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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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In recent years, there has been mounting pressure on the government to introduce further legislation on economic crime to deter criminals from laundering money in the UK. The conflict in Ukraine triggered the Economic Crime ( Transparency and Enforcement) Act 2022 ( EC( TE) A 2022), forming part of the UK government’s response. The government expedited the Bill’s passage through Parliament, with all stages completed in five Parliamentary sitting days. EC( TE) A 2022 is intended to stop the UK property market being used to store, hide or launder criminal proceeds and wealth, to improve transparency over the ultimate owners of properties and assets in the UK, and to make it simpler for enforcement bodies to dispossess owners of unlawfully obtained assets. This is supported by separate provisions that make it easier to designate persons and organisations under sanctions pursuant to the Sanctions and Anti- Money...
ARCHIVED: This Practice Note has been archived and is not maintained. The Regulatory Enforcement and Sanctions Act 2008 gives regulators powers to address offences through civil law sanctions, including environmental enforcement undertakings, rather than starting a criminal prosecution. The Environment Agency ( EA) and Natural Resources Wales ( NRW) may impose enforcement undertakings for various relevant environmental offences under the Water Resources Act 1991 ( WRA 1991) and the Salmon and Freshwater Fisheries Act 1975 ( SFFA 1975). An enforcement undertaking is a written commitment to take actions within a set time period: to ensure the offence does not persist or happen again to return matters, as far as reasonably possible, to the position that would have existed had the offences not occurred to confer a benefit on a third party (including, where suitable, a monetary payment), or to secure an equivalent benefit or...
ARCHIVED: This Practice Note has been archived and is not maintained. The Regulatory Enforcement and Sanctions Act 2008 ( RESA 2008) permits regulators to address offences through civil sanctions, including environmental enforcement undertakings, rather than commencing a criminal prosecution. The Environment Agency ( EA) and Natural Resources Wales ( NRW) are empowered to impose enforcement undertakings for a range of offences under the Environmental Permitting ( England and Wales) Regulations 2016 ( EPR 2016), SI 2016/1154. An enforcement undertaking is a written commitment to take actions within a defined period: to prevent the offence from continuing or recurring to restore, so far as possible, the position to what it would have been had the offences not occurred to provide a benefit to a third party (which may, where appropriate, include a monetary payment), or to secure an equivalent benefit or improvement to the environment where the harm cannot be...
Driving disqualification for any offence When an individual is convicted of any offence in the Crown Court or a magistrates’ court, the court may, either as an alternative to other disposals or in addition to them, bar the person from holding or obtaining a driving licence. It has been determined that exercising this power is appropriate for an offence of affray stemming from a road‑rage incident ( R v Bye and R v Ade Tute Sofejum). Disqualification following conviction of any offence functions both as an additional penalty and a preventive tool available to the court. The court cannot set a period of disqualification on an arbitrary basis......
The Road Traffic Act 1988 ( RTA 1988) sets out several distinct alcohol and drug related offences. The principal ones are: driving with excess alcohol or drugs attempting to drive with excess alcohol or drugs being in charge of a motor vehicle with excess alcohol or drugs driving or attempting to drive while unfit, and being in charge of a motor vehicle while unfit All of these offences are summary-only offences. This Practice Note addresses driving impairment offences arising from excess alcohol consumption. For drug related driving impairment offences, see Practice Note: Driving, or being in charge of, a motor vehicle with concentrations of specified controlled drugs in excess of specified levels. Elements of the offence of driving with excess alcohol The prosecution must prove: the defendant was driving on a road or other public place a motor...
What is an evidential specimen? After arrest on suspicion of an alcohol- or drug-related driving offence, police officers will ask the detainee to supply a sample of breath, blood or urine for analysis. The sample is termed an ‘evidential specimen’ because the analytical results are relied upon by the prosecution to establish a particular offence, for instance that the motorist was driving with excess alcohol in their system. An evidential specimen should be contrasted with a ‘preliminary test’. A preliminary test, such as a roadside police breath test, is carried out by police who suspect consumption of alcohol or drugs. Such testing is only indicative. To prove an offence like driving with excess alcohol, an ‘evidential specimen’ must be taken. The Deregulation Act 2015 ( DA 2015) removed the need for an officer to undertake a preliminary test where a portable...
