Legal Practice Notes

Encouraging criminality As of 1 October 2008, when the Serious Crime Act 2007 ( SCA 2007) came into force, the common law offence of incitement was abolished. In its place, SCA 2007, ss 44–46 introduced the offences of encouraging or assisting, which are inchoate in nature, covering unlawful conduct that has not yet occurred. Under the SCA 2007 there are three routes to liability for encouraging criminality: intentionally encouraging or assisting an offence encouraging or assisting an offence while believing it will be carried out encouraging or assisting offences, believing that one or more will be carried out An offence is made out where both of the following apply: a person does something capable of encouraging or assisting the commission of an offence, and that encouragement or assistance is intended to bring about the commission of the...

There are rigorous controls on the export, brokering and transhipment of ‘strategic’ goods, software and technology moving from or via the UK. This covers military kit and ‘dual-use’ items capable of serving both civil and defence purposes effectively. For guidance on whether these rules apply, see Practice Note Export controls— Requirement for an export licence. The Export Control Joint Unit ( ECJU), a unit within the Department for Business and Trade, is responsible for issuing licences for controlled goods and for overseeing exporters’ compliance with the regime and the controls. Breaching the controls constitutes a criminal offence. HMRC and the Crown Prosecution Service ( CPS) lead on investigations and prosecutions where parties fail to comply. For details on enforcing and prosecuting export control breaches, see Practice Note: The enforcement of export control breaches. That Practice Note reflects ECJU guidance on...

The process for determining any request to inspect the evidential information and documents underpinning a search warrant or similar order—where an investigator seeks non-disclosure—is set out in the Criminal Procedure Rules 2025 ( Crim PR 2025), SI 2025/909, rr 5.7–5.10. Those provisions have been revised to set in statutory form the ruling in Metropolitan Police Commissioner v Bangs, which is examined in this Practice Note. Does a magistrate have jurisdiction to hear an application? In line with Eastenders Cash and Carry v South Western Magistrates Court, it is correct for a magistrate to begin from the proposition that a claimant is entitled to see the material that persuaded the court to authorise a warrant, unless the public interest requires that some or all of that material should be withheld. When a court considers a request for a search warrant and exercises its statutory power to issue one, it is...

In Scotland, the Crown Office and Procurator Fiscal Service ( COPFS) is under a duty to reveal all material in its possession to the defence. This obligation to disclose applies to prosecutions under both summary and solemn procedure. For an overview of criminal investigation and prosecution policy in Scotland, see Practice Note: The investigation and prosecution of criminal offences in Scotland. For details on summary procedure in Scottish criminal proceedings, see Practice Note: Summary procedure in Scottish criminal proceedings and Scottish summary criminal procedure—flowchart. For information on solemn procedure in Scottish criminal proceedings, see Practice Note: Solemn procedure in Scottish criminal proceedings and Scottish solemn criminal procedure—flowchart. Background The Crown’s requirement to provide the defence with all material it holds arises from the accused’s right to a fair trial under Article 6 of the European Convention on Human Rights. The scope of the Crown’s...

Copyright theft Unauthorised use of copyright is a criminal matter under the Copyright, Designs and Patents Act 1988 ( CDPA 1988), the Trade Marks Act 1994 ( TMA 1994) and the Video Recordings Act 1984 ( VRA 1984). It may alternatively be brought under the Fraud Act 2006 ( Fr A 2006), or pursued as a conspiracy contrary to the Criminal Law Act 1977 ( CLA 1977), or at common law as conspiracy to defraud. See Practice Notes: Conspiracy and Conspiracy to defraud. Cases can be taken by the Crown Prosecution Service or by trading standards. Enquiries may call on HM Revenue and Customs, the UK Border Agency and the National Crime Agency. Most CDPA 1988 offences—namely those in CDPA 1988, s 107(1)(a)–(b), (d)(iv) and (e)—are either-way, meaning trial may occur in the magistrates’ court or the Crown Court. They are treated as the graver...

This Practice Note aims to provide some guidance on the core principles of legal professional privilege ( LPP) and how they apply in criminal investigations and prosecutions. For further information and guidance on maintaining LPP for a client during the course of a criminal investigation, see Practice Note: Maintaining privilege during criminal investigations. What is privilege? Privilege can be grouped into four primary categories in law: legal professional privilege common/joint interest privilege (though, strictly, this sits within legal professional privilege) without prejudice privilege privilege against self-incrimination This Practice Note deals solely with LPP within a criminal context. For more general information concerning legal professional privilege, see Practice Note: Legal professional privilege in civil proceedings. For information on other types of privilege, refer to Practice Notes: Privilege—joint and common interest privilege,...

