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SQE1 - Legal Systems

SQE1 - Legal Systems

Essential SQE1 Functioning Legal Knowledge (FLK) assessment preparation for Legal Systems

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with Fauzia Abrahams

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Description

This comprehensive course covers key aspects of legal systems and related legal principles as required for the SQE1 exam. Participants will gain a robust understanding of:

- Introduction to Legal Systems and Services

- Statute and Statutory Interpretation

- Core Institutions Legitimacy and Accountability

- Human Rights and ECHR

- UK Constitution

- Funding Options for Legal Services

- The Regulatory Role of the SRA

- The Equality Act

- Money Laundering

The course emphasises effective application of core legal rules and principles to realistic scenarios, providing learners with the knowledge and practice to competently handle ethical and client-based issues in legal systems.

What you'll learn

Provide learners preparing for the Solicitors Qualifying Examination (SQE1) Functioning Legal Knowledge (FLK) assessments the knowledge and practice needed to complete the Legal Systems topic for FLK1

Requirements

Watch the recorded webinars and review any supporting documentation.

Who is the target audience?

This course is designed for aspiring solicitors preparing for the SQE1 exam

Course Content

Recorded Webinars

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Part 1 - Webinar

00:14:31

Recorded webinar

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Part 2 - Webinar

00:23:09

Hello and welcome to this sqe presentation for legal systems and services for preparing for the exam. You need to cover the objectives of the legal system of England and Wales and sources of law, constitutional and administrative law and eu law and legal services. This presentation will focus on statutes and statutory interpretation. Parliament comprises of three institutions which all have a role to play in the legislation process. The first one is the House of Commons where elected MP S sit. So the Commons is the more powerful and important of the two houses of parliament. The general population elects MP S and the Commons is seen as central to the existence of a democratic state. And when the common scrutinizes the actions of government and debates government proposals for new laws. It is in theory, at least acting on behalf of the electorate acts of parliament are effectively created through the will of a majority of the House of Commons. Secondly, we have the House of Lords of unelected peers, senior judges and bishops, the House of Lords debates and votes on bills. The laws generally acts in a way that complements the work of the Commons uh rather than acting in opposition to it, it revises proposals for legislation and scrutinizes the work of the government. Many of the amendments in the House of Lords are uh to bills in order to tidy up uh those um those acts in order to make the law more workable. The commons is the driving force behind most acts in the sense that it is more important that a bill is approved by the commons than the lords. And then we have the monarch who is the king, the main characteristic of a constitutional monarchy. In our British sense was settled since the end of Queen Victoria's reign. In that the monarchy uh only acts on the advice of ministers. So the Prime Minister keeps the monarch closely informed about major political events at weekly audiences and the monarch receives a selection of important government documents on a daily basis. These include cabinet papers and reports from British ambassadors abroad. Let's have a question. What role do ministers have in parliament? One, they do not have 12, they are members of either the commons or the Lords. Three, they are not members of either house, but they do appear for questions before select committees and in either chamber have a go at this question. The answer for this will be at the end of the presentation question number two, which of the following are examples of constitutional conventions. Please choose all those that apply. The Prime Minister always sits in the House of Lords. Two, the law chancellor must uphold the independence of the judiciary. Three, every government minister must sit in the House of Commons and four, the monarch should not become publicly involved in the party politics of government. Again, the answer will be at the end of the presentation. Another activity to test your revision knowledge is to match the correct heads and tails. So on the left hand side, you have uh things called different types of legislation. So original consolidating, codifying and amending and you need to uh match them to the correct definitions on the right hand side. So uh you need to learn the different types of legislation um and match them to those definitions again, feed up feedback will be at the end of the presentation. So what is statutory interpretation? It's the way in which lawyers and judges interpret Acts of Parliament. Why do we need statutory interpretation or words within acts can often be very vague words which have one meaning to one person might meet something else completely different to someone else. So no matter how careful the legislative draftsman tries to be, no provision can hope to cater for all circumstances. Lawyers will also argue for alternative interpretations of legislation to support their client's case. The complexities of the English language, the meaning of the words may be unclear because they are designed to cover several possibilities. So the in a good example is the dangerous dogs act 1991 in it. There is a phrase that says any dog of the type known as the pit bull terrier, which seems simple but has little problems. So what is meant by type? Does it mean the same as breed? Think of some words that could have been used instead of the word type have a, think about what the legislation was hoping to achieve in Brock versus D PB 1993. This was the key point in dispute. And the Queen's bench, divisional court decided that type had a wider meaning than breed. It could cover dogs that were not pedigree, pitbull terriers and those dogs that had a substantial number of characteristics of such a dog. What is a vehicle? So there is legislation that states that it is a criminal offense to enter a park in a vehicle. This did in fact arise in the case of twining versus Myers 1982 where the court had to decide whether roller skates amounted to a vehicle ambiguity. This is where a word has two or more meanings. It may not be clear which meaning should be used. For example, legislation would be clearer if it specifically contained the words trucks over X tonnage, rather than large vehicles, barristers and solicitors representing opposed interests will want to find ambiguity in the meaning of some phrases and words in attempting to serve their client's best interests. Once parliament has passed an act, it falls to the courts to apply the Act or Statute to a particular case to do this. Judges have developed a system of rules to help them and they can choose which rule to use and apply. These rules are known as the literal rule. Golden rule, mischief for and purposive approach. Let's first look at the literal war under this rule. The intention of parliament is considered as contained in the words past. The literal meaning of those words must be taken. Words must be given their ordinary plain and natural meaning. The literal meaning of those words must be taken even if the result is not very sensible or is one which parliament did not intend. Lord Isha expressed this view in R versus judge of the city of London Court 1892 the advantages of the literal war. So it respects the separation of powers theory. Some judges will argue that they are doing parliament a service by pointing out faulty legislation. It is consistent and provides no scope for judges to use their own opinions or prejudices some disadvantages. Then the war can result in absurd and unjust decisions. The rule demands standards of unattainable perfection from the parliamentary draftsmen. It ignores the fact that language has limitations and can change over time. It creates awkward presidents which require parliamentary time to correct the golden rule. This rule is a modification of the literal war and starts by looking at the literal meaning and then the court is allowed to avoid an interpretation which would lead to an absurd result. The thinking behind the war is that parliament could not have intended to create an absurdity and therefore, a judge can substitute a reasonable alternative meaning in the light of the statute as a whole, which would avoid the absurdity. Lord Wensleydale stated in Gray versus Pearson 1857 the grammatical and ordinary sense of the word is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument. In which case, the grammatical and ordinary sense of the words may be modified. So as to avoid that absurdity and inconsistency. But no further, let's look at the case as an example. So Adler versus George 1964 the defendant had been found trespassing on an raf airbase and had obstructed the arresting officer. He was charged for that offense under section three of the Official Secrets Act 1920. In that he had done that in the vicinity of a prohibited place. So those are the actual words in the Act, in the vicinity. The defendant argued that he was not in the vicinity. He was actually on the base using the golden rule. The judge interpreted the words as meaning close to or in and George's conviction was upheld. So think about if we had used the literal rule in which case, his conviction would have been quashed leading to an absurd result. So advantages of the golden rule, we have errors in drafting can be corrected immediately provides an escape route from the absurd decisions which can be produced by the literal rule by avoiding absurdities. Parliament's true intentions can be put into force and it respects the doctrine of the separation of powers and the supremacy of parliament by only allowing judges enough freedom to correct errors. They are not deciding what Parliament intended some disadvantages of the golden rule. There is no clear guidance about how and when the rule should be used and no definition of what an absurd result is before deciding to avoid it. It is little more than the literal rule. And as such is subject to similar criticisms regarding reasonable expectations of the use of language and drafting of legislation. It brings common sense into the law and you might think that's a good thing, but common sense is very subjective. Judges can and have effectively rewritten statute law which goes against the doctrines of separation of powers and supremacy of parliament. Let's look at the mischief rule. So this will give the judge a bit more discretion than the other two rules and it was laid down in Hayden's case 1584. What they need to consider is, was what was the common law before the statute was passed? So what was the issue that made this statute come about? What was the problem or mischief that the statute was trying to remedy. What was the remedy that parliament was trying to provide? Following this, the judge should aim to interpret the act to remedy the actual mischief. So, under this rule, the court should look to see what the law was before the act was passed. In order to discover what gap or mischief the act was trying to cover and the courts should then interpret that act in a way that covers the gap. So let's look at an example case, Smith versus Hughes 1960 the mischief rule was used to interpret section 11 of the street offenses act which said it shall be an offense for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution. So in this case, the court of appeal considered the appeals of six women. In these cases, the women had not actually been in the street according to section 11, one had been on the balcony of the property and the others in windows or of the rooms of a property on the ground floor. In each case, the women were attracting the attention of men by calling to them or tapping on the windows. They argued they were not guilty since they were literally not in a street or public place, the court decided that they were guilty. That act was intended to enable people to walk down the street without being solicited. And since the soliciting in question was aimed at people in the street. Even though the prostitutes were not in the street themselves. The act should be interpreted to include this activity. Some advantages of the mischief rule like the golden rule. The mischief rule helps avoid absurdity and injustice and repairs, bad laws. Quickly the mischief war reforms and improves the law as each case is interpreted. So as to avoid the mischief behind the act. Constitutionally, some judges would argue that they are respecting parliament by giving effect to their true intentions. Despite using a degree of discretion, lets look at some disadvantages of the mischief rule. The rule dates back to the 16th century when there were far fewer Acts of Parliament and those were passed would have been less complex with intentions that were easier to work out. So this makes the rule less suited to the quantity and complexity of modern legislation. Constitutionally, some critics would argue that the mischief war allows for judicial lawmaking which is against the doctrines of the separation of powers and supremacy of parliament. And it must be possible to discover the mischief. There will be less extrinsic material. We were looking at that in a moment available for older acts making it difficult to discover, excuse me, why an act was passed rep purposes approach then. So this rule goes beyond the mischief rule in that the court is not just looking to see what the gap was in the old law, they are now deciding what they believe parliament meant to achieve. So you can see here uh the separation of powers boundaries starting to fade a little bit. The court looks at what the general purpose of parliament was when they made the act. The rule allows the court to look at the whole act, not just the specific harm, it was aimed to remedy. It is sometimes called a contextual approach because it relies on a broader context of this statute. An example is in Westminster City Council versus French connection. Retail 2005, the owner of a shop operated a loudspeaker in the street. The devices were fixed to the windows of the shop which broadcasts very loud pop music onto the street. The issue was whether this was a loudspeaker in a street at, as the legislation stated, the court of appeal found that as the window had been functioning as a loudspeaker, the outer face of the window was plainly in the street and the inner one was in the shop. So the object of that act, the control of pollution was to prevent the public from being assaulted by noise, allowing them to enjoy their public right of way. The defendant was convicted. And then we have the case of RVZ 2005. The defendant who was Z was convicted of being a member of a prescribed banned organization. He appealed on the grounds that the legislation prescribed the Ir Ira but not the real Ira, for which he was a member. The reference to the Irish Republican army in the list of prescribed organizations in the terrorism act had been intended to include breakaway groups and thus included the real Ira. Even though the real Ira was not actually listed statutes aimed at stopping terrorism, banned the Ir Ira and all branches of the Ira. Even though they had never been listed by parliament, the court decided that the aim of parliament was to ban all these groups, not just those that it had listed. So it looked at the purpose of the act and what it was trying to achieve. So the advantages of the purposive approach, it gives effect to parliament's true intentions. The rule makes extensive use of extrinsic aids to ensure an accurate and informed view of parliament's intentions are established. It avoids all the absurd and just harsh outcomes of the literal approach and avoids this destructive analysis or of language. Let's look at some disadvantages. Then constitutionally, this approach allows judges the greatest freedom and some critics would say it goes directly against the doctrine of separation of powers and supremacy of parliament like the mischief rule. The purpose of approach can only be used if Parliament's intentions can be identified. Whilst it is suited to the interpretation of European law, it is less suited to more precise and detailed structure of English legislation presumption. So as well as the four rules, the courts may make use of a number of Presumptions which are made when interpreting statutes. So an act will apply to the whole of the UK. And if the act wishes to only apply to a certain area, then it must expressly say so the crown or the king will not be bound by any act unless it expressly states. And that goes with the doctrine that the monarchy can do no wrong or the king can do no wrong. The common law cannot be altered by an act unless the statute expressly states that it is its function, mens rea will always be required for a criminal offense. Unless the act expressly states the criminal offense does not need the culpable state of mind. No act will have a retrospective effect and all legislation must be interpreted in light of the Human Rights Act 1998 it is extrinsic aids. Then what are these and what do they do? So in in addition to all the rules and Presumptions which we have looked at judges will use other tools uh to help them when they are interpreting legislation. So intrinsic aids are things like other words. So the does that word have other meanings? The long and the short title, the preamble interpretation section schedules punctuation headings and marginal notes. Extrinsic aids include historical setting, dictionaries and textbooks. Previous or contemporary Acts of Parliament, earlier case law, previous practice, official publications, Hansard the HR A Treaties and International Conventions. This next section will be the feedback on the earlier questions. So if you haven't had a chance to do those questions, I suggest that you go back and do those before you continue with the slides, the answer. So what role do ministers have in parliament? Well, they are members of either the commons or the Lords and so that they can be held accountable. So under the UK system of government ministers are members of either one of those minister share most of, of the same parliamentary responsibilities as other parliamentarians. So one important difference is that ministers represent the government during oral question sessions when taking a bill through parliament. Whereas parliamentarians, parliamentarians outside the government scrutinize the government. The answer to the next question was that the only true convention from that list was that the monarch should not be publicly involved in the party politics of government. So there was only one correct one there. Um by convention, the PM should sit in the House of Commons. I'm sure you've seen that on your television. The rule that the Lord Chancellor must uphold the independence of the judiciary is to be found in the Constitutional Reform Act. And government ministers can be drawn from either of the House of Commons or the House of Lords. Here's some feedback on original legislation, consolidating legislation, codifying legislation and amending legislation. And I suggest you uh make sure that you understand and learn these thinking point then. So what do you see as the advantages and disadvantages of the British system of empowering politicians in parliament to make amend and repeal constitutionally significant rules through the ordinary legislative process. Thank you very much for listening.

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Part 3 - Webinar

00:13:34

Hello and welcome to this sqe presentation for legal systems and services in preparation for the exam. You must cover the objectives of the legal system of England and Wales and sources of law, constitutional and administrative law and Eu law and legal services. This presentation will look at core institutions, their legitimacy and accountability. Four institutions will be the monarchy, ministers, civil servants and arm's length bodies and then we will end with a summary quiz the monarchy. The legitimacy claim for monarchy now relies on the established usage of the institution. Hereditary monarchy enjoys continuity with the past and has a lot of practical effectiveness. Now, the idea of a monarchy may not appeal to you if you were um tasked um to design a new constitution for this country from scratch. But from for the UK, it seems to work at least for now routine accountability of the British monarchy is quite limited but does include publishing financial information as the monarch must act on the advice of ministers. It is ministers who are accountable to the electorate and in parliament for the exercise of their crown powers, ministers, the legitimacy claim of ministers does rest on our democratic foundations. As you know, the vast majority of ministers are elected to the House of Commons and like other members of parliament, they must stand for re re-election every five years and they stand for election on the basis of their party's manifesto and the party with the largest number of MP S forms the government sometimes in coalition with another party if necessary. So ministers can remain in office uh as long as they command the confidence of the House of Commons. And if an individual minister loses that confidence of the Prime Minister, then he or she must resign as an MP and return to the back benches. If ministers collectively lose the house confidence of the house, the whole government must resign. But that circumstance is very, very rare. So each of the major parties take steps to ensure that their members in parliament are well organized, turning up at the debates and voting in divisions. The government party is no exception. So if the government is to do well, it is essential that it ensures that its members um basically turn up uh and uh support them. And I'm not unduly critical of the government at least, you know, not in public. So this means the instructing party members should be available to be at the House of Commons in order to be able to vote. Senior senior ministers in the UK are mostly called Secretary of State in law. There is a single office of Secretary of State, which is shared by some 15 senior politicians chosen by the Prime Minister, senior ministers other than the Secretary of State or the Prime Minister, the Chancellor of the Exchequer and her Majesty's Treasury. Each senior minister has a small team of other politicians selected by the Prime Minister working with him or her to provide political leadership to a department. And then these junior ministers normally hold the title ministers, ministers of state and parliamentary undersecretaries of state. So accountability of ministers then um takes place in two ways. So there is something called individual ministerial responsibility and collective ministerial responsibility. Civil servants, civil servants are servants of the crown. The civil service supports the government of the day in developing and implementing its policies and delivering public services. Civil servants are accountable to ministers who are in turn accountable to parliament. So ministers set the agenda and provide political leadership to these government departments. They are assisted in that role by politically nonpartisan senior civil servants who unlike their counterparts in many other constitutional systems remain in office when the government changes after a general election. So there are hundreds of thousands of civil servants who are involved in delivering our public services and enforcing their regulation. And this is now usually done through something called executive agencies which work at arm's length from the government's uh department's responsibility for those policy issues, politically neutral. Then the civil service are therefore an important element of the governmental system. Some decision making is also thought better kept at arm's length from political parties and ministers and instead taken by people appointed to senior public offices. The cabinet manual asserts that civil servants are accountable to ministers who are in turn accountable to parliament as as we said, so this does not paint a full picture. And increasingly you may have noticed that civil servants can be seen giving evidence to parliamentary select committees. Now, select committees have an important role in ensuring the full and proper accountability of the executive to parliament. Ministers have emphasized that when officials represent them before select committees, they should be as forthcoming and as helpful as they can in providing information relevant to the inquiry made by the committee. In giving evidence to the select committees, officials should take care to ensure that no information is withheld which would not be exempted if a parallel requests were made to the department under the freedom of Information Act arm's length bodies, some executive and advisory functions are carried out by arm's length bodies under powers conferred to them by acts of parliament. Now, these bodies are unelected and independent from ministers and they have expertise in their field. Now, examples of A L BS include uh companies that are regulating our utilities such as Ofgem of what Ofcom and the Environment Agency, the Civil Aviation Authority Judicial Appointments Commission for England and Wales, and the Charity Commission for England. And Wales and so on. The legitimacy claim of these public bodies can rest on the fact that they have professional or technical expertise. For example, like I gave you the examples, expertise in transport or energy or health or the environment and their work is subject to scrutiny from parliamentary select committees. And to that limited extent, we can say that they are accountable to parliament. They will produce annual reports and have, you know, pretty informative websites that contribute to explaining their accountability. A minister advised by experts to ensure that the appointment decision is made on merit, appoints most members to these arm's length bodies. One of the purposes for having these at public offices is to ensure that ministers cannot dictate to the holders, how they should approach their roles and what decisions they should reach. Right. Let's have a go at this summary quiz. You will now see um one question per slide if you could attempt the question and then after the questions will be the answers. What is the name given to the source of law that originated from the laws and legal customs that existed prior to the Norman conquest of England in 1066 which source of law was originally enforced by the Court of Chancery, which acts merged the Court of Chancery and the common law courts into the Supreme Court. Give another name for an Act of Parliament. Give the Latin term that describes the system under which a judicial precedent operates what would be found in the law report and name three types of delegated legislation, which type of delegated legislation is the means by which local authorities and other public bodies make law, which type of delegated legislation permits government ministers to introduce particular regulations that have the power of law. Which statute introduced the European Convention on human rights as a source of law in the UK which doctrine states that everyone is equal before the law, which organization has the main responsibility for investigating crime, who has the responsibility for prosecuting most crimes. Now you will find the answers. So if you haven't had a chance to answer the quiz, please pause this recording and do that first. So let's have a look at some of these answers. So the name given to the source of law that originated from laws and legal customs prior to the Norman Conquest is the common law. Equity is the source of law that was enforced by the Court of Chancery. And that was until the courts were merged under the judicature acts. Another name for an Act of Parliament is statute and the Latin term that describes judicial precedent is stare decisis. So let the decision stand what would be found in a law report. So details of important past cases, three types of legislation that is delegated orders in council bylaws and statutory instruments. But by law is a type of delegated legislation which local authorities can make. And statutory instruments is the type of delegated legislation which permits government ministers to introduce particular regulations that have the power of law. It was the Human Rights Act that introduced the EC hr as a source of law in the UK and the doctrine that states that everyone is equal before the law is the rule of law. The police has the main responsibility for investigating crime and it is the crown prosecution service or CPS that has the responsibility for prosecuting most crimes thinking point. So opinion polls suggest a large proportion of British British adults believe the monarchy is good for the UK and most of these adults believe that there will be a hereditary monarch in 100 years time. Do you support a constitutional monarchy or perhaps its main alternative of a directly elected president as head of state? Thank you very much for listening.

