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This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the
This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or
The offence of causing grievous bodily harm with intent Wounding or causing grievous bodily harm (GBH) with intent can be tried solely in the Crown Court on indictment. Elements of the offence Under the Offences against the Person Act 1861 (OATPA 1861), the prosecution must establish that the defendant unlawfully and maliciously: wounded with the intention of causing GBH, or caused GBH with that intention, or wounded intending to resist or prevent the lawful arrest or detention of any person, or caused GBH intending to resist or prevent the lawful arrest or detention of any person ‘Unlawfully’ and ‘maliciously’ Unlawfully The wounding or causing of GBH must be unlawful. Such conduct may be lawful if used: in self-defence in defence of another in defence of property for the prevention of crime where the victim gave express or implied consent For further information on these defences, see below:
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This Practice Note sets out an explanation of the powers of the Scottish criminal courts to impose sentence following conviction. For an introduction to the structure and operation of the Scottish criminal justice process, see Practice Note: The investigation and prosecution of criminal offences in Scotland. For guidance on the approach the Scottish courts adopt to sentencing corporate criminal/regulatory offences, see Practice Note: Sentencing corporate criminal offences in Scotland. High Court The most serious corporate cases are prosecuted in the High Court of Justiciary ( High Court). Under solemn procedure, a judge and jury try the case, as noted above. See Practice Notes: Solemn procedure in Scottish criminal proceedings and Trials under the Scottish solemn procedure. As a trial court, its jurisdiction extends across the whole of Scotland (and, on occasion, beyond) in respect of all crimes unless excluded by statute. It holds...
ARCHIVED: This archived Practice Note considered the key legal developments during 2025 for corporate crime practitioners in Scotland This Practice Note sets out the principal legal developments expected to affect Scottish corporate crime lawyers in 2025 and beyond, and also condenses the changes that have already occurred during 2025. For a UK-wide overview of anticipated developments for corporate crime practitioners in 2025, refer to our E& W Practice Note: Corporate Crime horizon scanner—2025 [ Archived]. Key primary legislation Updates on the passage of government Bills through the UK Parliament of interest to corporate crime practitioners are available in Practice Note: Corporate Crime bills tracker—2025 [ Archived]. This tracker is intended to help corporate crime lawyers in Scotland remain up to date with relevant Acts of the Scottish Parliament and Bills currently being considered by the Scottish...
In Scotland, organisations and individuals must comply with certain UK-wide reporting obligations, including those in section 330 of the Proceeds of Crime Act 2002 ( POCA 2002). For further detail, see Practice Notes: Money laundering offences under the Proceeds of Crime Act 2002— The principal money laundering offences and Authorised disclosure, protected disclosure and appropriate consent. This Practice Note addresses the distinct Scottish reporting obligations created by the Criminal Justice and Licensing ( Scotland) Act 2010 ( CJL( S) A 2010), namely the obligation to report particular predicate offences under that act. Predicate offences The duty outlined below (see Failure to report certain offences) is triggered where there is knowledge or suspicion of offences contrary to CJL( S) A 2010, ss 28, 29, 30. Under CJL( S) A 2010, s 28, a person commits an offence by agreeing with at least one other to act...
This Practice Note provides an overview of the investigation and prosecution of criminal offences in Scotland Related practice notes you may find useful include: The investigation and prosecution of financial crime in Scotland—outlines the principal law enforcement and prosecutorial bodies engaged in this sphere and considers how they work together and with equivalent organisations operating elsewhere in the UK Prosecution process for health and safety cases in Scotland—offers guidance on investigations into health and safety incidents in Scotland and the procedural steps for prosecuting such offences Comparison of criminal fraud in Scotland with England and Wales—provides guidance on the investigation and prosecution of criminal fraud The system for investigating and prosecuting crime in Scotland is presently governed by the common law and by statute. The Criminal Procedure ( Scotland) Act 1995 ( CP( S) A 1995) sets out the rules directing how criminal cases progress through the...
