SQE2 Written Day 1 (DR & Crim) Flashcards

Question

Criminal Drafting - Appeal What should the structure be? Summary Facts Law ??????????????????

Answer 1

Grounds of appeal (sub headed)

Answer 2

Appeal against conviction or sentence Appeal by way of case stated Application to exclude the defendant’s bad character Application to adduce evidence of a non defendant’s bad character Application to Magistrate’s Court to reconsider police bail

Answer 3

Summary of facts Compensation sough Settlement (if instructed - eg part 36 offer) State client mindful of need for overriding objective and has instructed us to set up without prejudice meeting to discuss claim.

Answer 4

Summary of facts

Answer 5

Compensation sough

Answer 6

Settlement (if instructed - eg part 36 offer)

Answer 7

State client mindful of need for overriding objective and has instructed us to set up without prejudice meeting to discuss claim.

Answer 8

Legal and factual basis eg your client owed our client a duty of care in tort to advise them with reasonable care and skill with regard to their tax affairs. Your client fell below this standard by failing to advise on the availability to our client of the following potential reliefs to reduce their tax liability…

Answer 9

* Explain who the parties are * Identify the contract and the relevant terms * Explain the breach, including stating the particulars of breach and the consequences * Explain the loss the claimant has suffered * State the basis on which the claimant is claiming interest on any damages awarded * Statement of truth

Answer 10

who the parties are

Answer 11

contract and the relevant terms

Answer 12

breach, including stating the particulars of breach and the consequences

Answer 13

loss the claimant has suffered

Answer 14

basis on which the claimant is claiming interest on any damages awarded

Answer 15

Statement of truth

Answer 16

* Explain who the parties are * Identify the relevant facts establishing a duty of care * Explain the breach, inc stating particulars of breach and consequence * Explain the loss the claimant has suffered * State the basis on which the claimant is claiming interest on any damages awarded * Statement of truth

Answer 17

the parties are

Answer 18

relevant facts establishing a duty of care

Answer 19

breach, inc stating particulars of breach and consequence

Answer 20

loss the claimant has suffered

Answer 21

basis on which the claimant is claiming interest on any damages awarded

Answer 22

Statement of truth

Answer 23

Losses incurred Debt claim - precise amount Explain how calculated

Answer 24

A part 36 offer Offer to set up a without prejudice meeting to discuss the claim The overriding objective, so that costs cannot be used against.

Answer 25

Next steps (acknowledge & respond within 14 days please) Sign off Firm's name.

Answer 26

Letter of claim is sent prior to court action, whereas particulars of claim are sent in proceedings to outline the claim in detail.

Answer 27

Summary of facts The particulars of the breach Amount claimed Interest & the basis upon which claimed Whether claiming provisional damages Contract / Tort details, inc any paperwork. Statement of truth

Answer 28

Summary of facts (concise)

Answer 29

Amount claimed

Answer 30

Interest & the basis upon which claimed

Answer 31

provisional damages

Answer 32

Contract / Tort details

Answer 33

Particulars of breach Eg: The monitors overheated and shutdown automatically after 10 minutes of use. Customers to whom the Claimant supplied the monitors have returned them to the Claimant seeking a refund, and the Claimant

Answer 34

Statement of truth

Answer 35

PARTY'S DETAILS / ROLE Eg: The Claimant is a distributor of XXXXXX and the Defendant is a manufacturer of XXXXXXX THE AGREEMENT Eg: By a written agreement dated 01.01.24 the Defendant agreed to supply XXXXXXXXXXXXXXs to the Claimant at the price of £200 each. A copy of the agreement is attached to these Particulars of Claim. THAT ONE SIDE STUCK TO IT Eg: In July 2024 the Claimant purchased from the Defendant 4 of the XXXXXXX at the price of £200 each. QUALITY - EXPRESS TERM Eg: It was an express term of the contract that the XXXXX would be of satisfactory quality. ISSUE Eg: The XXXXX supplied were not of satisfactory quality.

Answer 36

details / role Eg: The Claimant is a distributor of XXXXXX and the Defendant is a manufacturer of XXXXXXX

Answer 37

agreement Eg: By a written agreement dated 01.01.24 the Defendant agreed to supply XXXXXXXXXXXXXXs to the Claimant at the price of £200 each. A copy of the agreement is attached to these Particulars of Claim.

Answer 38

one side stuck to it (etc) Eg: In July 2024 the Claimant purchased from the Defendant 4 of the XXXXXXX at the price of £200 each.

Answer 39

Express / statutory Eg: It was an express term of the contract that the XXXXX would be of satisfactory quality.

Answer 40

Issue Eg: The XXXXX supplied were not of satisfactory quality.

Answer 41

The monitors overheated and shutdown automatically after 10 minutes of use. Customers to whom the Claimant supplied the monitors have returned them to the Claimant seeking a refund, and the Claimant

Answer 42

Refund to customers of £800

Answer 43

There is a contractually agree rate at 8%. The court has jurisdiction to aware interest in accordance with s69 Count Courts Act 1984.

Answer 44

I believe that the facts stated in these particulars of claim are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Answer 45

Party's details State which allegations are - denied, admitted, or unable to admit or deny State that the amount of claim needs to be proved (unless admitted), and give own statement of value. Statement of truth

Answer 46

Admit Deny Neither admit nor deny

Answer 47

The Claimant must put to strict proof

Answer 48

The amount of claim

Answer 49

It is deemed admitted

Answer 50

Party's details

Answer 51

which allegations are - denied, admitted, or unable to admit or deny

Answer 52

amount of claim needs to be proved (unless admitted), and give own statement of value.

Answer 53

Statement of truth

Answer 54

That the parties have come to an agreement and the case should adjourn pending compliance

Answer 55

Claim number, court, judge Date STATE TOMLIN ORDER (very important) Party's details BY CONSENT IT IS ORDERED THAT All further proceedings re this claim to be stayed, except for the purpose of carrying the terms of the agreement into effect AND Parties have permission to reapply without the need to issue fresh proceedings Costs Details of service Solicitors details Agreed terms (Schedule)

Answer 56

State it's a Tomlin Order BY CONSENT IT IS ORDERED THAT Service & addresses Agreed terms (Schedule)

Answer 57

a Tomlin Order

Answer 58

IT IS ORDERED THAT

Answer 59

Agreement, intention to be bound, and consideration.

Answer 60

A guarantee Contract for sale of land Consumer credit transaction

Answer 61

A guarantee

Answer 62

Contract for sale of land

Answer 63

Consumer credit transaction

Answer 64

Must be clear that it is a deed A promise to give something without consideration Witnessed and delivered

Answer 65

that it is a deed

Answer 66

give something without consideration

Answer 67

Witnessed and delivered

Answer 68

Six years or three years from the date of knowledge of the injury, for personal injury claims.

Answer 69

Three years from the date of knowledge of the injury.

Answer 70

It is rejected.

Answer 71

It is NOT a rejection, merely an enquiry

Answer 72

It's an invitation to make an offer, such as a menu or advert.

Answer 73

No, because not all submissions will be accepted.

Answer 74

No, but confirmation of the same order WILL form an agreement. If delivery of goods is accepted, this is acceptance by conduct.

Answer 75

Where someone offers a reward. One person will be found by anyone complete the obligation. If the person undertaking the performance does not complete, then nobody is bound.

Answer 76

At any point before being accepted.

Answer 77

If the subject is time sensitive for example fruit that would otherwise go rotten then it would need to be accepted within a REASONABLE timeframe.

Answer 78

From a reliable source Acts of the offeror causing a reasonable person to believe that they no longer wishes to make the offer.

Answer 79

Yes, unless there has been CONSIDERATION for the promise.

Answer 80

Death or insanity of either party Destruction of subject of matter Illegality Failure to meet any condition specified in the offer

Answer 81

At the time the acceptance is posted.

Answer 82

No, because a counter-offer overrides the entire offer.

Answer 83

There is assumption that the parties did NOT intend to be legally bound.

Answer 84

When there is clear evidence that the parties did intend to be bounds, such as if a group of friends clubbed together to enter a competition.

Answer 85

Minors Mentally ill Intoxicated, and the other part is aware. However, necessary goods or services at a reasonable price ARE binding.

Answer 86

They can ratify them when they turn 18

Answer 87

Only if The amount of debt is uncertain A third party makes payment in good faith to clear the debt Payment is made by different means As part of a credit agreement with creditors

Answer 88

is uncertain

Answer 89

makes payment in good faith to clear the debt

Answer 90

by different means

Answer 91

credit agreement with creditors

Answer 92

It prevents a party from going back on a promise.

Answer 93

Only as a defence, not as a basis to a claim. For example, where rent during Covid was waived, they are estopped from claiming it back later.

Answer 94

Contracts (Right of Third Parties) Act 1999.

Answer 95

The contract must make some mention of this person, or class of person. Can only be used to benefit the third party, not impose obligations on another.

Answer 96

They can conclude a separate 'collateral contract' has been made They can conclude rights of a party are held under trust for a third party. They can assign contractual rights to someone else. They can allow a third party that is a guarantor to stand in for a party (this is know as subrogation)

Answer 97

Conditions go to the heart of the matter. Warranties are not fundamental. Innominate terms are unclear as to whether they're a condition or warrantee. Example: Garage says it will wash a car prior to being collected for sale. Garage doesn't wash car. Contract is still valid because car wash is not a condition, just a warrantee.

Answer 98

Damages only.

Answer 99

'collateral contract'

Answer 100

held under trust

Answer 101

assign contractual rights

Answer 102

is a guarantor to stand in for a party

Answer 103

When necessary to make the contract work.