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Part 4 - Webinar

00:14:47

Hello and welcome to this presentation for Sqe Legal Systems and services. The preparation for the exam will need to cover of law, constitutional and administrative law and eu law and Legal Services Human Rights Act 1998 and the European Convention on Human Rights is the focus of this presentation. The Human Rights Act was designed to bring rights home by enabling litigants to rely on most of the rights and freedoms set out in the ec hr in domestic courts. This meant that there was a removal of the need to take lengthy proceedings before the European Court of Human Rights in Strasbourg. There has been unprecedented development in domestic human rights laws since the enactment of the HR A, for example, there have been leading decisions involving matters as diverse as residential care homes, the maintenance of churches, the rights of tenants and their families, school admissions and school uniform policies. The period since the enactment of the HR A has largely coincided with that of President Bush's so called war on terror. And the need to reconcile human rights with the fight against terrorism has been the leading aspect of the past two decades or So because of this, the courts have faced some challenges involving the application of anti terrorist legislation and will be looking at that uh towards the end of the presentation. So the main features of the HR A, we can say that its purpose is expressed in its title to give further effect to the rights and freedoms guaranteed under the European Convention on human rights. So the act enables claimants to rely on um the rights and freedoms contained in the ec hr and its protocols in domestic legal proceedings. And this was a significant breakthrough for the UK, the basic scheme of the Human Rights Act is that firstly, all legislation, so both primary and secondary must be read and given effect in a way which is compatible with the convention rights in so far as it is possible to do so. And that's from section three. So uh to interpret that it just means the obligation is imposed on everyone who has to apply legislation. It is important for judges who obviously are ultimately responsible for explaining what that legislation means. So if legislation can't be interpreted in a way that's compatible with the convention rights, the higher courts can issue something called a declaration of incompatibility. So if such a declaration is made, it makes it clear that the legislation is conflicting with the convention rights, but this does not affect the validity of the legislation. Parliament's ability to legislate contrary to human rights is still retained. So ministers in charge of a bill must make a written statement that the bill is compatible with the convention rights or if not, the government nonetheless wishes the bill to proceed. So where legislation has been declared to be incompatible with convention rights, ministers may make delegated legislation to amend provisions in an act of parliament. So as to remove the incompatibility, it's unlawful for public authorities to act in a way that's incompatible with convention rights. And public authorities may have a defense. But the only defense is that the primary legislation requires them to act in the way that they did. Lastly, uh those claiming to be victims of actions or threatened actions of public authorities that are unlawful under section six can rely on convention rights in any legal proceedings including claims for judicial review if they are successful. The court does have a wide range of remedies and this includes the ability to award damages, human rights and terrorism. So, since the U K's reaction to the war on terror, um many questions have arisen about the balance between the government's legitimate need to protect the public and the corresponding right of the public to security on the one hand and obviously, then the rights of individuals to be protected from state action on the other. So the hr a uh came just a couple of years before uh the catastrophic events that happened in uh on 911 in America. And so the reaction to terrorism was to basically test the effect effectiveness of this new act. And it would profoundly test the relationship between judges, the executive and parliament. So would the judges adopt the traditional stance of deferring the executive uh to the executive? Sorry whenever the government justified breaching human rights in the interest of national security, or would the judges be more robust in their application of the HR A and the rights that it had brought home? So on the 11th of November 2001, the Home Secretary made a derogation order under section 14 of the Human Rights Act, enabling the UK to take steps that would otherwise constitute a deprivation of liberty, contrary to article five, which states that every person has a right to liberty, the ec hr gives states limited power to derogate from that is to act contrary to uh some of the articles in the convention including article five, but always remember this doesn't include article three. So derogations can only be made in time of war, public emergency, uh threatening the life of the nation and derogations are only permissible to the extent they are strictly required. Um because of the situation that's happened. Yeah, we're going to have a look at the case study of Char versus UK. Um 1996 was the decision. So before the U K's response to the war on terror happened. So, um so keep in mind the dates and how things evolved over the next few years. So Chao was an Indian citizen residing in the UK and he was suspected of terrorist activities in that support Sikh separatism. And the Home Secretary decided that his presence in the UK was not something uh that was good for public interest on national security grounds and wanted to deport him. So under the Immigration Act, um a person subject to a deportation order on these grounds had no right to appeal and they also had no right to see the evidence upon which the Home Secretary had acted. So Chao could only make representations and with no legal right to uh so no right to legal representation. Either, Shau could only make representations himself to an advisory panel of three people. So child took his his case to the European Court of Human Rights and he argued that the procedure um for his deportation was unlawful because it infringed his right to a court hearing under article 54, which states that he has a right to liberty and security as well as a right to an effective remedy. Um under article 13. So article 54 states, everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. Cho also argued that if he were deported, there was a real risk of him being killed in India and that those reports were corroborated by the US Department of State and Amnesty International. So there was a real actual threat to charles' life if he was returned to India. He also argued that the deportation would constitute a breach of article three, which states no one shall be subjected to torture or to inhumane, inhuman or degrading treatment or punishment. And the European courts upheld his claims. So let's stop here and have uh some time to reflect, what do you think are the implications of child for the government's ability to deport or remove people from the UK who pose a threat to national security? Now think about the following points. So Charles needs to be removed on national security grounds but his deportation would result in a breach of his rights under article three, he cannot be held in detention indefinitely as that would be a breach of article 51, article three cannot be derogated from. So if you were a government lawyer and were asked to advise on how the hr A might be amended to remove the effect of the child case for future cases, what would you say or what would you advise? So before we go on, it's good to pause the recording and have a think about that question. So how did the government deal with the Chao case? Well, part four of the antiterrorism Crime and Security Act 2001 permitted detention without trial of foreign nationals. Those in this situation could choose to leave the UK, but if they chose not to, then they would remain in detention. Obviously, this would be subject to six monthly reviews as well as the reviews. The act gave jurisdiction to the SI ac court to hear challenges to certifications and to deal with derogation matters with further appeal on a point of law to the court of appeal. Ok. Then we have the case of a versus Secretary of State for the Home Department. This was a 2004 case. So keep an eye on the dates here. This case is famously known as the Belmarsh decision. There is no modern case that better sets the boundary between national security and civil liberties decided by a panel of nine law lords. The 2004 decision became an important milestone in judges protecting both the rule of law and human rights. In a challenge to the labor policy of indefinitely detaining foreign terrorist suspects without charge. The majority declared the British State acted illegally and in a discriminatory way. And in his powerful rejection, Lord Hoffman stated the real threat to the life of the nation comes not from terrorism but from laws such as these. Now he went on to say and I quote, the question is whether such a threat is a threat to the life of the nation. Of course, the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time, which it must discharge without destroying our constitutional freedoms. There must be some nations, there may be sorry, some nations too fragile to withstand this serious act of violence but not so in the United Kingdom. So was there a public emergency that threatened the life of the nation? And Lord Hoffmann said, well, the UK could withstand a serious act of violence. And he compared this to what happened in 911. And he also compared this to surviving Hitler. He stated that terrorist groups do not threaten the life of a nation. And the derogation order was quashed a thinking point. So who in the UK constitution should decide whether there is a threat to the life of the nation who is best placed to, do you think to make this decision? Thank you very much for listening.

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Part 5 - Webinar

00:13:09

Hello and welcome to this sqe Legal Systems and services presentation for the preparation of the exam. You need to make sure you cover the legal system of England and Wales and sources of law, constitutional and administrative law and Eu law and legal services. This presentation will focus on the place of EU law in the UK Constitution. We will be looking at historical development, the evolution of membership, the place of EU law within our legal system, the free movement of persons and then a case study on the free movement of persons historical development. The idea that European integration was fueled by a desire to avoid another intra European war has long been popular with historians of diplomacy and non-academic commentators. Today's Europe features multi-purpose political and regulatory institutions which have no direct relation to the objective of constraining a European power such as Germany. Yet it can be argued that the purpose of European integration was to bind a growing Germany. The EU operates through a hybrid system of intergovernmentalism and supra nationalism. So it is not officially a federation or even a confederation. The various academic observers regarded as having the characteristics of a federal system, creating a federal Europe was one of the driving motivations behind the earliest moves towards European integration. Some consider federalism as a political objective or model for the EU and others consider federalism as an approach to the study of the EU. The Council of Europe was created in 1949 by the Treaty of London, originally 10 member states including the UK. Um And now it is 47. It's located in Strasbourg and acts as a in a wide range of fields using mostly traditional international law instruments such as treaties. Its most notable achievement has been the European Convention on human rights Supranational integration. So the EU is called a Supranational organization because its member states surrender power in specific areas to a higher organization. The evolution of memberships. So Albania and Northern Macedonia have been official candidates since 2020 Bosnia Herzegovina have been official candidates since December 2022. Kosovo made a formal application for membership in December 2022. Ukraine and Moldova have been official candidates since June 2022. Georgia made a formal application for membership in March 2022. Turkey has been an official candidate since 1999 but negotiations are currently frozen. I think Turkey now has their eye on joining bricks as an alternative and for the time being at least the place of EU law within our legal system. So while the UK was a member of the EU UK citizens could seek remedies in UK courts on the basis that eu legal obligations had been breached and this is known as the doctrine of direct effect. So the, the Treaty of Rome in particular, um said that the obligations would be given legal effect and enforced eu law has gained a significant role within our legal system. It is still a relevant source of law. But now that the UK is no longer part of the EU, the legal principles that bound the UK by EU law no longer apply though the European Union Withdrawal Act 2018, incorporated all EU legislation that was in force at the time of exit into UK law, free movement of persons. So the UK withdrawal from the union meant that the free movement of persons in principle was no longer applicable during the transition period until 31st of December 2020. The withdrawal agreement maintained the status quo or two of the withdrawal agreement then entitles citizens rights potentially applicable to UK nationals residing and working in the Eu and Eu nationals residing on working in the UK. The withdrawal agreement protects eu citizens and their family members who moved to the UK before 31st of December 2020 guarantees them broadly the same rights they had before the UK withdrew from the EU. So they can actually continue to live, study and work in the UK and also travel freely between the UK and the EU. The same applies to UK nationals and their family members who moved to an EU member state before the 31st of December 2020. They can also continue to live, study work in the host EU state and travel freely between the UK and the EU. We're going to look now at a case study regarding the free movement of persons to Carlo, an Italian National moved to the UK in January 2018 for the purpose of work in August 2020. He made an application for permanent residence status in the UK. In March 2021 Carla made an application to Westminster University to study a full time degree starting in the autumn term of that year. He also made an application to student finance for a student loan to cover his tuition fees. In April 2021 Carlo lost his job and applied for universal credit to help with his housing and living costs. Carlo was given preset status and not permanent residency as he had hoped. It is now April 2021 and Carlo, he asks your advice on whether his applications will be successful and why he wasn't given permanent residency. So in setting out your answer, you should be addressing the key issues here. So does Carlo fall within the definition of article 10? What are the limitations that apply to Carlo under article 11? Why was Carlo not given permanent residency? How does article four affect Carlo? Can Carlo attend university and is he entitled to student finance. Is he entitled to the universal credit thinking point? In its 2022 paper entitled The Benefits of Brexit. The government sets out how the UK is taking advantage of leaving the eu. It also states that it may take decades for the UK to entangle itself from 40 years of eu membership. This effectively means it will be unlikely that you will see any benefits in your lifetime. If you knew this at the time, would it have influenced how you voted at that time if you were eligible to vote? That is ok. So I'm now going to give you some guidance on your answer for the case study on the free movement of persons. I will put up again the questions and then I will talk through them. But if you haven't had a chance to uh have a go at the case study question, please pause this recording and do that first. Ok. So does Carlo fall within the definition of article 10? Well, yes, it looks likely that he does um fall under the scope of that withdrawal agreement. He will retain his continuity of residence under the preset status as per article 11, subject of course to certain limitations. So that means that Carlo will have the right of residents so long as he remains in the host state and continues to exercise an activity without leaving for more than two years. So although Carlo has the right to reside under article 10 of the Withdrawal Act, article four of the Withdrawal Act makes it clear that citizens' rights should be interpreted in accordance with EU law. And that means that the Eu settlement scheme um the pre under that Eu settlement scheme, sorry, the preset status will continue to apply to Eu nationals in the UK. So long as the application was before the deadline outlined by article 18, so Carlo's application is still valid because he applied and obtained preset status before this deadline. However, um he did not live in the UK for over five years. So he is not entitled to become a permanent resident of the UK and so must remain preset until five years have passed. So although Carlo moved to the UK for the purposes of work, article seven of the citizens' rights directive allows union citizens to have the right of the residents for more than three months for the purpose of studying. Thus, Carlo does have the right of residence in the UK subject to the terms of the preset scheme. So while he may be able to attend university, this does not mean that he is entitled to student loans because article thir sorry article 23 of the withdrawal agreement states that while equal treatment applies to all, it does not mean that the host state is obligated to provide student loans. And this is so especially so prior to the acquisition of permanent residents. So as Carlos only preset, he is not entitled to student loans and he also may not be entitled to universal credit. Article 14 states that the right of residence will be provided if they do not become an unreasonable burden on the social system of the host member state. Um And sorry, that's article 14 from the C citizens Rights Directive 2004 slash 38. Um So they can preside if they're not an unreasonable burden on the social system. And if so, they will be unable to become a permanent resident. So there's a degree of freedom that is left to the host state to provide social assistance and it's only usually provided to those with settled status uh or at least within the first three months of that. Um So therefore, when we apply the citizens rights directive to Carlo, it seems very unlikely that he will be able to obtain uh universal credit or any other kind of social assistance. Well, thank you for listening and I hope this helps you to determine how the eu is still very much part of our legal system.

