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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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The criminal offences The Protection of Children Act 1978 ( PCA 1978), the Criminal Justice Act 1988 ( CJA 1988) and the Coroners and Justice Act 2009 ( CJA 2009) set the framework governing the creation, possession, publication and distribution of indecent images of children. the taking, creation, permitting the making or taking, possessing with a view to distributing, publishing or causing publication, and distributing or showing of indecent images of children ( PCA 1978, s 1(1)) the possession of an indecent photograph of a child ( CJA 1988, s 160) the possession of prohibited images of children ( CJA 2009, s 62) This Practice Note concentrates chiefly on the offences arising under the PCA 1978. For information on the offence of possession of indecent images of children under CJA 1988, see Practice Note: Possession of indecent photographs of a child and...
under the Serious Organised Crime and Police Act 2005 The Serious Organised Crime and Police Act 2005 ( SOCPA 2005), alongside the Sentencing Act 2020 ( SA 2020), sets out a statutory framework for conferring immunity in specified, defined situations. Under SOCPA 2005, ss 71–72 there are provisions for: agreements not to prosecute an individual under an immunity notice ( SOCPA 2005, s 71), and agreements preventing certain evidence being used against an individual under a restricted use undertaking ( SOCPA 2005, s 72) There is also a statutory mechanism to reduce a defendant’s sentence under SA 2020, s 74 when they have provided relevant assistance to the authorities. In addition, the common law ‘text’ regime remains in continuing use, enabling the police or another authority to send a confidential letter, via the prosecution, to the court briefly outlining any assistance the offender has...
These offences are handled under criminal law. They clearly differ from civil penalties which, in the immigration context, are financial sanctions imposed by the Home Office when applying laws or rules. This Practice Note outlines several of the principal categories of immigration offence in brief. For further guidance on offences connected to illegal working, consult Practice Notes: Illegal workers—civil and criminal sanctions and Illegal working: dealing with a criminal allegation. Sources of law relevant to immigration offences Many immigration-related offences can be found across the statute books......
Securing compliance with Part I of the Health and Safety at Work etc Act 1974 ( HSWA 1974) is frequently achieved by serving statutory Improvement Notices and Prohibition Notices. Inspectors appointed under HSWA 1974, s 19(1), may issue such notices. This is one of several tools available to enforcing authorities (as defined in HSWA 1974, ss 18(7)(a) and 53(1)), with other responses ranging from informal guidance to prosecution. See Practice Note: Powers of health and safety inspectors under the Health and Safety at Work etc. Act 1974. This Practice Note outlines the key features of Improvement Notices and Prohibition Notices, the consequences they entail and the ways they can be challenged. The main features of Improvement Notices Improvement Notices are addressed in HSWA 1974, s 21. An Improvement Notice requires the addressee to remedy a breach of the ‘relevant statutory...
This Practice Note explains the prosecutions policy of the Health and Safety Executive ( HSE) in England, Wales and Scotland. In England and Wales, HSE may bring criminal proceedings for breaches of health and safety law; it determines whether a case should be taken and brings prosecutions before the criminal courts. While the same policy governs Scotland, charging decisions rest with the Crown Office and Procurator Fiscal Service ( COPFS), with HSE submitting recommendations to COPFS in accordance with the enforcement approach set out in this Practice Note. For guidance on enforcement of health and safety contraventions in Scotland, see Practice Notes: Health and safety investigations in Scotland and Prosecution process for health and safety cases in Scotland. For further material on duties created by health and safety law, methods of enforcement, prosecution of contraventions, and potential sentences on conviction, consult the Health and safety...
After a suspect is detained and questioned under caution at a police station, the police may decide immediately, there and then, to charge them with an offence. Section 38 of the Police and Criminal Evidence Act 1984 ( PACE 1984) allows bail to be refused once a suspect has been charged, provided specified grounds apply. If bail is not granted, the suspect will be kept in police custody and brought before the local magistrates’ court as soon as is practicable, and in any event no later than the first court sitting after they have been charged. For information about when bail can be denied, see Practice Note: Police bail— Post-charge bail. It is therefore vital for legal representatives to make submissions to the custody officer, who makes the decision on post-charge police bail at the police station. This Practice Note outlines how to...
ARCHIVED: This Practice Note is archived and is not being actively updated at present. For further material on FCA investigations, please refer to relevant Practice Notes: FCA enforcement essentials—investigations; FCA and PRA search and seizure powers and dawn raids; and Offences during an FCA investigation. The Financial Conduct Authority ( FCA) carries a broad remit, encompassing the power to secure adherence to its rules and competition law so as to achieve its strategic and operational aims. For further detail, see Practice Notes: FCA—corporate governance and Financial Conduct Authority—functions. The FCA can deploy an array of powers for this purpose, including regulatory, disciplinary, civil and criminal enforcement tools. For additional guidance, see Practice Note: FCA enforcement essentials—investigations— The FCA’s Toolkit. This Practice Note offers a primer on the FCA’s criminal enforcement investigatory powers. For comprehensive guidance, consult the FCA and PRA...