Answer 104

It exists and is valid unless rescinded by one of the parties.

Answer 105

Mistake Illegality

Answer 106

Duress Undue influence Misrepresentation

Answer 107

Illegitimate pressure ie physical or economic pressure

Answer 108

Implying improper pressure (falls short of duress)

Answer 109

The law assumes undue influence due to a special relationship between parties.

Answer 110

When the weaker party obtained separate legal advice.

Answer 111

If the innocent party relied upon it and it induced them to enter into the contract.

Answer 112

Damages to put the person back in the position as if misrepresentation had not been made.

Answer 113

Consideration

Answer 114

The innocent party may terminate the contract and claim damages (Repudiation)

Answer 115

Where the subject matter is destroyed or makes the performance illegal or substantially different from that intended between parties.

Answer 116

Add a force majeure clause.

Answer 117

Damages to put the innocent person in the position they would have been had the contract been performed.

Answer 118

Yes, but they won't be upheld by the court if they are disproportionate.

Answer 119

That the cause was not the breach of contract.

Answer 120

Specific performance Injunction

Answer 121

It is where courts make an order to prevent unjust enrichment of one party.

Answer 122

Where there was no valid contract Where the contract is no longer in effect to compensate a party for a benefit they provided under the contract.

Answer 123

valid contract

Answer 124

longer in effect

Answer 125

a benefit they provided

Answer 126

The day AFTER the cause of action accrues.

Answer 127

Intentional (highest culpability) Negligence Strict liability (lowest cuplability)

Answer 128

Unlawful Direct (wrongly entering) Interference with (requires intent) Claimant's possession of (requires exclusive possession) Land (includes sub soil and reasonable airspace)

Answer 129

wrongly entering

Answer 130

requires intent

Answer 131

requires exclusive possession

Answer 132

includes sub soil and reasonable airspace

Answer 133

Lawful entry Necessity (emergency)

Answer 134

Injunction (to stop repeated trespass) Damages (nominal, if no damage caused)

Answer 135

Assault, Battery, False imprisonment

Answer 136

you throw a glass at A but it hits B – you’ve still caused a battery with INTENT.

Answer 137

A Direct (unwanted), and Intentional Application of Unlawful force to the person

Answer 138

Intentional

Answer 139

Application

Answer 140

Unlawful force

Answer 141

No, no intent.

Answer 142

Intentional act That causes the claimant Reasonably, to apprehend Immediate and direct infliction of Unlawful force on the person

Answer 143

Intentional

Answer 144

causes the claimant

Answer 145

Reasonably

Answer 146

Immediate and direct infliction

Answer 147

Unlawful constraint of (unable to leave by any method - must be reasonable) Freedom of movement (wrongful arrest) From a particular place

Answer 148

unable to leave by any method - must be reasonable

Answer 149

of movement

Answer 150

a particular place

Answer 151

Consent eg medical treatment; sport - However, excessive force or falsely obtained content may negate the defence. Self defence (must be reasonable and proportionate) Lawful arrest

Answer 152

Lawful arrest

Answer 153

medical treatment; sport - However, excessive force or falsely obtained content may negate the defence

Answer 154

must be reasonable and proportionate

Answer 155

Intentional Direct interference With claimants possession of goods

Answer 156

Intentional

Answer 157

possession of goods

Answer 158

Hiding car keys under pile of papers

Answer 159

Conversion of goods

Answer 160

dealing with goods in a way that is seriously inconsistent with the right of the owner ie: deprives owner of use of the goods

Answer 161

Take keys and throw into a pond Substantial damage to someone's property

Answer 162

Because it interferes with the rights of the actual owner

Answer 163

Court can order D to deliver goods to rightful owner, or award market value damages.

Answer 164

To provide compensation Note: compare this to contract whereby the aim is to put the party back in the position had they not entered into the contract.

Answer 165

That the D owed claimant a duty of care That this was breached That this caused the injury

Answer 166

Doctor and patient Driver and pedestrian Employer and employee

Answer 167

One where there isn't an already established duty of care.

Answer 168

Forseeability Proximity (legal relationship sufficiently close) Fair just and reasonable (can it be implement, and would it open legal floodgates if awarded?)

Answer 169

Forseeability

Answer 170

legal relationship sufficiently close

Answer 171

Fair just and reasonable

Answer 172

Yes as that is an established duty

Answer 173

Yes as that is an established duty

Answer 174

There is a duty to not make the situation worse

Answer 175

That of a reasonable person. Objective test - what would a reasonable person do in similar circumstance.

Answer 176

That of an experienced driver.

Answer 177

whether they have the foresight and prudence of a normal child of that age; ie how a typical 10 year old would act.

Answer 178

what an ordinary skilled person in that profession would have done. Expectation to keep on top of developments in technology and training.

Answer 179

Magnitude of risk versus that of taking precautions. Magnitude of risk is the likelihood of injury AND the gravity of the likely harm.

Answer 180

Whether D can show they took all precautions commonly in place in this situation. (eg fences are common in play areas) The social utility of the D's activity (is it particularly important to the community that the activity is allowed eg rushing to extinguish a neighbour's house fire)

Answer 181

When it is the only possible solution, and so negligence can be assumed. 'the thing speaks for itself'

Answer 182

Cause of incident unknown Thing causing damage solely under control of D Type of occurrence would not happen without negligence.

Answer 183

solely under control of D

Answer 184

would not happen without negligence

Answer 185

That the D’s breach of duty caused the claimant to suffer harm [Causation in Fact] No intervening act broke the chain of causation [Causation in law] The harm was not too remote. [Causation in law]

Answer 186

caused the claimant to suffer harm

Answer 187

broke the chain of causation

Answer 188

not too remote

Answer 189

That BUT FOR the D's action, the damage would not have occurred. Consider a speeding motorist hitting the child. If the child ran out and the motorist would have hit the child regardless of speed, then the motorist’s speed does not meet the ‘but for’ test.

Answer 190

That the D’s breach of duty caused the claimant to suffer harm [Causation in Fact]

Answer 191

That the D's act MATERIALLY CONTRIBUTED. For example a natural fire joined with an accidentally started one, and burned a house down.

Answer 192

It literally breaks the chain and so there is no causation to find. Example. A Delivery van blocks a path causing a pedestrian to go on to the road to step around it. She is hit by a car who was being driven at speed. ‘But For’ the delivery van she would not have been hit by a car in the road, however, the speeding car breaks that chain. It was not foreseeable.

Answer 193

Was the damage a foreseeable outcome? Example: A ball is accidentally thrown which hits an old fashioned fired lamp which is near a child playing. The lamp tips over and the child suffers burns. The burns were foreseeable regardless of the ball being thrown.

Answer 194

Consequential economic loss Pure economic loss

Answer 195

Loss that arises out of injury or damage to property, and IS recoverable using the ordinary rules of negligence. Example: Cake delivery van driven into. Can claim for personal injury, van and cake AND this cake’s delivery fees, but not further cake delivery losses. MUST be related to the original damage.

Answer 196

Loss that is unconnected to any damage sustained

Answer 197

Contributory negligence.

Answer 198

It will reduce the damage awarded by the claimant's share of the fault.

Answer 199

Because it's more / too remote. To consider this in most cases would open the litigation floodgates. Therefore the scope is narrow.

Answer 200

SPECIAL RELATIONSHIP: 1. D has specialist knowledge (eg accountant) 2. D is aware Claimant will rely on this 3. Reasonable for claimant to rely on info provided by D

Answer 201

As with pure economic loss, the scope is narrow so as to avoid the flood of litigation.

Answer 202

Consequential psychiatric harm Pure psychiatric harm (just like economic loss).

Answer 203

That the psychiatric injury was the consequence of a physical injury. EG: Broken leg in a car accident but developed depression as a result.

Answer 204

Any physical injury / impact.

Answer 205

Shock of being placed in danger Shock of witnessing harm to others as a result of D's actions.

Answer 206

others as a result of D's actions.

Answer 207

In way of harm due to D's conduct (near miss) A fear for safety for example a bullet narrowly misses.

Answer 208

Not generally.

Answer 209

A bystander witnessing someone else being injured.

Answer 210

1. Psychiatric harm foreseeable for person of NORMAL FORTITUDE 2. Secondary victim had CLOSE AND LOVING relationship with injured person 3. Secondary victim PRESENT at accident or IMMEDIATE AFTERMATH (includes turning up at hospital and hearing victim crying in pain) 4. Secondary victim directly witnessed events (with their own senses)

Answer 211

person of NORMAL FORTITUDE

Answer 212

CLOSE AND LOVING relationship with injured person

Answer 213

PRESENT at accident or IMMEDIATE AFTERMATH (includes turning up at hospital and hearing victim crying in pain)

Answer 214

their own senses

Answer 215

Breach of personal duty of care, resulting in injury Breach of statutory duty Vicarious liability for tort of an employee

Answer 216

Whether they were doing things REASONABLY connected to the job they were employed for.

Answer 217

If they were on site, then yes it's part of the working day.

Answer 218

1. To take REASONABLE care so as not to subject employees to UNNECESSARY RISK. 2. This will vary from one job to the next. 3. Also takes into account employees needs – age, experience and physical condition taken into account.

Answer 219

Take additional care due to the gravity of losing another eye, including things like enforcing the need to wear protective goggles. This would NOT apply to other employees.

Answer 220

Hiring of competent employees (note - this includes practical jokes!) Safe plant and equipment (safety equipment eg guards on dangerous machines; maintenance checks) Safe place to work (loose cables, can extend to third party areas) Safe system of work (training, supervision, checking safety equipment is supplied AND worn)

Answer 221

competent employees (note - this includes practical jokes!)

