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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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There is a difference between insane and non-insane automatism; the former, insanity, does not amount to a complete defence but leads to the special verdict of 'not guilty by reason of insanity'. In contrast, non-insane automatism provides a full defence and results in acquittal. The crucial distinction is causation: insane automatism is triggered by an internal factor, whereas the involuntary behaviour in non-insane automatism must be produced by an external factor. Practitioners should carefully evaluate whether a defendant lacks the requisite mens rea due to non-insane automatism or whether the insanity defence is engaged. It is also necessary to consider whether the automatism was self-induced. This Practice Note concentrates on non-insane automatism. For the position on insane automatism (insanity), see Practice Note: The defence of insanity. Burden of proof When a defendant raises automatism, the prosecution must disprove it beyond reasonable doubt by...
What is judicial review? Judicial review is the means by which the courts exercise a supervisory jurisdiction over the performance of public functions by public bodies. This supervisory jurisdiction should not be mistaken for, or treated as, a right of appeal. CPR 54.1 states that a 'claim for judicial review' means a claim to assess the lawfulness of: an enactment a decision, action, or failure to act in relation to the exercise of a public function. Proceedings usually take place in the Administrative Court, which forms part of the King's Bench Division of the High Court. Judicial review proceedings are governed by a number of Civil Procedure Rules, Practice Directions and a pre-action protocol. Further detailed and practical guidance is provided in the Administrative Court Judicial Review Guide. The guide is intended to assist parties pursuing judicial review claims in the...
Criminal fraud in Scotland How criminal fraud is defined, investigated and prosecuted (and by whom) differs across the UK. In Scotland, the majority of prosecutions rely on the broad, catch‑all common law offence of fraud, though the common law offences of uttering and embezzlement may apply to specific facts and circumstances. See below— Common law fraud: general, and Embezzlement and uttering. There are also various statutory offences that contain elements of criminal fraud. Some originate in legislation that is specific to Scotland, while others derive from UK‑wide enactments. Importantly, neither the Fraud Act 2006 ( Fr A 2006) nor the Theft Act 1968 ( TA 1968) applies in Scotland. However, TA 1968, s 14 allows that Act to extend to the commission in Scotland of certain acts involving theft of mail bags or postal packets. There are further differences between Scotland and England and Wales in how...
Post-1 October 2013 From 1 October 2013, section 69 of the Enterprise and Regulatory Reform Act 2013 ( ERRA 2013) took effect. For workplace accidents after that date, civil liability no longer stems from breach of a statutory health and safety duty unless the specific regulation provides for it. Consequently, practitioners must advance claims in negligence. Although it is no longer appropriate to plead a claim purely on a regulatory breach, claimant practitioners are likely to continue citing the relevant statutory provisions as expressing the expected standard of care in workplace environments. In many instances, such regulations can be referenced in statements of case to outline procedures for identifying and evaluating risk, and for implementing controls in light of those assessments. Accordingly, claims should be grounded in negligence, with any breach of regulation relied upon as evidence of that negligence. The claimant will (usually) need to...
A court is required to hand down a life sentence to any offender aged 21 or above who is found guilty of murder, excluding related crimes such as attempted murder or conspiracy to murder. This obligation arises because, in such cases, the penalty is fixed by law. The same principle equally applies to any other offence for which the sentence fixed by law is life imprisonment. If the offender was over 18 when the offence occurred but under 21 at the date of conviction, the corresponding sentence is custody for life in lieu of a life sentence. Where a defendant is convicted of murder having been under 18 at the time of the offence, the proper sentence is detention at His Majesty's pleasure. Fixing the tariff for mandatory life sentences When imposing a life sentence, the court must make a whole life order or...
The handling of personal data for policing objectives is expressly and specifically governed by Part 3 of the Data Protection Act 2018 ( DPA 2018) and operates as a separate and distinct regime from the general processing of personal data under the UK General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR). DPA 2018, Pt 3 applies to those competent authorities that process personal data for ‘law enforcement purposes’. It includes processing for preventing, investigating, detecting or prosecuting criminal offences, or carrying out criminal penalties, and encompasses safeguarding against, and preventing, threats to public security. DPA 2018, Pt 3 transposed the EU Law Enforcement Directive ( EU) 2016/680 ( EU LED) into UK law. The Information Commissioner’s Office ( ICO) has issued guidance specifically on duties under DPA 2018, Pt 3, which is essential reading for advisers in this field. The ICO...
Intention Intention denotes the result the defendant seeks. Offences are often categorised as ones of basic intent or specific intent. The Court of Appeal has labelled this division elusive. Even so, the Court offered guidance on specific intent: crimes of specific intent require proof of purpose or consequence, and include, though are not limited to, cases where the objective extends beyond the actus reus, sometimes called ulterior intent. The Court also endorsed the analysis that a line can be drawn between (i) intention considered in light of the actor’s purposes and (ii) intention viewed apart from those purposes. In some instances a general intent accompanying the act is all that is needed to constitute the offence; in others, in addition to that general intent, there must be a specific intent linked to the purpose for which the act is done. Put plainly, specific intent offences require an...
