FLK2 - 100 - Mock A - Part 2

Question 1

In spontaneous situations, how can an accomplice successfully withdraw from an offence?

Answer 1

If they take clear and unequivocal steps to distance themselves from the offence.

Question 2

What does the principle established in R v Geddes state about liability for attempts?

Answer 2

That liability for an attempt requires actions that go beyond mere preparation.

Question 3

When is involuntary intoxication only a defence?

Answer 3

If it prevents the defendant from forming the required mens rea.

Question 4

Does involuntary intoxication excuse criminal liability if the defendant forms the required intent?

Answer 4

No

Question 5

When does the special householder defence (s.76) apply?

Answer 5

Only to the protection of oneself or others within a dwelling, and it does NOT extend to the defence of property alone.

Question 6

What does unlawful act manslaughter require?

Answer 6

A positive intentional unlawful act that is both dangerous and criminal.

Question 7

Can omissions constitute unlawful act manslaughter?

Answer 7

No, an omission, even if it leads to death, cannot satisfy the requirement.

Question 8

What is the mens rea required for assault occasioning ABH (s.47)?

Answer 8

It is sufficient to show the mens read for the base offence of assault or battery (intention or recklessness as to applying unlawful force).

The prosecution need not prove that the defendant intended to cause ABH.

Question 9

Can failing to disclose all medical issues for an insurance policy amount to fraud?

Answer 9

Yes, if this failure to disclose was done dishonestly to make a gain for themselves.

s.3 Fraud Act provides that a failure to disclose any information that a person is legally obligated to provide can satisfy the actus reus.

Question 10

Would smearing paint on a wall constitute criminal damage?

Answer 10

Yes, as damage includes any action that impairs the value or usefulness of property, even if no structural harm occurs.

Question 11

When is a person guilty of aggravated criminal damage?

Answer 11

1. Destroy or damage property (including their own)
2. Act intending to destroy or damage property (or being reckless)
3. By the damage, they endanger the life of another person.

Question 12

When is a delay in notifying someone of a suspect’s detention permitted?

Answer 12

For indictable offences and if there are reasonable grounds for delaying the notification i.e. preventing interference with evidence.

Question 13

Under PACE, how long can a delay extend up to after the suspect’s arrival at the police station?

Answer 13

36 hours

Question 14

Under PACE Code D, is a joint video identification permissible?

Answer 14

Yes if the two suspects have roughly similar appearances.

Question 15

If there is a joint video identification procedure, how many people must appear in total?

Answer 15

12 other people, who resemble the suspects, with the two suspects.

Question 16

What is the minimum number of people that must be included in a video identification procedure?

Answer 16

8 people.

Question 17

What must the police not do to obtain a confession?

Answer 17

Must not use any inducements, promises, or threats.

Such confessions are unreliable and inadmissible.

Question 18

What is the procedure for further bail applications after an initial refusal?

Answer 18

At the first hearing after bail is refused, the court must consider any argument as to fact or law advanced by the defence, but at subsequent hearings, arguments previously considered need not be heard unless there is a change in circumstances.

Question 19

What may the court do if the defendant breaches bail conditions?

Answer 19

Under section 7(5) of the Bail Act 1976, the court must determine whether one of the criteria for remand applies.

If it does, they can remand in custody or grant bail with the same or stricter conditions.

Question 20

Does a crown court case impact the process for determining eligibility for legal aid?

Answer 20

Yes, the merits test is automatically met for Crown Court cases, but the defendant must still pass the means test to qualify for a representation order.

Question 21

What is the process for disclosure? (Criminal Litigation)

Answer 21

The prosecution first discloses unused material, the defence provides a defence statement, and the prosecution reviews the statement for any further relevant unused material to disclose (secondary disclosure).

Question 22

When can an adverse inference from silence during police questioning be drawn?

Answer 22

Only if the defendant later relies on a fact at trial which they failed to mention when questioned.

Question 23

Who bears the burden of proof to establish that a witness is unfit, and what is the standard of proof?

Answer 23

The Crown bears the burden of proving beyond reasonable doubt that the witness is unfit to testify.

Question 24

When is a spouse or civil partner comepellable in cases involving an alleged assault?

Answer 24

If the victim is under the age of 16.

Question 25

When would consecutive sentences be appropriate?

Answer 25

Where offences are committed on separate occasions, involve different victims, and demonstrate a clear pattern of distinct criminal behaviour.

Question 26

When can a grave crime committed by a youth be sent to the Crown Court?

Answer 26

If the youth court concludes that the offence is so serious that a custodial sentence exceeding 2 years is likely.

Question 27

What is the key test for distinguishing a lease and a licence?

Answer 27

Exclusive possession.

