7: Criminal law and tort Flashcards
What is the basic definition of what criminal law is concerned against?
Criminal law is concerned against actions that are so serious that they are regarded as a wrongdoing against the state
For a person to be guilly of a criminal offence, there must be two essential elements:
- The prohibited act (Actus reus)
- The guilty state of mind of the person (Mens rea)
does there always need to be an actus reus and mens rea?
No, not for Strict Liability Offenses
For most criminal offenses, both elements are essential but in Strict liability offenses, they remove the requirement of mens rea
example of strict liability offence = speeding
Which essential element is only required during a strict liability offense?
Actus reus only.
Who is respoonsible for bringing criminal proceedings to individuals? (CPS)
Crown prosectution service
What two courts are there in the crown prosecution service?
magistrates court and crown court
What are the mens rea of theft? (2)
dishonesty and an intention to permanenetly deprive one of their property
what is money laundering
converting proceeds of a crime into a different asset that appears to have a legitimate origin
If a tax practitioner has evidence or reasonable grounds that their client is money laundering, and the information has come through a regulated activity, what must they do?
Report this to the National Crime Agency, generally through their firm’s MLRO (Money Laundering Reporting Officer)
Failure to disclose a money laundering offence is a…?
Criminal offence
‘There is no de minimus limit’ - what does this mean for criminal offences?
The tax practitioner should report all suspicions and knowledge of criminal activity, regardless of the level of crime or proceeds
When is it that the individual will not be guilty of a money laundering crime? (2)
If the employee has not been given money laundering training, said during legal privileged conversations
What do the Money Laundering Regulations 2017 require firms to do? (9)
- Firmwide AML risk assessment
- MLCP (compliance principal)
- Screen new and existing employees
- Independent audit function
- Client DD
- Identify beneficial owner and person representative
- Enhanced DD
- Monitor firm compliance with regulations
- Monitor client relationship
If information has been given out under legal professional privilege, is this an reasonable excuse for why a tax practitioner has failed to disclose?
Yes
If a report has not been made because the proceeds are only £200, is this acceptable?
No. There is no de minimus limit so all suspicions or knowledge of ML should be reported, regardless of level of crime or proceeds
There are 3 ways that fraud can be committed (FFA)
- false representation
- failure to disclose information
- abuse of position
Tax evasion is an example of what criminal offence?
Fraud
There are 4 main offences under the bribery act 2010
- Bribing someone
- Accepting a bribe
- Bribing a foreign public official
- Corporate failure to prevent bribery
What is the maximum penalty for a offending the bribe act 2010?
maximum 10 years prison and/or an unlimited fine
Under the Criminal Finances Act 2017, what is the main offence of this?
Failing to prevent the facilitation of tax evasion
Failing to prevent the facilitation of tax evasion is where (3)
- criminal tax evasion has taken place
- the party involved in the facilitation of tax evasion
- the entity has failed to put in place reasonable and proportionate procedures to prevent tax evasion
Something you might need to know:
See if you can remember all six:
There are six principles that underpin the defence of having reasonable prevention procedures:
- risk assessment
- proportionality of risk based assessment procedures
- top level commitment
- due diligence
- communication
- training and record keeping
- monitoring and reviewing
Name one thing in personal data and one thing in sensitive personal data
Personal data:
name, DOB, address, gender
Sensitive personal data:
ethnicity, sexual orientation, religious beliefs
Under the data protection have, a tax practitioner must have a DPO. What does this stand for?
Data protection officer
If there is a data breach, the DPO must alert the ICO without _____ delay or if feasible, within __ hours of awareness of the breach.
What does ICO stand for and complete the blanks
Information commissioner’s office
undue, 72
What does it mean by ‘cheating the public revenue’?
To not give HMRC the correct amount of tax due.
What does SGSA stand for?
Supply of Goods and Services Act 1982
What three things does the SGSA stipulate?
Where it is not specified, the tax practitioner completes the contract with reasonable care and skill
Where the time limit for the contract is not specified, the tax practitioner should complete the contract within a reasonable time
Where the fees between the tax practitioner and client is not specified, there should be a reasonable charge due for the contract.
KEYWORD: REASONABLE!
Does the supply of goods and services act apply to both b2b and b2c?
No, only b2b
What is the name of the act that regulates contracts between b2c?
Consumer Rights Act 2015
Can a consumer challenge the terms of a contract on the basis that the contract is unfair?
Yes.
Define three examples of ‘unfair terms’
- Fees/ charges ‘hidden’ in the fine print
- Removing consumer legal rights
- Excessive charges if a client chooses to terminate etc
How are terms deemed to be ‘unfair’ under the Consumer Rights Act 2015
- Not in good faith
- Significant imbalance in legal rights between the consumer and tax practitoner
- To the detriment of the consumer (harm)
What is a tort
a civil wrongdoing to another party
To be successful in a claim by tort of negligence, what 3 matters must the claimant prove?
- Tax practitioner has a duty of care
- Tax practitioner has broken the duty of care
- Claiment has suffered a loss as a result of the loss of duty of care
what is the type of offence that does not require mens rea
strict liability offence
what is the maximum penalty for bribery?
10 years imprisonment and/or unlimited fine
what is the fine for not complying with GDPR rules? the higher of…
£17m; or
4% of annual worldwide business turnover
