everything Flashcards
what is net income
total income minus tax reliefs (interest on qualifying loans and pension contributions)
what are the conditions to qualify for Business Asset Disposal Relief?
5% shareholding;
employee/director;
ownership for 2 years or more;
not used up lifetime allowance of £1mil
how much dividend income is available and who does it apply to
£1,000 (to everyone)
what is the difference between gross sums and net sums?
gross = total before tax
net = amount left after tax has been deducted
when is investors’ relief (IR) available?
unlisted trading co.
min 3 years;
reduces CGT from 20% to 10% for gains arising on disposals of qualifying shares (lifetime limit of £10m);
shares are qualifying if: fully paid ordinary shares for cash consideration; co is a trading co.; at time of issue, no shares were listed on a stock exchange; SH is NOT an employee of co.
what is non-savings income?
total income minus savings and dividend income
what is personal allowance and who gets it?
£12,570 for everyone who earns less than £100,000
100,000 to £125,140: reduced by £1 for every £2 of net income above £100,000
above £125,140 = NO personal allowance
what is taxable income?
total income minus tax reliefs and personal allowance
what is personal savings allowance and who benefits?
taxable income up to £37,700: 0% on first £1,000
taxable income £37,700-£125,140: 0% on first £500
taxable income above £125,140: no PSA
what are the tax bands for non-savings income?
20-40-45
what are the tax bands for savings income?
20-40-45
what are the tax bands for dividends income?
8.75-33.75-39.35
how do you figure out which tax band an individual falls into?
depends on their NET INCOME (so have to deduct tax reliefs (interest on loans + pension contributions) first
how do you work out an individual’s income tax?
- calculate total income
- deduct tax reliefs (net income)
- deduct personal allowance (taxable income)
- split into non-savings, savings and dividend income
- calculate whether PSA is available
- apply relevant tax rates
- add everything together (total tax liability)
what filing requirements are associated with a director leaving?
co. must update co.’s register of directors + give notice to Companies House by form TM01
what is the statutory order of priority on winding up?
- liquidator’s fees and expenses
- fixed charge creditors
- liquidator’s other remuneration
- preferential creditors (employees)
- prescribed part fund for unsecured creditors
- creditors with floating charges
- unsecured/trade creditors
- interest owed to unsecured creditors
- SHs
how much do employees get as preferential creditors?
remuneration due in the 4 months prior to winding up subject to max £800 plus accrued holiday pay (+the rest from the prescribed part fund if anything left)
how is the prescribed part fund created?
amount of company’s net property will be ring-fenced at 50% for the first £10,000 and 20% thereafter up to maximum fund of £800,000 for floating charges. will be shared rateably among the unsecured creditors
what is the standing test in s 7 HRA?
applicant must be a direct victim of the unlawful act and directly affected.
victim test comes from art 34 ECHR. indirect V’s can bring cases in EXCEPTIONAL CIRCUMSTANCES
what is Art 8 ECHR, what type is it and when can it be interfered with?
right to private and family life, home and correspondence;
qualified right;
can be interfered with if it’s in accordance with the law pursuant to a legitimate aim and it’s necessary in a democratic society
what is the def of substantial in substantial property transactions?
- more than 100k
- if between 5-100k, then: substantial IF worth more than 10% of the company’s NET ASSET VALUE
what are the 3 mechanisms for calculating the expectation interest and which one is the most common?
cost of cure (most common);
diminution in value;
loss of amenity
what is the cost of cure?
cost of substitute or remedial work to put C in the same position they would’ve been in had the contract been performed correctly.
what is the aim of reliance interest?
to put C in the position they would’ve been in had they never contracted (backwards looking)
what are the requirements for adding/substituting parties post-limitation?
