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However, only persons classified as "victims" by the Act are able to enforce the duty to act compatibly with the Convention in proceedings against the authority, and only victims will have standing to bring proceedings by way of judicial review. Most private litigants, at least in private law proceedings, will count as victims.

The Convention rights that have been incorporated into the Act are: Articles 2 to 12, 14,16, 17,18;Articles 1 to 3 of the First Protocol; and Articles 1 and 2 of the Sixth Protocol (individual rights are subjects of entries in this dictionary).

See absolute right; qualified right.

The Act requires any court or tribunal determining a question that has arisen in connection with a Convention right to take into account the jurisprudence of the Strasbourg organs (the European Court and Commission of Human Rights and the Committee of Ministers). This jurisprudence must be considered "so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen", whenever the judgment, decision, or opinion to be taken into account was handed down.

Section 19 provides that when legislation is introduced into Parliament for a second reading, the introducing minister must make a statement, either (1) to the effect that, in his view, the legislation is compatible with the Convention, or (2) that although the legislation is not compatible with the Convention, the government still wishes to proceed. If it is not possible to read legislation so as to give effect to the Convention, then the Act does not affect the validity, continuing operation, or enforcement of the legislation. In such circumstances, however, section 4 empowers the high courts to make a declaration of incompatibility. Section 10 and schedule 2 provide a 'fast-track' procedure by which the government can act to amend legislation in order to remove incompatibility with the Convention when a declaration of incompatibility has been made.

The Act gives a court a wide power to grant such relief, remedies, or orders as it considers just and appropriate, provided they are within its existing powers. Damages may be awarded in civil proceedings, but only if necessary to afford *just satisfaction; in determining whether or not to award damages and the amount to award, the court must take account of the principles applied by the European Court of Human Rights.

Sections 12 and 13 provide specific assurances as to the respect that will be afforded to *freedom of expression and *freedom of thought, conscience, and religion: these are 'comfort clauses' for sections of the press and certain religious organizations.

The Act does not make Convention rights directly enforceable against a private litigant, nor against a quasi-public body with some public functions if it is acting in a private capacity. But in cases against a private litigant, the Act still has an effect on the outcome, because the court will be obliged to interpret legislation in conformity with the Convention wherever possible; must exercise any judicial discretion compatibly with the Convention; and must ensure that its application of common law or equitable rules is compatible with the Convention.

hybrid Bill

See Bill.

hybrid power

See power of appointment.

hypothecation

n.

1. A mortgage granted by a ship's master to secure the repayment with interest, on the safe arrival of the ship at her destination, of money borrowed during a voyage as a matter of necessity (e.g. to pay for urgent repairs). The hypothecation of a ship itself, with or without cargo, is called bottomry; that of its cargo alone is respondentia. It is effected by a bond, and the bondholder is entitled to a maritime *lien.

2. An authority given to a banker, usually as a letter of hypothecation, to enable the bank to sell goods or property that have been pledged to it as security for a loan. It applies only when the goods remain in the possession of the pledgor.

identity

n.

(in the law of evidence)

See evidence of identity.

ignorance of the law

See mistake.

ignorantia juris non excusat

(Latin)

Ignorance of the law is no excuse, i.e. no defence against criminal or other proceedings arising from its breach. The Statutory Instruments Act 1946 modifies the rule slightly (See statutory instrument).

See also mistake.

ignoring traffic signals

Failing to comply with traffic signs, traffic lights, or road markings. A number of different offences are included in this category, all concerned with breaches of the rules relating to traffic signals as laid down in the Highway Code. All these offences are subject to a fine, *endorsement (carrying 3 penalty points under the totting-up system (*totting up), and *disqualification at the discretion of the court. Sometimes charges may also be brought under the head of *careless and inconsiderate driving or *dangerous driving, depending on the circumstances. It is also an offence not to comply with road directions given by a uniformed police officer acting in the course of his duties or engaged in a traffic census or survey. Prosecutions for ignoring traffic signals or police directions are subject to a *notice of intended prosecution.

ILC

See International Law Commission.

illegal contract

A contract that is prohibited by statute (e.g. one between traders providing for minimum resale prices) or is illegal at common law on the grounds of *public policy. An illegal contract is totally void, but neither party (unless innocent of the illegality) can recover back any money paid or property transferred under It (See ex turpi causa non oritur actio). Related transactions may also be affected. A related transaction between the same parties (e.g. if X gives Y a promissory note for money due from him under an illegal contract) is equally tainted with the illegality and is therefore void. The same is true of a related transaction with a third party (e.g. if Z lends X the money to pay Y) if the original illegality is known to him. In certain circumstances, illegal contracts may be saved by *severance.

illegal practices

See corrupt and illegal practices.

illegal trust

A trust that contravenes statute, morality, or public policy. Such a trust is void and of no effect.

illegitimacy

n.

