7. Constructive Trusts

2019 ◽  
pp. 325-360
Author(s):  
Paul S Davies ◽  
Graham Virgo
Keyword(s):  
Judicial Discretion ◽  
England And Wales ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter focuses on constructive trusts, which arise by operation of law without regard to the intentions of the parties. They are triggered by a defendant’s unconscionable conduct; however, in some cases, a constructive trust will be recognized even though the defendant has not acted unconscionably, such as the constructive trust that arises once a contract to sell land has been made. A remedial constructive trust is recognized by some jurisdictions, whereby equitable proprietary rights arise through the exercise of judicial discretion, but such a trust is not recognized in England and Wales. As with express trusts, title over particular property that is held on constructive trust is split between trustees and beneficiaries, but a constructive trustee is not subject to the same duties as an express trustee.

Legal constraints and judicial discretion in sentencing practice: Appraisal analysis of the sentencing remarks for Terri Palmer

2020 ◽  
Vol 40 (3) ◽  
pp. 269-292
Author(s):  
Xin Dai
Keyword(s):  
Analytical Procedure ◽  
Current Understanding ◽  
Judicial Discretion ◽  
England And Wales ◽  
Legal Studies ◽  
Appraisal Analysis ◽  
Legal Constraints

AbstractIn the sentencing of murder cases in England and Wales, it is required by law that judges must take into consideration the factors listed in sentencing laws and guidelines (henceforth statutory factors). However, judges also have the discretion to include factors that are not listed in such laws or guidelines (henceforth non-statutory factors). This paper explores judges’ positioning towards legal constraints and judicial discretion in sentencing by applying the Appraisal framework to analyse statutory and non-statutory factors in the sentencing remarks for a randomly selected murder case. The major analytical findings are that, with regard to statutory factors, attitudes are implicit and are mainly presented through heteroglossia, while, with regard to non-statutory factors, attitudes are explicit and are mainly presented through monoglossia. These different appraisal features of statutory and non-statutory factors reflect the constraints of sentencing laws and guidelines on the judge’s sentencing practice, and the judge’s full play of judicial discretion in the sentencing of this case. It is expected that findings of this study could add to current understanding of sentencing practice, while its analytical procedure could facilitate appraisal analysis of more sentencing remarks, which would, in turn, complement socio-legal studies on sentencing practice.

13. Defamation

Tort Law ◽  
2017 ◽  
Author(s):  
Jenny Steele
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
European Convention ◽  
England And Wales ◽  
Chilling Effect ◽  
Competing Interest ◽  
The Relationship ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter deals with the actions in defamation that protect reputation, paying particular attention to the relationship between the protected interest in reputation and the competing interest in freedom of expression. It first considers relevant provisions in the Defamation Act 2013, including the ‘serious harm’ criterion, before turning to the terms of Article 10 of the European Convention on Human Rights with regard to freedom of expression, with emphasis on the so-called chilling effect. It also discusses libel and slander as well as malicious falsehood, elements of a claim in defamation, defences available to the accused, and the jurisdiction of the courts of England and Wales to hear defamation claims. The chapter concludes by looking at parties who cannot sue in defamation.

5. Ending Relationships:

2015 ◽  
Author(s):  
Sonia Harris-Short ◽  
Joanna Miles ◽  
Rob George
Keyword(s):  
England And Wales ◽  
Divorce Law ◽  
The Future ◽  
History Of ◽  
The Law ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses the law on divorce and separation. It covers divorces in England and Wales; the nature, function, and limits of divorce law; a brief history of divorce law to 1969; the present law of divorce and judicial separation; evaluation of the current law; options for reform of divorce law and the process of divorce; and the future of English divorce law.

2. Family Relationships between Adults

2015 ◽  
Author(s):  
Sonia Harris-Short ◽  
Joanna Miles ◽  
Rob George
Keyword(s):  
Family Relationships ◽  
Intimate Relationships ◽  
Family Law ◽  
Demographic Data ◽  
Legal Recognition ◽  
England And Wales ◽  
Civil Partnership ◽  
Trans People ◽  
History Of ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter first considers demographic data on family relationships in England and Wales, and then examines the treatment of ‘trans’ people in this area of family law; and the history of legal recognition of intimate relationships between parties of the same gender. This is then followed by discussions of status-based relationships (marriage and civil partnership); creating a valid marriage or civil partnership; grounds on which a marriage or civil partnership is void; grounds on which a marriage or civil partnership is voidable; and non-formalized relationships (cohabitants and other ‘family’).

