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Dictionary of legal terms - B
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[Home][Index - Dictionary][Dictionary of legal terms - B]

UK Law Dictionary - English Legal System

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Bad faith 

 

Intent to deceive. A person who intentionally tries to deceive or mislead another in order to gain some advantage.


Bail 

 

Criminal law.  A commitment made (and possibly secured by property for example a passport) to secure the release of a person being held in custody and suspected of a crime, to provide some kind of guarantee that the suspect will appear to answer the charges at some later date. 


Bailee 

 

The person who receives property through a contract of bailment, from the bailor, and who may be committed to certain duties of care towards the property while it remains in his or her possession


Bailment 

 

The transfer of possession of something (by the bailor) to another person (called the bailee) for some temporary purpose (e.g.. storage) after which the property is either returned to the bailor or otherwise disposed of in accordance with the contract of bailment.


Bailor

 

The person who temporarily transfers possession of property to another, the bailee, under a contract of bailment.


Bankruptcy

 

The formal condition of an insolvent person being declared bankrupt under law. The legal effect is to divert most of the debtor's assets and debts to the administration of a third person, sometimes called a "trustee in bankruptcy", from which outstanding debts are paid pro rata. Bankruptcy forces the debtor into a statutory period during which his or her commercial and financial affairs are administered under the strict supervision of the trustee. Bankruptcy usually involves the removal of several special legal rights such as the right to sit on a board of directors or, for some professions, that form part of the justice system, to practice, such as lawyers or judges. Credit is limited to a fixed amount, currently about 250 pounds.   Commercial organisations usually add other non-legal burdens upon bankrupts such as the refusal of credit. The duration of "bankruptcy" status varies but it does have the benefit of erasing most debts even if they were not satisfied by the sale of the debtor's assets. 


Bare trust 

 

A trust that has become passive for the trustee because all the duties the settlor may have imposed upon the trustee have been performed or any conditions or terms have come to fruition, such as there is no longer any impediment to the transfer of the property to the beneficiary


Barrister 

 

An advocacy specialist; a lawyer whose main work is directed towards the courtroom.

 

In England and some other Commonwealth jurisdictions, a legal distinction is made between barristers and solicitors, solicitors are the main providers of oral or written advice, and barristers conduct litigation in the courts, although the distinctions are increasingly becoming blurred.

 

Nevertheless, in England and Wales, barristers and solicitors work together: the solicitor would typically make the first contact with a client and if the issue cannot be resolved and proceeds to trial, the solicitor would transfer the case to a barrister for an opinion or advocacy in the courts.

 

Lawyers in other countries sometimes use the title "barrister and solicitor" because there is no legal distinction between the roles. In the USA all lawyers are referred to as "attorneys".

 

In the UK a lawyer cannot be both a solicitor and barrister. 


Barrister's wig

 

Headgear worn by barristers when appearing in certain courts. They are not worn in all courts, for example in a magistrate court or when before a judge in chambers and on some other occasions a barrister will be without his/ her wig.  When a wig is worn it is always together with a black robe and double-tabbed linen band that serves as a collar, a tie is not worn  More here.

They are generally made of horse hair and can be hot and itchy.  They cost around £400.


Base rate 

 

The interest rate set by the Bank of England which is used as the basis for other banks' rates. (Civil Justice Rules) 


Bastard 

 

An illegitimate child, born in a relationship between two persons that are not married (i.e. not in wedlock) or who are not married at the time of the child's birth. 


Battered Woman Syndrome

A post-traumatic stress disorder.

The jury in a murder trial can consider Battered Woman Syndrome as a relevant characteristic, which makes her more prone to loss of self-control.

In 1994 battered women's syndrome was included for the first time in the British classification of mental diseases.  An appeal out of time was allowed in R v Hobson [1998] CA and a retrial ordered to consider the new medical evidence.  Battered woman syndrome was confirmed as a characteristic in R v Smith (Morgan) [2001] HL

 

In 2005 the position appeared to be reversed following Jersey v Holley [2005] PC.


Bench 

A judge in court session.   The collective noun for magistrates.


Beneficiary 

 

In a legal context, a "beneficiary" usually refers to the person for whom a trust has been created. May also be referred to as a "donee" or, as a cestui que trust. Trusts are made to advantage a beneficiary (i.e.. A settlor (also called a "donor") transfers property to a trustee, the profits of which are to be given to the beneficiary). This is a person who benefits under a will.


Bequeath 

This is to leave something in a will.


Benefit of clergy

Extensively from the middle ages onwards, whereby being a member of the clergy removed the jurisdiction of secular courts.  There are many myths (legal fictions) surrounding this privilege.


Bequest

 

This is something given in a will, other than land or real property.


Berne Convention 

 

An international copyright treaty called the Convention for the Protection of Literary and Artistic Works signed at Berne, Switzerland in 1886 (amended several times and as late as 1971) and to which now subscribe 77 nations including all major trading countries including China, with the notable exception of Russia. It is based on the principle of national treatment.


Bigamy 

 

Being 'married' to more than one person at the same time. As it is not possible to be married to two people at the same time the expression 'a form of marriage' is used.  This is a criminal offence in most countries.


Bill of exchange 

 

A written order from one person (the payor) to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at some fixed future date, a certain sum of money, to either the person identified as payee or to any person presenting the bill of exchange. A cheque is a form of bill of exchange where the order is given to a bank.


Bill of lading 

 

A document that a transport company possesses acknowledging that it has received goods, and serves as title for the purpose of transportation.


Black letter law

 

Phrase used to describe law as it is formally written and not necessarily in context for example not law in a social or political context. 