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Part 6 - Webinar

00:35:19

My name's Darren Hackley Green and this is the first film in the series all films in relation to legal systems on the SQ A. This film deals with the subject of funding but civil um funding. Um if you want to hear about it or learn about um funding in criminal matters and separate videos with regards to criminal proceedings which incorporates that element. Also, I've done a separate film on the dispute resolution modules. Film one which deals with funding specifically in relation to dispute resolution. So I'd watch that film in conjunction with this one because that deals with um issues in relation to your conditional figurs and damages based agreements in a lot more detail than this film does. But of course, this film will deal with elements like litigation funding and legal aid that the dis resolution film won't deal with. Just have a look at uh the SQE assessment criteria in relation to this area. We're expecting to know in the course of legal services in various different elements. You need to be aware of which I'll touch on shortly. Um Just be aware if you refer to the old name uh being third party funding. It's now called litigation funding. I'm not sure why they're using uh old terminology. I imagine that's gonna change at a, at some point it's now called litigation funding. But we'll look at that when we move through these um, lease slides in and the events. So just be mindful that conduct in relation to this area is vital. So the code of conduct, uh 2023 making sure that your client's best interest in relation to any funding agreement, which is um put into place, giving your client enough information so they can make an informed decision about the matter, not taking unfair advantage of your clients. Uh 1.2 of the code of conduct with regards to the funding arrangements entered into, we see that specifically in relation to damages based agreements where arguably because you're taking a percentage of the damages, you could, if you do very little work, make a lot of money in a sense. And that's when you could arguably be accused of taking on fair advantage of uh your client advice on funding. Uh It is not just at the start throughout the whole of the case, some circumstances, it may be very difficult at the outset to advise your client on the likely costs of the matter. Certainly, if it's on a private paying basis where the individuals paying uh an ad hoc basis, maybe every quarter, a sum of money on an annual basis to use your firm. How can you assess the costs which are due? You, you can't really at the outset because the nature of the costs to be incurred when you're billing on an hour rate basis depend upon the nature of the claim that you're being presented with. So if you bring a claim, uh it may be the fact that liability is admitted very early on. So therefore, it's a quantum exercise only. There may be firm issue in relation to whether there was a breach of contract. If there were a breach of contract, whether the uh the losses were caused or to remote from um the actual breach. If you've got all those sorts of issues, they're gonna push costs up. Um So it's very difficult, of course, until you get into the a case, how to understand how to advise your client. Um think about the way to deal with it, you can actually agree to a maximum sum at a certain stage and then reflect back at that stage. And such sum has been used to consider what the next elements are in the case or maybe you can advise better in relation to the nature of the likely costs of the matter. Um So or alternatively, uh either rather than agree on a maximum. So I'm just advised that when you kind of um come back to the client and talk about, you know, the likely costs of the case, once you've uh presented your letter of claim, maybe it's when you get the response to that letter of claim from the defendant and you know what the issues arguably are going to be between the parties, liability, breach, et cetera, et cetera. And also consider the application concerning as a private paying basis of fixed fees throughout the, the uh, conduct of the claim may be a certain fixed fee up until the point that the defendant responds to the letter of claim with their letter of response. Maybe it's a, a further fixed fee thereafter until litigation uh from litigation through directions, questionnaires, et cetera, et cetera. It's a fixed fee. So the client knows what some they're paying to your nations, their fees at every step of the way, there are various methods of funding. We're gonna look at some of them in a lot more detail, as I say, take a look at the district resolution funding film for a lot more detail in relation to any conditional fee agreements after the anti insurance premiums and damages based agreements as well. Beware core principle to understand the indemnity principle when it comes to elements of funding, that's basically what that states is. The winning party cannot recover more from them from their opponents than they've paid to their legal representative. What that means is if you have agreed um with your solicitors to pay them a fixed fee of say 1500 pounds plus va T to bring your debt action or whatever it may be at that conclusion, you are successful. So the rules are, with regards to cost that the loser pays the winner's costs. There are exceptions which is rocks we very warming cost shifting per person injury matters, but that's dealt with and I'll raise that again shortly. But we see that in a lot more detail and disparate resolution than a film in relation to that. But imagine a situation where the loser does pay the winner's costs and when you present your costs, you're the um defendant to the loser. Um You can't claim more than what you're liable to pay your solicitor for. So if a fixed fee has been agreed to 50 100 pounds plus va t that is the amount that you ha uh are uh limited to claiming from your opponent. They don't pay any more than your liability to your own solicitor. And conversely, that means if you don't have a valid retainer, if an individual doesn't have a valid retainer with their solicitor, there's no right to claim costs. So you don't, you're not able to claim your costs from your opponents at all. Um BT E, it's an acronym stands for before the event insurance. So it's the existence of insurance on a s a type of policy prior to the event, the cause of action which occurs and that gives you the ability to or some element of funding in the, in the claim. So you'll see it commonly on motor policies involved in road traffic accidents and your policy may have some legal expenses insurance before the event of insurance which allows you to tap into that. So therefore, um you can utilize that insurance to support your case moving forward. We see it as well on household policies, on your credit card and your bank accounts, lots of different places where you have this element of insurance. And certainly when it comes to funding, one of the first things you need to do is look into these elements. Is there a funding policy in place for this client that they can utilize? Because although funding isn't a method isn't a retainer with the client, it isn't the contractual agreement in relation to the client. So you still need a contractual agreement, a conditional fee agreement, a damages based agreement, private paying, whatever it may be. Um before the event of insurance is a policy that gives you um support. Should things go awry and should you end up having to pay your opponent's costs? Cos you've lost or a proportion of those costs because you weren't successful, maybe an application or beating an offer that's been made as part of the case. So before the events of insurance, you always have to check it. So whenever you are instructed from uh by a client investigate potential insurance policies that client may have, but they can be utilized. Now, what tends to happen with before the event insurance policies is that the uh insurer will have a panel that they'll insist on utilizing. So though a client comes to you, you make investigations, you find out there's a uh an insurer there for the people, the event policy, um that insurer often say, well, you can't deal with solicitors. We're going to choose and insist on our own Patel dealing. Uh And that is their right to do. So, that's one of the terms of the policy. The client then has a choice. They either continue to use you without the BT S uh insurance cover support or they say no thank you to you. And they go and utilize the panel solicitors and get the benefit of this before the event insurance cover. If of course, a client decides to use you, there is still gonna be a need to take out insurance and we'll see later on that's called an after the event insurance premium and we'll talk about that in a moment, but that's obviously with the after the event, a te uh insurance premium, it comes about after the course of action in questions. Hence why it's not before the event, it's after the event. So things have happened, then you need this insurance policy to offer the support, any policy with regards to before the events or even after the events will come with what's called a level of indemnity, that's basically a level of cover. So effectively only cover you up to a certain amount, 50,000 pounds, 100,000 pounds, you need to monitor that continuity to make sure you're not exceeding that policy limit. Um Very common BT A for personal injury cases. Um You see it very often so it follows on motor policies and things like that. We're seen a moment to union association funding because that's also very common um what you call for BT matters as well. Oh, we've seen it now. Um So yeah, another form of BT as we talked about as a motor policy or it's on a household policy. Some people by way of their job have support as well. Um You tend to see if the members of trade union association very common for applause, liability cases on British Medical Association Matters. RCN Royal College of Nursing Matters. You tend to see it for in with those in the public um profession. So nurses, doctors, um, fire officers, government employees, they'll have this benefit of a union association funding works exactly the same way as any other BT policy. So you can tap into that insurance policy. There will be a level of covering indemnity level, but of course, they will always have their own panel firm that will, that they will want to deal with the case exactly like you would for your other before the event insurance policies. Um privately is another option privately is basically where your client pays. Um, you know, for every step of the way the, the work that you do generally on an hourly rate basis, a lot of the time you'll ask for, uh, money on account of cost to, um, prepare for when you do raise a bill. You see how that works in practice with regards to solicit accounts and separate films I've done in relation to that and how it works with money being paid on accounts. That's the purpose behind it. Um, supposed to be private funding so important to make sure your client's aware of the costs incurred uh on an ongoing basis because they're liable for them and they'll be paying them often billed on a quarterly basis. Um It's much more important that they're aware and updated in relation to the edge of the costs that have been incurred more so than you would on what's called a conditional fee agreement, which is a no win, no fee agreement where the idea there is the clients at conclusion, although they are liable for your costs at conclusion, um, of the claim they're entitled to pursue those costs from the opponent. So therefore less of a, a an incentive for the clients to be aware of the costs that have been incurred because they know they'll recover those costs from their opponents at um conclusion. But of course, it really important that they got private paying that you do. Um keep your crimes date in relation to any costs. Information, I can always need to be aware, even if they're successful, the costs incurred are likely to be more than those who recover from the opponent. Why is that? Because your opponent always seeks to reduce down the cost claimed against them and accepting a lesser sum for your cost based upon your opponent's software is likely to save further expense in the time commitment of assessment are the same. So it may be billed your client four out of 500 pounds by way of costs. The client who's been successful wants to pursue that from the opponents. Um The opponent comes back and offers 4000 pounds. Um The client is 500 pounds down, but generally speaking, that's what happens and pursuing that additional 500 pounds, you tend to take more costs to pursue that extra 500 pounds, which means you may spend over 500 pounds pursuing the additional 500 pounds. And of course, the cost of pursuing that additional 500 pounds again bill in the case. So it's almost like a inertial reality that your client will need to accept less. So your client is likely to end up being out of pocket in any given set of circumstances say, for of course, another private paying basis is a fixed fee basis where the client is only liable for a set sum because in that set sum, you claim from your opponent cos of that indemnity principle being in place you can't recover anymore. Um then that's usually a case of that will be paid in full. So litigation funding previously known as third party funding, I did refer to the SQ assessment criteria which refers to third party funding that needs updating because that's the old name for it, but just be aware, third party funding or litigation funding. Uh That's a provision of funds by individuals or companies who have no connection with the litigation. So the litigation funder may fund some or all of the clients fees, disbursements, maybe the cost of an after the event insurance premium as well to cover the risk of paying the uh the opponent's costs. We'll talk about why on earth, someone would do that in a moment and there's no statutory regulation. There's a voluntary code of conduct in relation to this which states that the funder must have adequate financial resources to cover funding liability for a period of 36 months, at least must have at least 2 million pounds worth of capital may only withdraw funding and define specific circumstances. I don't feel you need to know what those are and is restricted from trying to control the litigation. That's very important. So, um the funder may provide no direct funding but may only fund the party's potential exposure to adverse costs. The funder expectations generally are a financial profit from the outlay gives out. So usually it will be a percentage of the damage is recovered. You see quite common in commercial cases. Um, and it's likely to be applied in cases where you have the defendant because there's no financial interest. But thinking about how it works and how a business would want to operate this litigation funding policy. And you do have businesses and that's all they do offer litigation funding. The idea is it's all based on a risk uh assessment scenario. So you have a, uh, a client who maybe has a claim for breach of contract of half a million pounds, 500,000 pounds, but hasn't got the ability where it really funds to fund or not or the appetite to fund um, the litigation against the defendant. The litigation funder will appraise the case. Think about the circumstances and may agree. Ok, we will fund your cost of your solicitor in pursuing the claim fund the after the event insurance premium. Uh We'll fund any potential adverse costs order if there isn't an a after the event insurance premium. However, if you were successful, we would want 50% of your damages you're covered. So then what the client um bears in mind is great. Uh I can pursue this claim for 500,000 pounds, but I'm never going to be out of pocket because I've got this funder who's gonna help in relation to the funding of the claim, et cetera, et cetera. But it does mean that if I'm successful, I only recover heart of what to be entitled to cos the other half goes to the litigation funder. That's the risk there. And that's the nature of the business involved in litigation funding. What you can also have is rather than a commercial entity taking um a cut of the profits, you may have a situation where the funding is borne out by someone with a, a core purpose in mind in relation to a certain issue. So it could be something very key involved in relation to the decision which would uh relate to a specific topical issue. Uh an example and just off the top of the head, I can think about there was a whole debacle it a while ago about um you probably heard it the gay cake in Ireland where a baker refused to um take an order from a same sex couple because the message on the cake endorsed same sex relationships. So the bakers refused and then the individuals sued them. The fact that was discriminatory. You're not allowed to do that as you were against the Equality Act in that situation. And, and the, the bakers, they were, I think if I'm right in saying staunch Roman Catholics, their beliefs were that uh homosexuality is not uh in accord accordance with their beliefs in that situation, it may be and this wasn't what happened, but it may be effectively that the Catholic church may make the decision to fund the uh defense from the bakers because the right to um refuse to bake a cake for someone who has a sexuality which is against your core beliefs, um needs to be supported and they need to support that as an example of a situation and the, the church or the institution have a vested interest in the outcome of that litigation. That case. That's an example of when another form of litigation funding. But that would be one where there wouldn't be any financial incentive. They wouldn't take a, uh any proceeds of the claim or anything like that. It's because there's a vested interest in protecting the what they stand for as part of that litigation. And it's important to be aware of civil legal aid. So it's only available in very limited circumstances in areas of um, practice, uh some family law where the client is a victim of domestic abuse care proceedings cases where the client faces homelessness cases where the client has been subject to discrimination and immigration cases. You may get a question in SQ A which raises uh a certain set of circumstances and asks about the possibility of the type of funding involved. It may be if you bear in mind the type of funding so that litigation legal aid is available for these specific types of cases. That may be a question in a sense that you, you're able to think about illegal aid, maybe the way we could actually fund this sort of case or whatever it might be. Um, civil legal aid is classified as either controlled or licensed work in a difference with regards to three categories of work involved. Um And three forms of civil services available legal help. A helper courts are both controlled work and legal representation is licensed work. And we'll look at the difference in relation to those in a moment there. So license work is authorized by the LA A legal aid agency. If you're aware of that acronym, by the way, maybe the sqe refer to LA A rather than the full legal aid agency. Uh and it's authorized by the LA A on a case by case basis. So the idea is, so this is usually determine a client's eligibility for funding controlled work. And then civil legal aid funding covers a range of legal assistance. And I've set these out now. So looking at these in terms of your first legal help and help at court which are controlled work and then we'll look at legal representation which is work. So legal help, legal help fino is a solicitor giving basic advice to the client and undertaking a limited range of actions following that advice. For example, drafting a letter, uh it doesn't extend to issuing court proceedings. So legal help is sort of a non litigator approach and that's controlled work. Help at court is the other a avenue in relation to this. So help, a court covers, covers given advice and assistance in respect of a particular court hearing and that can include advocacy work, get help at court is controlled work. Now, the difference between those two reaction post action in relation to the two types of controlled work there, we then got licensed work, legal representation that's available to a client who's party to proceedings or who is considering starting proceedings. It its litigation or pre litigation. It can cover deal with the client's case in representing the client in the proceedings. Advocacy If necessary, I say it's license work, it's receive legal representation. The f uh funding, the client must make an application to the LA A. And if the client's application is successful, the LL A will issue a legal aid certificate granting the funding for legal representation. Uh It's not enough to show the type of cases. One where civil legal aid may be available and those types of work, the grant must also demonstrate they are eligible for such funding. Eligibility is based upon two elements, merits and means. So merits test means tests just bear those two in mind. The merits test. Uh In all cases, the LA A will consider the prospect of success and a cost benefit analysis. So when looking at that, if it's a, a good strong case prospects of success brilliance cost benefit analysis, the case is worth 500 quid, they're likely to spend in excess of 5000 pounds in um supporting the client uh for the basis of legal aid that's not cost effective. So therefore, in that situation, their claim is likely to be rejected. Uh Merit's test applies. Um where it applies, we depend on the type of legal assistance required and the type of case legally you will be refused if there is other funding available to the client. So if there is any possibility of other forms of funding via before the event insurance policy potentially and maybe so through their work, then the legal aid agency will expect them to utilize or can't to utilize that funding. The legal aid agency is a port of last resort. Basically, then nothing else is available. That's where you can go. Of course, we got. So these two elements of test, uh the merits test, we've also got the means test as well. So even if a client satisfies the uh the merits test, they may not still be eligible for legal aid funding. A client will only be eligible for legal aid funding where their capital and income is below 8000 pounds or 3000 pounds. For immigration cases, clients have to produce an accurate and full account of their financial circumstances. So we can look and properly assess the means uh that they have the assessment takes into account also the income and capital of the client's partner if they've got one. So if set as a joint household income is what you look at where the client receives any form of irrelevant welfare benefit. They automatically qualify for legal aid, the relevant welfare benefits are those which are means tested. The idea being, if you've met the threshold for means testing for a welfare benefit, you're going to meet the threshold testing for the means for legal aid. So therefore why bother going through the same test? But you've been granted one of these types of benefits, you're gonna meet the means test in relation to legal aid. That's the thought process behind it. So the types of benefits are universal credit, income, support, income based jobseekers allowance, income related employment and support allowance, and the guarantee credit elements of pension credit in relation to the eli eligibility limits where the client is not in receipt of any of those benefits. Uh The income test calculates the client's gross income if the client's gross monthly income exceeds 2657 pounds, the client doesn't qualify for legal aid if the client's gross monthly income is less than that. Uh or less. The the as the assessment calculates the sorry, it's the same as that or less. Uh The assessment calculates the client's disposable income that's achieved by deducting living costs, et cetera. The client will only qualify for legal aid if their monthly disposable income is less than 733 pounds. It's quite stringent tasks involved there with regards to legal aid. It's important to note that even if the client satisfies the means test, they may still be required to contribute something towards their legal fees. So don't think about the fact that you've got through the test and there its means test there, you've got legal aid jobs are good and everything's free. There may still be some contributory elements in relation to that. Uh And just on that grounds, you need to be aware that legal aid doesn't mean free representation. Normally. Um if the current benefits financially from the case, in any money or property the clerk receives can be utilized in repayments of the solicitor's fees and that's called a statutory charge. So in some way, you could view legal aid and you've got a case where you are going to have a financial benefit. There's been a bit like a loan that you end up having to repay at conclusion. Assuming you're successful, the statutory charge to arise, the client must have been wholly or partly successful in the proceedings or an out of court settlement has been uh obtained. Um And that results in the client gaining money or even property. We'll look at property uh in a moment. Uh In all cases, the LL A will attempt to recoup the money. It's been paid on the client's behalf, it's paid on the client's behalf. So first thing they do, the LL A will claim any money pursuant to a costs order made against the losing party. So if the defendant has been ordered to pay the claimant's costs of �5000 say, then the LA A, they'll have that thank you, will have that cost order in our favor. Um If there is a detriment, so if, if the LA A have paid out, say 10,000 pounds, we deduct that 5000 pounds, it's still got an outstanding sum there. If it's a shortfall, we call it the LL A will retain any contribution paid by their clients under the terms of the offer of legal aid. So some of the clients paid as a contribution towards legal aid. And thirdly, if there's still a further deficit, uh any money recovered in the proceedings will be applied to make up the short force. In essence, if you've recovered, say 20,000 pounds for a result of the, the claim you brought um in a 5000 pound court order, LA A have that 5000 pound deficit. They'll have that from your damages, leaving new payer paying uh receiving say 15,000 pounds. In that example, to fil uh facilitate collection of this statutory charge as it's called, the client is required to pass any money payable to the client to the A LA A. So it doesn't even meet the client's hands before it goes direct to the LA A. Um So charge is usually payable immediately. But if you've got property which is being recovered to the client's home, the LL A may agree to uh propose enforcement of the statutory charge and then the statutory charge will be protected by where registration and its title to the property and the fees will then be recouped when the property is eventually sold a bit, a bit. Like you would have a charging order or even an equitable mortgage as it gets to the property. Um We also have um C fa s conditional fee agreements. As I said, I, I go through these in a lot more detail in a district resolution film one, we look at funding for District resolution um things to be aware of with regards to C FA. Um it's a no win, no fee agreement. The idea is um that if you don't succeed, you don't pay anything. That's the thought process behind it. Um Though effectively the C AC fa is an agreement for litigation services with the legal representative fees and expenses are only payable in certain circumstances. Of course, it said the success, the claim, very common method of funding for personal injury cases. Um They can differ information depending on the fee agreement between the client and the firm thought process. Here is a client covers their base costs. V ac and disbursements. Save for any after the event insurance agreement and any success fee, which I'll explain in a moment from their opponents. So if you have billed on a file of 10,000 pounds and you are successful in whatever claim you've made, then effectively that claim for 10,000 pounds is pushed on to the uh losing party the defendants and that's how the C fa works. However, the clients must bear any success fee, which is um claimed as part of the conditional fee agreement. So successfully is a two stage calculation. We bear this in mind two stages. It's a sum calculated by reference to the base costs recovered. So that's your work in progress, your whip. So if you spent 10,000 pounds on a case and your success fee um is 100 percent of the base cost which you can total to have uh in, in any case, therefore, your successful starting point is 10,000 pounds because that's what you've built on the file and your client is liable for that. You can't, they, you can't or they can't recover that from the opponent. What happens then in personal injury cases, um the success fee inclusive of va T is capped. So basically, it means that um of the sum of money the client recovers for damages, you can't um actually claim a success fee of more than 25% of that, but that 25% is formulated by reference to past losses. Only it excludes future financial losses. That's a bit wordy. But if we look at it as a sort of an example and situation, so situation that I just gave you, you've got 10,000 pounds you've billed on the file. So that's ok. That's 10,000 pounds, you formulate into a bill and you claim off your opponent. Uh you've got 100% successful. So therefore, 10,000 pounds, that's what the clients are for. 10,000 pounds worth of fees. However, imagine situation, the class only recover 10,000 pounds worth of damages. All of those damages incorporated into elements of past losses. The client in a personal injury case is only liable for 25% of that. That's the cap. So rather than this 10,000 pounds, which is the first stage you go through the cap applies, which means the success fee is limited to 2500 pounds. That's how um a success fee will work in all of the cases. The se successor again can be no greater than 100% and is not capped. It's only capped in personal injury claims. We mentioned as well about after the event insurance premiums we looked at before the event insurance. So our premium insurance premium which exists at the time of the course of action. If you don't have before the event insurance or you don't want to use the panel firm that go before the event insurance system you're using and you can take out an after the event insurance premium which acts in the same way as a level of indemnity cover, et cetera, et cetera. So for the fact that the difference here is a before the events policy take it out before the event, it's usually an add on to a lot of policies it doesn't cost you anything but the after the event insurance policy, it will come at a cost and you have to pay that privately as a client. You can't recover that from your opponents. So it basically means um that, that is a sum of money. You're gonna have to have deducted from your damages. At conclusion it self insures, which basically means that if you are unsuccessful, no, we, no fee with the national fee agreements, then the A TE self insured. So the A TE won't be claimed from you. So if you don't win, there's no charge. But if you do win, then the A TE is deducted from the sum up, you have your damages. Um I talk about this a premium and how it works with um conditional fee agreements and personal injury work because of qualified one way cost shifting quarks in dispute resolution. It's better that you watch that film to understand how that works. Cos that's something which is very specific to dispute resolution itself as opposed to looking at um funding generally and the A T premium, it will vary depending on the nature of the case and also the value of the case. So personal injury work, it can be quite low for the smaller value cases. The more significant cases will be a higher premium. Commercial cases can be a lot higher can be staged in commercial cases. So payable uh up to litigation, litigation directions, et cetera. Et cetera. Um So you can keep incrementally increasing. You do see a TS increasing at two stages, mostly reissue it's one premium and then upon litigation, there's an enhanced premium, extra premium payable. So AAA larger sum of money, you do see that very uh very commonly also have damages based agreements. These are no win, no fee agreements as well. So very similar to ac fa to add to the confusion. They're also known as contingency fee agreements, which the acronym is also C fa don't mix it up with a conditional fee agreement. That's a different thing. This is a contingency fee agreement. It basically allows you to recover a percentage sum from your client's damages upon the successful conclusion of client's claim. So with a damages based agreement, the um the element there is success so effectively, uh when you're pursuing a, an individual, um defendant, you want to, if you're going to enter into a damages based agreement, be very sure of a few things. Number one, you're going to succeed because you have a damages based agreement and you don't succeed, you get nothing, no fee. But also, but even if you are successful that the defendant has got the money to pay your costs and the damages. Of course, well, the damages mainly because of course, once, if the damages aren't payable because the defendant has no funds, then there's nothing for you to do it costs from. So therefore you don't recover anything. So therefore, damages based agreements are really strong risk assessment at the start to consider whether you're gonna be able to um actually recover damages for the card. At conclusion, it's essential and also monitoring that and look at that all the way through and the costs claimed are capped. So you can't have more than 25% inclusive of va T and councils fees on the summary covered for personal injury cases, uh excluding damage to future losses and it has to be net of benefits. So that calculation with regards to the capping personal injury cases for a successful thing, that sort of calculation is identical here with regards to past losses, not future losses and so on. Uh also not more than 50% inclusive of V 18 council's fees on the cylinder covered in all non personal injury cases. So there's only uh a lower reduction per personal injury than in relation to other cases, uh disbursements other than councils fees are excluded. So you can claim and recover disbursements on top of the 25% or the 50%. But don't forget the indemnity principle also applies in any funding case. So in essence, if it is funded by way of a damage use based agreement and you are successful and you're going to intend to pursue your claim for costs as it gets to the losing party, those costs are limited to what the funding arrangements limits. So effectively, if you have maybe bill or maybe you've run up �50,000 on a file and the claim settles for 100,000 pounds on a DB A for a personal injury case, then your limit to be able to claim from your opponent is 25% of that 100,000 pounds, 25,000 pounds. So you're only gonna get paid for 50% of the work that you do. And that's why, of course, when you always look at these elements and thinking about funding, always assess which is the best method of funding in any given case. What um should I um sign up my client to what's in their best interest? But also what as a firm is better for you as well. Let's have a look at a practice question in this area though, if we instruct you on behalf of the company who wishes to pursue a claim for breach of contract as against one of their suppliers, your client doesn't have any BT E funding but has been approached by another company. You may be prepared to fund any potential exposure. Your client may have to adverse costs. You're in the process of preparing a letter of advice to your clients in relation to what this litigation funder must have in place. Should they wish to enter into an agreement with your clients? Which of the following statements best reflects the position. A there is no statutory regulation but there is a voluntary code of conduct, which states the funder must have adequate financial resources to cover funding liability for 36 months. They must have 3 million pounds worth of capital and they are restricted from trying to control the litigation. B there is no statutory regulation. There is a voluntary code of conduct which states that the funder must have adequate financial resources to cover funding liability for 24 months. They must have at least 2 million pounds worth of capital and they are restricted from trying to control the litigation. C there is no statutory regulation but there is a voluntary code of conduct which states that the funder must have adequate financial resources to cover funding liability for 36 months. They must have at least two pounds m uh 2 million pounds worth of capital and they are restricted from trying to control litigation. C there is no statutory regulation but there is a voluntary code of conduct which states the funder must have adequate financial resources to cover funding liability for 36 months and they must have at least 2 million pounds worth of capital. And if there is a statutory regulation, which states that the funder must have adequate financial resources to cover funding liability for 36 months, they must have at least 2 million pounds capital and they're restricted from trying to control the litigation. Correct answer is c there's no statutory regulation. There's a voluntary code of conduct and what does that state, the funder must have financial resources to cover funding liability for at least 36 months. They must have at least 2 million pounds worth of capital and they're restricted from trying to control the litigation in relation to the others. A has the wrong limit with regards to the capital that says 3 million B has the wrong period with regards to the funding liability as 24 months. Um B is correct but um fails to consider the fact that they need, they are restricted from trying to control the litigation, which is a very important element of the litigation funder obligation under the voluntary code of conduct. And he states there is a statutory regulation but there isn't as a voluntary code of conduct. Thank you very much.

