Lord Chief Justice 20 page

Sentence must be pronounced in open court by the presiding judge and is almost always pronounced in the presence of the accused. The sentence may be altered (or rescinded) within 28 days by the trial court, and the Crown Court also has a further (common-law) power to postpone sentence for more than 28 days when circumstances require this (e.g. when disqualifying from driving under the totting-up provisions (*totting up), if the driving licence is not available). There is a power to postpone sentence for up to six months (See deferred sentence).

Courts have very wide discretionary powers of sentencing in all crimes (except murder and treason). The penalties prescribed by law are maximum penalties, to be imposed in the most serious cases, and the judge must decide what is the appropriate sentence in each case. However, the Crime (Sentences) Act 1997 introduces automatic minimum sentences for second-time violent offenders (See repeat offender) and for persistent burglars (See burglary) and dealers in hard drugs (See controlled drugs). Judges may give a lesser sentence for burglary and drug dealing if the court considers the minimum would be unjust in all the circumstances.

See also custody.

Apart from imprisonment (which may be a *concurrent sentence or a *suspended sentence) and *fines, the courts can impose community rehabilitation orders, community punishment orders, *curfew orders, confiscation orders, and *hospital orders, as well as an absolute or conditional *discharge. (For the sentencing of young offenders, See juvenile offender.) Magistrates' courts have less extensive powers of sentencing, but may sometimes, upon convicting an offender, remit him to the Crown Court for sentence (e.g. when he has been tried summarily for an offence triable either way). They are not empowered to sentence first offenders to imprisonment unless satisfied there is no other appropriate way of dealing with them. There is usually a right of appeal against sentence to the *Court of Appeal. The *Attorney General may refer cases to the Court of Appeal (with its permission) when Crown Court sentences appear unduly lenient. The Court of Appeal may then quash the sentence and substitute any sentence that they think appropriate and that the Crown Court had power to pass.

See also nulla poena sine lege.

separate trials

See joinder of defendants.

separation

n.

See judicial separation order; living apart.

separation agreement

An agreement between husband and wife releasing each other from the duty to cohabit. Such an agreement will only be valid (subject to the ordinary rules of the law of contract) if the marriage has already broken down; it will be void (contrary to public policy) if they enter into it to provide for the contingency that the marriage may break down at some future date. Separation agreements often contain further clauses (such as nonmolestation clauses, maintenance clauses, dum casta clauses) or an agreement not to bring other matrimonial proceedings based on past conduct ("Rose v Rose clauses"). Under the Family Law Act 1996 such orders will not be granted unless the interests of the children are settled first. A spouse may also relinquish his rights or powers in relation to his children, but the court has an overriding discretion not to enforce such provisions if they are not for the children's benefit. A separation agreement in writing may be a *maintenance agreement and governed by the Matrimonial Causes Act 1973.

separation of powers

The doctrine that the liberty of the individual is secure only if the three primary functions of the state (legislative, executive, and judicial) are exercised by distinct and independent organs. It was propounded by Montesquieu (De l'Esprit des Lois, 1748), who regarded it as a feature of the UK constitution. In fact, however, while the judiciary is largely independent, the legislature and the executive depend on one another and their members overlap. The doctrine had a great influence over the form adopted for the constitution of the USA and many other countries.

separation order

See judicial separation order.

sequestration

n.

A court order in the form of a writ to (usually four) commissioners (sequestrators), ordering them to seize control of a person's property. The order may be made against someone who is in *contempt of court because he has not complied with a court order (such as an injunction). The property is detained until he complies with the order.

Serious Fraud Office

(SFO)

A body established in 1987 to be responsible for investigating and prosecuting serious or complex frauds. The *Attorney General appoints and superintends its director. The director is empowered to investigate any suspected offence that appears to involve serious fraud and may employ any suitable person to help in the investigation. Serious and complex fraud cases can go straight to the Crown Court without *committal for trial. That court can hold *preparatory hearings to clarify issues for the jury and settle points of law.

SERPS

See State Earnings Related Pension Scheme.

servant

n.

An *employee.

service

n.

1. The delivery of any document relating to court proceedings. Service may be made by physically handing the document to the person concerned (See personal service) or it may be delivered to the *address for service supplied by that person (See also substituted service). Once the document has been formally issued by the court, it must be served within 12 months (or, in the case of claim forms, four months) unless the court allows this period to be extended. In the case of certain motoring offences, such as speeding and careless and inconsiderate driving, the police must serve a summons within 14 days unless the accused was warned at the time of the offence that he might be prosecuted or unless they serve a *notice of intended prosecution within 14 days.