The status of a child born out of wedlock. Although evidence of illegitimacy is readily available from the entry in the birth register relating to the child's parents, it is usual for a short form of birth certificate to be issued, which . makes no mention of the parents. Entry in the register of the name of a man who is not married to the mother (which may only be done with the consent of the mother) is evidence of his paternity.

The effect of the Family Law Reform Act 1987 is that, for nearly all purposes, children are to be treated alike, whether or not their parents are married to one another. The parents of illegitimate children have much the same rights, duties, and responsibilities in relation to them as they have for their legitimate children. The father of an illegitimate child is under a duty to maintain the child in the same way as his duty to maintain legitimate children (See child support maintenance), but does not automatically have *parental responsibility for that child. Illegitimate children are able to inherit property under wills (unless the contrary intention is apparent) and on intestacy in the same way as if they were legitimate. However, the Family Law Reform Act 1987 did not remove all distinctions between legitimate and illegitimate children, notably in relation to entitlement to British citizenship and succession to the throne of England and to titles of honour.

It is now becoming more usual to use the term "child of unmarried parents" for children born out of wedlock, rather than "illegitimate child".

illusory appointment

The giving of property under a *power of appointment that confers little or no benefit to one or more objects of the power. Before 19th-century legislation such appointments were void; they are now valid.

illusory trust

A conveyance by a debtor to a trustee on trust for his creditors, which in some cases may be revoked. This is contrary to the normal rule that an *executed trust is irrevocable.

immigration

n.

The act of entering a country other than one's native country with the intention of living there permanently. Immigration into the UK is subject to control under the Immigration Acts 1971 and 1988, as amended by the Immigration and Nationality Act 1999. This control extends to all potential entrants except those to whom the Act gives the right of abode in the UK and except citizens of the Republic of Ireland. Nationals of other member states of the EU will also be exempted from control as from a date to be set by the Secretary of State. As originally enacted, the Act gave the right of abode to all citizens of the UK and Colonies who either owed their status to their own (or a parent's or grandparent's) birth, registration, or naturalization in the UK or were or became at any time settled in the UK and had at that time been ordinarily resident there for at least five years. Commonwealth citizens had the right of abode if one of their parents was a citizen of the UK and Colonies by reason of birth in the UK. A person having the right of abode was termed a patrial. As from 1 January 1983 the Act was amended by the British Nationality Act 1981 to confine the right of abode to British citizens as defined by that Act (See British citizenship) and to *commonwealth citizens enjoying it before the Act came into force; the term patrial was discarded. With minor exceptions, a person subject to immigration control may not enter or remain in the UK except with leave, which may be granted either indefinitely or for a limited period; if leave is granted for a limited period, an immigrant is subject to further conditions (e.g. conditions restricting employment). The 1971 Act itself gave indefinite leave to stay to those not entitled to the right of abode but who were lawfully settled in the UK when it came into force. Whether or not leave is needed, whether it should be granted, and whether a time limit and any other conditions should be imposed are decided initially by immigration officers acting in accordance with immigration rules made by the Secretary of State. Appeals against the decisions of immigration officers are made to adjudicators at the ports of entry, and thence to the Immigration Appeal Tribunal.

Under the Immigration (Carriers' Liability) Act 1987, the owners of ships and aircraft are liable to pay a penalty of £1000 in respect of any person who arrives in the UK on their ship or aircraft and who seeks leave to enter the UK without proper documents (e.g. passport or visa). Under the Asylum and Immigration Act 1996, from 27 January 1997 it has been a criminal offence for an employer to employ anyone subject to immigration control. Breach of this Act leads to fines of up to £5000. Employers must ask new employees taken on or re-employed after that date for evidence of residential status, such as national insurance documents and EU passports; this request must be made in a nondiscriminatory way, which does not breach racial discrimination legislation.

Immigration Appeal Tribunal

A tribunal appointed by the Lord Chancellor, under the Immigration Act 1971, to hear appeals against immigration and deportation decisions. It has a legally qualified chairman and is subject to the supervision of the *Council on Tribunals.

immoral contract

A contract based on sexual immorality, such as a contract of prostitution. Such contracts are *illegal contracts on the grounds that they contravene *public policy.

immovables

pl. n.

