Legal Practice Notes

This Practice Note outlines the consumer credit activities regulated by the Financial Services and Markets 2000 ( Regulated Activities) Order 2001, SI 2001/544 ( RAO), and the consequences of undertaking them without the required Financial Conduct Authority ( FCA) authorisation. The FCA and the consumer credit regime From 1 April 2014, consumer credit regulation transferred from the Office of Fair Trading ( OFT) to the FCA, and the OFT was abolished. The FCA is the conduct regulator for firms undertaking consumer credit, including: consumer lenders credit card issuers debt management firms credit brokers credit reference agencies hire purchase providers financial advisers pawnbrokers mail order businesses debt collectors payday lenders Types of authorisation for consumer credit firms, including the limited permission regime, are covered in Practice Note: FCA authorisation of consumer credit firms. Regulated activities—general Section 19(1) of the Financial Services and Markets Act 2000 ( FSMA 2000) imposes a general prohibition on carrying on regulated activities in the UK unless...

Introduction The Control of Asbestos Regulations 2012, SI 2012/632 ( CAR 2012), were made under section 15 of the Health and Safety at Work etc Act 1974 ( HSWA 1974). They sit within the broader suite of health and safety regulations and other statutory instruments—for example, the Management of Health and Safety at Work Regulations 1999, SI 1999/3242. These regulations place obligations on HSWA 1974 duty holders. Although the HSWA 1974 does not define “duty holders”, the term captures a range of individuals and organisations—often employers—as well as those managing projects and activities. Under CAR 2012, reg 4(1), the dutyholder is: any person with duties for the maintenance or repair of non-domestic premises under a lease or management agreement, including a landlord or a tenant, or where no such lease or agreement exists, the freeholder or any person exercising control over that part of the...

Scope of Practice Note The Hazardous Waste ( England and Wales) ( Amendment) Regulations 2016, SI 2016/336, repealed Part 5 of the Hazardous Waste ( England and Wales) Regulations 2005, SI 2005/894, thereby scrapping the obligation on any premises in England that generated or had hazardous waste taken away to register with the Environment Agency. This change did not alter in any way the duty on Welsh premises to register with Natural Resources Wales ( NRW), and accordingly this Practice Note focuses on the Welsh registration rules applicable in Wales. Compliance in Wales In Wales, the Hazardous Waste ( Wales) Regulations 2005 establish the statutory framework for controlling and tracking hazardous waste movements. Where hazardous waste is produced on, or removed from, any non‑exempt premises, those premises in question must be duly notified to NRW as required. On notification, site particulars are entered on an...

For further information and guidance about what deferred prosecution agreements ( DPAs) are and how they operate, see Practice Note: Deferred prosecution agreements. When does a deferred prosecution agreement expire? A DPA generally ends on the date set out as a term of the agreement, unless it is brought to an end for breach. See Practice Note: Breach of a DPA. The SFO has released details and information on how DPAs it has agreed have been complied with. This material can be found within the SFO’s website. Several DPAs agreed to date include built-in flexibility through terms allowing an early conclusion, if the financial penalties, costs and disgorgement of profits elements are satisfied (see SFO Deferred Prosecution Agreement with Rolls- Royce and SFO Deferred Prosecution Agreement with Sarclad). For more on the DPAs entered into so far, including operative periods, see Practice Note: DPAs entered into to...

The UK’s domestic sanctions framework is underpinned by the Sanctions and Anti-money Laundering Act 2018 ( SAMLA 2018) together with regulations made under it. For further detail, see Practice Notes: The UK sanctions framework under SAMLA 2018 and International sanctions—an introduction. Licences to disapply financial sanctions prohibitions The Office of Financial Sanctions Implementation ( OFSI), part of HM Treasury, can issue a licence (written authorisation) to set aside financial sanctions prohibitions for an activity that would otherwise be barred. The authority to grant licences arises within the individual sanctions regimes, so lawyers advising on licences and exemptions must consult the specific sanctions regulations relevant to their matter. Any individual or organisation wishing to undertake conduct restricted by UK financial sanctions (including UN financial sanctions that apply in the UK) may apply for a licence. Under the SAMLA 2018 framework, general licences have become a more common...

ARCHIVED: This Practice Note has been archived and is not maintained FCA approach on the supervision of financial promotion This Practice Note explains how the Financial Conduct Authority ( FCA) ensures that financial promotions issued by firms comply with its rules, and points to examples of enforcement action where non-compliance has been identified. For wider context on the financial promotion regime, see Practice Note The financial promotion regime—essentials. In recent years, the FCA has sought to embed an outcomes-focused model of supervision while retaining elements of a conduct-focused approach. Following a consultation in March 2018, the FCA published its supervisory approach in March 2019. It noted that most firms are supervised as part of portfolios comprising firms with similar business models. The FCA assesses each portfolio and sets a strategy to act on those firms presenting the greatest risk of harm. The regulator...