Answer 222

safety equipment eg guards on dangerous machines; maintenance checks Also: MH support for those in high stress situations such as busy call centres.

Answer 223

loose cables, can extend to third party areas

Answer 224

training, supervision, checking safety equipment is supplied AND worn)

Answer 225

The 'but for' test. Would this injury have happened but for the breach of duty.

Answer 226

Causation in law factors:- Whether there was any break in the chain Whether the injury was too remote Any contributory negligence

Answer 227

break in the chain

Answer 228

too remote

Answer 229

contributory negligence

Answer 230

No, because they have a PERSONAL liability towards the employees which cannot be delegated.

Answer 231

It is where an employee commits a tort, and means that the employer is STILL liable. It is a STRICT liability, or liability without fault.

Answer 232

The employer, due to their compulsory insurance

Answer 233

Employer / employee relationship (inc contractors) Employee committed tort Tort committed during course of employment

Answer 234

If the driver was off 'on a frolic', because they were no longer acting in the course of employment.

Answer 235

No. Anything akin to employment counts. So voluntary work, a prisoner in a prison kitchen would all count.

Answer 236

To return the person back in to the position they would have been in had the Tort not been committed.

Answer 237

Claimant is under a duty to mitigate. For example – claimant is expected to follow appropriate medical protocol. Otherwise their damages for anything but the injury itself would not be ordered.

Answer 238

Loss of past income (less any sick pay received, special damages as they're definable) Loss of future income (general damages - not specific) Expenses (treatment, equipment, adaptations to home)(general damages - need to be assessed).

Answer 239

past income

Answer 240

future income

Answer 241

Things that are not financial. Pain and suffering Loss of amenity (ability to enjoy life) Covers past AND future.

Answer 242

1. When property destroyed – damages based on cost of replacement 2. When property damaged – cost of repairing (technically it’s the partial loss of value of the item)

Answer 243

When it is a claim that the claimant made prior to death. Claims by dependants (a new claim, including damages for bereavement) Loss of support.

Answer 244

Only damages for loss of support / financial dependence. No pain / suffering due to instant death.

Answer 245

Occupier must be aware or reasonably aware of the danger Occupier is aware the trespasser may come into vicinty of danger The danger is one which IN ALL THE CIRCUMSTANCES is reasonable for the occupier to protect against. To take SUCH CARE AS IS REASONABLE to see trespasser doesn't suffer injury.

Answer 246

aware or reasonably aware of the danger

Answer 247

may come into vicinity of danger

Answer 248

IN ALL THE CIRCUMSTANCES is reasonable

Answer 249

SUCH CARE AS IS REASONABLE

Answer 250

Display a warning sign, or provide some other type of warning.

Answer 251

A defence to a tort claim for trespass OR for a visit.

Answer 252

The duty is to the person AND their property The standard is reasonable care Higher level of care required for children A warning is often NOT enough. A contract is sufficient. A warning that a house is old and that the occupier accepts no liability may be effective, IF the warning has been brought to the visitor's attention BEFORE entrance / contract signed. A business cannot exclude liability for death / PI

Answer 253

their property

Answer 254

reasonable

Answer 255

level of care required for

Answer 256

the warning has been brought to the visitor's attention BEFORE entrance / contract signed.

Answer 257

death / PI

Answer 258

Where the product cause an injury.

Answer 259

The manufacturer. However, this is difficult because the homeowner has no privity of contract with the manufacturer. This gives rise to the product manufacturer duty of care.

Answer 260

The the manufacturer put out the product in it's final state. No reasonable expectation of inspection by intermediary (ie shop / supplier).

Answer 261

No, because they are not expected to open each box and test the item.

Answer 262

Product contained a defect (safety is not as entitled to expect) Claimant suffered damage (private property and damage over £275) Damage caused by defect (but for test, no link in chain) Defendant is producer, own brander, or importer

Answer 263

contained a defect

Answer 264

suffered damage

Answer 265

caused by defect

Answer 266

producer, own brander, or importer

Answer 267

No, it's a strict liability

Answer 268

Defect did not exist when producer supplied product (ie you've had it 20 years!) Product not supplied in course of business (ie a gift) Existence of defect not discoverable at time product supplied (state of the art defence)

Answer 269

exist when producer supplied product

Answer 270

supplied in course of business

Answer 271

not discoverable at time product supplied

Answer 272

i. Interference with recognised public rights eg blocking a road. ii. Private Citizen – must have suffered PARTICULAR DAMAGE beyond that of the general public in order to raise claim of public nuisance. Example: Golf club has balls leaving the area and landing in gardens, but the person who’se car windscreen was cracked by this is the only one that could make a claim. iii. Usually damage to property, personal injury, loss of profits. iv. Can be a single act

Answer 273

recognised public rights

Answer 274

PARTICULAR DAMAGE beyond that of the general public

Answer 275

property, personal injury, loss of profits.

Answer 276

single act

Answer 277

Not suffered by general public. Often to do with land UNLAWFULLY or UNREASONABLY interferes with claimant's use and enjoyment of their land Normally an ongoing issue Claimant must be landowner or occupier

Answer 278

general public.

Answer 279

UNLAWFULLY or UNREASONABLY

Answer 280

landowner or occupier

Answer 281

1. Physical damage eg flooding / vibration 2. Damage to enjoyment (amenity) eg noise / dust / smells 3. Encroachment eg tree branches hanging.

Answer 282

1. Locality (industrial area means more interference is tolerated). If the area has recently become more residential then the residential aspect can mean longer standing things need to be changed, eg a pig farm somewhere that used to not be residential, but now is. 2. Utility – a power plant creates smoke, but the court may decide it’s necessary due to the nature of it, as it’s critical to the region. An injunction CAN prevent noise overnight, for example. 3. Duration – private nuisance usually requires a continuing condition. Noise going on into the night is more likely to qualify as unreasonable. 4. ABNORMAL sensitivity – may make it more difficult for the claimant, as it would be considered unusual and not affecting the rest of the population. 5. Malice 6. Foreseeability of damage – wouldn’t normally have caused damage, unexpected, could mean D not liable.

Answer 283

A substantial and unreasonable interference

Answer 284

ABNORMAL sensitivity

Answer 285

Foreseeability of damage May mean D isn't liable.

Answer 286

Prescription – 20 years without action by affected party confers a right to continue. Had an actionable nuisance for 20 years and did nothing. Statutory authority – not liable for interferences that are an INEVITABLE RESULT of a statutory authority eg the building of a power plant.

Answer 287

D brought something on to land likely to cause harm if it escapes (doesn't need to be inherently dangerous, only if it escapes) D engaged in non natural use of land (needs to be extraordinary) The thing on land escapes and causes harm. Note: In the original case, the D had created a reservoir. It was above some mine shafts. The reservoir burst and flooded land belonging to claimant. D did not know about the mine shafts. Nevertheless, the court ruled in favour of the claimant.

Answer 288

likely to cause harm if it escapes

Answer 289

non natural use of land

Answer 290

escapes and causes harm.

Answer 291

No, as it is a strict liability.

Answer 292

i. Unforeseeable act of God (eg: earthquake) ii. Unforeseeable act of a third party (eg an enemy planted dynamite!)

Answer 293

When the claimant knew or ought to have know of it.

Answer 294

After 15 years, NO claims at all can be brought, even if only discovered after then.

Answer 295

The day the claimant deliver the claim form to court.

Answer 296

Name changes Minor - limitation begins on child's 18th birthday Lack of capacity - clock restarts when capacity regained Fraud or concealment of the claim Relief for consequences of mistake on contract

Answer 297

Who responsible Outline of injury Hospital attended Loss suffered Ask to identify insurers

Answer 298

To see documents in the control of another.

Answer 299

No, not unless court has begun.

Answer 300

Over £100k, or £50k in PI cases (as a starting point). Can also be where The amount is in dispute Complexity Importance to public in general.

Answer 301

Interest Costs Contributory negligence Counterclaims

Answer 302

5% £10,000

Answer 303

Can be on the back of the claim form, or separately. If not served at the time, then within 14 days.

Answer 304

Because they didn't witness the facts.

Answer 305

Where the limitation period is imminent as to avoid any delay if the client is indisposed / abroad etc.

Answer 306

The claimant believes that... -or- I am duly authorised by the claimant to sign...

Answer 307

Where facts aren't disputed, only the amount.

Answer 308

Different form to use State WHY part 8 is being used State which questions the Claimant would like the court to decide upon & remedy sought & legal basis for that claim Capacity of the representative Application should INCLUDE evidence and W.S and particulars of claim.

Answer 309

4 months (outside of E+W it's 6 months)

Answer 310

There is no doubt service is effective.

Answer 311

Service on anyone in senior position eg chairperson, CEO, Director. Company's registered office can be used EVEN IF named solicitors have been nominated. Note: This is NOT the case if dealing with an individual.

Answer 312

When the process server has explained the general nature of the paperwork.

Answer 313

DX assumption yes Email assumption no

Answer 314

second business day after service made. This is the same for personal service, even though it's in person, for some reason.

Answer 315

No, the claimant has 4 months to send the claim form, and then the particulars within 14 days of the claim form.

Answer 316

Admit the claim File and serve a defence File acknowledgement of service

Answer 317

Admit the claim

Answer 318

File and serve a defence

Answer 319

File acknowledgement of service

Answer 320

File acknowledgement of service

Answer 321

No, it may be extended by a further 28 days if the defendant asks. The D should ask the CLAIMANT for this, not the court. These durations should be CLEAR days.

Answer 322

Allows a D to bring claims against another THIRD PARTY for all or part of the claim. The third party then becomes party to proceedings. If successful then the third party, instead of the D becomes liable to the claimant.

