G L O S S A R Y 3 страница

magistrate: Also known as a JUSTICE OF THE PEACE. There are over 29,000 part-time lay magistrates in England and Wales who sit in local MAGISTRATES' COURTS hearing minor criminal cases. They are appointed by the LORD CHANCELLOR and (in Lancashire and Greater Manchester) the Chancellor of the Duchy of Lancaster, and are chosen from candidates within the local community.

Magistrates’ court: The junior court in the criminal justice system. It is also the first point of access for offenders to the court system. It does have some civil jurisdiction, for the most part concerned with MATRIMONIAL and family cases involving applications for maintenance and adoption, as well as cases over licensing the sale of liquor and applications by residents to change street names. Three magistrates usually sit together to decide cases, advised on the law by a CLERK.

Majority: 1. The status of one who has attained the age (usu. 18) at which one is entitled to full civic rights and considered legally capable of handling one's own affairs. 2. A number that is more than half of a total; a group of more than 50 percent <the candidate received 50.4 percent of the votes barely a majority>. A majority always refers to more than half of some defined or assumed set. In parliamentary law, that set may be all the members or some subset, such as all members present or all members voting on a particular question. A "majority" without further qualification usu. means a simple majority.

Marre Report: The 1988 report into the legal profession, written by committee set up jointly by the LAW SOCIETY and the BAR Council, named after its chairperson, Lady Marre. It recommended, among other things, extending RIGHTS OF AUDIENCE for SOLICITORS to the CROWN COURT and the right for solicitors to be made High Court JUDGES.

Master of the Rolls: The senior civil law judge, who presides over the COURT OF APPEAL, organising its work and allocating judges to cases, and who is in charge of the LAW SOCIETY Rolls.

Master of the Supreme Court: A senior judicial officer who hears minor cases and preliminary hearings in the CHANCERY and QUEEN'S BENCH divisions of the HIGH COURT.

matrimonial: The term for all law dealing with DIVORCE.

medical negligence: A type of case where a breach of legal duty to take reasonable care or exercise reasonable skill in a medical sense has occurred. There have been calls to establish a special NO-FAULT COMPENSATION scheme for medical accidents.

Monarchy: A government in which a single person rules, with powers varying from absolute dictatorship to the merely ceremonial.

National Legal Service: A concept for the future. The legal equivalent of the National Health Service, including a public, salaried legal profession and a court system wholly funded by the state. The merits and disadvantages of this concept have often been debated in law reform circles. The closest it has come to in England and Wales has been the setting up of the CROWN PROSECUTION SERVICE. See also PUBLIC DEFENDER.

negligence: The most common example of TORT in modern times. It consists of negligent behaviour resulting in damage to a person, where the person causing the damage owed a duty of care to the person suffering the damage. Common examples of a 'duty of care' are those owed by road users to each other and the duty owed by an employer to an employee. Because of the requirement to prove negligence, in English law COMPENSATION for harm is only available on proof of fault by an identifiable person.

no-fault compensation: A system in which liability would not have to be proved before a claim Of NEGLIGENCE and DAMAGES could be laid. Such a system operates in a number of Scandinavian countries and in New Zealand. It has the benefit of reducing delay in an injured party getting COMPENSATION but has two main disadvantages - that no one is proven to be at fault, and that the level of damages received could be less than what might have been received if a case were pursued after an admittance of liability.

nolle prosequi: (Latin to be unwilling to prosecute) A procedure by which an Attorney General may terminate criminal proceedings.

obiter dictum [Latin "something said in passing"] A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive). Often shortened to dictum.

offence: All offences are classified in one of three ways, and classification determines the court of trial of an accused person. Summary offences (the least serious) are always tried in the MAGISTRATES' COURTS. Indictable offences (the most serious, such as murder and treason) are always tried in the CROWN COURT. The third category consists of offences 'triable either way'. In these, the magistrates' court decides, according to the gravity of the offence, whether they should be tried summarily or on indictment. Theft isa good example of an offence triable either way; depending on the circumstances, it may be a very serious or a trivial offence. In most cases where the honesty or reputation of the accused is an issue, the accused retains the right to demand trial by jury in the crown court, even though the magistrates may have said that the case was suitable for summary trial.

official referees: A group of nominated CIRCUIT JUDGES who may sit as HIGH COURT judges to deal with cases requiring detailed examination of documents and accounts or scientific investigation. Many of the cases involve the construction industry. Subject to the approval of the LORD CHIEF JUSTICE, an official referee may accept appointment in a case as an arbitrator. See ARBITRATION.

