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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 offence of acquiring, using or possessing criminal property under section 329 of the Proceeds of Crime Act 2002 ( POCA 2002). It is one of the principal money laundering offences in that Act; see Practice Note: Money laundering offences under the Proceeds of Crime Act 2002— The principal money laundering offences. For guidance on the remaining principal offences, refer to Practice Notes: Money laundering offences—concealing, disguising, converting, transferring and removing and Money laundering offences—the arrangement offence... The acquisition, use and possession of the proceeds of crime offence The offence arises where an individual acquires, uses, or has possession of criminal property. For fuller direction on the meaning of criminal property and criminal conduct, see Practice Note: Principal money laundering offences—mens rea, criminal property and criminal conduct— What is criminal property... As to mens rea, suspicion alone suffices. Dishonesty is not an...
Offences of fraudulent evasion of duty—the smuggling offences A person commits an offence under CEMA 1979, s 170(1) if, intending to defraud HMRC of duty or evade any prohibition/restriction, they: knowingly possess goods unlawfully removed from a warehouse, dutiable goods with unpaid duty, or prohibited/restricted goods; or are knowingly concerned in carrying, removing, depositing, harbouring, keeping or concealing them. Section 170(2) is wider: it catches anyone knowingly concerned in fraudulent evasion, or attempt, of duty, prohibitions/restrictions, or CEMA/ T( CT) A provisions, without proof of possession or carriage. Elements demand knowledge and intent; for s 170(2) there must be a fraudulent evasion/attempt and knowing involvement. ‘ Fraudulent evasion’ means conscious acts prejudicing HMRC’s rights; dishonesty is inherent. ‘ Knowingly concerned’ requires participation; recklessness is insufficient; liability may arise pre‑, during or...
Across England and Wales, the Health and Safety Executive ( HSE) and local authorities oversee compliance with health and safety law. For details of how enforcement is carried out, including the HSE’s power to recover the costs of its pre-charge investigations, refer to: Practice Note: Health and Safety Executive prosecutions policy Practice Note: Powers of health and safety inspectors under the Health and Safety at Work etc Act 1974 Practice Note: Improvement and Prohibition Notices under the Health and Safety at Work etc Act 1974 For information on the position in Scotland, see: Scottish health and safety enforcement—overview. Statutory duty to ensure the health, safety and welfare of employees at work Employers are required, so far as is reasonably practicable, to protect the health, safety and welfare of their employees while at work. This obligation is set out in section 2 of the Health and Safety at Work etc Act 1974 (...
Offence of fraudulent evasion of income tax Section 106A of the Taxes Management Act 1970 ( TMA 1970) provides that a person commits an offence if they are knowingly concerned in the fraudulent evasion of income tax, whether for themselves or another. This offence, triable either way, does not extend to the evasion of taxes other than income tax and capital gains tax. Elements of the offence of fraudulent evasion of income tax Being ‘knowingly concerned’ The standard for being ‘knowingly concerned’ in an income tax fraud requires both: knowledge — not merely suspicion — that an offence exists, and genuine involvement in it (for instance, simply paying in cash is unlikely to meet this threshold) In short, the individual must possess knowledge and take part in the fraud. A person is said to know something when they are sure it is true; this contrasts in law with...
This Practice Note outlines the Lord Chief Justice’s Protocol of 22 March 2005 on the Control and Management of Heavy Fraud and other Complex Criminal Cases (the Fraud Protocol) as it operates in heavy fraud and complex criminal cases. It addresses both the investigation of complex fraud and the case management framework set by the Protocol, and explains how disclosure issues and abuse of process applications should be handled. Fraud Protocol The conduct and oversight of fraud trials are governed by the Fraud Protocol together with the Criminal Procedure Rules 2025 ( Crim PR 2025), SI 2025/909. The statutory architecture directing pre-trial and trial management in serious and complex fraud consists of the Criminal Justice Act 1987, the Crime and Disorder Act 1998 and the Criminal Procedure and Investigations Act 1996. Guidance on disclosure in these cases is provided by the Attorney General...
Secretary of State’s function When a category 2 territory submits an extradition request in the approved manner and it includes the requisite information, the Secretary of State is obliged to issue a certificate under section 70 of the Extradition Act 2003 ( EA 2003) (see below), unless a ground for refusing certification applies. The first principal role in extradition is therefore to receive formal requests from category 2 territories and certify them where the stated conditions are satisfied. After an extradition judge has concluded the hearing concerning a person sought by a category 2 territory and has referred the matter to the Secretary of State to decide whether that person should be extradited, the Secretary must determine, within a specific timeframe, whether any statutory bars to extradition, within the scope of their consideration, prevent an order being made. The second principal role is...
