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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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This Practice Note examines what amounts to hearsay evidence, the circumstances in which it may be admitted, and the process for applying to adduce it. Because hearsay can affect the fairness of a criminal trial, it is a significant feature of proceedings. It also outlines the factors the court ought to weigh when deciding whether to permit or exclude such material. How to identify hearsay The Criminal Justice Act 2003 ( CJA 2003) defines hearsay. At its core, hearsay is a second-hand narration of a relevant issue. It consists of four key components. There must be: a statement made outside the courtroom advanced for the truth of what it says, and the maker’s purpose is to induce another to believe or act on the stated facts A statement Under the CJA 2003, a statement is broadly any...
When more than one enforcement body is tasked with the investigation and/or prosecution of criminal offences, the authorities commonly adopt a joint memorandum of understanding ( Mo U). An Mo U is a compact between enforcing authorities that outlines how they will collaborate to investigate and prosecute offences together. Practitioners should familiarise themselves with any Mo U that applies to cases on which they advise clients, to ensure investigations are conducted fairly, transparently, as set out in the relevant Mo U and in the manner specified in the applicable Mo U. This Practice Note highlights some of the Mo Us in force between regulators. It is not a comprehensive list. Serious Fraud Office The Serious Fraud Office ( SFO) has entered into a significant number of Mo Us with other regulators and government bodies where their mandates overlap with each other......
This Practice Note sets out a summary of the Financial Conduct Authority’s ( FCA) criminal powers to bring fraud prosecutions under the Fraud Act 2006 ( Fr A 2006), the Theft Act 1968 ( TA 1968), common law conspiracy to defraud and, from 1 September 2025, the corporate offence of failure to prevent fraud. It also outlines key fraud offences and records FCA fraud prosecutions. In addition, this Practice Note reviews the FCA’s ability to bar persons convicted of fraud from participating in financial services by deploying formal enforcement powers under the Financial Services and Markets Act ( FSMA 2000). It further signposts practical, in‑depth guidance... Overview A core function of the Financial Conduct Authority ( FCA) is acting as a private prosecutor, notably for fraud offences, including the general fraud offence in Fr A 2006, s 1. Fraud counts are frequently advanced...
The Financial Services Enforcement Database The Financial Services Enforcement Database collates comprehensive details of all substantive FCA and PRA Final Notices and, where available, Decision Notices, from 2014 onwards. It can be searched and refined by rule breach, keyword, sector, date, seriousness, aggravating and mitigating factors, financial penalty, and other actions, including referrals to the Upper Tribunal. This Practice Note outlines the Financial Conduct Authority ( FCA)’s approach to contested enforcement against firms and individuals, as distinct from matters handled under the FCA’s Executive Procedures. It covers the issue of Warning, Decision and Final Notices on the recommendation of the Regulatory Decisions Committee ( RDC), the potential for discontinuance or settlement, and references to the Upper Tribunal ( Tax and Chancery Chamber) ( Upper Tribunal). Once FCA investigators have: concluded their investigation determined that enforcement action is appropriate prepared their case papers for the RDC and...
Under the Insolvency Act 1986 ( IA 1986), it is a criminal offence for any officer of a company, past or present, to obtain creditors’ agreement by deception or by making false statements in connection with a company’s winding up. The matter can be prosecuted in either the magistrates’ court or the Crown Court. Elements of the offence a company is in the process of being wound up, whether by the court or voluntarily the individual is, or has previously been, an officer of the company they make a false representation, or they perpetrate fraud for the purpose of obtaining the creditors’ consent to an agreement concerning the company’s affairs or to the winding up, and they are deemed to have committed the offence if, prior to the winding up, they made any false...
This Practice Note discusses the two ‘failure to prevent’ corporate criminal offences created by the Criminal Finances Act 2017 ( CFA 2017): CFA 2017, s 45 establishes the offence of failing to prevent the facilitation of a UK tax evasion offence(s) ( UK tax evasion facilitation offence) CFA 2017, s 46 establishes the offence of failing to prevent the facilitation of a foreign tax evasion offence(s) (foreign tax evasion facilitation offence) Both offences impose strict liability, with a ‘reasonable procedures’ defence for those able to show they maintained reasonable procedures designed to prevent facilitation of the underlying tax evasion offences. This Practice Note explains the components of each offence and the defences introduced by the CFA 2017. The offences sit within a broader suite of measures aimed at combating tax evasion and its facilitation, both in the UK and worldwide. They are...
