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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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Defendant to raise their defence A number of defences may arise in road traffic prosecutions. These include: automatism insanity duress and necessity, and the 'hip flask' defence When a defendant intends to rely upon a particular defence, they must place sufficient material and evidence before the court to properly raise the issue for trial. This is the 'evidential burden'. It is separate from the legal burden of proof, which imposes an obligation on a party to prove a fact in issue. The prosecution ordinarily bears the legal burden of proof. See Practice Note: Burden and standard of proof in criminal proceedings. The evidential burden may be satisfied if the defendant enters the witness box and sets out their defence. Consequently, once the issue is raised by the defence, the onus then passes to the prosecution to prove, to the criminal standard (beyond...
This Practice Note outlines when a convicted defendant can obtain a lesser sentence by entering a guilty plea, in line with section 73 of the Sentencing Act 2020 ( SA 2020), known as the Sentencing Code, and the Sentencing Council’s overarching guideline on reductions for a guilty plea. It identifies the relevant statutory route and complementary guidance applied by the courts. Basis for giving credit for an early guilty plea The court may lower the sentence it would otherwise impose to recognise that the offender has admitted the offence, and to reflect the plea itself as a formal acceptance of guilt. The level of credit depends on the point at which the defendant indicates the plea, judged by the stage reached in the proceedings. At most, a one‑third reduction is available in criminal cases, as a ceiling. In truly exceptional matters, the court may depart from the...
This Practice Note summarises counter-terrorist financing ( CTF) measures, covering the offences and duties found in the Terrorism Act 2000 ( TA 2000) and associated laws. It explains what constitutes terrorist financing, how it intersects with the anti-money laundering ( AML) framework, and why it matters for businesses. What is terrorist financing? Terrorist groups require money to organise and execute attacks. The TA 2000 makes both involvement in terrorist activity and the financing of terrorism criminal offences. Broadly, terrorist financing covers supplying or gathering funds from lawful or unlawful sources, intending, or knowing, that they are to be used to commit an act of terrorism, regardless of whether the money is ultimately applied to that end. Counter-terrorist financing and anti-money laundering CTF and AML are distinct concepts, though their objectives overlap. Within UK law, the CTF and AML regimes operate alongside each other. Numerous...
Section 1 of the Corporate Manslaughter and Corporate Homicide Act 2007 ( CMCHA 2007) introduces the distinct offence of corporate manslaughter. The CMCHA 2007 applies across the UK and, at the same time, brings in the offence of corporate homicide for Scotland. This Practice Note addresses corporate manslaughter, not corporate homicide, because certain CMCHA 2007 provisions treat the two offences with slight differences. See Practice Note: Involuntary manslaughter. Corporate, not individual, liability The CMCHA 2007 targets organisational accountability and does not extend to directors or other individuals occupying senior positions within a company. It creates no personal liability under the CMCHA 2007. Further, CMCHA 2007, s 18 expressly provides that a person cannot be guilty of aiding, abetting, counselling or procuring the commission of corporate manslaughter, nor can a person be guilty of encouraging or assisting an offence of corporate...
This Practice Note outlines who is entitled to seek a variation of a confiscation order, together with the relevant timing and procedure for making such an application. It addresses reconsideration via the slip rule and the broadened authority in the Proceeds of Crime Act 2002 ( POCA 2002) permitting the available amount to be revisited without time limit after conviction. It further identifies the statutory foundations for appealing a confiscation order under both the Criminal Appeal Act 1968 ( CAA 1968) and POCA 2002. Lastly, it weighs up whether a variation application or an appeal is the more suitable procedural avenue to contest a confiscation order. Who can apply to vary a confiscation order under the Proceeds of Crime Act 2002? A defendant, the prosecutor, or an appointed receiver may ask the Crown Court to lower the sum specified by a...
Competency—general rule The usual method of presenting evidence in criminal proceedings is, in practice, via a witness’s testimony. A witness is regarded as competent where, as a matter of law, a party may call them to give evidence. Everyone is treated as competent to testify, whatever their age, and at every stage of criminal proceedings, but there are two exceptions: a person is not competent in criminal proceedings if, in the court’s view, they are unable to understand questions put to them as a witness and to give answers to those questions that can be understood a person charged in criminal proceedings is not competent to give evidence for the prosecution in those proceedings (whether tried alone or together with a co-accused) (see further below: The accused—evidence on behalf of the...
All criminal cases begin in the magistrates' court however serious the offence. Every criminal matter starts in the magistrates' court, however grave the offence......
