Lord Chief Justice 22 page

specialty

n.

See deed.

special verdict

1. A verdict of not guilty by reason of *insanity.

2. A verdict on particular questions of fact, without a general conclusion (in criminal cases) as to guilt or (in civil cases) in favour of the claimant or the defendant. The judge asks the jury their opinion on the facts, but decides the general question himself. Such verdicts in criminal cases are very rare.

Compare general verdict.

specification

n.

1. (in *patent law) A document that must be lodged with an application for a patent for an invention. It must contain a description of the invention, a claim defining the matter for which the applicant seeks protection, and any drawing referred to in the description or claim.

2. A general document in which a commercial buyer or seller describes goods to be bought or sold. It is sometimes incorporated into the contract by reference.

specific delivery

See writ of delivery.

specific devise

See devise.

specific directions

See community legal service.

specific goods

Goods specifically identified at the time a contract of sale is made, e.g. a named car with a specified registration number. If the subject matter is not so identified, the contract is for the sale of *unascertained goods. In a contract for the sale of specific goods the seller is bound to deliver the identified goods and no others.

specific intent

See intention.

specific issue order

See section 8 orders.

specific legacy

See legacy.

specific performance

A court order to a person to fulfil his obligations under a contract. For example, when contracts have been exchanged for the sale of a house, the court may order a reluctant seller to complete the sale. The remedy is a discretionary one and is not available in certain cases; for example, for the enforcement of a contract of employment or when the payment of damages would be a sufficient remedy.

specimen of blood

A specimen of blood for analysis, used as an alternative to a *specimen of breath in cases involving *drunken driving. A police officer may require a specimen of blood if he reasonably believes that he cannot demand a breath specimen for medical reasons, if an approved and reliable device for taking a breath specimen is unavailable or cannot be used, or if the defendant is suspected of being unfit to drive and a doctor believes that his condition is due to a drug. A police officer may also ask for a blood specimen if the suspect is in hospital (subject to the consent of the doctor treating him). A suspect may be asked to give a blood specimen under these conditions even if he has already given a breath specimen.

A blood specimen may only be taken with the defendant's consent and by a medical practitioner, otherwise it cannot be used as evidence in any proceedings. It must be analysed by a qualified analyst, who must sign a certificate stating how much alcohol he found. The suspect may ask to be given half the specimen for his own analysis, which may be used to contradict the prosecution's evidence; if he has asked for but was not given half of the sample, the other half may not be used in evidence against him. A *specimen of urine may sometimes be taken as an alternative to a blood specimen. In all other respects the law relating to blood specimens is the same as that relating to breath specimens.

specimen of breath

A specimen of breath for analysis taken from a person suspected of *drunken driving. It is this specimen that usually forms the evidence for a prosecution and conviction for offences of drunken driving and should not be confused with the preliminary *breath test. The specimen may be required whenever the police are investigating any of these offences, but only if the suspect is at the police station. Usually he will have been brought to the station under arrest as a result of a positive breath test or refusal to undergo such a test. It is an offence not to provide a specimen without a reasonable excuse, and the police officer should warn a suspect of this when asking for the specimen. This offence is punishable by fine or imprisonment, endorsement (which carries 10 penalty points under the totting-up system (*totting up)), and discretionary disqualification (in cases of being in charge of a vehicle) or compulsory disqualification (in cases of driving or attempting to drive).

The suspect must give two breath specimens, which should be measured by means of an approved electronic device (not the *breathalyser used for the preliminary breath test) that automatically prints out the level of alcohol in the breath. A print­out of the lower of the two readings is used as evidence in a subsequent trial, together with a signed certificate by a police officer that it refers to the defendant's specimen given at the stated time. The defendant must be given a copy of these documents at least seven days before his trial, and he may serve notice not later than three days before the trial that he requires the police officer who signed it to attend the hearing. At his trial, a defendant may bring evidence to show that he drank more alcohol between the time of the alleged offence and giving the specimen and that this accounted for his exceeding the prescribed limit. It is an offence, however, to deliberately drink more alcohol in order to make it difficult to prove his guilt.

