Forgery, in criminal law, fraudulently altering a written document or seal with the intent of injuring the interests of another person or of fraudulently obtaining governmental revenue. Forgeries must be executed with such skill or in such circumstances that they would be mistaken for genuine documents by the average person. To imitate the handwriting of another or the form of the simulated document is not necessarily attempted. If the intention was to deceive, and the circumstances were such as to render deception possible, then the crime has been committed; consequently, forgery includes signing the name of a person who cannot write. Any material alteration, however slight, such as the unauthorized use of another's signature, is as much a forgery as is transferring a genuine signature to a document for which it was not intended, or the fabrication of an entire document.
The offence is not limited to the fabrication of writing, but includes the fabrication of printed or engraved instruments, such as railway and aeroplane tickets, stock certificates, and bonds. Moreover, the false document must have an apparent legal efficacy. A letter of introduction, although requesting a personal favour for the bearer from the one to whom it is addressed, is not a subject of criminal forgery.
To secure a conviction for forgery it is necessary to prove an intent to defraud, but not that the purpose should have been actually effected; it is sufficient to show that the forgery would have proved injurious to another's interests had it gone ahead
Contempt, law essentially concerned with the administration of justice. It provides for restrictions on public trials, free reporting, and commentary on the judicial system where this serves the interests of justice. It follows that the law of contempt is potentially restrictive of freedom of information and expression and that the media is likely to be particularly affected and limited by provisions protective of the judicial system.
Indictment, in criminal law, a formal, written accusation of crime against a person, upon which the accused person is subsequently tried. A valid indictment must contain a statement of the time and place of the commission of the offence and the material facts charged against the accused. All the facts alleged in the indictment must be precisely proved.
An indictment must be signed by an officer of the Crown Court, and is usually drawn up after a defendant is committed for trial by jury by examining magistrates. Alternatively, a High Court judge may issue a voluntary bill of indictment in exceptional circumstances. In the case of serious fraud, or sexual offence cases involving children, the prosecution may send a case directly to the Crown Court.
Acquittal, in criminal law, judicial discharge of the accused. Acquittal automatically follows a determination by a judge or jury that the defendant is not guilty of the charge on which he or she was tried. After accused people have been acquitted they may not lawfully be tried a second time for the same act. Such a trial would place them in double jeopardy of losing their life, liberty, or property in violation of common law. A defendant prosecuted in breach of this principle may make the plea of autrefois acquit or autrefois convict, which claims that he or she has already been acquitted or convicted (and punished). This plea is normally made in writing before the case begins, and if it is disputed the issue is decided by the judge without a jury. Protection against double jeopardy normally extends to any prosecution based on the same acts. Thus, if the accused has been acquitted on a charge of using a weapon to commit a murder, he or she may not be retried for having committed an assault on the alleged victim. If a trial is terminated because of a procedural defect, however, the defendant is not protected by the rule against double jeopardy and may be prosecuted again on the same or a related charge.
Reprieve, in criminal law, the temporary suspension of a sentence, such as a stay of execution (in countries that have retained the death penalty), granted a person convicted of a capital crime. A reprieve is usually granted by the sovereign or chief executive; in some cases it may be granted by the court that tried the offender.
The purpose of the reprieve is generally to allow an investigation into the legality of the conviction or into alleged newly discovered evidence in favour of the convicted person. A reprieve delays an execution, although, unlike a pardon or a commuted sentence, it does not negate a sentence unless the reinvestigation shows that the prisoner has been unjustly tried or sentenced.
. Attachment, in law in the United States and Great Britain, the act or process of seizing property or apprehending people by writ or precept of a court of record and of bringing such property or people within the custody of the law; also, the writ or other judicial process employed to effect that purpose. In some states of the United States, including New York, attachment extends to land as well as to personal property; in other states land may be seized by the similar process of distress or distraint.
Misdemeanour, in criminal law, term originally applied to any offence other than a felony. The distinction between felony and misdemeanour has been abolished in the United Kingdom
Dying Declaration, statement, made by a person who has been physically injured at the hands of another, and who has given up all hope of recovery and who subsequently dies of such injury, as to the cause of his or her death. In law, such statements are permitted to be given in evidence. This allowance is an exception to the rule that excludes hearsay evidence from the consideration of the jury. The exception is based on the assumption that statements made by a dying person in the apprehension of death are as trustworthy as those made in open court under oath; however, dying declarations made by those other than the victim of a murder are inadmissible, in either civil or criminal cases.
Felony, in common law, the second most serious of the three classifications of crimes. The first classification is treason and the third, covering all minor offences, is misdemeanour. The distinction between felonies and misdemeanours is artificial and corresponds roughly to that between grave offences and those less heinous in character. Formerly, a felony was any crime punishable by the criminal's forfeiture of any lands or goods, or both; other punishment might be added to the forfeiture, according to the degree of guilt. Since 1967, the distinction between felonies and misdemeanours has been abolished in England, though at one point most felonies were punishable by death.
Limitations, Statutes of, in law, statutes that fix a definite period of time within which a civil legal action must be commenced. A person who has a cause of action to bring to court (the plaintiff) loses the right of action if he or she fails to institute legal proceedings within the time limit set for that particular action. In English law, actions for damages for personal injury must be commenced within three years of the injury being suffered. Other actions must be commenced within six years. The court may extend these limits.
