Home Random Page


CATEGORIES:

BiologyChemistryConstructionCultureEcologyEconomyElectronicsFinanceGeographyHistoryInformaticsLawMathematicsMechanicsMedicineOtherPedagogyPhilosophyPhysicsPolicyPsychologySociologySportTourism






Her Majesty's Stationery Office 6 page

judicial immunity

The exemption of a *judge or *magistrate from personal actions for damages arising from the exercise of his judicial office. The immunity is absolute in respect of all words or actions of the judge while acting within his *jurisdiction and extends to acts done without jurisdiction provided that they were done in good faith.

judicial notice

judicial cognizance

(judicial notice, judicial cognizance)

The means by which the court may take as proven certain facts without hearing evidence. Notorious facts (i.e. matters of common knowledge) may be judicially noticed without inquiry; some other facts (e.g. matters that can easily be checked in a standard work of reference and are reasonably indisputable) may be noticed after inquiry. When judicial notice has been taken, *evidence in rebuttal is not permitted.

judicial precedent

See precedent.

judicial review

The simplified procedure by which, since 1977, prerogative and other remedies have been obtainable in the High Court against inferior courts, tribunals, and administrative authorities. On an application for the judicial review of a decision, the Court may grant a *quashing order, *mandatory order, *prohibition order, *declaration, or *injunction; it may also award damages.

judicial separation order

An order by the courts that a husband and wife do not have to cohabit. The order does not terminate the marriage but it does free the parties of marital obligations. Judicial (or legal) separation is appropriate when there are religious objections to divorce or when the parties have not finally decided upon divorce. The grounds for separation are the same as those for *divorce. The courts have the same powers in relation to financial orders and children as they do when granting a divorce.

judicial trustee

A trustee appointed by the court under the Judicial Trustee Act 1906, either as sole trustee or as co-trustee. He is an officer of the court, is subject to the court's control, and is entitled to such remuneration as the court allows. In practice, the *Public Trustee has replaced a trustee appointed under the Act.

junior barrister

Any barrister who is not a *Queen's Counsel. The word "junior" does not necessarily imply youth or lack of seniority: many members of the Bar remain juniors throughout their careers.

jure gestionis

(Latin)

Describing commercial transactions by bodies that are owned by the state but are not regarded as organs of the state. In international law the state accepts responsibility for such transactions and does not claim immunity.

Compare jure imperii.

jure imperii

(Latin)

Describing transactions by state bodies or representatives, such as diplomats. In international law the state maintains immunity from such transactions.

Compare jure gestionis.

juridical

adj.

Relating to judicial proceedings or the law. Juridical days were days on which legal business could be transacted.

jurisdiction

n.

1. The power of a court to hear and decide a case or make a certain order. (For the limits of jurisdiction of individual courts, see entries for those courts.)



2. The territorial limits within which the jurisdiction of a court may be exercised. In the case of English courts this comprises England, Wales, Berwick-upon-Tweed, and those parts of the sea claimed as *territorial waters. Everywhere else is said to be outside the jurisdiction.

3. The territorial scope of the legislative competence of Parliament.

See sovereignty of parliament.

In international law, jurisdiction can be exercised on a number of grounds, based on the following principles: (1) the territorial principle (that the state within whose boundaries the crime has taken place has jurisdiction, irrespective of the nationality of the transgressor); (2) the nationality principle (that a state has the power of jurisdiction over one of its nationals for an offence he has committed in another state); (3) the protective principle (that a potentially injured state can exercise jurisdiction in all cases when its national security is threatened): (4) the passive personality principle (that a state has jurisdiction if the illegal act has been committed against a national of that state); and (5) the universality principle (when the accused has committed a crime in breach of a rule of *jus cogens, i.e. a crime against humanity, any party having custody of the alleged lawbreaker is permitted to bring criminal proceedings against him).

juris et de jure

(Latin)

Of law and from law: an irrebuttable *presumption is so described.

juristic person

(artificial person)

An entity, such as a *corporation, that is recognized as having legal personality, i.e. it is capable of enjoying and being subject to legal rights and duties. It is contrasted with a human being, who is referred to as a natural person.

juror

n.

