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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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The Regulatory Enforcement and Sanctions Act 2008 ( RESA 2008) RESA 2008 gave regulators the ability to address offences through civil sanctions rather than prosecution. In 2010, the Environment Agency ( EA) and Natural England ( NE) received these powers for a range of environmental offences. From 2015, the regime broadened as the EA could accept enforcement undertakings for environmental permitting breaches. The Environmental Civil Sanctions ( England) Order 2010, SI 2010/1157 applies in England, while the Environmental Civil Sanctions ( Wales) Order 2010, SI 2010/1821 applies in Wales. Schedule 5 in each sets out the sanctions available for particular offences. The EA began exercising its powers in 2011, with NE following in 2012. Since 2013, the Natural Resources Body for Wales ( NRW) has been responsible for enforcing environmental civil sanctions in Wales. Civil sanctions are intended to make...
Both central government and local authorities treat air quality as a priority. EU Directive 2008/50/ EC of the European Parliament and of the Council of 21 May 2008, on ambient air quality and cleaner air for Europe (the Directive) — in the form it had immediately before 11pm on 31 December 2020 — set legally binding limits on concentrations of key air pollutants that affect public health, habitats and biodiversity. The Air Quality Standards Regulations 2010 and the Air Quality Standards ( Wales) Regulations 2010 (together, the Air Quality Regulations) transpose the requirements of the Directive into English and Welsh law respectively and, post- Brexit, still oblige the Secretary of State/ Welsh Ministers to assess air quality, ensure that specified limit values are not exceeded, and that specified target values are achieved. In addition, under Part IV of the...
Air pollution controls Air pollution controls tackle global climate change, ozone depletion and air quality, spanning a diverse and intricate range of activities. Some measures do not require permits or registration; instead they prohibit specified pollutants, set objectives and standards, or emphasise renewables and energy efficiency to cut harmful emissions. For more information on air pollution controls, see: Air pollution—overview. Most permitting and registration obligations arise from European and international controls, implemented through national legislation in the UK. This Practice Note supports those wishing to identify which permitting and registration controls apply in England and Wales to operators or organisations that emit air pollutants, and focuses on the following regimes: environmental permitting greenhouse gas permits ozone depleting substances ( ODS) Environmental permitting The environmental permitting regime supplies a framework in England and Wales through which the substantive requirements of various European Directives have been applied across multiple...
Where do the requirements for air conditioning inspections come from? Section 2 of the Building ( Scotland) Act 2003 ( Bu( S) A 2003) and Regulation 17 of the Building ( Scotland) Regulations 2004 (the Building Regs 2004), SSI 2004/406, set out the obligation to have an air conditioning system ( ACS) assessed by an accredited air conditioning energy assessor... Why are air conditioning inspections required? These inspections aim to support the efficient operation of systems and boost a building’s energy efficiency, in accordance with the European Directive on Energy Performance of Buildings, implemented through the Building Regs 2004, SSI 2004/406... When are inspections required? Under the Building Regs 2004, SSI 2004/406, every ACS with an effective rated output exceeding 12 k W must be periodically inspected by an energy assessor. Only organisations that have entered into a protocol with the Scottish Government are authorised to...
Introduction to agricultural diffuse pollution Agriculture underpins society and sustainability, supplying food and exerting substantial socio-environmental and economic influence. It is also a major contributor to Greenhouse Gas ( GHG) emissions. Diffuse pollution arises from non-point source, widespread activities spanning agricultural and urban environments. In an agricultural context, diffuse pollution is the contamination of soil, air and the water environment resulting from farming. It typically occurs over a broad geographical area and is shaped by what happens on the land surface. Farming operations that may add to this include: ploughing seedbed preparation crop spraying fertiliser spreading applying slurry There is a wide range of potential diffuse pollution sources, which can damage the environment, for example: run-off from farm roads and yards the surface of fields dusty roofs after...
' Unconventional' petroleum ' Unconventional' petroleum is produced by methods beyond orthodox techniques (chiefly vertical and horizontal drilling). It embraces shale oil and shale gas (oil or gas contained within comparatively fissile shale strata that necessitate hydraulic fractionation, or ‘fracking’, to secure their release), coal bed methane (methane adsorbed onto the surface of coal seams), tight gas (gas confined in formations with permeability so low that fracking is indispensable) and hydrates (gas sequestered within ice-like crystalline water frameworks). For further details, see: Unconventional Oil & Gas—overview. A conventional joint operating agreement (conventional JOA) must be amended in several respects and in a number of areas to accommodate the distinct features of an unconventional petroleum venture in practice. For more on conventional JOAs, see Practice Notes: The purpose and the principles of the joint operating agreement and Joint operating agreements: operator and...