2. (contract of service)

See contract of employment.

service court

A court with jurisdiction over service personnel, who are subject to the services' discipline Acts, which are renewed every five years.

See also service law.

service law

The law that regulates the conduct of members of the armed forces. It consists of naval law, military law, and air-force law (military law is the branch relating to the army, but the expression is frequently used to describe all three branches). Its primary sources are the Naval Discipline Act 1957, the Army Act 1955, and the Air Force Act 1955; supplementary sources are Admiralty Instructions and the Queen's Regulations both for the Army and for the Royal Air Force. The three Acts concerned require annual renewal. Every fifth year an Armed Forces Act enables them to continue in force for one year and provides that for each of the following four years they may be continued in force by an Order in Council that has been approved by resolution of each House of Parliament (the last such Act was the Armed Forces Act 2001, which applies from 11 May 2001). The purpose of this procedure (which did not apply to the Naval Discipline Act 1957 until this was provided by the Armed Forces Act 1971) is to ensure that Parliament has an annual opportunity of debating matters relating to the armed forces.

Service law is a specialized code of criminal law. Its essential concern is the maintenance of discipline and it embodies a variety of offences (including *desertion, malingering, and insubordination) that have no counterpart in the ordinary criminal law. Since 1 April 1997 it has been an offence against service law to refuse to take a service compulsory drug test; in addition, the service authorities have been empowered to take fingerprints or DNA samples from those convicted of service offences, for criminal records purposes. Commanding officers have powers of dealing with minor offences summarily and, with effect from 2 October 2000, a member of the armed forces may appeal against the commanding officer's finding and/or award to a Summary Appeal Court. The Summary Appeal Court, consisting of a judge advocate and two officers, may uphold, quash, or vary the commanding officer's finding or award. But the tribunals primarily responsible for the trial and punishment of offences are the *courts martial. Service law applies to a member of the armed forces wherever he may be. In the UK he is subject both to service law and to the ordinary criminal law. When he is not in the UK, the ordinary criminal law does not in general apply to him; the relevant Acts therefore provide that it is an offence under service law for any serviceman to do anything that constitutes an offence under the ordinary criminal law. The effect of this general provision is to create, in the case of a member of the armed forces who is in the UK, a duality of offences. If, for example, a soldier in the UK steals, he commits an offence against both the ordinary criminal law and service law. He cannot, however, be punished under both.

Although service law applies primarily to members of the armed forces, certain classes of civilians are also subject to it. These include civilians employed outside the UK within the limits of the command of any officer commanding a body of the regular forces and the families of members of the armed forces residing with them outside the UK. The inclusion of the latter has had the effect of extending the jurisdiction of courts martial to cases with which they are manifestly not equipped to deal. This has led to the establishment of *standing civilian courts.

service out of the jurisdiction

Service (*service) of a claim form or other originating *process outside England and Wales. Permission of the court is required, which will only be granted in a limited number of situations specified by *rules of court. In general, some particular connection must be shown between the defendant or the subject matter of the proceedings and the jurisdiction of the English courts. If the defendant is domiciled in a member state of the EU, the Civil Jurisdiction and Judgments Act 1982 normally requires him to be sued in the courts of his domicile, but the court's permission is not required to serve originating process against such a defendant in respect of cases where the English courts have jurisdiction.

service tenancy

A tenancy in which the landlord is also the tenant's employer and the premises were let as a condition of that employment. Although such a tenancy may be an *assured tenancy, the landlord can apply to the county court for possession when he ceases to employ the tenant. The court has a discretion whether or not to grant possession in this case.

servient tenement

Land that is subject to an encumbrance, such as an easement, profit à prendre, or restrictive covenant, created for the benefit of other land, called the dominant tenement.

servitude

n.

A restriction upon the exercise of a state's sovereignty over its territory. For example, in 1856 Russia agreed by treaty not to fortify its own islands in the mouth of the Gulf of Bothnia.

set-off

n.

1. A monetary cross-claim that is also a defence to the claim made in the action by the claimant. In modern practice, any claim by a defendant to a sum of money (whether of an ascertained amount or not) that is also used as a defence may be set off against the claimant's claim. The importance of the distinction between a set-off and a *counterclaim arises principally in relation to *costs when both parties are successful. If the defendant's plea is a set-off, the claimant will recover the amount of his claim less the amount set off, and in the county court, the costs will normally be calculated in relation to the net sum recovered. If the defendant's plea is a counterclaim, the claimant will recover the costs of the claim and the defendant the costs of the counterclaim, subject to the court's overriding discretion as to costs.

