Оxford_dictionary_of_law 8 page

British Dependent Territories citizenship

One of three forms of citizenship introduced by the British Nationality Act 1981 to replace citizenship of the UK and Colonies. The others are *British citizenship and *British Overseas citizenship. The dependent territories for the purposes of this form of citizenship are listed in a schedule to the Act; they include Bermuda and Gibraltar, among others.

On the date on which it came into force (1 January 1983), the Act conferred the citizenship automatically on a large number of existing citizens of the UK and Colonies on the grounds of birth, registration, or naturalization in a dependent territory or descent from a parent or grandparent who had that citizenship on one of those grounds. As from that date, acquisition (and deprivation in the case of registered or naturalized citizens) have been governed by principles similar to those applying to British citizenship, except that acquisition by registration relates almost exclusively to minors. A British Dependent Territories citizen can become entitled to registration as a British citizen by virtue of UK residence. On 1 July 1997, those who were British Dependent Territories citizens by virtue of a connection with Hong Kong ceased to be British Dependent Territories citizens. However, they were entitled to acquire a new form of British nationality, known as *British National (Overseas), by registration.

British National \(Overseas\)

BN(O)

A form of British nationality that those who were British Dependent Territories citizens (*British Dependent Territories citizenship) by virtue of a connection with Hong Kong may acquire by registration. They ceased to be British Dependent Territories citizens on 1 July 1997.

British Overseas citizenship

One of three forms of citizenship introduced by the British Nationality Act 1981 to replace citizenship of the UK and Colonies. On the date on which it came into force (1 January 1983), the Act conferred the citizenship automatically on every existing citizen of the UK and Colonies who did not qualify for either of the other new forms (*British citizenship and *British Dependent Territories citizenship). Acquisition as from that date has been by registration only, and this is confined almost completely to minors. A British Overseas citizen may become entitled to registration as a British citizen by virtue of UK residence.

British protected person

One of a class of people defined as such by an order under the British Nationality Act 1981 or the Solomon Islands Act 1978 because of their connection with former protectorates, protected states, and trust territories. A British protected person may become entitled to registration as a British citizen by reason of UK residence.

British subject

Under the British Nationality Act 1948, a secondary status that was common to all who were primarily citizens either of the UK and Colonies or of one of the independent Commonwealth countries. This status was also shared by a limited number of people who did not have any such primary citizenship, including former British subjects who were also citizens of Eire (as it then was) or who could have acquired one of the primary citizenships but did not in fact do so.

Under the British Nationality Act 1981 (which replaced the 1948 Act as from 1 January 1983), the status of British subject was confined to those who had enjoyed it under the former Act without having one of the primary citizenships; the expression *commonwealth citizen was redefined as a secondary status of more universal application. The Act provided for minors to be able to apply for registration as British subjects and for British subjects to become entitled to registration as British citizens by virtue of UK residence.

Broadmoor

A *special hospital at Crowthorne, near Camberley, in Berkshire. It treats dangerous and violent patients (previously known as criminal lunatics) who are sent to it.

brothel

n.

A place used for the purpose of female or male *prostitution. A contract for the hiring or letting of a brothel is void (as being contrary to public policy) and under the Sexual Offences Act 1956 it is an offence for a landlord to let premises knowing that they are to be used as a brothel. It is also an offence for someone to help or manage a brothel or for a tenant or occupier of any premises to permit the premises to be used as a brothel.

Brussels Convention

An international convention of 1968 that determines which courts will have jurisdiction in relation to international disputes (See foreign judgments). Generally, if a contract provides that a certain country's courts will hear any disputes that arise, this will be respected. The Convention also provides rules when the parties have not chosen a forum for their disputes. Many EU states are individually a party to the Convention; the UK signed up to it in 1978 and enacted it into national law in 1982.

Bryan Treaties

Bryan Arbitration Treaties

(Bryan Treaties, Bryan Arbitration Treaties)

(named after William Jennings Bryan, US Secretary of State 1913-15)

The series of treaties, signed at Washington in 1914, that established permanent commissions of inquiry. Such inquiries were designed to resolve differences between the United States of America and a large number of foreign states. The treaties were not all identical, but had the following key feature in common: the *high contracting parties agreed (1) to refer all disputes that diplomatic methods had failed to resolve to a Permanent International Commission for investigation and report, and (2) not to begin hostilities before the report was submitted.

See also inquiry.

Budget

n.

See Chancellor of the Exchequer.

buggery (sodomy)

n.

