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Lord Chief Justice 14 page

racial harassment

See racist abuse; threatening behaviour.

racial hatred

Hatred against a group of people because of their colour, race, nationality, or ethnic or national origins. Hatred against a religion is thus not directly covered (See blasphemy). The Public Order Act 1986 contains six offences of stirring up racial hatred, which all require proof of words, behaviour, or material that are threatening, abusive, or insulting; there must be an *intention of stirring up racial hatred or the likelihood that this will happen. All offences are punishable with up to two years' imprisonment and/or a fine and require the Attorney General's consent before proceedings can be instituted.

The offences are as follows:

(1) Using *threatening behaviour or words or displaying threatening written material. This offence may be committed in a public or private place, but it is a defence for the accused person to prove (See burden of proof) that he was inside a dwelling and had no reason to believe that his behaviour or display would be seen or heard by someone outside that or another dwelling. Even if the intention to stir up racial hatred is not proved, the accused can still be guilty of the offence if he is proved to have either intended his behaviour or material to be threatening or been aware that it might be so. The offence does not extend to behaviour or written material that is used solely for inclusion in a radio or television programme. A constable may *arrest without warrant anyone he reasonably suspects is committing this offence.

(2) Publishing or distributing to the public threatening written material. It is a defence for the accused to prove that he was unaware of the material's contents and did not suspect that it was threatening.

(3) Presenting or directing the public performance of a play that involves the use of threatening words or behaviour. The actual performers do not commit or *aid and abet the offence, and recordings or broadcasts of plays can only involve the offence if outsiders attend. It is a defence for the accused to prove that he was unaware and had no reason to suspect that (a) the performance would involve use of the threatening words, or (b) the offending words were threatening, or (c) racial hatred would be likely to be stirred up during the performance.

(4) Distributing, showing, or playing a recording of visual images or sound to the public. It is a defence for the accused to prove that he was unaware of the recording's content and did not, and had no reason to, suspect that it was threatening.

(5) Providing, producing, or directing a radio or television programme involving threatening images or sounds. The offence is limited to broadcasts by satellite, community radio services, cable, pirate stations, and the like; it does not extend to BBC or IBA programmes. It is a defence if the accused can prove either of the following: (a) that he was unaware and had no reason to suspect that the offending material was threatening; or (b) that he was unaware and had no reason to suspect that (i) the programme would involve the offending material and that it was not reasonably practicable for him to remove the material or (ii) the programme would be broadcast or that racial hatred would be likely to be stirred up by it. Defence b(ii) is unavailable to those providing the broadcasting service. A broadcaster who uses the offending words can also commit the offence; defences (a) and b(ii) are available to him.

(6) Possessing threatening written material or a sound or visual recording with a view to its being distributed or broadcast, or (written material only) published, or (a recording only) shown or played. The offence does not extend to the BBC or IBA, and defence (a) above is available. The police are given entry and search powers in connection with the last offence.

Courts can order forfeiture of offending material after convictions.

The Protection from Harassment Act 1997 provides additional remedies for those harassed on racial grounds (See racist abuse); offenders may receive jail sentences of up to five years.

racist abuse

Harassment of someone as a consequence of the harasser's biased views of that person's racial origins. The Protection from Harassment Act 1997 provides that offenders who make others fear for their safety can be jailed for up to five years and/or be subjected to an unlimited fine; even when the harassment does not give rise to fear for safety, the offender faces up to six months in jail and/or a fine of up to £5000.

rack rent

The yearly amount of rent that a tenant could reasonably expect to pay on the open market; a rent representing the gross annual value of the holding.

