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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 both the magistrates’ court and the Crown Court, going ahead with a trial when the defendant is not present is a measure of last resort, one the courts seek to avoid unless it is truly required. In R v Jones, the House of Lords confirmed that any choice to proceed in a defendant’s absence must be approached with exceptional caution and with careful attention to the fairness of the hearing; a defendant who cannot attend because of involuntary illness or incapacity has far stronger grounds to oppose the trial continuing than someone who has deliberately absented themselves by absconding. Running a trial without the defendant can create prejudice not only for the missing accused but also for any co‑defendants, and it may lead to confusion for a jury, undermining clarity and fairness in the process......
This Practice Note considers privilege and confidential information where the client–solicitor relationship has ended. It explores who holds privilege in general and in later litigation, and whether a former client can restrain their previous solicitor from acting for another party on the basis of privilege or breach of confidence. Who does privilege belong to in any subsequent litigation? Legal professional privilege belongs to the client—see further: Privilege—general principles— Who does privilege belong to? Moreover, once a communication is privileged, it will usually remain so—see further: Privilege—general principles— How long does privilege last? This was illustrated in Kousouros v O’ Halloran, where it was decided that a party retained legal advice privilege over a document disclosed to an opponent by a former solicitor, even after the retainer had concluded. The underlying dispute involved a brother and sister who were each given equal shares in their...
Background The idea of the privilege against self-incrimination, often treated as a single safeguard, in truth stems from several distinct common law protections for defendants and witnesses, each aimed at shielding citizens from misuse of powers by those who investigate crime. Each reflects concern for the protection of citizens against abuse of powers by those investigating crimes in law. Those varied protections can be broadly grouped as: a privilege against self-incrimination for witnesses in criminal, civil, or other non-judicial investigative proceedings (including coroners' inquests) the entitlement of a defendant not to give evidence at trial; and a suspect’s right to remain silent during a pre-trial criminal inquiry As outlined below, the privilege is not absolute, and statute has intruded upon these protections in several ways. The privilege against self-incrimination at common law The privilege against self-incrimination is a long-established common law protection. The principle developed at common law as a reaction to...
Power to bring a private prosecution A private prosecution is initiated by an individual, company or organisation acting independently of the police, the Crown Prosecution Service ( CPS) or any other public prosecuting body. Section 6(1) of the Prosecution of Offences Act 1985 ( POA 1985) safeguards the ability of a private person to commence and run criminal proceedings. A broad spectrum of offences is routinely pursued through such actions, often by specialist bodies and charities. Notably, the courts have repeatedly acknowledged this as a significant right within the justice system. Charities, including the Royal Society for the Prevention of Cruelty to Animals ( RSPCA), bring cases privately. Organisations such as the Federation against Copyright Theft and the British music industry pursue misuse of intellectual property through private prosecutions. The Financial Conduct Authority ( FCA) has also exercised this route, acting in the...
There are three categories of suspect who might be interviewed: an individual not under arrest about whom a police officer has reasonable grounds to suspect has committed, or is committing, an offence. A constable may ask that person certain questions suspects held in police custody. The protections for those questioned while in custody are set out in the Criminal Justice ( Scotland) Act 2016 ( CJ( S) A 2016) a person who attends a police station or other location voluntarily to be questioned as a suspect. Where Police Scotland, or a regulatory body with powers to question, believes a corporate crime has been, or is being, committed, they will often invite an individual to attend for voluntary suspect questioning Powers to question different types of suspect Section 13 powers Section 13 of the Criminal Procedure ( Scotland) Act 1995 ( CP( S) A 1995) gives a...
Mutual legal assistance ( MLA) is the process through which states support one another with investigative and enforcement measures in criminal inquiries and proceedings. It covers assistance at both the investigative stage and during proceedings. Many MLA treaties ( MLAT) authorise assistance to restrain and confiscate the proceeds of crime. The domestic confiscation/restraint frameworks are set out in Parts 2–4 of the Proceeds of Crime Act 2002 ( POCA 2002), while POCA 2002, Pt 11 sets the regime for responding to incoming requests. For more information on MLA generally, see Practice Notes: Mutual legal assistance ( MLA) Mutual legal assistance—forms of assistance For detailed information on MLA in specific contexts, see Practice Notes: Mutual legal assistance—restraint and confiscation Mutual legal assistance—civil recovery POCA 2002 powers to create secondary legislation Sections 444 and 445 of POCA 2002 confer power to make secondary...