Anal intercourse by a man with another man or a woman or *bestiality by a man or a woman. Except between consenting adults over 16 in private (See also homosexual conduct), buggery is a crime if penetration is proved (it is not necessary for there to be ejaculation). The person effecting the intercourse is guilty as the agent, and the other party is called (and is guilty as) the patient. However, criminal proceedings are not brought without the consent of the *Director of Public Prosecutions against anyone under 16 for participating in buggery. It is also an offence (punishable by up to 10 years' imprisonment) to assault anyone with the intention of committing buggery.

See also gross indecency; indecency; indecent assault.

bugging

n.

See electronic surveillance.

building lease

A lease under which the tenant covenants to erect specified buildings on the land. Sometimes the lease only begins when the buildings have been erected. At the end of the lease the buildings generally become the property of the landlord. It used to be common for residential property to be built under a building lease, usually for 99 years, under which the landlord would let to a builder at a rent that ignored the value of the buildings (*ground rent), and the builder would sell the lease to a tenant. Under a lease of this kind, the tenant may acquire a statutory right to purchase the freehold under the Leasehold Reform Act 1967.

building preservation notice

A notice by a local planning authority (See town and country planning) that places a building regarded as suitable for listing and in danger of demolition or alteration under temporary control as a *listed building, pending a decision on its listing by the Secretary of State.

building scheme

A defined area of land sold by a single vendor in plots for (or following) development, each plot being sold subject to similar *restrictive covenants that are clearly intended to benefit the whole. For example, restrictive covenants prohibiting trade or excessive noise are frequently imposed on the sale of plots on a housing estate, to maintain the character of the estate as a whole. The law allows the owner of any plot in a building scheme to enforce such covenants against any other plot owner, even though neither was a party to the document that imposed the covenants.

building society

A corporation established under the Building Societies Acts for the purpose of making loans to its members on the security of mortgages on their homes, out of funds invested by its members. Generally a building society's security must be a first legal mortgage on the borrower's home. However, the Building Societies Act 1986 now empowers societies to lend on the security of second mortgages and to provide a wide range of banking and other financial services.

Bullock order

(from the case Bullock v London General Omnibus Co. (1907))

A form of order for the payment of costs in civil cases sometimes made when the claimant has, in the court's opinion, reasonably sued two defendants but has succeeded against only one of them. The order requires the claimant to pay the successful defendant's costs but allows him to include these costs in those payable to him by the unsuccessful defendant. It should be distinguished from a Sanderson order (from the case Sanderson v Blyth Theatre Co., 1903), in which the unsuccessful defendant is ordered to pay the costs of the successful defendant directly. A Sanderson order is generally more advantageous to the claimant, but will not be ordered if, for example, the unsuccessful defendant is insolvent, because the successful defendant would thereby be deprived of his costs.

burden of proof

The duty of a party to litigation to prove a fact or facts in issue. Generally the burden of proof falls upon the party who substantially asserts the truth of a particular fact (the prosecution or the claimant). A distinction is drawn between the persuasive (or legal) burden, which is carried by the party who as a matter of law will lose the case if he fails to prove the fact in issue; and the evidential burden (burden of adducing evidence or burden of going forward), which is the duty of showing that there is sufficient evidence to raise an issue fit for the consideration of the *trier of fact as to the existence or nonexistence of a fact in issue.

The normal rule is that a defendant is presumed to be innocent until he is proved guilty; it is therefore the duty of the prosecution to prove its case by establishing both the *actus reus of the crime and the *mens rea. It must first satisfy the evidential burden to show that its allegations have something to support them. If it cannot satisfy this burden, the defence may submit or the judge may direct that there is *no case to answer, and the judge must direct the jury to acquit. The prosecution may sometimes rely on presumptions of fact to satisfy the evidential burden of proof (e.g. the fact that a woman was subjected to violence during sexual intercourse will normally raise a presumption to support a charge of rape and prove that she did not consent). If, however, the prosecution has established a basis for its case, it must then continue to satisfy the persuasive burden by proving its case beyond reasonable doubt (See also proof beyond reasonable doubt). It is the duty of the judge to tell the jury clearly that the prosecution must prove its case and that it must prove it beyond reasonable doubt; if he does not give this clear direction, the defendant is entitled to be acquitted.

There are some exceptions to the normal rule that the burden of proof is upon the prosecution. The main exceptions are as follows.

(1) When the defendant admits the elements of the crime (the actus reus and mens rea) but pleads a special defence, the evidential burden is upon him to create at least a reasonable doubt in his favour. This may occur, for example, in a prosecution for murder in which the defendant raises a defence of self-defence.

