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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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Practice Note This Practice Note outlines how to pursue bail applications in the magistrates’ court or the Crown Court in England and Wales, and how to seek variations to bail conditions in either court. For guidance on applications concerning pre-charge bail in England and Wales, see Practice Note: Police bail. The Criminal Procedure Rules 2025 ( Crim PR 2025), SI 2025/909, Pt 14 set out a detailed comprehensive procedural framework for bail applications, encompassing requests to vary bail conditions, and operates as a comprehensive procedural code. Under Crim PR 2025, SI 2025/909, r 14.5, the prosecutor must give the court and the defendant all information in their possession that is material to the court’s decision. When deciding what is material, the parties must have regard to BA 1976. In particular, the court is required to consider whether there is a real prospect that the...
Practice Note: quick guide to key cyber threats and defences This Practice Note provides a concise overview of the main cyber threats facing commercial organisations and highlights top tips to help them protect themselves. It should be read alongside Practice Notes: Cybercrime prevention and Cybercrime incident management, and the Cybersecurity subtopic generally. Advanced persistent threat ( APT) What is it? Attackers obtain unauthorised access to a system and stay hidden for a lengthy period. They may transfer sensitive information without permission, and even after discovery can leave several backdoors to return later. Best defence/top tips Raise user awareness of the risk and basic account security—see Precedent: Cybercrime awareness campaign. Deploy firewalls to examine and filter traffic. Use antivirus software. Keep protective software updated frequently to match the latest techniques used by cyber...
An individual is guilty of attempting an offence where, with the intention of committing that offence, they perform conduct that goes further than mere preparation for its commission. Attempt is an offence of specific intent; it necessitates a purposeful intention to commit the offence. The offence comprises both the criminal act and the requisite mental element. In every case, it is a matter of fact whether the defendant has advanced sufficiently towards the completed offence to amount to the act of attempt. Once the preparatory threshold has been crossed, the offence of attempt is made out, and it is no defence that the person then chose to withdraw rather than complete the offence. In most situations, attempts to commit criminal offences are governed by section 1 of the Criminal s Act 1981 ( CAA 1981), though certain statutory exceptions continue to apply......
Temporary justice measures: Temporary measures remain in force across Scotland’s justice system, which may affect the usual practice set out in this Practice Note and its guidance. For further detail, see Coronavirus ( COVID-19)— Scotland tracker [ Archived]— Corporate Crime in Scotland. Practitioners will recognise the former concepts of ‘detention’ and ‘arrest’ under the Criminal Procedure ( Scotland) Act 1995 ( CP( S) A 1995). Insofar as relevant to this Practice Note, the pertinent CP( S) A 1995 provisions—covering police questioning and access to a solicitor—were repealed by the Criminal Justice ( Scotland) Act 2016 ( CJ( S) A 2016), and superseded. The 2016 Act replaced ‘detention’ and ‘arrest’ with a single, unitary concept of ‘arrest’ and set out provisions for police custody, the rights of arrested persons, police powers, police questioning, and release from police custody, accordingly. It also introduced the status of...
Reform of anti-social behaviour powers (2014) The Anti-social Behaviour, Crime and Policing Act 2014 ( ABCPA 2014) overhauled the suite of tools for tackling anti-social behaviour ( ASB). Its purpose was to bring remedies together and make their use more straightforward and effective. In July 2014 the government published new statutory guidance, Reform of anti-social behaviour powers: statutory guidance for frontline professionals. Updated in August 2019; Revised in January 2021 to reflect the Sentencing Code, introduced by the Sentencing Act 2020 ( SA 2020), which repealed and replaced Part 2 of the ABCPA 2014; Amended in June 2022 to include Expedited Public Spaces Protection Orders; Refreshed in March 2023 to coincide with the launch of the ASB Action Plan and promote greater consistency in the use of powers and tools. The opening section of the statutory guidance puts victims first, placing them at the centre of the response to...
Offences relating to the sale of tobacco and nicotine inhaling products to persons under 18 In order to reduce the growing numbers of children and young people becoming dependent on nicotine, various distinct offences exist in England and Wales covering the sale of tobacco and nicotine inhaling products to those under 18 years of age. Responsibility for such offences may fall on the person who completed the transaction and/or on the shop or premises where it occurred in question. Buying, or trying to buy, tobacco or nicotine products for someone under 18 (‘proxy purchasing’) is a separate offence, committed by the person making or attempting the purchase of the restricted product, rather than by the retailer or its staff. For further details on proxy purchasing of tobacco and nicotine products, see Practice Note: Proxy purchasing of tobacco and nicotine products. To further...
