have investigated. Access to this is usually requested by solicitors acting in
subsequent litigation relating to *road traffic accidents. The Association of Chief
Police Officers Traffic Committee has issued guidelines on charges for such reports.
accommodation bill A bill of exchange accepted by an accommodation party,
i.e. a person who signs without receiving value and for the purpose of lending his
name (i.e. his credit) to someone else. An accommodation party is liable on the bill to
a *holder for value.
accomplice n. One who is a party to a crime, either as a *principal or as an
*accessory. See alsoCORROBORATION.
accord and satisfaction The purchase by one party to a contract of a release
from his obligations under it when the other party has already performed his side
of the bargain. A release of this one-sided nature constitutes a unilateral discharge
of the contract; unless granted by deed, it can at common law be effected only by
purchase, i.e. by a fresh agreement (accord) for which new consideration
(satisfaction) is given. If, for example, A is due to pay .1000on a particular date to B
for contractual services rendered, B might agree to accept .900 paid on an earlier
date, the earlier payment constituting satisfaction. Compare BILATERAL DISCHARGE. See
also (PROMISSORY) ESTOPPEL.
account n. A right at common law and later (more importantly) in equity,
requiring one party to a relationship (e.g.a partnership) to account to the other or
others for moneys received or due. An account may be: (1) open or current, where a
balance has not been agreed or accepted by all parties; (2) stated, where a balance
has been accepted as correct by all parties; or (3) settled, where a balance has been
accepted and discharged.
accounting records See BOOKS OF ACCOUNT.
account of profits A remedy that a claimant can claim as an alternative to
damages in certain circumstances, e.g. in an action for breach of *copyright. A
successful claimant is entitled to a sum equal to the monetary gain the defendant
has made through wronging the claimant.
accounts pl. n. A statement of a company's financial position. All registered
companies must present accounts (in the form prescribed by the Companies Act
1985) annually at a *general meeting. These consist of a *balance sheet and a *profitand-
loss account with *group accounts (if appropriate) attached. They are
accompanied by a directors' report and an auditor's report. All limited companies
must deliver copies of their accounts to the *Companies Registry (where they are
open to public inspection) but companies that are classified (on the basis of
turnover, balance sheet total, and number of members) as "small" or "medium-sized"
enjoy certain exemptions. Members are entitled to be sent copies of the accounts. See
alsoELECTIVE RESOLUTION; SUMMARY FINANCIAL STATEMENT.
accretion n. The process by which new land formations are legally assimilated to
old by a change in the flow of a water channel. In contrast to *avulsion, this process
involves a very slow, near imperceptible, natural action of water and other elements.
It would include, for example, the natural diversion of a boundary river leaving an
island, sandbank, or dry land where it previously flowed, the formation of islands at
a river mouth, and additions to a delta by the deposit of sand and soil upon the
shoreline. Accretion will allow the beneficiary state to legitimately claim title to the
new land so created. See alsoTHALWEG, RULE OF THE.
accumulation n. The continual addition of the income of a fund to the capital, so
that the fund grows indefinitely. Before the Accumulation Act 1800 accumulation
was permitted for the length of the perpetuity period (i.e. lives in being plus 21
years: see RULE AGAINST PERPETUITIES). The periods for which accumulation is now
permitted are shorter; they are listed in the Law of Property Act 1925and the
Perpetuities and Accumulations Act 1964 and include a period of 21 years from the
date of the disposition, the period of the life of the settlor, and the duration of the
minority of any person mentioned in the disposition. Income is often directed to be
accumulated if (for example) the beneficiary is a minor, or the interest in his favour
is protected or contingent, or if the terms of a trust are discretionary.
accusatorial procedure (adversary procedure) A system of criminal justice in
which conclusions as to liability are reached by the process of prosecution and
defence. It is the primary duty of the prosecutor and defence to press their
respective viewpoints within the constraints of the rules of evidence while the
judge acts as an impartial umpire, who allows the facts to emerge from this
procedure. Common-law systems usually adopt an accusatorial procedure. See also
BURDEN OF PROOF. Compare INQUISITORIAL PROCEDURE.
acknowledgment n. 1. The admission that a debt is due or a claim exists. Under
the Limitation Act 1980,a written acknowledgment by a debtor or his agent causes
the debt to be treated as if it had accrued on the date of the acknowledgment,
provided that the limitation period is still current at that date. The result is that the
limitation period of six years for bringing an action to recover the debt runs from
the date of acknowledgment, rather than the date on which the debt in fact arose.
See also LIMITATION OF ACTIONS. 2. Confirmation by the signatory to a document that
the signature on the document is his own. For example, the Wills Act 1837 requires
that the testator's signature on the will be made or acknowledged in the presence of
at least two witnesses present at the same time. Since January 1983 it has also been
possible for a witness to acknowledge his signature in the presence of the testator.
acknowledgment and undertaking Confirmation in a *title deed that a
person may see and have copies of relevant deeds not in his possession
(acknowledgment), with a promise from the holder of them to keep them safely
(undertaking). Thus when part of an owner's land is sold, he keeps his deeds to the
whole but in the conveyance gives this acknowledgment and undertaking to the
purchaser, who can then prove his title to the part from copies of the earlier deeds
and by calling for production of the originals. In the majority of cases the vendor
gives the purchaser all title documents relating solely to the land conveyed, and an
acknowledgment and undertaking is only necessary when this does not happen. Note
that personal representatives and fiduciary owners will normally give only an
acknowledgment, no undertaking. Breach of an undertaking gives rise to an action
in damages.
acknowledgment of service A response by a defendant to a claim. A defendant
who intends to contest proceedings brought against him by a claimant must
respond to the claim by filing an acknowledgment of service and/or by filing a
*defence. Acknowledgments of service are used if the defendant is unable to file a
defence within the required time or if the defendant intends to dispute the
jurisdiction of the court, By acknowledging service a defendant is given an extra 14
days for filing the defence. In effect this means that the defendant has a 28-day
period after service of the claim before the defence must be served. Once the
defendant has returned the relevant section of the acknowledgment of service form,
the court must notify the claimant in writing.
ACP states The African, Caribbean, and Pacific states that are associated with the
European Union through the Lome Convention. This convention, which was signed
at Lome (Togo)in 1975, provides for cooperation in matters of commerce between
ACPstates and EU states, including access to the EU market for products from the
ACPcountries. The Convention also provides for cooperation in industrial and
financial matters.
acquiescence n. Express or implied *consent. In law, care must be taken to
distinguish between mere knowledge of a situation and positive consent to it. For
example, in the defence of *volentinon fit injuria an injured party will not be
regarded as having consented to a risk simply because he knew that the risk existed.
acquired rights See RELEVANT TRANSFER.
acquis communautaire [French] The body of *Community legislation by which
all EU member states are bound.
acquittal n. A decision by a court that a defendant accused of a crime is innocent.
A court must acquit a defendant following a verdict of *not guilty or a successful
plea of *autrefois acquit or *autrefois convict. Once acquitted, a defendant cannot be
retried for the same crime on fresh evidence, but an acquittal in a criminal court
does not bind civil courts (for example, in relation to a libel charge against someone
alleging the defendant's guilt).
action n. A proceeding in which a party pursues a legal right in a civil court. See
also IN PERSONAM; IN REM.
active trust (special trust) A trust that imposes duties on the trustee other than
that of merely handing over the trust property to the person entitled to it (compare
BARE TRUST). These duties may impose a specific obligation on the trustee or confer a
discretion on him.
act of God An event due to natural causes (storms, earthquakes, floods, etc.) so
exceptionally severe that no-one could reasonably be expected to anticipate or guard
against it. See FORCE MAJEURE.
Act of Parliament (statute) A document that sets out legal rules and has
(normally) been passed by both Houses of *Parliament in the form of a *Bill and
agreed to by the Crown (see ROYAL ASSENT). Under the Parliament Acts 1911 and 1949,
however, passing of public Bills by the House of Lords can be dispensed with, except
in the case of Bills to extend the duration of Parliament or to confirm provisional
orders. Subject to these exceptions, the Lords can delay Bills passed by the House of
Commons; it cannot block them completely. If the Commons pass a money Bill (for
example, one giving effect to the Budget) and the Lords do not pass it unaltered
within one month, it may be submitted direct for the royal assent. Any other Bill
may receive the royal assent without being passed by the Lords if the Commons pass
it in two consecutive sessions and at least one year elapses between its second
reading in the first session and its third reading in the second.
Every modern Act of Parliament begins with a long title, which summarizes its
aims, and ends with a short title, by which it may be cited in any other document.
The short title includes the calendar year in which the Act receives the royal assent
(e.g. The Competition Act 1998). An alternative method of citation is by the calendar
year together with the Chapter number allotted to the Act on receiving the assent
or, in the case of an Act earlier than 1963, by its regnal year or years and Chapter
number. Regnal years are numbered from the date of a sovereign's accession to the
throne, and an Act is attributed to the year or years covering the session in which it
receives the royal assent. (See alsoENACTING WORDS.) An Act comes into force on the
date of royal assent unless it specifies a different date or provides for the date to be
fixed by ministerial order.
