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SQE - LEGAL SYSTEM & Admin Law > Overriding Legal Obligations > Flashcards

Overriding Legal Obligations Flashcards

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1
Q

What is the overriding ethos of the Equality Act 2010

A

Everyone is to be treated fairly

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2
Q

What does the Equality Act try to eliminate

A

Unjustifiable Discrimination
&
Unfair Treatment

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3
Q

What is a protected characteristic

A

Personal characteristics that are safeguarded under the Equality Act

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4
Q

What are the 9 protected characteristics

A

Age
Disability
Gender Reassignment
Marriage/Civil Partnerships
Pregnancy & Maternity
Race
Religion or Beliefs
Sex
Sexual Orientation

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5
Q

What is prohibited conduct under the EA 2010

A

Unlawful behaviour

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6
Q

What are the types of prohibited conduct

A

Direct discrimination
Indirect discrimination
Disability discrimination
Harassment
Victimisation

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7
Q

What is direct discrimination

A

Where a person is treated less favourably due to a protected characteristic

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8
Q

What are the three conditions to prove direct discrimination

A

Victim must show:-
Another person would have been treated differently
Treatment was less favourable because of protected characteristic

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9
Q

What is indirect discrimination

A

Policy, practice or rule applies but impacts one of the characteristics

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10
Q

What is disability discrimination

A

A person treated unfavourably because of their disability

(No need to compare the treatment with another like direct discrimination)

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11
Q

What is harassment

A

Unwanted conduct:-
To a protected characteristic
And violates dignity
Or creates a hostile working environment

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12
Q

What is victimisation

A

Where a person treats another person less favourably because they have raised an issue with their conduct about a protected act

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13
Q

What is a duty to make adjustments

A

Duty to make reasonable adjustments

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14
Q

A failure to comply with a duty to adjustments mean what?

A

Discrimination

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15
Q

What is the test for a duty to make adjustments

A

REASONABLE steps must be taken to prevent a SUBSTANTIAL disadvantage

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16
Q

When firms are making adjustments for disabilities what approach should they take

A

A proactive approach not a reactive approach

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17
Q

Can costs for reasonable adjustments be passed onto clients

A

No

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18
Q

When considering what adjustments are necessary what does the court take into consideration

A

Costs and resources

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19
Q

What obligations do solicitors owe their employees

A

Unlawful acts: employees & prospective employees

Making adjustments: employees & prospective employees

Vicarious Liability

Positive Action

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20
Q

What adjustments should be made for employees and prospective employees

A

Reasonable adjustments which they know or ought to have known about and is likely to suffer a disadvantage

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21
Q

What is vicarious liability

A

Unlawful act of their employees committed during the course of their employment

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22
Q

Can employers escape vicarious liability

A

Yes if they can show they took all reasonable steps to prevent the behaviour e.g training

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23
Q

What is positive action

A

Treating someone with a protected characteristic more favourably

24
Q

Positive Action

A

Only permitted where the person with the protected characteristic is as suitable for the role as others.

(Tiebreak situation in interview)

25
Q

What is money laundering

A

Method used by criminals to conceal unlawful sources of money from criminal activity making it appear the money is from a legitimate source.

26
Q

What is proceeds of crime

A

The benefit that comes from the criminal activity.

I.e. money from selling drugs

27
Q

What is the three stage of money laundering?

A

Placement - dirty money
Layering - washed money
Integration- clean money

28
Q

What does placement mean in money laundering?

A

Money being introduced to the financial system

29
Q

What does layering mean in money laundering?

A

Money passing through parties/transactions so that it distances the money from criminal activity

30
Q

What does integration mean in money laundering?

A

Money in the financial system that the criminal has possession of.
Laundered money

31
Q

Who is the money laundering and terrorist watchdog?

A

Financial Action Task Force

32
Q

What does the FATF stand for?

A

Financial Action Task Force

33
Q

What does the FATF do?

A

Inter governmental body that sets international standards designed to prevent money laundering.

34
Q

Where are the laws set by the FATF for the UK found?

A

Money Laundering, Terrorist Financing and Transfer Funds Regulations 2017 and POCA.

35
Q

What are the 5 money laundering regulations law firms must abide by?

A
  1. Maintain a Risk Assessment
  2. Maintain risks from the assessment
  3. Must appoint a MLCO & MRLO
  4. Must provide staff with training
  5. ID of clients to be verified
36
Q

What is a MLCO

A

Money Laundering Compliance Officer
Responsible for firms compliance of the rules

37
Q

What is a MLRO?

A

Money Laundering Report Officer
Responsible for reporting suspicious activity

38
Q

What is customer due diligence?

A

Measures in place to verify the ID of a client

39
Q

How long must a clients ID be kept for?

A

5 years

40
Q

What timeframe should ID be obtained?

A

Must take place as soon as possible after first contact

41
Q

When must solicitor carry out CDD?

A
  1. Forming a business relationship
  2. Carrying out occasional transaction around £15000
  3. Solicitor suspects ML
  4. Doubts accuracy of docs
42
Q

What is simplified due diligence?

A

Permitted when it’s low risk
(Well known company)

43
Q

When is enhanced due diligence needed?

A

Examining background
Examining purpose of transaction
Increased monitoring

Extra steps to verify clients id

44
Q

When MUST EDD be applied?

A

High risk third county
PEP or associate of them
Having never met client in person

45
Q

What are some warning signs to look out for in ML?

A

Secretive
Uncooperative
Evasive
Behaviour
Unusual sources of funding
Urgency
Jurisdiction movement

46
Q

If a solicitor suspects ML what should they do?

A

Report to the MLRO who considers whether to report to NCA

47
Q

What time period should ML be reported?

A

As soon as practicable

48
Q

What is the Proceeds of Crime Act?

A

Offences concerned with Money Laundering

49
Q

What are direct involvement POCAS?

A

327 - Concealing/disguises/coverting
328 - facilitates or assists ML (know or suspect)
329 - enjoys the benefits of ML

50
Q

What are non direct involvement POCAS?

A

330 - fail to disclose ML (known/suspect) ought to have known
331- as above but specific to MLRO
333A - tipping off offences

51
Q

What are the 6 defences to ML?

A

Consent Defence
Reasonable Excuse Defence
Adequate Consideration Defence
Training Defence
Privileged Defence
Legal Overseas Defence

52
Q

What is the consent defence ML?

A

MLRO can ask for consent for the transaction.
If NCA has not responded within 7 MLRO can deem consent provided

S327,328,329

53
Q

What is the Reasonable Excuse Defence?

A

When a solicitor/MLRO intended to make a disclosure but had a reasonable excuse for not doing so.
(No guidance on reasonable excuse)

S327,328,328,330,331

54
Q

What is adequate consideration defence?

A

Adequate payment for their services

S329

55
Q

What is Training Defence?

A

Firms must provide adequate training on ML failure to do so gives the employee a defence

S330

56
Q

What is Privileged Circumstances defence?

A

Client or representative seeking advice

S330

57
Q

What is Legal Overseas defence?

A

Where criminal conduct is abroad and lawful in that country and had it occurred in the UK not punishable by 12 months or more

SQE - LEGAL SYSTEM & Admin Law (14 decks)

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