Procedural Rules This Practice Note outlines how to bring and oppose applications in the High Court for a civil recovery order ( CRO), a property freezing order ( PFO), or an interim receiving order ( IRO). For more on these orders and the grounds for obtaining them, refer to Practice Note: Civil recovery orders under the Proceeds of Crime Act 2002. The procedural framework is contained in the following documents: Practice Direction— Civil Recovery Proceedings Senior Master Practice Note 15 April 2016: POCA Civil Recovery Claims under CPR Part 8 Civil Recovery Proceedings Practice Direction: Civil Court News— CCN 2 (13) Applications for PFOs or IROs (interim orders) must be issued in the Administrative Court of the High Court. A CRO claim must be commenced in the Central Office of the King’s Bench Division ( KBD). Where a CRO application follows interim order...
The offences of child abduction The Child Abduction Act 1984 ( CAA 1984) establishes two distinct child abduction offences. The first covers a parent or a person linked to the child who removes or sends the child out of the UK without the necessary consent ( CAA 1984, s 1). The second addresses the abduction or detention of a child by others ( CAA 1984, s 2). Both offences are triable either way in the magistrates' court or the Crown Court. Consent of DPP Proceedings for either child abduction offence may only begin with the consent of the Director of Public Prosecutions. Elements of the offence of abduction of child by a person connected with a child Section 1 of the CAA 1984 sets out the elements where the alleged offender is connected with the child. The prosecution must show: an individual 'connected with' a child under...
under POCA 2002 Chapter 3 under Part 5 of the Proceeds of Crime Act 2002 ( POCA 2002) Part 5, Chapter 3 of POCA 2002 establishes the summary process in England and Wales for the recovery of cash, along with related powers to search, seize, detain and forfeit cash. Under s 294, specified officers may seize cash suspected of being recoverable property, or cash thought to be intended by any person for use in unlawful conduct. For details on cash search powers and what constitutes cash, recoverable property and unlawful conduct, see Practice Note: Cash searches under the Proceeds of Crime Act 2002. POCA 2002, Pt 5, Chs 3A and 3B introduce complementary powers for the recovery of listed items of personal property, such as precious metals and jewellery, and for the forfeiture of monies held in certain accounts and in bank accounts. See also...
Orders for costs against legal representatives Under section 19A(1) of the Prosecution of Offences Act 1985 ( POA 1985), the Court of Appeal, the Crown Court and magistrates’ courts may direct a legal or other representative to pay wasted costs they have caused. The High Court has no authority to make this type of costs order. Separately, the Crown Court can also order costs against a solicitor by invoking its inherent jurisdiction. That jurisdiction is distinct from the power in POA 1985, section 19, and from the Costs in Criminal Cases ( General) Regulations 1986 ( SI 1986/1335), regulation 3. For guidance on recovering costs under these provisions, see Practice Note: Applying for costs from a prosecutor following an unsuccessful criminal prosecution......
This Practice Note explores the ideas behind joint privilege and common interest privilege, outlining when they matter, how they come about, their principal features, how they function, illustrations, and the ways they can be waived. The interest in privileged documents of more than one party Joint or common interest privilege may exist where multiple parties assert the right to claim privilege over the same material. The scope turns on their interest in the subject matter and the nature of their relationship, among other considerations. Joint privilege arises where legal advisers are jointly instructed, or where the parties share a joint interest in the advice. It can be invoked to secure access to privileged material held by another participant. Common interest privilege covers communications between parties with an aligned interest even without joint privilege—for instance, neighbours objecting to a nuisance that affects them equally, although only one...
Reviews of detention before charge Under the Police and Criminal Evidence Act 1984 ( PACE 1984), a person held at a police station must have their detention reviewed at intervals to confirm that continued custody is justified. This obligation applies solely to individuals in police detention, regardless of whether they have been charged with an offence. Each review must be carried out by an officer of at least inspector rank who has taken no direct part in the investigation; this officer acts as the review officer. The review is intended to decide if there is adequate evidence to charge the suspect and, if not, whether keeping the suspect in custody is necessary to secure or preserve evidence, or to obtain it through questioning. Before any review is undertaken, the review officer must remind the suspect of the right to legal advice, unless the suspect is...
Investigatory orders available under POCA 2002, Pt 8 The investigatory measures available under Part 8 of the Proceeds of Crime Act 2002 ( POCA 2002) comprise the following types of orders: production orders search and seizure warrants disclosure orders customer information orders account monitoring orders unexplained wealth orders ( UWO) and associated interim freezing orders Taken together, these are all commonly referred to as the Part 8 investigatory orders......