Acts of Parliament are classified by the Queen's Printer as public general Acts,
local Acts, and personal Acts. Public general Acts include all Acts (except those
confirming provisional orders) introduced into Parliament as public Bills. LocalActs
comprise all Acts introduced as private Bills and confined in operation to a
particular area, together with Acts confirming provisional orders. Personal Acts are
Acts introduced as private Bills and applying to private individuals or estates. Acts
are alternatively classified as public Acts or private Acts according to their status
in courts of law. A public Act is judicially noticed (i.e. accepted by the courts as a
matter of general knowledge). A private Act is not, and must be expressly pleaded
by the person relying on it. All Acts since 1850are public unless they specifically
provide otherwise. The printed version of an Act, rather than the version set out on
the HMSOwebsite, is the authentic text, although there are current proposals (2001)
to alter this rule under the Electronic Communications Act 2000.
act of state An act, often involving force, of the executive of a state, or
committed by an agent of a sovereign power with its prior approval or subsequent
ratification, that affects adversely a person who does not owe allegiance to that
power. The courts have power to decide whether or not particular conduct
constitutes such an act, but if it does, they have no jurisdiction to award any
remedy.
actual bodily harm Any hurt or injury calculated to interfere with the health or
comfort of the victim. *Assault causing actual bodily harm is a summary or
indictable offence carrying a maximum punishment of five years' imprisonment.
The hurt need not be serious or permanent in nature, but it must be more than
trifling. It is enough to show that pain or discomfort has been suffered, even
though no bruising is evident. Hysteria brought on as a result of assault is sufficient
for the offence to be proved.
actual military service See PRIVILEGED WILL.
actual notice Knowledge that a person has of rights adverse to his own. If a
purchaser of unregistered land has actual notice of an interest that is not required
to be registered as a land charge, and which will not be overreached on the sale to
him, he will be bound by it. The doctrine of notice plays no part in registered land,
where it has been replaced by the rules of registration. See also CONSTRUCTIVE NOTICE;
IMPUTED NOTICE.
actual total loss (in marine insurance) A loss of a ship or cargo in which the
subject matter is destroyed or damaged to such an extent that it can no longer be
used for its purpose, or when the insured is irretrievably deprived of it. If the ship
or cargo is the subject of a *valued policy, the measure of indemnity is the sum
fixed by the policy; if the policy is unvalued, the measure of indemnity is the
insurable value of the subject insured. Compare CONSTRUCTIVE TOTAL LOSS.
actus reus [Latin: a guilty act] The essential element of a crime that must be
proved to secure a conviction, as opposed to the mental state of the accused (see MENS
REA). In most cases the actus reus will simply be an act (e.g.appropriation of property
is the act of theft) accompanied by specified circumstances (e.g. that the property
belongs to another). Sometimes, however, it may be an *omission to act (e.g. failure
to prevent death may be the actus reus of manslaughter) or it may include a
specified consequence (death resulting within a year being the consequence required
for the actus reus of murder or manslaughter). In certain cases the actus reus may
simply be a state of affairs rather than an act (e.g. being unfit to drive through
drink or drugs when in charge of a motor vehicle on a road).
actus reus non tacit reum nisi mens sit rea [Latin: an act does not make a
person guilty of his crime unless his mind be also guilty] The maxim that forms the
basis for defining the two elements that must be proved before a person can be
convicted of a crime (see ACTUS REUS; MENS REA).
ad colligenda bona [Latin] To collect the goods. The court may grant *letters of
administration ad colligenda bonato any person to deal with specified property in an
estate when that property might be endangered by delay. For example, if part of the
estate consists of perishable goods the court may grant administration ad colligenda
bona to any suitable person to allow him to sell or otherwise deal with those goods
for the benefit of the estate. This is a limited grant only and ceases on the issue of a
full grant of representation to the persons entitled to deal with the whole estate. In
one case, such a grant was issued to the Official Solicitor on an application by the
Inland Revenue when the executors of the deceased's will delayed applying for
probate.
additional voluntary contribution (AVq An additional payment that may be
made by an employee to a pension scheme in order to increase the benefits available
from their pension fund on retirement. AVCs can be paid into an employer's scheme
or into a scheme of the employee's choice (a free-standing AVe); they can be made
free of tax within Inland Revenue limits (see PENSION).
address for service The address, which a party to court proceedings gives to the
court and/or the other party, to which all the formal documents relating to the
proceedings should be delivered. Notices delivered at that address (which may be, for
example, the address of his solicitors) are binding on the party concerned.
ademption n. The cancellation or reduction of a specific *legacy because the
subject matter of the gift is no longer part of the testator's estate at his death, or
the testator no longer has power to dispose of it, or there is nothing conforming to
the description of it in the will. For example, if the will bequeaths a particular
house that the testator sold during his lifetime, or if after making a will giving a
legacy to his child the testator gives the child property constituting a *portion, the
legacy is in each case adeemed. The gift of the house is cancelled and the child's
legacy is reduced by the amount of the portion (see also SATISFACTION). Ademption
need not occur by the testator's own deed; for example, an Act of Parliament that
nationalized a company in which the testator had shares would cause a legacy of
those shares to adeem.
ad idem [Latin: towards the same] Indicates that the parties to a transaction are in
agreement. See CONSENSUS AD IDEM.
ADIZ See AIR DEFENCE IDENTIFICATION ZONE.
adjective law The part of the law that deals with practice and procedure in the
courts. Compare SUBSTANTIVE LAW.
adjournment n. (in court procedure) The postponement or suspension of the
hearing of a case until a future date. The hearing may be adjourned to a fixed date
or sine die (without day), i.e. for an indefinite period. If an adjournment is granted at
the request of a party the court may attach conditions, e.g. relating to the payment
of any *costs thrown away.
adjudication n. 1. The formal judgment or decision of a court or tribunal. 2. A
decision by the Commissioners of Inland Revenue as to the amount (if any) of
*stamp duty payable on a written document.
adjudication order Formerly, a court order that made a debtor bankrupt. See
BANKRUPTCY ORDER.
adjustment n. 1. The determination of the amount due under a policy of
insurance. 2. The working out by an average adjuster of the rights and liabilities
arising in a case of general *average.
ad litem [Latin] For the suit. A grant ad litem is the appointment by a court of a
person to act on behalf of an estate in court proceedings, when the estate's proper
representatives are unable or unwilling to act. For example, the Official Solicitor
may be appointed administrator ad litem when a person wishes to claim under the
Inheritance (Provision for Family and Dependants) Act 1975(see FAMILY PROVISION) but
the personal representatives are not willing to act, or nobody is entitled to a grant,
or the only person entitled to a grant is the litigant himself. A guardian ad litem is
the former name for a *children's guardian.
administration n. 1. The collection of assets, payment of debts, and distribution
to the beneficiaries of property in the estate of a deceased person. See also GRANT OF
REPRESENTATION. 2. The granting of *letters of administration to the estate of a
deceased person to an *administrator, when there is no executor under the will.
3. The process of carrying out duties imposed by a trust in connection with the
property of a person of unsound mind or a bankrupt.
administration action Proceedings instituted in court by a personal
representative or any other person interested in the estate of a deceased person to
obtain a *grant of representation.
administration bond A guarantee by a third party, often an insurance company,
to make good any loss arising if a person to whom letters of administration have
been granted fails to deal properly with the estate. The court usually requires an
administration bond as a condition of granting letters of administration only when
the beneficiaries are considered to need special protection, e.g. when the
administrator lives abroad or where there has been a dispute as to who should
administer the estate.
administration of poison See POISON.
administration order 1. An order made in a county court for the administration
of the estate of a judgment debtor. The order normally requires the debtor to pay
his debts by instalments: so long as he does so, the creditors referred to in the order
cannot enforce their individual claims by other methods without the leave of the
court. Administration orders are issued when the debtor has multiple debts but it is
thought that his bankruptcy can be avoided.
2. An order made by the court under the Insolvency Act 1986, directing that, during
the period for which it is in force, the affairs, business, and property of a company
shall be managed by a person appointed by the court (known as the administrator).
In order for the court to grant such an order it must be satisfied that the company
cannot or is unlikely to be able to pay its debts when due and that the order is likely
to allow (1) the survival of the company, or (2) the approval of a *voluntary
arrangement, or (3) a more favourable realization of its assets than would be
possible under a *winding-up or through an arrangement with creditors.
The Insolvency Act does not specify a period for the duration of the order: it
remains in force until the administrator is discharged, by the court, having achieved
the purpose(s) for which the order was granted or having decided that the purpose
cannot be achieved.
While the order is in force the company may not be wound up; no steps may be
taken to enforce any security over the company's property or to repossess goods in
the company's possession, except with the leave of the court, and no other
proceedings or other legal processes may be initiated or continued, against the
company or its property, except with the court's leave.
administration pending suit Administration of a deceased person's estate by a
person appointed by the High Court (the administrator pending suit) when legal
proceedings are pending concerning the validity of the will or for obtaining,
recalling, or revoking any grant. An administrator pending suit has all the rights,
powers, and duties of a general administrator except that he may not distribute any
part of the estate without the leave of the court.
administrative letter See COMFORT LETTER.
administrative powers Discretionary powers of an executive nature that are
conferred by legislation on government ministers, public and local authorities, and
other bodies and persons for the purpose of giving detailed effect to broadly
defined policy. Examples include powers to acquire land compulsorily, to grant or
refuse licences or consents, and to determine the precise nature and extent of
services to be provided. Administrative powers are found in every sphere of public
administration, including town and country planning, the regulation of public
health and other environmental matters, the functioning of the welfare services,
and the control of many trades, professions, and other activities. Their exercise is
subject to judicial control by means of the doctrine of *ultra vires.
administrative receiver A *receiver who, under the terms of a debenture
secured by floating *charge, takes control of all (or substantially all) of a company's
assets. See also INSOLVENCY PRACTITIONER.
administrative tribunal A body established by or under Act of Parliament to
decide claims and disputes arising in connection with the administration of
legislative schemes, normally of a welfare or regulatory nature. Examples are
*employment tribunals and *rent assessment committees. They exist outside the
ordinary courts of law, but their decisions are subject to judicial control by means
of the doctrine of *ultra vires and in cases of *error of law on the face of the record.