A member of a *jury. Each juror must swear that he will faithfully try the case and give a true verdict according to the evidence; failure to do so is contempt of court. Jurors are chosen from the electoral register; they must be aged between 18 and 70 and must have been resident in the UK for a period of at least five years since the age of 13. The following are ineligible for jury service: (1) past and present holders of any judicial office; (2) solicitors, barristers, members of a court staff, police officers, and others concerned with the administration of justice, if they have held the office within the preceding 10 years; (3) clergymen; and (4) the mentally ill. Members of Parliament, full-time members of the armed forces, and practising doctors, chemists, and vets may claim excusal from jury service and there are also special categories of discretionary excusal. A practising member of a religious society or order the tenets or beliefs of which are incompatible with jury service are excused from service as of right. Anyone who has ever been imprisoned for five years or more, or who has been imprisoned for more than three months within the preceding 10 years, or who is on bail, is disqualified from jury service.

A defendant is entitled to challenge individual jurors (See challenge to jury); if he succeeds in his challenges, another person takes the place of the challenged juror. A person who appears to be suffering from a disability that could impair performance of their duties as juror must now be brought before the judge so that he may form an opinion as to their suitability.

jury

n.

A group of *jurors (usually 12) selected at random to decide the facts of a case and give a verdict. Most juries are selected to try crimes but juries are also used in coroner's *inquests and in some civil cases (e.g. defamation actions). The judge directs the jury on points of law (See direction to jury) and sums up the evidence of the prosecution and defence for them, but he must leave the jury to decide all questions of fact themselves. He must also make it clear to them that they are the only triers of fact (*trier of fact) and must acquit the defendant unless they feel sure that he is guilty beyond reasonable doubt. The verdict of a jury should, if possible, be unanimous, but when there are at least 10 people on the jury and they cannot reach a unanimous verdict, a *majority verdict is acceptable. Many offences must be tried by a jury; many others may be tried by a jury or by magistrates (See indictable offence).

See also challenge to jury.

It is a criminal offence to attempt to influence a jury's discussions or to question them about their discussions when the case is over.

See also contempt of court; intimidation.

jus

n.

(Latin)

A law or right.

jus accrescendi

(Latin)

See right of survivorship. locum non habet.

jus accrescendi inter mercatores pro beneficio commercii locum non habet

(Latin: for the advancement of commerce there is no place for the right of survivorship between merchants)

A maxim stating the principle that equity will treat as tenants in common (See tenancy in common) those in partnership whose interest in partnership property is at common law a *joint tenancy. Thus on the death of a partner his interest in the partnership property is part of his estate rather than belonging to the surviving partners.

jus civile

(Latin: civil law)

1. *municipal law.

2. The whole body of Roman law.

jus cogens

(Latin: coercive law)

A rule or principle in international law that is so fundamental that it binds all states and does not allow any exceptions. Such rules (sometimes called peremptory norms) will only amount to jus cogens rules if they are recognized as such by the international community as a whole. A treaty that conflicts with an existing jus cogens rule is void, and if a new jus cogens rule emerges, any existing treaty that conflicts with it automatically becomes void. States cannot create regional customary international law that contradicts jus cogens rules. Most authorities agree that the laws prohibiting slavery, genocide, piracy, and acts of aggression or illegal use of force are jus cogens laws. Some suggest that certain human rights provisions (e.g. those prohibiting racial discrimination) also come under the category of jus cogens.

jus gentium

(Latin: the law of peoples)

See international law.

jus in re aliena

(Latin)

A right in the property of another (See encumbrance). It is contrasted with jus in re propria - a right in one's own property.

jus naturale

(Latin: natural law)

The fundamental element of all law.

See natural law.

jus sanguinis

(Latin: law relating to blood)

The principle that the nationality of children is the same as that of their parents, irrespective of their place of birth. This contrasts with *jus soli, whereby nationality is dependent on place of birth. In states in which the jus sanguinis principle applies (i.e. France and Germany), a conflict of jurisdiction may arise when a child is born of parents who are citizens of another state. For example, a child born in the United States of French parents is an American citizen jure soli, but a French citizen jure sanguinis. His effective citizenship will depend upon the jurisdiction within which he happens to be in; in the United States he is a US citizen; in France, a Frenchman; in any other country he is both.

Conflicts resulting from the simultaneous presence of these contrasting claims of allegiance are generally settled between states by deferring jus sanguinisto jus soli when the state asserting its primary claim of allegiance has de facto jurisdiction of the individual in question. Most jurisdictions (including the United Kingdom and the United States) now adopt within their nationality law a combination of jus soliand jus sanguinis.

jus soli

(Latin: law relating to the soil (of one's country))

The rule by which birth in a state is sufficient to confer nationality, irrespective of the nationality of one's parents (Compare jus sanguinis). The United Kingdom and the United States originally adhered to a strict version of this principle. Thus the children of an *alien, born on the territory of the host state, would from their birth adopt the nationality of that state. Most jurisdictions (including the United Kingdom and the United States) now adopt a combination of jus soli and jus sanguinis.

just and equitable winding-up

A *compulsory winding-up on grounds of fairness. This may occur, for example, when the purpose of the company cannot be achieved, when the management is deadlocked or has been guilty of serious irregularities, or, in small companies run on the basis of mutual trust between members, when the majority have exercised their legal rights in breach of a common understanding between the members when the company was formed. No order will be made if another form of *minority protection would be more appropriate.

