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Lord Chief Justice 13 page

public examination

In *bankruptcy proceedings, an investigation into the conduct, dealings, and property of a debtor. It takes place in a court and the debtor is compelled to attend and answer questions on oath. The *official receiver has a discretion whether or not to apply to the court for a public examination after a bankruptcy order is made. He must apply (unless the court directs otherwise) if the creditors request it.

public general Act

See act of parliament.

public good

A special defence to some charges under the Obscene Publications Act.

See obscene publications.

public house

Under the Local Government Act 1966, any premises licensed for the sale of intoxicating liquor for consumption on the premises, this (apart from any ancillary or incidental trade or business) being the only trade carried on there.

public law

The part of the law that deals with the constitution and functions of the organs of central and local government, the relationship between individuals and the state, and relationships between individuals that are of direct concern to the state. It includes constitutional law, administrative law, tax law, and criminal law.

Compare private law.

public limited company

(plc)

See limited company; public company.

public mischief

Conduct damaging the interests of the community; for example, making bogus telephone calls to the police. Until 1975 this was regarded as a crime but it is now no longer so regarded, nor is conspiracy to effect a public mischief. There is, however, a special statutory offence of *wasting police time (but not, for example, the time of ambulancemen or firemen).

See also bomb hoax; sending distressing letters.

public morals

The basic moral structure of society. Judges have occasionally said that they retain a general overriding discretion to punish as crimes behaviour that is destructive of public morals but it is not at all clear to what extent they should do so, although some crimes, such as incest, are presumably based on moral factors. The abolition of the crimes of homosexual conduct and suicide was based on the assumption that matters of morals that do not directly affect other people should not be the subject of criminal legislation.

See also corruption of public morals.

public nuisance

See nuisance.

public office

Employment in the *Civil Service or in any other capacity in which remuneration is provided by Parliament or the Consolidated Fund. Public office also includes employment of an officer to whom the Overseas Service Act 1958 applies and employment funded by the Church Commissioners, the Agricultural Research Council, the Crown Estate Commissioners, and the Metropolitan Police Fund.

public or general rights

See declaration concerning public or general rights.

public place

A place to which the public has access. The main offences relating to public places are: (1) being found drunk or being drunk and disorderly in a public place; (2) carrying a *firearm, *offensive weapon, or bladed article in a public place; (3) *soliciting in a public place; and (4) displaying support for a *proscribed organization in a public place.



See also offences against public order.

public policy

The interests of the community. If a contract is (on common-law principles) contrary to public policy, this will normally make it an *illegal contract. In a few cases, however, such a contract is void but not illegal, and is treated slightly more leniently (for example, by *severance). Contracts that are illegal because they contravene public policy include any contract to commit a crime or a tort or to defraud the revenue, any contract that prejudices national safety or the administration of justice, and any *immoral contract. Contracts that are merely void include contracts in *restraint of trade and in *restraint of marriage and *marriage brokage contracts.

public procurement

Obtaining goods or services for the use of the public sector.

Procurement in this sector is often formalized, and contracts for public works, supplies, or services, which can be large, are advertised for formal tender. In the 1970s the EU, finding that most public contracts in the EU were placed with local suppliers, issued directives requiring that large public supply and works contracts must be advertised throughout the EU and be open to all who meet the requirements set out in them. These directives have been amended and revised and now extend to cover services and utility contracts. Three alternative procedures for submitting tenders are set out in the directives; of these, the open procedure is generally regarded as the fairest and is the one that must most often be used. The basic principle for all three procedures is that if the value of a contract for public works, supplies, or services (or of a contract for utilities whether in the public sector or not) is over a certain minimum financial level, the contract must be advertised in the EU's Official Journal and suppliers from all EU states are entitled to put in tenders. The company winning the contract must be chosen fairly in accordance with formulae set down in the relevant directive. When the procedure is not followed, there is a right to claim damages under separate remedies directives.

public prosecutor

See Director of Public Prosecutions.

public trust

A trust for the benefit of the public, which mayor may not be a *charitable trust.

Public Trustee

A public officer, appointed under the Public Trustee Act 1906, who is a *corporation sole and who may act as a *custodian trustee, a *judicial trustee, or an ordinary trustee. The Public Trustee cannot accept certain trusts, e.g. those exclusively for charitable or religious purposes, those governed by foreign law, or those involving the management of a business. He has a duty to administer small estates unless there is some good reason for his refusal.

puisne

adj.