Tangible things that cannot be physically moved, particularly land and buildings.

immunity

n.

Freedom or exemption from legal proceedings. Examples include the immunity of the sovereign personally from all legal proceedings (See royal prerogative); the immunity of members of the House of Commons and the House of Lords from proceedings in respect of words spoken in debate (See parliamentary privilege); *judicial immunity; and the immunity from the jurisdiction of national courts enjoyed by members of diplomatic missions and by foreign sovereigns (See diplomatic immunity; sovereign immunity).

imparlance

n.

Permission given to a defendant to delay his answer to the claimant's claim, to enable him to attempt to settle the claim amicably.

impeachable waste

Waste (*waste) that results in liability on the part of the person who commits it. Thus when a tenant commits impeachable waste his landlord may sue him for damages or obtain an injunction to prevent him committing any further waste.

impeding apprehension or prosecution

Giving assistance to a person one knows to be guilty of an *arrestable offence with the intention of preventing or delaying his arrest or prosecution (e.g. providing a hiding place or destroying evidence). There are also special offences of (1) agreeing not to disclose information that might help to convict or prosecute a criminal (See compounding an offence), (2) refusing to aid a police officer when asked to help stop a breach of the peace, (3) *obstructing a police officer, and (4) *wasting police time by giving them misleading information.

See also escape.

imperfect gift

See gift.

imperfect trust

See executory trust.

impersonation

n.

Pretending to be another person. It is an offence to impersonate a woman's husband in order to persuade her to have sexual intercourse (rape), to impersonate the holder of a Crown office in order to gain access to prohibited places, and to impersonate a police officer, a variety of public officials, a voter, or a juror. Obtaining property, services, or certain financial advantages through impersonation may amount to a crime of *deception.

implementation

n.

The process of bringing any piece of legislation into force. EU directives, which are not directly applicable (See Community legislation), are implemented at national level by member states by Act of Parliament or regulation. In the UK this may be done by statute or by statutory instrument or regulation.

implied condition

A term or obligation implied by law in a contract, any breach of which will entitle the innocent party not only to damages but to treat the contract as discharged (See condition). In a contract of sale of goods there are implied conditions that the seller has the right to sell the goods, that the goods will correspond with the contract description, and, in the case of sales in the course of business, that the goods are of *satisfactory quality and fit for the buyer's declared purpose.

implied contract

A contract not created by express words but inferred by the courts either from the conduct of the parties or from some special relationship existing between them.

implied malice

Mens rea (*mens rea) that the law considers sufficient for a crime, although there is no intention to commit that crime. The term is usually now used only in relation to murder, referring to the intention to cause *grievous bodily harm (See malice aforethought).

implied term

A provision of a contract not agreed to by the parties in words but either regarded by the courts as necessary to give effect to their presumed intentions or introduced into the contract by statute (as in the case of contracts for the sale of goods; See caveat emptor). An implied term may constitute either a *condition of the contract or a warranty; if it is introduced by statute it often cannot be expressly excluded.

Compare express term.

implied trust

A trust that arises either from the presumed but unexpressed intention of the settlor or by operation of law. Equity imposes an obligation to create such trusts by inference from the facts, including the conduct or relationship of the parties. An implied trust may be subdivided into or overlap with *resulting trusts and *constructive trusts.

implied use

See resulting use.

impossibility

n.

A *general defence that arises when compliance with the criminal law is physically impossible. This is most likely to arise in the context of crimes of omission. Thus one cannot be found guilty of failing to report a road traffic accident of which one was unaware. However, under the Criminal Attempts Act 1981 one may be convicted of attempting the impossible (See attempt).

impossibility of performance

The impossibility of carrying out a contract, which occurs, for example, when it relates to subject matter that does not exist. The event making fulfilment impossible may arise either before or after the contract is made. In the former case (e.g. if X agrees to sell Y a horse that, unknown to either, is already dead) the contract is void for *mistake. In the latter case (e.g. if the horse dies between contract and performance) the contract will be discharged under the doctrine of *frustration of contract.

impotence

n.

The inability of either partner to have normal sexual intercourse (See also consummation of a marriage). In the case of a married couple this is sometimes called canonical disability (i.e. a disability recognized by canon law, including that of the Roman Catholic Church, as a ground for annulment of the marriage). If the impotence is permanent and incurable, the marriage is voidable and either party may apply for a nullity decree. Impotence must be distinguished from *wilful refusal to consummate.

imprisonment

n.