Compare ground rent.

rape

Sexual intercourse (vaginal or anal) with a woman or another man without their *consent, as a result of physical force or threats, or because the person was unconscious or asleep, or because consent as to the nature of the act was obtained through fraud. It is also rape if the person is mentally incapable of understanding what is being consenting to. The defendant must be proved to have known that the person did not consent or have been reckless as to consent. Indifference by the defendant to the question of consent would constitute recklessness. If, however, there is reasonable doubt as to whether he honestly believed that the person was consenting he will be entitled to be acquitted, even if his belief was unreasonable. The maximum penalty for rape or attempted rape is life imprisonment, but this is rarely imposed; however, the Crime (Sentences) Act 1997 provides for a mandatory sentence of life imprisonment for those convicted for a second time of rape or attempted rape (See repeat offender).

A husband can be convicted for raping his wife, and a boy under the age of 14 is guilty of rape if he has intercourse without consent (formerly, boys of this age were deemed incapable of rape even if intercourse had taken place). An unsuccessful rape can be treated as an *indecent assault or as an assault occasioning bodily harm or causing grievous bodily harm, depending on the circumstances (formerly, a rape by a boy was treated in this way). A woman can be charged with rape as an accessory.

rape offence

Anyone of the offences of rape, attempted rape, aiding, abetting, counselling, or procuring rape or attempted rape, incitement or conspiracy to rape, and burglary with intent to rape. In cases where the defendant to a rape offence pleads not guilty, the Sexual Offences (Amendment) Act 1976 limits the right to ask questions about the alleged victim's sexual experiences. It also prohibits (subject to special leave of the court) the reporting of details about the case that might enable members of the public to identify the woman. If such details are published, the publishers may be fined.

rapporteur

An official of the European Parliament or of some other EU body whose job is to help discussions progress in connection with a particular matter and to prepare a report on it.

rates

pl. n.

Local taxes charged on property by local authorities to pay for the services they provide. The *community charge replaced domestic rates (i.e. those payable by private householders) in April 1990 in England and Wales (in 1989 in Scotland), but was itself replaced by the *council tax in April 1993. Owners of business and other nondomestic property remain liable to pay nondomestic rates based on a Uniform Business Rate (UBR), fixed by central government, and a local valuation of the property.

ratification

1. Confirmation of an act. If, for example, X contracts with Y as agent for Z, but has in fact no authority to do SO, Z may nevertheless adopt the contract by subsequent ratification. An unenforceable contract made with a minor can become enforceable if the minor ratifies the contract when he comes of age.

2. (in international law) The approval of a *treaty, usually by the head of state (or by the head of state and legislature). This takes place when documents of ratification are either exchanged or deposited with a named depositary. Normally a treaty states expressly whether it will bind a party as soon as it is signed by that party's representative or whether it requires ratification. The Vienna Convention on Treaties (1969) provides that when a treaty does not specify whether or not ratification is required, reference will be made to the party's intention. Performance of a treaty may amount to implicit ratification.

3. (in company law) A resolution of a general meeting sanctioning some irregularity in the running of a company. Some irregularities cannot be sanctioned, such as acts that are *ultra vires or a *fraud on the minority.

ratio decidendi

(Latin: the reason for deciding)

The principle or principles of law on which the court reaches its decision. The ratio of the case has to be deduced from its facts, the reasons the court gave for reaching its decision, and the decision itself. It is said to be the statement of law applied to the material facts. Only the ratio of a case is binding on inferior courts, by reason of the doctrine of *precedent.

rave

An assembly, unlicensed by the local authority, of 100 or more people, partly or entirely in the open air, at which amplified music is played during the night and is likely to cause serious distress to local inhabitants. Under the Criminal Justice and Public Order Act 1994 a police officer of at least the rank of superintendent may issue directions to participants to leave if it is reasonably believed that two or more people are preparing for a rave or ten or more people are waiting for one to start or are already participating in an event that will attract 100 or more participants. A *summary offence is committed by anyone (excluding the occupier, a member of his family, and an employee or agent) who fails to leave as soon as reasonably practicable or who re-enters within seven days; it is punishable by up to three months' imprisonment and/or a fine on level

4. A uniformed police officer may arrest without warrant anyone refusing the leave. He may also stop and turn back within five miles of a rave anyone whom he believes to be travelling to the rave. Failure to comply is a summary offence punishable by a fine on level

3. There are supplementary powers of entry for the purpose of clearing the land and seizing and removing vehicles and sound equipment. Any sound equipment under the control of a person convicted under these provisions may be made the subject of a *forfeiture order.

real

adj.