Forthcoming change The Serious Fraud Office ( SFO) is currently revising its guidance on DPAs, with publication anticipated in 2025 (see Collection: Guidance for corporates). This Practice Note will be revised once the new DPA guidance is released, and will be refreshed promptly to reflect any changes announced upon publication. Disclosure in the DPA negotiation process Within the deferred prosecution agreement ( DPA) negotiation process, co-operation is a decisive factor that can affect a company’s prospects of avoiding prosecution. The DPA Code of Practice ( DPA Code) sets this out at paragraph 2.8.2 and the Serious Fraud Office ( SFO) reiterates it in its Corporate Guidance; see also Practice Notes: Corporate co-operation guidance for organisations seeking a DPA and DPA process. For further reading, see Practice Note: DPAs in practice— Co-operation—the most important factor? What amounts to ‘co-operation’ in this setting has attracted...
What must a DPA contain? The statutory rules defining the contents of a Deferred Prosecution Agreement ( DPA) appear in paragraph 5 of Schedule 17 to the Crime and Courts Act 2013 ( CCA 2013). They prescribe two mandatory requirements and seven suggested terms; the latter are indicative rather than exhaustive, and the parties may agree further suitable provisions. The list of suggested terms is expressly non-exhaustive. Accordingly, the basis of the DPA and its detailed contents should be expressed with clarity, set out clearly and simply, and then put before the court for its consideration and approval. The decision in Guralp Systems Ltd v Director of the Serious Fraud Office highlights the consequences of failing to articulate DPA terms plainly and succinctly. Other appropriate terms may likewise be incorporated by...
The Digital Market, Competition and Consumers Act 2024 The Digital Market, Competition and Consumers Act 2024 ( DMCCA 2024) obtained Royal Assent on 24 May 2024. It brings significant reforms to the UK’s consumer protection landscape, repealing and replacing the Consumer Protection from Unfair Trading Regulations 2008 ( CPUTR 2008), SI 2008/1277. Replacement rules safeguarding consumers from unfair trading sit in DMCCA 2024, Part 4, Chapter 1. They largely replicate the effect of CPUTR 2008 by prohibiting unfair commercial practices across all sectors where such conduct prevents consumers from making free and properly informed purchasing choices. Except for DMCCA 2024, ss 232–235, these provisions—and the revocation of CPUTR 2008—commence on 6 April 2025. Additional categories of commercial practices are identified as unfair in all circumstances. The existing restriction on omitting material information from an invitation to purchase is broadened. For deeper insight into unfair commercial practices under DMCCA 2024, see News...
Director disqualification A number of routes exist for removing a person from office as a director of a limited liability company. Most frequently, this occurs by reason of ‘unfit conduct’ while serving as a director of an insolvent company, pursuant to section 6 of the Company Directors Disqualification Act 1986 ( CDDA 1986). That said, further and less commonly used provisions within CDDA 1986 and the Insolvency Act 1986 ( IA 1986) also permit the disqualification of a company director. Whichever statutory route is relied upon, the effect on the disqualified individual is broadly identical and is explained in more detail in Practice Note: What is prohibited for a disqualified director? By virtue of CDDA 1986, s 7, applications for a disqualification order under s 6 are made either by the Secretary of State for Business and Trade ( So S) or, on the So S’s...
Introduction The Waste ( England and Wales) Regulations 2011, SI 2011/988 ( Waste E& W Regs 2011), represents a significant waste law, although not the only one. It brought many of the requirements of the Waste Framework Directive 2008/98/ EC, as amended ( WFD 2008), into domestic legislation within England and Wales......
Sanctions are designed to exert significant impact on the people, entities and regimes at which they are aimed. Consequently, there is an attendant danger that those designated will try to sidestep their effect. Grasping the risks of becoming entangled in sanctions evasion, and the warning signs and red flags to watch for, should be integral to your screening. You need not act as law enforcement, but, given the strict nature of your liability for any breach, you must stay vigilant. This Practice Note outlines risks and indicators of sanctions evasion, along with sound practices and steps to take if you are concerned. Risks of sanctions evasion Failing to notice an attempt to circumvent sanctions can put you yourself in breach, eg if you end up handling the funds of, or supplying services or other assistance to, an individual who is designated. It could also...
This Practice Note provides an overview of the Deferred Prosecution Agreement Code of Practice issued by the Serious Fraud Office ( SFO) and Crown Prosecution Service ( CPS), addressing the use and negotiation of deferred prosecution agreements ( DPAs). It is commonly referred to as the . For fuller guidance on what DPAs involve, who might obtain one, the offences for which they are available, and how they are applied in practice, see: Practice Notes: Deferred prosecution agreements DPAs in practice Financial penalties as a term of a DPA What does the mean for prosecutors? The was issued by the SFO and CPS under Schedule 17 Part 1, para 6(1) of the Crime and Courts Act 2013......