2. The deduction of monies owed against sums due to be paid. Many commercial contracts lawfully contain a clause prohibiting set-offs or counterclaims. However, in the absence of such a clause the right to set off sums in this way is permitted.

setting aside

An order of a court cancelling or making void some other order or *judgment or some step taken by a party in the action.

setting down for trial

Formerly, the final stage of the interlocutory (interim) proceedings in an action begun by writ in the High Court. Under the *Civil Procedure Rules, this is now dealt with through the procedure for *allocation for trial.

settled

adj.

Ordinarily resident in the UK and not subject under immigration law to any restriction on length of stay there.

See British citizenship; immigration.

settled land

Land that is the subject of a *settlement under the Settled Land Act 1925, i.e. land in which two or more beneficial interests exist in succession to one another or land that is subject to certain other fetters on the owner's powers. No such settlements can be created after 1996; most of the arrangements described below can now exist as trusts of land (*trust of land) with the exception of *entailed interests, which can no longer be created. Existing settlements continue until coming naturally to an end. The categories were as follows.

(1) Land held in trust for any persons by way of succession; for example, in trust for A for life then B for life then C in fee simple.

(2) Entailed interests.

(3) Land owned subject to a *gift over on a specified event.

(4) Land owned for a *determinable interest.

(5) Land conveyed to a person under 18 years (a minor cannot own or convey a legal estate in land).

(6) Land in which a future interest may come into possession on a specified event. For example, when land is left to A and B provided they respectively attain the age of 18, the elder is absolutely entitled to a half share on reaching 18 but may become entitled to the whole of the land absolutely if the younger dies during minority.

(7) Land charged voluntarily (i.e. without *consideration) or in consideration of marriage or by way of family arrangement with payment of any rent charge or capital sum; for example, when the owner charges his land with payment of income to his wife during her life or widowhood.

A settlement made during the life of the settlor was effected by a trust instrument and a vesting deed. The trust instrument declared the beneficial interests in the land and appointed two or more individuals, or a trust corporation (e.g. a bank), as trustees of the settlement (See Settled Land Act trustees). The vesting deed transferred the legal estate in the settled land to the immediate beneficiary; it also had to identify the trustees of the settlement. A will that effected a settlement constituted the trust instrument; the legal estate devolved upon the testator's personal representatives on trust to vest it, by deed or *assent, in the immediate beneficiary. When the legal estate could not be transferred to the immediate beneficiary (e.g. because he was under 18), it had to be vested in a *statutory owner.

The purpose of the Act was to balance the protection of beneficiaries with future interests against the principle that the person immediately entitled in possession should not be prevented by the existence of future interests from prudently managing and dealing with the land. Thus the Act conferred on the immediate beneficiary powers to sell the land at the best price reasonably obtainable, to exchange it for other land, and to grant certain leases (up to 50 years, or 100 years for mining, or 999 years for building or forestry). These transactions overreached (*overreaching) the interests of the subsequent beneficiaries, who acquired corresponding interests in the capital money or income arising from them. The immediate beneficiary could also mortgage the land to raise money to payoff other encumbrances, to give equality of value on an exchange, and to pay for certain improvements. He could insist that the cost of certain improvements (such as rebuilding the *principal mansion house and installation of drainage and electricity) be paid out of capital. His statutory powers could be extended by the terms of the settlement but could not be excluded or restricted. The Act imposed on the immediate beneficiary, in exercising these powers, the duties of a trustee for all parties having a beneficial interest in the land. The beneficiary thus had a dual role. When the immediate beneficiary sold or otherwise disposed of settled land, the vesting deed formed the basis of his title. The purchaser was not concerned with the interests of beneficiaries whose rights are overreached (See curtain provisions) but had to pay the price to the trustees of the settlement or, at the direction of the immediate beneficiary (the tenant for life or the person exercising the powers of the tenant for life), into court.

Settled land Act trustees

(trustees of the settlement)

Two or more individuals or a trust corporation (such as a bank) who are trustees of *settled land. Their primary function is to receive *capital money arising on a sale or other disposition of the land by the immediate beneficiary and to hold it in trust for those entitled under the settlement. Their consent is also necessary before the immediate beneficiary can validly exercise certain of his statutory powers; for example, to sell the *principal mansion house or timber cut from the land if the settlement so requires or to vary rights (such as easements) over other land that benefit the settled land.