Once a suspect has given a specimen he is free to leave the police station, but the police may detain him if they reasonably suspect that he is likely to continue driving with an excess alcohol level or while unfit to drive. Under certain circumstances the suspect can provide either a *specimen of blood or a *specimen of urine instead of a breath specimen. If the breath specimen records a reading of more than 35 but less than 50 micrograms of alcohol per 100 ml of breath (and prosecution is intended), the suspect is entitled to ask that it should be replaced by a blood or urine specimen.

specimen of urine

A specimen of urine for analysis, used as an alternative to a *specimen of breath in cases involving *drunken driving. A specimen of urine may be required when there are objections to taking a breath specimen and when a medical practitioner thinks that a *specimen of blood should not be taken for medical reasons. A urine specimen must be provided within one hour after it has been asked for; two specimens are asked for, and it is the second specimen that is used as evidence in a subsequent trial. In all other respects the law relating to urine specimens is the same as the law relating to blood and breath specimens.

speeding

n.

Driving a motor vehicle at a speed in excess of that permitted. All vehicles adapted to carry more than seven passengers (apart from the driver) and all goods vehicles are restricted at all times to a maximum speed of 40 mph (unless they weigh less than 30 cwt unladen, in which case the maximum speed is 50 mph). Invalid carriages are restricted to 20 mph. Goods vehicles exceeding 3 tons unladen are restricted on motorways to 60 mph. Other vehicles are subject to speed limits determined by the class of road, unless road signs specifically indicate otherwise (Le. 30 mph for restricted roads; 60 mph for single carriageways; 70 mph for dual carriageways and motorways).

The penalty for speeding is a fine, *endorsement (carrying 3 penalty points under the totting-up system(*totting up)), and discretionary *disqualification. A person cannot be convicted of a speeding offence on the evidence of one witness alone, but the evidence of a single police officer reading his speedometer may be enough to secure a conviction. Speeding may itself be evidence of *careless and inconsiderate driving or *dangerous driving, but it is an offence in its own right even if it caused no danger and the driver was not in any way at fault. Speeding offences are subject to the requirement of a *notice of intended prosecution.

spent conviction

A conviction that, after a specified number of years known as the rehabilitation period, may in all subsequent civil proceedings be treated as if it had never existed. The length of the rehabilitation period depends on the gravity of the offence, and some convictions are not subject to rehabilitation (e.g. when the sentence was life imprisonment). Dismissal from a job on the grounds of an undisclosed spent conviction may amount to *unfair dismissal. Similarly, to deny that one has been convicted if the conviction is spent does not amount to *perjury or *deception. Malicious publication of statements about a person's spent convictions can make the publisher liable for defamation, even if the statements are true. The provisions relating to spent convictions do not apply in criminal proceedings, but counsel and the court should, as far as possible, avoid referring to a spent conviction and references to it in open court may only be made with express leave of the judge in the interests of justice. A spent conviction in a record should be marked as such.

See also criminal records agency.

spes successionis

(Latin: hope of succeeding)

See possibility.

split order

Formerly, an order for custody of a child made by divorce courts, granting legal custody to one parent and care and control to the other. It was made obsolete by the Children Act 1989.

See parental responsibility; section 8 orders.

split trial

A trial in the *High Court (or, exceptionally, in the county courts) in which the issues of liability and amount of damages are tried separately.

springing use

Formerly, a *use that arose on the occurrence of a future event. If property was given to X to the use of A when A married, A had a springing use that arose on his marriage.

spying

espionage

(spying, espionage)

n.

Obtaining or passing on to an enemy information that might prejudice the safety or interests of the state or be useful to an enemy.

See official secrets.

squatter

n.

A person unlawfully occupying land.

See adverse occupation; adverse possession; trespass.

squatter's title

See adverse possession.

S1 Statement

See written statement of terms of employment.

stag

n.

A speculator who applies for a new issue of securities in a public company with the intention of making a quick profit by reselling them if they increase in value within a few days of issue. This will only occur if the issue is oversubscribed, i.e. if there are more applicants for shares than there are shares available.

stakeholder pension

A new type of low-cost pension, available from 6 April 2001. Employers with five or more employees may have to make a stakeholder pension available to their staff. Employers can choose to do this from 6 April 2001, and they must do this by 8 October 2001. Stakeholder pensions are also available from authorized financial institutions, such as insurance companies, banks, and building societies. Stakeholder pension providers can only charge a maximum of 1% of the value of the pension fund each year to manage the fund, plus costs and charges (such as stamp duty). Any extra services and any extra charges not provided for by law, such as advice on choosing a pension or life assurance cover, must be optional. All stakeholder schemes will accept contributions of as little as £20, payable weekly, monthly, or at less regular intervals. The scheme must be run by trustees or by an authorized stakeholder manager.