A defendant, the prosecution, or a court-appointed receiver may ask the Crown Court to lower a confiscation order where the funds available to satisfy it are insufficient. The court is required to reassess, as at the application date, what sum is actually available. If it finds the resources fall short, the court may replace the figure with a lesser sum it deems fair. For further guidance on reducing confiscation orders, see Practice Note: Confiscation orders—to vary or appeal. What is the power to revise a confiscation order upwards? Where, post-order, new material indicates the available amount exceeds the initial assessment, the prosecution or the appointed receiver can invite the Crown Court to revisit—and potentially raise—the available amount set by the order. Such uplifts commonly aim to remove the offender’s gain from crime when additional details emerge about assets or means traceable to unlawful...
in judicial proceedings Perjury is an indictable-only offence, attracting a maximum of seven years’ imprisonment and/or a fine. The constituent parts of this offence are set out as follows: being a witness or an interpreter who has been duly sworn in judicial proceedings wilfully making a material statement that is false, and knowing it is untrue or not believing it to be true Assisting, encouraging or procuring perjury contrary to section 1 of the Act 1911 ( Pe A 1911) is likewise an indictable offence and also carries the same ceiling penalty. Where the principal wrongdoing amounts to a lesser offence triable either way, the maximum sentence available on indictment is two years’ custody and/or a fine; if dealt with summarily, the court may impose an unlimited fine and/or a custodial term not exceeding the general limit in a magistrates’ court (or both). See Practice Note: Sentences imposed following...
Section 9 and Schedule 1 to the Police and Criminal Evidence Act 1984 ( PACE 1984) Section 9 and Schedule 1 of PACE 1984 set out a route by which the police may obtain access, for the purposes of a criminal investigation, to material that is not reachable via an application to the magistrates’ court under s 8, namely ‘excluded material’ and ‘special procedure material’. Where the statutory access conditions are satisfied, an application can be pursued to discharge the prosecution’s duty to follow reasonable lines of enquiry, rather than to gather evidence on which the Crown intends to rely. An application under PACE 1984, s 9 and Sch 1 is made to a circuit judge of the Crown Court, seeking either a production order or a search and seizure warrant. For guidance on making applications to obtain excluded material and special...
Why was the Offender Rehabilitation Act introduced? The Ministry of Justice identified that about 50,000 short-sentence prisoners were leaving custody without any rehabilitation support. Those coming out after brief terms were at greater risk of reoffending, with this group responsible for around 85,000 crimes each year. The legislation forms part of the government’s wider reforms to probation. Implementation dates The Offender Rehabilitation Act 2014 ( ORA 2014) received Royal Assent on 13 March 2014. From 1 June 2014, certain measures took effect, including provisions on supervising and rehabilitating female offenders, the officer responsible for implementing orders, and offenders sentenced by Service Courts. The remaining provisions, which relate to offender rehabilitation, commenced on 1 February 2015. What does the Offender Rehabilitation Act 2014 change? Release arrangements ORA 2014 introduces several changes to the release arrangements in the Criminal Justice Act 2003 ( CJA 2003) for people serving custodial...
A notice of intended prosecution ( NIP) is a formal alert, typically issued by the police authorities, indicating that proceedings are being contemplated against an individual. Its purpose is to afford that person an opportunity to collect and preserve evidence in support of their case. The requirement to notify in road traffic cases Under the provisions of the Road Traffic Offenders Act 1988 ( RTOA 1988), s 1, for certain offences: the defendant must have been advised at the time of the possibility of prosecution for the offence; or the defendant must have been served with a summons within 14 days of the offence; or a notice of the possibility of prosecution must have been sent by the prosecutor within 14 days of the offence, either to the driver or to the registered keeper of the...
Offences relating to financial services The Financial Services Act 2012 ( FSA 2012) sets out three offences aimed at market manipulation: issuing false or misleading statements, or deceitfully hiding material facts, under FSA 2012, s 89 producing false or misleading impressions under FSA 2012, s 90 making false or misleading statements, and related conduct, concerning benchmarks under FSA 2012, s 91 See also Practice Notes: Misleading statements etc in relation to benchmarks and Misleading impressions under Financial Services Act 2012. For details of the previous regime for market manipulation under section 397 of the Financial Services and Markets Act 2000 ( FSMA 2000), which has been repealed, refer to Practice Note: Misleading the market and market manipulation under s 397 FSMA 2000 [ Archived]......
ARCHIVED : This Practice Note is no longer current and is not being updated. From 6 April 2025, the Consumer Protection from Unfair Trading Regulations 2008 ( SI 2008/1277) were repealed and replaced by the Digital Market, Competition and Consumers Act 2024 ( DMCCA 2024). However, CPUTR 2008 ( SI 2008/1277) will continue to apply to conduct that occurred before 6 April 2025. For details on misleading omissions under the DMCCA 2024, see Practice Note: Misleading omissions under the Digital Markets, Competition and Consumers Act 2024. The offence of misleading omissions Under the Consumer Protection from Unfair Trading Regulations 2008 ( CPUTR 2008), SI 2008/1277, engaging in a commercial practice that amounts to a misleading omission is an offence, see regs 6 and 10. Regulation 10 of CPUTR 2008 ( SI 2008/1277) provides that a trader commits an offence if they engage in a...
