G L O S S A R Y 2 страница

Director of Public Prosecutions (DPP): A government appointee, usually a barrister or solicitor of at least ten years' standing, whose office prosecutes in criminal cases for the state. He/she also controls the CROWN PROSECUTION SERVICE who report directly to him/her. With some serious crimes, such as riot, the prosecution can only go ahead with the consent of the DPP.

disclosure and inspection: previously known as discovery. The process wherby each side in a court action serves a list of relevant documents on the other. The other party then has the right to inspect those documents.

discretion – the reasonable exercise of a power or right to act in a n official capacity.

district judge: Formerly known as a district registrar, a judicial officer who sits in the COUNTY COURT and hears minor cases, especially under the SMALL CLAIMS jurisdiction. He also deals with preliminary questions in other litigation.

Divisions of the High Court: There are three divisions in the HIGHCOURT: Chancery, Family and Queen's Bench Divisions. Judges are assigned to particular divisions, and only hear disputes in the areas that that division covers. See also CHANCERY DIVISION, FAMILY DIVISION, QUEEN'S BENCH DIVISION.

divorce: Dissolution of marriage on the grounds of its irretrievable breakdown. See also CONCILIATION, MATRIMONIAL.

Dominium - In the civil and old English law, ownership; property in the largest sense, including both the right of property and the right of possession or use. The right which a lord had in the fee of his tenant.

duty solicitors: Solicitors who are available on a voluntary, rota basis, and who are paid out of theLEGAL AIDfund to provide assistance and cover at MAGISTRATES' COURTS and in police stations.

Election: n. 1. The process of choosing by vote a member of a representative body, such as the House of Commons or a local authority. For the House of Commons, a general election involving all UK constituencies is held when the sovereign dissolves Parliament and summons a new one; a by-election is held if a particular constituency becomes vacant (e.g. on the death of the sitting member) during the life of a Parliament. Local government elections (apart from those to fill casual vacancies) are held at statutory intervals. The conduct of elections is regulated by the Representation of the People Acts 1983 and 1985. The Representation of the People Act 2000 made some changes to electoral registration and absent voting and allowed for experiments involving innovative electoral procedures. Other changes make it easier for the disabled to vote and created an offence of supplying false particulars on a nomination form. Voting is secret and normally in person, but any elector can obtain a postal vote without having to specify a reason. The only requirement is that the applicant is included in the Register of Electors. Applications for a particular election must be received by the Electoral Registration Officer six working days before an election. Different rules apply in Northern Ireland. Any dispute as to the validity of the election of a Member of Parliament or a local government councillor is raised on an election petition, which is decided by an election court consisting of two High Court judges. 2. A doctrine of equity, commonly applied to wills, based on the principle that a person must accept both benefits and burdens under one document. or reject both. It arises when there are two gifts in one document, one of A's (the creator's) property to Band one of B's property to C. B must choose whether to accept the gift of A's property to him and transfer his own property to C. or to reject both gifts.

Eligible: adj. fit and proper to be selected or to receive a benefit; legally qualified for an office, privilege, or status.

emergency powers: Powers conferred by government regulations during a state of emergency. The existence of such a state is declared by royal proclamation under the Emergency Powers Acts 1920 and 1964. A proclamation which lasts for one month but is renewable, may be issued whenever there is a threat (e.g. a major strike or natural disaster) to the country's essentials of life.

equity: A body of law that grew up under the control of the royal official known as the Chancellor ( nowthe Lord Chancellor).By his position, the Chancellor was able to mitigate the sometimes harsh consequences of applying strict rules of law. Today equity is that part of common law that enables the courts to exercise discretion in granting and withholding remedies where the good faith and conscience of the parties' behaviour towards one another is a relevant issue – for example, in the granting of an INJUNCTION in a dispute between neighbours over property boundaries.

European Convention of Human Rights: This was ratified by the United Kingdom in 1951 and later by the 20 other European member states of the Council of Europe. It has 18 articles laying down fundamental rights for citizens, such as the right to freedom of expression. The majority of signatories have incorporated it-into their domestic law including the United Kingdom. There is a European Court of Human Rights in Strasbourg. which acts as a final court of appeal for all signatories. The UK accepts the compulsory jurisdiction of the Strasbourg Court, provided all domestic judicial remedies have been exhausted. Although the UK government has a record of being found in violation of the Convention more than 20 times, such rulings have usually resulted in a change of UK domestic law. See also BILL OFRIGHTS.