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Part 7 - Webinar

00:35:25

My name is Darren Hackney Green and this is the second film in a series of films, Illegal Systems on the SQ eight. This film looks at the regulatory role of the Sary. So what do you need to be aware of uh in relation to the S3 assessment criteria in this area set out there in relation to principles and risk based regulation, reserve legal activities, professional indemnity, insurance, and other regulated providers of legal services. We're gonna look at these matters in a little bit more detail now in this uh in this film. So there's no set definition of the term legal services. It's an umbrella term, uh includes advice, help representation uh in relation to any legal matters. Uh In the past, a significant proportion of legal work could only be carried out by solicitors and barristers that all changed. Uh with regards to legal services, Market and Legal Services Act, which basically means that other providers may provide legal services. However important thing to be aware of is this definition of reserved uh legal activities. So certain reserved legal activities can only be carried out by those who are authorized or exempt from requiring authorization the Legal Services Act, you probably, you probably need to be aware of the statute. Uh, not the different sections that uh that govern it, but just in relation to that actually sets out the elements of reserve legal activities. It distinguishes between those legal services that are classified as reserved and those which are not. Um, in essence, it lists all the matters that are reserved and by default, those that aren't listed are then not reserved or non reserved. It's essential. You understand which activities are classified as reserved. Because reserve legal activities can only be authorized uh provided by authorized persons and carried out a reserve legal active activity without the appropriate authorization actually constitutes a criminal offense. You need to be aware of that. Reserve legal activities is for uh core fundamental in relation to this area in understanding it. So in relation to reserve legal activities, they comprise legal work where the risk to the public is greatest, there are six different types um of reserved legal activities. Some of these are more important than others and are going to draw to your attention. We're not, they're, they're more important. So firstly, the exercise of a right of audience um refers to the right to appear before an address, of course, including the right to call and examine witnesses. That's a reserve of legal activity. Then we have six of them, the conduct of litigation. It is really important, the conduct of litigation. That means issuing proceedings before any court in England and Wales commencing prosecuting and defending such proceedings or carrying out ancillary tasks associated with such proceedings. So in f essence, anything in relation to the conduct of litigation is covered as a reserved legal activity but reserved instrument activities. So those are the uh activities that involve preparing or lodging certain legal documents. Um Good legal instruments, I reserved instrument activities are those dealing with the transfer charge or registration of land or of any other legal instruments re uh relating to real or personal estate. Uh It's important to note that the preparation of some types of documents are not classified as reserved instrument activities. Examples of those include drafting wills and other testimonial instruments that basically means that uh drafting of a will is a non reserved legal activities. Beware and I draw these to your attention as being sort of the core ones and are more important when you may have a question in the SQ A which may direct your attention to a specific task. It may be um uh litigating on behalf of an individual, then you identify what that litigation is a reserved legal activity and therefore, uh what the rules are with regards to the um the management or regulation of that. Alternatively, you may have a question to around a non reserve legal activity um to be the drafting of wills as the example I gave there, I'm thinking about. Well, actually what then uh are the rules in relation to that how and understand the regulations don't apply. The regulators don't apply to those sorts of activities as they do to reserve legal activities. Um Drafting agreements not intended to be executed as a deed. Another um, non reserved uh documentary, uh legal, nonlegal activity, sorry, non reserved activity and drafting a letter or a power of attorney. I'd be mindful in relation to those three elements of actually understanding them. And actually probably learning the reason being of course, because they are specified as examples of non reserve legal activities. It saves you getting confused with the elements when we looking at elements of personal estate and you're asked a question where it's talking about drafting lateral power of attorney. Uh and that thought process in relation to that. Yeah, though that is incorporated in the actual potential person, a state of an individual. Um it isn't a reserve of legal activity. We also have certain probate activities which includes preparing the documents needed to obtain a grant of probate, preparing a grant of letters of administration and preparing documents to oppose a grant of probate or a grant of letters of administration as well. Um Five notarial activities. I wouldn't worry too much about this. Um The the terror activities involve certified and authenticating certain documents tend to be within international elements by a notary, the separate regulations in relation to them. A lot of the time it comes to the rules, they are an exception to the rules themselves. So, in my mind, I don't think they're vital in relation to, um, any question on the sqe cos I don't think they can test you too much because they are a massive exception, but just be aware of it and the six administration of oaths. So it refers to the power to administer an oath. So the taking of an oath, the swearing of an affidavit. Um so effectively, if you are swearing a statutory declaration in relation to the transfer of ownership of a property, then when you're signing that, um that has to be done in front of a solicitor, it has to be done on oath. And that's the p one of the powers that we have, which is a reserve legal activity. Um Only these activities are classified as reserves. So basically means by default, anything which isn't listed in those six is a non reserved legal activity. Um And they can be provided these non reserve legal activities by unregulated individuals without formal requirement for training or qualifications or anything of that ilk had mentioned here, some core other uh examples of non reserved uh legal activities. I mentioned wheel writing, providing legal advice generally. Um You can see that since the Vice Bureaus uh non reserved legal activities, providing mediation um services. Again, it's a non reserve legal activity, reserve legal activities can only be carried out by those who are authorized or exempt we'll look at exemption in a moment. Just bear that in mind. Ok. With reserve legal activities, you have to be authorized or exempt. Exempt is a very, very small category. But, um, you need to be aware of who could be exempt and how, and we'll look at that in a moment first, it must be authorized to carry out a particular reserve legal activity by a relevant regulator. Look at this in a moment. Uh The law society is the proved regulator for solicitors, but the regulatory function for the law society is carried out by the SS R A and the SR A deals with authorization for all the reserve legal activities. Again, not the exception, notarial activities. That's why I say, I don't think you can worry, you don't need to worry too much about not material activities or not. Or that exception with regards to reserve legal activities, there are a number of regulated legal service providers. Consequently, that means there's a number of approved regulatory bodies who regulate the legal service providers. Um Each regulatory body has a specific professional specialist. And so I've given some examples here for those of solicitors. It's the SR A. So this is regulations uh authority, Barris Bar standards, board, charter, legal uh executives c regulation. We've got the social cost, lawyers, et cetera, et cetera. Lots of different um bodies who authorize individuals. The legal services board LSB is responsible for overseeing and monitoring these regulators. So they um oversee and monitor those who regulate us. It goes off the chain. In essence, uh regulation extends to, extends to all legal services the authorized person carries out and not just those services classified as res reserve legal activities. So the idea is for you have to have this authority and regulation with regards to offering a reserved legal activity, but it doesn't stop you um offering non reserve legal activities as part of that package. So for example, uh, you offer probate services with regards to uh, uh, arranging the grants of probate, but you also offer the service of drafting a will. So you're granted probate. Uh, getting that is a reserve legal activity. The drafting of the will is a non reserve legal activity. You don't have different rules applying to the two just because you are a regulated provider. Ok. So because you are regulated, the same provisions apply to any service you offer, whether it is reserved or a non reserved legal activity, that's important to be aware of. So solicitor has to comply with the Sr A's regulations and code of conduct even when they're not carrying out reserve legal activities. That's what the example I gave you. This is exemption goes to reserve uh legal activities, the regulation of that unless you're exempt. And how can you be exempt? In essence, it's basically where the court says it's ok, you can be exempt. You see this when you have, um, litigants in person doing matters themselves. So for argument's sake, the whole issue and, uh, idea behind access to justice is that, um, you know, an individual can bring the case themselves or defend the case themselves, um, through to fruition. Uh, um, arguably our legal system allows that to happen. It's all point in principle behind access to justice. Um, however, bear in mind, of course, if we're looking at litigation and the rules, we regard to reserve legal activities, a litigant team person won't be um authorized or regulated. So arguably he's not able to carry out um the drafting of um, documents in litigation or alternatively representing themselves at a hearing because they don't have rights of audience. That's one of the reserve legal activities. Number one, we, we looked at earlier, the idea here is beyond the exemptions. Here is the court actually grants the individual the specific right as part of that specific set of proceedings. So you don't as a litigating person, get authorized to litigate anything you like. Um, with permission, you just authorize in relation to carrying out that specific case and that task with regards to the matter before them defending or bringing a claim that you're entitled to pursue that litigation on uh yourself. And that's the thought process in relation to that. Also a specific right award is you can repre represent yourself at trial in relation to this specific uh action or case. And that's the rewards in relation to exemption. Just watch out for that because that's a way of getting around, um, how to avoid the elements of regulation for reserve legal activity. But you'd see that really applying to individuals as opposed to you as a profession, it's a criminal offense for a person to carry out or carry on a reserve legal activity if they're not, uh, either authorized or exempt. And the offense is punishable by up to two years in prison. Addition, the context of rights of audience and the conduct of litigation. If you carry out a reserve of legal activity, whilst not entitled to do so, you don't have a practicing certificate or you're not regulated for whatever reason you could be found in contempt of court and that of course, can result in committal proceedings as well. So again, you need to be very, very cautious in relation to that. So the LSB, the Legal Services Board, as I said earlier, responsible for overseeing the regulation of all lawyers in England and Wales, um A body can only be acting, uh can only act as a regulator for legal services. If it's approved by LSB, the LSB monitors the way in which regulators operate and can make recommendations for improvement in entities for deficiencies, ultimately withdraw approval. So don't forget that the A SB at the top here, looking after the SR A who govern solicitors, but they, they, they operate the regulatory elements for the law society bar standards board, obviously, the legal ser services board make sure they do what they're meant to be doing and same for silence, regulation and so on and so on. So regulated providers. So regulated individuals must comply with their own regulators, regulatory arrangements on such subjects as education training requirements, code of conduct, framework to practice and provision for disciplinary and enforcement action. Uh state there, what those are, what you may have and you'll be very cautious about. You can get a question in the exam is if you have someone who is a charter legal executive, but is employed in a firm of solicitors which is regulated by the SR A, you can't simply get away with the fact that silent regulation regulates me and not us R A. It doesn't, it doesn't work that way. So that because you're employed, the, the onus that you have doubly in that regard is you will be regulated by silence regulation in relation to education, training requirements, et cetera, et cetera. You'll also be regulated by the SR A in relation to what you do and also what is required for you as a person who works with the firm, which is regulated by the SR A just whereas sometimes you can have a dual element of an obligation there, um firm based regulations. So as an approved regulator, the SR A is able to authorize firms as well as individuals. Um this is the authorization you need for to carry out reserve legal activities. So only certain types of businesses are eligible for authorization. I've listed the most common ones that you need to be aware of. So a recognized sole practice, a sole practitioner is obviously a solicitor who chooses to practice her own solicitor, a registered European lawyer, uh registered foreign lawyer, the solicitor will own and therefore be responsible for the firm in its entirety. The organization is authorized by the SR A as a recognized sole practice rather than recognizing the individual as a sole practitioner. That's the terminology that's used there. We've got licensed bodies. Um The concept of alternative business structures. A BS is induced by the legal Services Act. The key difference is that the ownership um control or management of an A BS alternative business structure and is not holding the in, in the hands of individuals who are legally qualified. That was the whole change with the Legal Services Act that non qualified legal um uh uh solicitors lawyers can actually now own a business which operates a reserve legal activity process for a body to be eligible to apply for authorization as a licensed body. There must be at least one manager who's au authorized by the SS R A. So you've gotta have a solicitor there or another approved regulator that the character of licensed conveyances silex regulation just need the one your license body, that's all you need. Ok. Um Then we have recognized um bodies. It's further the more common um processing relation to firms that are regulated. That's a legal service body which all the managers and interest holders are legally qualified. They're able to are eligible to apply for authorization by the SR A as a recognized body. So at least one merger must be a solicitor or rel registered um European lawyer and a recognized body can take many different forms, partnerships. So, um equity and salary partners, equity, we take a share of the profits, salary where you paid a sum of money. But her recognition has been a partner, limited liability partnerships, L LP S. So they incorporated partnerships with uh rather than partners, they have members and companies. So, so this practice may be incorporated as a company registered under the Companies Act. So therefore they have directors and shareholders like any other um company, they recognize bodies as different firms that wish to carry out reserve legal activities may, oh, sorry, must make an application to the SR A for authorization that that's the whole issue you've got here. Ok. So the uh if you tie all these things together is we've got these reserve legal activities that can only be carried out if you are authorized to do so, which is by your regulator. So for the SR A for most of your questions, for SQ eight, it's gonna be looking at that sort of element of, of regulation. So you want to carry out a reserve legal activity the SR A has to give you authorization to do so if you want to carry out just non reserve legal activities, in essence, crack on and we'll look at that in a moment. Um, so once an application is made, the SR A will investigate and may give blanket authority for a blanket authority, you crack on, you give those, um, reserve legal activities. No problem, authorize the provision of selected legal services. It may feel you don't meet the criteria or specialism to allow for all um of the um uh appropriate services that provided the approved regulated services provided. Maybe you're saying a certain number of the reserve legal activities you can offer um, probably by way of the qualification of your staff or alternatively just refuse the application. Uh is another option that's open to them, was authorized. Uh, a recognized body is entitled to carry on all reserved legal activities again, except notarial activities. Again, I think that's another thing is outside the sqe a cot t being asked a question in relation to that just in relation to elements of management with the UN firms. Just notice the difference here with regards to this. So a recognized body must at all times have an individual who's designated as its compliance officer for legal practice. Recognize and remember the acronym cop and one who's designated as a compliance officer for finance and administration, your coffer. So your cop and your coffer, both of whom the SR A has approved as part of the application process you have with regards to authorization, but when we're looking at a license body, so an A BS and alternative business structure, the terminology is slightly different because you have a head of finance and administration, a hoffer rather than a coffer and you have a head of legal practice which is a hope as opposed to a cult. Um just be aware of those acronyms and just to be aware of the difference. I I could see that being a question as a, a multiple choice question. Sqe in relation to understanding a licensed body, what you require a hoffer and A H and uh having a recognized body, a coffer and a co just be aware of those differences there. So you go to practice as a solicitor, a person will satisfy three requirements. Those are there admitted to the profession. So a person will be admitted if they satisfy the requisite education and training requirements. This is you rescue it what you're doing now. Uh And you should also be satisfied character and suitability