ARCHIVED : This Practice Note has been archived and is no longer kept up to date; please see Practice Note: Money Laundering Regulations 2017 ( MLRs)— FCA supervision of cryptoasset firms, Annex 1 financial institutions, MSB/ TCSP activities. It explores the risks posed by cryptoassets from the angles of financial crime, money laundering and terrorist financing. It assesses how and why cryptoassets can be vulnerable to, and enable, criminality, and how regulators have addressed these perceived risks. It also reviews criminal matters involving cryptoassets, notably Bitcoin. What are cryptoassets? A key obstacle to grasping non‑traditional currencies and assets is the inconsistent terminology. Regulators, tax authorities and commentators variously speak of digital currencies, virtual currencies, cryptocurrencies, cryptoassets and crypto tokens; and it is often uncertain whether these labels are being used as synonyms or with distinct meanings in mind. For definitions, see Practice Note Web 3.0, digital assets and...
ARCHIVED: This archived Practice Note offers background on the alterations to criminal procedure that took effect on 6 October 2014 under the Criminal Procedure Rules 2014, SI 2014/1610. Those provisions have since been revoked. The present rules on criminal procedure are set out in the Criminal Procedure Rules 2015, SI 2015/1490, as amended. See Practice Note: The Criminal Procedure Rules. This Practice Note reflects the law as at 6 October 2014 and is not maintained. It is provided for background purposes only. What is changing in the Criminal Procedure Rules? The consolidated Criminal Procedure Rules 2014, SI 2014/1610 ( Crim PR 2014), together with updated Criminal Practice Directions, commence on Monday 6 October 2014. This Practice Note summarises those amendments and, where appropriate, links to our newly created and revised materials. The most substantial amendments are covered in the Practice Notes cited below. Content across the...
ARCHIVED: This archived Practice Note summarises the procedural changes to criminal cases that commenced on 2 April 2018. The Criminal Procedure Rules 2015, SI 2015/1490, have since been further amended—see Practice Note: The Criminal Procedure Rules. The Note reflects the law as at 2 April 2018, is not updated, and is provided for background only. The Criminal Procedure Rules 2015 ( Crim PR), SI 2015/1490, received their first revision of 2018 via the Criminal Procedure ( Amendment) Rules 2018, SI 2018/132, which came into force on 2 April 2018. This Note flags the principal additions and revisions to the Crim PR that corporate crime practitioners should note. For general guidance on the Crim PR’s purpose and scope, see Practice Note: The Criminal Procedure Rules. Overview of the changes The principal April 2018 amendments to the Crim PR for corporate crime lawyers include: New rules on: ...
ARCHIVED This archived Practice Note is kept for historical interest and to give practitioners a concise snapshot of 2017 case law developments. It monitored extradition appeal decisions month by month during 2017. If you know the judgment date, use the list below to jump to the matching table. Alternatively, search this Practice Note with [ CTRL]+[ F] for a case name, citation or relevant term. Cases by month: December 2017 November 2017 October 2017 September 2017 August 2017 July 2017 June 2017 May 2017 April 2017 March 2017 February 2017 January 2017 December 2017 Fox v Public Prosecutor's Office of Frankfurt am Main [2017] EWHC 3396 ( Admin), [2018] All ER ( D) 10 ( Jan) Extradition— Order for extradition. The judge correctly concluded there were no reasonable grounds to believe the German competent...
Background The Computer Misuse Act 1990 ( CMA 1990) was primarily passed to tackle the risk posed by unauthorised entry into computer systems, commonly labelled ‘hacking’ offences. It became clear that no suitable law existed to prosecute such activity, a gap highlighted especially by R v Gold & Schifreen, where the Court of Appeal set aside a conviction for making a false instrument, contrary to the Forgery and Counterfeiting Act 1981, in circumstances amounting to unauthorised access to BT’s Prestel Computer Network. The House of Lords affirmed that ruling, holding the behaviour fell beyond the false instrument offence because the false information—namely the passwords used to secure entry—had to be retained on the instrument for a meaningful period. At the time, the statute drew criticism as rushed and ill-conceived, and Parliament had no real conception of the ‘ World Wide Web’, which did not...
ARCHIVED: This Practice Note is archived and no longer maintained. HMRC enforcement guidance HMRC’s guidance on civil measures for money laundering supervision explains how HMRC will exercise its civil and criminal enforcement powers under the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017 ( MLR 2017), SI 2017/692. Practitioners will also find the HMRC— Economic Crime Supervision Handbook a useful aid when advising on this area. HMRC’s approach to enforcement—general approach HMRC follows a risk-based strategy built around three strands: promoting compliance by engaging with businesses and supporting them to establish suitable controls to reduce the risk of being used by criminals to launder money or finance terrorism preventing noncompliance by ensuring businesses’ processes and customer interactions keep them compliant with the law; HMRC will challenge high-risk firms and those with inadequate...