Old Bailey: See CENTRAL CRIMINAL COURT.

Ombudsman: The Parliamentary Commissioner for Administration, known as the Ombudsman, is a semi-judicial officer who looks into maladministration of national and local government and its agencies. He/she has powers of investigation and his/her recommendations are generally complied with, although there is no legal duty to do so. Access to the Ombudsman is usually through elected officials, either MPs or councillors, although direct access has recently been granted to the local government ombudsman. There are also a number of different ombudsmen covering insurance, banking, the National Health Service, conveyancing and legal services.

Orders in Council - Government orders of a legislative character made by the Crown and members of the Privy Council either under statutory powers conferred on Her Majesty in Council or in exercise of the royal prerogative.

Parliamentary Commissioner for Administration (Parliamentary Ombudsman) An independent official appointed under the ParliamentaryCommissioner Act 1967 (as amended by the Parliamentary and Health ServiceCommissioners Act 1987) to investigate complaints by individuals or corporate bodiesof injustice arising from maladministration by a government department or bycertain nondepartmental public bodies, such as the Arts Council of England and theHousing Corporation. Appointment of the Commissioner is by the Crown on thePrime Minister's advice. The Commissioner may investigate complaints only if theyare submitted to him in writing through a Member of Parliament; investigation isentirely at his discretion. If he upholds a complaint and it is not remedied, hereports this to Parliament. Complaints of maladministration by devolved bodies inWales and Scotland are investigated by the Welsh Administration Ombudsman andthe Scottish Parliamentary Commissioner for Administration, respectively.

Patronage: 1. The giving of support, sponsorship, or protection. 2. All the customers of a business; clientele. 3. The power to appoint persons to governmental positions or to confer other political favors.

personal injury: A type ofcase in which injury has been caused to a person through NEGLIGENCE or lack of due care by another. See also COMPENSATION, CONTINGENCY FEE.

petition: A written application to the court for a legal remedy, such as damages or injunction. One who puts forward such a petition is a petitioner (divorce petition, bankruptcy petition).

plaintiff: Someone who starts an action in a CIVIL Court. See CLAIMANT.

Pledge: n. 1. A formal promise or undertaking. 2. The act of providing something as security for a debt or obligation. 3. A bailment or other deposit of personal property to a creditor as security for a debt or obligation; 4. The item of personal property so deposited; 5. The thing so provided. - Formerly also termed safe pledge. 6. A security interest in personal property represented by an indispensable instrument, the interest being created by a bailment or other deposit of personal property for the purpose of securing the payment of a debt or the performance of some other duty. 7. Hist. A person who acts as a surety for the prosecution of a lawsuit. In early practice, pledges were listed at the end of the declaration. Over time the listing of pledges became a formality, and fictitious names (such as "John Doe" or "Richard Roe") were allowed.

Precedent: n. 1. 'The making of law by a court in recognizing and applying new rules while administering justice. 2. A decided case that furnishes a basis for determining later cases involving similar facts or issues.

Prerogative: The special power, pre-eminence or privilege which the Queen has, over and above other persons, in right of her Crown and independently of statute and the Courts.

Principal: n. 1. (in criminal law) The person who actually carries out a crime. (Formerly, the actual perpetrator was known as the principal in the first degree and a person who aided and abetted was called principal in the second degree, but the former is now known as the principal and the latter as the secondary party.) A person can be a principal even if he does not carry out the act himself; for example, if he acts through an innocent agent, such as a child, or if he is legally responsible for the acts of another (e.g. because of *vicarious liability). 2. (in the law of agency) The person on whose behalf an agent acts. 3. (in finance) The sum of money lent or invested, as distinguished from the interest.

Principal: n. 1. One who authorizes another to act on his or her behalf as an agent 2. One who commits or participates in a crime. 3. One who has primary responsibility on an obligation, as opposed to a surety or indorser. 4. The corpus of an estate or trust. 5. The amount of a debt, investment, or other fund, not including interest, earnings, or profits.

Principle: n. A basic rule, law, or doctrine.

prison: The major penal institution for the criminal justice system.

Privy Council: A body, headed by the Lord President of the Council. Its functions are mainly formal. There are about 350 Privy Counsellors, who include members of the royal family, all Cabinet ministers, the Speaker and other holders of high non-political office, and persons honoured for public services.

probate: The law concerned with wills and estates.