Compare DOMESTIC TRIBUNAL. See also COUNCIL ON TRIBUNALS.
administrator n. 1. A person appointed by the court to collect and distribute a
deceased person's estate when the deceased died intestate, his will did not appoint an
executor, or the executor refuses to act. An administrator's authority to deal with
the estate does not begin until the court has granted *letters of administration. The
Administration of Estates Act 1925lays down the order in which people are entitled
to a grant of representation. Compare EXECUTOR. 2. See ADMINISTRATION ORDER.
Admiralty Court A court forming part of the *Queen's Bench Division of the
High Court whose jurisdiction embraces civil actions relating to ships and the sea.
*Puisne judges hear cases with the assistance of nautical assessors. The court's work
includes cases about collisions, damage to cargo, prizes (see PRIZE COURT), and salvage,
and in some cases *assessors may be called in to sit with the judge. The distinctive
feature of the court's procedure is the action *in rem, under which the property
that has given rise to the cause of action (usually a ship) may be "arrested" and held
by the court to satisfy the claimant's claim. In practice, it is usual for the owners of
the property to give security for its release while the action is proceeding. If the
claim is successful, the property held or the sum given by way of security is
available to satisfy the judgment. Until 1971 the Admiralty Court was part of the
*Probate, Divorce and Admiralty Division of the High Court. Since the Access to
Justice Act 1999, all Admiralty proceedings will be allocated to the *multi-track.
admissibility of evidence The principles determining whether or not particular
items of evidence may be received by the court. The central principle of
admissibility is *relevance. All irrelevant evidence is inadmissible, but evidence that
is legally relevant may also be inadmissible if it falls within the scope of one of the
*exclusionary rules of evidence. See also CONDITIONAL ADMISSIBILITY; MULTIPLE
ADMISSIBILITY.
B
backed for bail Describing a warrant for arrest issued by a magistrate or by the
Crown Court to a police officer, directing him to release the accused, upon arrest, on
bail under specified conditions. The police officer is bound to release the arrested
person if his sureties are approved.
Crown Court to a police officer, directing him to release the accused, upon arrest, on
bail under specified conditions. The police officer is bound to release the arrested
person if his sureties are approved.
bail n. The release by the police, magistrates' court, or Crown Court of a person
held in legal custody while awaiting trial or appealing against a criminal conviction.
Conditions may be imposed on a person released on bail by the police. A person
granted bail undertakes to pay a specified sum to the court if he fails to appear on
the date set by the court (see also JUSTIFYING BAIL). This is known as bail in one's own
recognizance. Often the court also requires guarantors (known as sureties) to
undertake to produce the accused or to forfeit the sum fixed by the court if they
fail to do so. In these circumstances the bailed person is, in theory, released into the
custody of the sureties. Judges have wide discretionary powers as to whether or not
bail should be granted, and for what sum. Normally an accused is granted bail unless
it is likely that he will abscond, or interfere with witnesses, or unless he is accused
of murder, attempted murder, manslaughter, rape, or attempted rape and has a
previous conviction for such an offence. The accused, and the prosecution in limited
circumstances, may appeal.
bailee n. See BAILMENT.
bail hostel Accommodation for persons of no fixed address who have been
released on bail.
bailiff n. 1. All officer of a court (usually a county court) concerned with the
service of the court's processes and the enforcement of its orders, especially
warrants of *execution authorizing the seizure of the goods of a debtor. The term is
often loosely applied to a sheriff's officer. 2. A judicial official in Guernsey (Royal
Court Bailiff).
bailiwick n. The area within which a *bailiff or *sheriff exercises jurisdiction.
bailment n. The transfer of the possession of goods by the owner (the bailor) to
another (the bailee) for a particular purpose. Examples of bailments are the hiring
of goods, the loan of goods, the pledge of goods, and the delivery of goods for
carriage, safe custody, or repair. Ownership of the goods remains in the bailor, who
has the right to demand their return or direct their disposal at the end of the
period (if any) fixed for the bailment or (if no period is fixed) at will. This right will,
however, be qualified by any *lien the bailee may have over the goods. Bailment
exists independently of contract. But if the bailor receives payment for the bailment
(a bailment for reward) there is often an express contract setting out the rights
and obligations of the parties. A bailment for which the bailor receives no reward
(e.g. the loan of a book to a friend) is called a gratuitous bailment.
bailor n. See BAILMENT.
balance sheet A document presenting in summary form a true and fair view of a
company's financial position at a particular time (e.g. at the end of its financial year).
It must show the items listed in either of the two formats set out in the Companies
Act 1985. Its purpose is to disclose the amount that would be available for the
benefit of members if the company were immediately wound up and liabilities were
discharged out of the proceeds of selling its assets. See ACCOUNTS; STATEMENTS OF
STANDARD ACCOUNTING PRACTICE.
bank holidays Days that are declared holidays for the clearing banks and are kept
as public holidays under the Banking and Financial Dealing Act 1971 or by royal
proclamation under this Act. In England and Wales there are currently eight bank
holidays a year: New Year's Day (or, if that is a Saturday or Sunday, the following
Monday), Good Friday, Easter Monday, May Holiday (the first Monday in May), Spring
Bank Holiday (the last Monday in May),Summer Bank Holiday (the last Monday in
August), and Christmas Day and the following day (or, if Christmas Day is a Saturday
or Sunday, the following Monday and Tuesday).
bankruptcy n. The state of a person who has been adjudged by a court to be
insolvent (compare WINDING-UP). The court orders the compulsory administration of a
bankrupt's affairs so that his assets can be fairly distributed among his creditors. To
declare a debtor to be bankrupt a creditor or the debtor himself must make an
application (known as a bankruptcy petition) either to the High Court or to a
county court. If a creditor petitions, he must show that the debtor owes him at least
.750 and that the debtor appears unable to pay it. The debtor's inability to pay can
be shown either by: (1) the creditor making a formal demand in a special statutory
form, and the debtor failing to pay within three weeks; or (2) the creditor of a
*judgment debtor being unsuccessful in enforcing payment of a judgment debt
through the courts. If the petition is accepted the court makes a *bankruptcy order.
Within three weeks of the bankruptcy order, the debtor must usually submit a
*statement of affairs, which the creditors may inspect. This may be followed by a
*public examination of the debtor. After the bankruptcy order, the bankrupt's
property is placed in the hands of the *official receiver. The official receiver must
either call a creditors' meeting to appoint a *trustee in bankruptcy to manage the
bankrupt's affairs, or he becomes trustee himself. The trustee must be a qualified
*insolvency practitioner. He takes possession of the bankrupt's property and, subject
to certain rules, distributes it among the creditors.
A bankrupt is subject to certain disabilities (see UNDISCHARGED BANKRUPT).
Bankruptcy is terminated when the court makes an order of *discharge, but a
bankrupt who has not previously been bankrupt within the preceding 15 years is
automatically discharged after three years. See also VOLUNTARY ARRANGEMENT.
bankruptcy order A court order that makes a debtor bankrupt. When the order
is made, ownership of all the debtor's property is transferred either to a court
officer known as the *official receiver or to a trustee appointed by the creditors. It
replaced both the former *receiving order and *adjudication order in bankruptcy
proceedings. See alsoBANKRUPTCY.
bankruptcy petition An application to the High Court or a county court for a
*bankruptcy order to be made against an insolvent debtor. See BANKRUPTCY.
banning order See FOOTBALL HOOLIGANISM.
banns pl. n. The public announcement in church of an intended marriage. Banns
must be published for three successive Sundays if a marriage is to take place in the
Church of England other than by religious licence or a superintendent registrar's
certificate. See also MARRIAGE BY CERTIFICATE; MARRIAGE BY RELIGIOUS LICENCE.
bar n. 1. A legal impediment. 2. An imaginary barrier in a court of law. Only
Queen's Counsel, officers of the court, and litigants in person are allowed between
the bar and the *bench when the court is in session. 3. A rail near the entrance to
each House of Parliament beyond which nonmembers may not pass but to which
they may be summoned (e.g. for reprimand).
Bar n. *Barristers, collectively. To be called to the Bar is to be admitted to the
profession by one of the Inns of Court.