This Practice Note outlines the principal tax evasion offences in Scotland, which are: Fraudulent evasion of value added tax (section 72 of the Value Added Tax Act 1994 ( VATA 1994)) Fraudulent evasion of income tax (section 106A of the Taxes Management Act 1970 ( TMA 1970)) Fraudulent evasion of national insurance contributions (section 114 of the Social Security Administration Act 1992 ( SSAA 1992)) Failure to prevent facilitation of UK tax evasion (section 45 of the Criminal Finances Act 2017 ( CFA 2017)) Failure to prevent facilitation of foreign tax evasion ( CFA 2017, s 46) For a high-level guide to the law enforcement bodies and prosecutors in Scotland responsible for investigating and prosecuting financial crime, see Practice Note: The investigation and prosecution of financial crime in Scotland, which also examines how these agencies interact with other...
This Practice Note looks at: the challenges sanctions may create for lending transactions key facility agreement terms to consider in a sanctions context the approach to sanctions of the Loan Market Association ( LMA) and the Loan Syndications and Trading Association ( LSTA) the effects of the EU Blocking Regulation Conflict in Ukraine Focus on sanctions has intensified following additional measures introduced in response to the conflict in Ukraine. We have issued the Practice Note: Sanctions— FAQ for banking & finance lawyers, which examines those measures and the potential effects on finance transactions and loan agreements. It also includes links to detailed material. See also the Financial sanctions collection featuring Practice Notes, news and trackers. The remainder of this Practice Note considers more general points when drafting sanctions provisions in loan agreements. Where can I find information on financial sanctions? Our Financial sanctions collection is a...
Sanctions designations are a principal tool through which the UN, the UK and the EU restrict the conduct of individuals and entities linked to threats to international peace, security, or other stated objectives. Once a person is listed, measures—most often asset freezes and curbs on providing funds or economic resources—apply automatically. In the UK, ministers are empowered to create and operate sanctions regimes under the Sanctions and Anti- Money Laundering Act 2018 ( SAMLA 2018). Internationally, the UN Security Council identifies targets via its listing procedures, while the EU adopts both UN-mandated and EU‑autonomous measures using its own legislative processes. This Practice Note outlines how designations work across these systems, the consequences for those subject to restrictions, and the routes available to challenge or seek removal from a list. For information about SAMLA 2018, see Practice Notes:...
STOP PRESS: On 19 June 2025 the Data ( Use and Access) Bill secured Royal Assent, was enacted as the Data ( Use and Access) Act 2025 ( DUAA 2025), and took partial effect immediately. Provisions dealing with, among other things, handling data subject access requests and granting powers to make further regulations commenced on 19 June 2025. Measures relating to Information Commissioner notices and elements of law enforcement processing started on 19 August 2025, two months after Royal Assent. Most of the Act still awaits commencement via additional statutory instruments. Parts 5 and 6 update elements of UK data protection and e Privacy law, touching the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR), the Data Protection Act 2018, and the Privacy and Electronic Communications ( EC Directive) Regulations 2003, SI 2003/2426. Most Part 5 measures are...
What are the key offences relating to the sale of knives? Section 141 of the Criminal Justice Act 1988 ( CJA 1988) bans the sale of specified offensive weapons, which encompasses certain knives. The CJA 1988 also sets out a discrete offence covering the sale of knives and related articles to those under 18. That offence, contained in CJA 1988, s 141A, is summary only. Sections 38, 39, 40 and 42 of the Offensive Weapons Act 2019 ( OWA 2019) establish separate offences concerning the delivery of bladed products to residential premises, as well as the delivery of bladed products and bladed articles to persons under 18. The Knives Act 1997 ( KA 1997) creates two additional offences addressing the unlawful marketing and publication of knives. These offences, under KA 1997, ss 1 and 2, are triable either in the magistrates’ court or the Crown Court. For...
Why were the rules on rehabilitation of offenders changed? The Rehabilitation of Offenders Act 1974 ( ROA 1974) was enacted to aid reintegration into work for people who have reformed. ROA 1974 treats a rehabilitated person as though they had neither committed the offence nor been charged, prosecuted, convicted or sentenced for it, meaning they need not disclose a spent caution or conviction. Chapter 8 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ( LASPO 2012) revised ROA 1974, adjusting its scope and the rehabilitation timeframes it sets. Reforms commencing on 10 March 2014, under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ( Commencement No 9, Saving Provision and Specification of Commencement Date) Order 2014, SI 2014/423, altered how certain rehabilitation periods are determined so they more closely mirror the seriousness of the sentences...