The trustees are generally appointed by the trust instrument but must be named in the vesting deed. If no trustees are appointed, the Settled Land Act 1925 provides that they will be either (1) trustees having a power of sale of other land comprised in the settlement and held on similar trusts; (2) trustees having a future power of sale of the settled land; (3) persons appointed by the beneficiaries if they are of full age and entitled to dispose of the whole settled estate; or (4) the settlor's personal representatives, when the settlement is effected by will. Trustees can also be appointed by the court.

settlement

n.

A disposition of land or other property, made by deed, will, or very rarely by statute (as in the Duke of Marlborough Annuity Act 1706), under which trusts are created by the *settlor designating the beneficiaries and the terms on which they are to take the property. Settlements are of many different kinds; for example, *marriage settlements, *strict settlements, *voluntary settlements, and, particularly, settlements under the Settled Land Act 1925(See settled land). All settlements of land now take effect (since 1997) as trusts of land (*trust of land).

settlement of action

The voluntary conclusion of civil litigation by agreement of the parties. Settlement may be made at any time and is usually followed by the claimant filing a *notice of discontinuance. No particular formality must be followed, but if money is claimed by a party under a disability (e.g. a minor or a mental patient), a settlement is not valid (in so far as it relates to his claim) without the approval of the court.

See also structured settlement; tomlin order.

settlor

n.

A person who creates a *settlement. In a broad sense the term includes testators; in a more restricted sense it signifies one who settles property during his life.

several

adj.

Separate (in contrast to 'joint'), as in *joint and several, *several tenancy.

several tenancy

Ownership of land by one person absolutely, not jointly or in common with another.

Compare joint tenancy; tenancy in common.

severance

n.

1. The conversion of an equitable *joint tenancy in land into a *tenancy in common. Severance may be effected, for example, by mutual agreement of the joint tenants, by the bankruptcy of one of them, by sale of the land or of one joint tenant's interest, or by written notice to the other joint tenants. It is not possible to sever a legal joint tenancy, since a tenancy in common cannot exist as a legal estate. Any words in a conveyance of land to two or more people that show an intention that they take separate shares will be construed as words of severance creating an equitable tenancy in common, rather than a joint tenancy.

2. The separation of the good parts of a contract from the bad, which are rejected. The doctrine of severance applies to any contract which contains clauses that are void by statute or common law, or even, in some cases, illegal, provided there are no *public policy grounds against severing (See void contract). The courts will, if possible, save the contract from total invalidity by severing the offending part and the rest of the contract will stand under what is known as the "blue pencil" test. When little remains after severance, the whole contract terminates. Many commercial contracts contain a clause stating that void provisions may be severed.

3. An order amending an *indictment so that the accused is tried separately on any count or counts of the indictment.

severance pay

Money to which an employee is entitled at common law upon the termination of his contract of employment; for example, pay in lieu of notice, when he is dismissed with inadequate notice or none. An employee dismissed before the expiry of a fixed-term contract can claim damages in the courts to compensate him for the loss of pay he would have earned during the rest of the term, unless he was dismissed for a breach of contract entitling the employer to dismiss him.

See also redundancy payment; unfair dismissal; wrongful dismissal.

severe disablement allowance

A noncontributory tax-free benefit formerly payable to those unable to work due to long-term sickness or disablement and who had not enough national insurance contributions to claim *incapacity benefit. The claimant had to show that he had been continuously incapable of work for the preceding 28 weeks. This benefit has been abolished by the Welfare Reform and Pensions Act 1999 and no new claims can be made.

severe mental impairment

See arrested development.

sex change

A change in a person's sexual characteristics, usually by means of surgical operation and hormone treatment. For the purposes of marriage, the law does not recognize the validity of such a change; sex is deemed to be determined at birth and cannot be changed. For the purposes of employment, however, English law now recognizes the validity of a sex change (See gender reassignment).