Answer 323

Not when the claim is made in the D's Defence Statement. Yes at all other times.

Answer 324

Due to a mistake in the naming Claim can't be carried out against original party unless substituted Original party has died or bankrupt, and liability has passed to a new party.

Answer 325

Small claims Fast Track Intermediate track Multi-track

Answer 326

£10k or less £5k or less PI Up to £1k if RTC claim and NOT driver

Answer 327

£10k-£25k 1 day trial (max) 2 expert witnesses per party (max) Experts limited to two subject fields

Answer 328

£25-£100k 3 day trial (max) 2 expert witnesses per party (max)

Answer 329

£100k+ Not suitable for Fast track

Answer 330

£10k total BUT PI value of the claim is under £5k Cannot exceed £1k if the claimant was a pedestrian, passenger, cyclist or biker. Think - not a driver

Answer 331

£10k-£25k BUT PI of claim is £5k or less (note, this is different from non PI cases) 1 day trial max 2 expert witnesses per party Limited to 2 subject matters £10k or less where there is a claim for whiplash. £1k or above where party is a protected party

Answer 332

£25k-£100k BUT PI of claim is £5k or less (note, this is different from non PI cases) 1 day trial max 2 expert witnesses per party Limited to 2 subject matters £10k or less where there is a claim for whiplash. £1k or above where party is a protected party

Answer 333

Civil National Business Centre

Answer 334

Monitoring costs and case management decision

Answer 335

Small claims.

Answer 336

Small claims as the matter in dispute is £4k.

Answer 337

The amount in dispute. Parties approach must be reasonable.

Answer 338

Case summary Skeleton arguments

Answer 339

A judge (the same one as the main case) will deal with these directly without delegation.

Answer 340

28 days, and not negotiable.

Answer 341

Any stay for ADR Pre-action protocol compliance Requirement for experts - and their costs Name of witnesses and which issues their evidence relates to Estimated trial length Anticipated costs of proceedings.

Answer 342

stay for ADR

Answer 343

costs of proceedings.

Answer 344

protocol compliance

Answer 345

experts - and their costs

Answer 346

witnesses and which issues their evidence relates to

Answer 347

trial length

Answer 348

14 days prior

Answer 349

Disclosure 4 weeks Witness statements 10 weeks Expert reports 14 weeks Pre trial CHECKLIST sent out 20 weeks Pre trial checklist returned 22 weeks Trial 30 weeks

Answer 350

Can be agreed between parties at CMC Typically longer than Fast track Similar order

Answer 351

Might try certain issues separately Number of witnesses and experts may be higher Costs budgeting

Answer 352

Most commonly an 'unless order' Striking out of a claim, defence or counter-claim (as a last resort)

Answer 353

Unless the defendant serves its disclosure list by X date, then the defence will be struck out

Answer 354

Costs orders Indemnity costs May require defaulting party to pay money into court May restrict number of witness May de-bar a party from relying on evidence May disallow evidence.

Answer 355

pay money into court

Answer 356

number of witness

Answer 357

relying on evidence

Answer 358

The defaulting party

Answer 359

Seriousness of the breach Why the breach occurred (eg serious illness) Efficiency and proportionality Circumstances of the case

Answer 360

Seriousness

Answer 361

the breach occurred

Answer 362

Efficiency and proportionality

Answer 363

Circumstances

Answer 364

Application notice Statement of case Affidavit and exhibits Previous orders in case Skeleton arguments

Answer 365

Claim form and statement of case Affidavit of support Draft of proposed order

Answer 366

To secure maintenance records of a machine that caused an injury (example)

Answer 367

To stop someone moving something outside of the jurisdiction. Have to show they're doing this to evade court action. Without notice.

Answer 368

Disclose the whereabouts of the document or property?

Answer 369

An independent solicitor

Answer 370

Undertake to offer to explain meaning and effect to D Inform D of their right to seek legal advice Inform D of rights to apply to vary or discharge order Prepare written report on execution and provide to Claimant's solicitor and court

Answer 371

To return original docs within 2 days Delivery and disputed property to D's solicitors to retain securely Securely retain all other property until court decides otherwise

Answer 372

At any time, even before proceedings begin. They can be made out of hours and even by telephone.

Answer 373

Damages are an adequate remedy. If the item is unique (painting / land etc) then damages would NOT be an adequate remedy.

Answer 374

Damages. Sometimes the court will require a party to make an undertaking for damages before hand.

Answer 375

1. Material non-disclosure on the part of the claimant 2. Failure of claimant to comply with terms on which injunction was granted 3. Facts do not justify it 4. Injunction was oppressive 5. Material change in circumstances. 6. Claimant has failed to prosecute the claim with all due speed.

Answer 376

non-disclosure

Answer 377

comply with terms on which injunction

Answer 378

justify it

Answer 379

oppressive

Answer 380

prosecute the claim with all due speed.

Answer 381

Material change

Answer 382

Not initially. Disclosure would simply be letting the other side know which documents they rely on, plus any that both support and adversely effect the case.

Answer 383

All documents within the party’s control This includes documents they have a right to possess or inspect Also includes documents that WERE in their possession but no longer have

Answer 384

Must undertake reasonable and proportionate level of search. The party must state the extent of the search, explaining why any particular search was NOT carried out: eg not proportionate due to low level value.

Answer 385

1. Docs in control that it doesn’t object to other party inspecting 2. Docs in control that it DOES object to the other party inspecting (usually PRIVILEGE) 3. Docs no longer in control, when last in control, and where they are now.

Answer 386

Other party asks, and the other must reply and send within 7 days. Photocopies are acceptable.

Answer 387

Approach the other party and ask - for example to see further up an email chain. If they decline then ask the court to order SPECIFIC DISCLOSURE.

Answer 388

Legal advice - comms between solicitor and client. Litigation - between sol and third party (barrister / expert) Common interest - co-claimants Without prejudice - as expected Public interest - harm the national administration of justice

Answer 389

The client

Answer 390

It must be suspended.

Answer 391

A witness SUMMARY. Details that will be given. Court permission is needed in order to serve this.

Answer 392

Generally so yes, unlike criminal.

Answer 393

The process of swearing in confirms that their evidence is offered formally, and it ceases to be hearsay at that point.

Answer 394

Serve notice on the other side (not court) Must explain the witnesses absence

Answer 395

They can make application to have witness attend court (must be within 14 days) They can serve notice to attack credibility of the witness (also within 14 days)

Answer 396

Whether it would have been reasonable to force the witness to attend Whether the original statement was made contemporaneously to the event Whether it contains multiple hearsay Whether the witness has a motive to lie.

Answer 397

reasonable to force the witness to attend

Answer 398

made contemporaneously to the event

Answer 399

multiple hearsay

Answer 400

motive to lie.

Answer 401

Because the other side doesn't have the opportunity to cross examine.

Answer 402

Document sent to the other side to admit specific facts or parts of the case.

Answer 403

If admitted, other side no longer needs to prove them. If not admitted and then proven at trial then the recipient may be ordered to pay the costs of proving those facts.

Answer 404

That the opinion must not be within the ordinary experience of a judge.

Answer 405

That it is objective That there is demonstration of opinion and conclusion That evidence is given with a reasonable degree of certainty That they remain impartial, even to the instructing party.

Answer 406

opinion and conclusion

Answer 407

reasonable degree of certainty

Answer 408

to the instructing party

Answer 409

Oral evidence is likely to impact the outcome That it will assist the judge Risk of injustice if evidence not tested Costs are not disproportionate

Answer 410

impact the outcome

Answer 411

injustice if evidence not

Answer 412

not disproportionate

Answer 413

It remains litigation privilege and need not be disclosed.

Answer 414

Ensure parties ready for trial Court may consider party's compliance Set a trial timetable Set number of experts and witnesses Ahead of this the party's provide an agreed (if possible) case summary (500 words) and a list of issues.

Answer 415

They could be fined.

Answer 416

Offer conduct money - for expenses, plus loss of income (though this is low). Additional payments available for meal and hotel if required to stay overnight.

Answer 417

Cast doubt by elapsed time since events Ascertain the witness has an interest in the outcome

Answer 418

Claimant opening submissions Defendant opening submissions Claimant witnesses, swear in evidence in chief Cross examination Re-examination Claimant's expert witnesses (if giving oral evidence - unusual) Cross examination Defendants witnesses, swear in evidence in chief Cross examination Re-examination Defendant's expert witnesses (if giving oral evidence) Cross examination Claimant closing submissions Defendant closing submissions

Answer 419

Outline the law Key evidence given Invite judge to rule on this basis

Answer 420

Costs Interest Time to pay Stay of execution (for appeal) Permission to appeal

Answer 421

Circuit judge High court master

Answer 422

Must be wrong in fact, wrong in law or the exercise of the judge's discretion -or- The decision is unjust due to procedural errors

Answer 423

It has REASONABLE chance of success -or- That the decision was probably wrong (eg key evidence from a witness was wrong, or that the judge applied the law incorrectly for example saying they were bound by a previous authority incorrectly) -or- That there is some other compelling reason (eg an injustice will occur because of the decision) -or- Where a judge has used discretion, this can be challenged – eg say the court has deviated from the rule regarding costs. This is within the discretion of the judge. So this can be challenged. Discretion is NOT absolute. Say the judge didn’t follow the usual protocol.

Answer 424

chance of success

Answer 425

wrong in law

Answer 426

Other compelling reason

Answer 427

exercised discretion

Answer 428

Request an oral hearing within 7 days.

Answer 429

Making another application in writing within another 21 days.

Answer 430

As an appeal for relief from sanctions.

