Gaps2 Flashcards
What is the exclusivity rule
The exclusivity principle requires that challenges to a public body’s “purely public law” decisions or actions must take the form of judicial review proceedings. … If private law proceedings are brought to challenge the validity of a notice, they may be struck out as an abuse of process
What is affray
uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety
What conditions can the police place on protests
Can limit location, duration and number of people to prevent serious public disorder, serious criminal damage and serious disruption to the life of the community
Can you continue to represent your client if you or another member of your firm will be a witness in their trial
No unless you are satisfied it won’t prejudice your independence, the interests of your client or the interests of justice
Can one client pay the bills of another client
Only if both clients consent as this is a loan from one client to another
How to record a cheque made payable to your firm but due to a client and the client asks you to endorse it to them
Normally client monies must be paid without delay into the client ledger account but if asked to endorse it may be withheld from the client ledger account instead it must be recorded on the books of ledger account as a receipt and payment on behalf of the client
Is it a crime to delete evidence relating to a money laundering investigation
Yes It is an offence to falsify, conceal, destroy or otherwise dispose of
Or cause or permit the falsification, concealment, destruction or disposal of
Documents which are relevant to the investigation
Are there any defences to the crime of deleting documents relating to a money laundering investigation
Yes 2 defences
Did not know or suspect that they were relevant to the investigation
And
Did not intend to conceal any facts disclosed by the documents from any appropriate officer carrying out the investigation
How much must a transaction be to require client due dilligence
1,000 euros
Or establish a business relationship
When can simplified due dilligence be carried out
if the business relationship or transaction presents a low degree of risk of money laundering and terrorist financing, having taken into account
Risk assessment
Relevant info
Risk factors
(Eg if they are a public institution, geographical factors and product service or transaction delivery channels)
What does simplified due diligence require
Normal requirements but may adjust the extent, timing or type of the measures
carry out sufficient monitoring of any business relationships to enable it to detect any unusual or suspicious transactions.
When must due diligence measures be applied
If the person
a) establishes a business relationship;
(b) carries out an occasional transaction that amounts to a transfer of funds within the meaning of Article 3.9 of the funds transfer regulation exceeding 1,000 euros;
(c) suspects money laundering or terrorist financing; or
(d) doubts the veracity or adequacy of documents or information previously obtained for the purposes of identification or verification.
Factors to take into consideration when determining whether to conduct due diligence for an existing customer
a) any indication that the identity of the customer, or of the customer’s beneficial owner, has changed;
(b) any transactions which are not reasonably consistent with the relevant person’s knowledge of the customer;
(c) any change in the purpose or intended nature of the relevant person’s relationship with the customer;
(d) any other matter which might affect the relevant person’s assessment of the money laundering or terrorist financing risk in relation to the customer.
What steps are required for normal due diligence
ID of client
Beneficial owners
Ongoing monitoring of business relationships
Obtain info on nature of business relationships
Do this to an extent in line with risk assessment and this will vary for case to case
When must client due dilligence be carried out
Before the establishment of a business relationship or the carrying out of the transaction
Can due dilligence ever be delayed
Provided that the verification is completed as soon as practicable after contact is first established, it may be completed during the establishment of a business relationship if
(a) this is necessary not to interrupt the normal conduct of business; and
(b) there is little risk of money laundering and terrorist financing.
What if due dilligence cannot be complied with
Cease to act and consider making NMLO disclosure.
When is enhanced due dilligence necessary
High risk of money laundering
Transaction with high risk third country
With a PEP, family or known close associate of PEP
They provided false or stolen ID docs but you decide to still deal with them
Transaction is unusual, large, odd pattern or of no purpose
What does enhanced due diligence require
Seeking additional independent sources to verify info
Additional measures to understand background, ownership and financial situation of client
Extra steps to ensure transaction is consistent with purpose and nature of business relationship
Increased monitoring of business relationships and scrutiny of transactions
In a partnership, who is responsible for the income tax calculations and preparation of the required tax forms?
Each partner needs to complete their own income tax form based on profits, and completion of a partnership return is required by one of the partners. The accountant can be involved in preparing all of the forms but the individuals will have to sign their own forms.
can self-employed persons and employees claim capital allowances for large purchases
only self-employed people can. Employees cannot claim business expenses.
are free promotional offers that are of virtually no intrinsic value capable of forming a unilateral contract
Yes
What does S13 of the sale of goods act imply into contracts for the sale of goods?
that goods will match their description. This applies even to innocent misrepresentation.
Who does the sale of goods act apply to
consumer - consumer and business - business. For consumer - business contracts use the CRA 2015.
Can self-defence apply when D is mistaken about the threat due to being intoxicated
No. Normally self-defence can apply if D is mistaken about the threat but this does not apply when D is drunk. The defence of self-defence will fail if the mistake is due to intoxication. This applies to both basic and specific intent crimes.
What is a reversionary lease
a lease that does not commence until some future date.
can a lease be created even if rent is low
yes, still consideration
can a lease be implied
yes - need exclusive possession, consideration and a determinable period (the period can be implied e.g. payment of rent each month implies a monthly periodic tenancy).
what does wheeldon v burrows say regarding easements?
Easements will pass when an owner grant to another part of a piece of land if the easement is:
continuous and apparent
necessary to the reasonable enjoyment of the property granted
and is at the time of the grant used by the owners of the entirety for the benefit of the part granted.
Can the owner of land when granting part of it to another person prevent the application of wheeldon v burrows regarding easements?
can prevent the easement from passing only if this is done expressly in the grant. This is subject to the exception of necessity.
