Chapter 6: overriding legal obligations Flashcards
What are the 9 protected characteristics
Age
Disability - physical or mental impairment AND substantial/ long term effect on day to day activity.
Gender reassignment
Marriage / civil partnerships
Pregnancy and maternity
Race - colour/ nationality/ ethnic/ national origins
Religion/ beliefs
Sexual orientation
What is direct discrimination?
a person treated less favourably in a situation than someone else because of a protected characteristic.
What are the requirements for direct discrimination?
V must show another person would have been treated differently in the same situation
Treatment experienced by the victim must be less favourable. No intention needed
Reason = protected characteristic.
What is indirect discrimination?
A policy applies generally but has the effect of impacting people with a protected characteristic.
What is a defence to indirect discrimination?
A legitimate aim and must be proportionate to reach this aim.
What is disability discrimination?
Treated differently because of disability (mental/ physical).
What is harassment?
Subject to unwanted conduct
Relates to a protected characteristic
Conduct violates dignity/ creates hostile, intimidating environment.
OR
Conduct is a sexual nature (same as above) AND victim is treated less favourably because they rejected/ submitted.
Victimisation:
A person subject another person to a disadvantage because they believe they have / will do a PROTECTED ACT:
- bringing proceedings under Equality Act
- Giving evidence/ information
-Anything related to provision of the act - any action taken related to discrimination law.
- Alleging another person has done something to breach the act
What must solicitors not do under S29 Equality Act 2010
Discriminate/ victimise clients in terms of service
Discriminate/ victimise clients by terminating services
Discriminate or victimise clients by subjecting to another disadvantage
Harass client/ prospective client
When must reasonable adjustments for employees be made?
ONLY where they KNOW or OUGHT to KNOW that an employee is disabled and likely to suffer disadvantage
Duty arise after employment of disabled employee
What is vicarious liability?
Employers liable for unlawful conduct of employees in the COURSE OF EMPLOYMENT.
When could an employer escape vicarious liability?
If they took reasonable steps to prevent e.g training employees
What is a positive action?
An action to address an equality issue
can treat employee/ prospective employee more favourable because they have a protected characteristic.
When is a positive action by an employee lawful?
When they have a reasonable belief:
Suffer disadvantage
Different needs
Disproportionately underrepresented in an activity
Positive action taken is proportionate to solve the issue
What is money laundering?
conceal unlawful source of money. Make proceeds of a crime appear as a legitimate source.
What are the 5 duties for law firm under MLRs
Reg 18: maintain written risk assessment
Reg 19: policies, control, procedures - mitigate/ manage risk
Reg 21: appoint MLCO, appoint MLRO (reporting officer) to deal with reports and make SARs (suspicious activity reports) to the national crime agency. SRA MUST be UPDATED on any changes in these roles.
Reg 24: provide staff with training and maintain records
Reg 27 & 28: customer due diligence (identity checks) as soon as possible after first contact. Retained for 5 years.
When must solicitors carry our CDD?
Forming a business relationship
Transaction is or exceeds £15,000
Suspects money laundering
Doubts accuracy/ adequacy of documents/ information previously provided for CDD.
When must ID documentation be obtained?
As soon as is practicable
What is SDD? When is it used?
simplified due diligence
when an entity is low risk e.g low value, gov regulated, well known, financial institution
What is EDD?
enhanced due diligence
high risk of money laundering.
obtain additional info, look at background/ purpose and monitor business relationship closely
When must EDD be applied?
High risk third country
PEP (appointed by community institution, international body/ state, high profile position last 12 months)
Family member/ known associate of a PEP
Anything else that might present higher risk e.g not seen in person
What are the 5 warning signs to report for suspicious activity?
Characteristics (secretive/ evasive)
Behaviour (refusal to provide docs)
Unusual sources of funding e.g third party
Unusual transactions or instructions e.g urgent/ loss making
Unnecessary movement of monies between different jurisdictions or to/from HIGH RISK jurisdictions
When must a report of ML suspicion be made?
