Lord Chief Justice 19 page

satisfied term

The expired period of an interest in land for a term of years created for a specific purpose that has been fulfilled. For example, when land under a *strict settlement is assigned to trustees for a term of years on trust to raise capital sums for members of the settlor's family, the term is satisfied when the sums have been raised. Under the Law of Property Act 1925, the estate or interest in the land ceases when the purpose is fulfilled. A term of years that has not expired although the purpose for which it was created has been fulfilled is called an outstanding term.

Saunders v Vautier

See rule in Saunders v Vautier.

scandalous statement

A statement that is irrelevant and abusive. When such a statement appears in statements of case or in an affidavit the court or a judge may order it to be struck out.

schedule

n.

An appendix to an Act of Parliament or other legislation that deals with points of detail supplementary to the main part.

scheme

n.

A document, normally approved by the court, that contains provisions for the management or distribution of property or for resolving a dispute concerning allegedly conflicting rights. For example, the court or the *Charity Commissioners may approve a scheme for the management of a charitable trust.

scheme of arrangement

1. An agreement between a debtor and his creditors to arrange the debtor's affairs to satisfy the creditors. The debtor usually agrees to such an arrangement in order to avoid *bankruptcy. If the arrangement is agreed when no *bankruptcy order has been made, it is governed primarily by the ordinary law of contract. However, if it is for the benefit of the debtor's creditors generally, or if the debtor is insolvent and it is for the benefit of at least three of his creditors, it is a *deed of arrangement and subject to statutory control unless it is a voluntary arrangement. An arrangement agreed after a bankruptcy order has been made is governed by the statutory provisions relating to bankruptcy (See voluntary arrangement).

2. An agreement between a company and its creditors or members when the company is in financial difficulties or to effect a *takeover. It must be approved by a majority in number (holding 75% in value) of those creditors or members at separate meetings and sanctioned by the court. All creditors or members involved in the scheme are bound by it, although the court can make special provision for those who dissent (Companies Act 1985). Agreements with company creditors can often be more conveniently concluded by *voluntary arrangement under the Insolvency Act 1986.

Schengen Agreement

The agreement between most member states of the European Union (but not the UK) to abolish internal border controls. It came into force on 26 March 1995.

See also passport.

scienter rule

See classification of animals.

Scottish Parliament

A body established by the Scotland Act 1998 (and operative from July 1999), having 129 elected members (Members of the Scottish Parliament; MSPs) and possessing limited primary legislative powers over such matters as health, school education, and forestry, as defined within the Act. It may alter the basic rate of income tax in Scotland by up to three pence in the pound. The Scottish Executive (the devolved government of Scotland) is formed by the party or parties with the majority of seats in the Parliament.

See devolution.

Scott Schedule

A document used in *official referee's business for giving *particulars when the claim is in respect of a large number of individual items (e.g. a landlord's claim for dilapidations). The Scott Schedule is divided into columns providing for (1) the consecutive numbering of the items; (2) the full description of each item; (3) the contention of each party against each item as to liability or amount; and (4) a column for the use of the court. It is named after a former official referee.

scuttling

n.

Sinking a ship (particularly with a view to making a fraudulent insurance claim) by making or opening holes in its hull to allow the entry of water.

seal

n.

Wax impressed with a design and attached to any document as a sign of its authenticity; alternatively, an adhesive wafer or anything else intended to serve the purpose of a seal may be used. Under the terms of the Law of Property (Miscellaneous Provisions) Act 1989,*deeds no longer require a seal in order to be validly executed.

SEAQ

(Stock Exchange Automated Quotations System)

See quotation.

search

1. v. To examine the registers maintained by HM Land Registry, the Land Charges Department, or the registers of local land charges during an *official search.

2. n. See power of search.

search before Crown Court

The searching of a person on the order of the Crown Court when that person has been ordered by the court to pay a fine or to pay money for some other reason (e.g. forfeiture of a *recognizance). Any money found on the person can be used towards payment of the sum due, any excess being returned.

search of ship

The right that a belligerent power has during wartime, under public international law, to search any ship of a neutral power on the high seas in order to discover whether it is carrying *contraband.

search order

An order made by the High Court (usually the Chancery Division) requiring a defendant to permit a claimant or his representatives to enter the defendant's premises to inspect or take away material evidence that the defendant might wish to remove or destroy in order to frustrate the claimant's claim, or to force a defendant to answer certain questions. Formerly (until 1999) known as an Anton Piller order, from the case Anton Piller KG v Manufacturing Processes (1976), the order is commonly used in cases where the copyright of video films or tapes or computer software is alleged to have been infringed. By statute the *privilege against self-incrimination does not apply.