The offence of contravening or failing to comply with the food hygiene requirements— Regulation 19(1) Pursuant to the Food Safety and Hygiene ( England) Regulations 2013 ( FSH( E) R 2013), SI 2013/2996, reg 19 provides that any person who breaches or does not comply with the specified EU provisions commits an offence. Those specified provisions are set out in FSH( E) R 2013, SI 2013/2996, Sch 2 (as amended by the General Food Law ( Amendment etc) ( EU Exit) Regulations, SI 2019/641) and chiefly relate to: Assimilated Regulation ( EC) 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law (the Assimilated Food Safety Regulation); Assimilated Regulation ( EC) 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of...
Archived: This Practice Note has been archived and is not maintained. It is intended for situations where a notification offence arose before 25 May 2018. If a notification offence occurred prior to 25 May 2018, it may still be prosecuted under the Data Protection Act 1998, notwithstanding that the legislation has been repealed. Notification offences under the DPA 1998 cannot be committed after 25 May 2018. The Data Protection Act 2018 ( DPA 2018) contains no corresponding notification offences, so any such offence could only have been committed historically, before 25 May 2018 when the DPA 1998 was in force. For information on the data protection offences created by the DPA 2018, see Practice Note: Offences under the Data Protection Act 2018. Notification required under the Data Protection Act 1998 Note that these offences cannot be committed after 25 May 2018. Failure to notify the...
The Insolvency Service Legal Services Directorate ( LSD) The Insolvency Service’s Legal Services Directorate ( LSD) acts as the principal criminal enforcement body for insolvency-related fraud and corporate misconduct. It serves as the prosecuting authority for breaches of insolvency and company law that are referred by other Insolvency Service teams, the Official Receiver, Companies House, and allied agencies. The LSD also handles assorted criminal matters arising within the Department for Business and Trade... The Insolvency Service oversees the complete spectrum of investigation and enforcement activity being undertaken. Depending on the nature or scale of suspected offences, the LSD may pass cases to other enforcement authorities, such as: Crown Prosecution Service ( CPS) HM Revenue & Customs ( HMRC) Serious Fraud Office ( SFO) Practitioners should take the LSD’s remit into account when assessing potential liabilities for their clients. In making charging...
cases cases cases cases describe situations in which alterations are made to the process employed under the Extradition Act 2003 ( EA 2003) for the purpose of extraditing an individual who has been found guilty of an offence in one territory (the convicting territory), transferred to another to serve their sentence (the imprisoning territory), and has absconded......
Fraudulent trading A defendant who operates as a sole trader, is in a partnership, or is in a trust commits the offence of fraudulent trading if they are knowingly involved in the carrying on of a company’s business either with intent to defraud creditors, or for any other fraudulent purposes. Where the offending conduct is by a company, the matter would be charged under section 993 of the Companies Act 2006 ( CA 2006). Section 9 of the Fraud Act 2006 ( Fr A 2006) widens the concept of a fraudulent business to situations where the business is not conducted by a company or other corporate body. This mirrors the offence applicable to fraudulent businesses run by companies and other corporate bodies, while extending criminal liability to non‑corporate traders, including: sole...
This Practice Note sets out the constituent parts of the offence of fraudulent trading in section 993 of the Companies Act 2006, and, drawing on case law, shows how the courts construe those parts. It covers the sanctions for fraudulent trading and potential sentences, reflecting any pertinent considerations and aggravating aspects. It also addresses ancillary orders available on conviction... Fraudulent trading A company commits the offence of fraudulent trading contrary to section 993 of the Companies Act 2006 ( CA 2006). Section 9 of the Fraud Act 2006 ( Fr A 2006) criminalises fraudulent trading by sole traders, partnerships, trusts and other non-corporate entities. See Practice Note: Fraudulent trading under the Fraud Act 2006. The CA 2006, s 993 offence is triable either in the magistrates' court or in the Crown Court... Elements of CA 2006 offence of fraudulent trading The offence comprises two limbs: ...
Offences relating to untrue declarations etc Under section 167(1)(a) of the Customs and Excise Management Act 1979 ( CEMA 1979), an individual commits an offence if, acting knowingly or recklessly, they: make or sign, procure the making or signing of, or submit or cause to be submitted to HMRC any declaration, notice, certificate, or other document that is untrue in a material particular. Under CEMA 1979, s 167(1)(b), an offence is likewise committed where a person, when required to respond to a customs officer, provides an answer that is untrue in a material particular. Both offences under s 167(1) are triable either way. CEMA 1979, s 167(3) sets out the same offence as s 167(1) but without any mental element, making it a strict liability offence. See Practice Note: Strict liability. An offence under s 167(3) is summary only and can therefore be tried solely in the...