Bar Council (General Council of the Bar of England and Wales) The governing
body of the barristers' branch of the legal profession. It regulates the activities of all
barristers, maintains standards within the Bar, and considers complaints against
barristers. See also COUNCIL OF THE INNS OF COURT.
bare licensee A person who uses or occupies land by permission of the owner but
has no legal or equitable interest in it. Such permission is personal to him; thus he
cannot transfer it. He cannot enforce it against a third party who acquires the land
from the owner. His permission can be brought to an end at any time and he must
leave the property with "all reasonable speed". If he does not do so he becomes a
trespasser (see TRESPASS). See also LICENCE.
bare trust (naked trust, simple trust) A trust in which the trustee has no
obligation except to hand over the trust property to a person entitled to it, at the
latter's request. This will occur when the beneficiary is of full age and under no
disability and the trustee has no duties in respect of the property. Compare ACTIVE
TRUST.
barratry n. 1. Any act committed wilfully by the master or crew of a ship to the
detriment of its owner or charterer. Examples include scuttling the ship and
embezzling the cargo. Illegal activities (e.g.carrying prohibited persons) leading to
the forfeiture of the ship also constitute barratry. Barratry is one of the risks
covered by policies of marine insurance. 2. The former common-law offence
(abolished by the Criminal Law Act 1967) of habitually raising or inciting disputes in
the courts.
barring of entailed interest See ENTAILED INTEREST.
barrister n. A legal practitioner admitted to plead at the Bar. A barrister must be a
member of one of the four *Inns of Court, by whom he is called to the Bar when
admitted to the profession. Barristers normally take a three-year law degree at
university, followed by a one-year course at Bar school after which they are called to
the Bar. Thereafter they take a pupillage in chambers and then seek a permanent
place as a "tenant". The primary function of barristers is to act as *advocates for
parties in courts or tribunals, but they also undertake the writing of opinions and
some of the work preparatory to a triaL Their general immunity from law suits in
negligence for criminal and civil litigation has been abolished. With certain
exceptions a barrister may only act upon the instructions of a *solicitor, who is also
responsible for the payment of the barrister's fee. Barristers have the right of
audience in all courts: they are either *Queen's Counsel (often referred to as leaders
or leading counsel) or *junior barristers. See alsoADVOCACY QUALIFICATION.
baseline n. The line forming the boundary between the INTERNAL WATERS of a state
on its landward side and the territorial sea on its seaward side (see TERRITORIAL
WATERS). Other coastal state zones (the contiguous zone, *exclusive economic zone,
and exclusive fishing zone) are measured from the baseline.
basic award See COMPENSATION.
basic intent See INTENTION; INTOXICATION.
battered child A child subjected to physical violence or abuse by a parent, step
parent, or any other person with whom he is living. A battered child may be
protected if the other parent (or person who is looking after him) applies for an
injunction under the Family Law Act 1996,but only if the child is living, or might
reasonably be expected to live, with the applicant. The Act applies to children under
18.When a child is suffering, or likely to suffer, significant harm, a local authority
may apply for a *supervision order or *care order under the Children Act 1989. See
also EMERGENCY PROTECTION ORDER.
battered spouse or cohabitant A person subjected to physical violence by their
husband, wife, or cohabitant (subsequently referred to as "partner" in this entry).
Battered partners (or those afraid of future violence) may seek protection in a
number of ways. Under the Family Law Act 1996 they can apply to the court for a
*nonmolestation order, directing the other partner not to molest, annoy, or use
violence against them, or for an *occupation order, entitling the applicant to remain
in occupation of the matrimonial home and prohibiting, suspending, or restricting
the abusive partner's right to occupy the house. Battered partners can apply for
these orders if they are also applying for some other matrimonial relief (e.g.a
divorce). The court must attach a power of arrest to a nonmolestation order or an
occupation order if the abuser has used or threatened violence against his or her
partner. This gives a constable the power to arrest without warrant the abuser if he
or she is in breach of the order. In cases of emergency an injunction without notice
may be granted. In theory, a criminal prosecution for "assault or for harassment
under the Protection from Harassment Act 1997could be brought, but in practice
this is seldom used by victims of domestic violence. Under the Housing Act 1985,
local authorities have a duty to supply emergency accommodation to those made
homeless when they have left their homes because of domestic violence.
Those who have been subjected to continued beatings by their partners over a
period of time may plead *provocation or *diminished responsibility if charged
with the murder of their partner.
battery n. The intentional or reckless application of physical force to someone
without his consent. Battery is a form of *trespass to the person and is a *summary
offence (punishable with a *fine at level 5 on the standard scale and/or six months'
imprisonment) as well as a tort, even if no actual harm results. If actual harm does
result, however, the *consent of the victim may not prevent the act from being
criminal, except when the injury is inflicted in the course of properly conducted
sports or games (e.g.rugby or boxing) or as a result of reasonable surgical
intervention. Compare ASSAULT; GRIEVOUS BODILY HARM.
bay n. A well-marked roughly semicircular indentation on a coastline. What does or
does not constitute a bay can be of relevance in determining a state's control of its
coastal waters. The test is a geographical one, taking into account relative
dimensions and configuration. The following three considerations have been taken
into account when making this determination: (1) the depth of the indentation
relative to the width of its mouth; (2) the economic and strategic importance of the
indentation to the coastal state; and (3) the seclusion of the indentation from the
highway of nations on the open sea. See also TERRITORIAL WATERS.
bearer n. The person in possession of a bill of exchange or promissory note that is
payable to the bearer.
beauty competition A method used by an employer contemplating entering a
*single-union agreement, in which a number of unions are invited to present
proposals for collective bargaining arrangements within an establishment. After
reviewing the proposals the company decides to recognize the union that best meets
its criteria.
Beddoe order [from the case re Beddoe (1892)] An order made by the court
granting trustees permission to bring or defend an action. The order protects the
trustees against claims by the beneficiaries that the action should not have been
brought and enables them to recover their costs from the trust property. If an
order has not been obtained, these consequences may not follow, and the trustees
may therefore have to compensate the beneficiaries for any loss and also may
themselves have to pay any costs arising from the action.
belligerent communities, recognition of The formal acknowledgment by a
state of the existence of a civil war between another state's central government and
the peoples of an area within its territorial boundaries. Such recognition brings
about the conventional operation of the rules of war, in particular those
humanitarian restraints upon the combatants introduced by the international law
of armed force. Another result of recognition of belligerency is that both the rebels
and the parent central government are entitled to exercise belligerent rights and
are subject to the obligations imposed on belligerents. Following recognition, third
states have the rights and obligations of *neutrality. Compare INSURGENCY.
bench n. 1. Literally, the seat of a judge in court. The bench is usually in an
elevated position at one side of the court room facing the seats of counsel and
solicitors. 2. A group of judges or magistrates sitting together in a court, or all
judges, collectively. Thus a lawyer who has been appointed a judge is said to have
been raised to the bench.
Benchers (Masters of the Bench)pl. n. Judges and senior practitioners who form
a governing body for each of the Inns of Court. They are recruited by co-option and
elect one of their number annually to be the Treasurer. Benchers are responsible for
admission of students and calls to the Bar and exercise disciplinary powers over the
members of the Inn. Appeal from their decisions is to the Lord Chancellor and
'visitors' (i.e. High Court Judges sitting for the appeal).
bench warrant A warrant for the arrest of a person who has failed to attend
court when summoned or subpoenaed to do so or against whom an order of
committal for contempt of court has been made and who cannot be found. The
warrant is issued during a sitting of the court.
beneficial interest The rights of a beneficiary in respect of the property held in
trust for him. See also EQUITABLE INTERESTS.
beneficial owner An owner who is entitled to the possession and use of land or
its income for his own benefit. Under the Law of Property Act 1925a person who for
valuable *consideration conveys land as beneficial owner gives implied covenants (1)
that he has the right to convey it; (2) for quiet enjoyment (i.e, that the transferee
takes possession free from adverse claims to the land); (3) that the land is free from
encumbrances other than any specified in the conveyance; (4)for further assurance
(i.e. that the transferor will do anything necessary to cure any defect in the
conveyance); and (5) when the land is leasehold (a) that the lease is valid and
subsisting and (b) that the convenants in the lease have been performed and the rent
paid. When the owner of a legal estate is not the beneficial owner (e.g. a mortgagee,
trustee, or personal representative) his only implied covenant in a conveyance of the
land is that he has not himself created any encumbrance.
beneficiary n. 1. A person entitled to benefit from a *trust. The beneficiary holds
a *beneficial interest in the property of which a *trustee holds the legal *interest. A
beneficiary was formerly known as the cestui que trust. 2. One who benefits from
a will.
benevolent purposes Purposes that are for the public good but not necessarily
charitable. They are wider than *philanthropic purposes. See CHARITABLE TRUST.
Benjamin order [from the case re Benjamin (1902)J An order made by the court for
the distribution of assets on death when it is uncertain whether or not a beneficiary
is alive. The order authorizes the personal representatives of the deceased (who will
be administering the estate) to distribute the property on the basis that the
beneficiary is dead (or on some other basis); the personal representatives are
therefore protected from being sued if the beneficiary is in fact alive and entitled.
The beneficiary may, however, trace the trust property (see TRACING TRUST PROPERTY).
bequeath vb. To dispose by will of property other than land. Compare DEVISE.
bequest n. A gift by will of property other than land. Compare DEVISE. See LEGACY.
bereavement. damages for See FATAL ACCIDENTS.
bereavement benefit A benefit payable to widows and widowers, under the
Welfare Reform and Pensions Act 1999, subject to certain conditions. It consists of a
bereavement payment (made as a lump sum), a widowed parent allowance (where
applicable), and a bereavement allowance.
Berne Convention The Berne Convention for the Protection of Literary and
Artistic Works: an international convention of September 1886 that sets out ground
rules for protection of *copyright at national level; it has since been amended
several times. Many nations are signatories to the Convention, including the UKand,
more recently, the United States. See also TRIPS.
best-evidence rule A rule requiring that a party must call the best evidence that
the nature of the case will allow. Formerly of central importance, in modern law it
is largely confined to a rule of practice, not a requirement of law, that the original
of a private document must be produced in order to prove its contents; if it cannot
be produced its absence must be explained.
bestiality n. Anal or vaginal intercourse by a man or a woman with an animal.