European Court of justice: The court of the European Community, based in Luxembourg. It interprets European COMMUNITY LAW and the Treaty of Europe. It is also a final court of appeal for individuals challenging Community law or their own country's interpretation of it. It has 13 judges from the member states, and six advocates-general who present cases before the Court. There is also a Court of First Instance attached to the European Court of justice, which deals with, among other things, questions of Community competition policy, following appeals against the decisions of the European Commission on matters such as large-scale mergers between companies.

European regulations, directives and decisions. These are the three legal terms for European COMMUNITY LAW that affects member states. A regulation is binding on all countries; a directive affects all states but it is up to individual states to achieve the aim of the directive by whatever means they choose; and a decision affectsonly the body or country to which it is addressed. See also EUROPEAN COURT OF JUSTICE.

evidence: Anything produced, whether physically or verbally, to defend or prosecute a case in court.

exception (or exemption) clause: A clause introduced into a CONTRACT by a party who is offering to supply goods and services, which purports to limit or exclude a responsibility that the law would place on that party. Following the belief that people only make agreements they intend to keep, courts used to enforce these clauses literally. However, in recognition of the fact that these terms are actually imposed on a take-it-or-leave-it basis by firms supplying goods and services, today the tendency is to limit or deny altogether the effectiveness of such clauses, especially in consumer contracts.

Executive: n. 1. The branch of government responsible for effecting and enforcing laws; the person or persons who constitute this branch. The executive branch is sometimes said to be the residue of all government after subtracting the judicial and legislative branches.

Family Division: The division of the HIGH COURT that deals with divorce, contested custody of children, and complicated financial disputes between husbands and wives, and has jurisdiction over wards of court. It has its own president and some 17 judges assigned to it.

federal government: 1. A national government that exercises some degree of control over smaller political units that have surrendered some degree of power in exchange for the right to participate in national political matters. - Also termed (in federal states) central government. 2. The U.S. government. Also termed national government.

fine: A monetary penalty imposed on a convicted offender; the most common form of sentence. When current legislation is brought into force, fines will be based on a unit system, which will relate the amount of the fine to an offender's ability to pay out of his or her disposable income.

flexible constitution: a constitution that has few or no special amending procedures. - The British Constitution is an example. Parliament can alter constitutional principles and define new baselines for government action through ordinary legislative processes. The

Canadian Constitution also grants its legislature some limited ability to amend the Constitution by legislation.

fraud: A false representation by means of a statement or conduct made in order to gain a material advantage.

Green Form scheme: The common name for the Legal Advice and Assistance Scheme for LEGAL AID,by which citizens can get up to two hours' work done for them by solicitors at no charge.

habeas corpus: A WRIT used to compel a person who is detaining another in custody to produce that person in court. See also QUEEN'S BENCH DIVISION.

High court: The High Court Sits in the ROYAL COURTS OFJUSRICE in London and at some 25 other centres around England and Wales and is divided into three divisions: Chancery, Family and Queen's Bench. See also DIVISIONS OF THE HIGH COURT.

Home Office: The government department that runs the criminal justice system in England and Wales, headed by the Home Secretary. It funds and supervises the MAGISFRATES' COURTS and the CROWN PROSECUTION SERVICE, as well as the prison system.

House of Lords: The second chamber of Parliament, and the highest APPEAL court in the land. There are ten Lords of Appeal in Ordinary, or LAW LORDS, five of whom sit to hear each appeal case.

Human Rights Act: legislation, enacted in 1998, that brought the European Convention on Human Rights into domestic law for the whole of the UK on 2 October 2000. In the past the use of the Convention was limited to cases where the law was ambiguous and public authorities had no duty to exercise administrative discretion in a manner that complied with the Convention.

The Act creates a statutory general requirement that all legislation (past or future) be read and given effect in a way that is compatible with the Convention. Section 3 provides that all legislation, primary and secondary, whenever enacted, must be read and given effect in a way that is compatible with Convention rights wherever possible.