 

The phrase "Black letter law" is often used to reflect the learning of law at universities in contrast with the Bar Vocational Course or the Legal Practice Course which is law as a practical subject.


Blackstone, William

 

William Blackstone was born on July 10, 1723, educated at Charterhouse and Pembroke College Oxford, called to the Bar in 1746, and appointed Solicitor-General in 1763.

 

 

 

His lectures were published between 1765 and 1769 in the form of ‘Commentaries on the Laws of England’.

 

 

 

In 1768 he entered Parliament, and in 1770 was appointed a judge of the Common Pleas. He died on February 14 1780.

 

 

 

In addition to his famous Commentaries, he was the author of an Analysis of the Laws of England, and two volumes of reports.


Blind trust 

 

A trust set up by a settlor who reserves the right to terminate the trust but other than that, agrees to assert no power over the trust, which is administered without account to the beneficiary/settlor or the retention of any other measure of control over the trust's administration.

 

It is a convenient for an individual to use a blind trust to avoid any conflict of interest.


Boiler rooms

 

UK fraud and sharp practice (scams) involve boiler rooms, which are offices, usually overseas, used to sell shares to UK investors.

 

 

 

Boiler rooms have the appearance on paper as firms, but they only have that appearance.  They target their victims by phone. 

 

 

 

"Investors" can be the victims of multiple scams for example buying worthless shares from an unauthorised firm and then later being approached by a "different firm" which offers to sell the shares at a vast profit providing a "fee or tax" is paid up front.

 

 

 

Boiler rooms are not authorised by the Financial Services Authority (FSA) and act illegally by selling and promoting the sale of shares in the UK.

 

 

 

Often shares that are sold are not listed on stock exchanges and can be very difficult for investors to sell on.

 

 

 

Most boiler rooms operate outside the UK and are beyond the reach of the FSA who is limited to targeting companies linked to them.

 

 

 

Boiler room forum, here.


Bona fide 

 

[Latin: in good faith]  Used to signify honesty and absence of fraud or collusion or participation in any wrongdoing.


Bona vacantia 

 

[Latin: Property that belongs to no person] which may be claimed by a finder. In the UK, the crown (exchequer) becomes owner of all bona vacantia property.  This often occurs when a person dies intestate.


Born out of wedlock 

Born of parents who were not married at the time of birth.


Breach of contract 

 

The failure to perform (do what one promised to do) under a contract. Proving a breach of contract is a prerequisite of any action for damages based on the contract.

 

 


Breach of the Peace

 

The word “peace” in Breach of the Peace is thought by most to mean the opposite of “war”.  Many police officers and magistrates consider a broader interpretation meaning not to annoy and not to be rowdy – any breach of the normal state of society.

 

 

 

The leading case is R v Howell [1982] CA.  

 

The definition in Howell is:

 

“We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.”

 

Some courts use the broader definition per Lord Denning MR in R v Chief Constable of Devon and Cornwall, ex parte Central Electricity Generating Board [1982] CA

 

 

 

Denning held that mere physical obstruction of a person lawfully going about his business could in itself amount to a breach of the peace, without the need for any violence to have been caused or to be likely.

 

 

 

There cannot be a rigid definition because the courts need to keep pace with changing circumstances” ((1999) 27 E.H.R.R. 493, para 41 ).

 

 

 

In Steel and Others v United Kingdom (1998) 28 EHRR 603, the five applicants had all been arrested for breach of the peace and contended, as one of the grounds of their applications to the authorities in Strasbourg, that breach of the peace was too ill-defined a concept to meet the requirement that the ground of their arrest be "prescribed by law" within the meaning of article 10(2) of the European Convention.

 

 

 

This complaint was successfully repelled by the British Government. The Commission (pp 627-628, paras 146-148) considered that the concept had been defined by the passage in R v Howell quoted above.

 

The court considered that the concept had been clarified by the English courts over the past two decades, and now had a meaning which was sufficiently established.

 

 

 

The accuracy of this definition has been generally accepted.

 

 

 

So the definition is still vague and it is not possible to predict with any degree of with certainty whether any particular type of behaviour qualify as a breach of the peace.

 

 

 

The conduct in question does not itself have to be disorderly or a breach of the criminal law.  It is sufficient if its natural consequence would, if persisted in, be to provoke others to violence, and so some actual danger to the peace is established (Percy v Director of Public Prosecutions (1995) QBD 

 

 

 

A breach of the peace is not, as such, a criminal offence, but founds an application to bind over.

 

The standard of proof is nevertheless the criminal standard, beyond reasonable doubt.


Breach of trust 

 

Any act or omission on the part of the trustee which is inconsistent with the terms of the trust agreement or the law of trusts. A prime example is the redirecting of trust property from the trust to the trustee, personally.


Buggery

 

Synonymous with sodomy and referring to "unnatural" sex acts, including copulation, either between two persons of the same sex or between a person and an animal (the latter act also known as "bestiality"). Most countries outlaw bestiality but homosexual activity is gradually being decriminalised.  It is not unlawful in the UK in certain circumstances.


Burden of proof 

 

A rule of evidence that makes a person prove a certain thing or the contrary will be assumed by the court. For example, in criminal trials, the prosecution has the burden of proving the accused guilt because innocence is presumed.


Burglary

 

Theft Act 1968, s. 9 (1) A person is guilty of burglary if;
(a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; or
(b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.
(2) The offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm or raping any person therein, and of doing unlawful damage to the building or anything therein.
Section 9 creates two separate offences: one of entering a building (or part of a building) as a trespasser with the requisite intent, contrary to s. 9(1)(a); the other of having entered a building (or part of a building) as a trespasser and committing one of the four specified offences, contrary to s. 9(1)(b).


 

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