Question 28

Under the principles of privity of contract applicable to leases granted before the Landlord and Tenant (Covenants) Act 1995, would a landlord be liable for the burden of covenants in the lease?

Answer 28

The original landlord remains liable for the burden of covenants in the lease even after they assign the reversion to a new landlord.

Question 29

When may a landlord be released from covenants upon assignment under the Landlord and Tenant (Covenants) Act 1995?

Answer 29

A landlord of a new lease can be released from future liabilities upon assignment of the reversion, if certain conditions are met: * The landlord must serve notice of the assignment on the tenant. * The tenant has four weeks to object. * If the tenant does not object, or their objection is invalid, the landlord is released from future liabilities. Note: The landlord remains liable for any liabilities accrued before the assignment.

Question 30

Under s.78 LPA, when is the benefit of a restrictive covenant deemed to run with the land?

Answer 30

Automatically unless a contrary intention is expressed.

Question 31

When does an easement of necessity arise?

Answer 31

Only when access to the dominant tenement is absolutely essential, and there is no other reasonable means of access, either legal or physical. So, if a viable alternative exists, even if inconvenient, the argument for an easement by necessity fails.

Question 32

Are prescriptive easements capable of being legal interests?

Answer 32

Yes, if they are in use and meet the following conditions: * Either obvious on a reasonably careful inspection, within actual knowledge, or used within the last year They can override a registered disposition despite not being registered.

Question 33

What happens to a sublease if a headlease is forfeited?

Answer 33

If the sublease is dependent on the headlease then it automatically terminates. But... s.146(4) provides a remedy for subtenants by allowing them to apply for relief from forfeiture.

Question 34

What remedy does s.146(4) provide subtenants for relief from forfeiture?

Answer 34

The court can either: * Vest the forfeited headlease in the subtenant, effectively allowing them to step into the shoes of the former head tenant, or * Grant a new lease to the subtenant on terms the court deems equitable.

Question 35

When may an equitable interest qualify as an overriding interest? And would the use of the property for commercial purposes impact its protection?

Answer 35

Equitable interests under a trust can qualify as overriding interests if the holder is in actual occupation at the time of disposition and meets the statutory requirements. Actual occupation can extend to commercial use if the occupation is apparent on a reasonable inspection of the property. Visible signs of use, such as tools, equipment, and the presence of employees are sufficient to establish actual occupation.

Question 36

Why would a puisne mortgage that has not been registered not bind the buyer of an unregistered property?

Answer 36

A puisne mortgage must be registered as a Class C(i) land charge to bind a subsequent purchaser. If it is not registered, the buyer is not bound.

Question 37

What duty does a lender have when securing a sale over a property?

Answer 37

The lender has a duty to act in good faith and exercise reasonable care to secure the best price reasonably obtainable in the prevailing market conditions. | s.103 LPA 1925

Question 38

Where are indemnity covenants located?

Answer 38

The Proprietorship Register of the Seller's title, as indemnity covenants must be noted there under the Land Registration Rules 2003.

Question 39

When may a positive covenant pass with title to subsequent owners?

Answer 39

If there is an indemnity covenant in the title or transfer document. Note: Positive covenants do not automatically pass with title without one.

Question 40

What may a manhole on the property indicate? And what effect may it have?

Answer 40

A public sewer. A manhole could then limit the landowners ability to extend or build over the affected area without the water authority's consent.

Question 41

What is the standard practice a seller should take for a potential planning breach of 2 years?

Answer 41

As the time limit for enforcement is traditionally 4 years, it has now been changed to 10 years (Note: this cannot be applied retrospectively), so to protect themselves the seller should obtain indemnity insurance to protect the prospective buyer from any potential enforcement action.

Question 42

What is the Law Soceity's Formula C designed for?

Answer 42

Chain transactions.

Question 43

In a property chain, who typically initiates the exchange process?

Answer 43

The buyer at the bottom of the chain initiates the exchange process under the Law Society's Formula C.

Question 44

What pre-exchange steps should the seller's solicitor take?

Answer 44

Respond to all pre-contract enquiries, confirm that the seller has signed the contract, ensure replies are accurate and reflect the seller’s instructions, and agree on the completion date with the buyer’s solicitor.

Question 45

What title guarantee would a seller give if selling a property as part of the probate process?

Answer 45

Limited title guarantee, as they may not have full knowledge of all matters affecting the property prior to their appointment. Limited title guarantee ensures that the seller has not personally created or allowed any encumbrances on the property but does not extend to prior issues that may have existed.

Question 46

What constitutes the requirement in the lTA 1954 for using a property for business purposes?