Answer 431

Seriousness and significance of failure to comply Why the default occurred Surrounding circumstances of the case.

Answer 432

Not a rehearing No new evidence (unless permission granted) May dispose of application for permission AND the appeal together, in a ‘rolled up’ hearing.

Answer 433

Failure to comply with pre action protocol Rejection of part 36 offer Exaggeration of a claim Failure to succeed on whole of claim

Answer 434

comply with pre action protocol

Answer 435

part 36 offer

Answer 436

Exaggeration

Answer 437

succeed on whole

Answer 438

Costs actually paid to their representative. Can't be higher.

Answer 439

Paying. For example: If there is dispute as to whether it was 30 hours or 20 hours spent on something, on the standard basis it would be 20.

Answer 440

Receiving For example: If there is dispute as to whether it was 30 hours or 20 hours spent on something, on the indemnity basis it would be 30.

Answer 441

No, only that something shouldn't have happened at all.

Answer 442

Orders that set the amount payable for costs based on the case so far.

Answer 443

Short, simple, paperwork sent and judges decides there and then. Costs to be paid within 14 days. Interest available.

Answer 444

Receiving party prepared detailed bill of costs Serves on opponent within 3 months of judgment Opponent files disputed points within 21 days Failure to dispute means other can apply for default Bills not exceeding £75k are provisionally assessed by costs judge who considers reasonableness on papers and indicate amount of costs provisionally. Parties then have 21 days to object. Must account for anything 20% over budget.

Answer 445

Can only be applied for by D. It protects them in the event it's a big waste of time and they themselves have incurred legal costs. Claimant has the choice whether to sue, D does not have the choice whether to be sued.

Answer 446

Pay money into court

Answer 447

The claimant is a company, and there's a reason to believe it won't be able to pay costs if ordered to do so. Party gives incorrect address on claim form to evade.

Answer 448

An unsuccessful claimant will NOT be ordered to pay D's costs, unless Claim was dishonest Claim for financial benefit of another Struck out for no cause of action, or abuse This benefit is LOST if the claimant fails to beat a part 36 offer made by D. In this case the D *can* claim costs up to the level of damages awarded to the claimant.

Answer 449

Where the legal representative acted improperly, unreasonably or negligently

Answer 450

When the legal representative caused unnecessary costs, AND it is JUST to make the order.

Answer 451

The solicitor! It’s a sanction for the solicitor. It can be used where the solicitor refuses to cooperate with communication with the other side.

Answer 452

Must be without prejudice Must be in writing Must state that it is a part 36 offer Must state whether it is in satisfaction of the whole or part of the claim Must state whether it has taken any counterclaim into account Normally inclusive of interest.

Answer 453

without prejudice

Answer 454

part 36 offer

Answer 455

whole or part of the claim

Answer 456

counterclaim

Answer 457

Small claims

Answer 458

No sanction No effect - C was right to reject

Answer 459

There is a sanction as C caused there to be more costs than if they had accepted it. C pay’s D’s costs on standard basis from end of date of offer period C also pays own costs from end of that relevant period, can’t recover

Answer 460

No sanction - D was right to reject the offer as being unreasonable.

Answer 461

Sanction as Defendant was wrong to reject, especially because the Claimant when on to get even more at trial! Sanctions against D – costs, interest on those costs AND damages Interest can be up to 10% above base rate D also has to continue to pay costs after expiry of offer period, on indemnity basis Damages raised by 10% for first £500k & 5% thereafter

Answer 462

No, it is still at its discretion.

Answer 463

Enquiry agent (private investigator) Oral examination Take control of goods Third party debt order Obtain charge on property

Answer 464

Enquiry agent (private investigator)

Answer 465

Oral examination

Answer 466

Take control of goods

Answer 467

Third party debt

Answer 468

charge on property

Answer 469

An order for committal can be made.

Answer 470

In High Court it's 8% per annum. County Court no interest payable on judgements under £5k unless contractually obliged. Above that it's 8%, just like High Court.

Answer 471

Agents attend and remove items of property. This can be via High Court or County Court, though a High Court writ is easier to deal with as they're much faster to obtain.

Answer 472

Give debtor 7 days notice of intent to take control Enforcement agent attends and makes inventory of goods. Must sell goods within 7 days to discharge debt (after enforcement costs).

Answer 473

Basic domestic items Things not owned by debtor (inc hire purchase) Items of the debtor's trade Debtor can avoid seizure by agreeing not to dispose of goods before debt is paid.

Answer 474

An order to a third party ie a bank. Requiring them to pay money to creditor instead of the debtor.

Answer 475

An equitable mortgage giving the right to apply for an order for sale. Can even be applied where land is jointly owned. Court won't sell if children live there.

Answer 476

For the defence of insanity, on the balance of probabilities

Answer 477

Simultaneously

Answer 478

Because murder requires intent.

Answer 479

Where the reasons, and therefore the Mens Rea are not applicable. So simply the act of doing something is the whole of the offence.

Answer 480

Where an event would not have happened - But For - the act.

Answer 481

No, because the 'but for' test has not been satisfied, provided the heart attack wasn't related to the poison.

Answer 482

No, because there is also a second test - that the conduct must be substantial and operative (legal causation).

Answer 483

That the conduct be substantial and operative.

Answer 484

Must be more than slight or trifling. Doesn't need to be the only, or main cause, but must be more than minimal.

Answer 485

That there is no break in the chain of causation.

Answer 486

Where it was so daft as to be unforeseen (eg: someone threatened to hit them, so they jumped off the top of a building)

Answer 487

If the act is Free, Deliberate, and informed. Example: Couple argue, one trips and breaks wrist. Then, a third party kills them. The other person in the couple was not liable for the death due to the break in the chain of causation.

Answer 488

When it is 'So bad, and independent of the original injury'. Note: This would be gross malpractice.

Answer 489

That you take the victim as you find them. Example: Attacking an ill person and they subsequently die does NOT break the chain of causation because the illness made them more susceptible.

Answer 490

There is no break in the chain of causation. The original attacker would still be liable.

Answer 491

An indirect intention. In other words it was not the Defendant's aim or purpose.

Answer 492

That the outcome must be a virtually certain consequence (objective test), and that the Defendant must realise the outcome is a virtual certainty (subjective test).

Answer 493

Yes. The Mens Rea is made out via oblique intention because the death of the passengers is a virtual certainty AND the hijacker will know that this is a virtual certainty.

Answer 494

Specific intent requires a higher state of mind whereby the Defendant specifically set out to do the specific thing. Basic intent doesn't require this and can be satisfied by being reckless or negligent (or a strict liability offence such as speeding).

Answer 495

Oblique intention requires the outcome to be a virtually certain consequence, and that the D would know this. As basic intent offences don't require specific intent this wouldn't work.

Answer 496

Specific. The mens rea requires intention (whether to commit murder or GBH).

Answer 497

When the original intended victim ends up being someone else. It still counts as the Mens Rea is made out. Eg: Husband found to be having affair. Wife intends to hit husband but hits mistress. This is still GBH, even though she didn't intent to hit the mistress. Must be the same type of offence as originally intended.

Answer 498

That the D foresees risk and under circumstances known to the D, risk is an unreasonable one to take.

Answer 499

It can be both intentional or reckless, and so can therefore count as either a basic or specific intent offence.

Answer 500

Because indirect intention requires intention and recklessness does not. They are mutually exclusive. Where both are being considered, Recklessness will always prevail.

Answer 501

Causing the death of a human being, unlawfully, with intention to kill or cause GBH.

Answer 502

It is the same as murder BUT for two extenuating circumstances, either diminished responsibility or loss of control.

Answer 503

Abnormality of mental functioning The abnormality provides explanation for the killing.

Answer 504

Abnormality

Answer 505

provides explanation for the killing.

Answer 506

Must lose control at the point of the killing Must be a qualifying trigger

Answer 507

The defence, on the balance of probabilities.

Answer 508

Medical evidence (remember: it must be a recognised & diagnosed medical condition)

Answer 509

Whilst the Defence would raise the defence, it is for the prosecution to prove there was NOT a loss of control, beyond reasonable doubt.

Answer 510

Diminished Responsibility.

Answer 511

Diminished responsibility - Defence to prove, Loss of Control - Prosecution to prove it was NOT.

Answer 512

Fear of serious violence (inc protecting own child) Things said or done which are extremely grave.

Answer 513

Revenge, and Infidelity.

Answer 514

Only in a murder case, and can only reduce murder to this.

Answer 515

It is where the Actus Reus of murder is made out but the Mens Rea is not. It can be in the form of Unlawful Act Manslaughter, or Gross Negligence Manslaughter.

Answer 516

Actus Reus of murder is made out but the Mens Rea is not

Answer 517

Unlawful Act Manslaughter

Answer 518

Gross Negligence Manslaughter

Answer 519

Intentionally or recklessly causing another person to apprehend immediate unlawful violence.

Answer 520

Causing the other person to believe there was an immediate threat.

Answer 521

That there was an intention, or recklessness as to the risk and still does it.

Answer 522

Intentionally or recklessly applying unlawful (personal) force on another person.

Answer 523

Applying unwanted unlawful force on another - the smallest of touches is enough

Answer 524

Intentionally or recklessly touching.

Answer 525

Consent (can be either expressed or implied)

Answer 526

Where someone has given consent eg holding hands.

Answer 527

Jostling on a bus, bumping in a queue, in a crowd at a show etc

Answer 528

Where the act also affects someone else. For example, someone holding a baby is hit, but they drop the baby. The person would be liable for battery of both. Alternate example, my dog attacks a passer-by, then I am liable for for the battery.

Answer 529

Yes, an omission to act, eg the policeman's foot example.

