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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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ARCHIVED : This Practice Note is archived and no longer maintained. It previously set out how the US Department of Justice ( DOJ) and the Securities and Exchange Commission ( SEC) approached enforcement of bribery and corruption offences under the Foreign Corrupt Practices Act 1977 ( FCPA 1977). Its coverage pertained to the period before the February 2025 Executive Order pausing all investigations and prosecutions under the Foreign Corrupt Practices Act ( FCPA), and prior to the subsequent publication of revised DOJ guidelines for FCPA investigations and enforcement. For further information, see: DOJ FCPA Guidelines News Analyses: Foreign countries have strong foundation to fill FCPA void DOJ signals major shift in white collar enforcement priorities Feds reboot FCPA agenda with narrower enforcement focus The US Foreign Corrupt Practices Act of 1977 ( FCPA) is part of US federal law and...
ARCHIVED: This Practice Note has been archived and is not being maintained. Following the conclusion of the EU transition period, the UK no longer participates in the European Investigation Order ( EIO) regime. In its place, mutual legal assistance requests from EU Member States now rely on the Council of Europe’s 1959 European Convention on Mutual Assistance in Criminal Matters and its additional protocols, as supplemented by the EU- UK Trade and Cooperation Agreement ( TCA). EIOs received before the end of IP completion day (11 pm 31 December 2020) continue to be handled as EIOs, with the relevant procedures and processes remaining applicable to these transitional EIOs. Any EIOs arriving after IP completion day are treated as requests under the 1959 convention. See Practice Note: Mutual legal assistance ( MLA). This Practice Note is retained to support those managing EIOs issued prior to IP...
ARCHIVED: This archived Practice Note outlines the data protection framework prior to 25 May 2018 and reflects the position under the Data Protection Act 1998 ( DPA 1998). It is provided for background reference only and is not maintained. Information Commissioner Under the DPA 1998, the Information Commissioner and officials at the Information Commissioner’s Office ( ICO) are responsible for enforcement. The Commissioner reports directly to Parliament. promote sound practice and compliance with the DPA 1998 by data controllers publish information and provide advice produce codes of practice international co-operation: with the European Commission and supervisory authorities in other European Economic Area ( EEA) states in respect of the United Kingdom’s international obligations concerning the Council of Convention for the...
ARCHIVED: This Practice Note has been archived and is not maintained. It provided a running record of UK government bills concerning corporate crime, covering the period from December 2019 to December 2020, and captured measures introduced in either the House of Commons or the House of Lords. It charted the progress of relevant bills through both Houses during that period. The tracker’s purpose was to help corporate crime practitioners remain informed about impending legislation throughout that timeframe. For details of live bills before Parliament that touch on business crime/white collar crime, see Practice Note: Legislation tracker for corporate crime practitioners—2021 [ Archived]......
This Practice Note outlines the process and principal issues involved in a full extradition hearing under the Extradition Act 2003 ( EA 2003), and practical considerations. For additional reading on extradition proceedings, refer to these Practice Notes for detailed context and background: Extradition and the statutory framework—an introduction to extradition Extradition—arrest and initial procedure Arrest without a warrant under Part 2 of the Extradition Act 2003 Secretary of State’s function in extradition Statutory bars to extradition Non-statutory bars to extradition Extradition Appeals For guidance on how Brexit affects arrangements between the UK and EU, see Practice Note: Extradition and the statutory framework—an introduction to extradition— Extradition to the EU post- Brexit, in this context. The extradition hearing At the full hearing, the court decides whether the requested person ought to be extradited to the requesting state, or not. The matter is heard by a...
This Practice Note summarises the Scottish route to securing a civil recovery order in the Court of Session, pursuant to Part 5, Chapter 2 of the Proceeds of Crime Act 2002 ( POCA 2002). It does not address the Sheriff Court civil recovery processes. For guidance on the corresponding England and Wales position, see Practice Notes: Civil recovery orders under the Proceeds of Crime Act 2002 and Civil recovery under POCA 2002—procedure. Statutory framework Under POCA 2002, Part 5, enforcement bodies may commence civil proceedings to recover property, cash, or—following the provisions commencing in November 2024 via Schedule 9 to the Economic Crime and Corporate Transparency Act 2023 ( ECCTA 2023)—a cryptoasset derived from, or intended for use in, unlawful conduct. See our E& W Practice Note: Civil recovery orders under the Proceeds of Crime Act 2002. This Practice Note concerns Court of Session civil...