Except for minor offences triable only summarily (see Crime) there is no time limit in English law for a criminal prosecution to be brought, although the court may dismiss a prosecution if the length of time elapsed makes it unfair to the defendant. Many other countries have such limitations. The period of limitation varies for different civil wrongs. The period fixed by the statute of limitations with respect to civil actions runs for the time the actionable events occurred. Where damage does not become evident until some time after an incident, the period may run from the date when the damage was or should have been discovered. In the case of actions on negotiable instruments, a partial payment by the debtor starts the period again from the date of such payment. In the case of actions involving minors or people with mental disorders, the running of the period set by the statute is suspended during the minority or mental incapacity of the plaintiff but begins as soon as the person comes of age or is deemed legally sane.
The Magna Carta of 1215 contains 63 clauses. The first restates the charter that John issued in 1214, which had granted liberties to the Church. In many clauses John promises to be less harsh in enforcing his feudal rights on the barons, and another clause states that the barons must grant to their tenants all the feudal concessions that the king has made to them. Many clauses concern the legal system; in these John promises to provide good and fair justice in various ways. The last few clauses concern enforcement of the document.
The two most important clauses of the Magna Carta are among the legal clauses. Clause 40 promises: “To no one will we sell, to no one will we deny or delay right or justice.” This clause establishes the principle of equal access to the courts for all citizens without exorbitant fees. In clause 39, the king promises: “No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way destroyed, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land.” This clause establishes that the king would follow legal procedure before he punished someone. Historians have debated at length the meaning in 1215 of “by lawful judgment of his peers or by the law of the land”, and who exactly was covered by the term “free man”. By the later 14th century, however, statutes interpreting the Magna Carta equated “judgment of his peers” with trial by jury (which did not exist in criminal cases in 1215). Other statutes rephrased “by the law of the land” as “by due process of law”. These later statutes also substituted “no one” or “no man of any sort or condition” for “no free man”, which extended the protections of the clause to all the king’s subjects. These protections were later cited in many founding documents of the American colonies, and were also incorporated into the Constitution of the United States.
By most accounts only clauses 39 and 40 of the Magna Carta remain valid law in England. Eventually, the other clauses became outmoded and some were repealed. Nonetheless, the Magna Carta remains a major document in the history of individual liberty. The document establishes the principle that no person, not even the king, is above the law. More specifically, this means that the government must follow its own laws in its dealings with its citizens, just as citizens must obey the law in their dealings with other citizens. See also British Constitution; Civil Rights and Civil Liberties.
Probation, method of substituting supervision by a court-appointed agent in lieu of imprisonment. As a general rule, probation is used mostly in instances of youthful offenders and first offenders. A probation officer is usually employed to supervise the offender for the probation period, which is fixed by the court. During this period, the offender must not commit criminal offences and must report to the probation officer at regular intervals to give an account of his or her activities, including employment and leisure time. At the end of the probation period, the probationer is discharged.
Bylaw, legal rule made for particular areas or activities by an authority which is not the legislature (the law-making authority for the law of the land). The authority is given the power to make bylaws by the legislature in order to regulate some activity undertaken by or under the control of the authority. The power is usually defined to indicate within which boundaries it can be exercised. Bylaws have the force of law, and generally establish minor criminal offences.
Accessory (law), in criminal law, accomplice in the commission of an offence as distinguished from the chief offender. An accessory before the fact is one who deliberately encourages others to commit an offence, but who does not take a direct part in the offence. An accessory after the fact is one who, knowing that an offence has been committed, takes active steps to shelter the offender from justice or to enable the offender to escape. Accessories may be distinguished from principals in the second degree, that is, people who, although not the actual perpetrators of the crime, were nevertheless present and aided and abetted in the commission of the offence. The tendency of modern legislation has been to convert accessories before the fact into principals, and an accessory before the fact is often subject to a punishment as severe as that imposed upon a principal. An accessory after the fact, on the other hand, is subject to less severe penalties.
Larceny, in criminal law, felonious taking of money or personal property of another. Larceny is distinguished from robbery, in that the latter involves the use of force or threats of injury against the person from whom the money or property is taken. Examples of larceny are the picking of another's pocket, the embezzlement of funds by a bank employee, or obtaining property by fraud or false pretences.
In the old common law, several elements had to be present to constitute larceny: the property had to be actually taken and carried away and had to be in the absolute possession of the thief; the taking and carrying had to be against the consent of the owner or possessor, and accompanied by a simultaneous felonious intent at the time the property was taken. Larceny in old common law was classified as compound or simple. Simple larceny was called grand larceny when the value of the stolen property was more than 12 pence, and petit (petty) larceny when the value was less. Compound larceny was the taking and carrying away of property from the person or house of the owner.
Embezzlement, the wrongful taking and using of property by a person who has been entrusted with it. Embezzlement differs from larceny in that the property wrongfully appropriated had been in the lawful care of the embezzler, as for example in the case of the legal guardian who takes for his or her own use money that has been entrusted to him or her. Today, embezzlement in England is one species of theft which is not separately defined in the criminal law.
Censorship, laws concerned with state restrictions on the expression, the publication, and the dissemination of information. In a democracy, freedom from censorship is an important protection of particular freedoms, especially freedom of speech and freedom of the press.
Precedent, legal principle which demands that certain courts decide the legal issues in cases in the same way as previous courts have decided the same issues. It is by this process that the rules of the common law are developed. In any individual case, the legal principles applied that are necessary to the decision (known as the ratio decidendi) then become the law and should be similarly applied in subsequent cases. Any part of a judge's reasoned judgment that is not necessary to his decision (for example, comments on hypothetical situations) is known as obiter dicta (“things said otherwise”).