ARCHIVED: This archived Practice Note is not being maintained. Repeal and transitional provisions Risk of Sexual Harm Orders are now superseded by (a) sexual harm prevention orders ( SHPOs) and (b) sexual risk orders ( SROs). This follows the repeal of sections 123–129 of the Sexual Offences Act 2003 ( SOA 2003) by the Anti-social Behaviour, Crime and Policing Act 2014 ( ABCPA 2014). Refer to Practice Notes: Sexual harm prevention orders and Sexual risk orders. Practitioners should be aware of the saving and transitional provisions: the repeal or alteration of SOA 2003, ss 123–129 (by ABCPA 2014) does not apply to: any application for a risk of sexual harm order lodged before 8 March 2015 any extant order (whether granted before or after 8 March 2015) that was applied for prior to 8 March 2015, or any step taken in...
While the Investigatory Powers Act 2016 ( IPA 2016) largely superseded the Regulation of Investigatory Powers Act 2000 ( RIPA 2000), the Part III provisions of RIPA 2000—dealing with the ability of public bodies to issue notices requiring the decryption of encrypted information or the provision of decryption keys—remain in effect, albeit as modified by the IPA 2016. For further details on the IPA 2016, see Practice Note: The regulation of intelligence gathering—an introductory guide... Investigation of encrypted electronic data RIPA 2000, Pt III governs investigations by a public authority into electronic data protected by encryption. The statutory scheme is supplemented by a Code of Practice, which is admissible in evidence in both criminal and civil proceedings. A wide range of methods enable businesses, individuals and criminals to secure and protect their electronic data and to maintain the privacy of their electronic...
ARCHIVED: This Practice Note has been archived and is not maintained. As of 27 June 2018, the provisions in the Regulation of Investigatory Powers Act 2000 ( RIPA 2000) dealing with unlawful interception of communications data were repealed and superseded by Parts 1 and 2 of the Investigatory Powers Act 2016 ( IPA 2016). This change abolished the offences of unlawful interception in RIPA 2000, s 1, replacing them with offences of unlawful interception and unauthorised disclosures under IPA 2016, ss 3 and 59. For guidance on the framework governing interception of communications under the IPA 2016, see Practice Note: Interception of communications under the Investigatory Powers Act 2016. For an overview of the background and scope of the IPA 2016, see Practice Note: The regulation of intelligence gathering—an introductory guide. If an interception offence occurred prior to 27 June 2018,...
Offence of re-using company name without permission The Insolvency Act 1986 ( IA 1986) curtails the re-use of a company’s name for five years where, in the year leading up to insolvency, any director or shadow director of the insolvent company becomes involved with the successor entity (see Who is caught by the restriction?). A director must not participate in a business that adopts the identical legal or trading name, or a name so alike as to imply a link with the earlier company, unless an exception applies (see Scope of restriction). Importantly, this curb is imposed on the individual rather than the company itself, as there are numerous innocent or practical reasons why different companies may carry the same or a comparable name. Under IA 1986, s 216, breaching this curb constitutes a criminal offence, and section 217 is aimed at removing the...
This Practice Note sets out how to seek an order to retain items taken during a search, under section 59(5) of the Criminal Justice and Police Act 2001 ( CJPA 2001) and the Criminal Procedure Rules 2025 ( Crim PR 2025), SI 2025/909, and the grounds for bringing such an application. It also outlines how an opposing party may contest the application and resist the order. For guidance on lawful seizure routes—whether under warrant, under PACE 1984 and CJPA 2001, or with the owner’s consent—and on the procedure for seeking a warrant, see Practice Notes: Seizure and retention of property and Obtaining and executing a search warrant under PACE 1984. For material on search and seizure warrants under the Proceeds of Crime Act 2002 ( POCA 2002), consult Practice Note: Search and seizure warrants under section 352 of POCA 2002. When can an...