(2) When the defendant pleads *coercion, *diminished responsibility, or *insanity, both the evidential and persuasive burden rest upon him. In this case, however, it is sufficient if he proves his case on a balance of probabilities (i.e. he must persuade the jury that it is more likely that he was insane than not).

(3) In some cases statute expressly places a persuasive burden on the defendant; for example, a person who carries an *offensive weapon in public is guilty of an offence unless he proves that he had lawful authority or a reasonable excuse for carrying it.

burglary

n.

The offence, under the Theft Act 1968, of either entering a building, ship, or inhabited vehicle (e.g. a caravan) as a trespasser with the intention of committing one of four specified crimes in it (burglary with intent) or entering it as a trespasser only but subsequently committing one of two specified crimes in it (burglary without intent). The four specified crimes for burglary with intent are (1) *theft; (2) inflicting *grievous bodily harm; (3) causing *criminal damage; and (4) rape of a person in the building (See also ulterior intent). The two specified offences for burglary without intent are (1) stealing or attempting to steal; and (2) inflicting or attempting to inflict grievous bodily harm. Burglary is punishable by up to 14 years' imprisonment. Aggravated burglary, in which the trespasser is carrying a weapon of offence, explosive, or firearm, may be punished by a maximum sentence of life imprisonment. The Crime (Sentences) Act 1997 provides for an automatic three-year minimum sentence for third-time burglars, although judges may give a lesser sentence if the court considers the minimum would be unjust in all the circumstances.

See also repeat offender.

Business Expansion Scheme

See enterprise investment scheme.

business liability

Liability (contractual or tortious) for a breach of obligations or duties arising in the course of a business (which can include the activities of a government department or local or public authority) or from the occupation of business premises. The Unfair Contract Terms Act 1977 and, for consumer contracts, the Unfair Terms in Consumer Contracts Regulations 1999 limit the extent to which a person may rely on terms in his contracts that attempt to exclude or restrict his business liability (See exclusion and restriction of negligence liability).

business name

The name, other than its own, under which a sole trader, partnership, or company carries on business. The choice of a business name is restricted by the Business Names Act 1985 and by the common law of *passing off. The true names and addresses of the individuals concerned must be disclosed in documents issuing from the business and upon business premises. Contravention of the Act may lead to a fine and to inability to enforce contracts.

See also company name.

business tenancy

A *tenancy of premises that are occupied for the purposes of a trade, profession, or employment. Business tenants have special statutory protection.

If the landlord serves a notice to quit, the tenant can usually apply to the courts for a new tenancy. If the landlord wishes to oppose the grant of a new tenancy he must show that he has statutory grounds, which may include breaches of the tenant's obligations under the tenancy agreement or the provision of suitable alternative accommodation by the landlord. Otherwise the court will grant a new tenancy on whatever terms the parties agree or, if they cannot agree, on whatever terms the court considers reasonable. When the tenancy ends, the tenant may claim compensation for any improvements he has made.

Under the Landlord and Tenant (Covenants) Act 1995, in force from 1 January 1996, when business tenancies are assigned the new tenant generally takes over the covenants (or promises and warranties) of the first tenant in the lease except when otherwise agreed. Previously the old tenant was always liable, even after *assignment, if a subsequent tenant defaulted on the lease.

buyer

n.

The party to a contract for the sale of goods who agrees to acquire ownership of the goods and to pay the price.

See also purchaser.

byelaw

n.

A form of *delegated legislation, made principally by local authorities. District and London borough councils have general powers to make byelaws for the good rule and government of their areas, and all local authorities have powers to make them on a wide range of specific matters (e.g. public health). Certain public corporations (such as the British Airports Authority) also make byelaws for the regulation of their undertakings. A statutory power to make byelaws includes a power to rescind, revoke, amend, or vary them. By contrast with most other forms of delegated legislation, byelaws are not subject to any form of parliamentary control but take effect if confirmed by a government minister. It is common for central government to prepare draft byelaws that may be made by such authorities as choose to do so. Byelaws are, however, subject to judicial control by means of the doctrine of *ultra vires.

C

See command papers.

Cabinet

n.

A body of *ministers (normally about 20) consisting mostly of heads of chief government departments but also including some ministers with few or no departmental responsibilities; it is headed by the *Prime Minister, in whose gift membership lies. As the principal executive body under the UK constitution, its function is to formulate government policy and to carry it into effect (particularly by the initiation of legislation). The Cabinet has no statutory foundation and exists entirely by convention, although it has been mentioned in statute from time to time, e.g. in the Ministers of the Crown Act 1937, which provided additional salaries to "Cabinet Ministers". The Cabinet is bound by the convention of collective responsibility, i.e. all members should fully support Cabinet decisions; a member who disagrees with a decision must resign. If the government loses a vote of confidence, or suffers any other major defeat in the House of Commons, the whole Cabinet must resign.

cabotage

n.