Offence of failing to co-operate with a preliminary test Failing, without a reasonable excuse, to comply with a preliminary test when lawfully required amounts to an offence. This is a summary-only offence. The components are: failing to co-operate with a preliminary test when required, and without reasonable excuse The prosecution must prove each element to the criminal standard, namely beyond reasonable doubt. Under the Deregulation Act 2015, the previous obligation to carry out a preliminary breath test before evidential breath tests has been removed. Police may therefore proceed directly to evidential breath testing at the roadside where a portable evidential device is available, although the power to require a preliminary breath test remains. Failing to co-operate ‘ Failing’ includes refusing. If a defendant is asked to co-operate with a preliminary test, has the opportunity to do so, yet chooses not to, that is a clear...
Facilitating the performance of a duty by public officials Facilitation payments, sometimes termed ‘grease’ or ‘facilitating’ payments, are typically modest sums made to public officials or third parties in order to secure the carrying out of their functions, either more swiftly or even to ensure it occurs at all. This may extend to the giving of ‘gifts’, such as cigarettes or alcohol. In certain jurisdictions, these payments are routine and lawful (eg permitted in some situations under the US Foreign Corrupt Practices Act 1977 ( FCPA 1977); see Practice Note: The US Foreign Corrupt Practices Act 1977 ( FCPA 1977) and Bribery Act 2010 ( BA 2010) comparison table). Are facilitation payments illegal under BA 2010? Such payments amount to the offering, promising or providing of a financial advantage and therefore constitute bribery, as the Bribery Act 2010 ( BA 2010) provides no...
The test for exclusion under PACE 1984, s 78 A defendant is not automatically entitled to have evidence kept out solely because it was obtained unlawfully. To guard against wrongful convictions, section 78 of the Police and Criminal Evidence Act 1984 empowers the court, considering all the circumstances and the manner in which the material was procured, to refuse evidence if its admission would so compromise the fairness of the proceedings that it ought not to be received. The provision is limited to prosecution evidence. In the Crown Court, the discretion must be exercised before the evidence is admitted. Once evidence has been received, section 78 no longer applies; the defence must then rely on the court’s common law discretion to exclude. This common law power is expressly preserved by PACE 1984. See R v Sat- Bhambra (1988) 88 Cr App Rep 55...
The Health and Safety Executive The Health and Safety Executive ( HSE) is a non- Departmental Body within the Department of Work and Pensions and primarily serves as the principal regulator for health and safety offences. It co-operates closely with the Crown Prosecution Service ( CPS) and the police under the work related deaths protocol where manslaughter and corporate manslaughter are in issue. See Practice Note: Corporate manslaughter—an introductory guide. Section 10 of the Health and Safety at Work etc. Act 1974 (as amended) ( HSWA 1974) establishes the HSE to advance health and safety at work by conducting research, by providing training and information, and by undertaking enforcement. Basis of the HSE’s statutory powers Its powers and duties derive from a wide and comprehensive range of relevant statutes and statutory instruments......
Statutory nuisance leading to abatement notice A local authority is required to periodically examine its district for statutory nuisances, and when a resident submits a complaint, it must take all reasonably practicable steps to investigate it. A statutory nuisance may arise where any of the following are, or are likely to be, prejudicial to health or a nuisance: the condition or physical state of premises smoke, fumes or gas released from premises, a vehicle, machinery or equipment in a street dust, steam or odours originating from business, industrial or trade premises refuse, or any accumulation or deposited material noise arising from any premises, vehicle, machinery or equipment in the street For further detail on the above, see Practice Note: Statutory nuisance. A statutory nuisance can also be abated, limited or prevented by a nuisance order made by the...
Practice Note This Practice Note outlines the different categories of burglary recognised by the Theft Act 1968 ( TA 1968), highlighting those offences that are solely indictable. It examines the constituent elements of burglary and considers the applicable sentencing framework, with reference to the mandatory fixed-term penalty imposed by the ‘three strike rule’. Generally, burglary is an either-way offence, capable of being heard in the magistrates' court or committed for trial in the Crown Court......
The offence of assault with intent to resist or prevent arrest, contrary to section 38 of the Offences Against the Person Act 1861 ( OATPA 1861), is triable either in the magistrates’ court or in the Crown Court. Magistrates may refuse jurisdiction where their sentencing powers are thought to be inadequate in a given case. Guidance on the scope of magistrates’ court sentencing is set out, for that purpose, in the Sentencing Council’s Magistrates’ Court overarching guideline—allocation where relevant. Elements of the offence of assault with intent to resist or prevent arrest The components of the offence appear in OATPA 1861, s 38. The prosecution must show that the accused committed the following: an assault upon any person with the intention to resist or prevent the lawful apprehension or detention of themselves or another for any offence Meaning of assault A charge under OATPA 1861, s 38 demands proof of a...
