Home Random Page


CATEGORIES:

BiologyChemistryConstructionCultureEcologyEconomyElectronicsFinanceGeographyHistoryInformaticsLawMathematicsMechanicsMedicineOtherPedagogyPhilosophyPhysicsPolicyPsychologySociologySportTourism






╬xford_dictionary_of_law 21 page

dividend

n.

A payment declared either by the directors of a company (interim dividend) or at the *annual general meeting (final dividend) as being payable to shareholders from profits available for distribution. The payment is determined by reference to the terms of the *share contract; it is an agreed fixed rate for preference shares but will vary with the fortunes of the company for the holders of ordinary shares.

divisible contract

See performance of contract.

division

n.

The taking of a vote on any matter in either House of Parliament.

Divisional Court

A court consisting of not less than two judges of one of the Divisions of the High Court. There are Divisional Courts of each of the Divisions. Their function is to hear appeals in various matters prescribed by statute; they also exercise the supervisory jurisdiction of the High Court over inferior courts. Most of this jurisdiction is exercised by the Queen's Bench Division, which also hears applications for *judicial review and appeals by *case stated from magistrates' courts. The Chancery Division hears appeals in *bankruptcy matters and the Family Division hears appeals from magistrates' courts in matters of family law.

Divisions of the High Court

See chancery division; family division; Queen's Bench Division.

divorce

n.

The legal termination of a marriage and the obligations created by marriage, other than by a decree of nullity or presumption of death. The present law on divorce dates from 1969. Before this, the law required proof of a *matrimonial offence (adultery, cruelty, or desertion of three years). The current law is contained in the Matrimonial Causes Act 1973, which provides that there is only one ground for divorce, namely that the marriage has irretrievably broken down. Proceedings are initiated by either spouse filing a petition for divorce, stating the facts that have led to the marital breakdown and accompanied by a *statement of arrangement for children, (Divorce proceedings may not be started within the first year of a marriage.) Irretrievable breakdown of a marriage may only be evidenced by one of the following five facts:

(1) that the respondent has committed *adultery and the petitioner finds it intolerable to live with the respondent;

(2) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent (See unreasonable behaviour);

(3) that the respondent has deserted the petitioner for at least two years (See desertion);

(4) that the parties have lived apart for at least two years and the respondent consents to a divorce; or

(5) that the parties have lived apart for at least five years. A respondent in a two-year separation case can apply for a postponement of the divorce until the court is satisfied that the petitioner has made fair and reasonable financial provision for the respondent. In a five-year separation case the court has the power to bar divorce if it believes that grave financial or other hardship would result from the dissolution and that it would be wrong to dissolve the marriage; however, this power is rarely exercised.



Divorce is a two-stage process. The first stage is the granting of a *decree nisi; six weeks later the petitioner may apply for a *decree absolute. The marriage is not terminated until the decree absolute has been granted. Uncontested divorce cases are heard under the *special procedure; the majority of cases are now dealt with in this way. Divorce courts have wide powers under the Matrimonial Causes Act 1973 to make orders in respect of children and to adjust financial and property rights.

See also child protection in divorce; financial provision order; maintenance agreement; property adjustment order.

Divorce Registry

The section of the Family Division of the High Court with jurisdiction over divorce proceedings.

DNA fingerprinting

(genetic fingerprinting)

A scientific technique in which an individual's genetic material (DNA) is extracted from cells in a sample of tissue and analysed to produce a graphic chart that is unique to that person. The technique may be used as *evidence of identity in a criminal or civil case and has been notably successful in both paternity and rape cases. DNA samples (e.g. of hair) may be taken from suspects in accordance with the Police and Criminal Evidence Act 1984 and after conviction for any offence punishable by imprisonment.

dock brief

The obsolete procedure by which a defendant to a criminal charge could, on indictment, select any barrister in the court who was not otherwise engaged to represent him, on payment of a nominal fee.

doctrine of incorporation

The doctrine that rules of international law automatically form part of municipal law. It is opposed to the doctrine of transformation, which states that international law only forms a part of municipal law if accepted as such by statute or judicial decisions. It is not altogether clear which view English law takes with respect to rules of customary *international law. As far as international treaties are concerned, the sovereign has the power to make or ratify treaties so as to bind England under international law, but these treaties have no effect in municipal law (with the exception of treaties governing the conduct of war) until enacted by Parliament. However, judges will sometimes consider provisions of international treaties (e.g. those relating to *human rights) in applying municipal law. It has been said that directives of the European Community have the force of law in member states, but practice varies widely (See Community legislation).

document

n.