How significant previous cases are depends on which court made the decision. The decisions of higher courts are almost always binding on those below them. Decisions of courts of first instance (that is, those that first hear the case) are never binding, but courts at that level try to be consistent with each other.
In the United Kingdom in 1966 the House of Lords, the final appeal court, announced that it considered itself not bound by its own decisions, a position it has upheld and dismissed several times since. It has, however, refused to allow the Court of Appeal (the next court down the hierarchy in England and Wales) the same latitude when that Court attempted to reverse some of its own decisions. Court of Appeal judgments now make law for that Court itself and all other courts except the House of Lords. If the Court of Appeal has decided an issue, it can only be changed in a subsequent case by persuading the House of Lords to overrule the decision in the first case; this applies even if the judges sitting in the Court of Appeal would be ready to change the law themselves. An exception is in criminal cases, where the importance of the citizen's liberty is considered to outweigh the benefits of increased certainty in the law, and the Court of Appeal can depart from a previous decision if it considers it to have been a wrong one.
Community Service, legal punishment for a crime that consists of the criminal doing a number of hours of work in the form of useful activities in the community. Community sentences were first made available to the courts in 1973 in Britain as part of an attempt to direct people away from prisons. This was not entirely successful, and since then several attempts have been made to encourage courts to use community service in order to give it credibility as a real alternative to a jail sentence.
Jack the Ripper, pseudonym of a murderer held to have been responsible for at least five unsolved murders that took place in the Whitechapel area of east London between August and November 1888
Stigmatizing people is basic to the history of humankind, especially if one thinks of a continuum from prisoners’ clothing or the branding of outcasts—the height of which was shown by the enforced wearing of yellow star and other marks in the concentration camps in World War II. Stigma can be the absence of marks of distinction or rank, as well as the presence of marks of disapproval, such as a criminal record.
Homicide, in criminal law, killing of a human being by the act, procurement, or negligence of another. Homicide is a generic term, covering not only the crimes of murder and manslaughter but also the taking of a human life under circumstances justifying the act or in a sense excusing its commission. Thus, the killing of an enemy on the battlefield as an act of war is considered justifiable homicide, and killing, without malice, to save one's own life or the lives of one's dependants is termed excusable homicide.
Turpin, Dick (1706-1739), English criminal nicknamed “The King of the Road”. Turpin was involved in smuggling, housebreaking, and horse stealing, but is best known as a highwayman.
Age of Consent, in law, the age when a person is considered to be fully bound by his or her words and deeds and to be capable of legally restricted activities. Those under the age of consent are said to be minors. The age of consent varies for different actions in different countries. Every country has a minimum age of consent for marriage. In the United Kingdom, for example, although a person acquires the legal capacity to conclude a binding contract at the age of 18, he or she can marry at 16 (with parental consent in England and Wales); in the United States, however, matrimonial consent can be given in some states by a boy at age 14 and a girl at age 12. The age of consent for homosexual acts (in countries that legally permit it) may also differ; in the United Kingdom it was lowered in 2000 from 18 to 16 (17 in Northern Ireland).
In criminal law, children under the age of 10 cannot be found guilty of any crime. Children between the ages of 10 and 13 must be proved by the prosecution to know the difference between right and wrong, and only if that is proved may they be found guilty of a crime.
There is no specific age at which a child can consent to medical treatment, but the practitioner must decide whether the child is mature enough to make such a decision with the full understanding of the risks and consequences. Parents can give consent for treatment on their child's behalf, but courts may override both the child's and the parent's decision in order to protect the welfare of the child.
Fry, Elizabeth (1780-1845), English prison reformer, born Elizabeth Gurney at Norwich, Norfolk, on May 21, 1780, the daughter of a Quaker banker. In 1800 she married another Quaker, Joseph Fry, and became a minister and preacher for the Society of Friends in 1810. Always attentive to the poor and neglected, her interest in prison conditions began after visiting Newgate prison in 1813 and seeing the plight of women and children there. She fought for what are now regarded as first principles: classification of criminals, segregation of the sexes, female supervision of women, and provision for education. In 1818 she gave evidence at a Royal Commission, and later saw many of her proposed reforms carried out. But her zeal did not stop there. For 20 years she checked every female convict ship before it sailed; inspected prisons and mental hospitals in Scotland and Ireland; instituted a Nursing Order; provided libraries for coastguard stations; and struggled for housing and employment for the poor. Between 1838 and 1842 she visited all the prisons in France, reporting to the Interior Minister, and travelled through Belgium, Holland, Switzerland, Germany, and Denmark on similar missions. Ill-health prevented further travels, but everywhere she had been the authorities put her suggestions to practical effect. She died at Ramsgate, Kent, on October 12, 1845.
Insanity, in a legal context, state of mental incapacity that modifies a person's status, chiefly in criminal law where it is seen as reducing a person's culpability for his or her acts. Mental condition is relevant to competence to stand trial, the person's degree of responsibility for the offence, and the relevant sentence on conviction.
Coroner, originally, an officer of the English Crown; later, a public official whose function was to inquire into deaths from questionable causes. The position was already established in England by the 12th century, and the primary duty of the coroner was to keep a record of all criminal matters that arose in his county, mainly in order to collect the fines and dues owed to the sovereign. In 1887, by English law, the chief duty of the coroner was to conduct a legal inquiry, or inquest, to determine the cause of a sudden or violent death. This is the only function that has substantially survived to the present day. Since 1888 the coroner has been appointed by the county or borough council.