search warrant

See power of search.

seat belt

A belt fitted in a motor vehicle, designed to restrict the forward movement of a driver or front-seat passenger in the event of an accident. All passenger vehicles with seating for fewer than 13 passengers and most four-wheeled goods vehicles registered after 1 January 1965 must comply with statutory regulations governing seat belts, although the details of these regulations vary according to the date when the vehicle was first registered. It is compulsory for all drivers and front-seat passengers in cars registered after 1964, light vans registered after 1966, and three-wheeler vehicles registered after 1969 to wear seat belts at all times when the vehicle is moving, and for back-seat passengers to wear seat belts when these are fitted, subject to certain exceptions. These exceptions are: (1) drivers carrying out any manoeuvre that includes reversing (passengers must still wear their seat belts during such manoeuvres); (2) drivers making local delivery or collection rounds in specially adapted vehicles (e.g. milkmen in milk vans); (3) anyone whose seat belt has become faulty during the drive or who has already arranged to have a faulty belt repaired; (4) anyone whose belt has locked on a steep hill; (5) anyone supervising a learner who is reversing; (6) certain categories of people with a special exemption certificate on medical grounds.

Any front-seat passenger over the age of 14 is responsible for wearing his own seat belt, but the driver of the car is responsible for ensuring that front-seat passengers under the age of 14 wear a seat belt. Children under the age of one must wear an approved child restraint. Over the age of one they can wear an adult seat belt, preferably with an approved booster cushion to raise them to a suitable height. Alternatively they can sit in the back seat fitted with an approved restraint. When more passengers are carried than there are seat belts available, the passengers who do not have seat belts do not break the law by not being restrained. Thus in a fourseater car with a fifth passenger sitting in the middle of the back seat, the middle back passenger does not break the law by being unrestrained. Failure to wear a seat belt carries a *fine at level 2 on the standard scale and may also be regarded as *contributory negligence in a claim for injuries sustained in a road traffic accident, leading to a reduction in damages.

sea waybill

A receipt for goods that contains or evidences the contract for the carriage of goods by sea and also identifies the person to whom delivery of the goods is to be made by the carrier in accordance with that contract. A sea waybill is not a *bill of lading: it is commonly used in container transport and, unlike a bill of lading, does not have to be produced at the port of discharge in order to obtain delivery.

seaworthy

adj.

1. Having at the start of a voyage the degree of fitness (as respects the ship, her crew, and her equipment) for that particular voyage that a careful owner might be expected to require of his ship.

2. The suitability of a particular ship to carry a particular cargo. Obligations relating to seaworthiness are implied by law in charterparties and imposed by the Hague Rules in bills of lading. A marine insurance policy incorporates by statute a warranty that the insured ship is seaworthy.

secession

n.

The action of breaking away or formally withdrawing from an alliance, a federation, a political or religious organization, etc. An example of secession is the attempted withdrawal of the Confederate States from the United States in the War of Secession (1861-65).

secondary evidence

Evidence that by its nature suggests the existence of better evidence and might be rejected if that better evidence is available (e.g. a copy of a document). Secondary evidence is generally admissible if the absence of the *primary evidence is explained.

secondary party

An *accessory to a crime.

secondary use

See shifting use.

Secretary of State

See minister.

secret profits

Profits made by an *agent during the course of his agency without the knowledge or authorization of his principal. The principal may require the agent to account for secret profits.

secret trust

A trust whose existence is not revealed in the document transferring the property to the person who is to be the trustee. It arises when a testator (or more rarely a settlor) gives property to someone on that person's express or implied promise to hold the property on trust for a third party. On the face of the document the transaction appears to be an outright gift, and the existence of a trust is not apparent. Such trusts are sometimes called fully secret trusts, to distinguish them from *half-secret trusts, but the term secret trust is sometimes used for both. Doctrinal difficulties have arisen with secret trusts because they appear to allow a will to be altered indirectly without the need to comply with the formalities of the Wills Act 1837, and their theoretical basis is unclear. Some recent cases have suggested that there is no conflict with the Wills Act, since the trust operates ordinary equitable jurisdiction.

Section 8 orders

Court orders under the Children Act 1989 that settle practical details concerning the child's care and upbringing in any family proceedings in which the child's welfare is a matter for consideration (such as matrimonial, wardship, or adoption proceedings). Section 8 orders, which replace the old access, custody, and care and control orders, include residence, contact, prohibited steps, and specific issues orders.