Sentencing corporate offenders The Sentencing Council ( SC), tasked with issuing sentencing guidelines, has developed a number of offence‑specific guidelines that apply specifically to businesses and other corporate bodies or organisations which have been convicted of criminal offences (corporate offenders). These guidelines are designed to strike a balance between giving prosecutors and defendants greater clarity and certainty about the likely sentence and preserving sufficient flexibility to reflect varying organisation size, turnover, and the type of criminal behaviour involved. The SC also produces several overarching guidelines, which ought ordinarily to be taken into account for all sentencing exercises across the board; see Practice Notes: Sentences imposed following conviction and Sentencing criminal offences—sentencing guidelines and resources. This Practice Note summarises the various offence‑specific guidelines available for sentencing corporate offenders, and provides signposts and links through to relevant content. It also brings together some key themes that are common to all of the...

General Simple criminal damage is an either-way matter unless the alleged loss is £5,000 or below, in which case it is to be dealt with as summary-only. If the harm was caused by fire, or the racially aggravated variant is charged, it remains either-way even where the value falls under £5,000. Likewise, if the defendant faces two or more counts of the same or a similar kind and their combined value tops £5,000, the case is treated as either-way. Where the damage exceeds £5,000, such cases are ordinarily heard summarily unless the court considers any of these aggravating aspects apply and its powers would be inadequate: intentional fire-setting commission by a group damage of particularly high value clear racial motivation The Magistrates’ Court Sentencing Guidelines indicate that the Crown Court could be the proper forum where the value is above £10,000. Section 50 of the Police, Crime,...

The ‘handling’ offence Arising under section 22 of the Theft Act 1968 ( TA 1968), this offence is triable either way. Its constituent elements are: dishonestly receiving the goods; or dishonestly undertaking, assisting with, or arranging their retention, removal, disposal or realisation, by or for another’s benefit; or knowing or believing the goods to be stolen; and the goods in fact having been stolen. The offence is made out when the defendant acts other than in the course of stealing, that is, when not engaged in the theft itself. Because theft can be continuing, it is sometimes hard to show whether a person in possession of stolen goods is the thief or a handler of property already stolen, creating genuine uncertainty. In such situations, and to reflect that potential ambiguity, prosecutors will charge handling stolen goods in the...

ARCHIVED: This Practice Note has been archived and is no longer maintained or updated. For further information on football banning orders, see: Football Banning Orders: Blackstone's Criminal Practice [ E21.3] Football Banning Orders: Banks on Sentence [59.1] Football banning orders: Stone's Justices' Manual Making of football banning orders on conviction: Halsbury's Laws of England [273] What is a football banning order? A football banning order is a mechanism intended to stop offenders from travelling to football matches in England and Wales, as well as abroad. Measures may include exclusion from football matches, restrictions on travel, and being barred from a defined zone around a ground for a specified number of hours before and after a game. Such an order prevents the person subject to it from entering any premises for the purpose of attending regulated football matches in England and Wales, or, if it relates to matches outside England and...

The basic offences of harassment under section 1(1) and 1(1A) of the Protection from Harassment Act 1997 ( PHA 1997) can only be tried summarily. For the aggravated offence, see Practice Note: Intentional harassment, alarm or distress. For guidance on civil remedies available to victims, see Practice Note: Applications under the Protection from Harassment Act 1997. The elements of the basic offences For an offence under PHA 1997, section 1(1), the prosecution must establish that the defendant: pursued a course of conduct that amounted to harassment of another person and knew, or ought to have known, that this conduct amounted to harassment of that person For an offence under PHA 1997, section 1(1A), the prosecution must establish that the defendant: pursued a course of conduct involving the harassment of two or more individuals and knew, or ought to have known, that the...

The offence of false imprisonment False imprisonment is an offence at common law, though it more frequently arises as a civil tort claim (see Practice Note: False imprisonment). It is triable only on indictment. The offence is closely related to the common law offence of kidnapping. The crucial difference is that, unlike kidnapping, there is no requirement to prove the victim was ‘taken and carried away’ ( R v Hutchins [1988] Crim LR 379 (not reported by Lexis Nexis®)). See Practice Note: Common law offence of kidnapping. Elements of the offence In R v Rahman (1985) 81 Cr App Rep 349 (not reported by Lexis Nexis®), it was held that, on a charge of false imprisonment, the prosecution must establish: unlawful intentional or reckless restraint of a victim’s freedom of movement from a particular...