The Food Safety and Hygiene ( England) Regulations 2013 ( FSH( E) R 2013), SI 2013/2996, have effect solely in relation to England. All enforcement action relating to food safety and food hygiene is pursued under these regulations. For an introduction to the scope of FSH( E) R 2013, see Practice Note: Introduction to the Food Safety and Hygiene ( England) Regulations 2013. Who do the FSH( E) R 2013 apply to? FSH( E) R 2013, SI 2013/2996, primarily concern 'food businesses' and 'food business operators'. Regulation 3 provides a presumption that specified food is intended for human consumption. The meanings of a 'food business' and a 'food business operator' are set out in Article 3 of Assimilated Regulation ( EC) 178/2002 of the European Parliament and of the Council of 28 January 2002, which lays down the general principles and...
Fraud by false representation This Practice Note considers the offence of fraud by false representation under section 2 of the Fraud Act 2006 ( Fr A 2006), read together with Fr A 2006, section 1. The constituent elements are: making a false representation dishonestly knowing that the representation is, or might be, untrue or misleading with the intention of obtaining a gain for the defendant or another, causing loss to another, or exposing another to the risk of loss The offence spans a wide range of behaviour. No actual gain or loss is required, and the representation need not in fact deceive anyone for Fr A 2006 liability to arise. The offence is complete once a false representation is made with the necessary knowledge, dishonesty and intent, and it is immaterial whether anyone is aware of it... You may also be...
The Economic Crime and Corporate Transparency Act 2023 ( ECCTA 2023) created a corporate offence of failing to prevent fraud, effective from 1 September 2025. This Practice Note is directed at commercial organisations, including law firms. It outlines the key features of the failure to prevent fraud offence brought in by ECCTA 2023. It explains the government’s expectations for procedures organisations should implement to deter fraud and the ensuing compliance implications. Not putting such measures in place may leave the organisation exposed to criminal offences. Organisations should also reflect on how to avoid becoming victims of fraud. Although the failure to prevent fraud offence addresses a distinct strand of fraud prevention, the risk management actions and preventative controls adopted by commercial organisations are likely to be much the same. Accordingly, this Practice Note addresses both strands of fraud risk...
ARCHIVED: This Practice Note has been archived and is not maintained. It set out the principal changes to the Criminal Procedure Rules 2020 ( Crim PR 2020), SI 2020/759, introduced by the Criminal Procedure ( Amendment No 2) Rules 2024, SI 2024/842, which take effect on 7 October 2024, unless stated otherwise. These measures include a wholesale rewrite of Part 9 on the allocation and sending of cases for trial in the Crown Court to support a new online written allocation and sending process, together with fresh rules on publishing information about cases dealt with under that written procedure. Additional amendments clarify the extent of information that court staff must provide to the public on request, and make provision for instances where information that would usually be supplied on request ought not be disclosed without a court order. The Crim PR 2020, SI...
Sections 45 and 46 of the Criminal Finances Act 2017 ( CFA 2017) set out two distinct offences: failing to prevent the criminal facilitation of a UK tax evasion offence (the UK tax evasion offence) and failing to prevent the criminal facilitation of a foreign tax evasion offence (the foreign tax evasion offence). Both are strict liability offences, in respect of which a ‘reasonable procedures’ defence applies......
This Practice Note examines the non-statutory bars to extradition, including abuse of process, human rights concerns, and arguments about time served. For information on the statutory bars to extradition, see Practice Note: Statutory bars to extradition. For further reading on the procedure that applies under the Extradition Act 2003 ( EA 2003), see Practice Note: Extradition under Parts 1 and 2 of the Extradition Act 2003—procedure. Abuse of process The court has jurisdiction to decide whether extradition should be refused because its processes have been abused. This bar is not set out in the EA 2003; it has been developed by case law. The abuse of process argument is a free‑standing ground of challenge, to be considered only after any statutory bars or human rights issues. The default position is that the requesting state is taken to have acted in good faith, so the person sought must...
Out of court disposals Out of court disposals ( OOCDs) is the term for a range of pre-charge sanctions deployed by the police and other enforcement agencies to deal with low-level, and frequently first-time, offending. At present, there are six OOCD options: simple cautions, conditional cautions, cannabis and khat warnings, community resolutions and penalty notices for disorderly behaviour. See Practice Note: Alternatives to prosecution for adults. While OOCDs remain a valuable mechanism for addressing minor offences without recourse to the courts, a 2013/2014 government consultation recognised the need for reform. It concluded, among other things, that the existing OOCD system is unnecessarily complex and fails to deliver meaningful consequences for offenders or to reduce reoffending. Feedback further highlighted that the scheme has become unwieldy and is applied inconsistently between different police forces. The Police, Crime, Sentencing and Courts Act 2022 ( PCSCA 2022) will...
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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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