Under the Criminal Justice and Public Order Act 1994 ( CJPOA 1994), a court may draw adverse inferences if a defendant relies on facts for their defence that were not stated when interviewed under caution at the time, whether during formal questioning or at the charge stage. For further guidance on interviews conducted in accordance with the Police and Criminal Evidence Act 1984 ( PACE 1984), see the Practice Note: Interview under caution. What is an adverse inference? When addressing the jury, a judge must specify any particular matters the prosecution allege the defendant failed to mention, thereby alerting the jury to any inference or inferences they are invited to draw from that omission. CJPOA 1994, s 34 provides that a court may draw such inferences ‘as appear proper’ from a failure to mention facts later relied on at trial when...
Background—the creation of the powers Chapter 3B, Part 5 of the Proceeds of Crime Act 2002 ( POCA 2002), titled ‘ Forfeiture of money held in bank and building society accounts’, sets out the mechanism for detaining and forfeiting money in bank accounts. In brief, it enables applications for: account freezing orders ( AFOs) over funds in bank accounts requests to vary or discharge AFOs a streamlined process to issue a forfeiture notice account forfeiture orders the involvement of victims and other owners appeals concerning forfeiture decisions applications for compensation These applications are heard in the magistrates’ court. They are self‑contained proceedings, separate and independent from any related criminal case. The process is governed by the Magistrates’ Courts ( Freezing and Forfeiture of Money in Bank and Building Society Accounts) Rules 2017, SI 2017/1297. Civil recovery and cash forfeiture Although courts have handled cash forfeiture applications since the Criminal Justice (...
Duress by threats Duress by threats furnishes a full defence to any criminal charge save for murder, attempted murder and, potentially, treason. It operates where the accused commits the offence with intention yet is driven to act by another’s threat, or reasonably believes a threat has been issued, that, unless they commit the offence charged, they or a third person will suffer harm. The evidential basis for duress must be put forward by the defendant; once that is done, the prosecution bears the burden of disproving the claim beyond reasonable doubt. See Practice Note: Burden and standard of proof in criminal proceedings. The assessment entails both subjective and objective tests, to be determined by the jury following directions provided by the judge. The defence will succeed only if, when applying both limbs, the jury are not satisfied beyond reasonable doubt that the...
The police possess broad authority to obtain non-intimate samples under the Police and Criminal Evidence Act 1984 ( PACE 1984). Non-intimate samples are defined to include: hair samples other than pubic hair material taken from a nail or from beneath a nail a swab from any part of the body except where taking a swab would be an intimate sample saliva samples a skin impression (not a fingerprint) For details regarding intimate samples, see Practice Note: Intimate samples. Consent to non-intimate samples As a general rule, such samples cannot be taken from an individual without their agreement. Any consent given must be provided in writing. Power to take non-intimate samples without consent Under PACE 1984, non-intimate samples may be taken without consent from those who have been arrested, charged or convicted in the UK, convicted of a serious offence overseas, or held in...
Tipping off and prejudicing an investigation Once a suspicious activity report ( SAR) has been filed, warning the alleged offender that their behaviour is attracting attention would strip the authorities of the benefit, as they could take steps to conceal their misdeeds or even disappear. To address this risk, the Proceeds of Crime Act 2002 ( POCA 2002) sets out the discrete offences of ‘tipping off’ and ‘prejudicing an investigation’. These offences share certain common features, yet they are aimed at distinctly different forms of offending conduct. The tipping off provisions apply solely to the regulated sector and are engaged where an individual knows or suspects that a disclosure (including a SAR) has been made under POCA 2002, s 337 (protected disclosure) or POCA 2002, s 338 (authorised disclosure) (see Practice Note: Authorised disclosure, protected disclosure and appropriate consent). By...
ARCHIVED This archived Practice Note offers guidance on completing Form 1 Application for permission ( UKSC Form 1— PTA) or Form 1 Appeal ( UKSC Form 1— Appeal). It addresses serving the permission to appeal application, the further steps when lodging that form (including documents to accompany it), and the ensuing actions by the respondent (via its notice of objection) and the appellant. It also explains how to complete UKSC Form 3— Notice of objection/ Acknowledgement by the respondent ( Form 3), and covers service and filing, applications for extensions of time, amendments to applications, and any additional objections. It is not maintained and is provided for background information only. Appeals filed before 2 December 2024 This Practice Note applies only to: appeals to the Supreme Court which were in progress before 2 December 2024, and applications for permission to appeal and notices of appeal filed...
The offence of failing to identify driver Registered keepers and motorists of vehicles are, under certain circumstances, required to provide information as to the driver of a vehicle, if so required. Section 172(2) of the Road Traffic Act 1988 ( RTA 1988) creates an obligation on the registered keeper, and on any other person when asked, to give the name of the driver or supply information as to the identity of the driver, or provide information within their power to give that may lead to identifying the driver where a road traffic offence has allegedly been committed. It is a summary-only offence which is dealt with only in the magistrates’ court......
