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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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What are the Food Safety and Hygiene ( England) Regulations 2013 Known as FSH( E) R 2013 and cited as SI 2013/2996, these regulations apply only in England and took effect on 31 December 2013. All action to enforce food safety and food hygiene is undertaken under these provisions. The Food Standard Agency ( FSA) works alongside local authorities and Port Health Authorities when issues arise or breaches of the rules are suspected. Their overall effectiveness is also reviewed using general feedback provided by industry and by enforcement authorities on a continuing general basis......
This Practice Note explains what the Financial Conduct Authority ( FCA) is, why it might execute a raid, the scope of its powers, and what happens if you do not co-operate during a raid. What is the FCA? The FCA supervises financial services firms operating in the United Kingdom that provide services to consumers. It also works to preserve the integrity of the United Kingdom’s financial markets. The FCA concentrates on overseeing firms across the retail and the wholesale financial services sectors. The Prudential Regulation Authority ( PRA) regulates PRA-authorised firms (principally deposit takers, designated investment firms and insurers). The FCA further has an Enforcement Department that employs a broad suite of criminal, civil and regulatory powers to protect consumers and to take action against firms or individuals that fail to meet the FCA’s standards. What is a dawn raid? A dawn raid is an...
Preliminary steps Before taking any action, reflect on: what incident has triggered suspicion of corporate fraud? what is the monetary effect on the business—what loss has been suffered? when did the loss arise and by what means? who can be held accountable for the loss? is there material indicating the involvement of the individual concerned? Taking early steps to identify and protect privileged material Identify at the outset which documents might attract legal professional privilege ( LPP). Refer to Practice Notes: Legal professional privilege in criminal proceedings; Maintaining privilege during criminal investigations; and Section 2 notices requiring production of documents. For multinational groups, also consult Practice Note: Issues of privilege in cross-border criminal investigations. Indicators of fraud Certain behaviours can signal fraud within a business. If internal misconduct is suspected in relation to a person or team, assess: is there a...
Confiscation proceedings Confiscation proceedings oblige the court to identify the benefit figure, the recoverable amount and the available amount for a defendant who has gained from their criminality. The benefit represents the worth of what the defendant obtained through their wrongdoing. The recoverable amount ordinarily mirrors the defendant’s benefit. As a general rule, the court directs the defendant to pay a sum equal to that benefit unless they demonstrate that their available amount is lower than the benefit. In that event, the recoverable amount becomes the available amount. The available amount is the sum the court will order the defendant to pay towards meeting the recoverable amount, failing which they risk imprisonment in default. For illustration, a defendant might have stolen £1,000 and then lost it all gambling. That £1,000 remains their benefit. After it has been gambled away, however, the...
The old law and the new law of rape This Practice Note refers to both the former and the current law on rape. The earlier regime is split into three eras, determined by the date the offence occurred: 1 January 1957 to 21 December 1976: governed by section 1 of the Sexual Offences Act 1956 ( SOA 1956), later amended by the Sexual Offences Act 1967 in relation to homosexual acts 22 December 1976 to 2 November 1994: covered by section 1 of the Sexual Offences ( Amendment) Act 1976 ( SO( A) A 1976) 3 November 1994 to 30 April 2004: subject to SOA 1956, section 1, as modified by the Criminal Justice and Public Order Act 1994 ( CJPOA 1994) The new framework applies from 1 May 2004 onwards, capturing offences under section 1 of the Sexual Offences Act 2003 ( SOA 2003). Despite this, the...
ARCHIVED : This Practice Note has been archived and is no longer maintained. It set out full details of the Corporate Enforcement Policy announced by US Deputy Attorney General Rod Rosenstein concerning the US Foreign Corrupt Practices Act of 1977 ( FCPA 1977), as it stood before February 2025 and before the February 2025 Executive Order that halted all enquiries and prosecutions under the Foreign Corrupt Practices Act ( FCPA), and ahead of the subsequent release of the May 2025 enforcement memorandum and the updated DOJ guidance on FCPA investigations and enforcement in June 2025. For more detail, consult the DOJ Memorandum: Focus, Fairness and Efficiency in the Fight Against White‑ Collar Crime, the DOJ FCPA Guidelines, and the following News Analyses: Foreign countries have strong foundation to fill FCPA void; DOJ signals major shift in white collar enforcement priorities; and Feds reboot FCPA agenda with...
This Practice Note explores in detail how restraint orders, confiscation proceedings and compensation orders are deployed in private prosecutions. Restraint orders in private prosecution proceedings For an overarching guide to the operation, mechanics and effect of restraint orders in general, see: Restraint and confiscation—overview. A restraint order operates to freeze property and to preserve a defendant’s assets so that they remain available to meet any confiscation order imposed following a successful prosecution and conviction. For further background, see Practice Note: Restraint orders— What is a restraint order? Applications seeking restraint orders are made in the Crown Court under the Proceeds of Crime Act 2002 ( POCA 2002) and can be pursued before any arrest has occurred and/or before proceedings have commenced (commonly described as pre-charge restraint orders), or later within an investigation or prosecution, including post conviction. POCA 2002, s 40 identifies five...