stakeholder's interpleader

See interpleader.

stalking

Persistent threatening behaviour by one person against another. The Protection from Harassment Act 1997 creates two offences relating to stalking. If the harasser's behaviour makes the victim fear for his or her safety, the maximum penalty is five years' imprisonment and/or an unlimited fine. When the behaviour does not lead to a fear of violence but does cause distress, the maximum penalty is six months in prison and/or a fine of up to £5000. The behaviour must have taken place on more than one occasion and the prosecution must show that a reasonable person would realize that the behaviour would have the effect of causing the victim to fear violence or feel harassed. Both offences are immediately arrestable without a warrant, and the police have power to search the harasser's property. The courts may make a restraining order immediately after convicting a person of either of the two offences. In Scotland the common law has always provided protection against stalking through the offence of breach of the peace.

See also molestation.

stamp duty

A tax payable on certain legal documents specified by statute. It can take the form either of a fixed duty, in which the same amount is payable on all documents of the same kind, or an ad valorem duty, when the amount of duty varies according to the value of the transaction effected by the document. Documents that are insufficiently or improperly stamped cannot be admitted as evidence in civil proceedings and they are therefore legally unenforceable. Documents must be sent for stamping within certain time limits to avoid incurring penalties. Stamp duty is controlled by the Inland Revenue. Stamp duty is payable on all transfers of land at 0% up to and including a value of £60,000; 1%if the value of the transfer is over £60,000 but not more than £250,000, 3% on transfers over £250,000 but less than £500,000, and 4% above £500,000. The rates on other types of property, including leases and stocks and shares, also vary with the value.

standard basis

(of assessment of costs)

See costs.

standard-form contract

A commercial contract (e.g. a routine contract of carriage or insurance) that is concluded on terms issued by the offeror in standard form and allows for no effective negotiation. In French law such a contract is known as a contrat d'adhesion.

standard investment criteria

See general power of investment.

standard of proof

The degree of proof required for any fact in issue in litigation, which is established by assessing the evidence relevant to it. In criminal cases the standard is *proof beyond reasonable doubt (See also burden of proof); in civil cases (including divorce petitions) the standard is proof on a balance of probabilities.

standing civilian court

A court, provided for by the Armed Forces Act 1976, for the trial outside the UK of lesser offences committed by certain civilians, e.g. the families of servicemen (See service law). The Secretary of State for Defence (with the approval of the Lord Chancellor) specifies which areas such courts serve and draws up panels of serving officers and civilians to sit as assessors. The Lord Chancellor appoints legally qualified persons to act as magistrates in the courts.

standing committee

A committee of the House of Commons appointed to take the committee stage of public Bills allotted to it by the government. There are about 8 such committees (the number varies according to need), each consisting of between 16 and 50 members who are nominated by a Committee of Selection to reflect the political composition of the House as a whole.

Compare Committee of the Whole House.

standing mute

The refusal of the defendant in a trial on indictment to plead to the indictment. A jury, drawn from any 12 people who happen to be present, must be empanelled to say whether the defendant is mute of malice (i.e. is wilfully refusing to plead) or is mute by visitation of God (i.e. is suffering from some physical or mental impairment that is preventing him from pleading). None of the jurors may be challenged by the defendant. If the verdict of the jury is mute of malice, a plea of *not guilty is entered; if mute by visitation of God, the jury must consider whether the defendant is *unfit to plead. A person who is merely deaf and dumb may plead to an indictment through an interpreter.

See also unfit to plead.

stare decisis

(Latin: to stand by things decided)

A maxim expressing the underlying basis of the doctrine of *precedent, i.e. that it is necessary to abide by former precedents when the same points arise again in litigation.

state

n.

A sovereign and independent entity capable of entering into relations with other states (Compare protected state) and enjoying *international legal personality. To qualify as a state, the entity must have:

(1) a permanent population (although, as in the case of the Vatican or Nauru, this may be very small);

(2) a defined territory over which it exercises authority (although its borders, as in the case of Israel, need not be defined or undisputed);

(3) an effective government. There are currently over 180 states. When a new state comes into existence, it is automatically bound by the principles of international law.