A residence order settles arrangements about where a child is to live. Such an order is typically made when parents live apart and cannot agree where the child is to live. Residence orders may also be made in respect of nonparents: in such a case, the order would confer parental responsibility on those in whose favour the order is made.

A contact order defines the extent and nature of the contact the child is to have with other individuals. A contact order cannot be made in favour of a local authority or while the child is in care.

A prohibited steps order prohibits certain specified steps (for example, taking a child abroad) being taken without the consent of the court and can be made against anyone regardless of whether he or she has parental responsibility for the child. A specific issue order deals with any specific issues concerning the child's upbringing, such as education or medical treatment.

Section 8 orders are only necessary when there is a dispute between the parents or others in relation to a child and are usually only made in respect of children up to the age of 16. In determining whether or not to make such an order, the court must treat the child's welfare as paramount.

section 30 order

(parental order)

An order of the court made under section 30 of the Human Fertilization and Embryology Act 1990, which provides for a child to be treated in law as the child of the parties to a marriage if the child has been carried by a woman other than the wife as a result of *human assisted reproduction. Application must be made within six months of the child's birth and the child's home must be with the husband and wife at the time of the application.

Section 37 investigation

An investigation of a child's circumstances ordered by the court to be carried out by a local authority when the court has cause for serious concern about the child's upbringing. The order may be made in any *family proceedings, for example when an application for a residence or contact order is being made by a parent (See section 8 orders). The local authority carrying out the investigation must consider whether it should apply for a *care order or a *supervision order or assistance for the child or its family or take any other action with respect to the child.

Section 47 enquiry

An enquiry carried out by a local authority in order to enable it to decide whether or not it should take any action to safeguard and promote the welfare of a particular child. The local authority is under a duty to carry out such an investigation if it has reasonable cause to suspect that a child is suffering or likely to suffer significant harm, or is the subject of an *emergency protection order, or is in police protection (See police protection order). As a result of its enquiries a local authority might decide that no action is required; alternatively, it may decide that the family in question is in need of support and provide the appropriate services, or it may apply for an emergency protection order, a *care order, a *supervision order, or a *child assessment order. If, in the course of its enquiries, a local authority is denied access to a child, it should immediately apply to court for an emergency protection order.

sector theory

A proposed basis for national claims to sovereignty over both the Arctic and Antarctica. The sector theory delineates a meridian line from the pole to the farthest extremity of the contiguous state's land mass. All territory within that sector is thereupon purported to be under the sovereignty of the claimant state. It should be noted that this theory is not universally recognized as the sole basis for claiming territory in these regions.

secure accommodation order

An order that allows a local authority to restrict the liberty of a child whom it is looking after by placing him in secure accommodation. Under the Children Act 1989 such orders may only be sought in respect of a child who has a history of absconding from unsecure accommodation and who, if he does abscond, is likely to suffer significant harm.

secured creditor

A person who holds some security, such as a mortgage, for money he has lent. If the debtor becomes bankrupt the creditor has a choice. He may surrender his security and claim the amount of the debt from the bankrupt's assets; he may realize or evaluate the security and claim any balance of the debt in excess of the value of the security; or he may rely on the security and not make any claim in the bankruptcy proceedings.

Compare unsecured creditor.

secure tenancy

A residential tenancy in which the tenant has statutory protection if he occupies the rented property as his home. It applies only if there is a certain kind of landlord, such as a local authority, the *Housing Corporation, or a *housing action trust. Certain tenants are excluded from protection; these include students, the occupants of almshouses, licensed premises, and accommodation for the homeless, and those renting accommodation on long leases or who have a *service tenancy.

If a secure tenancy is for a fixed term, the tenancy continues at the end of the term as a *periodic tenancy. A landlord can only terminate a secure tenancy by serving a notice on the tenant in a special statutory form and can only obtain possession with the tenant's consent or, if this is refused, by a court order. An order is granted only if the landlord has statutory grounds similar to those required in the case of an *assured tenancy. When the holder of a secure tenancy dies, his spouse or a member of his family who has lived with him for the past 12 months can succeed him as tenant. Under certain conditions, secure tenants have a right to buy their rented property, at a discount on the market value of the property, and with their landlord supplying a mortgage. The Housing Act 1988 contains provisions for the transfer of public-sector housing to the private sector and to housing action trusts.

See also introductory tenancy.

secure training order

See juvenile offender.

securities

pl. n.