Answer 46

S.23 of the LTA 1954 defines "business" broadly to include any trade, profession, or employment, as well as activities carried out by bodies of persons, whether corporate or unincorporate. This includes non-commercial ventures e.g. a non-profit sports club. Note: the tenant must have exclusive use of the property to satisfy the requirement for business purposes.

Question 47

When must a section 25 notice be served?

Answer 47

Any time before the lease expiry but with 6-12 months notice.

Question 48

If the tenant wants to contest a section 25 notice, what must they do?

Answer 48

They must apply to court before the termination date specified in the notice.

Question 49

What must the landlord demonstrate to justify a refusal of a new lease under s.30(1)(a)?

Answer 49

The landlord must demonstrate persistent breaches of covenant, not a single or isolated breach. A one-off missed payment, particularly if remedied, will not suffice.

Question 50

Under s.37 LTA, how is compensation calculated (for the tenant)?

Answer 50

The amount of compensation is based on the rateable value of the premises and is doubled if the tenant or their predecessors have carried on the same business for at least 14 years.

Question 51

Why may a client ledger be debited?

Answer 51

To reflect the client's debt to the firm.

Question 52

Why may proft and VAT accounts be credited?

Answer 52

To record income earned and VAT liability.

Question 53

What does the "certainty of beneficial interest" require when the trust is created?

Answer 53

That each beneficiary's share is either defined or ascertainable at the time time the trust is created. As such, a trust would fail if the beneficial interest depended on a choice that could not be exercised i.e. *"I declare that the estate is to be held on trust for my children in such shares as I consider fair in the future."*

Question 54

How must a disposition of an existing equitable interest be evidenced?

Answer 54

In writing and signed by the person disposing of the interest or their agent.

Question 55

Would a verbal assignment, i.e. a gift, meet the statutory requirements (re equitable interest)?

Answer 55

No - without written evidence, the equitable interest remains with the original beneficiary.

Question 55

What is a donatio mortis causa?

Answer 55

A gift made by a person in contemplation of impending death, (i.e. deathbed gift). When the donor dies, the subject-matter of the gift does not pass to the PR but to the person the deceased intended to benefit.

Question 56

What 4 elements are required to qualify for a donatio mortis causa?

Answer 56

1. The gift must be made by the donor in contemplation of the donor's impending death. 2. The gift must be contingent on the donor dying. 3. The donor must part with the gift or deliver it in some way to the donee. 4. The subject-matter of the gift must be capable of being given away in this manner.

Question 57

Would a trust to erect a monument fulfil the legal requirements for a non-charitable purpose trust?

Answer 57

Yes, as a trust for the erection of monuments are one of the exceptions listed to the general rule that purpose trusts are void. But it must comply with the perpetuity rules.

Question 58

Do the principles of presumed resulting trusts apply beyond real property to personal property?

Answer 58

Yes.

Question 59

What is the legal test for dishonest assistance?

Answer 59

Objective test. I.e. Asking whether an ordinary honest person, with the same experience and knowledge of the facts as the defendant, would have acted differently.

Question 60

Must an advancement of trust funds be repaid if the beneficiary dies before their contingent interest is vested?

Answer 60

No. Once an advancement is lawfully made it is final and does not require repayment, even if the beneficiary dies before their contingent interest vests.

Question 61

Is there a minimum age requirement to witness a will?

Answer 61

No, but they must understand the significance of their role.

Question 62

If a will cannot be located, what is presumed?

Answer 62

It is presumed to have been destroyed by the testator with the intent to revoke it. Note: this can be rebutted with evidence showing accidental loss or continued intention for the will to stand.

Question 63

When is there no requirement to file IHT or apply for a grant of probate?

Answer 63

For estates valued at below £5,000

Question 64

What implication does staple marks on a will or codicil have?

Answer 64

It raises suspicions at the probate registry, as they may suggest alterations. As such, the registry will require evidence (e.g. affidavit) to explain the marks and confirm no tampering.

Question 65

If a will is silent on who bears the burden of IHT, what is the default rule?

Answer 65

IHT is payable from the residue of the estate. As such, pecuniary legacies are paid in full to the name beneficiaries.

Question 66

What is the time limit for making a claim under IPFDA? | Inheritance (Provision for Family and Dependants) Act 1975

Answer 66

6 months from the date of the grant of probate or letters of administration.

Question 67

During the administration period of an estate, what are PR's responsible for paying?

Answer 67

Any income tax on the income that an estate generates.

Question 68

What is the PR's liability to Income Tax during the administration period? (i.e. rates)

Answer 68

PRs are not entitled to a personal allowance, and income is taxed at a flat rate of 20% for most income, 8.75% for dividends, and there is no higher rate.

Question 69

Can trustees invest in property if the trust instrument i.e. will is silent on this matter?

Answer 69

Yes, the trustees have the power to invest in land as long as it is within the UK.