This Practice Note outlines the legal powers to search premises and property during a criminal inquiry in Scotland. It further considers the scope for challenging search warrants in Scottish criminal investigations. For guidance on obtaining warrants issued by the criminal courts in England and Wales, see the following Practice Notes: Obtaining and executing a search warrant under PACE 1984; Obtaining excluded material and special procedure material under PACE 1984; Search of premises; and Seizure and retention of property. The principal powers to search premises and property in Scotland fall into these categories: under the terms of an arrest warrant by consent where urgency dictates under the authority of a search warrant Search under the terms of an arrest warrant Where the Crown decides to bring proceedings on either summary complaint or petition, the terms of the complaint or petition itself will grant...
The offence of possession of an offensive weapon in a public place Under section 1 of the Prevention of Crime Act 1953 ( PCA 1953), it is unlawful to carry an offensive weapon in a public setting without lawful authority or a reasonable excuse. The case may proceed in the magistrates’ court or the Crown Court. Where it appears that the magistrates’ sentencing powers are inadequate, they will refuse jurisdiction... Elements of the offence To secure a conviction under PCA 1953, s 1, the prosecution must establish that the defendant: has with them in a public place an offensive weapon without lawful authority or reasonable excuse Has with them The prosecution must show the defendant was in possession of the item. However, the phrase ‘has with them’ goes beyond simple possession or control. The courts have determined it means ‘knowingly has with them’,...
Excluding evidence of the defendant's 'bad character' under CJA 2003, s 101(3) Where material demonstrating a defendant’s bad character is capable of admission under the Criminal Justice Act 2003 ( CJA 2003) to indicate a tendency to offend or to be dishonest (gateway D), or to meet an attack on another individual’s character (gateway G), the CJA 2003 provides that the court ‘must not admit’ that material if it appears that receiving it would have such an adverse impact on the fairness of the proceedings that the court ought not to receive it. For guidance on the circumstances in which gateways D and G operate, see the Practice Notes: Admissibility of bad character to prove propensity, Admissibility of bad character to prove untruthfulness, and Admission of bad character to correct false impression or to counter an attack, for further information and...
Breach of restraint order A contravention of a restraint order made under section 41 of the Proceeds of Crime Act 2002 ( POCA 2002) amounts to civil contempt of court and will be dealt with accordingly, as recognised in OB v Director of the Serious Fraud Office. However, sanctions imposed for civil contempt following such a breach do not prevent the relevant law enforcement agency (commonly the applicant for the order) from pursuing criminal proceedings, including for the offence of perverting the course of justice. In R v Kenny, the court considered it fanciful to imagine that someone contemplating disobedience of a restraint order would act on the basis that contempt of court would be the sole penalty. The guidance from that authority is therefore clear: there should be no legitimate expectation that violating a restraint order will lead only to civil contempt...
This Practice Note gives practical guidance on responding to a dawn raid by the Information Commissioner’s Office ( ICO). It outlines what the ICO is, common grounds for a raid, its powers, and the consequences of not co‑operating. It reflects the UK General Data Protection Regulation ( GDPR). All GDPR references and links are to the UK GDPR ( Retained Regulation ( EU) 2016/679), unless stated otherwise. What is the ICO? The ICO is an independent authority established by the UK government to uphold information rights in the public interest, promote openness in public bodies, and protect individuals’ data privacy. It is an executive non‑departmental public body sponsored by the Department for Digital, Culture, Media & Sport. The ICO oversees and may enforce: Data Protection Act 2018 ( DPA 2018) GDPR Freedom of Information Act 2000 ...
ARCHIVED : This Practice Note has been archived and is not maintained. With effect from 6 April 2025, the Consumer Protection from Unfair Trading Regulations 2008, SI 2008//1277, are revoked and superseded by the Digital Market, Competition and Consumers Act 2024 ( DMCCA 2024). Nevertheless, CPUTR 2008, SI 2008/1277, continues to apply to any conduct that took place before 6 April 2025. For details on misleading actions under DMCCA 2024, refer to Practice Note: Misleading actions under the Digital Markets, Competition and Consumers Act 2024. Misleading actions Under the Consumer Protection from Unfair Trading Regulations 2008 ( CPUTR 2008), SI 2008/1277, a commercial practice may amount to a misleading action in two distinct ways......