Answer 530

Must be either an assault or a battery resulting in an injury. Must meet the requirements of both the factual causation (but for test) AND the legal causation (no chain broken, test).

Answer 531

Low level, eg bruise, swelling, brief loss of consciousness, small psychiatric issue.

Answer 532

Calculate to interfere with health or comfort More than transient or trifling

Answer 533

interfere with health or comfort

Answer 534

transient or trifling

Answer 535

s18 (more serious), and s20 (less serious).

Answer 536

That it is more than trifling. It is normally considered serious harm (objectively)

Answer 537

The same Actus Reus.

Answer 538

Requires serious UNLAWFUL harm eg broken bone, long spell of unconsciousness, serious psychiatric injury

Answer 539

Intention OR recklessness of causing SOME harm.

Answer 540

Intention to cause SERIOUS harm, or resist arrest. Note: Importantly, that this requires intention, and recklessness is not available.

Answer 541

s20, the intention to cause some harm.

Answer 542

s20, because there is the risk of some harm, but no guarantee.

Answer 543

s18, intention to cause serious harm (even though not aimed at a vital organ).

Answer 544

Not generally as a victim cannot often consent to injury, however there are some exceptions.

Answer 545

Medical (inc tattoos, piercing) Sports (within the normal rules of the game, inc combat spots) Religious practice (eg circumcision) Horseplay (mucking about) Sexual gratification.

Answer 546

To knowingly or recklessly enter a building, or part of a building, as a trespasser, with the intention (or to subsequently intend) for theft, GBH or Criminal Damage

Answer 547

knowingly or recklessly

Answer 548

enter a building, or part of a building

Answer 549

a trespasser

Answer 550

to subsequently intend

Answer 551

theft, GBH or Criminal Damage

Answer 552

s9(1a) requires intention to commit theft, GBH or criminal damage at the point of entry. s9(ab) requires the intention to commit theft, attempted theft, GBH, or attempted GBH, AFTER the time of entry.

Answer 553

Enter with intent to commit – THEFT, GBH or CRIMINAL DAMAGE. Needs to be intention at point of entry.

Answer 554

After entering, D then commits theft or attempt theft, commit or attempt GBH.

Answer 555

s9(1b) only. This is the one where the intention is formed AFTER entry.

Answer 556

Permanently deprive.

Answer 557

That the D has in their possession a firearm, imitation or explosive.

Answer 558

D need to have the weapon at the time of entry

Answer 559

D finds the weapon after entry, and have it AT THE TIME of the underlying offence (the theft or the GBH).

Answer 560

No burglary, because criminal damage (which this is) requires 9(1a) which also requires intention at time of entry!

Answer 561

Fraud by:- False representation Failure to disclose Abuse of position

Answer 562

To dishonestly make a gain for the Defendant, or another, or cause or risk a loss to another.

Answer 563

Must make a false representation as to: Fact, Law, or State of Mind

Answer 564

Dishonesty; have knowledge that the representation is false or misleading, intend to make a gain, cause loss or risk loss.

Answer 565

Whether reasonable people would believe it to be honest (objective test). Doesn't matter whether the D thought it was. D must know the statement is untrue or misleading. This needs actual knowledge, not simply a risk of being untrue. Must intent to gain or cause loss. Doesn't necessarily need to be money (eg sitting someone else's theory test).

Answer 566

reasonable people would believe it to be honest (objective test)

Answer 567

know the statement is untrue or misleading.

Answer 568

to gain or cause loss.

Answer 569

Fraud, because the intent was there. Note: NOT attempted fraud.

Answer 570

A legal duty to / a failure to disclose information.

Answer 571

Dishonesty, and intention to make a gain, cause loss or risk loss (note: This is the same as false representation).

Answer 572

Yes, fraud by failure to disclose.

Answer 573

Abusing the position to make a gain for self or loss for another. For example, stealing from a company, or your vulnerable aunt.

Answer 574

Establish the duty to safeguard the financial position of another Establish this has been abused.

Answer 575

Basic criminal damage Arson Aggravated criminal damage

Answer 576

Intentional or reckless destruction or damage of property belonging to another, without lawful excuse.

Answer 577

Destruction or damage of property belonging to another, without lawful excuse.

Answer 578

To be intentional or reckless in damaging / destroying another's property.

Answer 579

Whether it costs money to rectify. The amount of money does not need to be anything specific. £5 would suffice.

Answer 580

Tangible property only (so not shares, intellectual property) Animals - tamed or in captivity Note: plants are EXCLUDED unless cultivated.

Answer 581

No, because in the definition the property must belong to another.

Answer 582

Honest belief that owner would consent (eg smashing plates at greek wedding!) Honest belief the property needed immediate protection.

Answer 583

No, simply that they believe it to be. Example: Walking past a building and see flames, throw in water, only to find it was a log burner.

Answer 584

All the criminal damage elements (belief; damage to other's property) PLUS Intention or reckless endangerment to LIFE by damage to property.

Answer 585

There isn't one, there is only an additional Mens Rea for the aggravated element.

Answer 586

That there is intentional or reckless endangerment to life, by damage to property.

Answer 587

Aggravated, as they were reckless as to endangerment to life. Note: This is due to the person seeing the risk and doing it anyway.

Answer 588

Seeing the risk and doing it anyway.

Answer 589

You can commit Aggravated Criminal Damage on your own property, unlike that of basic CD. This is due to the requirement that there was an intention / recklessness as to the endangerment to life.

Answer 590

Much more limited than in basic CD, as clearly the defences of consent and that the property needed immediate protection would not apply.

Answer 591

No, why would anybody consent to life being endangered?!

Answer 592

Criminal damage by fire Exactly the same as criminal damage, but the cause was fire.

Answer 593

No, it must be the fire itself.

Answer 594

As per aggravated criminal damage but by fire, ie: needs the additional mens rea of endangerment to life by way of fire.

Answer 595

Must be under 10.

Answer 596

Of sufficient intellect to understand proceedings Able to challenge jurors and comprehend evidence

Answer 597

A trial could be held based solely on the Actus Reus, without consideration to the Mens Rea.

Answer 598

Supervision order or hospital order. These can be for fixed periods or indefinitely.

Answer 599

The prospect of a hospital order for a relatively minor offence might be worse than the sentence otherwise received.

Answer 600

The person that commits the Actus Reus AND Mens Rea at the same time.

Answer 601

Someone who had no idea there was a crime going on.

Answer 602

Providing help at the scene, at the time of the offence. Getaway driver would count

Answer 603

Encouraging or inciting at the scene, at the time.

Answer 604

Advice and encouragement, usually before the offence.

Answer 605

Paying people or providing materials.

Answer 606

Agreeing to carry out an offence with someone, but then the other person goes on to commit other offences at the same time. Example: Burglary, but then killing the homeowner.

Answer 607

Intention or assistance / encouragement of principal's commission of the crime.

Answer 608

Act that is more than merely preparatory, and must have had the intention to go on to complete the full offence.

Answer 609

Committed an act that is more than merely preparatory.

Answer 610

Intention to go on to complete the offence.

Answer 611

No, there was no act MORE than merely preparatory. The buying of the items would be preparatory.

Answer 612

Yes. Whilst the act of buying the items is preparatory, the act of grabbing the child would be more than merely preparatory.

Answer 613

The Mens Rea of ATTEMPTED murder is more stringent. Attempted Murder requires intent to murder. Compare this with Murder, which can be as a result of GBH which resulted in a death too.

Answer 614

Usually, yes.

Answer 615

Can still be liable. It is where for example someone attempts to steal a painting which had previously been moved elsewhere. [FACTUALLY IMPOSSIBLE]

Answer 616

No, they cannot be liable. This is where the offender thought they were committing a crime, but it actually wasn't. [LEGALLY IMPOSSIBLE]

Answer 617

An agreement by two or more parties to carry out an offence. Note: No actual steps need to be taken.

Answer 618

Yes, even though this is conditional, there would still be a conspiracy.

Answer 619

Children under 10 Spouses Victims

Answer 620

An intention to be a party to an agreement that would amount to a criminal offence.

Answer 621

Yes, because the conspiracy was already made, with the intention to be a party to an agreement that would amount to a criminal offence. [FACTUAL IMPOSSIBILITY]

Answer 622

No conspiracy committed, because there is no offence. Conspiracy requires the intention to be a party to an agreement that would amount to a criminal offence. [LEGAL IMPOSSIBILITY]

Answer 623

Where an attempt or conspiracy is made that is impossible to complete due to for example, the item no longer being present. The attempt or conspiracy still took place, so providing it was for an offence then attempt or conspiracy can still be charged.

Answer 624

Where an attempt of conspiracy is made that is not completed but there is no offence because the act was not actually a crime / offence.

Answer 625

Because rather than being an actual defence, instead it refers to the fact that the Mens Rea was not able to be formed for the offence. It negates INTENT if successful.

Answer 626

Knowingly and willingly taken the substance.

Answer 627

Alcohol and drugs

Answer 628

Usually prescription medication

Answer 629

Potentially the Mes Rea could be negated due to it being established that there was intoxication due to prescription medication.

Answer 630

The unknowing intoxication via consumption of alcohol or drugs means potentially that the Mens Rea could be negated.

Answer 631

The prosecution to prove beyond reasonable doubt that the person DID in fact have the necessary Mens Rea.

Answer 632

Basic intent, and specific intent.

Answer 633

An offence which can be committed recklessly. Therefore, as specific intent is not present, there is no thought process to be negated by intoxication. Basic intent offences can therefore still be prosecuted if the D was voluntarily intoxicated.