Bestiality is a crime if penetration is proved. See also BUGGERY.
best value A requirement under the Local Government Act 1999 that *local
authorities must have regard to economy, efficiency, and effectiveness when
exercising their functions and must make arrangements to secure continuous
improvement.
bias n. See NATURAL JUSTICE.
bid n. See AUCTION.
bigamy n. The act of going through a marriage ceremony with someone when one
is already lawfully married to someone else. Bigamy is a crime, punishable by up to
seven years' imprisonment; however, there is a defence if the accused honestly and
reasonably believed that his or her first spouse was dead or that their previous
marriage had been dissolved or annulled or was void. There is also a special defence
if the accused's spouse has been absent for at least seven years, and is therefore
presumed by the accused to be dead, even if he does not have positive proof of the
death. Even though a person is found not guilty of the crime of bigamy, the
bigamous marriage will still be void if that person had a spouse living at the time
that the second marriage was celebrated.
bilateral contract (synallagmatic contract> A contract that creates mutual
obligations, i.e. both parties undertake to do, or refrain from doing, something in
exchange for the other party's undertaking. The majority of contracts are bilateral
in nature. Compare UNILATERAL CONTRACT.
bilateral discharge The ending of a contract by agreement, when neither party
has yet performed his obligations under it (an executory contract). Each party
supplies consideration for the agreement to discharge by releasing the other from
his existing obligations. Compare UNILATERAL DISCHARGE (see ACCORD AND SATISFACTION).
bill n. 1. Any of various written instruments; for example, a *bill of exchange, a
*bill of indictment, or a *bill of lading. 2. A written account of money owed; for
example, a *bill of costs.
Bill n. A draft of a proposed *Act of Parliament, which must (normally) be passed
by both Houses before becoming an Act. Bills are either public or private, and the
procedure governing their passing by Parliament depends basically on this
distinction. In general, a public Bill is one relating to matters of general concern; it
is introduced by the government or by a private member (private member's Bill).
In the House of Commons the government sets aside certain Fridays for debate on
private member's Bills, and a ballot at the beginning of each session of Parliament
determines the members whose Bills are to have priority on those days. A private
member's Bill that is not supported by the government stands little chance of
successfully completing all stages and becoming an Act. The government sometimes
prefers a private member to sponsor a particularly controversial Bill that they
themselves support; for example, the Abortion Act 1967was introduced by a private
member (David Steel) and was successful because it had the support of the
government of the day. A public Bill, unless predominantly financial, can be
introduced in either House (less controversial Bills are introduced in the Lords first).
The Bill is presented by the minister or other member in charge, passed by being
read three times, and then sent to the other House. Its first reading is a formality,
but it is debated on second and third readings, between which it goes through a
Committee stage and a Report stage during which amendments may be made. A Bill
that has not become an Act by the end of the session lapses; if reintroduced in a
subsequent session, it must go through all stages again.
A private Bill is one designed to benefit a particular person, local authority, or
other body, by whom it is presented. It is introduced on a petition by the promoter,
which is preceded by public advertisement and by notice to those directly affected.
Its Committee stage in the first House is conducted before a small group of
members, and evidence for and against it is heard. Thereafter, it follows the
procedure for public Bills.
A hybrid Bill is a government bill that is purely local or personal in character and
affects only one of a number of interests in the same class. For example, a
government Bill to nationalize one only of several private-sector airlines would be
hybrid. A hybrid Bill proceeds as a public Bill until after second reading in the first
House, after which it is treated similarly to a private Bill.
bill of costs An account of *costs prepared by a solicitor in respect of legal
services he has rendered his client. In general a solicitor may be required to furnish
his client with a bill unless they have made an agreement in writing to the contrary.
If no such agreement has been made the solicitor may not, without the permission
of the High Court, sue for recovery of costsuntil one month after the bill of costs
has been delivered. Any client dissatisfied with a bill can require his solicitor to
obtain a remuneration certificate from the Law Society. The certificate will either
say that the fee is fair and reasonable or it will substitute a lower fee. If the bill is
endorsed with a notice saying that there is a right to ask for a remuneration
certificate within one month, the client has one month from receipt of the bill to
request the certificate. If the bill is not endorsed in this way, the client has a right
to demand a remuneration certificate that lasts for one month from the time he
was notified of this right. If the client requests a remuneration certificate, he must
normally first pay half the bill and all the VATon the bill and expenses and
disbursements set out on the bill before the remuneration certificate is obtained,
unless he has obtained permission from the Law Society to waive this requirement;
this permission is given in exceptional circumstances. These rights are set out fully
in the Solicitors (Non-Contentious Business) Remuneration Order 1994. In contentious
(i.e. litigious) matters the bill is subject to *assessment of costs. See also COSTS
DRAFTSMAN.
bill of exchange An unconditional order in writing, addressed by one person (the
drawer) to another (the drawee) and signed by the person giving it, requiring the
drawee to pay on demand or at a fixed or determinable future time a specified sum
of money to or to the order of a specified person (the payee) or to the bearer. If the
bill is payable at a future time the drawee signifies his *acceptance, which makes
him the party primarily liable upon the bill; the drawer and endorsers may also be
liable upon a bill. The use of bills of exchange enables one person to transfer to
another an enforceable right to a sum of money. A bill of exchange is not only
transferable but also negotiable, since if a person without an enforceable right to
the money transfers a bill to a *holder in due course, the latter obtains a good title
to it. Much of the law on bills of exchange is codified by the Bills of Exchange Act
1882 and the Cheques Act 1992.
bill of indictment A formal written accusation charging someone with an
*indictable offence. The usual method of preferring a bill of indictment (i.e.
bringing it before the appropriate court) is by committal proceedings before a
magistrates' court (see COMMITTAL FOR TRIAL). See also INDICTMENT.
bill of lading A document acknowledging the shipment of a consignor's goods for
carriage by sea (compare SEA WAYBILL). lt is used primarily when the ship is carrying
goods belonging to a number of consignors (a general ship). In this case, each
consignor receives a bill issued (normally by the master of the ship) on behalf of
either the shipowner or a charterer under a *charterparty. The bill serves three
functions: it is a receipt for the goods; it summarizes the terms of the contract of
carriage; and it acts as a document of title to the goods. A bill of lading is also issued
by a shipowner to a charterer who is using the ship for the carriage of his own
goods. In this case, the terms of the contract of carriage are in the charterparty and
the bill serves only as a receipt and a document of title. During transit, ownership of
the goods may be transferred by delivering the bill to another if it is drawn to
bearer or by endorsing it if it is drawn to order. lt is not, however, a *negotiable
instrument. The responsibilities, liabilities, rights, and immunities attaching to
carriers under bills of lading are stated in the Hague Rules. These were drawn up
by the International Law Association meeting at The Hague in 1921and adopted by
an International Conference on Maritime Law held at Brussels in 1922. They were
given effect in the UKby the Carriage of Goods by Sea Act 1924 and so became
known in the UKas the Hague Rules of 1924.They were amended at Brussels in 196&,
effect being given to the amendments by the Carriage of Goods by Sea Act 1971. The
Rules, which are set out in a schedule to the Act, apply to carriage under a bill of
lading from any port in Great Britain or Northern Ireland to any other port and also
to carriage between any of the states by which they have been adopted. Every bill
issued in Great Britain or Northern Ireland to which the Rules apply must state that
fact expressly (the clause giving effect to this requirement is customarily referred
to as the paramount clause). The Hague Rules were completely rewritten in 1978in
a new treaty known as the Hamburg Rules, which drastically alter the privileged
position of a sea carrier as compared to other carriers, but they have not yet been
generally adopted.
bill of sale A document by which a person transfers the ownership of goods to
another. Commonly the goods are transferred conditionally, as security for a debt,
and a conditional bill of sale is thus a mortgage of goods. The mortgagor has a
right to redeem the goods on repayment of the debt and usually remains in
possession of them; he may thus obtain false credit by appearing to own them. An
absolute bill of sale transfers ownership of the goods absolutely. The Bills of Sale
Acts 1878and 1882 regulate the registration and form of bills of sale.
bind over To order a person to provide a bond or *recognizance by means of
which he guarantees to carry out some act (e.g. to appear in court at the proper
time if he has been granted bail) or not to commit some offence (such as causing a
breach of the peace).
birth certificate A certified copy of an entry of birth in the register of births,
deaths, and marriages, which comprises evidence of the detail there stated. See
REGISTRATION OF BIRTH.
blacklist n. A list that contains details of members of trade unions, and in
particular details of trade-union activists, compiled with a view to being used by
outside bodies, usually employers and their associations, for the purpose of
discrimination in relation to the recruitment and treatment of workers. The
utilization of such lists is subject to the regulatory powers of the Secretary of State
under section 3(2) of the Employment Relations Act 1999.
blackmail n. The crime of making an unwarranted demand with menaces for the
purpose of financial gain for oneself or someone else or financial loss to the person
threatened. The menaces may include a threat of violence or of detrimental action,
e.g. exposure of past immorality or misconduct. Blackmail is punishable by up to 14
years' imprisonment. As long as the demand is made with menaces, it will be
presumed to be unwarranted, unless the accused can show both that he thought he
was reasonable in making the demand and that he thought it was reasonable to use
the menaces as a means of pressure. Under the Administration of Justice Act 1970,
there is also a special statutory crime of *harassment of debtors. See also THREAT.
Black Rod. Gentleman Usher of the An official of the House of Lords whose
title derives from his staff of office - an ebony rod surmounted with a gold lion.