Modern coroners must be trained in medicine (with not less than five years standing) or law. The coroner is empowered to seek the assistance of medical practitioners when necessary, as in the performance of an autopsy, and to send periodic reports to judicial authorities detailing all the cases that have occurred. In Great Britain, the verdict of a coroner's jury accusing a person of homicide is sufficient to bring that person to trial.
In the United States, coroners are either popularly elected or appointed by local authorities. The office has fallen into disrepute, however, and in many states a medical examiner is appointed instead.
Civil rights and liberties in the United Kingdom are, almost uniquely in the world today, nowhere embodied in a comprehensive written form. This lack of a written constitution means that citizens’ rights are found in many documents, in judge-made law, and most often in unwritten principles, or “conventions”. The most important written documents are Magna Carta, whose most famous clause guarantees a fair system of justice, or due process; and the Bill of Rights, which established the supremacy of Parliament, and in a modern democracy guarantees, for example, that nobody shall be taxed without representation. Other written sources are statutes, such as the habeas corpus Acts, which should prevent arbitrary detention.
British judges have made laws with the rights of the citizen in mind. In particular, they have directed the law against an over-powerful government. One of the very few occasions on which exemplary damages (that is, damages awarded in order to punish a wrongdoer) are available in English law is when the harm is the result of oppressive or arbitrary action by government officials. Judges have also created laws that protect the citizen from decisions made unreasonably by government bodies. In the long term, the creation of a criminal law system that strives for procedural fairness is mostly judicial work. Within that field other human rights are considered: judges should always aim to interpret a statute creating criminal offences in favour of the accused, and to ensure laws are not creating retrospective legislation, that is making an act punishable now that was not punishable when it was performed. The protection that judges afford the citizen waxes and wanes, however, with judicial fashion and the political climate. They are also unable to moderate when they are faced with the clear intentions of Parliament.
Conventions provide a more wide-ranging source of rights. Under this heading might be included the guiding principle of the British constitution, which has been used to explain why there is no comprehensive list of rights: that is, everybody is free to do what they like, so long as it has not been prohibited. Whether this is in fact true is a controversial question. Other more specific conventions protect such rights as the right not to have property confiscated without compensation; or the right to equal treatment, by making everybody subject to the law of the land. The content of these conventions is difficult to describe, since they are informal. For this reason they provide uncertain protection.
These points have led to calls for a written Bill of Rights that would clearly set out the citizen’s basic rights. The right to do what is not prohibited may be inadequate if the prohibitions are easily multiplied. Such calls have been inhibited by difficulties over what such a Bill might contain: “second generation” rights, such as the right to health care or to a decent standard of living, have even been advocated, demonstrating how close the issue of civil rights comes to live political issues. Nevertheless, all of the major political parties in the United Kingdom, save the Conservative Party, support some sort of rights document.
Juvenile Crime, in law, term denoting various offences committed by children or youths under the age of 18. Such acts are sometimes referred to as juvenile delinquency. Children's offences typically include delinquent acts, which would be considered crimes if committed by adults, and status offences, which are less serious misbehavioural problems such as truancy and parental disobedience. Both are within the jurisdiction of the youth court; more serious offences committed by minors may be tried in criminal court and be subject to prison sentences.
Evidence, the means by which disputed facts are proved to be true or untrue in any trial before a court of law or an agency that functions like a court. Because English law is committed to a rational rather than a formalistic system of evidence, no value is assigned to the form or the quantity of evidence offered. Effectiveness is generally determined by how persuasive the evidence seems, especially to a jury. In a few cases formal rules are enforced. Some transactions, such as wills or transfers of land, must be evidenced by written documents
The most numerous courts in England and Wales are the magistrates’ courts, where Justices of the Peace, or magistrates, sit. Most magistrates are laypeople who sit on a bench of three with a legally qualified clerk who advises them on the law. In cities there are also stipendiary magistrates who are legally qualified and sit alone. The office of Justice of the Peace is an ancient one, which pre-dates its recognition in statute in 1361. Now it is largely governed by acts of Parliament.
Magistrates decide the vast majority of criminal matters and a limited range of civil and administrative questions. Appeal can be made from the magistrates’ decision to the Crown Court, where a circuit judge sits, usually with two magistrates who did not hear the case in the magistrates’ court. The appeal is a complete rehearing of the case, and evidence is heard again if it is in dispute. The Crown Court has power in these cases, unusually, to increase as well as decrease the sentence imposed below: this may discourage hopeless appeals. The only further appeal is to the Divisional Court of the High Court on a point of law, or on the grounds of unfairness in the proceedings. Cases may also reach the Crown Court when magistrates commit a convicted defendant for sentence, which allows the Crown Court to use its greater powers. This is done when the magistrates think a case is too serious for them to deal with.
The majority of work in the Crown Court covers trials on indictment, that is, relating to formal charges. These cases are first heard in the Crown Court, to which they are committed by magistrates, who decide whether there is enough evidence to make a case against the defendant; more often than not this is now a formal matter, made on paper, although there is provision for the defendant to require evidence to be given. Trials on indictment are heard by a judge and jury. The seniority and special qualifications of the judge determine the kind of case he or she is permitted to preside over. The judge decides the law, and the jury the facts.
Crown Court jurisdiction was created in 1971 and replaced Quarter Sessions, which dealt with matters somewhat more serious than in magistrates’ courts, and appeals from magistrates, and assize courts, which were held when High Court judges came from London to the provinces. The old system was too inflexible and sat too infrequently to deal with the increasing volume of criminal business.
