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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 addresses the procedural matters relating to juries under the Act 1974. Who is entitled to serve on a jury? Section 1 of the Act 1974 ( JA 1974) provides that all persons may sit on a jury so long as: the individual is listed as a parliamentary or local government elector is aged at least 18 and not over 75 years of age has been usually resident in the UK, the Channel Islands, or the Isle of Man for any span totalling at least five years since reaching the age of 13, and is not barred from jury service The maximum age limit for jurors is 75 years old......
Administrative court review of criminal proceedings Judicial review is the means by which the courts oversee how public authorities discharge their public functions, exercising a supervisory jurisdiction to secure lawful decision-making. Such cases are typically brought in the Administrative Court, which forms part of the King’s Bench Division ( KBD) of the High Court. For further information, see Judicial review in criminal proceedings—overview. Judicial review of a decision of the magistrates’ court An applicant may seek judicial review of a magistrates’ court decision in the Administrative Court within the KBD of the High Court. Challenges can extend to choices to prosecute or not to prosecute, among other determinations; see Practice Note: Judicial review of prosecution decisions......
This Practice Note is concerned with secondary liability, sometimes called accessory liability: the liability that attaches to parties to a joint enterprise. In criminal law, when two or more individuals set out on a common venture, whether as principals or as those assisting, each is answerable for deeds carried out in furtherance of that venture, provided the requisite intent is present, save where the principal departs from the agreed boundaries. In the 2016 decisions of R v Jogee and Ruddock v The Queen, the Supreme Court clarified and reinstated the proper approach to the mental element of intention that must be proved where a defendant is alleged to be a secondary participant in an offence; see News Analysis: Supreme Court rules on ‘joint enterprise’. Traditionally, a person assisting could be fixed with liability for an offence carried out by the principal if that person foresaw the...
There are two kinds of ‘burden’ in criminal proceedings: the legal burden the evidential burden The legal burden A party carries the legal (also termed ‘the persuasive’) burden when that party bears the responsibility to establish a fact or issue in the case to the requisite standard of proof. Ordinarily, this burden rests with the prosecution (subject to limited exceptions mentioned below). Thus, where a defendant enters a not guilty plea, the prosecution must prove every element of the offence—for example, the defendant’s identity, the character of the act, any required knowledge or intent, and the refutation of any defences raised. That duty also includes proving negative elements of an offence, such as the absence of consent in a rape or assault allegation. It is for the jury or the magistrates to decide whether the burden has been satisfied. Whichever...
This Practice Note sets out a concise and accessible overview of the principal considerations when pursuing a private prosecution. It is intended as a practical aid for anyone contemplating commencing a private prosecution matter. For a general primer on private prosecutions, consult the Practice Note: Private prosecutions—an introductory guide. Starting a private prosecution—initial considerations A private prosecutor may act in person, or may appoint lawyers to manage and conduct the proceedings for them. The points below are among the first issues the lawyers and private prosecutors (the private prosecution team) should carefully weigh when deciding whether to commence a private prosecution. Duties of the private prosecutor and prosecution team A private prosecutor bears the same obligation as a public prosecutor to properly fulfil the role of a minister of justice. To meet this obligation, prosecutors—while not compelled—ought to seek to follow the Crown...
This Practice Note addresses breaches of police bail conditions and failures to attend the police station or court following release on bail from the police station. For general guidance on police bail, see Practice Notes: Police bail, Applicable bail period and How to make representations for bail at the police station. Breach of pre-charge bail conditions Where a police officer has reasonable grounds to believe that pre-charge bail conditions have been broken, they may arrest the suspect without a warrant. However, breaching a pre-charge bail condition is not, in itself, a criminal offence. Once in detention, a decision must be taken on whether to charge the suspect with the offence for which they were originally bailed, or whether to re-release them on bail. On return to the police station, the PACE 1984 clock (the 24-hour detention period) continues from the point at which the suspect was last in...
The Criminal Justice Act 2003, s 101(1)(e) Section 101(1)(e) of the Criminal Justice Act 2003, often termed ‘gateway E’, enables a co‑defendant to introduce evidence of a defendant’s bad character where it has substantial probative value on an important issue contested between them. Only a co‑accused can adduce such material, whether in their own evidence or through cross‑examination of a witness. Importantly, neither CJA 2003, s 101(3) nor s 78 of the Police and Criminal Evidence Act 1984 (exclusion of unfair evidence) applies to evidence advanced by a co‑defendant. Nevertheless, a judge may exclude it under CJA 2003, s 111 if a co‑accused’s application is deliberately late and intended to ambush their co‑defendant (see R v Musone). The statutory meaning of ‘bad character’ appears in CJA 2003, s 98, and encompasses evidence of previous convictions. See Practice Note:...