The office originated as usher of the Order of the Garter in the 14th century; the
parliamentary appointment dates from 1522. Black Rod is responsible for
maintaining order in the House and summons members of the Commons to the
Lords to hear a speech from the throne.
blasphemy n. Statements or writings that deny - in an offensive or insulting
manner - the truth of the Christian religion, the Bible, the Book of Common Prayer,
or the existence of God. Blasphemy is a crime at common law, and if it is published
there is no need to show an intention to shock or insult or an awareness that the
publication is blasphemous. Prosecutions for blasphemy are now rare and it has been
suggested that the crime be abolished.
blight notice A statutory notice by which an owner-occupier can require a public
authority to purchase land that is potentially liable to compulsory acquisition by
them and therefore cannot be sold at full value on the open market. The land may,
for example, be shown in a development plan to be prospectively required for the
authority's purposes or it may be designated in published proposals as the site of a
future highway.
blockade n. The act of a belligerent power of preventing access to or egress from
the ports of its enemy by stationing a ship or squadron in such a position that it can
intercept vessels attempting to approach or leave such ports. A neutral merchant
vessel trying to break through a blockade is liable to capture and condemnation by
the captor's *prize court.
block exemption Exemption from *Article 81 of the Treaty of Rome for certain
types of anticompetitive agreements that fall within the scope of special EU
regulations that have direct effect in the EU (see COMMUNITY LEGISLATION). Block
exemptions exist in a number of different areas, including *vertical agreements and
agreements relating to motor-vehicle distribution, research and development,
specialization, and *technology transfer. The regulations are published in the EU's
*Official Journal; any agreement that complies with the regulations will be exempt
from Article 81.Many contracts in the EU are drafted to comply with the block
exemption regulations by using the wording of those regulations in the agreements
themselves. Block exemptions can also be issued under UK competition law. EU
block exemptions provide an automatic exemption from the provisions of UK
competition law in the Competition Act 1998.
blood relationship See CONSANGUINITY.
blood specimen See SPECIMEN OF BLOOD.
blood test 1. An analysis of blood designed to show that a particular man could
not be the father of a specified child (it cannot establish that the person is the
father). The court may order blood tests in disputes about paternity, but a man
cannot be compelled to undergo the test against his will. His refusal may, however,
lead the court to draw adverse conclusions. Any attempt to take blood without
consent would be trespass. See also DNA FINGERPRINTING. 2. See SPECIMEN OF BLOOD.
blue book A form of government publication, such as a report of a committee,
inquiry, or royal commission, published in blue covers. See also PARLIAMENTARY PAPERS.
board of inquiry A body convened by naval, army, or air force authorities to
investigate and report upon the facts of any happening (e.g. the loss or destruction
of service property), particularly for the purpose of determining whether or not
disciplinary proceedings should be instituted.
bodily harm See ACTUAL BODILY HARM; ASSAULT; GRIEVOUS BODILY HARM.
body corporate See CORPORATION.
bomb hoax A deception in which one or more people are led to believe that an
explosion is likely to occur that will cause physical injury or damage to property. A
bomb hoax may constitute *blackmail (if accompanied by a demand), public
nuisance, threats to damage property (an offence under the Criminal Damage Act
1971), or wasting the time of the police (under the Criminal Law Act 1967). Under the
Criminal Law Act 1977it is a special statutory offence, punishable by imprisonment
for up to five years and/or a fine, to place or send an object anywhere with the
intention of leading someone to believe that it is likely to explode and cause harm.
It is also an offence falsely to tell anyone that a bomb has been placed in a certain
place or that some other object is liable to explode.
bona vacantia [Latin: empty goods] Property not disposed of by a deceased's will
and to which there is no relation entitled on intestacy. Under the Administration of
Estates Act 1925,such property passes to the Crown, the Duchy of Lancaster, or the
Duke of Cornwall. In practice it is usually used to make ex gratia payments, at the
discretion of the Crown, Duchy, or Duke, to any dependants of the deceased and
anyone else for whom he might reasonably have been expected to provide.
bond n. 1. A deed by which one person (the obligor) commits himself to another
(the obligee) to do something or refrain from doing something. If it secures the
payment of money, it is called a common money bond; a bond giving security for
the carrying out of a contract is called a performance bond. 2. A document issued
by a government, local authority, company, or other public body undertaking to
repay long-term debt with interest. Bond issues are issues of debt securities by a
borrower to investors in return for the payment of a subscription price.
bonus issue (capitalization issue) A method of increasing a company's issued
capital (see AUTHORIZED CAPITAL) by issuing further shares to existing company
members. These shares are paid for out of undistributed profits of the company, the
*share premium account, or the *capital redemption reserve. The bonus issue is
made to shareholders in proportion to their existing shareholding (e.g. a 1 for 2
bonus issue means that shareholders receive an extra free share for every two shares
they hold).
books of account (accounting records) Records that disclose and explain a
company's financial position at any time and enable its directors to prepare its
*accounts. The books (which registered companies are required to keep by the
Companies Act) should reveal, on a day-to-day basis, sums received and expended
together with details of the transaction, assets and liabilities, and (where
appropriate) goods sold and purchased. Public companies must preserve their books
for six years, private companies for three years. Company officers and *auditors (but
not members) have a statutory right to inspect the books.
borough n. An area of local government, abolished as such (except in *Greater
London) by the Local Government Act 1972. A *district may, however, be styled a
borough by royal charter. Originally, a borough was a fortified town; later, a town
entitled to send a representative to Parliament.
borough court An inferior *court of record for the trial of civil actions by
charter, custom, or otherwise in a borough. All remaining borough courts were
abolished in 1974 by the Local Government Act 1972.
borstal n. An institution to which young offenders (aged 15 to 20 inclusive) could
be sent before June 1983 instead of prison. Sentence to borstal has been replaced by
*detention in a young offender institution. See alsoJUVENILE OFFENDER.
bottomry n. See HYPOTHECATION.
boundary n. (in international law) An imaginary line that determines the
territorial limits of a state. Such boundaries define the limitation of each state's
effective *jurisdiction. They are three-dimensional in nature in that they include the
*airspace and subsoil of the state, the terra firma within the boundary, and the
maritime domain of the state's internal waters and territorial sea. See also ACCRETION;
AVULSION; THALWEG, RULE OF THE.
boundary commissions Independent bodies established under the Parliamentary
Constituencies Act 1986 to carry out periodic reviews of parliamentary
constituencies for the purpose of recommending boundary changes to take account
of shifts in population. There are separate commissions for England, Wales, Scotland,
and Northern Ireland. Compare LOCAL GOVERNMENT BOUNDARY COMMISSIONS.
breach of close Entry on another's land without permission: a form of *trespass
to land. A close is a piece of land separated off from land owned by others or from
common land.
breach of confidence 1. The disclosure of confidential information without
permission. 2. Failure to observe an injunction granted by the court to prevent this.
The injunction is most commonly granted to protect *trade secrets (except patents,
registered designs, and copyrights, which are protected under statute), but may also
be granted, for example, to protect the secrecy of communications made between
husband and wife during marriage or, possibly, between cohabitants during their
period of cohabitation. The laws protecting confidential information exist at
common law and will only restrain the dissemination of truly confidential
information. Information that has been disclosed anywhere in the world, unless it
was disclosed under conditions (usually a contract) of confidence, cannot
subsequently be prevented from disclosure by the courts.
breach of contract An actual failure by a party to a contract to perform his
obligations under that contract or an indication of his intention not to do so. An
indication that a contract will be breached in the future is called repudiation or an
anticipatory breach, and may be either expressed in words or implied from
conduct. Such an implication arises when the only reasonable inference from a
person's acts is that he does not intend to fulfil his part of the bargain. For example,
an anticipatory breach occurs if a person contracts to sell his car to A, but sells and
delivers it to B before the delivery date agreed with A. The repudiation of a contract
entitles the injured party to treat the contract as discharged and to sue immediately
for *damages for the loss sustained. The same procedure applies to an actual breach
if it amounts to breach of a *condition (sometimes referred to as fundamental
breach) or breach of an *innominate term when the consequences of breach are
sufficiently serious. In either an anticipatory or actual breach, the injured party
may, however, decide to *affirm the contract instead. When an actual breach
amounts to breach of a *warranty, or breach of an innominate term and the
consequences of breach are not sufficiently serious to allow for discharge, the
injured party is entitled to sue for damages only. However, most commercial
agreements provide a right to terminate the agreement even when the breach is
minor, thus overriding the common law principle described here. The process of
treating a contract as discharged by reason of repudiation or actual breach is
sometimes referred to as *rescission or repudiation, but this latter term is clearly
confusing. Other remedies available under certain circumstances for breach of
contract are an *injunction and *specific performance. See also PROCURING BREACH OF
CONTRACT.
breach of privilege See PARLIAMENTARY PRIVILEGE.
breach of statutory duty Breach of a duty imposed on some person or body by
a statute. The person or body in breach of the statutory duty is liable to any
criminal penalty imposed by the statute, but may also be liable to pay damages to
the person injured by the breach if he belongs to the class for whose protection the
statute was passed Not all statutory duties give rise to civil actions for breach. If the
statute does not deal with the matter expressly, the courts must decide whether or
not Parliament intended to confer civil remedies. Most actions for breach of
statutory duty arise out of statutes dealing with *safety at work.
breach of the peace The state that occurs when harm is done or likely to be
done to a person or (in his presence) to his property, or when a person is in fear of
being harmed through an *assault, *affray, or other disturbance. At common law,
anyone may lawfully arrest a person for a breach of the peace committed in his
presence, or when he reasonably believes that a person is about to commit or renew
such a breach. To breach the peace is a crime in Scotland; elsewhere, magistrates
may *bind over a person to keep the peace. See alsoARREST; OFFENCES AGAINST PUBLIC
ORDER.
breach of trust Any improper act or omission, contrary to the duties imposed
upon him by the terms of the trust, by a trustee or other person in a fiduciary
position. A breach need not be deliberate or dishonest. In all cases the trustee is
personally responsible to the beneficiaries and is liable for any loss caused to the
trust. Any profit made by a trustee by virtue of his position must be handed to the
trust, even when the trust has suffered no loss.
break clause A clause often contained in *fixed-term tenancy agreements that
provides for an option to terminate the tenancy at a particular time or when a
particular event occurs.
breakdown of marriage See MARITAL BREAKDOWN.
breathalyser n. A device, approved by the Secretary of State, that is used in the
preliminary *breath test to measure the amount of alcohol in a driver's breath.