For some purposes, entities that do not normally qualify as fully fledged states may nonetheless be treated as such. Liechtenstein, for example, was refused admission as a state to the League of Nations (and did not become a member of the United Nations until 1990), but is a party to the Statute of the International Court of Justice, which is only open to states.

See also boundary jurisdiction.

state aid

Government assistance, often to local businesses, which is usually of a financial nature and discriminates against businesses trying to compete with them. Articles 87-89 of the *Treaty of Rome and provisions in the *Paris Treaty regulate the granting of such aid. Article 87 prohibits state aid, but the EU may approve certain types of state aid that are beneficial. About 30 cases a year are challenged by the European Commission under these provisions.

State Earnings Related Pension Scheme

(SERPS)

A scheme run by the UK government to provide a pension for employees in addition to the state retirement *pension. Contributions are made through national insurance payments. Those wishing to contract out of SERPS may subscribe to a personal pension scheme. SERPS is expected to be reformed in September 2002, to provide more generous benefits for certain groups, such as the disabled. This will be called the State Second Pension.

statement of affairs

1. A document that must be prepared by a debtor after a *bankruptcy order has been made against him except when the bankruptcy order was made on his own petition or when the court excuses him. It gives details of his assets, debts and liabilities, the names and addresses of his creditors, and what securities they hold. The debtor must send the statement to the official receiver, and the creditors are entitled to inspect it. A debtor who wrongly fails to submit a statement of affairs is guilty of *contempt of court.

See also bankruptcy.

2. See voluntary winding-up.

statement of arrangement for children

A statement of proposed arrangements for the children of divorcing parents, which must be filed before a divorce is granted. The statement must be scrutinized by the court, which may make certain orders in respect of the children.

statement of case

A formal written statement in a civil action served by each party on the other, containing the *allegations of fact that the party proposes to prove at trial (but not the evidence by which they are to be proved) and stating the remedy (if any) that the party claims in the action. Before the introduction of the *Civil Procedure Rules in 1999, statements of case were called pleadings. Statements of case include *claim forms, *particulars of claim, *defences, *counterclaims, and replies to defences. All statements must include a *Statement of Truth. Statements of case must contain only material facts, i.e. those facts essential to the party's claim or defence, and not the subordinate facts that are the means of proving them. It is customary to include the inferences of law that the party claims are to be drawn from the facts stated, although this is not essential. Allegations of law as such (legal arguments) are not permitted. Since the purpose of statements of case is to define clearly the issues in the action and to give the parties notice of the other side's case, sufficient details must be given of each allegation.

statement of claim

Formerly, a pleading served by the claimant in an action begun by writ of summons in the High Court. Under the *Civil Procedure Rules, statements of claim are now known as *particulars of claim.

Statement of Objections

A document issued by the European Commission setting out the case against a business that has infringed the rules of competition law under Articles 81 and 82 (*Article 81; Article 82) of the Treaty of Rome. The statement will set a reasonable time limit for a reply, which can be extended (about 2-3 months is the usual period initially given).

statement of reasons for dismissal

A written notice of the reasons for an employee's dismissal or for the nonrenewal of a fixed-term contract. Under the terms of the Employment Rights Act 1996, a dismissed employee having one year's *continuous employment may demand such a statement from his employer and may complain to an employment tribunal if the statement is refused or not provided within 14 days. If an employee is dismissed during her pregnancy or after the birth of her child in circumstances in which her maternity leave period ends by reason of the dismissal, the employee is entitled to such a statement without making any request and irrespective of the period of continuous employment (See maternity rights).

Statement of Truth

(in civil proceedings)

A statement made by a party (or his authorized agent, e.g. lawyer) that he believes the content of the document in which the Statement of Truth appears is true. The requirement of the Statement of Truth was the result of the *Civil Procedure Rules and seeks to avoid the need to swear affidavits in support of various statements made during a claim. Statements of Truth are required in statements of case (*statement of case), witness statements, and experts' reports. The deliberate provision of false information in a Statement of Truth is a contempt of court.

statements of standard accounting practice

(SSAP)

Statements published by the Accounting Standards Board that define the principles on which a company's assets and liabilities should be valued and its profits and losses computed.

state of emergency

See emergency powers.

state responsibility

The obligation of a state to make reparation arising from a failure to comply with a legal obligation under international law.

See also espousal of claim.

State Second Pension

See State Earnings Related Pension Scheme.

Date: 2015-01-29; view: 819