Procurator Fiscal: The official in Scotland to whom the police report comes, and who decides whether to bring a prosecution. See CROWN PROSECUTION SERVICE.

product liability: The liability of a manufacturer or distributor of a product for death or injury caused by a defect in that product. For products originating in the European Community, it is no longer necessary to prove that a defect came about as a result of NEGLIGENCE. The manufacturer has a good defence to a claim if it can be shown that there was no way of knowing that a product would be defective. This is known as the 'state of the art' defence.

prosecution: The process whereby a defendant is accused ofa crime in the criminal justice system, act of bringing someone to court to answer a charge.

public defender: The office that represents defendants in criminal trials, this representation being paid for out of the public purse. This system is used in the United States and its application has been canvassed here as a counter-balance to the CROWN PROSECUTION SERVICE. See also NATIONAL LEGAL SERVICE.

public inquiry: A procedure presided over by an official who may be an inspector (as in planning inquiries) or a legally qualified chairperson. It is used to make recommendations to government ministers in cases where decisions will be potentially controversial or adversely affect the interests of private individuals. The consequent decision and the proceedings of the public inquiry are subject to JUDICIAL REVIEW.

Qualified: adj. 1. Possessing the necessary qualifications; capable or competent <a qualified medical examiner>. 2. Limited; restricted <qualified immunity>.

Queen's Bench Division: The largest of the three DIVISIONS OF THE HIGH COURT, which has the broadest range of work – from general civil claims for debts and damages to contract disputes. It has specialist courts within it: the COMMERCIAL COURT, which, as its name suggests, deals with commercial matters; the Admiralty Court for shipping disputes; and the Divisional Court for JUDICIAL REVIEWS and APPEALS from MAGISTRATES' COURTS on points of law, and also where the remedy of HABEAS CORPUS can be sought. It also has the largest number of judges assigned to it (53), including those on the Crown Office List who specialise in judicial reviews.

Queen's Counsel (QC): A senior BARRISTER who has “taken silk” – that is, been selected to be a QC. Each year, barristers of at least 15 years' standing canapply to the LORD CHANCELLOR; usually only some 50 are selected. As a QC, a barrister can command a higher fee and is more likely to be picked to be a HIGH COURT judge.

ratio decidendi: n. [Latin"the reason for deciding"] 1. The principle or rule of law on which a court's decision is founded. 2. The rule of law on which a later court thinks that a previous court founded its decision; a general rule without which a case must have been decided otherwise.

Recorder: A part-time judicial officer who hears cases in crown and county Courts. There are some 1000 recorders and assistant recorders. Both SOLICITORS and BARRISTERS are eligible for appointment.

Redress: n. (14c) 1. Relief; remedy <money damages, as opposed to equitable relief, is the only redress available>. 2. A means of seeking relief or remedy <if the statute of limitations has run, the plaintiff is without redress>.

registrar: See DISTRICT JUDGE, MASTER OF THE SUPREME COURT

remand: The period in custody after being charged with a criminal offence and before being sent for trial. Although there are a number of remand centres in England, there are so many remand prisoners that some must stay in prisons and police cells, a situation that has led some to declare a state of crisis in the remand system.

remedy (redress. relief): n. Any of the methods available at law for the enforcement, protection, or recovery of rights or for obtaining redress for their infringement. A civil remedy may be granted by a court to a party to a civil action. It may include the common law remedy of damages and/or the equitable remedies of quantum meruit, injunction, decree of specific performance.

remuneration: The means by which lawyers are paid, particularly from the LEGAL AID fund. Lawyers claim that legal aid remuneration is too low and have even taken the LORD CHANCELLOR to court over its levels. See also COSTS.

representation: The process by which individuals are represented in court by lawyers.

rider: A statement, opinion, or piece of advice added esp. to an official declaration or judgment.

rights of audience: The right of a lawyer to represent clients in court. BARRISTERS used to have sole rights of audience in CROWN COURTS and the higher courts. SOLICITORS are allowed to appear in the COUNTY COURTS and MAGISTRATES' COURTS and at TRIBUNALS. Recent enabling legislation has created the possibility of solicitors being granted wider rights of audience. The terms on which this will happen are being hammered out in negotiations. The principal objection by barristers is that solicitors should be subjected to the “cab-rank rule”, in the same way as barristers.

Rigid constitution: a constitution whose terms cannot be altered by ordinary forms of legislation, only by special amending procedures. The U.S. Constitution is an example. It cannot be changed without the consent of three-fourths of the state legislatures or through a constitutional convention. U.S. Const. art. V.