Modern devices, such as the Lion Alcometer 7410,are battery-operated. The suspect
blows through a tube and lights indicate when sufficient breath has been delivered
and the range within which the alcohol level falls. Earlier devices were based on a
tube attached to a balloon, which the suspect had to inflate in one breath: a change
in the colour of crystals inside the tube indicated that there was alcohol in the
breath. A breathalyser should not be used within 20 minutes after consuming
alcohol or on a suspect who has just been smoking. Constables must give
instructions; testing suspects who have difficulty with breathing requires special
care.
breath specimen See SPECIMEN OF BREATH.
breath test A preliminary test applied by a uniformed police officer by means of
a *breathalyser to a driver whom he suspects has alcohol in his body in excess of the
legal limit, has committed a traffic offence while the car was moving, or has driven
a motor vehicle involved in an accident. The test may be administered on the spot to
someone either actually driving, attempting to drive, or in charge of a motor vehicle
on a road or public place or suspected by the police officer of having done so in the
above circumstances. If the test proves positive (see DRUNKEN DRNING), the police
officer may arrest the suspect without a warrant and take him to a police station,
where further investigations may take place (see SPECIMEN OF BREATH). It is an offence
to refuse to submit to a breath test unless there is some reasonable excuse (usually a
medical reason), and a police officer may arrest without warrant anyone who refuses
the test. The offence is punishable by a fine, endorsement (carrying 4 points under
the *totting-up system), and discretionary disqualification. A police officer has the
power to enter any place in order to apply the breath test to someone he suspects of
having been involved in an accident in which someone else was injured or to arrest
someone who refused the test or whose test was positive.
brewster sessions The annual meetings of licensing justices to deal with the
grant, renewal, and transfer of licences to sell intoxicating liquor. See LICENSING OF
PREMISES.
bribery and corruption Offences relating to the improper influencing of people
in certain positions of trust. The offences commonly grouped under this expression
are now statutory. Under the Public Bodies Corrupt Practices Act 1889 (amended by
the Prevention of Corruption Act 1916) it is an offence, if done corruptly (i.e.
deliberately and with an improper motive), to give or offer to a member, officer, or
servant of a public body any reward or advantage to do anything in relation to any
matter with which that body is concerned; it is also an offence for a public servant
or officer to corruptly receive or solicit such a reward. The Prevention of
Corruption Act 1906 (amended by the 1916Act) is wider in scope. It relates to agents,
which include not only those involved in the business of agency but also all
employees, including anyone serving under the Crown or any public body. Under
this Act it is an offence to corruptly give or offer any valuable consideration to an
agent to do any act or show any favour in relation to his principal's affairs; like the
1889Act, it also creates a converse offence of receiving or soliciting by agents.
bridle way Under the Highways Act 1980,a *highway over which the public has a
right of way on foot and a right of way on horseback or leading a horse, with or
without a right to drive animals along the highway. See also DRIFTWAY.
brief n. A document by which a solicitor instructs a barrister to appear as an
advocate in court. Unless the client is receiving financial support from the
Community Legal Service, the brief must be marked with a fee that is paid to
counsel whether he is successful or not. A brief usually comprises a backsheet,
typed on large brief-size paper giving the title of the case and including the
solicitor's instructions, which is wrapped around the other papers relevant to the
case. The whole bundle is tied up with red tape in the case of a private client and
white tape if the brief is from the Crown.
British citizenship One of three forms of citizenship introduced by the British
Nationality Act 1981, which replaced citizenship of the UKand Colonies. The others
are *British Dependent Territories citizenship and *British Overseas citizenship.
On the date on which it came into force (1January 1983), the Act conferred British
citizenship automatically on every existing citizen of the UKand Colonies who was
entitled to the right of abode in the UK under the Immigration Act 1971 (see
IMMIGRATION). As from that date, there have been four principal ways of acquiring
the citizenship - by birth, by descent, by registration, and by naturalization. A
person acquires it by birth only if he is born in the UKand his father or mother is
either a British citizen or settled in the UK (i.e. resident there, and not restricted by
the immigration laws as to length of stay). If born outside the UK, he acquires it by
descent if one of his parents has British citizenship (but not, normally, if that
citizenship was itself acquired by descent). The British Nationality (Falkland Islands)
Act 1983 makes special provisions to confer British citizenship on those people with
connections with the Falkland Islands. The British Nationality (Hong Kong) Act 1997
gave additional rights to certain people from Hong Kong to acquire British
citizenship "by descent" or "otherwise than with descent". Registration may be
applied for by a minor, but adults are eligible only if they have particular links with
the UK.In some cases (e.g. British Dependent Territories citizens, British Overseas
citizens, British protected persons, and British subjects with certain residential
qualifications), it is a right; in others, it is at the discretion of the Secretary of State.
Any adult may apply for naturalization but there are residential and other
requirements (e.g.proof of good character), and its grant is always discretionary.
A registered or naturalized citizen may be deprived of his citizenship if he
obtained it improperly, behaves disloyally, or is sentenced during the first five years
to imprisonment exceeding one year.
British Commonwealth See COMMONWEALTH.
British Dependent Territories citizenship One of three forms of citizenship
introduced by the British Nationality Act 1981to replace citizenship of the UK and
Colonies. The others are *British citizenship and *British Overseas citizenship. The
dependent territories for the purposes of this form of citizenship are listed in a
schedule to the Act; they include Bermuda and Gibraltar, among others.
On the date on which it came into force (1January 1983), the Act conferred the
citizenship automatically on a large number of existing citizens of the UKand
Colonies on the grounds of birth, registration, or naturalization in a dependent
territory or descent from a parent or grandparent who had that citizenship on one
of those grounds. As from that date, acquisition (and deprivation in the case of
registered or naturalized citizens) have been governed by principles similar to those
applying to British citizenship, except that acquisition by registration relates ~lmost
exclusively to minors. A British Dependent Territories citizen can become entitled to
registration as a British citizen by virtue of UK residence. On 1 July 1997, those who
were British Dependent Territories citizens by virtue of a connection with Hong
Kong ceased to be British Dependent Territories citizens. However, they were
entitled to acquire a new form of British nationality, known as *British National
(Overseas),by registration.
British National (Overseas) A form of British nationality that those who were
*British Dependent Territories citizens by virtue of a connection with Hong Kong
may acquire by registration. They ceased to be British Dependent Territories citizens
on 1 July 1997.
British Overseas citizenship One of three forms of citizenship introduced by
the British Nationality Act 1981to replace citizenship of the UK and Colonies. On the
date on which it came into force (1January 1983), the Act conferred the citizenship
automatically on every existing citizen of the UK and Colonies who did not qualify
for either of the other new forms (*British citizenship and *British Dependent
Territories citizenship). Acquisition as from that date has been by registration only,
and this is confined almost completely to minors. A British Overseas citizen may
become entitled to registration as a British citizen by virtue of UK residence.
British protected person One of a class of people defined as such by an order
under the British Nationality Act 1981or the Solomon Islands Act 1978 because of
their connection with former protectorates, protected states, and trust territories. A
British protected person may become entitled to registration as a British citizen by
reason of UK residence.
British subject Under the British Nationality Act 1948, a secondary status that was
common to all who were primarily citizens either of the UK and Colonies or of one
of the independent Commonwealth countries. This status was also shared by a
limited number of people who did not have any such primary citizenship, including
former British subjects who were also citizens of Eire (as it then was) or who could
have acquired one of the primary citizenships but did not in fact do so.
Under the British Nationality Act 1981(which replaced the 1948 Act as from 1
January 1983), the status of British subject was confined to those who had enjoyed it
under the former Act without having one of the primary citizenships; the
expression *commonwealth citizen was redefined as a secondary status of more
universal application. The Act provided for minors to be able to apply for
registration as British subjects and for British subjects to become entitled to
registration as British citizens by virtue of UK residence.
Broadmoor A *special hospital at Crowthorne, near Camberley, in Berkshire. It
treats dangerous and violent patients (previously known as criminal lunatics) who
are sent to it.
brothel n. A place used for the purpose of female or male *prostitution. A
contract for the hiring or letting of a brothel is void (as being contrary to public
policy) and under the Sexual Offences Act 1956 it is an offence for a landlord to let
premises knowing that they are to be used as a brothel. It is also an offence for
someone to help or manage a brothel or for a tenant or occupier of any premises to
permit the premises to be used as a brothel.
Brussels Convention An international convention of 1968 that determines which
courts will have jurisdiction in relation to international disputes (see FOREIGN
JUDGMENTS). Generally, if a contract provides that a certain country's courts will hear
any disputes that arise, this will be respected. The Convention also provides rules
when the parties have not chosen a forum for their disputes. Many EU states are
individually a party to the Convention; the UK signed up to it in 1978 and enacted it
into national law in 1982.