requirements. We'll look at those in a moment as well, uh then get added to the role. So once admitted, the person's name is added to the role of solicitors. And that list is maintained by the SR A and then you obtain your practicing certificate. So you then applied for your practicing certificate, you get your practice certificate which entitles you to offer legal services, excuse me, practice certificates have to be renewed on an annual basis. You can just get one for the rest of your life. There's always a renewal process as part of that renewal process is the satisfying elements. For example, you've done, you, you record CPD into professional developments. You've actually done much of training in the meantime. And also nothing has changed since you last applied for your practicing certificate. Although there is an obligation to make sure you update the SR A if something changes in relation to you in the course of your practice, the existence of the previous practicing certificate which is issued for you. We'll look at that in a moment. So character and suitability requirements, the conduct and behavior that the SR A will consider when assessing an individual's character's suitability falling into two main heads, criminal conduct and other conduct or behavior in relation to criminal conduct. The the action taken by the SR A will just depend upon the type of conduct involved. Uh They've sort of differentiated between those are most most serious and those which are just serious. So most serious a finding in that category is likely to resort in the application being refused. So your request for perhaps is being denied. Those include convictions by a court of a criminal offense, resorting a custodial suspended sentence involving dishonesty, perjury fraud, bribery. All elements that go to the fundamentals in relation to yes or a code of conduct, honesty and integrity. That's the reason why they're there, uh, or offenses of a violence or sexual nature obstructing the course of justice. Again, integrity, terrorism or which demonstrated behavior showing signs of discrimination towards other, again, towards others. Again, elements of discrimination are the, so a code of conduct real big. No, no, in relation to that where caution has been accepted in an offense involving the soy violence or discrimination. So we've got where you can, uh, where you have a custodial or a suspended sentence on a list of those offenses, but where you've accepted a caution in relation to ones relating to dishonesty discrimination, violence are the same elements. Yeah, you're not going to be granted your practicing certificate and it's a big risk there. I'd look at actually in relation to SQ A question around this. It may be looks at prospective applications by individuals and thinks about, um, what the application made, will they be successful? What the considerations to be made? You may get a question around around this. You may also get a question as well about the duty to inform the sr a if anything changes during the course of the existence of your current practicing certificate, ie, um, you've got your practicing certificate later, you then get a caution for some sort of offense of dishonesty, shoplifting or whatever it may be, um, then, or fraud or whatever it may be. It's the obligation to report at that stage, you don't wait until it's time to renew your practice to forget there's an ongoing obligation to report. And arguably, if you did wait, that would show a lack of honesty and integrity by not updating the sr a immediately as soon as it happens, which you're required to do. So, you're probably just uh making a rod for your own back by not um owning up at the earliest possible opportunity. Um Serious a finding in that category may result may result in the application being refused. And those include where caution has been accepted, um, or the individual who has been convicted of a criminal offense, not falling within the most serious category. So you have the most serious, which is where you're likely not to get your gravity certificate or have it taken away if you've got one and we've got the list of the, the, um, crimes there and then we've got serious. That's the capsule. That's everything else. I mean, in relation to that, you know, if you get a speeding offense yet, yes, report it to the sr A. Um, we, we have obligations with my firm. We, uh, move it up to our compliance team and make the decision whether to report or not the obligation to report still rested me as a solicitor and not with my compliance team. Um, but we have this one where, yeah, speed fence. You're not gonna lose your practice to give it because of that. Um, you know, elements of, uh, minor misdemeanors, potential antisocial behavior orders may not result in your, you losing your practice certificate. Um, but you have to be very cautious. So I, I think I've said before in other films, just be careful that, you know, everything you do, um, whether inside of work or outside of work is relevant to your conduct to how the SR A will consider your conduct. Um, and any sort of elements of behavior, you know, certainly I've given warnings before about social media, any elements of looking at discrimination and things like that, just be so, so cautious and careful because it could result in you actually losing your practice before you begin your career as a solicitor. What about other conduct and behavior? Not just the criminal side of things. So other conducts, we're all set out a non exhaustive list of examples like examples. But don't say if it, if it doesn't fall in here, it doesn't mean say it's knocker conduct to be borne in mind. These are just examples of more common conduct. They've considered the SR A as being um, not befitting that of a solicitor. So where the applicant has behaved in a way which is dishonest, violent, threatening or harassing or whether there's evidence of discrimination towards others, that would be where there hasn't been a criminal conviction that could be complaints through work whilst you're working there as a paralegal or before you qualify as a solicitor, uh, or other, uh, mean, I say doesn't have to be through work and it be other, uh, elements. You could be on the, the PT A for your kids. Uh, and your secretary of the PT A and you've behaved in a, uh, uh, an unprofessional way which has resulted in a complaint to the SR A about, you don't forget, of course, is these elements are things that can prevent you having a practice cert certificate before you even have one. or alternatively can result in that practice practicing certificate being suspended, taken away or being some sort of amendments made to limit down your ability to practice. The applicant has committed a deliberate assessment offense which amounts to plagiarism or cheating in order to gain an advantage for themselves or others. Massive warning in relation to this one. I've seen some nightmares online about the sqe um and people talking about it afterwards, don't forget you sign a non disclosure agreement prior to undertaking the sq A emergency situation, you sign that and then after the event, you um start giving top tips in relation to the sort of questions that come up to gain an advantage for others that in itself before you even become qualified could end up with the SR A saying you're not suitable to hold a practice certificate and you'll never qualify as a solicitor. Um There's evidence the applicant has deliberately sought to avoid responsibility for their debts. Dishonesty, manage their finances, been declared bankrupt or cannot satisfactory, manage their finances, tax fraud. Suppose there's an obvious one in relation to that that can come in relation to your personal life. Uh, the applicant has been made the subject of a serious disciplinary or regulatory finding or sanction. As I said, there's an ongoing obligation to inform the sr a promptly. It's the rule promptly about anything that raises a question about your character and suitability. Um, and changes information previously uh provided promptly is the obligation there. And I think I would always exercise a note of caution. You get a parking ticket, tell the SS R A, you get a speed in front, tell the SR A because you can't be criticized there yet. They're not gonna be bothered about that. You know, they're, they're not considered, they're only considered by the most sort, most serious breaches, but in essence, I think it's better just to fess up at the earliest opportunity. So, in relation to carrying on reserved legal activities, if you practice as a solicitor without a practicing certificate, you commit a criminal offense, you're mindful of that. Um And practicing certificates are personal to individual solicitors. Um, certificate of the suit authorizes a solicitor to carry out all reserve legal activities except material activities. Um Our solicitors must hold a valid practicing certificate and carry on all reserve legal activities through an authorized body. Practicing certificates are renewed every year on the 31st of October, we just had a renewal that's happened. Um, that's whenever it's granted. So if you graduate on the first of January, you're still going to be renewed on the 31st of October. It doesn't have to be a whole year. Just that's the period when it's renewed every, um, 31st of October. The SR A is a certain of discretion regarding the issuing of practice and certificates. So if they consider it in the public interest to do so, it must uh refuse an application for practicing certificate or main post conditions. We saw that on the existing certificate as it thinks fit a decision by the SR A to refuse an application for a practicing certificate or to impose conditions on one can be made the subject of an application for review by the SR A or an appeal to the High Court. It's administrative division of the High Court that you need to appeal to. So there is a process to go through if you're not happy with the Sras decision. Um and you can appeal that process. Be aware of professional indemnity insurance. You need to specifically know about this for the SQ assessment criteria. So occasionally the standard of service provided by a solicitor falls below an acceptable level uh and causes the client to suffer some form of loss or damage, you make a mistake and your client's case suffers because of it. In essence, that's what we're looking at So those cases, of course, what happens, your client brings a claim against you for professional negligence. We're seeing actually professional negligence as a sort of a growth market in relation to the legal sector. And as we're having um greater and greater fixed fees placed on any of the personal injury market, it basically means that if you've got a fixed fee for a personal injury case, there's only a certain limit of sums you can recover for that case. And that means the cases are um run more quickly sometimes without consideration or potential losses involved because it's a rush through, get it um sorted and get it confirmed and dealt with. Um and or arguably you've got individuals running high cases, those are firms to make money on these fixed fees, an individual run a significant number of cases. It's room for error and it's ripe for error. So what you're seeing now is that effective? The professional negative um claims market is a growing one because as the insurance um is reduces down the right to costs, the uh the more people are running cases, more mistakes are made because of it. You're trying to do things more quickly and that leads of course to clients complaining making it clear pressures of negligence for heads of damage that have been left out. Mistakes are being made and therefore there. That's where we're looking at the issues there. The purpose behind professional indemnity insurance pi I be aware of the acronym PI I is designed to cover the payments of such liabilities. The idea is if you as a sister make a mistake, everyone makes mistakes. You know, we none of us infallible. But the idea is you make a mistake. And the super factor you refer to your pi I there's insurance there, a client claims against you. The insurance pays, that's the benefit of it. You pay for a policy for insurance like you would for a motor policy, you pay for uh a motor policy insurance, you have an accident in course. So when an injury, you don't pay your own pocket, your motor policy pays in relation to that. Yes, it affects your premiums. But that's uh beside the point that you don't have to pay for the damage to that individual because your policy insurance covers it. The same for professional indemnity insurance will cover you the extent of your negligence and how it works with professional indemnity insurance. Of course, is when you've got a claim they'll have their own pan of solicitors, the worker he passed to and the system will advise accordingly in relation to whether the firm has been negligence or not. Do we defend it? Do we pay out to make an option? What happens in any given circumstances? So it covers the costs associated with defenders settling these claims. Um obviously having cover in place um helps maintain confidence in our profession. Clients know that things go awry. Then they, they've got this, there's this insurance cover that will pay off and pay them for their damages if they suffer their loss. Um For that reason, the SRA A um all sr a authorized firms and freelance services have to have the appropriate pi I in place. Arguably if they don't, we do have the sr A compensation fund which will be out within another video which um, theres situations where there is no pio in place. But the obligation as an sr A regulated firm is, you must have pio in place and the pi I must be taken out with one or more participating insurers. Those who are uh who are approved by the SR A and regulated by the SC A Financial Commerce Authority. I have an agreement with the SR A to provide insurance on particular terms that satisfy the regulator. The key requirements are that all authorized bodies must acquire and maintain adequate and appropriate pi I cover, I'll come back to adequate and appropriate in a moment. Um Each firm solicitor must determine what level of coverage is appropriate to their specific circumstances. So determining uh what is adequate and appropriate firms and solicitors should consider factors like the nature of the work undertaken, the number and type of clients, the possible value, any claim liabilities, any history of claims against the firm and solicitor and, and any alternative arrangements to meet liabilities recognized and licensed bodies. We see we saw the difference in relation to recognizing licensed bodies earlier with regards to the regulation and definition, your licensed bodies being your A BS S and your recognized bodies being the normal relative. The Mill Partnerships L LP S. Um they must be insured for at least 3 million for any one claim. That's a minimum 3 million from any one claim that's exclusive of the nature of defense costs. In all of the cases, the sum insured for must be at least 2 million. I think you need to be aware of the difference between those. I could see that coming up as a question in the the sqe in relation to the minimal or minimum limit in relation to the pi I cover. So this will have to be open uh with their clients about their pi I provision. It's necessary to make clients available about the firm's compulsory layer of pi I including details of the insurer and the cover of the insurance. The cover of the insurance is key and the reason for that because that could actually be a factor that a firm uh a business or an individual chooses in relation to whether they're structural firm. But for argument's sake if you've got a client um who is wanting to instruct you in relation to a claim for breach of contract or, and, and the loss is around about say 10 million pounds. However, your that firm's pi I cover is 5 million pounds they'd probably be reticent to instruct you because they know if they do instruct you and you go and cock it up so that you, they then have to pursue professional, professional negligence. The limit to your cover is 5 million, which is half of what their losses are, are uh are with the a breach of contract. So sometimes that cover can actually limit down the clients you take on we as a firm and you tend to see this always have questions um um asked of us prior to the point when we renew our pi I have you got a case which is worth in excess of X I think our pi I limit is limit is up 10 million pounds. So we always ask the question, have you got a case worth more than 10 million pounds? If you have the they, you have to notify your firm because if our uh pr a limit is 10 million pounds, that may not be enough to pay out the losses in relation to that specific claimant for that client. Well, let's have a look at a question in this area there. So a solicitor turns a charity gala at a prestigious Welsh gallery following a heated disagreement at the buffet with another guest which involved an element of volatile volant tossing. She is arrested for public disorder. The police issue the solicitor with a formal caution but decide not to pursue criminal charges. Is the solicitor required to report this caution to the SR A, a note, the solicitor only needs to report to the SR A if she's charged with or convicted of an offense. B note, the solicitor is only required to report to the SR A in cases of serious misconduct which this incident does not constitute. C yes, the solicitor must report the caution to the SR A either personally or via her firm's compliance officer for legal practice. To culp note the solicitor is only required to report to the SR A if she's convicted of an offense. And yes, a solicitor must report the caution to the SR A, but this can be done through her firm's managing partner when it comes to questions like this in relation to elements of conduct, et cetera, et cetera. What I'd recommend is the first port of call. If you have a look, a lot of the questions are like, no, no, no, yes, no, yes. So effectively have a look at the question, you reach a conclusion. Ok. I think the answer must be yes. So therefore, which one of the yeses sits better with your answer and, and then just look at it that way that can help you narrow down the ones that are incorrect. It may potentially if you're running out of time in relation to a question, you may be able to limit there and get through more questions that way by thinking if the in your gut, the answer must be yes. Therefore, I discount the nose. The answer to this one is yes. And the system should put the caution to the sr a either personally or via her firm's compliance officer for legal practice culp. Um, so about the other ones. So solicitors need to promptly report to the sr A any caution they received regardless of whether the charges of fraud or conviction occurs, uh, which makes A and B wrong. You don't need to have any sort of conviction. The fact there's a caution, there is enough, um, is incorrect because reporting through the managing partner uh is not sufficient. You have to go do it yourself or through, through your rec or cop, your compliance office of a legal practice. Um And B is incorrect because the severity of the misconduct is irrelevant to the reporting requirement for cautions. In essence, the relevance of the actual conduct itself is relevant to where the sr A, what they decide to do with the osteopath certificate. It's not a valid consideration to whether you should report the caution or not. The simple fact is you've got a caution, you report it. Thank you very much.