Rolls: The list of qualified solicitors, organised by the LAW SOCIETY. See also MASTER OF THE ROLLS.

Royal assent: The agreement of the Crown, given under the royal prerogative and signified either by the sovereign in person or by royal commissioners, that converts a Bill into an Act of Parliament.

Royal Courts of justice: The major courthouse in England based in the Strand, London. It houses the COURT OF APPEAL and the major High Court in England. With over 60 courtrooms and back-up administrative staff, it is seen as the centre of the English legal system.

Royal prerogative: The special rights, powers, and immunities to which the Crown alone is entitled under the common law. most prerogative acts are now performed by the government on behalf of the Crown.

Royal proclamation: A document by which the sovereign exercises certain prerogative powers and certain legislative powers conferred on her by the statute.

Royal style and titles: These were made by Proclamation in 1953, and are: "Elizabeth II, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith".

sentence: An order of a court imposing a penalty, following the conviction of an accused person. The Sentencing power of MAGISTRATES' COURTS is generally limited to a FINE of £2000 and / or a term of imprisonment of not more than six months on anyone charged; a term of imprisonment may be suspended forup to two years. There is now a wide variety of sentences available. See also COMMUNITY SERVICE ORDER, PRISON.

sequestration: The seizure of a person's or a company's assets by the court for preservation pending the outcome of legal proceedings.

separation of powers: the division of governmental authority into three branches of government legislative, executive, and judicial - each with specified duties on which neither of the other branches can encroach; a constitutional doctrine of checks and balances designed to protect the people against tyranny.

sheriff: The officer of the HIGH COURT, whoimplements orders of the court in debt collection and other matters.

sheriff court: A Scottish court with both civil and criminal jurisdiction. The judges are the Sheriffs Principal and the Sheriff's Substitute.

slander: See LIBEL.

small claims court: Part of the COUNTY COURT where claims under £1000 are heard by a DISTRICT JUDGE. The procedure is informal. Although there is no LEGAL AID for small claims cases, the normal rules about COSTS do not apply. This acts as a disincentive to the use of lawyers for representation. See also ARBITRATION.

solicitors: Lawyers who advise and represent clients in all stages of the legal process, but cannot appear in the higher courts as ADVOCATES, and who usually therefore instruct COUNSEL to do so. There are 50,000 practising solicitors in England and Wales, all of whom are members of the LAW SOCIETY. Solicitors usually operate out of medium-sized firms comprising a number of partners, junior solicitors and ARTICLED CLERKS. The largest firm in the country has almost 200 partners and over 800 legally qualified staff. Some solicitors operate as sole practitioners, although they are finding it more difficult in the new climate of competition. Seealso CONVEYANCING, RIGHTS OF AUDIENCE.

Solicitor General: A junior government minister, usually an MP, who is the second law officer of the Crown under the ATTORNEY GENERAL.

source of law: something (such as a constitution, treaty, statute, or custom) that provides authority for legislation and for judicial decisions; a point of origin for law or legal analysis.

Spec Scheme: A system used in Scotland where lawyers can waive their fees before a case has commenced so that, if the case is lost, clients won't have to pay. If it is won, the lawyers will be paid by the other side. This scheme is banned in England and Wales, although many believe it has merits in providing more access to justice for those both too poor to pay for legal services and too well off to be eligible for LEGAL AID. See also CONTINGENCY FEE.

specialist panels: Panels of lawyers who are experts in certain fields of law. There are already two specialist panels – in child care and mental health law - and, of course, specialist ADVOCATES. There is a possibility that more panels may come into being in the fields of PERSONAL INJURY, MEDICAL NEGLIGENCE and housing, especially for LEGAL AID clients where the state is trying to cut down on waste due to lack of expertise. Eventually, only lawyers who are members of the relevant panel may be allowed to practise in that field of law.

stare decisis: n. [Latin "to stand by things decided"] The doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation.

statute book: The entire body of existing statutes.

statute law: See ACT OFPARLIAMENT.

stipendiary magistrates: The more than 60 full-time, legally qualified magistrates.who sit on their own in MAGISTRATES'COURTS, usually in the major cities.

Strasbourg Court: See EUROPEAN CONVENTION OF HUMAN RIGHTS,

structured settlement: A form of settlement in very large claims for DAMAGES for PERSONAL INJURIES where the injured party is permanently disabled and usually with a reduced life expectancy. Instead of a lump sum, the claimant is awarded an income for life or for a fixed period, which is to be raised by the defendant purchasing an annuity for the benefit of the claimant. This form of settlement is economic from the defendant's point of view, and the claimant is compensated in full. This form of settlement has to be approved by the Inland Revenue as well as the court.