Bryan Treaties (Bryan Arbitration Treaties) [named after William Jennings
Bryan, US Secretary of State 1913-15] The series of treaties, signed at Washington in
1914, that established permanent commissions of inquiry. Such inquiries were
designed to resolve differences between the United States of America and a large
number of foreign states. The treaties were not all identical, but had the following
key feature III common: the *high contracting parties agreed (1) to refer all disputes
that diplomatic methods had failed to resolve to a Permanent International
Commission for investigation and report, and (2)not to begin hostilities before the
report was submitted. See also INQUIRY.
Budget n. See CHANCELLOR OF THE EXCHEQUER.
buggery (sodomy) n. Anal intercourse by a man with another man or a woman or
*bestiality by a man or a woman. Except between consenting adults over 16 in
private (see also HOMOSEXUAL CONDUCT), buggery is a crime if penetration is proved (it
IS not necessary for there to be ejaculation). The person effecting the intercourse is
guilty as the agent, and the other party is called (and is guilty as) the patient.
However, criminal proceedings are not brought without the consent of the
*Director of Public Prosecutions against anyone under 16 for participating in
buggery. It is also an offence (punishable by up to 10 years' imprisonment) to assault
anyone with the intention of committing buggery. See also GROSS INDECENCY;
INDECENCY; INDECENT ASSAULT.
bugging n. See ELECTRONIC SURVEILLANCE.
building lease A lease under which the tenant covenants to erect specified
buildings on the land. Sometimes the lease only begins when the buildings have
been erected. At the end of the lease the buildings generally become the property of
the landlord. It used to be common for residential property to be built under a
building lease, usually for 99 years, under which the landlord would let to a builder
at a rent that ignored the value of the buildings (*ground rent), and the builder
would sell the lease to a tenant. Under a lease of this kind, the tenant may acquire a
statutory right to purchase the freehold under the Leasehold Reform Act 1967.
building preservation notice A notice by a local planning authority (see TOWN
AND COUNTRY PLANNING) that places a building regarded as suitable for listing and in
danger of demolition or alteration under temporary control as a *Iisted building,
pending a decision on its listing by the Secretary of State.
building scheme A defined area of land sold by a single vendor in plots for (or
following) development, each plot being sold subject to similar *restrictive
covenants that are clearly intended to benefit the whole. For example, restrictive
covenants prohibiting trade or excessive noise are frequently imposed on the sale of
plots on a housing estate, to maintain the character of the estate as a whole. The law
allows the owner of any plot in a building scheme to enforce such covenants against
any other plot owner, even though neither was a party to the document that
imposed the covenants.
building society A corporation established under the Building Societies Acts for
the purpose of making loans to its members on the security of mortgages on their
homes, out of funds invested by its members. Generally a building society's security
must be a first legal mortgage on the borrower's home. However, the Building
Societies Act 1986 now empowers societies to lend on the security of second
mortgages and to provide a wide range of banking and other financial services.
Bullock order [from the case Bullock v London General Omnibus Co. (1907)] A form of
order for the payment of costs in civil cases sometimes made when the claimant has,
in the court's opinion, reasonably sued two defendants but has succeeded against
only one of them. The order requires the claimant to pay the successful defendant's
costs but allows him to include these costs in those payable to him by the
unsuccessful defendant. It should be distinguished from a Sanderson order (from
the case Sanderson v Blyth Theatre Co., 1903), in which the unsuccessful defendant is
ordered to pay the costs of the successful defendant directly. A Sanderson order is
generally more advantageous to the claimant, but will not be ordered if, for
example, the unsuccessful defendant is insolvent, because the successful defendant
would thereby be deprived of his costs.
burden of proof The duty of a party to litigation to prove a fact or facts in issue.
Generally the burden of proof falls upon the party who substantially asserts the
truth of a particular fact (the prosecution or the claimant). A distinction is drawn
between the persuasive (or legal) burden, which is carried by the party who as a
matter of law will lose the case if he fails to prove the fact in issue; and the
evidential burden (burden of adducing evidence or burden of going forward),
which is the duty of showing that there is sufficient evidence to raise an issue fit
for the consideration of the *trier of fact as to the existence or nonexistence of a
fact in issue.
The normal rule is that a defendant is presumed to be innocent until he is proved
guilty; it is therefore the duty of the prosecution to prove its case by establishing
both the *actus reus of the crime and the *mens rea. It must first satisfy the
evidential burden to show that its allegations have something to support them. If it
cannot satisfy this burden, the defence may submit or the judge may direct that
there is *no case to answer, and the judge must direct the jury to acquit. The
prosecution may sometimes rely on presumptions of fact to satisfy the evidential
burden of proof (e.g. the fact that a woman was subjected to violence during sexual
intercourse will normally raise a presumption to support a charge of rape and prove
that she did not consent). If, however, the prosecution has established a basis for its
case, it must then continue to satisfy the persuasive burden by proving its case
beyond reasonable doubt (see also PROOF BEYOND REASONABLE DOUBT). It is the duty of
the judge to tell the jury clearly that the prosecution must prove its case and that it
must prove it beyond reasonable doubt; if he does not give this clear direction, the
defendant is entitled to be acquitted.
There are some exceptions to the normal rule that the burden of proof is upon
the prosecution. The main exceptions are as follows. (1) When the defendant admits
the elements of the crime (the actus reus and mens rea) but pleads a special defence,
the evidential burden is upon him to create at least a reasonable doubt in his favour.
This may occur, for example, in a prosecution for murder in which the defendant
raises a defence of self-defence. (2) When the defendant pleads *coercion,
*diminished responsibility, or *insanity, both the evidential and persuasive burden
rest upon him. In this case, however, it is sufficient if he proves his case on a
balance of probabilities (Le. he must persuade the jury that it is more likely that he
was insane than not). (3) In some cases statute expressly places a persuasive burden
on the defendant; for example, a person who carries an *offensive weapon in public
is guilty of an offence unless he proves that he had lawful authority or a reasonable
excuse for carrying it.
burglary n. The offence, under the Theft Act 1968,of either entering a building,
ship, or inhabited vehicle (e.g. a caravan) as a trespasser with the intention of
committing one of four specified crimes in it (burglary with intent) or entering it
as a trespasser only but subsequently committing one of two specified crimes in it
(burglary without intent). The four specified crimes for burglary with intent are
(1) *theft; (2) inflicting *grievous bodily harm; (3) causing *criminal damage; and (4)
rape of a person in the building (see also ULTERIOR INTENT). The two specified offences
for burglary without intent are (1) stealing or attempting to steal; and (2) inflicting
or attempting to inflict grievous bodily harm. Burglary is punishable by up to 14
years' imprisonment. Aggravated burglary, in which the trespasser is carrying a
weapon of offence, explosive, or firearm, may be punished by a maximum sentence
of life imprisonment. The Crime (Sentences) Act 1997provides for an automatic
three-year minimum sentence for third-time burglars, although judges may give a
lesser sentence if the court considers the minimum would be unjust in all the
circumstances. See alsoREPEAT OFFENDER.
Business Expansion Scheme See ENTERPRISE INVESTMENT SCHEME.
business liability Liability (contractual or tortious) for a breach of obligations or
duties arising in the course of a business (which can include the activities of a
government department or local or public authority) or from the occupation of
business premises. The Unfair Contract Terms Act 1977and, for consumer contracts,
the Unfair Terms in Consumer Contracts Regulations 1999limit the extent to which
a person may rely on terms in his contracts that attempt to exclude or restrict his
business liability (see EXCLUSION AND RESTRICTION OF NEGLIGENCE LIABILITY).
business name The name, other than its own, under which a sole trader,
partnership, or company carries on business. The choice of a business name is
restricted by the Business Names Act 1985and by the common law of *passing off.
The true names and addresses of the individuals concerned must be disclosed in
documents issuing from the business and upon business premises. Contravention of
the Act may lead to a fine and to inability to enforce contracts. See alsoCOMPANY
NAME.
business tenancy A *tenancy of premises that are occupied for the purposes of a
trade, profession, or employment. Business tenants have special statutory protection.
If the landlord serves a notice to quit, the tenant can usually apply to the courts for
a new tenancy. If the landlord wishes to oppose the grant of a new tenancy he must
show that he has statutory grounds, which may include breaches of the tenant's
obligations under the tenancy agreement or the provision of suitable alternative
accommodation by the landlord. Otherwise the court will grant a new tenancy on
whatever terms the parties agree or, if they cannot agree, on whatever terms the
court considers reasonable. When the tenancy ends, the tenant may claim
compensation for any improvements he has made.
Under the Landlord and Tenant (Covenants) Act 1995, in force from 1 January 1996,
when business tenancies are assigned the new tenant generally takes over the
covenants (or promises and warranties) of the first tenant in the lease except when
otherwise agreed. Previously the old tenant was always liable, even after
*assignment, if a subsequent tenant defaulted on the lease.
buyer n. The party to a contract for the sale of goods who agrees to acquire
ownership of the goods and to pay the price. See also PURCHASER.
byelaw n. A form of *delegated legislation, made principally by local authorities.
District and London borough councils have general powers to make byelaws for the
good rule and government of their areas, and all local authorities have powers to
make them on a wide range of specific matters (e.g. public health). Certain public
corporations (such as the British Airports Authority) also make byelaws for the
regulation of their undertakings. A statutory power to make byelaws includes a
power to rescind, revoke, amend, or vary them. By contrast with most other forms
of delegated legislation, byelaws are not subject to any form of parliamentary
control but take effect if confirmed by a government minister. It is common for
central government to prepare draft byelaws that may be made by such authorities
as choose to do so. Byelaws are, however, subject to judicial control by means of the
doctrine of *ultra vires.
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