Consent to specimens of blood and urine at the police station The police are empowered to ask for a sample of blood or urine instead of breath where one of the circumstances in the Road Traffic Act 1988 ( RTA 1988) applies. See Practice Note: Evidential specimens in road traffic cases. Anyone who, without a reasonable excuse, fails to provide the required specimen commits an offence. Blood Under the RTA 1988 and the Road Traffic Offenders Act 1988 ( RTOA 1988), a blood specimen will be disregarded unless it is taken by a medical practitioner or health care professional with the consent of the person giving it. In Clarke v Crown Prosecution Service, the court was asked whether consent must be obtained in the presence of both a police officer and a medical practitioner. As the judges concluded that consent had in fact been given in the...
When weighing up whether, and in what way, to pursue a claim for judicial review, your opening task is to assess if that procedure is the suitable mechanism for resolving the issues presented by the matter before you. For additional help, see Practice Note: Judicial review—what it is and when it can be used. Time limits If judicial review is the route chosen, the next step will typically be to confirm there is still time to commence proceedings. Under CPR 54.5, claims for judicial review (apart from the three exceptions referred to below) must be issued promptly and, in any event, within three months of the date on which the grounds first arose. Promptness is an overriding requirement, and you should not assume a claim is in time merely because it is brought within three months. Accordingly, once the basis for the challenge has...
Under section 170 of the Road Traffic Act 1988 ( RTA 1988) Drivers have a duty to stop at the scene of an accident and, when required, to provide their personal details and to report the accident. A failure to comply amounts to summary-only offences triable exclusively in the magistrates’ court. This obligation arises where: a driver of a mechanically propelled vehicle is driving on a road or other public place; and an accident occurs by which: personal injury is caused to a person other than the defendant; or damage is caused to another vehicle, to property not belonging to the defendant, or to an animal not in the vehicle Damage to property refers to property constructed on, fixed to, growing in, or...
A challenge to a determination of the lower courts can be brought in a number of ways, including by way of appeal, judicial review, or an appeal by way of case stated. This Practice Note is concerned with appeals by way of case stated. For detailed guidance on appeals in criminal matters, see: Criminal appeals—overview. For further information on judicial review proceedings, see Practice Note: Judicial review of magistrates' court and Crown Court decisions. Challenging a decision which is wrong in law or in excess of jurisdiction An appeal by way of case stated is an appeal to a superior court founded on a case—that is, a set of facts—stated by the inferior court, so that the superior court determines how the law ought properly to be applied to those facts. The appeal document should pinpoint the decision under challenge, set out the...
Duty of disclosure of unused evidence The quest for a fair trial rooted in equality of arms has generated a disclosure duty owed by the Crown to the defence. In R v H, the House of Lords stated that, for the purposes of article 6(1) of the Convention, criminal proceedings must be adversarial and governed by the principle of equality of arms between prosecution and defence. Those requirements oblige investigating authorities to reveal all material that assists or undermines the defence, whether or not the prosecution intends to rely on it. That said, the right to disclosure is not unqualified, and material that falls to be disclosed may be withheld on public interest immunity ( PII) grounds. For further guidance, see Practice Note: Public interest immunity. The prosecutor’s disclosure obligations may be cast broadly. It is not only required to set out the...
Status of a confiscation order Strictly speaking, a confiscation order requires the offender to pay a sum to the state, reflecting the benefit obtained through the defendant’s offending. Its principal aim is restorative, though it includes punitive features. There are two phases to confiscation proceedings: the court first makes the confiscation order; and its enforcement is then secured. Once imposed, the order operates as a statutory debt and, for certain purposes, is treated in the same way as a fine. Collection and enforcement are carried out by the specified magistrates’ court or, if none is named, by the committing magistrates’ court. The order will also include a default term to be served if payment is not made. See Practice Note: Default term in confiscation. A confiscation order is commonly described as an order in personam rather than in rem, and it does not affect...
Elements of the offence of possession of controlled drugs Section 5 of the Misuse of Drugs Act 1971 ( MDA 1971) creates the offence where a person has a controlled drug in their possession. The prosecution must demonstrate, to the criminal standard (see Practice Note: Burden and standard of proof in criminal proceedings), that: the material concerned is a controlled drug it was within the defendant’s custody or control, and the defendant knew, or ought reasonably to have known, of the drug’s existence. See R v Lewis (1988) 87 Cr App Rep 270 (not reported by Lexis Nexis®). Possession of a controlled drug is an offence triable either way, before the magistrates’ court or the Crown Court. Under MDA 1971, s 37(3), the concept of possession extends to items held by another person but remaining under the defendant’s control. Consequently, to establish possession, the...
This Practice Note sets out guidance on the principles of privilege in Scotland. As the matter tends to crop up more often south of the border, many of the leading cases are opinions from the jurisdiction of England and Wales. For guidance on: specific points for Scottish disputes lawyers, see Practice Note: Legal professional privilege in Scottish civil litigation specific points for Scottish corporate crime lawyers, see Practice Note: Legal professional privilege in Scottish criminal proceedings the position in England and Wales, see Privilege and without prejudice communications—overview and Practice Note: Privilege—general principles, which, in addition to outlining this area, link to more detailed guidance on different aspects of legal professional privilege Confidentiality and legal professional privilege in Scotland The principle of privilege is not identical in English and Scots law. In Scotland, it is frequently termed...