1. Relating to land.

See also equitable execution.

2. A person appointed under the terms of a *debenture or by the court to realize assets charged and apply the proceeds for the benefit of those entitled. Notice of appointment must be given to the Companies Registry and must appear upon business documents. The receiver may have power to manage the company.

See also administrative receiver; official receiver.

receiving

Acquiring exclusive control of stolen property or joint possession of it with the thief or another receiver. Thus if someone merely examines stolen goods in the presence of the thief, he is not guilty of receiving. Before 1968 this was an offence in itself, but it is now one form of the wider offence of *handling stolen goods.

receiving order

Formerly, a court order made during the course of *bankruptcy proceedings that placed the debtor's property under the control of the *official receiver or of a *trustee in bankruptcy.

See bankruptcy order.

reciprocity

The principle that one will treat someone in a particular way if one is so treated by them. This is relevant under EU law in relation to agreements that the EU has with non-Ell countries, particularly in relation to *public procurement and free trade.

recitals

pl. n.

See deed.

recklessness

A form of *mens rea that amounts to less than *intention but more than *negligence. Many common-law offences can be committed either intentionally or recklessly, and it is now common for statutes to create offences of recklessness. Recklessness has normally been held to have a subjective meaning of being aware of the risk of a particular consequence arising from one's actions but deciding nonetheless to continue with one's actions and take the risk. However, the House of Lords has ruled that, in the context of *criminal damage, recklessness also has an objective meaning of giving no thought or being indifferent to an obvious risk. This definition makes the concept of recklessness far stricter and brings it very close to the traditional definition of negligence. In most cases the subjective definition applies to common-law offences and the objective definition to statutory offences. There are, however, dicta in the Court of Appeal applying the objective definition of recklessness to some common-law offences (e.g. rape).

recognition

(in international law)

1. The process by which one state declares that another political entity fulfils the conditions of statehood (See state) and that it is willing to deal with it as a member of the international community. Recognition usually takes place when a new state comes into being. Some authorities believe that recognition is constitutive, i.e. it is one of the conditions that create a state in international law (See constitutive theory). Most, however, regard it as being merely declaratory, i.e. an acceptance of a fact that already exists (See declaratory theory).

2. Acceptance of a government as the legal representative of the state. This may be de facto or de jure. The distinction is a fluid one, often involving a political element, since international law allows states discretion as to whether or not to accord recognition and of which kind. The according of recognition of either kind is usually an acknowledgment that the government recognized has effective control, but the decision to give merely de facto recognition may reflect a wish not to show approval of the nature of the government concerned (and at the same time to be able to continue to give de jure recognition to the ousted government). The significance of the distinction (which is of little legal consequence) therefore depends on the intention of the recognizing government. Recognition may be express or implied (for example, by entering into diplomatic relations with a new government).

See also estrada doctrine; tobar doctrine.

For purposes of English municipal law, the question of whether or not a state is recognized is sometimes relevant. Thus: (1) only a recognized state is entitled to *sovereign immunity from jurisdiction; (2) an unrecognized state cannot sue in English courts; and (3) when a foreign law is to be applied under the principles of *private international law, this can only be the law of a recognized state or subsidiary body set up by it. A Foreign and Commonwealth Office certificate stating' that an entity is or is not recognized by the British government is usually taken as conclusive evidence in the courts. Since 1980 Britain has abandoned the practice of recognizing governments - only states are now the subject of express recognition.

recognition issue

A trade dispute as to whether a particular trade union should be recognized by an employer as having the right to negotiate terms and conditions of employment on behalf of its members among the employer's workforce.

recognition procedure

(in employment law)

A statutory procedure introduced by the Employment Relations Act 1999(operational from 6 June 2000) by which a trade union can secure the legal right to enter into *collective bargaining with an employer. As well as the benefit the trade union and its members secure from the fact of bargaining, a recognized trade union becomes entitled to all employment rights bestowed by employment legislation on recognized trade unions. The new procedure enables unions to seek statutory recognition for collective bargaining if they fail to secure a voluntary agreement with the employer concerned.