Appeal from the Crown Court is to the Court of Appeal Criminal Division, which usually consists of a Lord Justice of Appeal, and two judges of the High Court. This is not a hearing but a true appeal, so the appellant (the person making the appeal) has to show that there was a mistake in law or some flaw in the proceedings which meant that he or she did not receive a fair trial. There is provision for the Court of Appeal to find that, while the trial was flawed, no injustice to the defendant was done, and the conviction should stand nonetheless. An appeal against sentence must show that the sentence was manifestly excessive.
Either the defendant or the prosecution may appeal to the House of Lords in its appellate capacity, which does not involve lay members of the House, but is heard by a committee of paid Lords of Appeal in Ordinary. The appeal is only available if the Court of Appeal certifies that a point of law of general public importance is involved, and if either that court or a Lords’ committee gives leave.
Code (law), in jurisprudence, a systematic compilation of law in written form, issued by rulers in former times, and promulgated by legislative authority after the rise of representative governments. Early legal codes were little more than statements of the bodies of customs that had obtained the force of law in civilized communities. The earliest legal code known in its entirety is the Babylonian cuneiform Code of Hammurabi of the 18th century bc, discovered in 1901. Four fragments of an earlier Babylonian cuneiform code, known as the Code of Lipit-Ishtar, were discovered in about 1900 and deciphered in 1948.
Parole, in criminal law, pledge of good conduct given by a person convicted of crime (the parolee) as a condition of release from imprisonment before the term of confinement has expired. The word parole is also broadly used to denote such a conditional release or period of liberty. Parole is usually granted to a prisoner in recognition of past good conduct, both in prison and earlier. A sentenced criminal may be released on parole before the maximum limit of the prison term has been reached, either when the minimum term, or some other shorter term fixed by statute on condition of good behaviour, has expired. In such cases the release is not an absolute discharge, such as that received as a matter of right on the expiration of the full term, but is conditional on the due performance of the parolee's pledge. During the same parole period the parolee is required to report from time to time to prison authorities or to a probation officer to whose custody he or she was assigned when released. Other stipulations of parole include avoiding association with known criminals and remaining within a certain locality. For a violation of parole within the time limit, the parolee is liable to be apprehended and returned to prison to serve out the full or maximum term.
In the United Kingdom, prisoners serving less than four years are paroled automatically after half the sentence, but the parole may be subject to conditions for the duration of another quarter of the sentence. Prisoners serving four years or more may be released after half the sentence, subject to certain conditions, and must be released when they have served two-thirds. Life-sentence prisoners are released when they are considered to have paid the penalty for their offence, and to be no longer a danger to the public. Life prisoners remain on licence, liable to be recalled to prison if they offend again.
Extradition, in law, surrender by one sovereign power to another of a fugitive from justice. Between nations, the right of one power to demand of another the extradition of a fugitive accused of crime, and the duty of the country in which the fugitive has found asylum to surrender this person, exist only when created by treaty. Because the political systems and penal codes of various nations differ considerably, most have given definite expression in treaties to their mutual obligations regarding extradition. The conventions between the United States and the United Kingdom in 1842, 1889, and 1900 enumerate which offences two such leading nations consider extraditable. The general rule is that extraditable crimes must be those commonly recognized by civilized nations as malum in se (acts criminal by their very nature), and not merely malum prohibitum (acts made crimes by statute), and must be included in the extradition treaty.
It is an almost universal rule, however, that a state will not surrender its own citizens to a foreign power, and it is generally regarded as an abuse of the principle of extradition for a state to secure the surrender of a criminal for an extraditable offence and then to punish this person for an offence not included in the treaty.
The current position defines extradition crimes as those which would be crimes in both the United Kingdom and in the country seeking extradition, punishable in both cases by at least 12 months' imprisonment. There is no extradition for crimes of a political nature or of military law, nor where there is a risk of persecution or prejudice for the defendant's beliefs.
A magistrates' court determines whether or not extradition should be considered. According to the decision, either the foreign state or the defendant may argue the issue subsequently in the High Court. If the matter is to be considered, the decision rests finally with a government minister. This occurred in the case made against the former Chilean dictator General Augusto Pinochet. A Spanish court made a request for him to be extradited to stand trial in Spain for human rights abuses of Spanish citizens and Pinochet was arrested in London in October. His appeal against extradition reached the House of Lords and was turned down in March 1999, after a first hearing in late 1999 was deemed invalid because of a technicality. Pinochet's appeal against this judgment was considered by the Home Secretary Jack Straw, who decided in April 1999 that Pinochet should be extradited to Spain. Extradition proceedings were opened in September, and a ruling the following month stated that Pinochet's extradition to Spain could go ahead. However, medical examinations undertaken as part of an appeal against this decision revealed that he was too ill to stand trial. Four European countries appealed against the Home Office's decision, but Pinochet was allowed to return to Chile in March 2000.
Domestic Violence, threatening behaviour or actual harm inflicted upon a person by a member of her or his own household. It is commonly thought of as being inflicted by men upon their female partners (hence the term “wife-battering”). However, the more neglected problems of violence by women towards their male partners and violence within same-sex relationships are gradually receiving more attention. Violence may also be inflicted by children on their parents (particularly where the parents are elderly) and by parents on their children (although this is often described as child abuse, especially when sexual offences are also involved).