Something that records or transmits information, typically in writing on paper. For the purposes of providing evidence to a court, documents include books, maps, plans, drawings, photographs, graphs, discs, tapes, soundtracks, and films (See also computer documents). Some legal documents are only valid if they meet certain requirements (See deed; will). Documents that are to be used in court proceedings must be disclosed to the other party in a procedure known as disclosure and inspection of documents (*disclosure of documents; *inspection of documents). In court, the original of a document must be produced in most cases. In the case of a public document a particular kind of copy must be produced; for example, a copy of a statute must be a government printer's copy, and a copy of a byelaw must be certified by the clerk to the local authority concerned. The authenticity of private documents must be proved by the evidence of a witness. In practice this procedure is often avoided or simplified by each party admitting the authenticity of particular documents prior to the court hearing.

See also parol evidence rule; production of documents.

documentary evidence

Evidence in written rather than oral form. The admissibility of a document depends upon (1) proof of the authenticity of the document and (2) the purpose for which it is being offered in evidence. If it is being offered to prove the truth of some matter stated in the document itself it will be necessary to consider the application of the rule against hearsay (See hearsay evidence) and its many exceptions.

document of title to goods

A document, such as a *bill of lading, that embodies the undertaking of the person holding the goods (the bailee) to hold the goods for whoever is the current holder of the document and to deliver the goods to that person in exchange for the document.

dogs

pl. n.

See classification of animals; dangerous animals; guard dog.

doli capax

(Latin)

Capable of wrong. A child under the age of 10 is deemed incapable of committing any crime. Above the age of 10 children are doli capax and are treated as adults, although they will usually be tried in special youth courts (with the exception of homicide and certain other grave offences) and subject to special punishments. Formerly, there was a rebuttable presumption that a child between the ages of 10 and 14 was also doli incapax (incapable of wrong). This presumption has now been abolished.

See juvenile offender.

domain name

An Internet address, which may be protected under *trade mark law.

domestic premises

A private residence, used wholly for living accommodation, together with its garden, yard, and attached buildings (such as garages and outhouses).

domestic tribunal

A body that exercises jurisdiction over the internal affairs of a particular profession or association under powers conferred either by statute (e.g. the disciplinary committee of the Law Society) or by contract between the members (e.g. the disciplinary committee of a trade union). The decisions of these tribunals are subject to judicial control under the doctrine of *ultra vires and, if they are statutory, when there is an *error of law on the face of the record.

Compare administrative tribunal.

domestic violence

See battered spouse or cohabitant.

domicile

n.

The country that a person treats as his permanent home and to which he has the closest legal attachment. A person cannot be without a domicile and cannot have two domiciles at once. He acquires at birth a domicile of origin. Normally, if his father is then alive, he takes his father's domicile; if not, his mother's. He retains his domicile of origin until (if ever) he acquires a domicile of choice in its place. A domicile of choice is acquired by making a home in a country with the intention that it should be a permanent base. It may be acquired at any time after a person becomes 16 and can be replaced at will by a new domicile of choice.

See lex domicilii.

dominant tenement

Land the ownership of which entitles the owner to rights comprising a legal or equitable interest (such as an easement or profit à prendre) in other land, called the servient tenement.

Dominions

pl. n.

Formerly, the group of UK colonies that, by virtue of the Statute of Westminster 1931, were the first to become fully independent. Certain of these, together with many other former colonies, are now collectively known as the *Commonwealth.

donatio mortis causa

(Latin: a gift on account of death)

An immediate gift of real or personal property made by a donor who expects to die in the near future. The gift must be made to take complete effect only on the death of the donor and there must be delivery of the property or something amounting to delivery. The latter requirement has been held to be satisfied by a transfer of the means or part of the means of obtaining the property or a transfer of the indications of title to the property (e.g. title deeds). The donor must make the transfer with the intention of relinquishing ownership of the property but may withdraw from that intention at any time prior to death and thereby defeat the gift. If the donor does not die the gift will be revoked.

double criminality

The rule in *extradition procedures that, in order for the request to be complied with, the crime for which extradition is sought must be a crime in both the requesting state and the state to which the fugitive has fled.

See also extradition treaty; speciality.

double portions

pl. n.

See rule against double portions.

double probate

A second grant of *probate in respect of the same estate in favour of an executor who was not a party to the first grant. This occurs when the executor has not renounced his executorship and has a power to apply for a grant of probate at a later time than the original grant.

draft

n.