ARCHIVED: This Practice Note has been archived and is not maintained. The law relating to confiscation prior to the Proceeds of Crime Act 2002 ( POCA 2002) A confiscation order is imposed after conviction to strip a defendant of the gains obtained through criminal conduct. It requires the defendant to pay a sum reflecting the value of that criminal benefit. If the sum is not paid voluntarily, enforcement proceeds by one of two routes: the magistrates' court enforces the order as if it were a fine; or the prosecutor applies to the High Court for the appointment of a receiver. The order does not target any particular asset, nor does it immediately divest the defendant, or anyone else, of title to property. For enforcement purposes, it is treated in the same way as a fine requiring payment of...
Environmental guidelines The Sentencing Council ( SC) issues offence-specific sentencing guidelines for magistrates’ courts and the Crown Courts in England and Wales covering the unauthorised or harmful deposit, treatment or disposal of waste, unlawful discharges to air, water and land, and other environmental offences (the environmental guidelines). They identify the pertinent aggravating and mitigating features of serious environmental offending that courts should weigh when passing sentence. For detailed guidance on sentencing environmental offences, see Practice Notes: Sentencing organisations for environmental offences and Sentencing individuals for environmental offences. These environmental offences guidelines are bolstered by the SC’s General guideline—overarching principles, expressly designed to be used alongside offence specific guidelines and providing expanded explanations of aggravating and mitigating factors (see Practice Note: Sentencing Council General Guideline—overarching principles— Using the General Guideline in conjunction with offence specific guidelines). Those features, together with judicial indications of relevant...
ARCHIVED: This archived Practice Note serves as a practical and comprehensive working guide to the law of corruption in the UK prior to the Bribery Act 2010 ( BA 2010) taking effect. It sets out the position under the pre‑ BA 2010 framework, which comprises the following: the common law offence of bribery the Public Bodies Corrupt Practices Act 1889 ( PBCPA 1889) the Prevention of Corruption Act 1906 ( PCA 1906) and the Prevention of Corruption Act 1916 ( PCA 1916) Collectively, these instruments are described as the pre‑ BA 2010 regime, which is the expression adopted for the remainder of this Practice Note and used consistently. The Note explores that regime and considers its practical implications for both individuals and businesses in practice. To aid those advising on the practicalities of prosecuting and defending...
This Practice Note outlines the pre-action protocols, citing the Practice Direction Pre- Action Conduct and Protocols ( Practice Direction), and provides a summary of the particular pre-action protocols that may apply to your dispute. It gives guidance on interpreting and applying the relevant CPR provisions. Depending on the court in which your matter is progressing, you may also need to consider further provisions—see below. For details on: the reforms proposed by the Civil Justice Council following its review of the pre-action protocols, and any related developments discussed at subsequent Civil Procedure Rule Committee and Online Procedure Rules Committee meetings—see: Pre-action protocols—overview the importance of alternative dispute resolution ( ADR)—see: ADR and dispute resolution clauses—overview and Mediation—overview developments concerning online dispute resolution—see: Starting and managing online claims—overview general guidance on commencing a claim—see: Starting a claim or...
This Practice Note provides high-level guidance on engaging with the National Crime Agency ( NCA). It describes the NCA’s role, powers and strategy, its statutory objectives and current priorities, and what it expects from private sector organisations, including self-reporting. Role and powers Role The NCA is the UK’s lead law enforcement body for organised crime, including cyber and economic crime, that crosses regional and international boundaries. Its workforce of over 5,000 officers is stationed across the UK and in key locations worldwide. Created by the Crime and Courts Act 2013, it succeeded the Serious Organised Crime Agency. A core feature of the NCA’s approach is collaboration and co-ordination with partners such as the Serious Fraud Office, HM Revenue and Customs, Immigration Enforcement, Border Force and the police, alongside strong engagement with the private sector. The NCA undertakes a broad spectrum of law...
This Practice Note sets out UK sanctions frameworks, covering regimes established under the Sanctions and Anti- Money Laundering Act 2018, the Anti- Terrorism, Crime and Security Act 2001 ( ACSA 2001), and the Export Control Order 2008 ( SI 2008/3231). Where relevant, it highlights the equivalent EU sanctions regime and points to useful further reading for each UK regime. It does not include details of designations within individual regimes. If an individual, organisation or other legal entity is designated under a UK sanctions regime (a designated person), their name appears on the UK Sanctions List ( UKSL). The UKSL assists businesses and individuals in fulfilling their responsibilities under the various regimes, and regular screening of the UKSL should be embedded in an internal sanctions compliance programme. A sanctions regime is a set of sanctions measures introduced for particular purposes. Regimes can be: ...