How can a purchaser of (or contributor to) a freehold protect their interest in the property if it is not conveyed to them but in someone else’s name - when the property is UNregistered
register a class F land charge (Form K2)
What happens to trust property if it is not exhausted when the trust ends/ purpose complete?
the trustee holds the remainder of the property on a resulting trust for the settlor.
when can a minister make a remedial order following a declaration of incompatibilty?
when the minister considers that there are compelling reasons for doing so, otherwise a statute will be needed.
when a company is liable for failing to prevent tax evasion facilitation by an associated person can the employee also be liable?
the employee facilitating the evasion is unlikely to be liable as the offence cannot be committed by an individual - but may be guilty of a facilitation crime depending on severity of evasion
the company would be liable for the employee acting on its behalf irrespective of whether it gained any benefit from the facilitation.
the individual for whom the evasion if facilitated by the employee would be liable for tax evasion.
penalties for a company liable for failing to prevent tax evasion facilitation
unlimited fine and possibility ancillary sanctions such as confiscation, serious crime prevention orders and reputational damage
Does a director of a limited company have to have their personal address on the public record
all directors must provide companies house with their residential address and their service address. the service address will be on the public record but the residential address will be protected. a director can use their personal address for both and it will appear as the service address on the public record but it will not say that both addresses are the same.
what is a defendant convicted of if they encourage of assist a crime?
they are an accessory and charged as if they committed the crime themselves. e.g. if they encouraged someone to commit murder they are charged with murder even if they never actually killed anyone. The only difference is that the particulars state they aided, abetted, counselled or procured the crime.
Can you be guilty of a crime if you have the mens rea but are absent from the scene of the crime and someone else carried out the actus reus
yes if you have no withdrawn from the crime. look at the facts, they are probably guilty of the offence as secondary participant for assisting or encouraging.
Who is a principal of a crime
someone who carried out the substantive offence i.e. performs or causes the actus reus of the offence with the required mens rea. if two or more persons do so, they are joint principals
who is a secondary participant of a crime
someone who aids, abets, counsels or procures the crime (aka assist or encourage) but can be punished as if they are the principal offender.
How to imply an easement into a transfer of freehold or leasehold land
necessity
common intention
wheeldon v burrows
s62 LPA 1925
how can an easement be implied into a transfer of land through necessity
when landlocked
must be no other options
when can’t you rely on necessity to imply an easement
the parties do not intend there to be access to land
there is a footpath or access to the land by water
when can an easement be implied through common intention
where the parties held a common intention that the transferred (or retained) land would be used for a particular purpose and that purpose is only possible if an easement is granted.
when can’t an easement be implied by common intention
where there is evidence of a contrary intention
when can an easement be implied using wheeldon v burrows
- before the transfer there was a quasi-easement over the retained part in favour of the transferred part
- at the time of transfer, the quasi-easement was continuous and apparent
- it is necessary for the reasonable enjoyment of the transferred part that Y has an easement in the shape of the earlier quasi-easement.
can the operation of wheeldon v burrows be excluded
yes by the parties at the time of conveyancing.
how does s62 LPA imply an easement
s62 implies into all conveyances of land all rights and advantages enjoyed with the land and all advantages benefiting the land conveyed and burdening the land retained so if land is benefitted by an easement that will travel automatically on conveyancing.
can s62 be excluded by the parties
yes at the time of conveyancing.
do implied easements need to be registered to be legal
no because they are implied into the conveyancing deed so the deed makes them legal (rather than equitable) easements.
How can easements be created
express grant
prescription (common law, lost grant, prescription act)
how to make a legal easement using an express grant
deed and register (if it is registered land)
3 types of prescription to create easements
common law
lost grant
prescription act 1832
requirements to create an easement using common law prescription
use for 20 years
rebutted by showing at some point the land was owned by the same person or at some point it was interrupted
requirements for an easement by lost grant
20 years without an other lawful explanation. not rebutted even when use is interrupted after 20 years required use. doesn’t have to be the 20 year immediately before court claim.
requirements for prescription under the prescription act - 20 years
20 years - defence to claim that the right did not exist in 1189. only crystalises when some action calls it into use. the 20 years must be immediately before the court action. interuption of one year is disregarded
requirements for prescription under the prescription act - 40 years
40 years - only acquired once legal action is brought and the 40 years must extend up until that action.
easements other than lights
not if it was due to consent
requirements for an easement for all types of prescription
without force, secrecy or permission
which courts can make a declaration of incompatibility
supreme court, court of appeal, high court, court of protection, privy council, court martial appeal court
article 35 ECHR - 8 tests for admissibility for an individual application to ECHR
All domestic remedies have been exhausted
Must be within 6 months from the date of the final decision
Cannot be submitted anonymously
Cannot be substantially the same as a matter that has already been examined by the court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information
application must be compatible with the provision of the convention and the protocols
application will be inadmissible if it is manifestly ill-founded
application will be inadmissible if it is an abuse of the right of individual application
the applicant must have suffered a significant disadvantage, unless respect for human rights requires examination of the application on the merits. No case may be rejected on this ground which has not been duly considered by a domestic tribunal.
what if an individual application to the ECHR in inadmissible under article 35
it will be rejected and the court can do this at any stage of the proceedings
defence for companies failing to prevent tax evasion failiation
Companies are liable if their associated persons facilitate tax evasion by a taxpayer either UK or overseas. The only defence is to have reasonable prevention proceedures in place regarding the prevention of the facilitation of tax evasion. These need to be proportionate to the risks to the business.