This Practice Note sets out the process for applications seeking the release of cash held under the Proceeds of Crime Act 2002 ( POCA 2002). It addresses applications by the person from whom the money was taken, applications by third-party owners, the handling of interest accruing on seized funds, compensation for wrongful detention of money and the costs principles that apply in magistrates’ court proceedings. For guidance on how cash is detained, see Practice Note: Cash seizure and detention. Application by the person from whom the cash was seized When cash has been seized and detained under sections 294 and 295 of the Proceeds of Crime Act 2002 ( POCA 2002), an officer (ie an immigration officer, HMRC officer, officer of the Serious Fraud Office ( SFO), police officer or accredited financial investigator) may, once the magistrates’ court is notified, authorise release of all or part of the...
This Practice Note addresses the concealing offence under section 327 of the Proceeds of Crime Act 2002 ( POCA 2002). It forms one of the principal money laundering offences under the Act; see Practice Note: Money laundering offences under the Proceeds of Crime Act 2002— The principal money laundering offences. For further detail on the other principal money laundering offences, see Practice Notes: Money laundering offences—the arrangement offence and Money laundering offences—acquisition, use and possession. POCA 2002, s 327 offence of concealing etc criminal property The offence is made out where a person does any of the following: conceals criminal property disguises criminal property converts criminal property transfers criminal property removes criminal property from England and Wales POCA 2002, s 327(1)(e) is a distinct mode of commission that applies when criminal property is taken out of the...
When a confiscation order is issued against a defendant who holds realisable assets, the duty rests on them to liquidate those assets within the period specified by the order; however, at this juncture it is also possible to appoint an enforcement receiver (see: Enforcement receivers in confiscation—checklist). The Proceeds of Crime Act 2002 ( POCA 2002) does not prescribe a bespoke penalty for non-payment; rather, POCA 2002, s 35 treats any sum outstanding under a confiscation order as if it were a fine imposed by the Crown Court, which is then enforceable in the magistrates’ court. Broadly speaking, the recovery of fines is governed by the fine enforcement provisions in the Sentencing Act 2020 ( SA 2020) and by Part III of the Magistrates’ Courts Act 1980 ( MCA 1980). Pursuant to POCA 2002, s 35, the Crown Court may set a term of...
Practitioners should be aware that, on 31 July 2025, the Law Commission confirmed it will review the product liability framework established by the Consumer Protection Act 1987 ( CPA 1987). The objective is to determine whether the present legal architecture remains effective in addressing harm arising from defective products, particularly in view of technological developments over the last 40 years. The review will consider the regime’s fitness for managing risks linked to emerging digital technologies and contemplate potential reforms to ensure it continues to protect consumers whilst promoting innovation and industry. For more information, see: LNB News 01/08/2025 53... Application of the Consumer Protection Act 1987 CPA 1987, Part II confers regulation‑making powers on the Secretary of State in relation to the safety of specified products. Selling, or offering for sale, those specified products in contravention of any provision made under Part II...
There are three main inchoate offences in English law: conspiracy — where two or more individuals have agreed to carry out a criminal act; attempt — where the defendant has endeavoured to commit an offence and come fairly close to fulfilling the aim (see Practice Note: Attempt); and encouraging or assisting a crime (previously incitement) — where the defendant has encouraged or helped another to commit an offence (see Practice Note: Encouraging and assisting criminality). An inchoate offence is incomplete: it arises when a person takes steps towards committing a crime, yet their conduct stops short of the finished offence. The exception is conspiracy to defraud, where the intended outcome need not itself be criminal. That offence is considered separately; see Practice Note: to defraud. Inchoate offences are not chargeable on their own, ie there is no standalone charge of...
The offence of actual bodily harm Assault occasioning actual bodily harm ( ABH) can be tried in either the magistrates' court or the Crown Court. In most instances, ABH is tried in the magistrates' court unless that court considers its sentencing powers inadequate (see: Sentencing for ABH below). Elements of the offence Under section 47 of the Offences Against the Person Act 1861 ( OATPA 1861), the prosecution must prove: an assault or a battery; and that the assault or battery caused the victim actual bodily harm. Assault The prosecution must establish: conduct, done intentionally or recklessly, which causes the victim to apprehend immediate unlawful violence. It is unnecessary for any force to be used; the required element is the fear or anticipation of violence. Battery The prosecution must establish: the infliction of unlawful force upon another person; and that such force was applied...
In England and Wales, it is unlawful for an adult to purchase, or seek to purchase, tobacco or tobacco‑related goods for someone under the age of 18. This conduct—often called ‘proxy purchasing’—is an offence committed by the adult who makes, or tries to make, the purchase, rather than by the retailer supplying the product... Separately, a retailer commits a distinct offence if they sell tobacco or nicotine inhaling products to anyone under 18, under section 7 of the Children and Young Persons Act 1933 ( CYPA 1933). For further detail on the prohibition against selling tobacco to under‑18s, see Practice Note: Prohibitions on the sale of tobacco and nicotine inhaling products... This separate offence forms part of continuing measures to cut the number of children becoming addicted to cigarettes and tobacco. It expressly includes e‑cigarettes and their components, reflecting concerns that increased...
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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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