The Act requires public authorities - including courts - to act compatibly with the Convention unless they are prevented from doing so by statute. This means that the courts have their own primary statutory duty to give effect to the Convention unless a statute positively prevents this. Section 7 gives the *victim of any act of a public authority that is incompatible with the Convention the power to challenge the authority in court using the Convention, to found a cause of action or as a defence. The Act introduces a new ground of illegality into proceedings brought by way of judicial review, namely, a failure to comply with the Convention rights protected by the Act, subject to a 'statutory obligation' defence. Secondly, it will create a new cause of action against public bodies that fail to act compatibly with the Convention. Thirdly, Convention rights will be available as a ground of defence or appeal in cases brought by public bodies against private bodies (in both criminal and civil cases). Section 7(5) imposes a limitation period of one year for those bringing proceedings.

However, only persons classified as "victims" by the Act are able to enforce the duty to act compatibly with the Convention in proceedings against the authority, and only victims will have standing to bring proceedings by way of judicial review. Most private litigants, at least in private law proceedings, will count as victims. The Convention rights that have been incorporated into the Act are: Articles 2 to 12, 14, 16, 17,18; Articles 1 to 3 of the First Protocol; and Articles 1 and 2 of the Sixth Protocol.

The Act requires any court or tribunal determining a question that has arisen in connection with a Convention right to take into account the jurisprudence of the Strasbourg organs (the European Court and Commission of Human Rights and the Committee of Ministers). This jurisprudence must be considered "so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen", whenever the judgment, decision, or opinion to be taken into account was handed down.

Section 19 provides that when legislation is introduced into Parliament for a second reading, the introducing minister must make a statement, either (1) to the effect that, in his view, the legislation is compatible with the Convention, or (2) that although the legislation is not compatible with the Convention, the government still wishes to proceed. If it is not possible to read legislation so as to give effect to the Convention, then the Act does not affect the validity, continuing operation, or enforcement of the legislation. In such circumstances, however, section 4 empowers the high courts to make a declaration of incompatibility. Section 10 and schedule 2 provide a 'fast-track' procedure by which the government can act to amend legislation in order to remove incompatibility with the Convention when a declaration of incompatibility has been made.

The Act gives a court a wide power to grant such relief, remedies, or orders as it considers just and appropriate, provided they are within its existing powers. Damages may be awarded in civil proceedings, but only if necessary to afford just satisfaction; in determining whether or not to award damages and the amount to award, the court must take account of the principles applied by the European Court of Human Rights.

Sections 12 and 13 provide specific assurances as to the respect that will be afforded to *freedom of expression and *freedom of thought, conscience, and religion: these are 'comfort clauses' for sections of the press and certain religious organizations...

The Act does not make Convention rights directly enforceable against a private litigant, nor against a quasi-public body with some public functions if it is acting in a private capacity. But in cases against a private litigant, the Act still has an effect on the outcome, because the court will be obliged to interpret legislation in conformity with the Convention wherever possible; must exercise any judicial discretion compatibly with the Convention; and must ensure that its application of common law or equitable rules is compatible with the Convention.

immunity: Freedom or exemption from legal proceedings. Examples include the immunity of the sovereign personally from all legal proceedings.

Imperium - The right to command, which includes the right to employ the force of the state to enforce laws. This is one of the principal attributes of the power of the executive.

indictment: A written or printed description of the charges laid against an accused person in serious criminal cases. See also OFFENCE.

Ineligible: adj. (18c) (Of a person) legally disqualified to serve in office.

injunction: A judicial order restraining a person or body from carrying out a specific action, or requiring the carrying out of anaction.

Inns of Court: The areas in London where BARRISTERS have their CHAMBERS. There are four Inns: Lincoln's Inn, Gray's Inn, Inner Temple and Middle Temple. They charge minimum rents and are administered by a senior official known as the Treasurer. They also have an upper tier of senior members called 'benchers'.

inquisitorial: An alternative trial system, used mainly on the Continent, whereby judges play a more investigational role and manage cases themselves, calling their own witnesses instead of having them presented by defendants' and plaintiffs' Counsel. See also ADVERSARIAL.

judge: A person appointed in the name of the Crown to hear cases in court and give decisions based on the evidence and arguments presented at the trial. The most senior judges are appointed on the advice of the Prime Minister; the majority of others are appointed by the LORD CHANCELLOR. Eligibility for appointment will in future depend upon having had specified RIGHTS OF AUDIENCE. The dominance of barrister appointees is likely to continue for some considerable time. See also CIRCUIT JUDGE, LAW LORD, LORD JUSTICE OF APPEAL.