This Practice Note explains HMRC’s authority to visit and examine business premises to verify an individual’s tax affairs, and the limits on that authority. Their rights to seek information and records are addressed in Practice Note: HMRC information powers. Comparable inspection powers exist for Revenue Scotland and the Welsh Revenue Authority in respect of devolved taxes. Where fraud is suspected, HMRC can draw on more extensive powers. For further detail, see Practice Note: HMRC criminal investigations and dawn raids. HMRC may likewise use inspection powers when acting in its anti-money laundering role. For guidance, see Practice Note: HMRC guidance under the Money Laundering Regulations 2017 [ Archived]. What are the purposes for which HMRC may use its inspection powers? HMRC may deploy these powers where it is reasonably necessary to check a person’s tax position......
The Health and Safety Executive ( HSE), established under the Health and Safety at Work etc Act 1974 ( HSWA 1974), is the principal regulator of health and safety law in Scotland. A distinct Scottish division within HSE works closely with the Crown Office of the Procurator Fiscal Service, supporting both the investigation and prosecution of health and safety offences in Scotland. The obligations placed on employers and workers by HSWA 1974 apply equally across England, Wales and Scotland. For information on key health and safety offences, see the following Practice Notes below: Safety and the risk to safety under the Health and Safety at Work Act 1974 Failure to carry out health and safety duties under HSWA 1974—offences Directors’ duties for health and safety Employees' duties to take reasonable care for health and safety at work See also the Health and...
This Practice Note This Practice Note sets out a summary of the principal working time requirements applying to drivers and operators of goods and passenger vehicles, covering daily driving and duty limits alongside break and rest obligations. It addresses the assimilated drivers’ hours regime (formerly described as the EU drivers’ hours rules or EU retained drivers’ hours rules), the European Agreement Concerning the Work of Crews of Vehicles Engaged in International Road Transport ( AETR) rules, and the domestic drivers’ framework, including the Road Transport ( Working Time) Regulations 2005. In particular, it explains when each regime applies, the obligations under each, any exemptions, and the relevant provisions of the Working Time Regulations 1998 ( WTR 1998) in each instance. The Note also highlights the key provisions concerning self‑employed drivers and the remedies available to a worker for any breach of their rights under WTR 1998 and the...
The Financial Services Enforcement Database brings together comprehensive details on all substantive FCA and PRA Final Notices and, where available, Decision Notices, from 2014 onwards. Searches can be run and narrowed by a range of fields, including: rule/legislation breach keyword such as ‘ Open and cooperative’ sector date financial penalty aspects of financial penalty analysis outcomes including redress and prohibition orders other actions such as referrals to the Upper Tribunal Non-compliance with a requirement under Part XI of the Financial Services and Markets Act 2000 ( FSMA 2000)—for instance, failing to supply documents or information, or supplying false information—can have serious consequences. The process for addressing such non-compliance during a Financial Conduct Authority ( FCA) investigation is set out in FSMA 2000, s 177. Failure to comply with an FCA information or document...
Offence of fraudulent evasion of VAT It is an offence under section 72(1) of the Value Added Tax Act 1994 ( VATA 1994) for any person to be knowingly involved in taking steps intended to fraudulently evade Value Added Tax ( VAT), whether for themselves or for someone else. The offence is triable either way. This conduct is sometimes referred to as VAT fraud. The provision concerns those knowingly concerned in steps aimed at evasion. There is also a lesser offence under VATA 1994, s 72(10), which provides that a person commits an offence if they: acquire or handle goods, or accept the provision of any services; and have reason to believe that VAT on the supply of those goods or services, or on the importation of the goods, has been or will be evaded This lesser offence is summary only with a maximum...
Under the Extradition Act 2003 ( EA 2003), extradition must take place within the prescribed time limits, which are applied strictly. Time limit for extradition to a category 1 territory Extradition to a category 1 territory must occur within ten days of: the expiry of the seven-day period for giving notice of appeal against the extradition order, or any later date agreed by the extradition judge and the issuing authority in the category 1 territory However, where a requested person gives notice of an application for leave to appeal after the end of the required period, the High Court must not decline to consider the application for that reason if the person did everything reasonably possible to ensure the notice was given as soon as it could be given. In Greece v O’ Connor, the Supreme Court held that there is...
This Practice Note addresses the duty of care for extractive waste in England and Wales only. For guidance on the duty of care relating to controlled waste, see Practice Note: Waste duty of care—controlled waste. Under section 34(6) of the Environmental Protection Act 1990 ( EPA 1990), it is a criminal offence to breach that duty by failing to take all steps that are reasonable in the circumstances. Scope of the extractive waste duty of care EPA 1990, s 34(1A) provides that any person responsible for managing extractive waste must, so far as is reasonable in the circumstances and applicable to them, take measures to: prevent any other person contravening EPA 1990, s 33 in respect of the unauthorised or harmful deposit, treatment or disposal of waste prevent any other person breaching the requirement to hold an environmental permit under the...
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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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