Which organisations will be suitable for DPA negotiations The Deferred Prosecution Agreement Code of Practice (the DPA Code) serves as a prosecutorial handbook, steering practitioners through DPA procedures and setting the operational framework for DPAs. Legal advisers should know it well to verify procedural accuracy, safeguard proper footing in negotiations for client organisations, and secure appropriate representation at every step. Familiarity with the Code also supports consistent procedure and proper representation throughout the negotiation lifecycle. See the Practice Notes: Deferred prosecution agreements and DPA Code of Practice. Where the Serious Fraud Office ( SFO) is involved, read the DPA Code alongside the SFO’s Corporate Guidance. Together, these documents explain the expectations organisations must meet for their efforts to qualify as co-operation in the DPA context. Used together, these materials offer a clear, practical roadmap for organisations contemplating DPA engagement with...
Confiscation statement under POCA 2002 Typically, the defence will already have lodged a statement of means under section 18 of the Proceeds of Crime Act 2002 ( POCA 2002) before the prosecutor serves a Statement of Information under POCA 2002, s 16 (commonly called a section 16 statement). See: Confiscation timetable—checklist. The defence then has the chance to answer the section 16 statement pursuant to POCA 2002, s 17. That reply is intended to focus and reduce the matters to be determined at the confiscation hearing. If the defence does not make clear whether it contests any assertions advanced by the prosecution in its section 16 statement, the court may treat that silence as acceptance of those particular points. Accordingly, the section 16 statement must be reviewed with care and every area of disagreement should be identified within the defence response. It is also...
The Serious Fraud Office ( SFO) The Serious Fraud Office ( SFO) was established under section 1 of the Criminal Justice Act 1987 ( CJA 1987) and holds the power to investigate and pursue prosecutions relating to cases of serious or complex fraud and bribery. The Director of the SFO, or any person authorised by the Director, may commence criminal legal proceedings......
Practice Note This Practice Note acts as a concise signpost to the different authorities able to raid organisations, the legal footing that permits such action, and the breadth of their powers. It also summarises the consequences for not meeting their requirements. Practice Notes For fuller detail on each authority, consult these Practice Notes: Dealing with dawn raids by the police—key information Dealing with dawn raids by the Financial Conduct Authority—key information Dealing with dawn raids by the Serious Fraud Office—key information Dealing with dawn raids by HM Revenue & Customs—key information Dealing with dawn raids by the Competition and Markets Authority—key information Dealing with dawn raids by the Health and Safety Executive—key information Dealing with dawn raids by the Information Commissioner’s Office—key information Investigator Basis of authority, powers and penalties Enter Search Seize documents / materials Ask questions Use reasonable force to enter, where necessary Require the occupier to ensure the premises are left...
This Practice Note provides an overview of the UK’s Data Protection Act 2018 ( DPA 2018). For a broader primer on data protection law in the UK, see Practice Note: Data protection law—new starter guide. The UK data protection law collection brings together wider guidance and is a suggested first port of call for research. In brief In summary, the DPA 2018 currently governs: the processing of personal data within the UK GDPR framework, complementing the core rules laid down in the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR), with extra measures covering: lawful basis for processing processing on the basis of relevant international law processing special categories of personal data and criminal offence data ...
Archived: This Practice Note is archived and no longer maintained. This Practice Note concerns the commission of data protection offences before 25 May 2018. Where a data protection offence occurred before 25 May 2018, it may still be prosecuted under the Data Protection Act 1998 ( DPA 1998), even though that legislation has been repealed by the Data Protection Act 2018 ( DPA 2018). Where an offence is committed on or after 25 May 2018, charges should be considered under the DPA 2018. See Practice Note: Offences under the Data Protection Act 2018. The offences of unlawful obtaining of personal data under the DPA 1998 Note that these offences cannot be committed after 25 May 2018. The DPA 1998 includes various criminal offences that can be prosecuted by the Information Commissioner or the Director of Public Prosecutions, who must give their consent for such...
This Practice Note outlines the procedural framework for sentencing offenders in England and Wales (the Sentencing Code) effective from 1 December 2020, comprising Parts 2–13 of the Sentencing Act 2020 ( SA 2020). It also captures the revisions introduced by Part 7 of the Police, Crime, Sentencing and Courts Act 2022 ( PCSCA 2022). PCSCA 2022, Pt 7 operates to extend the period that must be served before release on licence for certain violent or sexual offences. For those assessing whether the Sentencing Code governs their matter, see Practice Note: Sentencing Code... Abolition of IPPs and EPPs Previously, the Criminal Justice Act 2003 ( CJA 2003) provided for imprisonment for public protection ( IPPs) and detention for public protection, alongside extended sentences for specified violent and sexual offences ( EPPs). These sentencing options were abolished by the Legal Aid, Sentencing and Punishment of...
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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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