See also unfair prejudice.

jus tertii

(Latin: right of a third party)

A defence raised by a party who is sued in respect of property alleging that some third party has a better claim to the property than the claimant. The Torts (Interference with Goods) Act 1977 provides that this is a good defence to an action in *conversion, but a special procedure is laid down for the joinder of the third party in the action.

justice

n.

A moral ideal that the law seeks to uphold in the protection of rights and *punishment of wrongs. Justice is not synonymous with law - it is possible for a law to be called unjust. However, English law closely identifies with justice and the word is frequently used in the legal system; for example, in justice of the peace, Royal Courts of Justice, and administration of justice.

justice of the peace

(JP)

A person holding a commission from the Crown to exercise certain judicial functions for a particular commission area. JPs are appointed on behalf of and in the name of the Queen by the Lord Chancellor and may be removed from office in the same way. On reaching the age of 70 they are placed on a supplemental list and cease to be able to exercise any judicial functions. Their principal function is to sit as *magistrates in the *magistrates' courts but they may also sit in the *Crown Court when it is considering committals for sentence and appeals from magistrates' courts, sign warrants of arrest and search warrants, and take statutory declarations. All High Court judges are ex officio justices of the peace for the whole of England and Wales.

justification

n.

1. The defence to an action for *defamation that the defamatory statement made was true. Truth is a complete defence to a civil action for defamation, except where true statements about *spent convictions are proved to have been made maliciously.

2. The defence that interference with the contractual or business relations of another was justified. The scope of the defence is uncertain, but the fact that the wages of chorus girls were so low that they were compelled to resort to prostitution has been held to justify a theatrical performers' protection society inducing theatre owners to break their contracts with the girls' employer (Brimelow v Casson 1924).

See procuring breach of contract.

justifying bail

Demonstrating to a court granting bail that one is capable of meeting the surety specified in the bail (for example, disclosing one's financial resources). A person standing surety for bail must be able to provide the bailout of his own resources. It is a criminal offence (bail-bonding) for a defendant who is granted bail to agree to indemnify his surety against any loss arising out of standing surety.

just satisfaction

The basis for damages awarded by the European Court of Human Rights (and thus in respect of claims under the *Human Rights Act 1998). In many cases where the Court finds a violation it has declined to award any damages on the basis that this finding is in itself sufficient just satisfaction. Subject to this discretion, damages can be obtained for pecuniary loss, nonpecuniary loss, and costs and expenses.

juvenile court

See youth court.

juvenile offender

A person between the ages of 10 and 17 who has committed a crime (See doli capax); an offender between the ages of 14 and 17 is known as a young offender. A child (aged between 10 and 14) cannot normally be tried on indictment (even for an *indictable offence) except when charged with homicide. A young offender may be tried on indictment when charged with homicide or an offence for which an adult could be sentenced to at least 14 years' imprisonment or if he is jointly charged with someone aged 18 or over and it is felt to be necessary that they be tried together. In all other cases, juvenile offenders must be tried summarily by a magistrates' court or a *youth court; they can be "found guilty" of an offence but may not be described as "convicted".

A juvenile offender cannot be sentenced to imprisonment; instead he may be sentenced to *detention in a young offender institution. If found guilty of murder or some other grave crime he must be detained in a place and on such conditions as the Home Secretary may determine. The Crime (Sentences) Act 1997 provides that the Parole Board, rather than the Home Secretary, has responsibility for the release of juveniles convicted of murder. Under the Criminal Justice and Public Order Act 1994 it is possible to sentence an offender aged 12 to 14 who has been convicted of a serious offence punishable in an adult by imprisonment to custody under a secure training order for a period of six months to two years. A juvenile offender may not be sentenced to do community service or put on probation before the age of 16. He may be fined (See fine), made the subject of a supervision or hospital order, or required to attend an *attendance centre. He could also be discharged (absolutely or conditionally). The procedures for dealing with juvenile offenders have now been amended in some respects by the Youth Justice and Criminal Evidence Act 1999.

keeping

n.