This Practice Note outlines the key principal themes and practical considerations when contesting private prosecutions in practice. It should be read together with Practice Note: Bringing a private prosecution—practical considerations, which provides a practical guide to initiating a private prosecution in practice. Routes to defending private prosecutions The right to commence a private prosecution is an important one in law, and many such cases will be properly brought and overseen by the prosecutor from the outset. If that is not so, the defence has a number of avenues open to it to effectively and robustly challenge the proceedings. Many of these mirror those available in public prosecutions; however, certain aspects are specific to private prosecutions......
The Sentencing Council ( SC) The Sentencing Council ( SC) issues offence-specific sentencing guidance for use by magistrates’ courts and the Crown Court in England and Wales. Under section 59 of the Sentencing Act 2020 ( SA 2020) (the Sentencing Code), courts in England and Wales are required to apply these guidelines when sentencing individuals for health and safety offences, unless doing so would be contrary to the interests of justice. The guidelines do not extend to Scotland or Northern Ireland, though courts in those jurisdictions may refer to them to assist their sentencing function. See Practice Note: Sentencing health and safety cases in Scotland. The SC has released offence-specific guidelines for courts sentencing individuals for breaches of the Health and Safety at Work etc Act 1974 ( HSWA 1974) and for breaches of health and safety regulations. HSWA 1974 and the Health & Safety...
The questions and issues below should be front of mind for an environmental lawyer managing an environmental incident and any prospective investigation. This Practice Note should be read together with Practice Note: Conducting an investigation into environmental crime. Initial considerations Does the organisation’s environmental policy or permit prescribe the steps to follow when an incident occurs? Is there a designated incident response team to assemble, and have they been notified? Is there a clear chain of command for obtaining instructions on how to handle the incident response? Does the Board, or an appropriately constituted Board sub-committee, oversee the environmental officer’s work and any investigation report? Are they the ‘client’ for legal advice purposes? To preserve legal privilege, ensure third party professionals, including environmental consultants and lawyers, receive instructions from the ‘client’ group. Anyone not strictly within the client should secure the...
The immediate aftermath of an incident Whatever the event, the first priority is, naturally, to deal with any medical needs of injured people, ringing the emergency services where appropriate. You must also assess any ongoing, immediate risks to the safety of everyone on site, addressing any remaining hazards. This could, for example, mean clearing and evacuating the site as a precaution. The contractor—typically the site manager or the person with responsibility for the site at the time—must make sure the site’s emergency response plan is implemented in a way that fits the circumstances and is communicated to relevant personnel. Efforts should be made, where feasible and safe to do so, to protect the scene and to ensure that all items and equipment that might hold evidential value remain untouched. That said, it is permissible to interfere with the scene if others’ welfare is...
Overview of onshored and preserved EU-derived law post- IP completion day This brief guide sets out high-level details of the steps taken under the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) to onshore Regulation ( EU) 596/2014 ( OJ L 173/1) (the EU Market Abuse Regulation). The main instrument used under EU( W) A 2018 to bring the EU Market Abuse Regulation into UK law was the Market Abuse ( Amendment) ( EU Exit) Regulations 2019, SI 2019/310 (the Market Abuse Exit Regulations), made on 18 February 2019. The Market Abuse Exit Regulations have been further amended by: Gibraltar ( Miscellaneous Amendments) ( EU Exit) Regulations 2019, SI 2019/680; Financial Services ( Electronic Money, Payment Services and Miscellaneous Amendments) ( EU Exit) Regulations 2019, SI 2019/1212; and Financial Services and Economic and Monetary Policy ( Consequential Amendments) ( EU Exit)...
ARCHIVED: This Practice Note is archived and no longer updated. It examines the impact of Brexit on consumer protection, reflecting developments up to 6 January 2021. For information on the effect of IP completion day on consumer protection, and for developments in this area, see Practice Note: What does IP completion day mean for consumer protection? The Note explores Brexit’s implications for consumer protection, with particular regard to regulating business-to-consumer ( B2C) contracts and trading conduct, as well as enforcement and consumer remedies. It also addresses enforcement mechanisms and the avenues of redress open to consumers. Consumer protection law in the UK stems in part from EU law and in part from domestic UK law. In many respects, the immediate effects of Brexit have been muted in consumer protection, given the EU’s regulatory fragmentation and the fact that EU Member States routinely navigate bespoke...
What type of police could I encounter? The police generally investigate most offences across the UK on a day-to-day basis. Policing is arranged by location and, in some cases, by the nature of the suspected offence or circumstance. The City of London Police are a specialist force for the ‘square mile’ in London, with a dedicated economic crime and fraud unit based there. The Metropolitan Police Service, often called ‘the Met’, is the territorial force for Greater London, excluding the City’s ‘square mile’ area. Beyond these, county constabularies operate throughout the UK, alongside other specialist forces in certain major urban centres and conurbations. All of these forces possess the same powers and tools when it comes to executing search warrants, across their jurisdictions, in practice as needed. Main reasons for a police raid Police may enter premises either with a warrant or without one,...
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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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