Judgment: n. 1. A decision made by a court in respect of the matter before it. Judgments may be interim (interlocutory), deciding a particular Issue prior to the trial of the case; or final, finally disposing of the case. They may be in personam, imposing a personal liability on a party (e.g. to pay damages); or in rem, determining some issue of right, status, or property binding people generally. 2. The process of reasoning by which the court's decision was arrived at. In English law it is the normal practice for judgment to be given in open court or, in some appellate tribunals, to be handed down in printed form. If the Judgment contains rulings on important questions of law, it may be reported in the *law reports.

judicial review: The procedure whereby administrative decisions are reviewedby the judiciary in the Divisional Court of the, QUEEN'S BENCFI DIVISIONof the HIGHCOURT. They can only look at the legal and procedural side of a decision, not at its merits. It is seen as a growth area in the law. See also PUBLIC INQUIRY.

jury: Made up of 12 men and women chosen at random from the electoral register. Juries hear criminal cases in CROWN COURTS and LIBEL cases in the HIGH COURT, and make decisions at CORONERS' inquests. Their role in criminal and libel cases is to decide guilt or innocence after hearing all the facts and to set levels of damages in libel hearings.

justice of the peace: Another term for MAGISTRATE.

law centre: Community-based legal offices that offer free advice and representation. There are some 60 law centres in England and Wales, mostly in inner city areas where there is a scarcity of private practitioners; Set up primarily during the 1970s to provide access to the law for people of modest or no means, they are constantly threatened with closure due to lack of funds. Most of their income comes from central and local government and from LEGAL AID work.

Law Commission: A body established in 1965 to make proposals for updating and reforming the law. There is a separate Scottish Law Commission. Many reforms have been based on the work of these two bodies - for example, changes in consumer law.

Law Lords: The most senior judges Of APPEAL,also known as Lords of Appeal in Ordinary. There are ten Law Lords who sit in the HOUSE OF LORDS in panels of five.

Law Society: The organisation that looks after the interests of the SOLICITORS' profession. Until 1989, it played a dual role, acting as, the solicitors’ trade union and policing the profession as well as running the administration of LEGAL AID.This latter duty passed on to the LFGAL AID BOARD in April 1989.

lawyer: The collective term used to describe either a BARRISTER or a SOLICITOR.

lease: A contract under which an owner of property (the landlord or lessor) grants another person (the tenant or lessee) exclusive possession of the property fro an agreed period, usually (but not necessarily) in return for rent and sometimes for a capital sum known as a premium. A lease must be made by a formal document (a deed) which is itself called a lease. The deed that creates the lease sets out the terms, which include the parties, the property, the length of the lease, the rnt, and other obligations (covenants).

legal aid: The system by which citizens can pay for legal services funded out of public expenditure. The legal aid budget is run at approximately £500 million per annum, and is divided between civil, criminal and GREEN FORM legal aid. There are different and complicated criteria for qualifying for legal aid, which take income and capital savings into account and there is also the possibility that one may be asked to pay a contribution. The last official figure put the eligibility for legal aid at 70% of the population, although most experts now believe the percentage be much lower. For very serious crimes, where a person's liberty or reputation is at stake, different criteria - known as the “Widgery Criteria” after a former Lord Chief justice - apply; most applicants would qualify, although they must still pass a means test. Legal aid is not, however, available for certain actions such as libel, for TRIBUNALS or for the SMALL CLAIMS COURT. There are further proposals to require applicants to expend their capital resources before legal aid is granted, thus converting the scheme into a 'safety net' scheme. See also LAW SOCIETY.

Legal Aid Board: The body set u' in 1989 to take over the administration of LEGAL AID from the LAW SOCIETY. It consists of between 11 and 17 members drawn from business and the legal professions.

legal aid scheme: A scheme under the Legal Aid Act 1988whereby the payment of legal costs was made out of public funds for those unable to meet the costs themselves, provided that the person qualified under the financial and merits tests laid down under the scheme. There were separate provisions for civil and criminal cases. Civil legal aid had two components: legal advice and assistance (sometimes known as the green form scheme) and legal aid. Under the former, payment was made to qualified lawyers under the scheme who provided legal advice and help preliminary to litigation. Under legal aid, payment was made for the provision of legal advice and assistance at all stages of litigation, including appeals. In criminal cases, the court determined whether or not legal aid was granted and made a legal aid order if it considered legal aid desirable in the interest of justice. The legal aid scheme was replaced in April 2000 by the *Community Legal Service. Under this new scheme of legal aid and assistance, the green form scheme was replaced by the legal help scheme and legal aid was replaced by full representation; there are, in addition, intermediate levels of service.

legal insurance: An alternative way of paying for legal services, which operates very much like health insurance. It is still in its infancy in England and Wales, although in West Germany, over 50% of households have some sort of legal insurance. It is becoming quite common in Britain to find this form of insurance offered as an extra with household and motor insurance policies.