See custody; sentence; false imprisonment; life imprisonment.

improvement

n.

(of rented premises)

An addition or alteration that improves the premises from the tenant's point of view; it does not necessarily have to increase the value of the premises. In the case of a lease that contains an obligation by the tenant to obtain the landlord's consent before making improvements, the landlord cannot withhold his consent unreasonably. He can, however, claim from the tenant any expense or loss he suffers as a result and he can require the tenant, at the end of the tenancy, to put the premises back into the condition they were in before the improvement was carried out. When rented dwellings lack certain basic amenities, such as a bath, the local authority can require the landlord to provide these amenities and carry out other repairs and improvements after service of an *improvement notice. In the case of business tenancies and agricultural holdings, the tenant can claim compensation for improvements.

improvement notice

1. A local-authority notice requiring a person to provide a dwelling under his control with certain standard amenities (e.g. a bath). If he fails to do this the authority may do so at his expense.

2. A notice requiring any person responsible for a breach of the Health and Safety at Work Act 1974 (or associated legislation) to take steps to remedy the breach or prevent its repetition.

Compare prohibition notice.

imputability

n.

The principle that internationally illegal acts or omissions contributing to the damage to foreign property, and caused in some way by organs of the state apparatus, are attributable to the state and therefore incur that state's responsibility. Thus, there must have been state participation in the act before there can be *state responsibility for it.

imputation

n.

An allegation of misconduct or bad character made by an accused against the prosecutor or one of his witnesses. When this occurs the accused may (under the Criminal Evidence Act 1898), with *leave of the court, be cross-examined about his own *previous convictions and bad character. Under the Criminal Justice and Public Order Act 1994 allegations made against the character of a deceased victim may lead to cross-examination of the accused as to his character.

imputation of unchastity

A statement imputing unchastity or adultery to a woman or girl, which is defamatory and actionable whether or not it has caused actual financial or material loss.

See slander; defamation.

imputation of unfitness or incompetence

A statement calculated to disparage someone in his office, profession, calling, trade, or business, which is defamatory and actionable whether or not it has caused actual financial or material loss.

See slander; defamation.

imputation system

Formerly, a system of taxation applying to the payment of *corporation tax on the distributed profits of a company. In this system, which came into force in the UK in April 1973, that part of the tax paid by the company as *advance corporation tax (ACT) was imputed to the shareholders and their dividends are franked (See franked income) accordingly. ACT was abolished in April 1999.

imputed notice

An *agent's knowledge of facts that the law presumes the person employing him (the *principal) to have, irrespective of his actual knowledge of those facts. A purchaser of land has imputed notice of all matters relating to the purchase of which his agent (e.g. a solicitor) has (or ought reasonably to have) knowledge.

See also actual notice; constructive notice; notice.

inadmissible reason

(in employment law)

A reason for dismissing an employee that is based on his membership or participation in the activities of an *independent trade union or his refusal to become or remain a member of a union. Dismissal for an inadmissible reason is always treated as *unfair dismissal, and the employee may apply to an *employment tribunal regardless of his age and length of continuous employment.

See also compensation.

inalienability

n.

See rule against inalienability.

in camera

(Latin: in the chamber)

In private. A court hearing must usually be public but the public may be barred from the court or the hearing may continue in the judge's private room in certain circumstances; for example, when it is necessary for public safety or when a child gives evidence in a case involving indecency.

incapacity

incompetence

incapacity, incompetence

n.

Alack of full legal competence in any respect; for example, the incapacity of mentally disordered persons to conclude valid contracts (See capacity to contract). A person suffering from incapacity is frequently referred to as a person under disability.

incapacity benefit

A state benefit that replaced invalidity benefit and sickness benefit in April 1995. It is paid at three basic rates, the two highest of which are taken into account as taxable income. Short-term incapacity benefit is payable at the lower rate for the first 28 weeks of incapacity and at the higher rate for the 29th-52nd weeks. Long-term benefit is payable, at the highest rate, after 52 weeks. Those claiming the benefit must complete a questionnaire about the activities they can engage in; after 28 weeks they must undergo a medical test to assess their capacity for work-related activities as well as submitting a questionnaire. Doctors must certify in all cases the material supplied.

incest

n.