A central aim of the Criminal Procedure Rules 2025 ( Crim PR 2025), SI 2025/909, is the efficient management of criminal proceedings. In Crim PR 2025, SI 2025/909, Pt 3 sets out the detailed provisions on active case management. Crim PR 2025, SI 2025/909, rr 3.1–3.15 apply to all matters in the magistrates’ court and the Crown Court alike. Crim PR 2025, SI 2025/909, rr 3.16–3.18 relate specifically to cases in the magistrates’ court. See Practice Note: Case management in the magistrates’ courts. Crim PR 2025, SI 2025/909, rr 3.19–3.34 govern Crown Court cases and are explained in this Practice Note. The Crim PR provide for two principal types of case management hearing in the Crown Court, which are outlined in greater detail below: plea and trial preparation hearings ( PTPHs), and further case management hearings ( FCMHs) An FCMH should be listed only where a...
Postponement and sentence As a rule, the court ought to make a confiscation order before passing sentence. Where confiscation has not finished by sentencing, the process may begin and be deferred so it concludes afterwards. That starting point and any postponement must occur within 56 days of sentence being imposed (i.e. the window in which a sentence may be varied or rescinded under section 385 of the Sentencing Act 2020 ( SA 2020)—the ‘slip rule’). The court may defer confiscation for a stated period of up to two years from the conviction date (the permitted period). If there are multiple offences, the conviction date is the most recent date on which the defendant was convicted. The postponement period itself can be extended, but any extension must take effect within the two-year permitted period, unless exceptional circumstances are found. In R v Haden, the Court of Appeal...
For guidance on when applications alleging abuse of process can arise in criminal cases, see Practice Note: Abuse of process in criminal proceedings. The procedure for advancing such an argument is set out in the Criminal Procedure Rules 2025 ( Crim PR 2025), SI 2025/909. That procedural framework governs how such applications are made and managed in court. The court applies it throughout the process carefully. The applicant bears the burden, on the balance of probabilities, to establish some impropriety in the decision to prosecute, or in the way the prosecution has been pursued, such that either a fair trial is no longer achievable (the first limb) or it would no longer be fair to try the defendant (the second limb). Both defence and prosecution may call evidence. The prosecution must disclose relevant unused material. The judge determines the issue on the...
Exclusion under the Criminal Justice Act 2003 The admissibility of hearsay in criminal proceedings is regulated by the Criminal Justice Act 2003 ( CJA 2003). The CJA 2003 also permits the reception of hearsay evidence where one or more statutory bases for admitting it are met. The Act also sets out numerous protections, labelled by the Court of Appeal in Horncastle as a ‘crafted code’, intended to secure that hearsay is received only where admitting it is fair. See Practice Note: Admissibility of hearsay evidence in criminal proceedings. Practitioners might first, at the outset, assess whether the hearsay could be ruled out altogether, in appropriate cases, under CJA 2003, s 126 or section 78 of the Police and Criminal Evidence Act 1984 ( PACE 1984), before turning to any further protections that could be employed should it be...
Causing death by driving while disqualified Section 3ZC of the Road Traffic Act 1988 ( RTA 1988) sets out the offence of causing death by driving whilst disqualified. This offence is indictable only and carries the most serious potential sentence (see below: Sentencing for causing death while driving offences committed while unlicensed, uninsured or disqualified). The offence is made out when: a person causes another’s death by driving a motor vehicle on a road, or at the time the death was caused, the driver was disqualified from driving contrary to RTA 1988, s 103(1)(b) Under the RTA 1988, a ‘motor vehicle’ is a mechanically propelled vehicle intended or adapted for use on a road. A ‘road’ includes any highway and any other road to which the public has access, as well as bridges over which a road...
Following the Grenfell Tower tragedy in June 2017, Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety concluded that a profound change in mindset and practice was required across building safety. In her final report, issued in May 2018, she underlined that the entire system demands a radical overhaul and clarity about how it should operate; the challenge is far more than cladding specifications alone, pointing instead to a sector that has failed to self-scrutinise, learn for itself, or take guidance from other industries. The building safety enquiry culminated in the widely discussed and long-awaited Building Safety Act 2022 ( BSA 2022), which obtained Royal Assent on 28 April 2022. BSA 2022 embodies the step-change in how building safety is addressed and how higher-risk buildings ( HRBs) in England are regulated, answering the call Dame Judith Hackitt set out. At the centre of this...
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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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