As soon as is practicable = as soon as suspicion arises.
Procedure of ML reports:
Report to MLRO
MLRO submit SAR to NCA - use encrypted system/ post/ fax.
What happens if there is a failure to comply/ submit a report?
May commit an offence under the Proceeds of Crime Act
disciplinary proceedings
What are the 3 direct involvement cases under the POCA?
S327 - conceals, disguises, converts or transfers criminal property/ remove from UK.
S328 - enters an arrangement he knows/ suspects facilitates acquisition, retention, use/ control of criminal property (any money laundering activity).
S329 - solicitor acquires, uses, possesses any criminal property - enjoys the benefits but does not participate. Applies to payment for a work with illegal funds.
What is direct involvement?
D is actually involved in money laundering.
What is criminal property?
any direct/ indirect benefit from criminal conduct
what is S327 POCA?
conceals, disguises, converts or transfers criminal property/ remove from UK.
What is S328 POCA?
enters an arrangement he knows/ suspects facilitates acquisition, retention, use/ control of criminal property
what is S329 POCA?
solicitor acquires, uses, possesses any criminal property - enjoys any benefit
including payment for work with illegal funds
what is non-direct involvement?
failure to respond appropriately to money laundering
what are the 3 non-direct involvement offences?
S330 - fail to disclose information to appropriate authorities
S331 - nominated MLRO fails to disclose information about money laundering to appropriate authorities.
S333A tipping off offences
what is S330 POCA?
offence to fail to disclose information to appropriate authorities. STEPS:
- Must KNOW, SUSPECT or had REASONABLE GROUNDS to know/ suspect.
- information must IDENTIFY/ ASSIST IDENTIFICATION of money launderer and whereabouts of laundered property.
- Fails to report to MLRO as soon as is practicable
What is S331 POCA?
nominated MLRO fails to disclose information about money laundering to appropriate authorities.
In MLRO role, knows/ suspects or has reasonable grounds to know/ suspect money laundering.
- Must make an SAR to NCA as soon as is practicable.
What is S333A(1)
offence to disclose to a third person a SAR has been made.
What is S333A(3)
third party is made aware an investigation into money laundering is being contemplated or carried out. - anything said that would harm/effect an SAR investigation.
what happens to confidentiality where there is suspicion of money laundering?
reporting money laundering does not breach. Does not need client consent to report - this could amount to tip off.
What is the consent defence?
MLRO submits SAR to NCA
Requests for consent to continue with transaction (money laundering).
Consent granted = DAML.
Only applies to activities NCA consented to
No response in 7 days = consent granted
What cases does the concept defence apply to?
ALL direct involvement cases
S327
S328
S329
What is the reasonable excuse defence?
‘Reasonable excuse’ for not making a report.
what offences does the reasonable excuse defence apply to?
all offences except tipping off offences
what is the adequate consideration defence?
Payment for services
Does not apply where solicitor knew/ suspected criminal activity.
Does not apply where the payment is disproportionately higher than the value of work undertaken.
what offence does the adequate consideration defence apply to?
S329 - acquires, uses, possesses any criminal property - enjoys the benefits but does not participate
What is the training defence?
Firm fails to provide training required under MLR reg.
Does not apply where actual knowledge/ suspicion exist
what offence does the training defence apply to?
only applies to S330 - solicitors fails to disclose information to appropriate authorities.
what is the privileged circumstances defence?
Information communicated by client/ representative - giving legal advice
Information communicated by client/ representative - seeking legal advice
Information communicated by person in/ contemplated in legal proceedings.
Does not apply if there is intention to further criminal purpose.
which offence does the privileged circumstances defence apply to?
S330 - solicitor failure to disclose information to appropriate authorities.
what is legal overseas conduct defence?
Criminal conduct abroad
Lawful in that country
Occurred in UK would not be punishable but 12 months prison or more
what offences does the legal overseas conduct defence apply to?
only non-direct involvement