See also transsexual.

sex discrimination

Discrimination on the ground of sex under either the Sex Discrimination Act or the Equal Pay Act. The Sex Discrimination Act has a wider definition of sex than the Equal Pay Act in that it includes within its scope discrimination on grounds of transsexualism (See gender reassignment) and (probably) sexual orientation. The Equal Pay Act 1970 forbids having different terms for men and women in their contracts of employment (See also equal pay). The Sex Discrimination Act 1975(as amended by the Sex Discrimination Act 1986) goes further, prohibiting discrimination when offering a contract of employment and before entering into such a contract. It also prohibits discrimination in employment on the grounds of marital status and discrimination in partnerships with six or more partners, trade unions, qualifying or authorizing bodies, vocational training, and education. The Act provides for special exceptions; for example, when male or female characteristics are a genuine requirement of the job. It is also unlawful to victimize someone who has complained of illegal discrimination. The Act covers both direct and indirect discrimination. The latter includes making conditions that apply to both sexes but in such a way that, for instance, the proportion of women who can fulfil the conditions is considerably less than men. An example would be insisting on a record of continuous service for promotion, which is far more difficult for women to satisfy because of pregnancy and motherhood. The Acts are reviewed by the *Equal Opportunities Commission and enforced by *employment tribunals.

Restrictions preventing women from working where they wish, including the right to work underground, were removed by the Employment Act 1989.

sex offenders

See sexual offence.

sexual intercourse

The penetration of the vagina by the penis. For the purposes of sexual offences involving intercourse, penetration need only be slight and rupture of the hymen or ejaculation is not required.

See also unlawful sexual intercourse.

sexual offence

Any crime that involves sexual intercourse or any other sexual act. The main crimes in this category are *rape, *buggery, *incest, *indecent assault, *indecent exposure, *gross indecency, and *abduction (See also child abuse). The Sex Offenders Act 1997 created a national register of sex offenders; the names of those convicted of any of a range of sexual offences are entered in this register. Under the 1997 Act, sex offenders are obliged to tell police every time they move; those failing to register a change of address within 14 days may be jailed for up to six months and ordered to pay a fine of up to £5000. Under the Crime and Disorder Act 1998, convicted sex offenders are subject to supervision on release for up to ten years.

SFO

See serious fraud office.

shadow director

A person who is not a director of a company but who gives instructions (rather than professional advice) upon which the directors are accustomed to act. Certain statutory provisions (for example, those relating to put and call *options) apply to both shadow directors and directors proper.

sham marriage

A marriage entered into for some ulterior motive, without the intention of cohabiting with the other party. Such marriages will usually nonetheless be deemed valid, unless one of the parties (e.g. a person trying to escape extradition) deceives the other party as to his identity or the marriage is entered into to escape a threat to life, limb, or liberty (e.g. to enable a person imprisoned under harsh conditions to leave his or her country) or to escape imprisonment.

share

n.

A unit that measures the holder's interest in and liability to a company. Because an incorporated *company is in law a separate entity from the company membership, it is possible to divide and sell that entity in specified units (See (nominal) capital). In the case of a company limited by shares (See limited company) the liability of shareholders is confined to the purchase price of the shares. Once purchased, these units of the company become intangible property in their own right and can be bought and sold as an activity distinct from the trading activities of the company in question. While the company is a going concern, shares carry rights in relation to voting and sharing profits (See dividend). When a *limited company is wound up the shareholders have rights to share in the assets after debts have been paid. If there are no such assets shareholders lose the amount of their investment but are not liable for the company's debts (See fraudulent trading; wrongful trading).

Preference shares usually carry a right to a fixed percentage dividend, e.g. 10% of the nominal value (See authorized capital), before ordinary shareholders receive anything and holders also have the right to the return of the nominal value of their shares before ordinary shareholders (but after creditors). Holders of participating preference shares have further rights to share surplus profits or assets with the ordinary shareholders. Preference shares are generally cumulative, i.e. if no dividend is declared in one year, holders are entitled to arrears when eventually one is paid. Usually preference shareholders can vote only when their *class rights are being varied.

Ordinary shares constitute the risk capital (also called equity capital), as they carry no prior rights in relation to dividends or return of nominal value. However, the rights they do carry are unlimited in extent: if the company is successful, the ordinary shareholders are not restricted to a fixed dividend (unlike the preference shareholders) and the high yield upon their shares will cause these to increase in value. Similarly, if there are surplus assets on a winding-up, the ordinary shareholders will take what is left after the preference shareholders have been satisfied. Because ordinary shareholders carry the risk of the enterprise, they generally have full voting rights in a *general meeting (though some companies issue nonvoting ordinary shares to raise additional capital without diluting the control of the company).

Redeemable shares

are issued subject to the proviso that they will or may be bought back (at the option of the shareholder or the company) by the company. They cannot be bought back unless fully paid-up and then only out of profits (See capital redemption reserve) or the proceeds of a fresh issue of shares made for the purpose.

A golden share enables the holder, usually the government, to outvote all other shareholders on certain types of company resolution.

Date: 2015-01-29; view: 691