Legislation: n. 1. The whole or any part of a country's written law. In the UK the term is normally confined to Acts of Parliament, but in its broadest sense it also includes law made under powers conferred by Act of Parliament, law made by virtue of the royal prerogative. 2. The process of making written law.

Legislation: 1. The process of making or enacting a positive law in written form, according to some type of formal procedure, by a branch of government constituted to perform this process. - Also termed lawmaking; statute-making. 2. The law so enacted. 3. The whole body of enacted laws.

Legislator: n. One who makes laws within a given jurisdiction; a member of a legislative body. Also termed lawmaker.

Legislature: The branch of government responsible for making statutory laws. - The federal government and most states have bicameral legislatures, usu. consisting of a house of representatives and a senate.

Legislature: n. The body having primary power to make written law. In the UK it consists of Parliament, i.e. the Crown, the House of Commons, and the House of Lords.

liabilities: Debts of a business.

liability: Being legally responsible for paying for damage or loss.

libel: An untrue statement made about aperson, which tends to bring that person into the hatred, ridicule or contempt of 'right- thinking' members of society ormight make people shun oravoid him/her. To be a libel, the statement must be in written form or broadcast. Everyone who repeats the libel, as well as the original maker of the statement, may be sued. It is a defence to show that the statement was substantially true or was fair comment on a matter of public interest, but such a defence isdifficult to establish in court. English libel law is more strict than the law in the US, and some people. believe that it unduly inhibits free comment in the media. Exceptionally for civil cases in England and Wales. libel actions are still tried by a judge sitting with a jury. In certain instances - for example, when libellous things are said in court or in Parliament and then printed or broadcast - no proceedings may be brought at all. Slander is the term used for untrue statements made orally. In both cases, the statement must be published and read (or broadcast and heard) by a third person.

limited liability: Principle that by forming a limited liability company, individual members are liable for that company’s debts only to the value of their shares.

limited liability company: Company where a member is responsible for repaying the company’s debts only up to the face value of the shares he owns.

listing: The system of putting cases down for trial. Cases are either assigned a specific date or are regarded as floaters and can be slotted in whenever a court becomes free.

litigation: The process of fighting or defending a legal case. Litigation may only be conducted for reward by solicitors and any others who may gain litigation rights under the Courts and Legal Services Act 1990, – going to law/ bringing of a lawsuit against someone to have a dispute settled.

Lobby: vb. (1837) 1. To talk with or curry favor with a legislator, usu. repeatedly or frequently, in an attempt to influence the legislator's vote <she routinely lobbies for tort reform in the state legislature>. 2. To support or oppose (a measure) by working to influence a legislator's vote <the organization lobbied the bill through the Senate>. 3. To try to influence (a decision-maker) <the lawyer lobbied the judge for a favorable ruling>.

Lord Advocate: The senior government law officer in Scotland.

Lord Chancellor: The senior figure in the administration of justice. He is unique among public office holders for he has responsibilities that range over all three branches of government: he is at once a member of the executive as a senior Cabinet minister, a member of the legislature as ex officio speaker of the House of Lords, and the head of the judiciary, from time to time exercising judicial functions as a LAW LORD in the House of Lords. His primary task is to ensure the efficient administration of justice. He is responsible for CIVIL LAW reform and for the selection of virtually all JUDGES and judicial officers, MAGISTRATES, QUEEN'S COUNSEL and TRIBUNAL chairpersons, and for the smooth running of the court system and the LEGAL AID system. He has a government department to back him up, and a staff of 10,000 who work either in his department, out on the CIRCUIT or in the ROYAL COURTS OF JUSTICE. See also CHANCERY DIVISION, CIRCUIT JUDGE.

Lord Chief justice of England: The senior judge in England who sits in the criminal division Of the COURT OF APPEAL and presides over the QUEEN'S BENCH DIVISION of the High Court.

Lord justice of Appeal: One of the 27 judges who sit in the COURT OF APPEAL.

Lord of Appeal in Ordinary: See LAW LORD.

Luxembourg Court: See EUROPEAN COURT OF JUSTICE.

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