Sexual intercourse between a man and his mother, daughter, sister, half-sister, or granddaughter or between a woman over the age of 16 and her father, son, brother, half-brother, or grandfather. Even if both parties consent, incest is a criminal offence if the parties know of their relationship. It is punishable by up to seven years' imprisonment (or, with a girl under the age of 13, by a maximum sentence of life imprisonment), but no prosecution may be brought without the consent of the Director of Public Prosecutions. The relationships listed above include illegitimate relationships. It is a statutory offence for a man to incite a girl under the age of 16 to have incestuous intercourse with him, but being under 16, she would not be guilty of any crime if intercourse took place.

Inchmaree clause

A clause frequently inserted in marine insurance policies to provide cover for a variety of risks that are not covered as *perils of the seas. It provides protection against such events as accidents in loading or discharging cargo or taking on fuel, bursting of boilers, breakage of shafts, and explosions on board ship or elsewhere. It also provides cover for negligence of the ship's master, officers, or crew.

inchoate

adj.

Incomplete. Certain acts, although not constituting a complete offence, are nonetheless prohibited by the criminal law because they constitute steps towards the complete offence. These inchoate offences include *incitement, *attempt, and *conspiracy. One may be guilty of inciting someone to commit the crime of incitement or of attempting to incite, but one cannot be guilty of incitement to conspire or of attempting to conspire.

incitement

n.

Persuading or attempting to persuade someone else to commit a crime. If the other person then actually carries out the criminal act, the inciter becomes a participator in the crime and is guilty of aiding and abetting it. If the other person does not carry out the crime, the person who attempted to persuade him to do so may nonetheless be guilty of the crime of incitement. Incitement may be by means of suggestion, persuasion, threats, or pressure, by words or by implication; for example, advertising an article for sale to be used to commit an offence may constitute incitement to commit that offence.

incitement to racial hatred

See racial hatred.

income support

An income-related benefit payable under the Social Security Acts to persons over 16 whose income and savings do not exceed a prescribed amount, and who are not working 16 or more hours a week, and (if applicable) whose spouses or cohabitants (See cohabitation) are not working 24 hours or more a week, and who are incapable of or unavailable for work (for example, because they are disabled or a lone parent). It replaced supplementary benefit from April 1988. Since October 1996 the unemployed who would formerly have been recipients of income support have received instead a *jobseeker's allowance.

income tax

A tax on a person's wages or salary and on most other sources of income, including unearned income and the profits from an unincorporated business. The amount of tax is based on a person's entire income for the year, less certain allowances, on a progressive scale. The effect is that those with higher incomes pay higher rates of tax.

The allowances (for 2001-02) include a personal allowance of £4535; a children's tax credit of £5200, which may be shared between a child's parents; and pension contributions. The children's tax credit is restricted to 10%. Other reliefs are available to older taxpayers (over 65) and the blind.

The first £1880 of taxable income is charged at 10% (this is known as the starting rate). Taxable income from £1881 to £29,400 is charged at 22% (the basic rate). Any income over £29,400 is charged at 40% (the higher rate). Although assessed annually, in many cases tax is deducted at source, in particular by employers under the *Pay As You Earn (PAYE) system. Nonresidents in the UK are subject to income tax if their income originates in the UK, as are UK residents who receive income from abroad. However, there are agreements with many countries to give relief against double taxation. Certain income is exempt from tax, including interest on national savings certificates, some social security benefits, and redundancy payments up to £30,000.

Income tax was introduced as a temporary measure in 1799. It is renewed annually in a Finance Act, which traditionally enacts the Chancellor of the Exchequer's Budget proposals. The types of taxable income are set out in the Income and Corporation Taxes Act 1988 under five schedules:

A: income from UK land; C: public revenue dividends; D: profits or gains from trades, professions, and vocations; interests, annuities and annual payments; income from securities and possessions outside the UK; E: *emoluments from offices and employments; pensions; F: dividends and distributions from UK companies.

incompletely constituted trust

See executory trust.

inconsiderate driving

See careless and inconsiderate driving.

incorporation

n.

1. The formation of an association that has corporate personality, i.e. a personality distinct from those of its members. A corporation (such as a company) has wide legal capacity (subject to the doctrine of *ultra vires): it can own property and incur debts. Company members have no liability to company creditors for such debts (though they may be under some liability to their company). An incorporated company has its own rights and liabilities and legal proceedings in respect of them should be brought by and against it in its own name (but see derivative action). It can be convicted of crimes; when *mens rea is a requirement of the offence, the mens rea of the officers responsible may be attributed to the company. A company is usually incorporated by *registration under the Companies Act 1985 but there are other methods (e.g. by royal charter or private Act of Parliament).

Date: 2015-01-29; view: 852