Types of environmental liabilities Environmental liabilities arise in relation to land, buildings and fixtures. Under caveat emptor/buyer beware, such liabilities and any capital expenditure needs will generally pass to the buyer as the new owner. Whether the seller remains on the hook depends on the applicable regime and whether the deal is an asset or share sale. For instance, in an asset sale, non-compliance with an environmental permit, or causing or knowingly permitting pollution, can still attach to the seller company or individuals after completion. The principal types are outlined below. Land Contamination, asbestos in soil, water pollution, environmental damage, landfills, fly-tipped waste, flooding, ground subsidence, sinkholes, coal mining, unexploded ordnance, radon, Japanese knotweed, wildlife and habitat protection, riparian ownership, shale gas, energy projects, planning conditions, high speed 2, cross rail, compulsory...
Buyer beware A buyer may assume substantial environmental liabilities arising from existing contamination and become accountable for other matters such as asbestos within buildings and Japanese knotweed. See Practice Note: Environmental issues in property transactions—acting for a buyer. Under the common law rule of ‘caveat emptor’—‘let the buyer beware’—a seller has no obligation to disclose material facts to a prospective purchaser. See Practice Notes: Property—enquiries before contract and Misrepresentation, misstatement and non-disclosure in property matters. A buyer can be liable for land contamination and water pollution where: they are an innocent new owner and no causers or knowing permitters can be identified they become a knowing permitter by reviewing an environmental report or by continuing to allow contamination on the land they assume legal or contractual responsibility for the seller’s environmental liabilities, for example where the sale contract contains the sold with...
In brief A public authority does not have to disclose information in response to a request made under the Freedom of Information Act 2000 ( FIA 2000) if: the estimated cost would exceed the appropriate limit the request is vexatious the request is repeated an exemption applies FIA 2000 provides 24 exemptions that allow an authority to withhold the information sought. These exemptions fall into two main types: absolute exemptions qualified exemptions, which are subject to a public interest test When handling a freedom of information request, even where an exemption is engaged, an authority must still meet its duty to offer advice and assistance so far as it is reasonable. Therefore, even if material is considered exempt, the authority should do more than issue a refusal notice and should also consider what assistance to provide to the...
The Control of Pollution ( Oil Storage) ( England) Regulations 2001, SI 2001/2954, and the Water Resources ( Control of Pollution) ( Oil Storage) ( Wales) Regulations 2016, SI 2016/359—together the Oil Storage Regulations—are intended to prevent contamination of land and water. Threshold for storage capacity The Oil Storage Regulations apply to organisations and individuals with custody or control of an oil storage container at business premises and public sector buildings where the capacity is 201 litres or more. The English Regulations also capture domestic premises or barges in England that hold any oil storage containers of 3,501 litres or above. Oil storage containers The Oil Storage Regulations generally cover the storage of oil, subject to exemptions that differ between England and Wales. See table below — Exempt oil storage containers. Oil Storage Regulations Guidance issued by the Environment Agency ( EA) and the...
Prepared in collaboration with Landmark Chambers. The reason for special costs protection measures in environmental law The rationale for special costs protection in environmental law lies in internationally agreed principles. Such measures in environmental matters stem from international environmental law, for example Principle 10 of the 1992 Rio Declaration on Environment and Development. The Convention on Access to Information, Public Participation in Decision- Making and Access to Justice in Environmental Matters, concluded at Aarhus, Denmark, on 25 June 1998 (the Aarhus Convention), sets out in Article 1 that its purpose is to help safeguard the right of every person, both now and in the future, to live in an environment sufficient for his or her health and well-being. To that end, each Party must guarantee the rights of access to information, public participation in decision-making, and access to justice in...
This Practice Note examines the aims and the procedure relevant to confiscation under the Proceeds of Crime Act 2002 ( POCA 2002). Purpose of confiscation under POCA 2002 A confiscation order strips a defendant of the benefit obtained from their criminal conduct. The order does not, of itself, seize any asset; instead, it obliges the offender to pay a sum of money equal to the value of the benefit received. Accordingly, it is characterised as an order in personam, rather than in rem (see Practice Note: Determining the recoverable amount (benefit and available amount) under POCA 2002— Making the order). Confiscation orders therefore do not interfere with property rights, nor with the specific property identified when assessing the order (see eg: Faichney v Vantis HR Ltd, discussed in News Analysis: Clash between asset recovery and third-party proprietary rights ( Faichney and another v Vantis HR Ltd and...