Answer 634

Involuntary intoxication would be there someone had been under the influence without the choice to be, for example if someone had spiked a drink. It serves as a COMPLETE defence if proved, and will often lead to acquittal. This is because the mental state required to make out the Mens Rea is not present.

Answer 635

Specific intent is where a D specifically set out to do something, rather than was reckless to cause something. Voluntary intoxication CAN sometimes be used as a Defence as it would potentially negate the Mens Rea, but only if the substance was Dangerous (alcohol / non prescription drugs).

Answer 636

s18 GBH is specific intent because it requires intent. s20 GBH is basic intent because it can be formed recklessly.

Answer 637

Trigger and Response.

Answer 638

What prompted them to act, ie, Did the D HONESTLY believe the use of force was immediately required [SUBJECTIVE TEST]

Answer 639

That the force used was proportionate [OBJECTIVE TEST]

Answer 640

That the D must NOT be a trespasser Must believe the victim to be a trespasser.

Answer 641

Any force that is not grossly disproportionate. Eg: The burglar was running away from the property and the householder shot them in the back.

Answer 642

Thefy and ABH.

Answer 643

Constable Sergeant Inspector Chief Inspector Superintendent Chief superintendent Assistant chief constable Deputy chief constable Chief constable

Answer 644

That the matter is dealt with justly.

Answer 645

Indictable / either-way charge Belief that it would lead to interference with evidence, others, alerting suspects, or hindering recovery of property related to the offence. Superintendent or higher has authorised the delay in writing. Maximum of 36 hours.

Answer 646

Indictable / either-way

Answer 647

interference with evidence, others, alerting suspects, or hindering recovery of property

Answer 648

Superintendent

Answer 649

Up to 36 hours Inspector or above.

Answer 650

24 hours Police and Criminal Evidence Act [PACE]

Answer 651

12 hours extension Authorised by superintendent Reasonable grounds for believing necessary to secure or preserve evidence or obtain evidence by questioning. Investigation MUST be being conducted diligently and expeditiously.

Answer 652

superintendent

Answer 653

secure or preserve evidence or obtain evidence by questioning

Answer 654

diligently and expeditiously

Answer 655

Warrant approved by Magistrates Additional 36 hours (to a total at that point of 72) A second warrant app to mags can return a further 24 hours to a MAXIMUM total of 96 hours. Must be for indictable or either-way offence Must be necessary to preserve or obtain evidence Must be being conducted diligently and expeditiously.

Answer 656

Magistrates

Answer 657

mags; 24; 96

Answer 658

preserve or obtain evidence

Answer 659

indictable or either-way

Answer 660

diligently and expeditiously.

Answer 661

An explanation of the procedure Legal advice and / or a friend present. Right to not take part (though this can be used against them)

Answer 662

explanation

Answer 663

Legal advice

Answer 664

not take part

Answer 665

Yes, via a covert ID procedure.

Answer 666

Moving images of suspect and at least 8 others (similar in appearance, distinguishing features concealed)

Answer 667

Suspect and at least 8 others who resemble the suspect appear in a line

Answer 668

Witness sees suspect in an informal group, with or without suspect's consent.

Answer 669

1:1. Suspect’s solicitor or friend should be present unless causes undue delay. Suspect should not be restrained. The witness is asked ‘is this the person you saw on the earlier occasion?

Answer 670

Failure to take reasonable objection of appearance of others into account Failure to keep witness away from suspect before or during process Failure to keep witnesses apart before or during process Failure to warn witnesses that the suspect might not be shown.

Answer 671

If it's admission would have an adverse effect on fairness.

Answer 672

Right to view custody record Right to sufficient information to enable them to understand the offence and reasons for suspect being detained.

Answer 673

Remain silent (though this can be used against them if they later rely on something that they could have said at the time when questioned) Hand in a written statement and decline to answer further questions. Reply 'no comment'

Answer 674

Custody officer

Answer 675

Seek clarification Challenge improper question or manner of questioning Advise not to reply to certain questions Ask for a pause to give legal advice

Answer 676

Superintendent

Answer 677

Custody officer, using the same factors as a normal grant of bail.

Answer 678

Where one of the exceptions to the right to bail apply, AND there is a real prospect of a custodial sentence.

Answer 679

It is revered. There is no assumption of bail.

Answer 680

Substantial grounds to believe that the D would:- Fail to surrender Commit further offences (on bail) Interfere with witness or obstruct justice Indictable offence AND was already on bail For their own protection Commit offences against associated person Already serving custodial sentence Insufficient info to make a decision on bail Failed to surrender or breached bail in same proceedings

Answer 681

to surrender

Answer 682

further offences

Answer 683

witness or obstruct justice

Answer 684

Indictable

Answer 685

own protection

Answer 686

associated person

Answer 687

serving custodial sentence

Answer 688

info to make a decision

Answer 689

to surrender or breached bail

Answer 690

Nature and seriousness Probable method of dealing with offence Previous convictions (have they absconded before) Community ties / associations (could their family help keep them straight) Record of complying with prior bail conditions Strength of evidence (very strong = less likely to grant bail)

Answer 691

seriousness

Answer 692

dealing with offence

Answer 693

convictions

Answer 694

ties / associations

Answer 695

complying with prior bail conditions

Answer 696

Strength of evidence

Answer 697

Relevant Proportionate Enforceable

Answer 698

Reside at specific address (further away would increase likelihood of bail) Report to police station. Weekly, twice weekly, daily, twice daily. Prohibited from particular area – for example a shop they’ve robbed, or a specific gang area Prohibited from contacting certain individuals (domestic abuse, away from victim etc) Curfew and/or tag – used if fear of offending is particularly high. Security – paid amount to court Surety – promised by third party – paid if defendant breaches bail or fails to attend.

Answer 699

to police station.

Answer 700

particular area

Answer 701

contacting certain individuals

Answer 702

A 'good amount' that would 'hurt' the person financially if bail not complied with.

Answer 703

Remanded in custody More stringent bail conditions

Answer 704

A warrant for arrest will be issued, and the failure to surrender is a further offence in its own right.

Answer 705

Magistrates

Answer 706

D pleads guilty - goes to sentencing D please innocent - goes to trial & bail considered

Answer 707

Court proceeds to plea before venue process Bail considered

Answer 708

The case is 'sent' to the crown court. Record whether guilty / not guilty Bail

Answer 709

Summary of offence Previous convictions Outline of interview Witness statements Exhibits Victim's impact statement

Answer 710

Strength of evidence Likely sentence Further Steps Court procedure Remind client of 1/3 off sentence for early guilty plea Note: Should NOT advise whether or not to plea guilty or not guilty

Answer 711

6 months for one or more summary only offences 12 months for one or more either way offences

Answer 712

It is legal aid funding for where the client is not self funding.

Answer 713

If it passes both the interest of justice test AN the means test.

Answer 714

Likelihood of loss of liberty, livelihood or reputation damage Substantial question of law Whether D is able to understand proceedings or state their own case Whether case will involve tracing or interviewing witnesses.

Answer 715

loss of liberty, livelihood or reputation damage

Answer 716

question of law

Answer 717

understand proceedings or state their own case

Answer 718

tracing or interviewing witnesses.

Answer 719

D is under 18 In receipt of certain benefits or pension Low income

Answer 720

Under £4k per year - full legal aid Up to £37,500 AFTER OUTGOINGS - limited legal aid.

Answer 721

Mags may not decline jurisdiction, but D can still elect for trial in Crown.

Answer 722

No. They may wish not to reveal their plea until the mode (Mags or Crown) of trial has been decided upon.

Answer 723

It could continue to sentencing, but there will need to be consideration as to whether the magistrates sentencing powers are adequate, so it could also still be sent to Crown.

Answer 724

If their sentencing powers were adequate. Previous convictions Submissions on mode of trial

Answer 725

Still could be either Mags or Crown, because when the mags accept jurisdiction the D can then still choose either.

Answer 726

A Goodyear indication.

Answer 727

The court giving the D an indication of likely sentence.

Answer 728

No, they're not obliged to. However, if they do give a Goodyear indication, it *is* binding.

Answer 729

Cheaper Shorter sentences Quicker Less onerous disclosure requirements (better if pleading guilty).

Answer 730

More likely to be found not guilty. 'Inappropriate' evidence not put before jury.

Answer 731

There isn't one really. 1/3 off the sentence for an early guilty plea is about it.

Answer 732

Either-way only.

Answer 733

Treat it as a trial had found them guilty Offer submissions as to suggested sentence Address aggravating and mitigating factors Give submissions on what their position would have been on mode of trial, had the D plead not guilty.

Answer 734

found them guilty

Answer 735

suggested sentence

Answer 736

aggravating and mitigating factors

Answer 737

mode of trial

Answer 738

Which witnesses will be called Find any WS agreed - can simply be read with no attendance required. Estimated trial length Other likely applications eg adduce hearsay / bad character Any special requirements eg interpreter Confirmation D has been advised on credit for early guilty plea

Answer 739

witnesses will be called

Answer 740

any WS agreed

Answer 741

trial length

Answer 742

applications eg adduce hearsay / bad character

Answer 743

requirements eg interpreter

Answer 744

D has been advised on credit for early guilty plea

Answer 745

Notify the prosecution which witnesses are required to attend trial, within 7 days. Notify any intention to adduce hearsay evidence or bad character evidence within 14 days. note: Defence *can* serve a defence statement here, but this is rare in Magistrates courts.

Answer 746

The plea and trial preparation hearing (So the same as a PTR for all intents and purposes)

Answer 747

The trial is likely to last more than 4 weeks Case management problems Early trial dates needed One of the D’s is U18 Likely to be an early guilty plea

Answer 748

If D pleads guilty, proceed to sentencing D may ask for Goodyear indication If D please not guilty, a trial date is set.