(of property)

See theft.

keeping term

See term.

keeping the peace

Behaving in such a way as not to cause or threaten a breach of the peace, i.e. a disturbance of public order. Magistrates' courts have very wide powers to *bind over people to keep the peace or to make them enter into *recognizances (either personally or through a surety) to pay a sum of money into court if they fail to keep the peace. The order may be made against a defendant on a criminal charge or merely upon complaint by a member of the public (if there is some evidence that a *breach of the peace may occur). A person may be bound over for any sum of money or any period of time; if he refuses to be bound over or to enter into the recognizance, he may be sentenced immediately to imprisonment (even if he has committed no criminal offence).

kerb crawling

The offence by a man of *soliciting a woman for prostitution in a street or public place either from a motor vehicle or having just alighted from one, when the soliciting is persistent or likely to cause annoyance to the woman or nuisance to other people in the vicinity.

kidnapping

n.

Carrying a person away, without his consent, by means of force, threats, or fraud. Kidnapping is a common-law offence punishable with a maximum sentence of life imprisonment. A man may be guilty of kidnapping his wife. Disputes between parents about the right to their children are dealt with in family proceedings. A parent with care of the child may obtain a warrant for the arrest of the other parent if he or she takes the child away. Failure to comply with an order for the return of the child amounts to contempt of court.

See also abduction; hostage.

kleptomania

n.

A mental disorder leading to the *irresistible impulse to steal.

knock-out agreement

An agreement by dealers not to bid against each other at an auction. Such an agreement is illegal (See auction ring).

knowhow

know-how

n.

Technical information often exploited in conjunction with a *patent. EU regulation 240/96 governs the terms that mayor may not be included in a knowhow licence agreement.

See technology transfer.

knowing receipt

If a stranger receives trust property knowing it to be in breach of trust, he will be liable to account to the beneficiaries for that property or for the proceeds of it (See tracing trust property).

laches

n.

(from Norman French lasches, slackness, negligence)

Neglect and unreasonable delay in enforcing an equitable right. If a claimant with full knowledge of the facts takes an unnecessarily long time to bring an action (e.g. to set aside a contract obtained by fraud) the court will not assist him; hence the maxim "the law will not help those who sleep on their rights" and "equity aids the vigilant". The defence of laches is only allowed if there is no statutory limitation period. If there is such a period, the claimant can bring an action at any time up to the expiry of the time stated.

See acquiescence; waiver.

Lady Day

See quarter days.

land

n.

Those parts of the surface of the earth that are capable in law of being owned and are within the court's jurisdiction. Generally, ownership of land includes the *airspace above it and the subsoil below. For the purposes of land law, the Law of Property Act 1925 defines land as including mines and minerals (whether or not owned separately from the surface), buildings, and most interests in land. Chattels fixed to the land so that they become part of it are also treated in law as land, under the maxim quicquid plantatur solo, solo cedit (See fixture).

land certificate

A document issued by the Land Registry to the proprietor of registered land as proof of his ownership of it.

See land registration.

land charge

An interest in *unregistered land that imposes an obligation on the landowner in favour of some other person (the chargee). If validly created and registered where appropriate under the Land Charges Act 1972 at the *Land Charges Department (See registration of encumbrances), land charges will normally bind purchasers of the land. Important examples of land charges created by act of the parties include mortgages not protected by deposit of title deeds, binding contracts for sale (including options and rights of pre-emption), *restrictive covenants that affect freehold land, and equitable *easements. Some land charges arise under statute; for example, a spouse's right to occupy the matrimonial home under the Matrimonial Homes Act 1983 (a Class F land charge) and the Inland Revenue charge for unpaid inheritance tax (a Class D land charge). Local land charges, which arise in favour of local authorities from the exercise of their statutory powers, are registered by the local authority itself and apply to *registered land as well as to unregistered land.

Land Charges Department

A department of the Land Registry, maintained under the Land Charges Act 1972 to keep registers of certain interests affecting the rights of persons owning *unregistered land (called estate owners). For the interests capable of being registered, See registration of encumbrances. Registration of land charges against the name of the estate owner constitutes notice to everyone of their existence and generally renders them binding upon purchasers of any interest or estate in the land affected. A person contemplating taking such an interest may apply to the Department for an *official search certificate, which will reveal all interests registered against the estate owner's name.

landlord

n.

A person who grants a lease or tenancy. He need not be the outright owner of the tenanted premises (he may, for example, be a lessee himself or even a licensee). A landlord may be an individual, a local authority, a trustee, a personal representative, or a corporation (such as a company). A landlord may provide services to the tenant, such as heating, lighting, and porterage. There are statutory controls on the amount that a landlord can charge for such services and procedures for consultation with the tenants. The person who receives the rent is obliged to reveal the landlord's identity on the tenant's request. When there is a change of ownership the new landlord must inform the tenant within two months or when rent is next due, whichever is the later. The kind of security of tenure a tenant has is affected by who his landlord is.