Defendants' costs orders The framework for obtaining a defendant’s costs order ( DCO) is set by the Prosecution of Offences Act 1985 ( POA 1985). Any sums due under a DCO are paid from central funds. Practitioners should consult the Costs Practice Direction ( Costs in Criminal Proceedings) 2015, which sets out guidance on the principles and processes for granting costs to acquitted defendants in criminal cases. See also Practice Note: Criminal Practice Directions. The scope of the court’s authority to issue a DCO is identified below in detail......
The principal rules for imposing fines after conviction sit in sections 118–132 of the Sentencing Act 2020 ( SA 2020), also called the Sentencing Code. On conviction, a court may order a monetary penalty in place of, or in addition to, another sentence where the offence allows a fine, and this can occur in either the Crown Court or the magistrates’ court. Any financial penalty must reflect the seriousness of the conduct and may not exceed any statutory maximum attached to the offence. A fine is inappropriate where the gravity of the offence demands immediate custody, and it must not be used where a mandatory sentence applies (for example, life imprisonment for murder). See: A- G’s Reference ( No 41 of 1994) (1995) 16 Cr App Rep ( S) 792 (not reported by Lexis Nexis®). Where an offence sets a ceiling for the...
STOP PRESS: this Practice Note is being updated to take account of Criminal Courts Practice Note No. 1 of 2026: Taking of Evidence of a Vulnerable Witness by a Commissioner in the Sheriff Court This Practice Note outlines the procedure for taking evidence on commission in criminal proceedings in Scotland. Commissioners are designated by the Scottish criminal courts to obtain testimony from vulnerable witnesses as a special measure. What is meant by taking evidence by a commissioner Taking evidence by a commissioner is a special measure that enables a vulnerable witness to give their testimony before the trial at a commission hearing. The core aim is to support the witness to provide their best evidence. When first introduced, these provisions constituted a major shift in Scottish criminal procedure. They are now routinely employed in High Court sexual offence...
The Investigatory Powers Act 2016 ( IPA 2016), which secured Royal Assent on 29 November 2016, reshaped the statutory regime for covert surveillance by public authorities. Much of the earlier structure had been provided—though not entirely—by the Regulation of Investigatory Powers Act 2000 ( RIPA 2000). See Practice Note: The regulation of intelligence gathering—an introductory guide... FCA powers of surveillance The Financial Conduct Authority ( FCA) is authorised to undertake surveillance to obtain information for the prevention and detection of crime. Its powers include: Acquiring communications data (see Practice Note: Acquisition, retention and disclosure of communications data under the Investigatory Powers Act 2016) Conducting covert surveillance, which may be recorded (see Practice Note: Covert intelligence sources) Using informants—covert intelligence sources or covert human intelligence sources ( CHIS) (see Practice Note: Covert intelligence sources) Compelling the provision of encryption keys or...
Strict liability It applies to offences where the prosecution is not obliged to prove mens rea for one or more components of the crime. What the defendant knew, believed, or intended is typically of no significance. Liability may therefore be fixed by the performance of the act, whatever the state of mind. This stands in tension with the presumption that criminal liability requires proof of both actus reus and mens rea. Wright J in Sherras v De Rutzen remarked that there is a presumption that mens rea—an evil intention, or awareness of the act’s wrongfulness—is an essential element of every offence; yet that presumption can be displaced by the statute’s wording or by the subject-matter it addresses, and both must be assessed. It is generally aimed at regulating behaviour that is especially damaging to the public. Here, risks to society rise markedly. The need to...
Familiarity with stop and search powers This knowledge matters because, when a search culminates in an arrest, the lawfulness of the preceding stop and search may bear upon whether evidence is admitted and, in some instances, upon the defence advanced. Statutory stop and search powers arise under the Police and Criminal Evidence Act 1984 ( PACE 1984) and other principal legislation (see below). As these statutory powers amount to a, albeit short-lived, interference with an individual’s freedom, any curtailment of the liberty of the person halted or searched should be brief. PACE Code A regulates all police powers to stop and search before arrest, save for searches carried out under PACE 1984, s 6(1), the Aviation Security Act 1982, s 27(2), or those governed by the Codes of Practice issued under the Terrorism Act 2000. The police stop and search powers that fall within PACE Code A are...
The Contempt of Court Act 1981 The Contempt of Court Act 1981 ( CCA 1981) sets out the offence of strict liability contempt, also termed indirect contempt, arising from conduct by newspapers or other persons — including private individuals posting on social media — who publish material liable to interfere with forthcoming legal proceedings. This was formerly referred to as the sub judice rule. The following elements are required for liability to arise: a publication (meaning any communication, in whatever form, addressed to the public at large or to any section of it) which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced; and the proceedings are active The CCA 1981 does not change the common law; it supports it......
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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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