Reviewed by Professor Richard Macrory The Regulatory Enforcement and Sanctions Act 2008 ( RESA 2008) empowered regulators to address offences through six civil sanctions rather than pursuing prosecution. In 2010, the Environment Agency ( EA) and Natural England ( NE) received these powers for specified environmental breaches. In 2015, the regime widened when the EA was authorised to accept enforcement undertakings for environmental permitting offences. The Environmental Civil Sanctions ( England) Order 2010, SI 2010/1157 applies in England, and the Environmental Civil Sanctions ( Wales) Order 2010, SI 2010/1821 applies in Wales. In both, Schedule 5 sets out which sanctions are available for each offence. The EA commenced using its powers on 4 January 2011. NE began exercising its powers from 3 January 2012. From 1 April 2013, Natural Resources Wales ( NRW) assumed responsibility for enforcing environmental civil sanctions in Wales. The...
What is the HSE? The Health and Safety Executive ( HSE) is the Great Britain-wide regulator for health and safety at work. Its purpose is to stop fatalities, injury and ill-health in workplaces across Great Britain. It also seeks to protect others, including the public, who might be affected by work activities. To meet these aims, the HSE deploys a range of approaches, including permission and licensing regimes, inspections and investigations, carried out by the regulator and its inspectors. What is a dawn raid? A dawn raid is an unannounced attendance by authorities at named premises to enter and search those premises without prior notice. Main reasons for an HSE raid HSE inspectors hold broad powers to investigate incidents involving non-compliance with health and safety law. They act to enforce the law when breaches, hazards or serious risks are found and identified. The HSE says it is guided by its...
ARCHIVED: This Practice Note is archived and no longer updated. Alongside the civil/regulatory approach to market abuse, the Financial Services and Markets Act 2000 ( FSMA 2000) previously contained two criminal offences for making misleading statements and engaging in misleading practices under FSMA 2000, s 397. These offences were revoked by s 95 of the Financial Services Act 2012 ( FSA 2012). That said, FSMA 2000, s 397 still applies to offences committed before the FSA 2012 came into force on 1 April 2013; conduct after that date is brought under the offences set out in FSA 2012, ss 89–91. For an outline of the civil/regulatory market abuse regime prior to the introduction of Market Abuse Regulation ( EU) 596/2014, see Practice Note: Market Abuse—pre Market Abuse Regulation. For details on the Market Abuse Regulation, see Practice Notes: Market Abuse Regulation (...
Reopening final determinations of the Court of Appeal Criminal Division The Criminal Division of the Court of Appeal retains, in exceptional circumstances, an inherent authority to revisit a prior decision finally disposing of appeal proceedings ( R v Yasain). In Yasain, the court observed that the Civil Division had long exercised an implied power to reopen a concluded appeal, and it recognised an equivalent implicit power for the Criminal Division. Illustratively, in R v Powell, that Yasain jurisdiction was invoked in relation to a confiscation order appeal. There, all sides accepted that the realisable assets figure had been wrongly calculated, and efforts to cure the problem by obtaining a certificate of inadequacy had failed. The Court concluded that sufficient time, effort and public resources had already been devoted to correcting the mistake. By contrast, in R v Hockey, another...
This Practice Note outlines the provisions of the Renters’ Rights Act 2025 ( RRA 2025) on imposing and recovering financial penalties for breaches of discrimination rules, rent requirements, landlord redress scheme duties and the private rented sector database. It also explains the widened scope of liability for offences relating to houses in multiple occupation and selective licensing, identifies who may receive improvement notices, and summarises local housing authorities’ enforcement duties and their investigatory powers to enter premises and seize documents. For more detail, see Practice Note: Renters’ Rights Act 2025—key provisions and The Renters’ Rights Act 2025—landlords’ duties, penalties and offences. Commencement For guidance on when provisions of the RRA 2025 take effect, see Practice Note: Renters’ Rights Act 2025—key provisions— Commencement. Also see: Practice Note: Renters’ Rights Act 2025—legislation tracker Ministry of Housing, Communities and Local Government ( MHCLG) roadmap:...
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When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
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