The statutory procedure is given in Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992. Statutory recognition can be requested by one or more independent trade unions, in the first instance from the employer. Such an approach (often with the assistance of *ACAS) may result in a voluntary agreement being made between the parties. Following a failure to arrive at a voluntary agreement a trade union may then refer the request to the *Central Arbitration Committee (CAC). If satisfied that the trade union has at least 10%membership among the group of workers it is seeking to represent, the CAC will then proceed to establish the viability of the union's request.

The CAC must satisfy itself that the proposed bargaining union is an appropriate unit and take into account such factors as the need for effective management, the relative views of the parties to the dispute, the existing national and local arrangements for bargaining, and the need to avoid fragmentation of existing bargaining units. Crucially the CAC must determine that the necessary support exists at the workplace for collective bargaining. In determining this issue a ballot may be held. However, if the CAC is satisfied that a majority of the workers in the unit are currently members of the applicant union, it may decide that a ballot is not needed. If a ballot is held (and it must be held if less than 50%of the workers are union members), the result must show that a majority of those voting support the union and that those voting in favour constitute at least 40% of the workers in the bargaining unit. The CAC then issues a declaration that the union is entitled to recognition on the basis either that a majority of the workers are union members or that a majority support collective bargaining. When this declaration has been made, the parties are given 30 days to negotiate a method of conducting collective bargaining. Failure to arrive at an agreement will result in a further reference to the CAC. If after a further period of arbitration no voluntary agreement can be reached by the parties, the CAC is empowered to specify a method for collective bargaining. This method then takes effect as a legally binding agreement between the parties.

The new statutory procedure also contains provisions for the derecognition of a trade union. Where recognition has been secured via the statutory route, distinct procedures are laid down for the removal of such recognition. Normally derecognition is not possible within the first three years of any award of recognition arising from a voluntary agreement. However, special procedures exist for cases in which the relevant employees fall below 21 in number, the employees request derecognition, the employer requests derecognition, and the union ceases to be independent.

recognizance

An undertaking by an offender (or by sureties on his behalf) to forfeit a sum of money under certain conditions. Recognizances may be entered into to answer to judgment, i.e. to appear before the court for pronouncement of judgment on a specified date. This procedure may be appropriate if the accused wishes to appeal against conviction. Alternatively, recognizances may be used m addition to or in place of any other sentence or judgment, the offender being obligated to keep the peace and be of good behaviour. Magistrates have wide powers of binding over upon recognizances under the Statute of Westminster 1361 (which enacted into statute the laws of justices of the peace) and the Magistrates' Courts Act 1980; they may punish failure to comply with the order with imprisonment.

See keeping the peace.

reconciliation

The coming together of estranged spouses. It is the general policy of the law to encourage reconciliation, and there are special organizations to help with this. Solicitors in divorce cases must certify whether or not they have discussed the possibility of reconciliation with their clients, and proceedings may be adjourned if the court feels there is a chance of reconciliation. When divorce cases are heard under the *special procedure the court will have no opportunity to Judge whether there is a chance of reconciliation. If spouses have lived together for more than six months after separation in cases of divorce applications based on adultery, unreasonable behaviour, desertion, or separation, there is a presumption of law that they have become reconciled and a divorce is refused.

reconstruction of a company

The transfer of the property of a registered company in a *voluntary winding-up to another company in exchange for shares in that company to be distributed among members of the company in liquidation. The liquidator effects the reconstruction with the authority of a *special resolution (members' voluntary winding-up) or the consent of the court or *liquidation committee (creditors' voluntary winding-up). A member who does not agree to the arrangement can require the liquidator to buy his shares.