Missed sections paper 2 Flashcards
What are the identification procedures where suspects are known to the police? Not known to the police?
Who authorises these procedures?
Known:
* video identification- the eye-witness is shown moving images of a known suspect, together with similar images of others who resemble the suspect.
* identification parade- the eye-witness sees the suspect in a line of others who resemble the suspect.
* group identification- the eye-witness sees the suspect in an informal group of people.
Unknown: eye witness shown photographs.
Officer not below inspector who is not involved with investigation (identification officer)
What happens if D does not consent to VIPER?
Covert procedures can be used as a last resort
Some examples of aggravating factors?
- Previous conviction(s), particularly where a pattern of repeat offending is disclosed
- Offence committed whilst on bail for other offences
- Offence was racially or religiously aggravated
- Offence motivated by, or demonstrating, hostility to the victim based on his sexual orientation (or presumed sexual orientation) or on the victim’s disability ( or presumed disability)
- Commission of an offence while under the influence of alcohol or drugs
- Planning of an offence
- Offenders operating in groups or gangs
- High level of profit from the offence
- An attempt to conceal or dispose of evidence
- Failure to respond to previous sentences
- Offence committed whilst on licence
- Offence motivated by hostility towards a minority group, or a member or members of it
- Use of a weapon to frighten or injure victim
- Deliberate and gratuitous violence or damage to property, over and above what is needed to carry out the offence
- An especially serious physical or psychological effect on the victim, even if unintended
- Presence of others eg relatives, especially children or partner of the victim
- Additional degradation of the victim (e.g. taking photographs of a victim as part of a sexual offence)
- Abuse of a position of trust
- Abuse of power
Some examples of mitigating factors?
- A greater degree of provocation than normally expected
- Mental illness or disability
- Youth or age, where it affects the responsibility of the individual defendant
- The fact that the offender played only a minor role in the offence
- Good character and/or lack of previous convictions
- Any personal mitigation
What are the non-custodial sentences?
- Bind over (MC or CC - ‘keep the peace’ for a sum of money which forfeit if they fail to do so).
- Absolute discharges - no punishment
- Conditional discharge - discharged but if commit another sentence then can be re-sentenced for original offence and new offence within specified period (no more than 3 years)
- Fines
- Community order (over 18 and punishable with imprisonment - no longer than 3 yrs).
What is the definition of oblique intention?
Not the D’s main intention but a side effect. Outcome was a virtual certainty and D appreciated that.
For aggravated criminal damage, do the lawful excuses apply?
Is it relevant whether life was actually endangered?
What should danger to life arise from?
No
No (only that they were intended or reckless to life being endangered).
From the damaged property (casual link) - if fire then there will always be a causal link
Intention to permanently deprive - borrowing? interchangeable property?
Borrowing - was the intention to return it minus all its goodness, virtue and practical value?
Interchangeable - intending to return notes and coins of equivalent property was not same as returning actual property so ITPD.
What is a householder case?
- Uses force while in or partly in a building, or part of a building, that is a dwelling
o ‘building’ includes a vehicle or vessel; and
o ‘part of a building, that is a dwelling’ includes places of work and internal access routes:
* If the defendant or another person dwells in part of a building; and
* another part of the building is a place of work for D or another person; and
* you can move between the dwelling and place of work through an internal access route.
* Is not a trespasser at the time the force is used; and
* Believed the victim to be in, or entering, the building or part as a trespasser
What is formula B?
After exchange, Law Society Formula B imposes the following undertakings on the solicitors:
* to hold the signed contract to the other solicitor’s order – this means that the buyer’s signed part belongs to the seller and vice versa
* to post the signed contract to the other solicitor that day by first class post or DX (the document exchange used by solicitors and certain other professionals) or by hand delivery
* in the case of the buyer’s solicitor, to send the deposit in the form of payment specified by the contract (e.g., solicitors’ client account cheque in the first class post, or same day electronic transfer)
When is formula A used? C?