Loosely, *stocks, *shares, *debentures, *bonds, or any other rights to receive dividends or interest. Strictly, the term should only be used for rights backed by some sort of security, as in the case of debentures.

Securities and Investment Board

(SIB)

The agency set up under the Financial Services Act 1986 to ensure that those who are engaged in investment business (including dealing in, arranging deals in, and managing investments and also giving investment advice) are honest, competent, and solvent. It is an offence, unless exempt, to carryon investment business without SIB authorization (which may be obtained directly or via membership of a recognized *self-regulatory organization or professional body). Those in contravention may be unable to enforce transactions, and investors who suffer loss may be entitled to compensation. The composition of the Board must reflect a proper balance between the interests of those who carryon investment business and the interests of the public.

Security Council

(of the UN)

See united nations.

security for costs

A sum payable by a claimant to a civil action as a condition of being permitted to continue with the action. The court has discretion as to whether or not to order security for costs and may exercise it only in four circumstances: (1) when the claimant is ordinarily resident out of the area of the jurisdiction; (2) when the claimant is suing on behalf of someone who will be unable to pay the defendant's costs if ordered to do so; (3) when the claimant's address is dishonestly not stated or incorrectly stated on the originating process; or (4) the claimant has changed his address during the course of the proceedings in order to evade the consequences of the litigation. A defendant may not be ordered to give security for costs. When security is ordered the claimant is usually ordered to pay a sum into court.

security of tenure

Statutory protection given to tenants that restricts landlords' rights to obtain possession. The conditions for obtaining possession vary according to the kind of tenancy, but a court order is usually required.

See agricultural holding; assured agricultural occupancy; assured shorthold tenancy; assured tenancy; business tenancy; long tenancy; protected tenancy; protected occupancy; secure tenancy; statutory tenancy.

sedition

n.

The speaking or writing of words that are likely to incite ordinary people to public disorder or insurrection. Sedition is a common-law offence (known as seditious libel if the words are written) if it is committed with the intention of (1) arousing hatred, contempt, or disaffection against the sovereign or her successors (but not the monarchy as such), the government of the UK, or either House of Parliament or the administration of justice; (2) encouraging any change of the law by unlawful means; or (3) raising discontent among Her Majesty's subjects or promoting ill-will and hostility between different classes of subjects. There must be an intention to achieve these consequences by violence and disorder. An agreement to carry out an act to further any of these intentions is a criminal *conspiracy.

seduction

n.

1. Enticement to have sexual intercourse. Until 1971 parents could sue a seducer for loss of services of their child, but this has now been abolished. It is an offence for a parent to cause or encourage the seduction of a daughter under the age of 16, the *age of consent.

2. The offence under the Incitement to Disaffection Act 1934 of maliciously and advisedly endeavouring to persuade any member of HM forces to abandon his duty or allegiance to the Crown.

seisin

n.

Possession of a freehold estate in land. Historically, availability of certain remedies for a landowner depended on being able to show seisin. In modern times it is unnecessary to distinguish between seisin and possession, the latter being the basis of most remedies available to a landowner.

See also unity of seisin.

select committee

A committee appointed by either House of Parliament or both Houses jointly to investigate and report on a matter of interest to them in the performance of their functions. Examples are the committees of the Commons that examine government expenditure or the activities of government departments and the nationalized industries, and the *Joint Committee on Statutory Instruments.

self-assessment

n.

A system enabling taxpayers to assess their own tax liabilities for the year. Modified tax forms, introduced with effect from the tax year 1996-97, contain an optional self-assessment section. Individuals who do not want to assess their own tax must complete the return with details of their taxable income, etc., and return it by 30 September in order for the Inland Revenue to calculate the tax due. Taxpayers who opt for self-assessment must fill in the relevant section and return their tax forms by 31 January. There are automatic penalties for late returns. Self-assessment mainly affects company directors, employees paying tax at the higher rate of 40%, and the self-employed.

self-build society

A *housing association whose object is to provide, for sale to or occupation by its members, dwellings built or improved principally by their own labour.

self-defence

n.

1. A defence at common law to charges of *offences against the person (including homicide) when *reasonable force is used to defend oneself, or one's family, or anyone else against attack or threatened attack. The scope of the defence often overlaps with the statutory right to use reasonable force to prevent a crime, but also extends to cases in which the statutory right is inapplicable (for example, when the attacker is for some reason not guilty of a crime). There is no rule of law that a person must retreat before acting in self-defence. If a person acting in self-defence mistakenly uses more force than was necessary in the circumstances and kills his attacker, he has no defence of self-defence (since the force was not reasonable) and the killing will therefore amount to murder, unless he can show that there was also *provocation. However, in deciding whether the force used was justified or reasonably thought to be justified, the jury must bear in mind the difficulty of quickly assessing the correct amount of force to be used.