Transport services provided in one member state of the EU by a carrier of another state. Article 71 (formerly 75) of the Treaty of Rome provides that the Council of the European Union may lay down proposals in relation to the conditions under which nonresident carriers may operate transport services within a member state.

Cafcass

CAFCASS

See Children and Family Court Advisory and Support Service.

Calderbank letter

Calderbank offer

(Calderbank letter, Calderbank offer)

Formerly, a letter sent by one party to a civil action, in which a remedy other than debt or damages is claimed, to another offering to compromise the action on terms specified in the letter. The first such letter was sent in the case Calderbank v Calderbank (1976). Calderbank offers are now (since the introduction of the *Civil Procedure Rules in 1999) known as *Part 36 offers.

call

n.

1. A ceremony at which students of the Inns of Court become barristers. The name of the student is read out and he is "called to the Bar" by the Treasurer of his Inn. Call ceremonies take place four times a year, once in each dining term.

2. A demand by a company under the terms of the articles of association or an ordinary resolution requiring company members to pay up fully or in part the nominal value of their shares. Unless the articles provide otherwise, calls must be made equally upon all shareholders of the same class. Calls should be distinguished from instalments, which become due upon a date predetermined at the time the shares were issued.

See also paid-up capital.

calling the jury

Announcing the names of those selected to serve on a jury as a result of a ballot of the jury panel.

Calvo clause

(named after the Argentine jurist Carlos Calvo (1824-1906))

A clause in a contract stating that the parties to the contract agree to rely exclusively on domestic remedies in the event of a dispute. The insertion of such a clause in a contract was an attempt, originally by Latin American countries, to eliminate diplomatic intervention should a dispute arise with a foreign national: by making such a contract the foreign national was said to have renounced the protection of his government. The clause is in effect in most cases superfluous - firstly, because diplomatic intervention belongs to the state only, and thus cannot be renounced by an individual; and secondly, because the exhaustion of local remedies is always taken to be a *condition precedent to appealing for diplomatic intervention. Since the 1930s such clauses have not been used in international disputes.

cancellation

n.

1. (in equity) An order by the court that specified documents should no longer have effect. This may occur when a document has fulfilled its purpose but its continued existence could lead to improper claims against its maker.

2. (in commercial law) The right to cancel a commercial contract after it has been entered into. The right to cancel exists generally for contracts concluded at a distance (See distance selling), such as mail order and Internet sales when the contract is with a *consumer, and in particular in such sectors as time-share sales and consumer credit.

cannabis

n.

A drug obtained from the crushed leaves and flowers of the hemp plant (Cannabis sativa); under the Misuse of Drugs Act 1971 cannabis is defined as a *controlled drug of Class B, but in October 2001 the Home Secretary announced a decision to reclassify it as a Class C drug. In addition to the offences applying to all controlled drugs, there is a specific offence applying only to cannabis and cannabis resin (and also to prepared opium): it is an offence for an occupier, landlord, or property manager to allow these substances to be smoked on the premises he occupies or manages.

cannon-shot rule

The rule by which a state has territorial sovereignty of that coastal sea within three miles of land. Its name derives from the fact that in the 17th century this limit roughly corresponded to the outer range of coastal artillery weapons and therefore reflected the principle terrae dominum finitur, ubi finitur armarium vis (the dominion of the land ends where the range of weapons ends). The rule is now not widely recognized: many nations have established a 6- or 12-mile coastal limit.

See also territorial waters.

canonical disability

See impotence.

canon law

ecclesiastical law

(canon law, ecclesiastical law)

Church law, such as the Roman Catholic Code of Canon Law and, in England, the law of the Church of England. Unless subsequently becoming *legislation or *custom, it is not part of the laws of England but is binding on the clergy and lay people holding ecclesiastical office, e.g. churchwardens.

See ecclesiastical courts.

capacity of a child in criminal law

See doli capax.

capacity to contract

Competence to enter into a legally binding agreement. The main categories of persons lacking this capacity in full are minors, the mentally disordered, the drunk, and corporations other than those created by royal charter.