A: Where same solicitor has contracts for both seller and buyer (e.g. if other solicitor is abroad at exchange)
C: chain transactions - 2 or more properties (complex and usually use B by tying transactions together).
What is the effect of SDLT on 1st time residential buyers? Second property? LTT for first time buyers?
First time: A discount (relief) is applicable for a person buying their first home provided the purchase price is no more than £625,000. If there is more than one person buying, all must be first-time buyers.
* If the relief applies, there is no SDLT for the first £425,000 of the purchase price, and 5% on any part of the price over £425,000 (but not exceeding £625,000).
Second property: Additional 3% on top of whole purchase price.
LTT: no reliefs for first-time buyers/
What are the different use classes?
B2 General industrial
C1 Hotels
C2 Residential institutions
C3 Dwelling houses
E Commercial, business and service – this is a wide use class, including retail of goods, food, professional services to the public, etc
F1 Learning and non-residential institutions
F2 Local community
Sui generis - miscellaneous e.g. theatres, pubs and nightclubs.
What does TA13 include?
1) Vacant possession: arrangements for collecting keys
2) Deeds and documents: ask for list of deeds to be sent on completion for unregistered property
3) Completion: ask for completion by post
4) Money: ask’s for seller’s solicitor’s account details and exact amount to be paid on completion
5) Mortgages + charges: ask seller’s solicitor to list any mortgages and confirm they will be redeemed.
How do APR and BPR interact?
APR takes priority over BPR (cannot claim both for one asset).
What are the CGT consequences of GROB?
Treated as gift - CGT will be payable on any increase in value between date of gift and date of transfer (if they later sell the property - i.e. no free CGT uplift on death).
What is a POAC? When does it apply for property?
Pre-owned assets charge (similar to GROB - obtain a benefit from property they have given away - can choose which regime to elect into only where it is also a GROB(e.g. see chattels)).
Property: (1) individual occupies land
(2) Individual either disposed of occupied land or contributed towards acquisition (directly or indirectly) without obtaining a beneficial interest in it.
Individual will have to pay income tax on equivalent of market rent they would have to pay to occupy land.
When does POAC apply for chattels?
(1) possession or use of property (2) same as property
POAC = income tax on chattel
Example is useful: A man makes a gift of shares to his sister. The sister immediately sells the shares and uses the proceeds to buy a car. The man uses the car to drive to work every day and parks it outside his house
The possession condition is satisfied as the man has the use of the car. The contribution condition is satisfied because the car was acquired indirectly using the gifted shares. He must pay the POAC (calculated by reference to the official rate of interest on the car’s market value). This is not a GROB so there is no possibility of electing into that regime.
When does POAC not apply?
To spouse or civil partner
Gift that qualifies for family maintenance
Annual and small gifts exemptions
Arm’s length sales - to unconnected persons
Occupation seven years after gift: 7 year gap between contribution and occupation/possession = no POAC
What is a GAAR? When does it apply? Penalty?
General anti-abuse rule
1. Arrangement where tax advantage - reduction, deferral or complete avoidance
2. Relates to a tax where GAAR applies e.g. IHT
3. Main purpose test: Obtaining tax advantage was main or one of main purposes of arrangement
4. Abusive: not a reasonable course of action
Has to pay counteract abusive effect of arrangement (+penalty of 60% of counteracted amount also payable).
What is a DOTA? What are notifiable arrangements?
Disclosure of tax avoidance scheme: reporting scheme where ‘promotors’ of arrangements must inform HMRC about notifiable arrangements or proposals.
Fall within description of hallmarks (avoidance or reduction of IHT charges relating to trusts and close companies, avoid/red related to GROB rules, reduction of estate which does not gives rise to a PET/chargeable transfer).
Arrangements enable a tax advantage.
Main benefit or one of main benefit is to obtain a tax advantage.