Extradition, in law, surrender by one sovereign power to another of a fugitive from justice. Between nations, the right of one power to demand of another the extradition of a fugitive accused of crime, and the duty of the country in which the fugitive has found asylum to surrender this person, exist only when created by treaty. Because the political systems and penal codes of various nations differ considerably, most have given definite expression in treaties to their mutual obligations regarding extradition. The conventions between the United States and the United Kingdom in 1842, 1889, and 1900 enumerate which offences two such leading nations consider extraditable. The general rule is that extraditable crimes must be those commonly recognized by civilized nations as malum in se (acts criminal by their very nature), and not merely malum prohibitum (acts made crimes by statute), and must be included in the extradition treaty.
It is an almost universal rule, however, that a state will not surrender its own citizens to a foreign power, and it is generally regarded as an abuse of the principle of extradition for a state to secure the surrender of a criminal for an extraditable offence and then to punish this person for an offence not included in the treaty.
The current position defines extradition crimes as those which would be crimes in both the United Kingdom and in the country seeking extradition, punishable in both cases by at least 12 months' imprisonment. There is no extradition for crimes of a political nature or of military law, nor where there is a risk of persecution or prejudice for the defendant's beliefs.
A magistrates' court determines whether or not extradition should be considered. According to the decision, either the foreign state or the defendant may argue the issue subsequently in the High Court. If the matter is to be considered, the decision rests finally with a government minister. This occurred in the case made against the former Chilean dictator General Augusto Pinochet. A Spanish court made a request for him to be extradited to stand trial in Spain for human rights abuses of Spanish citizens and Pinochet was arrested in London in October. His appeal against extradition reached the House of Lords and was turned down in March 1999, after a first hearing in late 1999 was deemed invalid because of a technicality. Pinochet's appeal against this judgment was considered by the Home Secretary Jack Straw, who decided in April 1999 that Pinochet should be extradited to Spain. Extradition proceedings were opened in September, and a ruling the following month stated that Pinochet's extradition to Spain could go ahead. However, medical examinations undertaken as part of an appeal against this decision revealed that he was too ill to stand trial. Four European countries appealed against the Home Office's decision, but Pinochet was allowed to return to Chile in March 2000.
Adversarial Procedure, in law, approach to the solution of disputes that centres upon each side arguing its case. Each dispute will be determined in favour of one side or another: in a criminal case, the prosecution seeks a verdict of guilty, and the defence one of not guilty. The tribunal should not intervene in the argument itself, as it may in an inquisitorial procedure, but rather listens to each side and ensures that each has a fair hearing according to the rules of procedure. Each side is usually also responsible for calling the witnesses it may need to prove its case, and may question the other side's witnesses.
Habeas Corpus (Latin, “[that] you have the body”), a writ or order issued by a court to a person who has custody of another, commanding him or her to produce the detained person in order to determine that the detention is legal. The writ of habeas corpus is of English origin; its original purpose was to liberate anyone illegally detained, and it is still a protection against arbitrary imprisonment.
Immunity, exemption from duty or penalty in civil or criminal law. In civil law a number of groups are immune from being sued. Judges, for example, are immune from action against their judicial activities, and barristers and solicitor advocates cannot be sued for negligence in their work at trial or intimately connected with a trial. Others have conditional immunity, such as doctors acting under psychiatric law to detain people: in the United Kingdom they may only be sued with the court's permission.
Modern international law emerged as a result of the acceptance of the idea of the sovereign state, and was stimulated by the interest in Roman law in the 16th century. Building largely on the work of previous legal writers, especially Spanish precursors, the Dutch jurist Hugo Grotius, sometimes called the father of modern international law, published his celebrated treatise De Jure Belli ac Pacis (On the Laws of War and Peace) in 1625. (He had previously published his pioneering tract on the freedom of the sea, Mare Liberum, in 1609.) Grotius based his system on the laws of nature and propounded the view that the already-existing customs governing the relation between nations had the force of law and were binding unless contrary to natural justice. His influence on the conduct of international affairs and the settlement of wars was great. His ideas became the cornerstone of the international system as established by the treaty on the Peace of Westphalia (1648), which ended the Thirty Years’ War.
Other scholars and statesmen further developed the basic rules of international law, among them the Dutch jurist Cornelis van Bynkershoek and the Swiss diplomat Emmerich de Vattel, whose Le Droit des Gens (1758; Law of Nations) exercised great influence on the framers of the Constitution of the United States. By the end of the second half of the 19th century, literature on the subject had reached vast proportions. The Institute of International Law, a private organization for the study of international law composed of outstanding scholars from various countries, was established in 1873. One of its founders was the American David Dudley Field, who in the same year wrote Outlines of an International Code.
International law stems from three main sources: treaties and international conventions, customs and customary usage, and the generally accepted principles of law and equity. Judicial decisions rendered by international tribunals and domestic courts are important elements of the law-making process of the international community. Nowadays, United Nations (UN) resolutions may also have a great impact on the growth of the so-called customary international law that is synonymous with general principles of international law.
The present system of international law is based on the sovereignstate concept. It is within the discretion of each state, therefore, to participate in the negotiation of, or to sign or ratify, any international treaty. Likewise, each member state of an international agency such as the UN is free to ratify any convention adopted by that agency.
Treaties and conventions were at first restricted in their effects to those countries that ratified them, and as such were particular, not general. However, regulations and procedures contained in treaties and conventions have often developed into general customary usage, that is, have come to be considered binding even on those states that did not sign and ratify them. Customs and customary usages become part of international law because of continued acceptance by the great majority of nations, even if they are not embodied in a written treaty instrument. “Generally accepted principles of law and justice” fall into the same category and are, in fact, often difficult to distinguish from customs.