What is asset stripping? Asset stripping is the contentious practice of buying a company and intentionally running down its assets for personal advantage or to boost short-term returns. One form of asset stripping is ‘phoenixing’, where directors wind up or walk away from a company to sidestep creditor liabilities and then carry on the same business through a new or connected entity. Phoenixing The establishment of a phoenix company is a variant of asset stripping. A phoenix company arises when the business of an insolvent company is transferred to a new company, leaving the debts and liabilities with the insolvent entity. Phoenix companies typically operate in the same line of trade as the former (now insolvent) company, have the same or largely the same directors as the predecessor, and in some instances use a similar name to it. Re-use of the company name Under section 216 of the...
Whether you can recover property taken by an investigating authority during a criminal inquiry hinges on the legal power used to seize it and on whether the investigation remains ongoing or proceedings have concluded. As a first step, make an informal approach to the investigating body to seek the return of the items. Ordinarily, this will involve contacting the officer in the case who, if agreeing to the request, will notify the police property centre that holds the items so arrangements can be made for their return to the owner. If the officer agrees to the approach, they will set the return process in motion. Where that request is declined, you may need to issue a formal application for the property’s return. Before deciding to pursue such an application, statutory retention periods for convicted offenders must be taken into account. If the...
Revocation for breach of community order By virtue of paragraphs 10 and 11 of Schedule 10, Part 2 to the Sentencing Act 2020 ( SA 2020), the Crown Court or a magistrates' court has the power to revoke a community order and to resentence where an offender, without a reasonable excuse, has failed to comply with any of the requirements of that order. The procedure governing applications for amendment, revocation or variation of community orders is set out in the Criminal Procedure Rules 2025, SI 2025/909, Part 32 ( Crim PR 2025). See further, Practice Note: Breach of a community order. Powers of the magistrates' court to revoke other than for breach SA 2020 further provides that, so long as the order remains in force, either the offender or the 'responsible' officer may apply to the magistrates' court for the order to be revoked, or for the...
This Practice Note outlines the process for plea before venue and allocation where an either-way offence is not sent straight to the Crown Court for trial... Procedure for either-way offences not sent forthwith to the Crown Court for trial: plea before venue and allocation If the court determines that trial should take place in the Crown Court, the case must be sent there forthwith. In all other cases—save where the offence is indictable only, or an either-way matter falling within the specific circumstances described in the Practice Note: Allocation and Sending for Trial— Sending of Cases Forthwith to the Crown Court for Trial—the court should take a plea before venue under MCA 1980, s 17A, and then address allocation. The governing procedure is set out in the Criminal Procedure Rules 2025 ( Crim PR 2025), SI 2025/909, Pt 9......
The offence of aggravated vehicle-taking A person commits aggravated vehicle-taking if the following conditions are met: they remove a conveyance without the owner’s consent or other lawful authority for their own use or for another’s; or knowing that any conveyance has been taken without such consent or authority, they drive it or allow themselves to be carried in or on it—the basic offence ( TWOC) under section 12 of the Theft Act 1968 ( TA 1968); and it is shown that, at any point after the vehicle was unlawfully taken (by that person or someone else) and before it was recovered, the vehicle was driven, or injury or damage resulted. See Practice Note: Taking a conveyance without the owner’s consent ( TWOC)......
This Practice Note sets out the principles governing when evidence of a defendant’s bad character may be admitted to rectify a false impression created by the defendant, or to respond to an attack on the character of another person or witness. In criminal proceedings, such material is admissible under section 101(1)(f)–(g) of the Criminal Justice Act 2003 ( CJA 2003), gateways F and G respectively. Bad character to correct a false impression The CJA 2003 authorises the admission of evidence of the defendant’s bad character to correct a misleading impression given by the defendant; the applicable statutory route is gateway F ( CJA 2003, s 101(1)(f)). The term ‘bad character’ is defined in the CJA 2003 and includes, among other things, the defendant’s prior convictions. See Practice Note: Admissibility of defendant's bad character in criminal...
The statutory conditions This Practice Note sets out the statutory requirements for admitting a statement from a witness who is not available in criminal proceedings in England and Wales, under section 116 of the Criminal Justice Act 2003 ( CJA 2003). For wider guidance on the admissibility of hearsay in criminal cases, see Practice Note: Admissibility of hearsay evidence in criminal proceedings. Section 116 CJA 2003 governs the use of hearsay where the maker of the statement is ‘unavailable’ to testify. A statement from such a witness is admissible as evidence of the matters asserted only where all of the following are satisfied: the material would have been admissible as oral testimony had the witness been able to attend court the individual who made the statement is identified to the court’s satisfaction the maker falls within one of the...