A minor is capable of making valid contracts for *necessaries and is also bound by any beneficial contract of service into which he enters (i.e. any contract of employment or training that is advantageous to him taken as a whole). Certain contracts of a proprietary nature (e.g. tenancy agreements, agreements to buy company shares, and partnership agreements) are voidable in that a minor may repudiate them either before he comes of age or within a reasonable time thereafter. If he fails to repudiate, he becomes fully bound. All other contracts made by a minor are unenforceable unless ratified by the minor when he comes of age (See ratification) unless the Minors Contracts Act 1987 applies. This Act gives the court the right to require the transfer of property acquired by a minor under a contract when it is just and equitable to do so and improves the rights of adults contracting with minors.

A contract made by a person who is mentally disordered or drunk is voidable if the other party knows that his disorder or drunkenness will prevent him from understanding what he is doing. This means that, subject to certain limitations, he can set the contract aside by *rescission.

A corporation incorporated by royal charter has full contractual capacity, but a statutory corporation has power to contract only for purposes connected with the objects for which it was incorporated. Other contracts are *ultra vires and void.

capias

n.

(Latin: that you take)

One of a group of writs of assistance conferring certain supplemental powers upon the sheriff in respect of the enforcement of judgment. Such writs are now obsolete.

capital

1. (share capital) A fund representing the contributions given to the company by shareholders in return for their shares. These assets are intended to protect the interests of any creditors in the event of a *limited company encountering financial difficulties, and there are rules under the Companies Act 1985 to ensure that this fund is not reduced unless it is absolutely necessary. Each share is assigned a nominal or par value to enable each holder to measure his interest in and liability to the company. In a company limited by shares (See limited company) the liability of a shareholder is limited to the unpaid purchase price of the share. If a company is able to command a market price for a share that is above the nominal value assigned to it, the difference is said to represent a premium. The total number of shares and their nominal values must be stated in the capital clause of the *memorandum of association and represents the company's authorized share capital.

See authorized capital.

2.

See loan capital.

capital allowance

A tax allowance for businesses on capital expenditure on particular items. These include *machinery and plant, industrial buildings, agricultural buildings, mines and oil wells, energy-saving equipment, and scientific equipment. For other types of expenditure neither the capital cost nor the depreciation is allowable against tax. The percentage of the expenditure allowed varies (up to 100%) according to the type of expenditure. If a business's capital allowances exceed its profit, it may carry forward the balance for setting against future profits.

capital gains tax

A tax charged on gains arising from the disposal of assets. The tax due is a proportion of the chargeable gain, which in general terms is the amount by which the proceeds of the disposal exceed the original cost of acquiring the asset. If the disposal results in a loss, this may be offset against other chargeable gains in the same year or subsequent years. Assets that may be taxed in this way include stocks, shares, unit trusts, land, buildings, machinery, jewellery, and works of art. There are, however, a number of exemptions, including private motor vehicles, an individual's *main residence, National Savings Certificates, and most personal chattels with an expected life of less than 50 years. Marketable government securities held for longer than 12 months are also exempt. Gains arising from the disposal of business assets may be offset against the cost of acquiring replacement assets. This is known as roll-over relief. Capital gains tax applies only to gains accruing since 31 March 1982. If the asset was held before this date, the gain is based on the asset's market value on 31 March 1982. The gain will be reduced by taper relief if the asset was held for more than one year. For example, a business asset owned for three years will have the gain reduced by 50%. The first £7500 (for 2001-02) of annual gains is exempt. The rate of tax is the taxpayer's marginal rate of income tax (10-40% in 2001-02).

capital money

Money arising from certain transactions relating to *settled land or land held on a *trust of land. It may arise from sale, the granting of certain leases and similar transactions, borrowing on the security of a mortgage, and other circumstances in which the money should be treated as capital of the settlement, e.g. the proceeds of a fire insurance claim relating to the land. Generally capital money must be received by the trustees of the settlement, not the beneficiary. When the money is raised or paid for a specific purpose (e.g. for improvements authorized by the Settled Land Act 1925) it must be applied for that purpose. Otherwise, it is invested and held by the trustees on the same trusts as the land itself was held.

capital punishment

Death (usually by hanging) imposed as a punishment for crime. Capital punishment for murder was abolished in the UK under the Murder (Abolition of Death Penalty) Act 1965. The death penalty continued to exist for a small number of offences, such as *piracy and *treason. The ratification by the UK of the Sixth Protocol of the European Convention on Human Rights and the introduction of the *Human Rights Act 1998 has meant that the death penalty is now completely abolished, apart from special provisions in respect of acts in times of war. Its reintroduction would be a violation of the Human Rights Act and, at an international level, a breach of a treaty obligation.

Date: 2015-01-29; view: 1208