Since the beginning of the 19th century, international conferences have played an important part in the development of the international system and the law. Noteworthy in that respect was the Congress of Vienna that, through its Final Act of 1815, reorganized Europe after the defeat of Napoleon and also contributed to the body of international law. For example, it established rules for diplomatic procedure and the treatment of diplomatic envoys. On the urging of the United Kingdom, it included a general condemnation of the slave trade. Another important step in the development of international law was the Conference of Paris (1856), which was convened to terminate the Crimean War but at the same time adopted the Declaration of Maritime Law that abolished privateering and letters of marque, modernized the rights of neutrals during maritime war, and required blockades to be effective. The Declaration of Paris also initiated the practice of providing for the subsequent accession by nations other than the original signatories. In 1864 a conference convened in Geneva at the invitation of the Swiss Federal Council approved a convention for the protection of wounded soldiers in a land war; many nations subsequently acceded to this convention.
The avoidance or mitigation of the rigours of war continued to be the subject of other multilateral treaties. The peace conferences held in 1899 and 1907 in The Hague, the Netherlands, resulted in a number of conventions of that type. The 1899 conference adopted a Convention for the Pacific Settlement of International Disputes, which created the Permanent Court of Arbitration. Although it was not a veritable court with a fixed bench of judges, it served as an important instrument of arbitration.
At the end of World War I the League of Nations was established by the covenant signed in 1919 as part of the Treaty of Versailles. In accordance with provisions in this covenant, the Permanent Court of International Justice was established in 1921. The League of Nations was created as a permanent organization of independent states for the purpose of maintaining peace and preventing war. During its existence, 63 countries were members of the League at one time or another. The Union of Soviet Socialist Republics joined in 1934, but Germany and Japan withdrew in 1933. The United States never became a member of the organization, which was powerless to forestall World War II. Equally unsuccessful in preventing hostilities was the Pact of Paris for the Renunciation of War in 1928—the so-called Kellogg-Briand Pact—although it was ratified by more than 60 nations, including Germany and Japan. After the termination of World War II in 1945 the UN Charter created a new organization with an elaborate machinery for solving disputes among nations and for the further development of international law.
Normally, every nation is expected to obey international law. Some nations, for example the United Kingdom, have incorporated into their municipal law the provision that international law shall be made part of the law of the land. The US Constitution empowers Congress “to define and punish ... Offences against the Law of Nations”(Article I, Section 8). In cases involving international law, American courts tend to interpret American law in conformity with international law; such an attitude has consistently been urged by the US Supreme Court.
If each nation were free to declare unilaterally that it is no longer bound by international law, the result would be anarchy. A test was provided in the conduct of Germany under Nazi rule. The Nuremberg tribunals held that German government regulations that ordered, for example, the killing of prisoners of war in contravention of the generally valid rules of warfare, were null and void and that the people responsible for issuing and executing such orders were criminally responsible for violations of international law.
HUMAN RIGHTS
Since World War II international law has become increasingly concerned with the protection of human rights. It has provided improved procedures for that purpose within the UN. This new emphasis has also been manifested in the adoption by the UN of the Universal Declaration of Human Rights and the conclusion of the Convention on the Prevention and Punishment of the Crime of Genocide in 1948, the signing of the International Convention on the Elimination of All Forms of Racial Discrimination in 1966, and the adoption in 1975 of the Declaration on the Protection of All Persons from Being Subjected to Torture or Other Cruel, Inhumane, or Degrading Treatment or Punishment. These measures have been supplemented by regional conventions, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and the American Convention on Human Rights (1969). In 1945 an international convention for the prosecution of the major war criminals of the European Axis Powers provided for the punishment of crimes against humanity and established a special International Military Tribunal for that purpose.
The ethnically-motivated massacres and human rights atrocities during recent and continuing civil wars, such as those in the former Yugoslavia and Rwanda, have impelled the UN to establish international courts to deal with violations of human rights in times of war; for example the International Criminal Tribunal for Rwanda (ICTR) was set up in 1994 and, after the conclusion of two trials, now has 24 suspects in custody. The tribunal's conviction of Jean-Paul Akayesu, the former mayor of the central Rwandan community of Taba, on nine counts of genocide and crimes against humanity on September 2, 1998 set an important precedent for other international courts. In a second ruling the ICTR became the first international court to define the crime of rape, calling it a “physical invasion of a sexual nature, committed on a person under circumstances which are coercive.” This was necessary, the court said, because “to date, there is no commonly accepted definition of [rape] in international law.” The court also ruled that rape and sexual violence may constitute genocide if committed with the intent to destroy a specific national, ethnic, racial, or religious group.
The international application of human rights violations developed further with the extradition of former Chilean dictator Augusto Pinochet from the United Kingdom to Spain. The October 1998 arrest of Pinochet for extradition to Spain to face trial for crimes against humanity, specifically the violation of the human rights of Spanish citizens in Chile, was upheld by the House of Lords in March 1999, after a first hearing was invalidated by a conflict of interest of one of the judges. The Law Lords based their decision on the 1984 International Convention Against Torture, which entered into force in the United Kingdom in September 1988, and the United Kingdom's Extradition Act 1989. Although the Lords concluded that the first agreement justified Pinochet's arrest, they found that the Extradition Act restricts the crimes for which Pinochet could be extradited to those that were illegal under British law at the time they were committed. Only three of the dozens of charges levelled against Pinochet by a Spanish judge are alleged to have taken place after September 1988, the Lords said, although soon after the decision information on more than 30 new human rights abuse charges were sent to British authorities. All of the new charges involved incidents that allegedly took place after 1988. In April 1999 the British Home Secretary, Jack Straw, decided that the extradition could go ahead, despite claims from Pinochet's supporters, including those in Chile, that a head of state was immune from such charges. Extradition proceedings were opened in September, and a ruling the following month stated that Pinochet's extradition to Spain could go ahead. However, medical examinations undertaken as part of an appeal against this decision revealed that he was too ill to stand trial. Four European countries appealed against the Home Office's decision, but Pinochet was allowed to return to Chile in March 2000.