(from Old French puisne, later born)

Inferior; of lesser rank.

puisne judge

Any ordinary judge of the High Court. Puisne judges are referred to as (for example) "Mr Justice Smith", even though they are knighted upon appointment. They must be barristers of at least ten years' standing.

puisne mortgage

A legal mortgage of unregistered land in which the mortgagee does not keep the title deeds of the land as security. Usually a first mortgagee retains the deeds; thus subsequent mortgages will be puisne and should be protected by registration (See registration of encumbrances).

punishment

n.

A penalty imposed on a defendant duly convicted of a crime by an authorized court. The punishment is declared in the *sentence of the court. The two basic principles governing punishment are *nullum crimen sine lege and *nulla poena sine lege. The powers of the court to punish offenders also depend on whether the crime is an *indictable offence or a *summary offence.

There are a number of different theories of punishment, and different aims and purposes underly the legal provisions of the English criminal system. The concept of retribution implies that a criminal merits his just punishment because he has done something morally or socially evil. Another aspect of retribution implies that the punishment should be related to the harm done by the crime, rather than to the moral guilt of the criminal. The utilitarian school, by contrast, believes that all punishment is evil, insofar as it adversely affects human happiness. It can only be justified, therefore, if it prevents greater unhappiness or harm. This is the basis of the theory of deterrence, in which the punishment is aimed at deterring the criminal from repeating his offences or deterring others from committing similar acts. Custodial sentences may be required to protect the public from further harm, particularly when the crimes involve violence. Sometimes these sentences are also justified as an expression of public condemnation and outrage. Recent thinking replaces the concept of retribution by the belief that sentences should be designed to assist in the rehabilitation of the criminal. To some extent these concepts are accepted in relation to young offenders, and are also reflected in the system of *parole (See also spent conviction). Legislators and judges have to bear in mind these concepts in laying down and applying sentences. They must also be aware of society's need for a humane system of criminal justice.

Clearly the extent to which crimes should be punished without proof of *intention or *recklessness (e.g. crimes of *negligence and *strict liability) depends on which theory of punishment one adopts. Parliament has created a large number of so-called regulatory offences (e.g. road traffic offences and offences relating to production of food), which usually do not involve moral guilt and are often punished despite the absence of *mens rea. It is also a matter of considerable controversy whether or not the criminal law should punish morally objectionable conduct that does not obviously harm anyone (e.g. obscene publications and various sex-related offences).

The European Convention on Human Rights (signed 1950) forbids the use of "inhuman or degrading" punishment; this prohibition is now part of UK law as a consequence of the *Human Rights Act 1998 (See degrading treatment or punishment; inhuman treatment or punishment). Similarly, the prohibition on the use of arbitrary punishment, as set out in Article 7 of the Convention, is now incorporated into the Human Rights Act. This provision makes unlawful the use of criminal penalties that are not prescribed by law.

punitive damages

See exemplary damages.

pur autre vie

See estate pur autre vie.

pur cause de vicinage

See profit a prendre; common.

purchaser

n.

1. (in land law) Any person who acquires land otherwise than by mere operation of law. Thus a purchaser may be a mortgagee or one to whom land is given or bequeathed as well as one who buys land for money or other consideration. A tenant in tail (whose interest devolves upon him automatically on his ancestor's death) is not a purchaser, nor is one who acquires title by *adverse possession.

2. A *buyer.

purchaser for value without notice

One who acquires land either in return for money or other consideration having monetary value or under a marriage settlement and who does not know and has no reason to know of an encumbrance that adversely affects the land. Such a purchaser is not bound by certain equitable encumbrances, such as restrictive covenants created before 1926 or the rights of beneficiaries under a trust in unregistered land. However, in order to take free of encumbrances, such a purchaser must act in good faith (bona fide), and, in any event, most equitable encumbrances are capable of registration (See registration of encumbrances) and a purchaser is deemed to know of any interest that is registered. Some encumbrances in registered land may be *overriding interests and will bind a purchaser whether he knows of them or not. Legal encumbrances (such as legal easements) always bind a purchaser of the land whether or not he knows of their existence.

purpose trust

A trust that is not for the benefit of a human beneficiary and is not a *charitable trust. Such trusts are normally invalid as there is no one to enforce them; exceptions that are valid include trusts for the benefit of individual animals, for the maintenance of individual graves, and for the saying of masses. The courts, however, may be willing to construe what appears to be a purpose trust (e.g. a trust for a sports ground to be used by employees of a firm) as a trust for human beneficiaries, and thus valid.

putative father

A man alleged to be the father of an illegitimate child. If the court accepts the mother's allegations, the man is declared the putative father and may be ordered to make periodical payments for the maintenance of the child by the Child Support Agency (See child support maintenance) or to pay a lump sum by the court. The putative father's name may also be entered on the child's birth certificate.