1- the limitation period was current when the proceedings were actually started; and
2- the substitution/addition is necessary
what are the requirements for valid consideration?
must not be past;
must move from the promisee;
need not be adequate;
must be sufficient
what is private nuisance used for?
for land-based personal interference (physical damage or sensible personal discomfort)
when can public nuisance be argued?
when you’re an individual suffering loss (material discomfort) over and above the rest of the class
what is Rylands v Fletcher user for?
an isolated escape from D’s land of anything likely to do mischief if it escapes
(ie damage from barrel of paint/acid)
what are the 4 elements of private nuisance?
indirect interference, recognised damage, continuous act, unlawful interference
what type of damage is recoverable in public nuisance?
property damage and consequential economic loss; personal injury and pure economic loss;
also inconvenience but this has to be material
how is an ordinary partnership taxed?
each partner pays tax as an individual on their income/gains
what type of decisions have shorter time limits than the usual JR time limit?
planning permission and public procurement decisions
what is a prohibitory injunction?
a court order restraining a party from breaching a negative term
what is the contra proferentem rule and where does it apply?
used regarding exemption clauses, and general rule is that if there is any doubt as to the meaning of the exemption clause, the ambiguity will be resolved against the party (proferens) seeking to rely on it
what is a non-conforming good and what remedies are available?
-short-term right to reject;
-right to repair or replacement;
-right to a price reduction or the final right to reject
when might a negligent misstatement apply?
where there is a relationship of sufficient proximity between two parties, the court might find that one party owes a duty of care to the other to take reasonable care that statements made are accurate
how can a contract be discharged by agreement?
by subsequent binding contract between the parties
is performance of an existing obligation owed to a third party good consideration?
yes
ie cat sitter ex, don’t have to return money
what rule of consideration is closely related to the doctrine of privity of contract?
consideration must move from the promisee
what is the legal test for necessity?
D must prove they:
a) were acting in an emergency; and
b) were not at fault in causing the emergency.
what losses are recoverable in private nuisance?
physical damage, sensible personal discomfort and consequential economic loss
what is the test to determine a breach re the professional standard? (following Bolam)
the test is the standard of the ordinary reasonable man exercising and professing to have that special skill
what is the neighbour principle? (Caparo)
you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure someone who is so closely and directly affected by your act that you ought reasonably to have them in mind when considering how to act?
what were the key concepts/tests discussed in Hedley Byrne when establishing a duty of care for pure economic loss caused by a negligent statement?
a) reasonable reliance by C on D’s advice;
b) voluntary assumption of responsibility by D for advice;
c) special relationship of trust and confidence between D and C
when is an occupier liable for naturally occurring nuisances?
when they knew or ought to have known of a danger and failed to take reasonable steps to abate the nuisance
what does a strict liability regime under the consumer protection act mean?
that parties could be found liable without it being necessary to show fault on their part
what is the qualifying fear trigger in loss of self control? (def)
that D’s loss of control was attributable to a fear of serious violence
when do acts of third parties break the chain of causation?
(novus actus interveniens)
when they’re highly unforeseeable
when can medical treatment break the chain of causation as an act of a third party?
when it is so gross and egregious as to be unforeseeable
when do acts of the claimant break the chain of causation?
when they are highly unreasonable
intoxication: if it’s a specific intent crime and D voluntarily drunk, what direction will the jury be given?
to consider if capable, did D form the intention (MR) of the offence in their intoxicated state
intoxication: if it’s a non-dangerous substance and voluntary intoxication, what direction will the jury be given?
to decide whether D has formed the MR in his intoxicated state
what is the approach if your intoxication is involuntary?
‘a drunken intent is still an intent’
check to see if D has formed MR in his intoxicated state
intoxication: what is the approach with voluntary intoxication and a basic intent crime? (where recklessness is available)
would D have formed the mens rea if sober?