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Part 8 - Webinar

00:36:17

Hello, my name's Darren Hackley Green and this is a film three in a series of films in relation to legal systems. On the sqe this film is going to look at the Equality Act. So you just look at the sqe uh assessment criteria we're expected to be aware of in relation to this area. Uh quite simply the Equality Act 2010. Um No other guidance in relation to the specifics behind that. So I've looked at the elements of um the Equality Act itself and going through um this film looking at um protected characteristics as well as Protected Acts as we go through the um the slides. But the overarching ethos of the Equality Act is that everyone's to be entitled to being uh treated fairly, that aims to eliminate unjustifiable discrimination and unfair treatment. We as solicitors have obligations under the act, not only because we provide legal services, but also because we act as employers uh as well as a dual element, they need to bear in mind. And these overall obligations are uh distinct and different from the obligations under the sr a uh regulations, code of conduct. We'll look at that um in a moment where we look at the protected characteristics, characteristics themselves and how there's a bit of an overlap between the, the legal position and also the ethical position. Uh The act. So identifies a number of what we call protected characteristics and these characteristics which are dealt with under the Equality Act. And we'll look at those specifically in a moment, there are nine of them. So, first off, just before we move on to the, the rules, et cetera, et cetera, in relation to the Equality Act, what options are open to an individual who's had their rights, um, breached, discriminated against under the act. Um It's a civil uh approach or criminal approach. Remedy. Of course is an individual action taken by the victim, depend on the nature of the relationship between the victim and the other party. The defendants. The action depends on whether it is an employment tribunal matter, it's an employment law matter or whether it's simply a civil dispute between the parties in the employment tribunal. Um Obviously the intention is to provide compensation as for the employee back in the position they would have been in, had the wrong not occurred. Um Usually that is financial loss, but of course, you can have elements of injury to feelings as well as part of the uh the claim made. The tribunal can also make declarations on the employer's rights and make a recommendation that the employer must take specified steps for the purpose of Obviating or reducing the adverse effect on the employer of any matter to which the proceedings relate. So it has a dual element there in relation to pursuing the matter through a tribunal, the individual gets the damages, but also he is able to have the tribunal make sort of recommendations. So it prevents problems going forward for, for other parties. Um Obviously claims that aren't brought under the uh under employment law via the tribunal are matters heard by uh the cat or the high court. It's a general civil claim. Of course, the burden of proof will rest with the uh the claimants as it does in any civil action. Um But all the claimant needs shows a prima facie case of discrimination. Uh Once they do that, uh the claimants prove ox from facts which could be in further discrimination has taken place. Once they do that, the burden of proof will then shift onto the defendant. And again, uh the remedies are the same as you would under the tribunal awarded damages or other remedies. Also, injunctions, declarations in relation to the, the conduct being stopped going forward and the prohibitory conduct that's taking place. These are the nine protected characteristics. We'll look at these in a little bit more detail in a moment. Um, age, race, religion or beliefs, disability, pregnancy, maternity, sex, gender reassignment, marriage, civil partnership or sexual orientation. So those are the only uh protected characteristics under the Equality Act, be mindful of a question which maybe brings out elements which aren't protected characteristics or characteristics or those which aren't. I imagine a question. If it's going to ask you to look at the Equality Act or maybe raise issues in relation to one of these specific protected characteristics, then, you know, it's the Equality Act that takes place and that's the, the legal, um, uh, response to a question around discrimination. I think it more likely than not that if you're going to get a question which um goes away from the Equality Act, um It's hard in all honesty to try and find a uh a characteristic which isn't protected and we'll look at examples in, in a moment. Um So it may be the fact that the question is actually makes it quite obvious and maybe say as be element to discrimination, but it is not around a protected characteristic. And then you need to think about the position then so if it's not a protected characteristic, the Equality Act has no place but don't forget um whether it's a protected characteristic or not for us acting in practice as solicitors, we also have the code of conduct. Remember the elements of 1.1 you can't discriminate 1.5 bully or, or harass. Um And of course, the um principle six in relation to the, the need to consider and encourage equality, diversion and inclusion. All of those rules are not based upon protected characteristics. So it's a non protected characteristic. You still have the sr a code of conduct and that's what you've done or not done, could be a breach of those rules and that could cause problems with your regulator. Um That could be the position, be aware as well. Of course, that you could have an equality act matter. So, uh a legal claim, but also you've got that other extra limb to it, which is the fact that the sr a will consider that your conduct may be also a breach of their rules and regulations. What I'd say is in the question, apart from looking out for the words protected characteristic or um looking at uh what are these being displayed? You know, one of the obvious protected characteristics, race, sex, et cetera. Um Think about what the question is. Um if the question refers to the, the legal rights that the claimant may have, well, that's an Equality Act matter. Your sr a code of conduct is not a legal right. However, if he talks about ethics and conduct and regulation, that's when you move away from statute, you move away from the Equality Act and start looking at the additional elements there with regards to discrimination and of course, encouraging equality, diversion and um in diversity and inclusion. So the nine character characteristics are finite. Um As I said earlier, any discrimination based on some characteristics falls outside of these protected characteristics is not unlawful under the act, but may of course give rise to professional conduct issues. So let's just look at each of those into a little bit more detail with regards to those uh non protected characteristics. So race um race is defined. So it has to include color, nationality or ethnic or national origins, religion and belief, religion and belief are not defined other than to say that any religion or philosophical belief and an absence of religion or philosophical belief is covered. So it's not just your religion. It's the fact you don't practice a religion, you're an atheist will be protected under the Equality Act. The exploratory notes to the act go further to in relation to belief because of course, it's religion and belief in saying that it must be genuinely held, be a belief as opposed to a viewpoint uh relate to a substantial part of human life and attain a certain level of cogency and be worthy of respect. Um And just so, you know, common law supports the fact that uh veganism is a belief. Uh And so therefore, is a protected characteristic as well under the religion and belief. Um Sex is, relates to inequality between men and women and sexual orientation covers heterosexual people as well as homosexual and bisexual. Um people age uh all ages are covered under the legislation. Uh In some instances, a difference in treatment based on age can be justified. So, in essence, with some of these protected characteristics. There are exceptions when you can discriminate. Um, but we'll look at that later. I suppose the obvious example with regards to age when you've got someone who's, um, 17 and, and not allowing them to serve alcohol on the checkout in Tescos and those sort of limitations because age related, um, laws that would breach uh, other statutes. So that's an example where you can, uh, discriminate. But we'll look at these in a bit more detail in a moment, a disability, a person has a disability if they have a physical or mental impairment, and the impairment is a substantial and long term adverse effect of their ability to carry out normal day to day activities should wants the Act as definitions of long term and specifies that certain conditions such as HIV, that is considered as a disability. So some long term diseases actually do function as a a disability under the act and therefore a protected characteristic as it diseases, viruses to the elements like that. And arguably the definition is quite narrow and does not reflect the common understanding of the term disabled. So it may be in uh as one of the questions you have in the exam, some elements of a disability that you may think or understand as being in general common use of the word is a disability, but actually under statutes doesn't uh actually meet the criteria. So therefore, it's not a protected characteristic. Well, the ones at the moment which a lot of people are talking about is menopause. Um And the idea it's not a disability at this stage, but there's a lot of voice around and support for the fact that the menopause should be considered a disability and therefore be a protected characteristic under the Equality Act. Um Going on with further um of these protected character is six gender reassignments relates to people who are proposing to undergo, are undergoing or have undergone uh that treatment for the purpose of reassigning their sex, that's important there. When you see about the fact that someone is proposing to undergo, then he hasn't started the process to be uh caught by um the uh the Equality Act, Marriage and Civil Partnerships. This relates to discrimination against people on basis, they are married or in a civil partnership. It doesn't protect cohabitants, single people, divorcees or fiancees. Um That again could be an element in relation to a question whether, you know, it's not covered by the Equality Act. Although arguably marriage and civil partnerships, if you're a fiance, it's obvious as in if you're not covered by marriage or a civil partnership, but that could form part of the MC Q. Pregnancy and maternity treat you quite differently to the other protected characteristics under the act. And pregnancy and maternity is excluded from some elements of the act. And so yet to sus uh specific protection when this characteristic characteristic is particularly relevant, we'll see that in a moment. Um The A um, talks about prohibited conduct. So certain types of discriminatory behavior are known as prohibited conduct. So what we've got got these protected characteristics you need to be aware of. I would learn all those nine, by the way. I mean, although generally speaking, they are the nine protected characteristics of what you'd obviously expect to see to be perfectly frank with you. Um, we then have elements of uh prohibited conduct. We're looking at direct discrimination, indirect discrimination, victimization and harassment, but we'll look at those individually in a moment now. So direct discrimination occurs when a person is treated less favorably than someone else would have been in the same situation. And that difference in treatment is because of wonder protected characteristics. There are three elements to the definition of direct discrimination. We deal with these in turn now, um Comparator, less favorable, favorable and protected characteristics. So we look at those in turn that so a, a comparator, so the victim must show that another person real or even hypothetical doesn't have to be that comparator doesn't have to be Joe Bloggs who also works in the same department as you, but who's white whereas you're black and therefore there's, oh and Joe was treated differently to you and you treated or you were treated differently to Joe on the grounds of your race, which is a protected characteristic. You could make someone up. It's a hypothetical situation in essence, not necessarily, you don't have to find a real comparator, the victim was sure that another person was or would have been treated differently in the same circumstances and the relevant circumstances of the claimants and the comparator should be the same or not materially different. So, apart from the protected characteristic, you're looking at similarities with regards to age, sex education for train attainment and their qualifications and so on. So the only sort of element that you're looking at, which is different is that protected characteristic. That's what you're aiming for. Uh less favorable. The treatment experienced by the victim must be less favorable. Any disadvantage will be sufficient. There is no need to have suffered tangible or material loss. You don't need to prove there's a loss as a result of the treatment, you just need to prove that treatment was um was less favorable. The test for less favorable treatment is objective. So there's no requirement to show the perpetrator intended to treat the victim less uh favorably if the perpetrator is obviously behave in a way which is malicious oppressive, um then aggravated damages may be awarded. So we we look at different types of damages in different um films, but that's uh this is one where potentially aggravated damages. So, aggravated damages been an enhancement on normal damages. So for the court to show their disapproval of the conduct of the defendants and this is war where that would be the case. And of course, we need protected characteristic. So the reason for the less favorable treatment must be because or partly because the victim has a protected characteristic. It need not be the sole reason. It can form part of the global aspect there. But um but needs to be uh a reason for that with less favorable treatments. This uh the protected characteristic must be the cause of the treatment. I say we need to be the sole or main reason. If an individual is treated less favorably because they are assumed to belong to a particular racial group based on their name, this will amount to discrimination even though the assumption is incorrect. So for argument's sake, um we've got uh a lady called Mrs Khan who's married obviously to Mr Khan. Uh and Mrs Khan is a white British. But the reason why she, her surname is Khan is because she married a man of um Indian heritage or Asian heritage. Then, um if Mrs K is treated less favorably, although she maybe Arly hasn't got a protected character, is it because her race isn't relevant to whatever? There's an assumption because of her name that they, uh that they treat it as an essay. But because of that reason, so protected character is based on the name, then that could amount to discrimination in itself. Uh There's no general defense of justification of direct discrimination save in relation to age, whether the protected characteristic is age. Um There is no discrimination if the treatment was a proportionate way of achieving a legitimate aim. So imagine that in that situation where you got to direct discrimination age, you can get away with it so to speak. But it has to be a proportionate way of achieving a legitimate aim. More detailed provisions apply in respect of discrimination on the grounds of pregnancy and maternity. So that's direct discrimination. Then of course, another one of the elements of protected conduct or prohibited conduct, sorry is indirect discrimination. So, indirect discrimination is more subtle than direct discrimination does what it says on the tin, so to speak. Uh It occurs in a policy practice or rule applies generally but has the effect of adversely impacting those who share a protected characteristic. So the definition of indirect discrimination under the act is a person a discriminates against another B if A applies to B A provision criteria or practice, which is discriminatory in relation to a relevant protected characteristics of BS. Example of that could be um offering up a competition in the firm where the first prize is a bottle of champagne, alcohol. And uh it opens to all people in the firm. But of course, some of those are of a religion that don't tolerate or drink alcohol because of their religious beliefs that will be indirect discrimination. Uh Indirect discrimination may be justified whether the policy rule or practice aims to uh aims to achieve a legitimate aim. Uh An example unless an employer can objectively justify the need for a full time worker to do a job, that requirement could be indirectly discriminatory against a person with childcare responsibilities. So we're looking at here is a justification with regards to the, the job itself. So arguably, um you need to be able bodied to be a fire officer and those sorts of elements. So although that is indirect discrimination or even direct discrimination with regards to saying that if you're non able bodied, so you have a disability as a protected characteristic, you can't get a job as a fire officer. It has a legitimate aim because the nature of being a fire officer uh into tight spaces into buildings, climb ladders, et cetera, et cetera means you, you must be able bodied. The provisions in the act relating to indirect discrimination do not apply to um pregnancy or maternity. Although a disabled person may be able to bring a claim for direct or indirect discrimination, there's also an additional definition for disability discrimination that being a person, a which a call them a uh discriminate uh discriminates against a disabled person. B if a treats b unfavorably because of something arising in consequence of B's disability, there's no requirement to compare the treatment received by the disabled person with the treatment of others. Unlike when direct discrimination occurs with regard to other protected characteristics, it's possible to justify less favorable treatment if it can be shown to be a proportionate means of achieving a legitimate aim. And I just explain the fire officer approach in relation to that this type of discrimination to occur. The perpetrator must have known or reasonably being expected to have known a disabled person had a disability. Of course, you look in sometimes there and we talk differently about visible disabilities and uh invisible disabilities, for example, uh a disability where someone is tetraplegic because they'll then be wheelchair. It's an obvious disability. Uh And you should be expected to know you can see with your own eyes they are uh or should be considered disabled or uh under the uh act. However, what about someone who has a mental health um issue which is maybe captured by disability discrimination because it is, doesn't meet the definition as a disability under the act. Often mental health issues are not obvious or visible disabilities there. We've got the issue there but should have known reasonably should have known in relation to those sorts of elements. Um Also moving on with prohibited conduct. We've got harassment. Uh harassment occurs when an individual is subject to an uh a specific form of unwanted conduct which has the effect of violating the individual's dignity or creating an intimidating, hostile, degrading, hum humiliating or offensive environment for the individual. The un unwanted conduct itself must relate to a protected characteristic that's except pregnancy and maternity or marriage and civil partnership be of a sexual nature. So, harassment is all about a sexual approach with regards to it. So that's what harassment encompasses be of a sexual nature or related to gender reassignment or sex and resort in less favorable treatment because of the individual's rejection of or submission to the conduct. Um be aware as well. Actually, we just had an update in the uh in the law, but when you watch this film, it may not be particularly a new update. It's November 2024 now and from 26th of October 2024 there's been a change in the law with regards to the operation of the Equality Act. Um It may be that a lot of your textbooks don't cover it and won't cover it for a period of time. But don't forget with the sqe you can be, I mean on anything in which is current Good Law up until four months before your exam. So the chances are if you're watching this video in readiness for uh the sqe, there's a good chance that this new element could be covered. And also arguably because it's new and because it's very important, it may be something that the sqe will want to actually test candidates on because of its uh because it's new, important and you need to be aware of it. So there's a new duty under the Equality Act which requires employers to take reasonable steps to prevent sexual harassment of their employees. So it changes things that there's a duty now to uh anticipate when sexual harassment may occur, to anticipate when it may occur and take reasonable steps to prevent it. So it's all coming down to the employer now being aware of these issues and and actually all thinking about these issues in advance of them occurring. So, prevention issue, um if sexual harassment is taking place, an employer should take action to stop it from happening. And again, this sends a clear signal to all employers that they must take reasonable preventative steps against sexual harassment. Encourage cultural change where necessary and reduce the likelihood of sexual harassment occurring. So the massive obligation on employers there in relation to those preventative measures. So if you've had an individual who's had a complaint made against them for um sexual harassment, the employer obviously has a duty to make sure that does not happen. Again, how do they do that? And thinking about do they just simply utilize that simply gross misconduct and fire individual straight off the bat also, um elements of um preventing it before it happens. A colleague of mine was um talking about an example in work prior to the act coming into this section of the act coming into force whereby one of the members of a team, a young girl and her team had just got engaged and an older male member of the team uh went round to the Oslo table and gave her a hug to congratulate her, that sort of situation as an employer makes you think? Well, could that be considered as unwanted conduct of a sexual nature? Should that have been prevented if we saw that happening? Should it have been prevented if it does happen? Um And you didn't prevent it, should you as an employer say to that individual don't do that again? Um You can't hug someone like that in case they have invited that uh that hug because the risk is you could be accused of sexual harassment, lots of different issues there. But just be aware, said that the change in the uh in the law and then got, so we looked at the protected uh so the prohibited conduct issues, we looked at direct discrimination, indirect discrimination and we looked at harassment and then we got victimization, which is the final one. So victimization occurs where a person subjects another person to a detriment, a disadvantage because they believe that person has done or will do a protected act. And a protected act includes bringing proceedings under the Equality Act, giving evidence or information in proceedings brought in the Equality Act, doing anything that is related to the provisions of the Equality Act alleging that another person has done something in breach of the Equality Act. The victim doesn't need to have a protected characteristic in order to receive protection from victimization. So unlike um the other prohibited conduct, you use direct discrimination, indirect and harassment. Um victimization, you don't have to have a protected characteristic. The whole point of victimization is the ability to have individuals who may have witnessed something um, that they uh are required to give evidence to. They may have witnessed some element of racial or homophobic discrimination, uh or discrimination in relation to sex. And then, um they are required to give evidence at the employment tribunal at uh the county court and their employer treats them less favorably because of that. Now, even though they, they may not have a protected characteristic themselves. Um The act protects them from victimization. The employer can't treat them any less favorably because of their decision to actually give evidence in that case. Or alternatively, even make allegations in relation to someone's breach of equality Act term detriment is not defined under the act. Uh But it really encompass any act which has the effect of putting the individual at a disadvantage or of making the position worse. Um Excuse me, the act also imposes positive duties. It includes a duty to make reasonable adjustments for disabled people, a failure to comply with that duty amounts to discrimination. So arguably, uh and generally, it would be direct discrimination. So a failure to make reasonable adjustments could amount to direct discrimination. It also could amount to direct discrimination as well. Resource steps must be taken to prevent a disabled person being put at a substantial disadvantage. That's the terminology, substantial disadvantage because of a provisional criterion or practice. For example, the practice, very providing information in a standard format, some sort of policy which is only produced in written form when the person uh in question is blind, a physical feature. So he's up on not having wheelchair access, not having phones that are for the heart of hearing. So it is profoundly deaf um or lack of provision of an auxiliary aid as well. Um Substantia is defined as more than minor or trivial. So the threshold is, is therefore relatively low in relation to that due to. So we also have obligations as um service providers. We looked at like the Equality Act with regards to being an employer employee situation. But of course, um we are service providers which basically means that consumers are protected from the Equality Act as well. So the anti discs provisions of the act apply to those providing services to members of the public. Therefore, they apply to us as solicitors and other leg legal service providers. There's no requirement that the provider receive payment for the services. You don't need a contract between the provider of the service and the person who received the service. Therefore, you could be someone who's giving advice um uh pro bono as some sort in some sort of Citizens Advice Bureau, uh whatever it may be, you're still captured uh under the Equality Act. So you just think, just think about that generic terms of service doesn't have to be a paid service service providers will prohibit you from treating service users in certain ways. And a service user will be a client or a prospective client. So it doesn't have to be someone you're dealing with or working with, who has a retainer with. You can be a client who may be someone who has come to you looking to instruct you in relation to a matter. So a system must not discriminate against or victimize a client or prospective clients in respect of terms of service, which includes the terms on which the services are provided as well as not providing the services. It's all. So you can't just take them on, they discriminate in relation to the uh not providing the uh terms uh in some sort of oral. And so our format because the individual is blind or alternatively just refusing to take the uh the client on at all, discriminate against or victimize a client by terminating services provided to a client of prospective clients, discriminate against or victimize a client by subjecting a client to any other detriments or harass a client of prospective clients. The prohibition applies to all the pathetic characteristics except marriage or civil partnership, an age where the individual is under 18 years old. So there's a few, a couple of exceptions there in relation to your obligations as a solicitor under uh the act as a service provider, is this all deemed to have discriminated against a disabled person again, if they fail to make uh fail to comply with their duty to make reasonable adjustments. Uh That duty is owed to disabled people generally and is anticipatory in nature. So only an individual affected by the failure to make adjustments can also uh can make a, a claim. So in essence, that means the firms must adopt a proactive rather than a reactive approach. So for example, a firm of solicitors should uh take resource steps to ensure that a disabled person can access their building. So make provision for wheelchair access, even if they have no disabled clients at that point, and no one has raised an issue about um uh disabled access to the building when assessing whether it's reasonable to expect a so firm to make adjustments. A court will consider factors such as the cost of making the adjustments. And the resources of the firm sisters also have obligations obviously as employees to their um current employees as well as to prospective employees as well. So in relation to prospective employees, it's unlawful to harass a prospective employee. It's also unlawful for a solicitor sorry for an employer to subject a prospective employee to discrimination or victimization, irrespective recruitment arrangements. So for example, um not offering an interview because you have no disabled access to the building and the individual uh is in a wheelchair declined to offer employment or terms of import. So a lot of these elements, when we're thinking about um service users and employers, we're not just looking at service users and people who are clients of the firm. It's perspective when we're looking at the rights as you as an employer, we're not just looking at those people who are employed by you because they have a contract of employment and it's those who are prospective employees, those who are coming or being considered for interview in relation to a role within your firm. Um in relation to employees, employees in law firms are protected. Obviously under the act, employers, uh employers must not subject an employee to harassment and must not discriminate against or victimize an employee. Uh As to the terms of employment in the way, uh it affords access to opportunities for promotion, transfer training or receiving any other benefit facility or service offering a benefit which only is available to women would be seen as being discriminatory in the grounds of sex uh by dismissing the employee or by subjecting the employee to any detriment. Detriment is established. If a reasonable employee would or might take the view that they have been disadvantaged in the circumstances in which they had to work. There is therefore no need for the claim to prove some physical or financial consequences. Again, this is quite a, a big theme here. Um So watch this in relation to your question, you don't need to prove a lot to be able to have the right to bring a claim under the Equality Act. You don't need an element of a financial loss. Unlike a normal, it's a common law claim you'd see with regards to civil obligations. You know, you're thinking about, um, duty breach causation, there's a loss involved there with regards to a tort. You don't need that in relation to a breach and the Equality Act. Um, the exception applies in the employment context, which means that in some instances, discrimination will not be unlawful. The exception applies when an employer is able to demonstrate that because of the nature of the job, only people with a particular protected characteristics are able to do it. So examples uh in relation to the of the common law, a Roman Catholic school, it may be lawful to require stipulation that the head teacher must be a practicing Roman Catholic um barristers obviously are also protected from discriminatory treatment at the hands of the citizens instructing them, watch that I've had and that in practice on occasion where I've had to speak to individuals who are selecting their barristers on the grounds of how attractive they are uh as opposed to their skill set. Um Just be careful in relation to that, that's obviously discriminatory and should be avoided at all costs. You choose the barriers you instruct on the grounds of um capability availability, the CV uh experience uh and utilize that. That's a justifiable reason to instruct your council um making adjustments to employees and prospective employees. Employers must also make reasonable adjustments for disabled employees and prospective employees fail to employ that duty will amount to discrimination. It's important to know that employers as opposed to service providers are only required to make such adjustments where they know or ought to know that an employee is disabled and is likely to suffer a significant disadvantage. This differs in relation to a service provider obligation as opposed to an obligation as an employer. So for example, you as a firm are not obliged to modify workstations. Um in case you end up hiring a disabled employee, the duty to make such adjustments only arises once a disabled person is recruited into the firm. So it's more of a reactive response in relation to your reasonable adjustments. Unlike when you're looking at being a service provider where it's a prospective uh uh uh approach to those sorts of reasonable adjustments, an employer may be held vicariously liable for the unlawful acts of their employees committing the course of employment. You'd have seen that in a video I've done in relation to T A RT. What about other acts uh elements, positive actions of positive discrimination. And so firms may be able to take positive steps uh steps to address an apparent equality issue. Uh The act permits in limited circumstances and situations, positive discrimination. That means in some circumstances, the employer may treat an employee or prospective employee more favorably because they have a protected characteristic. There's no requirement for positive action to be taken instead, the app provides that if such action is taken, it won't be under law. There's no duty saying you have to do it. The act just simply says, but if you do take this approach with regards to po positive discrimination, it won't be considered unlawful under statute, the firm must reasonably think that persons who share a protected characteristic suffer a disadvantage connected to the characteristic or persons who share a protected characteristic have needs different from those who do not share it or participation in an activity by persons who share a particularly uh a protected characteristic is disproportionately low. Awesome. Um The action taken by the firm is a proportionate means of achieving one of the following aims, enabling or encouraging persons who share the protected characteristic to overcome or minimize that disadvantage or meeting those needs or enabling or encouraging persons who share the protected characteristic to participate in that activity. It's the act permits positive action in respect of recruitment and promotion, but only where the person with the relevant characteristic is as qualified as the others. So you can't utilize the fact that you haven't got many um other gay managers in your firm. You can't then utilize this as a way of positive discrimination by then promoting uh a gay individual into the role of management. When there are other individuals who are more qualified that than that individual, you can justify it if they're all equally qualified and therefore you have not many gay marriages. So therefore there's a justification uh by policy discrimination, but it needs to be effective. You can't step them one above when you're looking at the pool of all the individuals, if there is not equal qualification approach. Well, let's have a look at a question in this area then. So Fauzia has been contacted by a work colleague who's making, making a claim for race discrimination under the equality act. This colleague believes Fauzia witnessed various racial slurs whilst they worked together in the same team. They've since moved to work in different teams. Fauzia colleague has advised Fauzia that the matter has been listed before the employment tribunal next month and has asked Fauzia to give evidence at the hearing. Mr Fauzia has advised her to lead team leader about this has requested the time off to attend the tribunal. The team leader has responded and denied Fay's request for time off. The team leader has further stated that if she attends a tribunal to give evidence, she'll be suspended for gross misconduct. Which of the following best reflects a legal position in relation to Fauss. Team leaders conduct. A, the team leader's response is prohibited conduct or will amount to harassment. B the team leader's response is prohibited conduct and will amount to direct discrimination. C the team leader's response is prohibited conduct and will amount to indirect discrimination. C the team leader's response is not prohibited conduct and is lawful either the team leader's response is prohibited conduct and will amount to victimization. Uh Great answer is e victimization occurs when a person subjects another person to a detriment or a disadvantage because they believe that person has done a will do a protected act. And one of those is um giving evidence at um, proceedings that are brought under the Equality Act, which is exactly what FSIA is doing it for the victim doesn't need to have a protected characteristic in order to get the protection under the act. Um It's irrelevant if via has or hasn't got a protected characteristic, that's irrelevant. Completely. The main issue is that she has a protection um under the act due to the elements of victimization in relation to the others. Harassments, as we know, don't forget sexual harassment and also protected characteristic needed. We don't have that situation here, direct and indirect discrimination. Again, you're looking at the protected characteristic. There's nothing evident in the question which suggests that potentially uh Fauzia has uh or uh one of those protected characteristics, it may be that she has, but that isn't relevant to that the circumstances of the question and in relation to the team leaders response being a law, uh being lawful, that's just playing uh playing wrong. Thank you very much.