Criminal offences are generally divided into two categories: conduct crimes result crimes A conduct crime arises where proving the prohibited conduct alone is sufficient. For instance, an accused commits dangerous driving by operating a motor vehicle dangerously on a road or other public place; there is no need to demonstrate harmful outcomes such as injury to another person. A result crime, by contrast, requires that specified consequences occur; for example, murder necessitates proof that a person has been killed. For any result crime the prosecution must show both a factual connection between the accused’s conduct and the alleged outcome (factual causation) and a legally sufficient cause linking that conduct to the forbidden consequences (legal causation). Factual causation is often described as the 'but for' test: the result must not have happened but for the accused’s actions. If this factual link cannot be shown, the...

This Practice Note sets out how the defence may seek to recover costs from the prosecutor after an unsuccessful criminal prosecution, relying on section 19 of the Prosecution of Offences Act 1985 ( POA 1985). If, in criminal proceedings, one party incurs costs because another has acted or failed to act in an unnecessary or improper way, the criminal courts can direct that those costs are borne by the party whose conduct was unnecessary or improper. An acquitted defendant may advance a claim on this footing; however, given the very high bar that applies, success is exceptionally uncommon. A costs award on this footing is distinct from a defendant’s costs order under POA 1985, s 16, and from a wasted costs order against legal representatives under POA 1985, s 19A. See Practice Notes: Recovering acquitted defendants’ costs in criminal...

This Practice Note This Practice Note brings together leading convictions for corporate manslaughter under section 1 of the Corporate Manslaughter and Corporate Homicide Act 2007 ( CMCHA 2007), offering succinct case summaries. It serves as a tracker to support practitioners in keeping abreast of the penalties handed down for this offence and the manner in which the relevant sentencing guidelines for corporate manslaughter are being applied in England and Wales. For the steps the Crown Court must take when sentencing corporate manslaughter offences in England and Wales, see Practice Note: Sentencing for corporate manslaughter. For guidance on the offence, see Practice Notes: Corporate manslaughter—an introductory guide, Corporate manslaughter—the offence and Corporate manslaughter—enforcement and prosecution. Corporate manslaughter—convictions Fairytales Day Nursery Limited Plea entered/verdict reached: Guilty pleas to breaches of CMCHA 2007, s 1 and HSWA...

Offence of conspiracy to defraud This is a common law offence expressly retained by section 5(2) of the Criminal Law Act 1977 ( CLA 1977) and remains triable only on indictment. The essence is an agreement, between at least two persons, to act dishonestly so as to defraud a victim. It is notably broad and captures behaviour that, standing alone, might not be criminal at all, yet, because two or more agree to pursue it with the necessary intent, it is treated as an offence in law. Accordingly, the common law form extends beyond statutory conspiracy in practice, since it does not insist that the agreement concerns carrying out a specific substantive criminal offence. The statutory conspiracy provision appears in CLA 1977, s 1. That statutory offence demands a pact which will of necessity amount to, or entail, the commission of an...

Compensation orders The procedural framework governing the criminal courts’ authority to issue compensation orders appears in sections 133–146 of the Sentencing Act 2020 ( SA 2020), also referred to as the Sentencing Code. For background on SA 2020’s commencement and scope, see Practice Note: Sentencing Code. When passing sentence on a convicted offender, the court assesses whether to direct a compensation order in favour of the victim(s). Such orders may be imposed in place of, or alongside, other penalties, and may be made against both natural persons and corporate defendants. Relevant offence-specific guidelines from the Sentencing Council expressly instruct courts to consider compensating the victims of crime. Practitioners should therefore review the Sentencing Council’s offence-specific guidance, which confirms whether a compensation order is available following conviction. That guidance summarises the situations in which an order may be made, the matters the court must weigh when...

This Practice Note describes the criminal offences that are of most relevance to company directors, and: concentrates on offences an individual commits as a principal, rather than: secondary liability, eg aiding and abetting, and inchoate liability, eg acting as a conspirator is confined to the law of England and Wales The offences addressed are punishable by a fine, imprisonment, or both, as set out below. Please note that a subscription to Lexis+® UK Corporate Crime is required to view some of the Practice Notes cited. For offences committed in England and Wales before 12 March 2012, fines imposed by a magistrates' court (ie on summary conviction) were capped at £5,000, while there has never been a cap on fines in the Crown Court (ie on...

Offence of cheating the public revenue The offence of cheating the public revenue is a common law crime triable solely on indictment. Consequently, where the public purse is the victim, the fraud will invariably be heard in the Crown Court, even though an equivalent matter between private individuals might be suitable for summary trial. Section 32(1)(a) of the Theft Act 1968 ( TA 1968) preserves this offence whilst abolishing cheating in general. In R v Dosanjh, the Court of Appeal concluded that it is reasonable to infer that Parliament intentionally left the common law offence unaffected by statutory reforms in this area, recognising that doing so was appropriate for the protection of the public. In that case, the Court of Appeal further held there was sound reason to prefer charging the common law offence in relation to ‘missing trader...