See also illegitimacy.

QBD

See Queen's Bench Division.

QC

See Queen's Counsel.

qualified acceptance

An *acceptance of a bill of exchange that varies the effect of the bill as drawn; for example, either by making payment by the acceptor dependent on fulfilling a condition or by accepting to pay part only of the amount for which the bill is drawn (a partial acceptance). A qualified acceptance is distinguished from a general acceptance, which assents without qualification to the order of the drawer. The holder of a bill may refuse to take a qualified acceptance; if he does not obtain an unqualified acceptance he may treat the bill as dishonoured by nonacceptance. If a qualified acceptance is taken (subject to an exception as to partial acceptances) and the drawer or an endorser has not authorized the holder to take a qualified acceptance or does not subsequently assent to it, such drawer or endorser is discharged from his liability on the bill.

qualified privilege

The defence that a statement cannot be made the subject of an action for *defamation because it was made on a privileged occasion and was not made maliciously, for an improper motive. Qualified privilege covers statements made fairly in situations in which there is a legal or moral obligation to give the information and the person to whom it is given has a corresponding duty or interest to receive it and when someone is acting in defence of his own property or reputation. Qualified privilege also covers fair and accurate reports of public meetings and various other public proceedings. The privilege attaching to professional communications between solicitor and client is probably qualified, rather than absolute.

Compare absolute privilege.

qualified right

A right set out in the European Convention on Human Rights that will only be violated if the interference with it is not proportionate (See proportionality). An interference with a qualified right that is not proportionate to the *legitimate aim being pursued will not be lawful.

Compare absolute right.

qualified title

Ownership of a legal estate in registered land subject to some exception or qualification specified in the register. If, for example, X applies to register his title to land and there is some possibility that part of it may already have been sold to another person, X's title may be registered subject to the rights of anyone having a better title to that part. The state's guarantee of good title does not protect the proprietor in respect of the specified qualification.

Compare absolute title.

qualifying child

For the purposes of the Child Support Act 1991.

See child support maintenance), a child who is under the age of 16, or under the age of 19 and receiving full-time education, and who has not been married. This definition applies only to "natural" children (i.e. children of both parties) or adopted children; it does not include stepchildren.

See also child of the family.

qualifying distribution

Formerly, a distribution of profits by a company on which *advance corporation tax had to be paid (See also imputation system). Redeemable securities issued as a bonus were not treated as qualifying distribution.

quango

n.

quasi-autonomous non-governmental organization: a body appointed wholly or partly by the government (but not constituting a department of government) to perform some public function, normally administrative or advisory and frequently involving the distribution of public moneys. Examples are the Competition Commission and the Student Loans Company.

quantum

n.

(of damages)

The amount of money awarded by way of damages.

quantum meruit

See quasi-contract.

quantum valebat

(Latin: as much as it was worth)

An action to claim the value of goods that were sold without any price having been fixed, when there was an implied promise to pay as much as they were worth.

quarantine

n.

A period of isolation of people or animals that have been in contact with a communicable disease. The period was originally 40 days (hence the name, which is derived from the Italian quarantina), but is now approximately the incubation period of the suspected disease. Quarantine is imposed, for example, by public health regulations relating to ships and aircraft or by orders made under the Animal Health Act 1981.

quarter days

25 March (Lady Day), 24 June (Midsummer Day), 29 September (Michaelmas Day), and 25 December (Christmas Day). Rents are sometimes made payable on these days.

quarter sessions

Originally, a *court of record with quarterly meetings of the *justices of the peace for a county. City and borough quarter sessions were presided over by the recorder sitting alone. In modern times quarter sessions became a court for the trial of offences triable on indictment, other than those that had to be tried at *assizes. Quarter sessions were abolished by the Courts Act 1971 and their jurisdiction is now exercised by the *Crown Court.

quash

v.

To invalidate a conviction made in an inferior court or to set aside a decision subject to judicial review.

See also quashing order.

quashing order

A discretionary remedy, obtained by an application for *judicial review, in which the High Court orders decisions of inferior courts, tribunals, and administrative authorities to be brought before it and quashes them if they are *ultra vires or show an *error on the face of the record. The claimant must apply for it within three months. As it is discretionary, a quashing order may be refused if alternative remedies exist. Originally called certiorari, it was renamed in 1999 under Part 54.1(2)(d) of the Civil Procedure Rules.

quasi-contract

n.