New threats constantly call for new international responses. As well as the establishment of temporary international courts to investigate specific cases of alleged genocide and government-sponsored violation of human rights, examples include the conventions against acts of terrorism and the distribution of drugs. Thus, despite the modern multiplication of global and regional multilateral treaties, customary international law still maintains a central role in the legal system of the international community. Two Libyans suspected of carrying out the Lockerbie bombing in 1988, in which 259 people died, were handed over to United Nations officials in April 1999. They entered pleas of not guilty at the pre-trial hearing; their trial started in the Netherlands in May 2000 with Scottish judges presiding.
Deposition (law), statement of a witness taken in writing, usually under oath. Depositions are most common in the magistrate's court, where they are taken down when the magistrates formally examine a case before transferring it to the Crown Court. These then form the basis of the trial before a jury. This procedure is now unusual.
In England and Wales depositions are treated nowadays very like witness statements taken before a trial, which are made subject to a warning of the criminal consequences of lying, but which are not made under oath. These are often admitted in civil cases to replace the oral evidence of witnesses in order to save time, although the witness may still be cross-examined. In criminal cases, witness statements or depositions may be admitted in certain limited circumstances (such as the witness being kept away from court) provided that this does not prejudice the defendant.
Assault, in criminal law, any attempt to use illegal force on another person. Verbal threats do not constitute assault. If violence actually occurs, the act is termed battery; criminal assault is a tort. A simple assault is an offence, punishable summarily or upon indictment. Aggravated assaults are those committed with a weapon, with the intent to do very serious harm or that result in such harm, or that involve rape. It is no defence to a charge of assault in English law that the victim consented, and sado-masochists have accordingly been convicted of assault. It is a defence that the assault occurred in the lawful (i.e. moderate) chastisement of children, or that it happened in the course of a contact sport.
Perjury, in criminal law, wilful false statement made under oath with respect to a material matter, either in a legal proceeding, as by a witness at a trial, or in matters in which an oath is authorized or required by law, as in an affidavit affecting title to property. To constitute perjury in a legal proceeding the offender need not know that the statement would affect the determination of the case in which it is uttered; it is sufficient if the statement might affect such a proceeding. A misstatement by a witness, that is, a statement made through inadvertence or mistake, does not, however, constitute perjury.
Lynching, hanging or other type of execution, to punish someone for a presumed criminal offence, carried out by self-appointed commissions or mobs, without due process of law. The term “lynching” is generally believed to be derived from the name of an 18th-century American justice of the peace, Charles Lynch, who ordered extralegal punishment for Loyalists during the American War of Independence. Frontier settlements in the United States often lacked established law enforcement agencies and, instead, exercised summary justice through vigilantes. Western pioneers punished murder, rape, horse theft, and other capital crimes by resorting to lynching.
Adjudication, a way of resolving disputes or controversies, usually through action in a court of law. The issues settled by adjudication may be civil or criminal; they may arise between private parties or between private parties and public bodies. Issues are settled according to specific procedures involving submission of proofs and presentation of arguments for each side. The dispute is argued before an impartial judge and jury or by a judge without a jury—both are empowered to decide in favour of one of the parties.
Adjudication is also a function of legislative bodies, as in impeachment proceedings, and administrative agencies, such as tribunals. To ensure the fair and proper adjudication of disputes, the doctrine of Due Process of Law establishes a legal framework.
Counterfeiting, criminal offence of making an imitation of an article with intent to defraud others into accepting it as the genuine item. The term “counterfeit” is used most frequently to denote imitations of coined money or the paper currency of a government or bank, but it is also applied to other cases of fraudulent imitation, such as spurious trademarks, dies, or works of art.
Mayhem, in criminal law, act of mutilating a person other than in self-defence by depriving the person of the use of any limbs or organs essential for self-defence in a physical encounter. Mayhem includes such acts as the breaking of an arm or leg, the putting out of an eye, or the slitting of a nose, lip, or ear; in some jurisdictions any bodily disfigurement constitutes mayhem. This is now obsolete in the United Kingdom, and would be prosecuted as unlawful wounding or causing grievous bodily harm (GBH).
Proof, in law, the process of establishing in a trial or legal action, through evidence and argument, the actual facts of a disputed issue. Evidence and arguments are generally presented by counsels for the defendant (the person against whom an action is brought) and the plaintiff (the instigating party in a case) in such a manner, and under the rules governing judicial procedure, that a judge or jury may be convinced of its truth. The submission of evidence may be by witnesses or by documents; arguments usually concern the inferences that may properly be drawn from facts admitted or established. In an action at law, the person asserting a fact is said to have the burden of proof—that is, the burden of sustaining the fact until the trial is ended. Unless that person can present sufficient proof to overbalance that of the other party, so that it is more likely than not, he or she is not considered to have sustained the burden of proof, and the case is dismissed.