Statutory Sentencing Reform in Israel: Exploring the Sentencing Law of 2012

2013 ◽  
Vol 46 (3) ◽  
pp. 455-479 ◽  
Author(s):  
Julian V Roberts ◽  
Oren Gazal-Ayal
Keyword(s):  
United States ◽  
New Zealand ◽  
The United States ◽  
Judicial Discretion ◽  
England And Wales ◽  
Sentencing Reform ◽  
Novel Approach ◽  
Sentencing Reforms ◽  
The Law

In 2012 the Knesset approved a new sentencing law. Israel thus became the latest jurisdiction to introduce statutory directions for courts to follow in sentencing. The approach of the United States to structuring judicial discretion often entails the use of a sentencing grid with presumptive sentencing ranges. In contrast, the Sentencing Act of Israel reflects a less prescriptive method: it provides guidance by words rather than numbers. Retributivism is clearly identified as the penal philosophy underpinning the new law, which takes a novel approach to promoting more proportionate sentencing. Courts are directed to construct an individualised proportionate sentencing range appropriate to the case in hand. Once this is established, the court then follows additional directions regarding factors and principles related to sentencing. Although other jurisdictions have placed the purposes and principles of sentencing on a statutory footing, this is the first such legislative declaration in Israel. The statute also contains a methodology to implement a proportional approach to sentencing as well as detailed guidance on sentencing factors. This article describes and explores the new Sentencing Act, making limited comparisons to sentencing reforms in other jurisdictions – principally England and Wales, New Zealand and the United States. In concluding, we speculate on the likely consequences of the law: will it achieve the goals of promoting more consistent and principled sentencing?

1. Introduction to Equity

2019 ◽  
pp. 3-22
Author(s):  
Paul S Davies ◽  
Graham Virgo
Keyword(s):  
Property Rights ◽  
Common Law ◽  
Corporate Law ◽  
The Body ◽  
Judicial Discretion ◽  
Fair Result ◽  
Personal Rights ◽  
The Common ◽  
The Law ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses the concept of Equity and defines it as the body of law that has been made and developed by judges in the Chancery courts to modify the rigid application of the common law. It is grounded on rules, principles, and doctrines that are strictly interpreted, but their application and the remedies awarded can be tempered by the exercise of judicial discretion to ensure a just and fair result. It plays an important role in many contemporary aspects of the law, including commercial and corporate law. A distinction between property rights and personal rights lie at the heart of Equity, and there exists no substantive fusion between Common Law and Equity as bodies of rules — even if their administration has been conjoined into a single procedural system. The chapter also discusses a variety of equitable maxims that are useful generalizations of complex law.

10. Beneficiaries

2019 ◽  
pp. 491-531
Author(s):  
Paul S Davies ◽  
Graham Virgo
Keyword(s):  
The Other ◽  
Judicial Discretion ◽  
Other Hand ◽  
Personal Rights ◽  
Trust Property ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter focuses on the beneficiary of a trust, and how this beneficiary possesses a variety of equitable rights arising from the trust, the nature of which will depend on the type of trust that has been created. Beneficiaries enjoy certain rights but do not have a right to inspect trust documents; however, disclosure of such documents can be ordered through the exercise of judicial discretion. In the case of a fixed trust, beneficiaries possess proprietary rights in the trust property and also a variety of personal rights. On the other hand, objects of a discretionary trust do not have any proprietary rights to trust property but have a variety of personal rights. To terminate the trust, its adult beneficiaries can unanimously agree to terminate it, but only if between them they are absolutely entitled to the beneficial interest.

3. Ending Relationships: Divorce and Separation

Family Law ◽  
2019 ◽  
pp. 121-198
Author(s):  
Joanna Miles ◽  
Rob George ◽  
Sonia Harris-Short
Keyword(s):  
England And Wales ◽  
Divorce Law ◽  
The Future ◽  
History Of ◽  
The Law ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses the law on divorce and separation. It covers divorces in England and Wales; the nature, function, and limits of divorce law; a brief history of divorce law to 1969; the present law of divorce and judicial separation; evaluation of the current law; options for reform of divorce law and the process of divorce; and the future of English divorce law.

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