This Practice Note outlines the tests a court applies when deciding if visual identification evidence should be ruled inadmissible at trial. It highlights typical infringements of the Police and Criminal Evidence Act 1984 ( PACE 1984) Code of Practice D ( PACE Code D) and sets out the principles governing the admissibility of dock identifications and recognition evidence. Breach of PACE Codes of Practice The setting up and conduct of identification procedures are regulated by the Police and Criminal Evidence Act 1984 ( PACE 1984) Codes of Practice, Code D, commonly referred to as PACE Code D. A breach of PACE Code D arises where: the police do not arrange an identification procedure in circumstances requiring one (that is, where identity is disputed and such a procedure would be of practical value), or having initiated an identification procedure, the police fail to comply with the...

The Regulations The Regulations took effect on 6 April 2015. They aim to embed health and safety as a core, everyday factor in the planning and oversight of construction schemes, and to clarify the responsibilities of all parties. Their policy aims are to preserve or enhance worker protection, streamline regulatory practice, curb unnecessary bureaucracy and align with better regulation principles (they gave effect to the EU Temporary or Mobile Construction Sites Directive (the ' TMCS')). The Regulations should be considered alongside detailed guidance from the Health and Safety Executive ( HSE Guidance on the ). It provides practical context and illustrative clarification. That guidance, whilst not legally binding, adds substance to the bare framework of the Regulations for everyday application in practice. They apply to all 'construction work' (as defined in regulation 2). To meet the TMCS, which placed obligations on domestic clients,...

The offence A person commits blackmail if, aiming to obtain a gain for themselves or another, or intending to cause another a loss, they make an unwarranted demand with menaces. A demand with menaces is treated as unwarranted unless the maker holds the belief that: they have reasonable grounds for making the demand; and the use of menaces is a proper way to reinforce the demand. Blackmail is an indictable-only offence and can be tried only in the Crown Court. Jurisdiction At least one constituent element of the offence must occur in England and Wales. A person is guilty of blackmail whether or not they were in England and Wales at any material time, and whether or not they are a British citizen......

Damage to property caused by fire is charged as arson A person who, without lawful excuse, destroys or harms another’s property by fire, intending that outcome or being reckless as to whether it occurs, commits arson under section 1(3) of the Criminal Damage Act 1971 ( CDA 1971). For guidance on criminal damage generally, see Practice Note: Criminal damage. In R v Booth, the omission of any reference to arson in the particulars led the court to treat the indictment as a nullity. The point was considered again in R v Drayton, where the court held that the allegation must, at the very least, be identified as ‘damage by fire’, ensuring the defendant is in no doubt that fire damage is alleged, an accusation carrying a harsher sentence than straightforward criminal damage. This is because arson attracts sterner penalties than simple criminal damage, by clear...

Under paragraph 2(1) of Schedule 3 to the Crime and Disorder Act 1998 ( CDA 1998), a defendant may, after being served with the documents containing the evidence underpinning the charge(s) but before arraignment, request the Crown Court—either orally or in writing—to dismiss the charge(s). The application may relate to any or all of the charges in the case. The process is set out in the Criminal Procedure Rules 2025 ( Crim PR 2025), SI 2025/909, r 3.20. How to make an application to dismiss The defendant must apply in writing no later than 20 business days after service of the prosecution evidence and before they are arraigned. An application can be made to extend the time limit. The application must be served on the Crown Court officer and on every other party to the...

Where defendants acknowledge guilt, they can either enter a guilty plea or require the prosecution to prove the case. Pleading guilty may attract a reduction in sentence; see Practice Note: Credit for guilty plea. That said, the Sentencing Council’s overarching guidelines on reductions for a guilty plea expressly curtail credit where a Newton hearing has occurred and the defendant’s account has been rejected. Those guidelines provide that the reduction otherwise available at the stage the plea was first indicated will generally be cut by half, and, if witnesses are called during the hearing, a further downward adjustment may be appropriate. Practitioners should therefore think carefully about any proposed basis of plea and be alert to the effect an unsuccessful Newton hearing may have on anticipated credit. They should also ensure clients are advised on both issues before a plea is entered, and that a...

Once a defendant is found guilty of a criminal offence by a court in England and Wales, the court then considers what sentence should follow. See Practice Notes: Sentencing procedure in the magistrates’ and Crown Courts and Sentencing Code. This Practice Note outlines the purpose and reach of mitigation advanced on behalf of convicted defendants in England and Wales to lessen the sentence imposed by the court... Factors determining sentence Sentencing courts must have regard to any matters that, in the court’s opinion, are relevant in mitigation of sentence. Mitigation covers any element of a case that reduces the seriousness of the sentence to be passed, whether affecting its length or its type. By contrast, aggravating factors are those that increase the severity of the sentence. Before reaching conclusions for the purpose of imposing certain sentences, the court is required to consider both...