Answer 749

14 days to give notice of bad character evidence 50 days to complete disclosure (70 if D is on bail).

Answer 750

ALL evidence relied upon by the trial, including any unused material capable of either:- Undermining the prosecution's own case Assisting the case for the Defence

Answer 751

Serve a defence case statement within 14 days of disclosure, setting out:- Nature of defence Disputed facts Points of law Alibi witnesses

Answer 752

The jury are entitled to make an adverse inference.

Answer 753

Turnbull guidelines.

Answer 754

They will withdraw the case from the jury and enter an acquittal.

Answer 755

Mistaken witness can be convincing Even several witnesses can be mistaken Jury should consider circumstances of the identification The weaknesses of the witnesses identification

Answer 756

can be convincing

Answer 757

several witnesses

Answer 758

circumstances of the identification

Answer 759

witnesses identification

Answer 760

Putting forward new facts at trial not mentioned when charged Failure to give evidence at trial Failure to account for object, substance or mark found on D’s person clothing or footwear upon arrest. Failure to account for presence at crime scene

Answer 761

not mentioned when charged

Answer 762

object, substance or mark found on D’s person

Answer 763

presence at crime scene

Answer 764

Statute (witness unavailable / dead / is confession Rule of Law (Res Gestae, multiple hearsay) Agreement Interest of justice (importance / other evidence available / difficulty in challenging statement / reliability)

Answer 765

witness unavailable / dead / is confession/

Answer 766

Res Gestae, multiple hearsay

Answer 767

importance / other evidence available / difficulty in challenging statement / reliability

Answer 768

Any evidence that is in part adverse to the person who made it.

Answer 769

In Crown the viability of any such evidence will be consider in private without the jury present as decision makers. In Mags they must 'put it from their minds'.

Answer 770

The court has discretion to exclude any evidence offered by the prosecution if it appears, considering all the circumstances, that to admit it (the confession) would have an adverse effect on the fairness of proceedings [PACE s78]

Answer 771

A confession.

Answer 772

Where the police have breached duties under PACE such as illegal searches or improper ID procedures.

Answer 773

Significant and substantial, and have rendered the evidence unreliable.

Answer 774

Propensity and Credibility

Answer 775

That the D shows a lack of disposition towards misconduct, commission of offences, or other reprehensible behaviour.

Answer 776

Lack of criminal record Extensive voluntary work Public service

Answer 777

criminal record

Answer 778

voluntary work

Answer 779

Public service

Answer 780

An assertion that this is a person of good character who is likely to commit this offence.

Answer 781

That someone is more likely to be credible when asserting their innocence.

Answer 782

After the prosecution have set out their case, witnesses, and cross examination of prosecution witnesses. In short, when it's the Defence's first control of proceedings.

Answer 783

Cross examination only.

Answer 784

In Crown Prosecution then Defence, then the judge sums up. In Mags only the Defence make a closing speech.

Answer 785

Neither compellable or competent for prosecution Competent but not compellable for Defence Note: a failure to give evidence could give rise to adverse inference

Answer 786

Competent but not compellable for prosecution Competent and compellable for the defence

Answer 787

Neither competent nor compellable for prosecution Competent but not compellable for defence.

Answer 788

Screens Evidence via video link Wigs and gowns removed Pre-recorded testimony / in private

Answer 789

Yes, if it would be in the interests of justice.

Answer 790

Offence Offender

Answer 791

Relevant previous convictions Committed whilst D out on bail Motivated by racial or religious hostility Motivated by sexual orientation, trans identity or disability

Answer 792

Premeditation Committed in a group Vulnerable victim Under influence Offence involves a position of trust Offence against someone providing a service to the public Use of a weapon

Answer 793

Committed on impulse D acted out of fear D has disability of mental illness D played minor role in the crime D attempted to make reparation with victim D is very young or very old

Answer 794

trans identity or disability

Answer 795

previous convictions

Answer 796

D out on bail

Answer 797

racial or religious hostility

Answer 798

Premeditation

Answer 799

in a group

Answer 800

Vulnerable

Answer 801

position of trust

Answer 802

service to the public

Answer 803

Use of a weapon

Answer 804

on impulse

Answer 805

out of fear

Answer 806

mental illness

Answer 807

minor role in the crime

Answer 808

make reparation with victim

Answer 809

young or very old

Answer 810

That the sentence must not be disproportionate to the overall seriousness of the offending behaviour.

Answer 811

Give an outline of facts of case.

Answer 812

To offer a plea in mitigation

Answer 813

D's age D's health Good character Work and home situation Progress since offence committed Remorse

Answer 814

Work and home

Answer 815

That a custodial sentence should not be imposed unless the offence is so serious that neither a fine nor a community order is justified.

Answer 816

A suspended sentence.

Answer 817

Where someone pleads guilty but disputes the facts eg I killed him but it was accidental, when I set fire to the building.

Answer 818

A mini-trial in which evidence can be heard, including by witnesses.

Answer 819

Unpaid work Rehabilitation Programmes eg Anger management Curfew Exclusion from area Residence Mental health treatment Drug programme.

Answer 820

D retains credit for guilty plea.

Answer 821

D loses credit for guilty plea.

Answer 822

Conviction or sentence

Answer 823

The Crown only, not the Magistrates.

Answer 824

15 business days / 21 days

Answer 825

That the decision is wrong in law, or in excess of jurisdiction Typically that the law was misunderstood or misapplied, that there was a mistake of admissibility of evidence, or heard a case outside of jurisdiction.

Answer 826

Ask for leave to appeal within 28 days.

Answer 827

That the conviction was unsafe

Answer 828

Evidence wrongly admitted / excluded Direction wrongly given / omitted Conduct of trial judge demonstrated OBVIOUS bias Wrongful exercise of discretion Errors in summing up Problems relating to the jury

Answer 829

admitted / excluded

Answer 830

given / omitted

Answer 831

OBVIOUS bias

Answer 832

of discretion

Answer 833

summing up

Answer 834

Quashed conviction Order acquittal or retrial Find guilty of some offences but not others Find guilty of alternative offences

Answer 835

acquittal or retrial

Answer 836

of some offences but not others

Answer 837

Find guilty of

Answer 838

Wrong in law Wrong in principle Manifestly excessive

Answer 839

Manifestly

Answer 840

Crown's sentence is quashed, and replaced with ANY sentence the CoA feels appropriate Cannot increase sentence imposed by Crown Any new sentence deemed imposed at original start date Attorney General can refer a case if felt that sentence was too lenient.

Answer 841

ANY sentence the CoA feels appropriate

Answer 842

increase sentence

Answer 843

original start date

Answer 844

felt that sentence was too lenient.

Answer 845

CoA or Supreme court must grant leave Must be on a point of law Must be of wider public interest

Answer 846

grant leave

Answer 847

point of law

Answer 848

wider public interest

Answer 849

Any decision by a jury. They can however appeal on rulings made by the judge during the trial.

Answer 850

Youth court may elect to retain the case OR remit to Mags. In either event the full range of adult sentencing becomes available upon conviction.

Answer 851

One punishable by 14 years imprisonment or more.

Answer 852

Send to Crown.

Answer 853

Prevent reoffended / rehabilitation, as opposed to punishment.

Answer 854

Whichever the adult is at.

Answer 855

The lowest sentencing rung of youth court. A youth offender is sent to the Youth Offender panel who meet youth and family and agree a contract of conduct for 3-12 months.

Answer 856

3-12 months.

Answer 857

Upon guilty plea to FIRST imprisonable offence, and a prison sentence is not on the cards.

Answer 858

If D pleads guilty to some but not all offences, OR, they've previously had a referral order.

Answer 859

Where the D pleads not guilty, but then goes on to be convicted.

Answer 860

Referral order (lowest) Youth rehabilitation order Detention and training order (highest)

Answer 861

Similar to community service:- Unpaid work up to 240 hours in 12 months. Make restitution to victim Obey a curfew etc

Answer 862

10-11, not available 12-14, only if persistent offender (3+ imprisonable offences) 15-17, can be used whenever a court determined that only a custodial sentence is justified

Answer 863

not available

Answer 864

persistent offender (3+ imprisonable offences)

Answer 865

only a custodial sentence is justified

Answer 866

First half in custody, second half reporting to youth offending team (community service etc)

Answer 867

Up to 2 years. Often expressed as a matter of months eg 6,8,12,18

Answer 868

First - the D's perspective. Eg: I will lose my livelihood because....

Answer 869

No, it's to do with good character, honesty and trustworthiness.

Answer 870

If during, or after trial it is found that the circumstances are in fact more severe than appeared at first glance it is possible to send the case still to Crown, who would be the more suitable venue.

Answer 871

The offence, liability, Actus Reus and Mens Rea. The test for the actual offence.

Answer 872

It is hearsay, so generally can't be used. There are exceptions though such as under Res Gestae.

Answer 873

Yes, if the spouse used force against them, for instance.

Answer 874

The prosecution would treat them as a hostile witness and could seek to adduce the previous written statement.

Answer 875

It would strengthen the hearsay application as the court would need to hear the evidence previously given.

Answer 876

It's evidence other than oral evidence given at court. Notable exception for expert witness etc.

Answer 877

Liaise with the CPS to consider whether it's in the public interest to proceed.

Answer 878

That goods were supplied in the course of business.

Answer 879

Businesses, as it is a business to business act.

Answer 880

Consumer Protection Act - as they would be act wholly or mainly outside their trade.

SQE2 Written Day 1 (DR & Crim) Flashcards

Dispute Resolution & Criminal Practice