(D will be deemed reckless if they would have foreseen the risk of harm if sober for ex)
what defence is not capable of being relied upon if you are voluntarily intoxicated? (Dowds)
self defence due to drunken mistake
if you’re drinking alcohol but are mistaken as to its strength, is your intoxication voluntary or involuntary?
voluntary
what type of crime is voluntary intoxication NOT a defence to?
basic intent
what is the mens rea of theft
dishonestly
intention of permanently depriving
what are the 3 types of impossibility?
impossible in fact
impossibility through inadequacy
non-existent crimes (only one that acts as a defence)
where is assault defined?
common law
in order to be charged with an attempted offence, how far does D’s action need to go?
it needs to be more than merely preparatory
result crimes relate to what aspect of the criminal liability equation?
actus reus
when can the defence of self-defence be used and what are its elements?
protection of yourself, another and/or property
1) D must honestly believe the use of force was necessary; and
2) the level of force used must’ve been objectively reasonable in the circumstances as D believed them to be
to be potentially classed as a householder case, which of the following must D rely on?
protecting themselves or another
what is the AR of robbery?
AR of theft
force
on any PERSON
use of threat of force immediately before or at the time of stealing
on what rare occasion does the standard of proof in criminal law shift to the defence and what is the standard then?
defence of diminished responsibility
standard = balance of probabilities
which type of accessorial liability requires a causal link between D’s act and what P does?
procuring
which requirement of the s 5(2)(b) ‘acts to protect property’ lawful excuse defence is objective?
criminal damage - lawful excuse
the damage caused by D must be capable of protecting the property (objective was to whether it was capable)
the others are:
1) D must act to protect property
2) D must believe the property was in immediate need of protection (subjective()
3) D must believe that the means of protection adopted are reasonable (subjective)
what is the MR for s 20?
intention or recklessness as to causing some harm
what is the general rule in terms of impossibility acting as a defence for attempted offences?
the general rule is that impossibility is not a defence
(with the exception of non-existent crimes ofc!)
when does the first review after arrest need to happen (if you are being detained). and when is the second one?
6h after arrival, and every following review is at 9h intervals after that
what is the max period of detention without charge?
96h
24h initial, + 12h if extended by superintendent + another 36+24h ONLY if MC agrees!
what is a custody record?
sets out everything that happens to the detainee during their stay
who can delay a detainee’s right to contact their solicitor?
a superintendent
what is the first type of ID procedure the police will do?
what’s the second?
1) VIPER
2) parade
how many people need to be in a parade?
D + 8 other people
what are the 3 adverse inferences?
s 34; if a fact is later relied on at trial and it would have been reasonable to have mentioned it in the interview
s 36: failure to account for a mark, object or substance
s 37; failure to account for presence at the scene
when can a solicitor be excluded from an interview at a police station?
if they are preventing or obstructing qs being put to your client
when must police conduct an identification procedure?
when the suspect denies the offence AND the eye-witness has expressed an ability to identify the suspect
when does a criminal D automatically pass the merits test?
(funding)
if they are being charged with an indictable only offence or an either-way offence is sent to CC
when is bail decided?
at the first hearing
what’s the difference between sending and committing to CC?
if not GP - you SEND to CC
if GP, you commit to CC
who does the right of bail not apply to?
(a) those appealing their conviction/sentence; or
(b) to Ds being committed for sentence from MC to CC
what is the difference between breaching a bail condition and failing to surrender into custody?
failing to surrender is a criminal offence, whereas there is no offence of breaching a bail condition
what are the general rules on further applications for bail?
a D who is having a trial in MC can have 2 attempts at getting bail at MC, and 1 attempt on appeal to CC which will be listed no later than 1 BD after receipt of the notice
what are the custody time limits with regards to bail?
56 days for trials in MC (summary or either-way); and
182 days for trials in CC (indictable only or either-way) [less any days spent in custody prior to case being sent to CC]
how can previous convictions be used by the prosecution in a bail app?
as evidence of substantiating grounds on which D should be remanded to custody, but not grounds on their own
what are the 2 stages of a PTPH?
plea and either ‘sentence’ or ‘trial preparation’
what is an arraignment?
when you enter a plea at plea stage
what are the main methods to exclude evidence or stop a criminal case?