ARCHIVED: This Practice Note is retained for background only and is no longer updated. From 3 May 2015, no further financial reporting orders can be issued in England, Wales, Scotland or Northern Ireland. Any orders already in force continue until their stated term ends, and the existing criminal offence of breaching an order persists in relation to those orders until expiry. From that date, serious crime prevention orders are the exclusive mechanism for imposing financial reporting obligations on an individual convicted of a serious offence. For more detail, see Practice Note: Serious crime prevention orders. Making a financial reporting order A financial reporting order ( FRO) was imposed following conviction for a listed offence, in addition to the defendant’s sentence. A court would make such an order only where satisfied that the likelihood of the defendant committing a further listed offence was...

This Practice Note summarises the procedural framework for sentencing in England and Wales (the Sentencing Code), which took effect on 1 December 2020 and is contained in Parts 2–13 of the Sentencing Act 2020 ( SA 2020). If you are considering whether the Sentencing Code applies to a particular matter, see Practice Note: Sentencing Code. What is an absolute discharge? Under SA 2020, s 79, an absolute discharge is an order that releases an offender absolutely in respect of an offence. It represents the least severe sentence the court can impose. The court may make this order where, having regard to the nature of the offence and the offender’s character, it considers it would be ‘inexpedient’ to impose any punishment. This outcome is typically reserved for cases where the offender is technically guilty (and convicted) but otherwise without blame. Granting such an order does not stop the...

Director disqualification orders A disqualification order is imposed to safeguard the public from individuals who, through dishonesty, naivety or incompetence, misuse their role and status as a director. In England and Wales, the criminal courts may impose a director disqualification order under the Company Directors Disqualification Act 1986 ( CDDA 1986) where: an offender has been convicted of an indictable offence, tried either on indictment or summarily, in connection with the promotion, formation, management, liquidation or striking off of a company; or an offender has been convicted of an offence involving a failure to file documents with, or give notice to, the registrar of companies and has also been the subject of three default orders or convictions in the preceding five years. Practitioners should therefore refer to the Sentencing Council’s offence specific guidelines, which set out when a director...

What inferences can be drawn from failure to testify? Inferences may arise where a defendant: after taking the oath, declines without proper reason to answer a specific question or questions; or elects not to give evidence at all. Where either situation occurs, the court or jury, in deciding whether the accused is guilty, may draw such inferences as appear appropriate. Put simply, the tribunal of fact can be asked to treat the defendant’s silence as supporting guilt. When can an inference be drawn? Before an inference can be drawn under the Criminal Justice and Public Order Act 1994 ( CJPOA 1994), these requirements must be met: the defendant fails to give evidence; having been sworn, refuses to answer questions; the failure to testify or respond is without ‘good cause’; and the defendant has either: been...

Should a suspect ask for an identification procedure? Where the police have not proposed one, a suspect may require legal advice on whether to ask for an identification procedure, and if so, when to do so. A code of practice governing police use of statutory powers to identify individuals has been issued under the Police and Criminal Evidence Act 1984, referred to as PACE Code D. Under PACE Code D, an identification procedure can take place if the officer leading the investigation thinks it would be 'useful', even when the criteria for a compulsory procedure are not met in the circumstances of the investigation. See also Practice Note: Eyewitness identification evidence, which explains when an identification procedure is mandatory. When advising a suspect on requesting a formal identification procedure, a legal representative should carefully weigh several matters,...

Judicial independence Judicial independence is the bedrock of the rule of law. The criminal justice system’s integrity rests on hearings that are open, fair, and decided by a tribunal that is both independent and impartial. Alongside those core tenets sits the imperative that justice is delivered promptly, and with that comes an accepted place for plea discussions. A prospective indication of the likely sentence forms part of that framework. The value of receiving such an indication early is that a defendant can reach a more informed view on whether to enter a guilty plea. The Attorney General’s guidelines on accepting pleas stress transparency in the administration of justice and, in particular, prescribe a structured method for giving sentence indications in the Crown Court. These are commonly referred to as ‘ Goodyear indications’. The Court of Appeal, in R v Goodyear,...

Judicial review Judicial review is the mechanism through which the High Court scrutinises the legality of decisions, actions or failures to act by public authorities. For general guidance on judicial review procedure, consult the Practice Notes: Judicial review—what it is and when it can be used— Preliminary and pre-action considerations, Judicial review—time limits and the pre-action protocol, and Judicial review—how to start proceedings. For material on challenging decisions of the criminal courts, see Practice Note: Judicial review of magistrates' court and Crown Court decisions. Judicial review does not assess the merits of an outcome; instead, it focuses on the lawfulness of the decision-making process. It is a remedy granted at the court’s discretion. The High Court will exercise its powers only where appropriate and may decline to do so where an alternative remedy is available, in the circumstances of the case as...

Summary of magistrates’ powers to commit Magistrates’ courts can impose custody only up to the relevant statutory maximum for a single offence. Refer to Practice Note: Sentences imposed following conviction. The magistrates’ court does, however, also retain wide-ranging authority to commit a defendant to the Crown Court to be sentenced......