A field of law covering cases in which one person has been unduly enriched at the expense of another and is under an obligation quasi ex contractu (as if from a contract) to make restitution to him. In many cases of quasi-contract, the defendant has received the benefit from the claimant himself. The claimant may have paid money to him under a mistake of fact, or under a void contract, or may have supplied services under the mistaken belief that he was contractually bound to do so. In that case, he is entitled to be paid a reasonable sum and is said to sue on a quantum meruit (as much as he deserved). Alternatively, the claimant may have been required to pay to a third party money for which the defendant was primarily liable. The defendant's receipt of the benefit need not necessarily, however, have been from the claimant. It is enough that it was at the latter's expense, and he may therefore be liable in quasi-contract for money paid to him by a third party on account of the claimant.

quasi-easement

n.

A right in the nature of an *easement enjoyed over a plot of land for the benefit of another plot owned by the same person: it would be an easement if the two plots of land were owned and occupied by different persons. If the second plot (the quasi-dominant tenement) is sold, the purchaser will acquire a full easement under the Law of Property Act 1925 provided the two parcels were occupied by different persons immediately before the sale. For example A, the owner of Blackacre and Whiteacre, lets Whiteacre to B, who uses a track across Blackacre. If A then sells the freehold estate in Whiteacre to B, B acquires an easement of way over the track. If the plots are not separately occupied an easement may still arise in favour of the purchaser of the quasi-dominant tenement if the easement claimed is permanent in nature, identifiable from inspection of the land, and used by the grantor (vendor) at the time of the conveyance for the benefit of the quasi-dominant tenement.

quasi-entail

n.

An equitable interest in land that is in the nature of an *entailed interest but subsists only during the life of a specified person. For example, if a life tenant A settles his life interest on Band the heirs of his body with remainder to C, B acquires a quasi-entail. The interests of B, his issue, and C all cease on A's death.

quasi-judicial

adj.

Describing a function that resembles the judicial function in that it involves deciding a dispute and ascertaining the facts and any relevant law, but differs in that it depends ultimately on the exercise of an executive discretion rather than the application of law.

queen

n.

1. The sovereign if female (See Crown).

2. The wife of the sovereign (queen consort).

3. The widow of a sovereign (queen dowager).

Queen

n.

By the Royal Titles Act 1953, "Elizabeth II by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith". The Act empowers Her Majesty to adopt by proclamation such other style and titles as she may think fit.

See also Crown.

Queen's Bench Division

(QBD)

The division of the *High Court of Justice whose principal business is the trial of civil actions based upon contract or tort. It also has important appellate functions in relation to appeals from *magistrates' courts and certain tribunals and exercises supervisory jurisdiction over all inferior courts. The *Admiralty Court and *Commercial Court are part of the QBD.

Queen's Bench Masters

See Masters of the Supreme Court.

Queen's Counsel

(QC)

A senior *barrister of at least ten years' practice who has received a patent as "one of Her Majesty's counsel learned in the law". QCs are appointed on the recommendation of the Lord Chancellor and a list of new appointees is published annually on Maundy Thursday. In court they sit within the bar and wear silk gowns (hence they are also known informally as silks). If the monarch is a king these barristers are known as King's Counsel (KC).

Queen's evidence

Evidence given on behalf of the prosecution by an accused person who has confessed his own guilt and who then acts as a witness against his accomplices. Such evidence is generally considered less reliable than other evidence because the witness is likely to minimize his own role and exaggerate that of his accomplices. If it is not corroborated, the judge must warn the jury of the danger of convicting on the basis of this evidence alone.

See also corroboration.

Queen's Proctor

A solicitor who, under the direction of the Attorney General, gives legal advice. to the courts on difficult or disputed legal problems involving divorce and who intervenes, generally to prevent a divorce from being made absolute, in cases in which not all the material facts were before the court earlier. The office of Queen's Proctor is held by the *Treasury Solicitor.

Queen's Regulations

See service law.