See assured tenancy; protected tenancy; secure tenancy; restricted contract.

land registration

The system of registering, at local branch offices of HM Land Registry, certain legal estates or interests in land. Under the Land Registration Act 1925 compulsory registration was to be introduced in a specified area by Order in Council; registration has now been extended to the whole of England and Wales, and over 90% of all land in England and Wales is now registered land. There is, however, no obligation on existing owners to register, but most transactions in land, including sale, gift, legal mortgage, etc., now trigger registration by the new or existing owner. If he fails to do so he does not acquire the legal estate and therefore runs the risk that the vendor or landlord may sell to someone else who can acquire a better title by registration. Existing owners or tenants under a lease having at least 21 years to run may register their titles if they wish.

Upon registration of a title the Land Registry allocates a title number. Evidence of title is provided by the issue of a land certificate to the owner (who is known as the registered proprietor) or, if the land is in mortgage, a charge certificate to the mortgagee. The certificate represents the registered title, which is in three parts, comprising;

(1) The property register. This describes the land and any additional rights incidental to it, such as rights of way over adjoining land. The filed plan shows the location of the land, usually with a general indication of the position of the boundaries. Registration of precise boundaries is possible under a special procedure involving notice to adjoining owners and hearing their objections.

(2) The proprietorship register. This names the registered proprietor(s) of the land and notes any restriction on their powers to dispose of it (for example, *restrictions, *inhibitions, *cautions, etc.). The register also states the nature of the title, which may be *absolute, *qualified, *possessory, or *good leasehold.

(3) The charges register. This details interests adverse to the proprietor, such as mortgages, restrictive covenants, or easements to which the land is subject.

The land certificate fulfils a similar function to title deeds to unregistered land, but if a more up-to-date record of the state of the registered title is required (for example, by a prospective purchaser or mortgagee), the Land Registry will issue *office copies or a certificate of *official search on application by the registered proprietor or any person with his authority to inspect the register. A registered proprietor's title is guaranteed by the state subject to *overriding interests, which are not registrable in the charges register. The extent of the guarantee depends on the nature of the title. The register can be rectified by the court in certain circumstances to correct a mistake; compensation is generally paid by the government to a party who suffers loss as a result.

Land Registry

A statutory body established under the Land Registration Act 1925 to maintain registers of certain legal estates in land.

See also land registration.

Lands Tribunal

A tribunal established by the Lands Tribunal Act 1949 to decide disputes concerning compensation for the compulsory acquisition of land and similar questions involving land valuation. It also determines disputes as to the value of land or buildings for inheritance-tax purposes. Its members, who must be legally qualified or experienced in valuation, are appointed by the Lord Chancellor, and it is subject to the supervision of the *Council on Tribunals.

lapse

n.

The cancellation of a bequest when the beneficiary dies before the testator. Thus, in general, if A's will leaves property to B but B predeceases A, the bequest does not take effect. The property becomes part of A's residuary estate and is distributed to his residuary beneficiaries. This rule is subject to the following exceptions.

(1) When property is bequeathed to two or more persons as joint tenants, those who survive the testator take the property.

(2) The Wills Act 1837 provides that when property is bequeathed to a child or remoter descendant of the testator who predeceases him but leaves descendants of his own who are alive at the testator's death, those descendants take the property (subject to a contrary intention being expressed in the will). A similar rule applies when property is left in tail (*entailed interest).

(3) Some gifts to charities that cease to exist before the testator's death may be applied *cy-pres.

(4) Most importantly, the testator may stipulate what is to happen to the gift if the beneficiary predeceases him.

lapse of offer

The termination of an *offer as a result of the passage of time, death, or the nonfulfilment of a condition. An offer made subject to a specified time limit lapses after that time has passed; all other offers lapse after a reasonable time. Death of the offeree causes an offer to lapse, but death of the offeror does not always do so. The offer remains available for acceptance if the death is unknown to the offeree and the resulting contract could be performed by the offeror's personal representatives. An offer lapses if one or more conditions are not fulfilled. An offer to buy goods, for example, is made on the assumption that they will remain in the same condition until acceptance; it lapses if that ceases to be the case.


Date: 2015-01-29; view: 981


<== previous page | next page ==>
Her Majesty's Stationery Office 5 page | Her Majesty's Stationery Office 7 page
doclecture.net - lectures - 2014-2024 year. Copyright infringement or personal data (0.018 sec.)