Subject: n. One who owes allegiance to a sovereign and is governed by that sovereign's laws.

subordinate legislation: Orders in Council, orders, rules, regulations, schemes, warrants, byelaws and other instruments made or to be made under any ACTOF PARLIAMFNT. Many modern Acts only legislate on a subject in outline, leaving the details to be filled in later by subordinate legislation. Such legislation is subject to special parliamentary scrutiny, and it may also be ruled invalid by a court if the minister exceeds the powers that the Act of Parliament confers on him/her. Several thousand items of subordinate legislation pass through Parliament each year.

subpoena: A court order directing a person to attend court to give evidence or to produce documents; used when a person is unwilling to do so voluntarily. Failure to comply with the order is CONTEMPT of court and may lead to imprisonment or another penalty.

Succession: n. 1. The act or right of legally or officially taking over a predecessor's office, rank, or duties. 2. The acquisition of rights or property by inheritance under the laws of descent and distribution; 3. The right by which one group, in replacing another group, acquires all the goods, movables, and other chattels of a corporation. 4. The continuation of a corporation's legal status despite changes in ownership or management.

Succession; n. 1. The law and procedures under which beneficiaries become entitled to property under a testator's will or on intestacy. 2. (in international law) The transfer of sovereignty over a territorial entity from one subject of international law (i.e. one state) to another. As a result of succession, an existing state becomes totally extinguished (as when Tanganyika and Zanzibar ceased to exist in 1964 on the formation of Tanzania) or a state transfers part of its territory to another state.

Successive: adj. 1. Archaic. (Of an estate) hereditary. 2. (Of persons, things, appointments, etc.) following in order; consecutive.

To sue: To bring a civil action in the courts.

Suffrage: 1. The right or privilege of casting a vote at a public election. 2. A vote; the act of voting.

summary offence: See OFFENCE.

Summon: vb. To command (a person) by service of a summons to appear in court.

summons: A summons is issued when criminal proceedings are commenced and is sent to the defendant. It states the general nature of the OFFENCE, and the place and time the defendant is to appear. It is also used in civil proceedings to start a county court case.

Supreme Court: A collective term for the COURT OF APPEAL, the HIGH

COURT and the CROWN COURT, which together comprise the Supreme Court of England and Wales.

surveillance: Keeping watch on a suspect= watching someone carefully to get information about what he is doing.

'take silk': See QUEEN'S COUNSEL.

to tender (for) – 1) To make a formal offer to do something for a particular price; 2) to present for acceptance; 3) to offer in payment.

Tenur: n. (l5c) 1. A right, term, or mode of holding lands or tenements in subordination to a superior. In feudal times, real property was held predominantly as part of a tenure system. 2. A particular feudal mode of holding lands; 3. A status afforded to a teacher or professor as a protection against summary dismissal without sufficient cause. This status has long been considered a cornerstone of academic freedom. 4. More generally, the legal protection of a long-term relationship, such as employment.

tort: A breach of a duty that has been imposed by the law on all persons for the protection of other persons' lives, persons, reputations and well-being. Such breaches of duty give rise to a civil action by the person harmed by the other's breach of duty.

See also DELICT, NEGLIGENCE, TRESPASS.

Treasury: The government department that controls public expenditure and sets the level of the budgets for the various departments involved in the administration of justice and the legal system.

Treasury Counsel: A group of Counsel appointed by the ATTORNEY GENERAL to prosecute on direction of the DIRECTOR OF PUBLIC PROSECUTIONS in criminal trials in the CENTRAL CRIMINAL COURT. The Junior Counsel to the Treasury is instructed by the Treasury Solicitor to represent government departments in major civil cases, usually JUDICIAL REVIEWS.

Treaty - An international agreement in writing between two states (a bilateral treaty) or a number of states (a multilateral treaty). Such agreements can also be known as conventions, pacts, protocols, final acts, arrangements and general acts. In England the power to make or enter into treaties belongs to the monarch, acting on the advice of government ministers, but a treaty does not become a part of English law until brought into force by an Act of Parliament. (Paris Treaty (1951); Treaty of Rome (1957); Maastricht Treaty (1992).

trespass: An unlawful interference with a person or a person's land or possessions.

trial: The process whereby cases are heard and decided by either a judge or a judge and jury.

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