Draft Judgement Following any appeal hearing where the court withholds judgement and signals that it will be delivered on a later date, all parties must appreciate that any draft judgement is under embargo and its content is confidential to the case’s counsel and solicitors. On receipt, a draft judgement must be handled in confidence, on the basis that it is provided so counsel in the matter can alert the court to any significant factual mistake, omission, or typographical error before the ruling is announced. A draft judgement is plainly labelled on its face as confidential. It is a provisional judgement, liable to the changes outlined above, and may not reflect the final version of the judgement. A further key reason for circulating a draft judgement is to enable counsel in the proceedings to consider and prepare any applications that may flow from the...
The Environment Agency ( EA), Natural Resources Wales ( NRW), the Health and Safety Executive ( HSE) and Natural England possess extensive, though not limitless, statutory powers to enter premises lawfully. Environment Agency powers Rights of entry and investigation under section 108 of the Environment Act 1995 ( EA 1995) may lawfully be exercised without a warrant in appropriate circumstances, although a warrant might be necessary where permission to enter has been, or is expected to be, refused. However, access must strictly comply with the express terms of written authorisation and be solely for the specified purpose of: ascertaining whether pollution control or flood risk activity law is being, or has been, complied with carrying out one of the authority’s relevant pollution control or flood risk activity functions deciding whether, and if so how, such a function should be...
Statutory duty to whistleblow Under the Pensions Act 2004 ( Pe A 2004, s 70), those connected with pension schemes must notify the Pensions Regulator ( TPR) of certain legal breaches where there is reasonable cause to think the matter is likely to be of material significance to TPR. This obligation is widely referred to as the duty to whistleblow. For more detail on the breadth of the obligation, see: Who is required to whistleblow? and What needs be reported?, below. The statutory obligation takes precedence over any inconsistent obligations an individual owes (for example, a confidentiality duty to the scheme’s sponsoring employer). Submitting a report to TPR does not infringe such additional, conflicting or existing (eg confidentiality) obligations. Section 103A of the Employment Rights Act 1996 protects employees who make a report to TPR. The scope and application of the duty feature in TPR’s...
Assimilated Regulation ( EU) No 1169/2011 on the provision of food information to consumers ( Assimilated FIC) Assimilated FIC sets out the core rules, duties and overarching principles for food information—and especially food labelling—across the UK. It likewise operates within the EU. See Practice Note: Introduction to EU food law. It covers all pre-packed items, non-prepacked foods, goods packed on-site for direct sale, and fare supplied by mass caterers. Distinct obligations apply to the various product types and to operators at different points along the supply chain. Assimilated FIC took effect across the EU on 13 December 2011, when the UK remained an EU Member State. As the UK is no longer a Member State, it may revise and develop Assimilated FIC as it considers appropriate. In England, the Food Information Regulations 2014 ( FIR 2014), SI 2014/1855 provide the national enforcement framework and some...
This Practice Note provides a concise overview of the principal consumer laws that organisations engaging with consumers ought to know. It reviews the core rules that apply when trading with, or contracting for, consumers in the UK, together with other significant legislation that shapes the business-to-consumer relationship in areas such as advertising, data protection, e‑commerce, product liability and safety, the supply of services, and civil enforcement and consumer disputes, as well as additional measures that protect consumers. It does not address sector‑specific regimes (eg travel and transport, insurance, consumer credit, gambling, charities), product‑specific regimes (eg alcohol, tobacco, animal/food/textile products, cars, medicines, fireworks), requirements on product or packaging marking or labelling, underage sales, or environmental legislation. EU legislation is outside the scope of this Practice Note. For further detail, see Practice Note: Key EU consumer...
Taking a conveyance without authority offence This offence is committed where a person does the following: takes a conveyance without the owner’s consent or any other lawful authority for their own use, or for another’s use, or knowing that a conveyance has been taken without such authority, drives it, or allows themselves to be carried in it or on it It is a summary-only offence. A count alleging this offence may be included within an indictment for another offence if: it is founded upon the same facts or evidence as a count charging the indictable offence, or it is part of a series of offences of the same or similar character as an indictable offence which is also charged However, where the offence is heard with an indictable offence in the Crown Court, the court may only deal with the defendant in the same way that a...
section 2 notices This Practice Note addresses the compulsory power to require documents to be provided under section 2 of the Criminal Justice Act 1987 ( CJA 1987) (section 2 notices). For a separate summary of the provisions on section 2 interviews, see Practice Note: Interviews under the Criminal Justice Act 1987, s 2. Under CJA 1987, s 2(2), the Director of the Serious Fraud Office ( SFO), or a designated person, may require any person to supply information or answer questions during an investigation, where there are reasonable grounds to suspect an offence involving serious or complex fraud or corruption has been committed. CJA 1987, s 2(3) empowers the Director of the SFO, on the same basis, to issue a section 2 notice compelling the production of documents. A notice may stipulate that documents are to be supplied or produced at a named and...
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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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