Elements of the offence of perverting the course of justice Perverting the course of justice is a common law offence, triable only on indictment in the Crown Court. The elements are: a person performs acts or embarks upon a course of conduct which has a tendency and is intended to pervert the course of public justice Acts or embarks on a course of conduct The offence calls for a positive act, or sequence of acts; mere omission or inaction is not enough (e.g. failing to point out an error). Conduct that tends (and is meant) to obstruct, deflect, or disturb criminal proceedings, or police investigations generally, may suffice—the wrongdoing need not relate to a specific trial or investigation. Tendency to pervert A failed attempt does not bar prosecution, so long as the accused’s behaviour, without any further step by them, created a risk that injustice would...
The scope of offences a juror may commit in connection with a trial on which they sit was widened when the Criminal Justice and Courts Act 2015 ( CJCA 2015) introduced, in particular, four new offences into the Juries Act 1974 ( JA 1974). The pre-existing JA 1974 offences, together with the offence of contempt of court, remain available to those examining alleged jury irregularities and misconduct. For further guidance on such irregularities, see the Practice Note: Dealing with jury irregularities. The Criminal Practice Directions ( CPD) now reflect the offences set out in JA 1974, ss 20A–20D, together with the related repeal of section 8 of the Contempt of Court Act 1981 ( CCA 1981). Judges dealing with juror misconduct enjoy a wide discretion as to how they wish to proceed against the juror concerned, as...
Hackney carriages and private hire vehicles A ‘hackney carriage’ means a vehicle authorised to ‘ply for hire’, namely to offer a taxi service and stand on taxi ranks awaiting passengers. See the Practice Note: Taxi licensing. Plying for hire without a hackney carriage licence is an offence under section 45 of the Town Police Clauses Act 1847 ( TPCA 1847). Touting for car hire services constitutes an offence by virtue of section 167 of the Criminal Justice and Public Order Act 1994 ( CJPOA 1994). See Practice Notes: Taxi touting or soliciting for hire, and Taxi and private hire vehicles enforcement. A ‘private hire vehicle’ is defined at section 80 of the Local Government ( Miscellaneous Provisions) Act 1976 ( LG( MP) A 1976) as ‘a motor vehicle constructed or adapted to seat fewer than nine passengers, other than a hackney carriage or public...
What are notification requirements? The notification requirements form a statutory regime in Part 2 of the Sexual Offences Act 2003 ( SOA 2003), created to manage the risks posed by sexual offenders living in the community. They do not depend on any court order or ruling; rather, they take effect automatically by statute when a person is convicted in circumstances within SOA 2003, s 80. As these duties arise under statute, there is no appeal against their automatic application. The regime applies only to defined categories of offenders and is commonly called the sex offenders’ register, though no register exists as such. Offenders subject to the requirements must automatically provide specified information to the police on conviction or caution for a relevant sexual offence. The duration for which an offender must comply (the notification period) is determined by how the offender was dealt with for the...
This Practice Note addresses the arrangement offence in section 328 of the Proceeds of Crime Act 2002 ( POCA 2002), one of the principal money laundering offences under that statute; see Practice Note: Money laundering offences under the Proceeds of Crime Act 2002— The principal money laundering offences. For material on the other principal money laundering offences, consult Practice Notes: Money laundering offences—concealing, disguising, converting, transferring and removing and Money laundering offences—acquisition, use and possession. The arrangement offence under POCA 2002, s 328 The offence is committed where a person enters into, or is otherwise concerned in, an arrangement which they know or suspect will facilitate (by any means) the acquisition, retention, use or control of criminal property by, or on behalf of, another. For fuller guidance on the meaning of criminal property and criminal conduct, see Practice Note: Principal money laundering...
Failure to disclose offences under the Proceeds of Crime Act 2002 There are four distinct offences relating to non-disclosure under the Proceeds of Crime Act 2002 ( POCA 2002): not reporting to a nominated officer or another authorised person when operating in the regulated sector—a broad application within the regulated sector, not confined to nominated officers a nominated officer in the regulated sector failing to disclose—a narrow application limited to nominated officers within the regulated sector a nominated officer in the unregulated sector failing to disclose—a narrow application limited to nominated officers in the unregulated sector not making a disclosure in the prescribed form—a wide application across both regulated and unregulated sectors, not limited to nominated officers POCA 2002, sections 330 and 331 together impose a duty on the regulated sector to report suspicions of money laundering to the...
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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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