1. An initial unsigned agreement, treaty, or piece of legislation, which is not yet in force.

2. An order for the payment of money, e.g. a banker s draft.

Drago doctrine

The doctrine that states cannot employ force in order to recover debts incurred by other states. Thus the fact that a state has defaulted on Its debt to aliens or to another state does not legalize the use of military intervention by these creditors in order to reclaim monies they are owed.

driftway

n.

A *highway over which there exists a right to drive cattle, accompanied by persons either on foot or mounted.

driver

n.

For purposes of the Road Traffic Acts, anyone who uses the ordinary controls of a vehicle (i.e. steering and brakes) to direct its movement. This includes anyone steering a car when the engine is off or when being towed by another vehicle.

driving licence

An official authority to drive a motor vehicle, granted upon passing a driving test. A renewable provisional driving licence, valid for 12 months, may be granted to learner drivers, but the holder of a provisional licence may not drive a motor car on a public road unless accompanied by a qualified driver and unless he displays 'L' plates on the front and rear of the vehicle.

A full licence may be obtained by anyone who has passed the Department of Transport driving test, which is carried out by the Driving Standards Agency (an executive agency) and is now preceded by a written test, or held a full licence issued in Great Britain, Northern Ireland, the Isle of Man, or the Channel Islands within ten years before the date on which the licence is to come into force. It is normally granted until the applicant's 70th birthday. After the age of 70, licences are granted for three-year periods. The applicant must disclose any disability and may be asked to produce his medical records or have a medical examination.

An applicant will not normally be granted a licence if he is suffering from certain types of disability, including epilepsy, sudden attacks of disabling giddiness or fainting, or a severe mental illness or defect. In the case of epilepsy, however, he may still be granted a licence if he can show that he has been free of all attacks for at least two years or that he has only had attacks during sleep .for more. than three years. If an applicant for a licence has diabetes or a heart condition, is fitted with a heart pacemaker, has been treated within the previous three years for drug . addiction, or is suffering from any other disability (e.g. loss or weakness of a limb) that would affect his driving, the grant of a licence is usually discretionary.

It is an offence to knowingly make a false statement in order to obtain a driving licence, not to disclose any current *endorsements, or not to sign his name in ink on the licence. A police officer may require a driver to show his driving licence or produce it personally at a specified police station within five days. He may also ask to see the licence of someone whom he believes was either driving a vehicle involved in an accident or had committed a motoring offence. Failure to produce one's licence in these circumstances carries a fine.

See also driving without a licence.

Under the Road Traffic (New Drivers) Act 1995, with effect from 1 June 1997, a driver who is convicted of an endorsable offence and who has accumulated 6 or more penalty points (See totting up) within two years of passing a driving test will have his licence revoked and must retake the test.

driving-test order

An order by the court that a person who has been convicted of an offence that is subject to *disqualification should be disqualified from driving until he passes a test showing that he is fit to drive. The order should only be made where there is reason to suspect that the person is not fit to drive; for example, because he is very old or unwell, and has shown evidence of incompetence in his driving. It is not meant as a punishment but to protect the public.

driving while disqualified

An offence committed by the *driver of a motor vehicle on a public road when he is disqualified from driving (See disqualification). This is an endorsable offence (carrying 7 penalty points under the totting-up system (*totting up)) and the courts have discretion to impose a further period of disqualification.

driving while unfit

See drunken driving.

driving without a licence

An offence committed by the *driver of a motor vehicle on a public road without a *driving licence or provisional driving licence valid for the vehicle he is driving. If the circumstances are such that he would in fact have been refused a licence had he applied for one, or if he fails to comply with the conditions applicable to a provisional licence, his licence (if he subsequently obtains one) will usually be endorsed (the endorsement carries 2 penalty points under the totting-up system (*totting up)) and the court has discretion to order disqualification from driving (if he applies for a licence during the disqualification period). Otherwise this is not an endorsable offence.

driving without insurance

An offence committed by a *driver who uses or allows someone else to use a motor vehicle on a public road without valid *third-party insurance. The offence is one of *strict liability (except when an employee is using his employer's vehicle) and applies even if, for example, the insurance company who issued the insurance suddenly goes into liquidation. The offence is punishable by a fine, endorsement (it carries 6-8 penalty points under the totting-up system (*totting up)), and disqualification at the discretion of the court.

drugs

pl. n.

See controlled drugs.

drunken driving

Driving (See driver) while affected by alcohol. Drunken driving covers two separate legal offences.