See also general defences.

2. One of the very few bases for a legal use of force under international law. Under *Chapter VII (Article 51) of the United Nations Charter, the inherent right of self-defence is preserved. Reference to "inherent right" has promoted the belief that the pre-Charter right of self-defence in customary international law is specifically preserved by the Charter. However, the pre-existing right is arguably wider in scope than that allowed for by the terms of Article 51 and may arguably also allow for anticipatory self-defence.

See also self-help; use of force.

self-determination

n.

(in international law)

The right of a people living within a non-self-governing territory to choose for themselves the political and legal status of that territory. They may choose independence and the formation of a separate state, integration into another state, or association with an independent state, with autonomy in internal affairs. The systems of *mandates and trusteeship marked a step towards recognizing a legal right of self-determination, but it is not yet completely recognized as a legal norm. It is probably illegal for another state to intervene against a liberation movement and it may be legal to give assistance to such a movement.

See also erga omnes obligations.

self-employed

adj.

In business on one's own account, i.e. not engaged as an employee under a *contract of employment. Statutory employment provisions do not apply to the self-employed. A self-employed person may nevertheless be the employer of others.

self-help

n.

1. Action taken by a person to whom a wrong has been done to protect his rights without recourse to the courts. Self-help is permitted in certain torts, such as *trespass and *nuisance. A trespasser may be evicted provided only reasonable force is used. A nuisance may be abated (See abatement).

See also recaption.

2. Independent and self-directed action taken by an injured state against the transgressing state in order to gain redress. Until the middle of the 20th century the right of self-help was claimed by states as one of the essential attributes of *sovereignty. In the absence of an international executive agency, an injured state undertook on its own account the defence of the claim it was making. Forcible measures falling short of war might prove sufficient; failing these, war might be resorted to as the ultimate means of self-help. Since self-help was regarded at international law as a legal remedy, the results secured by it were recognized by the international community as a final settlement of the case. Since the establishment of the United Nations, self-help with regard to *use of force can only be legal in so far as it forms part of a legitimate claim to *self-defence. The remaining forms of self-help are countermeasures, such as *retorsion and *reprisals.

self-regulatory organization

(SRO)

A body whose members carryon investment business and regulate their own conduct. When its rules and practices ensure that its members are fit and proper persons, it may be recognized by the *Securities and Investment Board; its members then become authorized under the Financial Services Act 1986.

seller

n.

The party to a contract of *sale of goods who transfers or agrees to transfer ownership of the goods to the buyer. The term may also be used in the context of the transfer of the ownership of land, but a seller of land is more usually called a vendor.

Seller's Property Information Form

See conveyancing.

semiconductor topography

Etching on a computer chip otherwise known as a mask work or right: an *intellectual property right protecting the layout of a semiconductor chip or integrated circuit. Such rights are protected in the EU under directive 87/54.

semi-secret trust

See half-secret trust.

sending distressing letters

The finable offence, under the Malicious Communications Act 1988, of sending to someone a letter or some other article that conveys an indecent or grossly offensive message, a threat, or information that is false and known or believed by the sender to be false. Sending an indecent or grossly offensive article is similarly punishable. The sender must have aimed to cause distress or anxiety. If the material contains a threat, there is a defence similar to that available on a *blackmail charge.

sentence

n.

The judgment of a court stating the *punishment to be imposed on a defendant who has pleaded guilty to a crime or been found guilty by the jury. Before the sentence is imposed, the prosecution must present the judge with the accused's *antecedents and the defence may then make a plea in *mitigation of the sentence. If the probation officer wishes to make a report, this should be done before the defence makes its plea in mitigation (See social inquiry report). The judge may also obtain reports from nonlegal specialists (medical experts or social workers) on the mental, physical, social, or personal circumstances of the accused; if such reports are not immediately available, he may adjourn the case (and remand the accused) until they are obtained. Reports are desirable when the sentence may involve a *community rehabilitation order or when the defendant is facing his first prison sentence. The court must have reports before making a *community punishment order, when the offender is under 21 years old, or before attaching conditions for medical treatment to a community rehabilitation order. A report is no longer required when an adult is being sentenced to custody.

Date: 2015-01-29; view: 659