As at 6 April 2025, the Digital Markets, Competition and Consumers Act 2024 ( DMCCA 2024) has repealed and superseded the consumer protection framework set out in the Consumer Protection from Unfair Trading Regulations 2008 ( CPUTR 2008), SI 2008/1277. This Practice Note addresses the offence of carrying on a commercial practice that entails a misleading omission, and the distinct offence of withholding material information from an invitation to purchase under DMCCA 2024. While the provisions for these offences under DMCCA 2024 broadly reflect those in CPUTR 2008, SI 2008/1277, the prior ban on failing to include material information in an invitation to purchase has been extended and now stands as a discrete type of misleading commercial practice. In addition to targeting drip pricing, the offence has been widened so that leaving out material information from an invitation to purchase is unfair...
This Practice Note sets out and clarifies the case management powers of the magistrates’ courts when handling summary-only matters or either-way cases that are before the magistrates’ courts in the ordinary course. The overriding objective In line with the overriding objective, courts must actively manage proceedings so that they are dealt with justly, efficiently and with expedition, avoiding unnecessary delay. In effect, each case requires robust, proactive oversight by the court. In addition, the prosecution and the defence must assist the court to make sure their case progresses as efficiently as possible at every stage. Case management in the magistrates’ court Case management in the magistrates’ court is governed by the Criminal Procedure Rules 2025 ( Crim PR 2025), SI 2025/909, Pt 3, together with the Criminal Practice Directions 2023 ( CPD). Criminal lawyers should also ensure they are familiar with the...
The Investigatory Powers Act 2016 ( IPA 2016) reshaped the statutory regime governing covert surveillance by public bodies, a regime that was largely, though not entirely, contained in the Regulation of Investigatory Powers Act 2000 ( RIPA 2000). Local authorities hold powers under both IPA 2016 and RIPA 2000. In addition, the Covert Human Intelligence Sources ( Criminal Conduct) Act 2021 allows certain public authorities to authorise criminal conduct by covert human intelligence sources. For more detail, see News Analysis: Covert Human Intelligence Sources ( Criminal Conduct) Act 2021. Surveillance powers available to authorities The acquisition and disclosure of communications data (such as telephone billing information or subscriber details) Directed surveillance (covert surveillance of individuals in public places) Covert human intelligence sources ( CHIS) (for example, the deployment of undercover officers) Local authorities employ covert methods to support their statutory...
Legal professional privilege ( LPP) is a crucial factor when assessing whether to file a suspicious activity report ( SAR) with the National Crime Agency ( NCA) under the Proceeds of Crime Act 2002 ( POCA 2002) and the Terrorism Act 2000 ( TA 2000). Key questions include: Would submitting a SAR to the NCA breach your obligation to preserve client confidentiality? Would it infringe the client’s right to LPP? Does the privileged circumstances defence arise? This is an exceptionally complex area of law. This Practice Note addresses privilege only as it relates to the AML and CTF regime. Broader privilege matters are excluded. For general guidance on LPP, see the subtopic: Legal professional privilege. Duty of confidentiality Law firms owe a stringent professional and legal obligation to keep clients’ affairs confidential. Safeguarding a client’s confidential information is a core aspect of your duty to the...
Obtaining services dishonestly Under the Fraud Act 2006 ( Fr A 2006), it is an offence for a defendant to secure, by any dishonest conduct, services for which payment is required, intending to evade that payment. obtains for themselves or another person services dishonestly knowing the services are provided on the basis that payment has been, is being, will be, or could be required for them, or in respect of them intends to avoid payment in whole or in part The defendant must know the services are made available on a chargeable basis, or that they might be chargeable. Services offered free of charge are not caught by this offence. This offence may occur in circumstances that might otherwise be prosecuted under s 1 Fr A 2006, or may align more closely with making off without payment under section 3 of the Theft Act...
The Financial Services Enforcement Database The Financial Services Enforcement Database holds comprehensive details of all substantive FCA and PRA Final Notices and, where available, Decision Notices, from 2014 onwards. The Database can be searched and filtered by: rule breach keyword sector date seriousness aggravating and mitigating factors financial penalty other actions, including referrals to the Upper Tribunal The Financial Conduct Authority ( FCA) has a range of powers (see sections 97, 131E, 131F, 165–169, 171–173, 175, 176 and 284 of the Financial Services and Markets Act 2000 ( FSMA 2000)) to gather information, appoint investigators, and require a skilled persons report ( FSMA 2000, s 166). In each situation, the FCA selects the combination of powers it deems most appropriate. For reasons of fairness, transparency and efficiency, it will usually use formal statutory powers to obtain...
This Practice Note deals with the position regarding the evidence of an expert witness called in criminal proceedings under the Criminal Procedure Rules 2025 ( Crim PR 2025), SI 2025/909, Pt 19 and the Criminal Practice Directions A party may call an expert only where the subject-matter lies outside the ordinary knowledge of the judge or jury. Expert opinion should not be used where the court’s own knowledge suffices. The judge’s gatekeeping role is central in this context. A person may present themselves as an expert only if appropriately qualified—the issue is for the judge, who will evaluate: whether the opinion belongs to a body of knowledge and experience with sufficient organisation to be regarded as reliable; and whether the witness has, through study or experience, acquired enough understanding of the field so that their evidence would assist the court on a...
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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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