(1) Driving while unfit. It is an offence to drive or attempt to drive a motor vehicle on a road or public place when one's ability to drive properly is impaired by alcohol or drugs. Drugs include medicines (such as insulin for diabetics), and the offence appears to be one of *strict liability. It is also an offence to be in charge of a motor vehicle on a road or in a public place while unfit to drive because of drink or drugs, but the defendant will be acquitted if he can show that there was no likelihood of his driving the vehicle in this condition (for example, if he arranged for someone else to drive him if he became drunk). A police officer can arrest without a warrant anyone whom he reasonably suspects is committing or has been committing either of these offences; he may also (except in Scotland) enter any place where he believes the suspect to be, using force if necessary.

(2) Driving over the prescribed limit. It is an offence to drive or attempt to drive a motor vehicle on a road or in a public place if the level of alcohol in one's breath, blood, or urine is above the specified prescribed limit (35 micrograms of alcohol in 100 millilitres (ml) of breath; 80 milligrams (mg) of alcohol in 100 ml of blood; 107 mg of alcohol in 100 ml of urine - roughly equivalent to 2 1/2 pints of beer, or 5 glasses of wine, or 5 single whiskys). It is also an offence to be in charge of a motor vehicle on a road or in a public place when the proportion of alcohol is more than the prescribed limit, subject to the same defence as in being in charge while unfit. Both these offences are offences of strict liability: it is therefore not a defence to show that one did not know that the drink was alcoholic or that it exceeded the prescribed limit. The normal way in which offences involving excess alcohol levels are proved is by taking a *specimen of breath for laboratory analysis, but this is not necessary if the offence can be proved in some other way (for example, by evidence of how much a person drank before driving). There is no power to arrest a person on suspicion of committing or having committed an offence of this sort before administering a preliminary *breath test.

Most charges involving drinking and driving are brought under the offence of driving over the prescribed limit rather than driving while unfit, but the powers to administer a breath test or to take a specimen of breath for analysis apply to both offences. The penalties for either of these offences are a fine and/or imprisonment, *endorsement, and obligatory *disqualification (in cases of driving or attempting to drive) or discretionary disqualification (in cases of being in charge). Under the totting-up system (*totting up), the discretionary disqualification offences carry 10 penalty points and the compulsory disqualification offences carry 3-11 penalty points (which are only imposed if there are special reasons preventing disqualification).

See also causing death by careless driving; offences relating to road traffic.

drunkenness

n.

*intoxication resulting from imbibing an excess of alcohol. It is an offence to be drunk in a public place.

dualism

n.

See monism.

dubitante

adj.

(Latin)

Doubting. The term is used in law reports in relation to a judge who is doubtful about a legal proposition but does not wish to declare It wrong.

duces tecum

(Latin: you shall bring with you)

See witness summons.

due diligence

The legal obligation of states to exercise all reasonable efforts to protect *aliens and their property in the host state. Such aliens must have been permitted entry into the host state. If there is a failure or lack of due diligence, the state in default is held responsible and liable to make compensation for injury to the alien or to the alien's estate.

See state responsibility.

dum casta vixerit

(Latin)

As long as she lives chastely. A clause sometimes inserted in a separation agreement, freeing the husband from the terms of the agreement (e.g. maintenance obligations) if his wife commits adultery.

dumping

n.

The sale of goods abroad at prices below their normal value. Within the EU dumping regulations prohibit the sale of goods at below normal value. Countervailing (or antidumping) duties may be ordered on certain imported goods to prevent dumping.

dum sola

(Latin)

While single: the status of a single woman or widow.

duplex querela

(Latin: double complaint)

The procedure in ecclesiastical law for challenging a bishop's refusal to admit a presentee to a benefice.

durante absentia

(Latin: during the absence of)

Describing a grant of *letters of administration of a deceased's estate to some person interested in the estate while the personal representative is abroad.

See also limited administration.

duress

n.

Pressure, especially actual or threatened physical force, put on a person to act in a particular way. Acts carried out under duress usually have no legal effect; for example, a contract obtained by duress is voidable (See also economic duress; undue influence). In criminal law, when the defendant's power to resist is destroyed by a threat of death or serious personal injury, he will have a defence to a criminal charge, although he has the *mens rea for the crime and knows that what he is doing is wrong. Duress is not a defence to a charge of murder as a principal (i.e. to someone who actually carries out the murder himself), although it is still a defence to someone charged with aiding and abetting murder. The threat need not be immediate; it is sufficient that it is effective; for example a threat in court to kill a witness may constitute duress and thus be a defence to a charge of perjury, even though it cannot be carried out in the courtroom. However, the defence is unavailable to someone who failed to take available alternative action to avoid the threat.