-application for dismissal
-submission of no case to answer
-application under s 78 PACE
-application to exclude confession s 76 PACE
-app to exclude evidence under common law s 82(3) PACE
-abuse of process app
what is an application for dismissal in criminal law?
for cases sent to CC. a pre-trial app made after evidence is served and before arraignment
when is a submission of no case to answer submitted in CLP?
only available during trial at the close of the prosecution case (Galbraith test)
what is an abuse of process app?
CLP
app to stay the indictment where either:
1) D cannot have a fair trial; or
2) continuing the prosecution offends the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system and bring it into disrepute
when can evidence be excluded under s 78 PACE?
when it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it
(only to exclude prosecution evidence)
when is a voir dire used?
when there is a dispute on the facts between the defence and prosecution
what is the def of a confession?
any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise
what are the 2 ways under s 76 PACE to challenge a confession?
oppression (2)(a); or
anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof (2)(b)
————–
+ court can also order a rebuttal from prosecution that evidence was in fact nOT obtained how it’s set out in (a) and (b) (beyond reasonable doubt)
what is the standard for almost everything the prosecution needs to prove vs what the defence needs to prove?
prosecution: beyond reasonable doubt
defence: on the balance of probabilities
what are the time limits for the defence statement and Notice of Intention to Call Defence Witnesses?
CC: within 28 days of the date when prosecution complies with its duty of initial disclosure
MC: within 14 days of date when prosecution complies with its duty of initial disclosure
also, a defence statement is compulsory in CC!
how long after indicating plea and a matter being sent to CC will the PTPH be held
within 28 days
D will be arraigned and a trial date set
when is a statement hearsay?
when it is made out of court; and
the person that made it intended another person to believe it; and
it is adduced as evidence of the matter stated
when can hearsay still be admitted?
when the witness is unavailable;
it’s a business doc;
it is in the interests of justice to admit it;
it falls under a common law exception;
it is a previous inconsistent or consistent statement of a witness
what are the different stages of entering a guilty plea and how much can your sentence be reduced at each one?
guilty plea at first opportunity = max 1/3
guilty plea at PTPH = max 1/4
guilty plea on first day of trial = max 1/10
what happens if you are on a conditional discharge and commit a further offence?
you will be sentenced for the new offence and possibly resentenced for the original offence
when are Newton hearings held?
when D pleads guilty but says the facts are different + the judge doesn’t find the basis of plea absurd/equivocal + D’s basis would materially affect sentence
how do suspended sentences work?
resentencing does not happen here, rather the suspended sentence is just activated
in what circumstances do you appeal an MC decision to CC?
if you’re arguing an error of fact or fact and law
what are the possible appeal routes to HC?
case stated (error of law/magistrates acted in excess of jurisdiction);
app for JR (unfairness, bias or procedural irregularity)
if you appeal a decision from CC to CA, what sentencing powers does CA have?
same as CC< can’t be more excessive
how does requesting leave to appeal from the CA work?
first you apply to the single judge, and if they refuse, then can renew app for leave to the full court of 2 or 3 judges where app will be reconsidered by oral hearing
if you are sentenced in MC, what are the prosecution’s options for appealing?
can’t appeal against conviction or sentence
can only appeal to Divisional Court by way of case stated if there is an error of law/excess of jurisdiction
when sentenced in MC< what it D’s timeline for appealing?
notice of appeal must be lodged within 15 BDs of sentence(!)
what happens at your appeal hearing when you appeal a conviction to CC? (from MC)
there will be a rehearing of her case before a judge and 2 lay magistrates which will proceed in the same way as her original trial
neither defence nor prosecution are restricted to the same evidence as the original trial
evidence will be called and witnesses cross examined
CC then makes an finding of G or NG based on the re-hearing of the evidence
what’s the max sentence a youth court can impose?
2 years DTO (detention and training order)
what are youth rehabilitation orders?
community orders for youths