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Part 9 - Webinar

00:41:11

Hello, my name is Darren Hackley Green and this is film four in a series of films and Legal Systems on the sqe uh this film relates uh in relation to uh money laundering. Let's have a look at the SQE assessment criteria in relation to this area. Very comprehensive, understand the purpose and scope um circumstances encountered in the course of practice as well. Practical situations, the appropriate person body doing suspicion should be reported as well as the proceeds of Crime Act 2002 in relation to what we called direct involvement and net non direct involvement. The two different types of offenses you got up through those uh in turn in the moment as well as due diligence requirements as well. So though um for the proceeds of Crime Act, the statute and of course, uh as part of the security assessment criteria, you're not required to know specific elements of the Statute of Duties and knowing the act itself exists. And that's where the uh offense is related and that's where the consequences are in relation to our profession worth of all knowing the statute, you don't need to know each of the individual sections cos there's different sections, whether it be direct involvement or non direct involvement, you need to know the different offenses themselves, but not specifically section 333 or whatever it may be, right? So, money laundering, uh what is it, what it's um used by criminals to conceal the unlawful source of money or property acquired as a result of criminal activity. The term proceeds of crime refers to the benefits that flow from this criminal activity involves three stages, placement layering and integration. So three stages in relation to money laundering. So first off placement, money from criminal activity is introduced into the financial system, layering, the money passes through a number of parties or transactions to distance it from the criminal activity will affect you the the laundering elements of the money laundering offense and then integration, the money is integrated back into the financial system and the criminal takes possession of the laundered money. So the money laundering regulations, you don't need to know the uh the fault statute. It's very long. Um but we just know it colloquially, the money laundering regulations uh require systems and procedures to be put in place with a view to preventing money laundering or ensuring that such behavior comes to the attention of the appropriate authorities for investigation. The SR A is a supervisor on in respect of anti money laundering under the legislation as a requirement basically for beneficial owners, officers or managers of the firm and sole practitioners to apply to the SR A for approval under the regulations we'll see in a, in a moment acting without approvals of criminal offense and may result in imprisonment a fine or both need to bear in mind. Generally, proceeds of Crime Act. If you don't do what you're meant to do with regards to either direct involvement or non directive involvements, there's a criminal sanction, it depends by the nature of the offense as to what that sanction is generally though what you're looking at is prison time, jail time, as well as a fine as well. In addition to the requirements under the regulations, it's a matter of professional conduct that firms have in place. Uh They have to have in place structures, arrangements, systems and controls and ensure compliance with regulating legislative uh requirements and must identify and manage and monitor material risks to the business. So that's a stipulation by the sr A that's stipulated there in preparation to avoid the element of money laundering. So what are the key duties under the money laundering racks? Firms must uh sorry, f firms must maintain a written risk assessment that identifies and assesses the risk of the firm being used for money laundering. Firms must also establish and maintain policies, controls and procedures to mitigate and manage the money laundering risks identified in the risk assessments. And the firm must have ensured that the staff in question, have access to this information, keeping it on your sort of your um internet or wherever it may be for the staff to be utilized, a copy of the policy being available by every key point in your kitchen. Wherever it may be, the firms must provide staff with appropriate training and money laundering and maintain records of the training staff have undertaken. This is when you see uh a lot of the way most firms every year, we have to go through the obligatory money laundering training and we have to do it. It's a requirement yet, even if it's just literally the same and nothing has changed, which has been the case for a few years now. It's the same training. It helps with that update that you will see later on as well. It avoids the potential of the inadequate training defense being raised by someone saying, well, I wasn't trained in relation to, to this issue, which is why this element of money laundering was allowed to, to happen those resources that identify each of their clients that's known as customer due diligence. Um We'll look at customer due diligence in a moment because there's different types um standard, simplified and enhanced. You need to know the difference between the, the three of them. Um I'd be aware of the acronym CD D as well. It's quite commonly used as customer due diligence. You do see it for SDD, which is a standard due diligence and simplified due diligence. Uh A bit like your your C fa and funding is a conditional fee agreement, but also a contingency fee agreement, same acronym, different things uh and or edd for your enhanced due diligence as well. We'll look at that in a bit more detail at the moment, but that's very important. Firms must also appoint uh an Mlco, a money laundering compliance officer to be responsible for the firm's compliance with the money laundering regulations. Uh But also the firm must appoint a nominated officer. Uh the Mlro, it is a money laundering reporting officer in relation to money laundering. This is really key with regards to this individual and their role and how they interact with you when you're making your reports or suspicions in relation to money laundering. Just be aware Mlr O and that individual, the Mlco and the Mlro can, they, they can be the same person. The idea behind the MLRO is they um receive internal reports of suspicious activity so effectively, if you're, you think something's going on with your clients, you're not sure about the circumstances that you've been asked to, do you make your report internally to your Mlro and then they make the decision as to whether they make what's called a suspicious activity report. Lots of acronyms here, by the way, an SAR suspicious activity report to the National Crime Agency, the NC A. So the MLO uh Mlro makes a decision to make an SAR to the NC A. That's the, the thought process behind it. We'll see how you can avoid obligations for you personally by your reporting duties to the Mlro a bit later. Right. I talked earlier about CD D customer due diligence and this is what we're looking at now. It's a system of checks used by us as solicitors to identify our clients. Just make sure that they, uh they are who we say they are. The verification is required as soon as possible after first contact and must take place before a business relationship is established or a transaction is carried out before they sign the retainer. Um So, and before you start working on their file, make sure you do CD D. Um We must verify a client's identity based on a reliable independent source. What does that mean that passport uh driving license, other forms of official photographic id as well as proof of address as well. We tend to look at photographic id of a type, passport, driving license as well as normally a couple of utility bills to support the elements of proof of address that's normally sufficient for what we're going to see the minute. It's standard due diligence, which is your default position for customer due diligence. So I said standard due diligence, this is the due diligence you have for all of your clients. Uh No matter what, when you don't have suspicions about something, which means enhanced due diligence is recommended or required. That's your usual default position with regards to customer due diligence. And it basically, as I said before, um you check the verify the identity of the clients by the documents I said passport and normally a photographic id along with a couple of utility bills as well to check the the proof of address that's sufficient, the standard due diligence um where you've got a client is a corporate body, then you obtain and verify the name of that company, its company number or such registration, the address of its registered office. And if different its principal place of business, it may also be appropriate in those situations to be dealing with a company to consider whether the person providing the instructions on behalf of the company has authority to do. So that's your standard due diligence. That's what you do in any given case when something different uh doesn't apply the other way I've done it, which is the reverse in a sense is a simplified version of that. So not standard treated it just you do much less, in essence, it's not enhanced at the top end. Um And imagine standard in the middle, simplified is you don't do very much. Um It's permitted whether business relationship or transaction prevents a low risk of money laundering. So looking at there as well known companies, you've just been instructed on behalf of ASDA or or Amazon, wherever it may be in those circumstances, a solicitor committee to adopt what called a simplified approach for due diligence, which is by obtaining confirmation of the company's listing on the Stock Exchange and that is sufficient for due diligence requirements. You'd never have simplified due diligence in relation to individuals. OK. You don't have it verified with regards to a company. So you've got an individual. So the standard due diligence or it's the opposite and it's enhanced um enhanced due due diligence. As the name suggests, it's a more thorough verification process. I use where the risk of money laundering is higher than usual. Um Edd actually involves taking additional steps to verify a client's identity and then this other background ownership, financial situation of the customer themselves and other parties to the transaction. So it's just a lot more that's needed in relation to Edd than there is on standard due diligence. Edd must be applied where the transactional business relationship involves the following. So a person established in a high risk third country. So one that has a deficient anti money laundering regime, there's a list of those you don't need to know the list, but you need to know if there's a risk that it's one of the high risk countries. A transaction is complex or unusually large or there's an unusual pattern of transactions without any apparent economic or legal purpose. So something which actually raises your suspicion, something specific that makes you think this is un unusual. Any other situation that prevents uh sorry presents a higher risk of money laundering for example, not having met the client in person. So how do you identify the the passport that the individual, your client is going to be the person who you are instructing you a politically exposed person. A pe pe p um be aware of this. This is probably quite common, I can merge and reimagine this coming up as a multiple choice question in the exam uh around due diligence. So uh a pep or a family member or known associate of a pep, uh those are all incorporated. So a pep is an individual who is entrusted with prominent public functions, prominent public functions, other than as a middle ranking or junior official. Examples of that members of parliament that this would be a key one for um a, a question in the uh in the exam, you give that to be instructed by a member of parliament in relation to the um a new transaction for the purchase of a property. And you're asked about CD D straight off the bat. What you're looking at is Edd is the way to go if it's an individual. Despite the fact, there's nothing unusual there, the fact that they are a pe p so politically exposed person means you have to undertake enhanced due DVID. Um Members of supreme courts are high level judicial bodies where decisions are not generally subject to further appeal, doesn't mean every judge, obviously, it's where they're not generally subject to further appeal. So your top end courts generally um are important to be aware of. If you've got a judge of the county court district judge circuit judge, you don't have to worry about Edd. Ok. So that's an important distinction. Members of the administrative management or super supervisory bodies of state owned enterprises also be aware as well. It's family members of pets, uh particularly exposed people or persons, family members include parents, spouses, civil partners, Children and the spouses or civil partners of the Children. Um So it's very all encompassing. So you may have a question which actually maybe isn't about the member of parliament being the the the the clients. It's maybe the member of parliament's son or their um wife or whatever it may be, then you think it has to be edd. So it does look, look at that situation when you're looking at a question, I think if you're looking at a question around due diligence and I think if you're given something other than just a normal client, uh client comes in, what do you need to do? Then you need to start looking and thinking. Is this a situation where enhanced due diligence is required uh further requirements in relation to money laundering regulations. So firms are obliged to provide, maintain uh maintain a record of training to their employees in respect of money laundering. So this is I told you they have to give the training but also maintain a record that the training is given to effectively envy every individual undertaken that training and record is kept. So you can identify the individuals who haven't been given that training. And arguably if you're able to identify those, if you should be able to, they shouldn't be on the list, they should be then forced to do the training cos training around money laundering, most of them will be mandatory in order to comply with the regulations. Uh The regulations also specify that employees should be given regular training or how to recognize and deal with transactions that potentially involve money laundering or terrorist financing when no such training is given to you. So I spoke about earlier. This may provide the employee with the defense to some of the offenses under the proceeds of crime out of pocket. But we'll look at that in a bit. Record keeping a firm must keep various records in respect of money laundering and these records must be kept for at least five years from when the business relationship ends or the end of the occasional transaction. Just just mind and just stop there for a second in relation to the record keeping provisions. You're gonna see this in relation to solicitors accounts and other elements. Generally, you'll find that the rule is six years, you need to keep the records for, that tends to be the default position with regards to a lot of different elements. Uh Mainly because they're thinking about uh that's a period of time from which you can bring a claim for breach of contract. Potentially, it's a thought process behind it. Just watch five years in relation to the money laundering requirements. So it's a different period of time um with the appropriate person to receive reports. So where a system knows or suspects money launderer activity, we look at the different offenses in relation to know or suspect and what that means in a moment. Uh The system must make a report to the MLRO. It's important the obligation is you have no choice, you have to do it. Ok. So if you know or suspect, we'll look at the definition of know or suspect in a moment. And then what happens is the obligation is on the Mlro uh the money laundering reporting officer, they then make the decision. Do we make uh uh do I make an SAR suspicious activity report to the National Crime Agency? The SAR uh SAR must be submitted to the NC A where the nominated officer knows or suspects money laundering activity. So, um when do you need to make them? So, reports concerning money laundering must be made as soon as it's practicable and to discharge your legal obligations. Solicitors and nominated officers via ML R OS are required to make a report disclosure as soon as practicable. Once they suspect money laundering activity as soon as practicable, there's no firm um guidelines there, but that's the, the duty of the onus on both the solicitor to report it to the Mlro and the Mlro to report it as an SAR to the NC A I mentioned about the proceeds of Crime Act. This is where the offenses are kept, it shortened a pocket. Uh I think it more likely than not. You're gonna have the full um, statute set out within any question for sqe um creation of this um statute. You got a number of offenses in relation to that are listed. Um Throughout the um statute, we're looking at a division between direct involvement and non direct involvement. So that's what we need to think about. When you come to a question. If you've got a question about money laundering, then you need to think in your own mind, divide it up between direct involvement and non direct involvement and what that means with regard to the elements of defenses and sentencing at a later stage. And of course, direct involvement are those where the defendants are different in a lot of situations will be you as a solicitor if there's an issue uh with regard to your assistance with the money laundering, where you're actually involved in the money laundering activity. So you are the one who has transferred the criminal property, transferred the money from woman to another. That's your direct involvement. You've taken that step. Non direct involvement. Uh offenses deal with a failure to respond appropriately to possible money laundering activities. You haven't reported it as soon as practicable or you haven't, you should have identified the risk of money laundering but did nothing about it. Those sort of issues in turn, right. What we got? First off, we've got three offenses under each so direct involvement and non direct involvement. So let's turn first to the three offenses under direct involvement. Um I put down the sections here just to identify them as to distinguish them from each other. You don't need to know the section uh in relation to the SQE exam. But I think it's just easier cos it's helpful to refer to show differentiation between these different um offenses. So three, we need to be aware of. So first one, a solicitor commits an offense if they conceal disguise, convert or transfer criminal property or remove it from the UK, criminal property. Important to be aware of what the definition is in relation to that, of course, criminal property. That definition goes across the whole of the statute and in, in relation to all of the offenses, it's not determined. Uh It's not the definition of that doesn't change a bit on what section you're prosecuted under. Um definition includes not only the stolen property itself but also the profits made from the original crime. And this is the main money laundering offense. One where you a concealed disguise will convert, remove it from the UK. That's the correct act of money laundering. Um There's a potential for solicitors to fall foul of this provision because the purpose of many transactions conducted by us as solicitors is to convert. So for example, money into property or we transfer, for example, money or ownership between the um between parties, it's a big risk there. And of course, in relation to that, there are some types of work which have a bigger risk than, than others property transactions, things like that have such a larger amount of risk than you would say. For example, a personal injury claim. Second offense is section 3 to 8. So a solicitor commits an offense if they enter into or become concerned in an arrangement which they know or suspect facilitates the acquisition, retention, use or control of criminal property by or on behalf of another person. Um And the conviction under here is 14 years under section 328. So know or suspect um threshold for the mental element of that offense is therefore suspicion. It's a subjective um test case law establishes that all that is required is suspicion that uh that there is a possibility which is more than fancied for. So it's a bit of a uh a low um bar there threshold in relation to that you have uh in relation to section 3 to 8. Um some defenses and a lot of these defenses draw through a lot of the different um uh offenses under the act. Um Importantly, we've got this authorized disclosure um defense. So the making of an authorized disclosure is available as a defense. So the disclosure must be made by the person who, but for the disclosure would be committing an offense. So in order to be authorized disclosure must satisfy certain requirements as its timing and the person to whom it must be made. So in relation to solicitors, in most cases, the person appointed by the firm as the MLRO to disclosure should be made. In essence, there is your defense as a solicitor, I reported it to my Mlro, what more than you expect of me? Ok. So there, that's what you're gonna look for. So you gotta think of you, you as a solicitor, your core obligation in relation to that is reported at the change of the appropriate individual in your firm. And we know that has to be your LRRO because every firm has an appointed MLR, it's then the MLR OS responsibility to report concerns to the National Crime Agency that we've seen before with these sus suspicious activity reports, these SAR S uh although they risk a criminal offense if they fail to report where there were reasonable grounds to suspect money laundering, we'll look at elements of disclosure in a moment um in relation to the elements of the disclosure of uh these uh the, the money laundering activity, uh manary defense, it could come at any time so it could come prior to during the course of or after the prohibited actuary have to look at those interns, just think about authorized disclosure and utility that defense user solicitor core elements. And don't forget, as soon as you ely practicable is the test there, but it may be the fact that you are identify something as a risk to money laundering before the event happens. Great authorized disclosure. You tell your mlro, it's maybe in the course of the, the transaction itself, tell your mrrmlro it could be after the events and then you realize or begin to know or suspect it, but that's what you're looking at there. We'll