See also coercion; necessity; self-defence.

during Her Majesty's pleasure

during His Majesty's pleasure

during Her or His Majesty's pleasure

A phrase colloquially used to describe the period of detention imposed upon a defendant found not guilty by reason of *insanity. Such a person was consequently known as a pleasure patient. The defendant must still be admitted to a hospital specified by the Home Secretary (either a local psychiatric hospital or a *special hospital) and remain there until otherwise directed, but the phrase "during Her Majesty's pleasure" is no longer used in the statute.

Dutch courage

See intoxication.

duty

n.

1. A legal requirement to carry out or refrain from carrying out any act.

Compare power.

2. A payment levied by the state, particularly on certain goods and transactions. Examples are *customs duty, *excise duty, and *stamp duty.

duty of care

The legal obligation to take reasonable care to avoid causing damage. There is no liability in tort for *negligence unless the act or omission that causes damage is a breach of a duty of care owed to the claimant. There is a duty to take care in most situations in which one can reasonably foresee that one's actions may cause physical damage to the person or property of others. The duty is owed to those people likely to be affected by the conduct in question. Thus doctors have a duty of care to their patients and users of the highway have a duty of care to all other road users. But there is no general duty to prevent other persons causing damage or to rescue persons or property in danger, liability for careless words is more limited than liability for careless acts, and there is no general duty not to cause economic loss or psychiatric illness. In these and some other situations, the existence and scope of the duty of care depends on all the circumstances of the relationship between the parties. Most duties of care are the result of judicial decisions, but some are contained in statutes, such as the Occupiers' Liability Act 1957 (See occupier's liability).

duty solicitors

Solicitors (*solicitor) who attend by rota at magistrates' courts in order to assist defendants who are otherwise unrepresented.

duty to convert

(in equity)

See conversion.

dying declaration

An oral or written statement by a person on the point of death concerning the cause of his death. A dying declaration is admissible at a trial for the murder or the manslaughter of the declarant as an exception to the rule against *hearsay evidence, provided that he would have been a competent witness had he survived (See competence). Case law requires that the person making the dying declaration must have had a "settled, hopeless expectation of death".

easement

n.

A right enjoyed by the owner of land (the dominant tenement) to a benefit from other land (the servient tenement). An easement benefits and binds the land itself and therefore continues despite any change of ownership of either dominant or servient tenement, although it will be extinguished if the two tenements come into common ownership (Compare quasi-easement). It may be acquired by statute (for example, local Acts of Parliament), expressly granted (e.g. by *deed giving a right of way), arise by implication (e.g. an easement of support from an adjoining building), or be acquired by *prescription. (See also profit à prendre.) An easement can exist as either a legal or an equitable interest in land. Only easements created by statute, deed, or prescription and held on terms equivalent to a *fee simple absolute in possession or *term of years absolute qualify as legal easements and are binding on all who acquire the unregistered servient tenement or any interest in it Legal easements over registered land should be registered but in practice will usually be binding without registration. All others are equitable easements and must generally be registered to be enforceable against a third party who acquires the servient tenement for value in money or money's worth. Under section 62 of the Law of Property Act 1925, when land is conveyed, all easements appertaining to it automatically pass with it without the necessity for express words in the conveyance.

See also registration of encumbrances.

easement of necessity

An *easement arising by implication in favour either of a grantee of land over land retained by the grantor or, more rarely, of a grantor of land over land that he has granted, when access to any land granted or retained would otherwise be excluded by the operation of the grant. For example, if A, who owns a plot of land adjoining a highway, sells off the part of the plot immediately adjacent to the highway but retains the rest, an easement of necessity over the sold plot is implied if A has no other access to the plot he has retained. If there is any other right of access to the retained plot, there can be no easement of necessity, no matter how inconvenient that access proves to be. Any claimant must be able to prove that the land retained would be inoperative without the easement. The easement may be extinguished if alternative access becomes possible. The implication of necessity can be excluded by the terms of the grant; for example, when the grantor particularly wishes the land retained by him to remain inaccessible.

EAT

See employment appeal tribunal.

ecclesiastical courts

Courts responsible for the administration of the ecclesiastical law of the Church of England. They comprise consistory courts, which are the courts of each diocese, for enforcing discipline among the clergy; the *Court of Arches and the Chancery Court of York, which hear appeals from consistory courts in their respective provinces; the *Judicial Committee of the Privy Council, which hears appeals from the provincial courts in matters not involving doctrine, ritual, or ceremonial; and the *Court of Ecclesiastical Causes Reserved.


Date: 2015-01-29; view: 235


<== previous page | next page ==>
╬xford_dictionary_of_law 20 page | ╬xford_dictionary_of_law 22 page
doclecture.net - lectures - 2014-2017 year. Copyright infringement or personal data (0.016 sec.)