This Practice Note examines the admissibility of bad character evidence for the purpose of proving a propensity to be untruthful Bad character material indicating a defendant’s inclination to lie can, in principle, be received pursuant to section 101(1)(d) of the Criminal Justice Act 2003. Under s 101(1)(d), evidence of bad character is admissible where it bears upon an important matter in dispute between the prosecution and the defence. The CJA 2003 expressly identifies the issues to include whether the defendant demonstrates a propensity for untruthfulness. Any such indication of untruthfulness must be relevant to the issues that fall to be determined......
Post 1 October 2013 From 1 October 2013, section 69 of the Enterprise and Regulatory Reform Act 2013 ( ERRA 2013) recast section 47 of the Health and Safety at Work etc. Act 1974 ( HSWA 1974), altering the previous position. For accidents occurring at work on or after that date, civil liability does not arise from a breach of statutory duty unless the particular regulation expressly provides for it. The Workplace ( Health, Safety and Welfare) Regulations 1992 ( W( HSW) Regs 1992), SI 1992/3004, do not provide for civil liability to arise from a breach. In those circumstances, claimant practitioners are left to rely on breaches of workplace regulations as support for a claim in negligence. The regulations have their greatest relevance and utility to claimant practitioners where they prescribe a framework of steps or measures required of an employer to ensure...
ARCHIVED : This Practice Note has been archived and is not maintained. Lawyers and the businesses they counsel must grasp their exposure to sanctions in order to craft and roll out a robust compliance plan. However, the contours of sanctions compliance shifted after the UK’s choice to exit the EU. Up to 11 pm on 31 December 2020 (the end of the implementation period), the bulk of the UK’s sanctions regimes derived from the EU, via EU regulations that applied directly in Member States; criminal offences and licensing arrangements were then put in place by UK regulations under the European Communities Act 1972. Domestically, UK sanctions were confined to (very unusually) freezing orders under the Anti- Terrorism, Crime and Security Act 2001 ( ACSA 2001), transactional measures directed under the Counter Terrorism Act 2008 ( CTA 2008), and...
This Practice Note has been archived and is no longer being maintained at present. Sentences for fraud by false representation A defendant found guilty of fraud by false representation on indictment in the Crown Court upon conviction may receive up to ten years’ imprisonment, a fine, or both. The Sentencing Council (the Council) has issued distinct sentencing guidelines for use in magistrates’ courts and the Crown Court covering fraud by individuals and corporate offenders alike (collectively, the Fraud Guidelines). These Fraud Guidelines are the primary reference point when advising clients in relation to likely sentences. The Council formerly included these offence‑specific directions within the Fraud, Bribery and Money Laundering Offences: Definitive Guideline, but they are now hosted online (and not in PDF or paper) as separate, offence‑specific documents for the magistrates’ courts and the Crown Courts. The...
ARCHIVED: This Practice Note has been archived and is not being maintained. After the EU transition period formally concluded, the UK ceased participation in the European Investigation Order ( EIO) regime. Instead, mutual legal assistance requests from EU Member States now rely on the Council of Europe’s 1959 European Convention on Mutual Assistance in Criminal Matters and its additional protocols, as augmented by the EU‑ UK Trade and Cooperation Agreement ( TCA). EIOs arriving before IP completion day (11 pm 31 December 2020) continue to be handled and progressed as EIOs, with the relevant procedures and processes remaining in full force and effect for these transitional matters. EIOs received after IP completion day are treated as requests made under the 1959 Convention accordingly thereafter. See the Practice Note: Mutual legal assistance ( MLA). This Practice Note is retained to support...
The Health and Safety Executive ( HSE) reports that electricity and unsafe electrical work still often cause serious injury and death to workers and non-workers in the UK. Main hazards are: contact with live parts causing shock and burns injury from exposure to electrical arcing burns where static discharge ignites workplace flammables fires and explosions from poor installations and faulty equipment Electrical safety is a key part of health and safety management. See Practice Notes: How to manage health and safety in the workplace and Health and safety in the workplace—regulatory requirements. Key workplace electrical safety laws Relevant regulations include: The Electricity at Work Regulations 1989, SI 1989/635 The Supply of Machinery ( Safety) Regulations 2008, SI 2008/1597 Electrical Equipment ( Safety) Regulations 2016, SI 2016/1101. See Practice Note: Electrical equipment safety Management of Health and Safety at Work Regulations 1999, SI 1999/3242 The Plugs and Sockets etc ( Safety) Regulations 1994, SI...
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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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