Queen's Speech

(Speech from the Throne)

A speech prepared by the government and read by the Queen to Parliament (assembled in the House of Lords) at the beginning of a parliamentary session. It outlines the government's principal legislative and policy proposals for the session.

que estate

(Norman French: whose estate)

A claim to have acquired by *prescription an easement or *profit à prendre by virtue of the continuous use of the right both by the claimant and by those whose estate he has, i.e. those who owned the dominant tenement before him.

questioning of suspects

See interrogation; right of silence.

quia emptores

(Latin: whereas purchasers (the first words of the preamble))

A statute of 1290 (still m force today) that forbids the creation of any new tenures (i.e. subinfeudation) other than by the Crown. Owners of land wishing to transfer the property may only do so by selling it, not by creating a new lord-tenant relationship. This is the basis of the modern system of conveying estates. The leasehold (or landlord and tenant). relationship fell outside the feudal system of tenures (only one of which effectively now remains, namely the freehold tenure of socage) and so can still be freely created as outside the scope of the statute.

See feudal system.

quia timet

(Latin: because he fears)

A type of *injunction that is sought in order to restrain an anticipated wrong, the court will only grant such a remedy if the applicant can show that there is imminent danger of a substantial kind or that the injury, If It occurs, will be irreparable.

quicquid plantatur solo, solo cedit

See fixture.

quiet enjoyment

One of the obligations of a landlord, which is implied in every *lease unless specifically excluded. It entitles the tenant to possess and enjoy the land he leases without interference from the landlord or anyone claiming rights through the landlord.

quiet possession

Freedom from disturbance in the enjoyment of property. In contracts for the sale of goods, unless the seller makes it clear that he is contracting to transfer only the title that he or a third person has, there is an implied *warranty that the buyer will enjoy quiet possession of the goods. This warranty is broken not only If the seller and those claiming through him interfere with the buyer's quiet possession but also if the interference is by a third party claiming by virtue of a better title to the goods. The corresponding covenant upon the sale of land extends only to interferences by the seller and those claiming through him.

quit rent

See rentcharge.

quittance

n.

A document that acknowledges payment of a debt.

quorum

n.

1. The minimum number of people who must be present at a meeting in order for business. to be transacted. The required number is usually laid down in the *articles of association, constitution, or rules of the company or other body concerned.

See also general meeting.

2. Formerly, an indication in a Commission of the Peace of the particular justices (called justices of the quorum) required, at least one of whom had to be present in order for business to be done.

quota

n.

A limited quantity or number of goods or other items that are permitted by a state or body to be imported, exported, or manufactured. For example, in the fishing industry the EU sets national quotas for fishing catches (See common fisheries policy). In the practice of "quota hopping", British vessels are bought by nationals of other EU states (especially Spain and the Netherlands) in order to qualify as UK-based and therefore acquire the catch quotas allocated to the UK in respect of those vessels. Attempts by the UK to prevent this practice have been held as unlawful by the European Court of Justice (See fishery limits).

quotation

n.

A listing of a share price on the *Stock Exchange. A price may be obtained by accessing the Stock Exchange Automated Quotations System (SEAQ). A quotation can be cancelled or suspended if the company does not comply with the Rules of the Stock Exchange or if it becomes impossible to rely on market forces to arrive at a price for the securities (e.g. because of inaccurate accounts or manipulation of the market).

R.

Abbr. for Rex or Regina

(Latin: King or Queen)

Criminal prosecutions on indictment are brought in the name of the Crown, since a crime is viewed as a wrong against the public at large, or the state, represented by the monarch. Hence the formula R. v Defendant (the Crown versus the defendant).

Race Relations Board

A body constituted to enforce the Race Relations Acts 1965 and 1968. These Acts have been replaced by the Race Relations Act 1976 and the Race Relations Board by the *Commission for Racial Equality.

racial discrimination

Discrimination on the grounds of colour, race, nationality, or ethnic origins. It is dealt with by the Race Relations Acts of 1965,1968, and 1976. The 1965 Act created an offence of incitement to *racial hatred and made racial discrimination illegal in public places. The 1968 Act prohibits discrimination in respect of goods, services, facilities, employment, accommodation, and advertisements. The 1976 Act prohibits indirect racial discrimination, as well as discrimination in clubs with more than 25 members. It also prohibits the types of discrimination dealt with by the 1975 Sex Discrimination Act (See sex discrimination). The Race Relations (Amendment) Act 2000 extends coverage of the 1976 Act by prohibiting racial discrimination in the functions of the police and other public authorities not previously covered by that Act. It also places a general duty on public authorities to eliminate discrimination and promote racial equality. The *Commission for Racial Equality has the power to conduct formal investigations into complaints. Individual complaints in the field of employment are dealt with by *employment tribunals; other complaints are dealt with in specified county courts.


Date: 2015-01-29; view: 683


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