look at these in turn with regards to timings. So before the act takes place, a solicitor doesn't commit um uh an offense if they make an authorized disclosure to the firm's Ml Ro as soon as practicably possible prior to the transaction taking place and then the consent of the nominated officer or the NC A is obtained. So for example, users solicitor have concerns go to Mmlro. They say don't worry about it. You're good to go just crack on. They make the judgment call in relation to that or alternatively, the MLO may actually report it to the NCNC A National Crime Agency. It's a different process then. So once they um make a suspicious activity report because not every report to the MLRO from a solicitor results in a uh an S A R. Could they consider matters? Yes. Thank you for reporting it. Don't worry, it's all good for whatever reason. But if they do um the MLR, if they do think it's time to make a suspicious activity report, then they'll do so. Um and then they are unable to give consent to you as a solicitor to carry on with the transaction until one of three conditions has been met. So that those are that the nominated officer receives the consent of the NC A. So the ML Ro makes the report, the SAR to the NC A and the SAANC A says crack on with it, the transaction, you're good to go and then the Mlro can tell you and off, you go and you go and do it. The nominated officer. He has nothing for seven working days starting with the first working day after the disclosure is made. So there's no response to the SAR. Then the Ml Ro is permitted then to authorize that transaction to carry on where consent is refused by the NC A. The nominated officer may not give consent unless starting the day. Refusal is given a period of 31 days has expired from the date of refusal. So if the NC A says no, do not carry up with this transaction, then the M LRO is not allowed to authorize it until that period of time has expired and once that period of time has expired, then they can authorize a transaction to proceed. Um What about the next one is disclosure during the course of the prohibited act. This was before it is during the course of a system may seek to make an authorized disclosure whilst the prohibited act is ongoing. But when the solicitor began to do that act, they did not know or suspect that the property constituted or represented, represented a person's benefit from criminal conduct. And the disclosure is made as soon as practicable after the soor first knows or suspects that the property constitutes or represents a person's benefit from criminal conduct. And the disclosure is made on the solicits own initiative proper, that's in relation to that. OK. So if prior to the transaction taking place, you then have know or suspect something and you've got uh you all there could be money laundering, then you crack on with the transaction and during the course of the transaction, then you make your report that's not defense. OK? You can't get away with it that way, ok? Your no or um reason or suspicion is before you do it. So therefore you shouldn't have done it, ok? You can't get away with actually doing it and then just go in at that stage. So at the point when you're actually begin this transaction, there's no no or reasonable suspicion in relation to the transaction itself. What's also important in relation to this one where it's actually during the course of and also um after the event. And so um cooperates both is it has to be on your own initiative. The solicitor's own initiative. You can't actually be nudged by your paralegal and say he should be doing that. Do you think he should be doing that? Shall I report to LRO? You might as well off, you go and do it. Um You're not gonna be able to rely on the defense. The fact is it's about your obligation, your suspicion, your knowledge, and therefore you are the one with the respon responsibility and needs to be making that report. So just be aware of that distinction. Um So when it comes up during the course of the transaction, and then of course, what we have is after the transaction as well as well. So, um the system may seek to make an authorized disclosure after the prohibited act has been completed, you sent the money transferred the property. Um But however, you must have a good reason for your failure to disclose prior to completing the act. Um And again, the disclosure must be made as soon as practicable and again, uh upon the solicitors own initiative, dealt with own initiative as soon as practicable after you've done it. OK. We, we know that um a good reason for failure to disclose prior to completing the act. Again, what you're looking at is that, you know, or suspect is that element of the subjective subjective test in relation to that you're fine with regards to the authorized disclosure defense. Um easy if you do it before the transaction bit of a higher threshold in relation to during the course off or after the event, it's much more difficult to rely upon because of those other elements to bear in mind that um the third offense um for direct involvement section 329, a sister commits an offense if they acquire use or have possession of criminal property. Again, this is 14 years in prison. The provision is generally used to prosecute those prosecute those who have had no involvement with the original crime but have enjoyed the benefit of the same. It's an example of that in practice what you need, where a solicitor receives money, the cost for work carried out um for a client charged with a criminal offense and there's a possibility the money in questions criminal property, that's a little bit difficult, isn't it? Imagine you're a solicitor and you've been instructed by a client who's been charged with a money laundering offense. So effectively how you get paid, there's gonna be that suspicion that the funds are related potentially to the proceeds of crime. Obviously, you have to assume you're quite as innocent of in all due court. Um However, when it comes to that sort of element um uh under section 32, to know there's an extra defense with regards to that and the defense is an adequate consideration defense. So the idea is in relation to this, where that example, you've got a client who's been charged with some sort of money laundering offense and fraud offense. Um, and then there's a l there's a strong possibility that, that money you've been, uh, that's being used to pay, you could be the proceeds of crime as long as, um, what you're being paid is adequate compared to the work you do. Then that is a defense so effectively, because always it would mean you wouldn't be able to act, act for any clients under, in relation to that sort of situation. So the idea is that, um, the fees must be reasonable. Uh, otherwise the defense is not available. So for argument's sake, if you usually charge out a rate of 200 pound per hour, but then we've got this, um, clients for this money laundering defense and you decide to up the rate to 750 quid an hour and you're reaping the benefits of that, that would be, uh, an offense under the, uh, under the act and you wouldn't be able to upon the reasonable, um, adequate consideration defense or you're looking at your rate is only 200 quid an hour and you're bidding for the time you've done or if you're doing a fixed fee normally and the fixed fee doesn't change, that's ok, you're entitled to, then obviously bill and get paid. And in essence, not worry too much about the fact that where those monies have come from, which are being utilized to settle your, uh, your bill. Um, we also have these non-direct involvement uh offenses. Three again, main offenses targeted really at the action or inaction of someone who becomes aware of possible money laundering. So the 1st 133 th sorry, 330 straight here to disclose information about money laundering to the appropriate authorities. Uh Again, five years uh in uh in prison for that one, the purpose behind that offense is to ensure that information about suspected money laundering is passed to the authorities promptly. So a proper investigation can be carried out. So you may not be involved arguably in the direct involvement in relation to transferring the money is in your firm for the purchase of the property. Uh but it may be the fact that you haven't disclosed that. So maybe you're assisting on a file for the partner in the firm as a qualified solicitor and something by area where the nature of the transactions makes you aware and suspicious. You're not the one partaking, authorizing those transactions or doing them. It's the partner in charge. However, the risk for you as a solicitor is that you may be caught by the non-direct involvement um offenses because you failed to actually report it. The obligation there is where you're aware of a suspicion. You need to do think about it. You need to act upon that purpose been of course. So a proper investigation can be taken by the relevant authorities. Um a person commits an offense if they know or suspect would have reasonable grounds to know or suspect that person is engaged in money laundering. Um I said the word in the offense, incorporation is not or suspect. However, in this uh non direct involvement offense, the addition of the words all has reasonable grounds to know or suspect, that basically means a solicitor will commit the offense where they generally did not know or suspect that the person was engaged. OK. The test is objective unlike the know or suspect uh test in relation to direct involvement where it's subjective, this is objective. So no, that is based on no reasonable grounds. So you can't rely upon stupidity uh in or uh ignorance as a defense in relation to non direct involvement. Excuse me, the court will consider based on the information available to the solicitor at the time, whether they should have known or at least suspected that money laundering was occurring. All obviously going on with regards to the nature of the offense the information comes from and of course, are a business in a regulated sector. So this happens while at work, the information may assist in identifying the money launderer or the location of a laundered property. And they do not make a as soon as practicable. Just be aware in relation to timescales under the whole of poca the proceeds of crime Act as soon as practicable, just uh get that sort of timescale firm in your own mind. That's the requirement there in relation to when you need to report it by, if the, and of course, that's fact based in, in, in any of the circumstances. Um, if the disclosure is made to the firm's Mlro or the NC A as soon as practically be possible, then no offense will be committed the same way the go to authorized disclosure defense. Yeah. So your duty, your job, uh, whether it's direct involvement or non direct involvement, pass it into the hands of your mlro and wash your hands of it. Then you've done what you need to do as this will not commit this offense where they intended to make a disclosure but have a reasonable excuse for not doing so, um, there's no definition of a reason excuse for not doing so, I can't think of one, in relation to that. I suppose it could be the fact that you, uh, you realize at seven o'clock at night as you're leaving the office and you have a suspicion they got knocked down by a bus and your comatose for a few months, that's a reasonable excuse because you're physically unable to do so. Um, there may be other personal circumstances, give a reasonable excuse. But I, even though that is there as a justification, I think it'd be a hard job to actually find a reasonable excuse when you have a suspicion for inactivity in all honesty. Also, it's not necessary for the money laundering to have actually occurred for that offense to be committed. So like we at the uh the uh direct involvement where about, you know, you make the authorized disclosure before it happens during or after in a case of one of the non-direct involvement offenses. The, so the transaction need not be occurred. We've all been in the, in the process of, of, of occurring could be the thing that it looks like it's gonna happen And therefore there's your suspicion. You think this transaction, if it goes ahead, I'm a mortgage, that's an element of money laundering. What about defenses? You've got the adequate training defense, I've talked about this earlier. So an employee will not commit an offense if they do not know or suspect that grant is engaged in money laundering. There are reasonable grounds to suspect that they were uh and the employer has not received proper training, just sub uh this objective test in relation to non direct involvement where uh that you can't get away with the uh reasonable grounds to suspect the reasonable grounds. Suspect you can get away with that one if you haven't had training. No, as it's called the adequate training defense. That's why uh the regulations always stipulate the fact that firms have to have this regular mandatory training. It means that no uh individual obviously can rely upon this defense, but also they are aware of their obligations to report for non direct involvement. And that's important here. Um in relation to legal professional privilege. A solicitor is under a duty a common law to keep confidential certain information given to them uh from clients that's referred to legal referred to as legal professional privilege. We can see this in dispute resolution and in the disclosure um films, legal professional privilege cannot be relied upon whether communication takes place with the purpose of carrying out an offense or furthering a criminal purpose. So for example, money laundering, you can't um fall back on the fact that you know, your uh clients solicitor privilege in essence, in relation to what's going on because as a justification for not doing anything that doesn't work in these situations because I've, I obviously the idea about prevention of crime must trump the obligation you have in relation to privilege. Um Section 331, a second offense with non-direct involvement, failure on the part of a firm's Mlro to disclose information about money laundering to the appropriate authorities. So, uh the Mlro will commit an offense if they know or suspect or have reasonable grounds to know or suspect. The same test as the first offense viewed an individual uh as a, as a consequence of their role as the Mlro and failed to make the necessary disclosure to the NC A. As soon as practicable, the Nomadic nominated officer will have an offense if they have a reasonable excuse for not disclosing information. So the second offense and non direct involvement just is aimed at the mlro. So the reports made to them and they haven't done it for a specific reason. Again, regional excuse uh defense could come up there. Um But of course, the important thing is um no or suspect of regional grounds to know or suspect it's a bit of a high duty on them because of course, if a solicitor has actually for the uh for the non-direct involvement, reported it to them that straight off should actually ring alarm bells and it needs to be fully investigated in relation to the concerns involved there. Uh We also have the offense of tipping off in section 333 A um where it's where a tip of officer or an individual uh is told an investigation is underway on going in relation to money laundering. So a person convicted of that offense can have an unlimited fine up to two years in prison. So tipping off basically refers to the idea of um alerting someone to suspected money laundering or an associate to the fact that an investigation has started or is anticipated. So if I do even the fact that a report has been made by a solicitor to the MLR Ro is enough to um uh be an offense under this section of tipping off. Uh There's no requirement to show that tipping off is intended to alert the money launderer. It just be an element of negligence in saying, you know, in not considering the consequences of what you've done, uh, or of course, intending to prejudice any investigation. But obviously, those are more serious elements of tipping off. There would be a higher sentence in relation to that as opposed to the accidental ones where they weren't done intentionally two aspects to tipping off. So disclosing a disclosing a disclosure. So it's an offense to disclose to any person that a relevant disclosure has been made to the Mlro or money laundering. Um, if that disclosure is likely to prejudice any investigation that follows such a report. So, tipping off telling the individual that you've made a report to your mlro, um, disclosing the investigation offenses Committee where a disclosure is made to any person that the investigation into allegations that an offense has been committed is being carried out or is being contemplated, that disclosure is likely to prejudice the money laundering investigation. So, in essence, um, it incorporates elements of when you know, something's going on, an investigation is underway or turn it incorporates the element where you've just made a report that report may result in no action being taken by the mlro. However, you may still um, fork foul of the tipping off, um, uh, offense under this non-direct involvement section, there are defenses in relation to tipping off. So, um, if the person may, who made the disclosure did not know or suspect the disclosure or prejudice an investigation into money laundering, that's, uh, a defense, uh, did not know or suspect again, know or suspect subjective as opposed to objective approach. Um This may cover a situation where, for example, a solicitor informs a client about an investigation, believing the client will fully cooperated with the authorities. That's a little bit ignorant, but that is an example that's given. Um It's also a defensive disclosure is made by an advisor to their clients for the purposes of dissuading the client from engaging in the alleged money laundering. He's trying to persuade the client not to do it ahead of it being done. Um That is a potential defense in relation to tipping off as well. So what about the role of the SR A in all of this? Um Obviously a solicitor is shown to have a direct involvement in money laundering. Uh You're gonna be a breach of Principle four in relation to acting with honesty, also principle five, acting with integrity. Uh Also really looking at breaches of principle two in relation to the uh upholding rule of law and administration of justice or two principal term relations. That act in a way befits the role of a solicitor as the public would expect. Uh In essence, you've got lots of problems with the S R A if you uh find yourself foul of the money laundering regulations and pocket in all honesty. Uh And you're likely if you are um convicted for an offense under the poet or even if you're actually charged it raises suspicion. Um Then you're gonna face disciplinary proceedings by the um, by the sr A don't get under paragraph six word review, the code of conduct, uh, solicitors are required to keep confidential the affairs of clients unless the disclosure is required or authorized, permitted by law, uh, disclosure under Pocker Braces of Crime Act will not breach that duty as it's required or permitted by law. So therefore, you know, this issues with regards to you as a solicitor reporting up to your NLRO and the fact you actually we made that you can't just lie back on the fact I didn't do it because I've got to keep my, my client's information confidential. And I'm not allowed to, to make this report. Don't get away with that because on the exceptions to breach and client confidentiality, it's permitted authorized by law and that, that's the situation when it comes to Pocker and what Pocker says, we got to your obligations to report, right. Let's have a look at the question in this area then. So working for a law firm is approached by a prospective clients but wants to establish a business relationship with the firm. The client needs advice and services in connection with divorce proceedings. So we know they're an individual which of the following best describes the solicitor's obligations in respect to CD D customer due diligence note as well. The use of the acronym there as opposed to the forwards and a the system may verify the client's identity, applying the firm's standard CD D measures B, the system must verify the client's identity, applying simplified due diligence measures. C the system must verify the client's identity, applying EDD measures. Look at again the acronyms being used enhanced due diligence. D the system will need to verify the client's identity. If the solicitor suspects money laundering and either the system must verify the client's identity, applying the firm's standard CD D measures. E it's a correct answer note, the subtle difference between A&E and you will have this in uh your exam. So just watch out for it, they look identical in, in uh with regards to what they say, they largely are very, very similar subtle difference. A system may verify the which is correct answering system must verify the client's identity, applying the standard uh CV D measures must, is always where you have to do it. There's no may about it. Um simplified due diligence doesn't apply. It's not a company, established company. It's an individual. We know it's an individual because it refers to divorce proceedings. There's nothing in the circumstances which would um justify Edd enhance due diligence. You're not given any information about the client being a politically exposed person. A P family member of the same, which would make you think Edd uh and D this will need to verify the client's identity if they suspect money laundering. No, no, no, no, no. You identify the the client at the first stage before you undertake a business relationship with them, that's the core elements required. Thank you very much.

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SQE prep course

Instructor

Fauzia Abrahams

Fauzia Abrahams

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Fauzia is an experienced law lecturer with over 25 years of experience, specialising in Wills and Administration of Estates, Trusts, and Equity. Fauzia has been dedicated to legal education for most of her career, and is currently teaching at Brightlink Learning, where she prepares students for the Solicitor's Qualifying Exam (SQE) and CILEX courses. Alongside her academic role, Fauzia works in legal practice, helping clients plan their estates to minimise future tax liabilities. Her responsibilities include meeting clients and drafting wills, trust instruments, and lasting powers of attorney for them. In addition to her teaching and legal practice, Fauzia is currently training as a Public Notary, further expanding her qualifications and expertise. With a strong commitment to both education and client advocacy, Fauzia blends practical experience with academic rigor, offering valuable insights to both students and clients.

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