What is the climate change levy? The climate change levy ( CCL) is a compulsory charge on energy used by UK businesses. It is applied at the point of supply, referred to as taxable supplies. HMRC oversees the levy, while energy suppliers add the charge to invoices and collect it. The levy applies to most non-domestic electricity, gas and solid fuels across the United Kingdom. Taxable supply A taxable supply means the provision of a taxable commodity, which can include self-supply, by an energy supplier to a business consumer that is not excluded from, or exempt under, the CCL. What is a business consumer? Business consumers are those operating in: industry commerce agriculture public administration Definition of self-supply A self-supply arises when a gas or electricity supplier, or a producer of other taxable commodities, uses its own output for its own business activities (e.g., heating and...
ARCHIVED: This Practice Note has been archived and is not maintained. This Environment cases tracker tool presents notable decisions and appeal developments of interest to Environment lawyers from 1 January 2022. The tracker is organised into: the Upper Tribunal the High Court of England and Wales the Court of Appeal the UK Supreme Court the Judicial Committee of the Privy Council Judgments and appeal updates appear under the court that issued the most recent ruling. Cases are arranged in reverse chronological order, with the latest first. For earlier significant decisions and appeal updates, see: Environment cases tracker 2021. Upper tribunal Case: Taylor Engineering and Plastics Ltd v Environment Agency [2022] Lexis Citation 147 Judgment date: 5 July 2022 Key facts/analysis: The First-tier Tribunal ( FTT) concluded that a penalty levied by the Environment Agency ( EA) for Taylor Engineering and Plastics Ltd’s failure to report...
Time limits for bringing a judicial review claim On receipt of a judicial review claim form, a public body should first carefully assess whether it has in fact been brought within time. For more detailed guidance, see Practice Note: Judicial review—time limits and the pre-action protocol. Different time limits apply for particular categories of judicial review claim: Challenges to an Upper Tribunal decision must be filed within 16 days of the Tribunal’s decision notice being sent Public procurement claims must be issued within 30 days of when a claimant knew, or ought to have known, of the alleged breach of the public procurement rules The Administrative Court Judicial Review Guide, para 6.4.3.3, states: ‘ Where the claim concerns a decision under [ PA 2023], it must be commenced within the period specified by [ PA 2023, s 106]: 30 days from the date when the claimant first knew or ought to...
General rule on costs in judicial review The default position on costs in judicial review, as in other litigation, is that costs follow the event. That said, parties may apply for pre-emptive costs orders. The costs of, and incidental to, all proceedings in the High Court are within the court’s discretion. By statute, the High Court has discretion to award costs on a judicial review application. Taking into account every relevant circumstance, including the overriding objective, the court may make a costs decision that departs from the default rule. The scope of the court’s discretion includes: whether one party must pay another’s costs the quantum of those costs the timing of payment Ordinarily, costs follow the event unless, on the particular facts, the court considers that a different order on costs, such as a pre-emptive costs order, should be made, for example to enable the claimant to continue the case. An...
Introduction Regulation of water spans the supply of safe, high quality drinking water for consumption, the abstraction of water from a range of sources, the treatment and disposal of wastewater, including sewage, and the control and management of floodwater. In the UK, oversight began with the Public Health Act 1848, which obliged the delivery of clean water in towns and cities. Although 19th century sewer networks expanded, encouraged by the framework in the Public Health Act 1848, comprehensive regulation of that part of the sector only arrived on privatisation under the Water Act 1989. Today’s regime sits in the Water Industry Act 1991 (as variously amended from time to time) ( WIA 1991) and the Water Resources Act 1991 (as variously amended) ( WRA 1991), empowering regulators to act to protect the environment and the needs of water users, as well as to oversee water...
What is judicial review? Judicial review is the means by which the courts exercise a supervisory jurisdiction over the performance of public functions by public bodies. This supervisory jurisdiction should not be mistaken for, or treated as, a right of appeal. CPR 54.1 states that a 'claim for judicial review' means a claim to assess the lawfulness of: an enactment a decision, action, or failure to act in relation to the exercise of a public function. Proceedings usually take place in the Administrative Court, which forms part of the King's Bench Division of the High Court. Judicial review proceedings are governed by a number of Civil Procedure Rules, Practice Directions and a pre-action protocol. Further detailed and practical guidance is provided in the Administrative Court Judicial Review Guide. The guide is intended to assist parties pursuing judicial review claims in the...
Company directors, and in certain circumstances shadow directors, are subject to a wide range of obligations owed to the company. Over centuries, the courts have shaped many of these obligations from broader common law doctrines and equitable standards, while others also have subsequently been codified in legislation. This Practice Note examines the director’s statutory obligations set out in sections 171 to 177 of the Companies Act 2006 ( CA 2006), commonly referred to as the general duties......
The Environment Agency ( EA), Natural Resources Wales ( NRW), the Health and Safety Executive ( HSE) and Natural England possess extensive, though not limitless, statutory powers to enter premises lawfully. Environment Agency powers Rights of entry and investigation under section 108 of the Environment Act 1995 ( EA 1995) may lawfully be exercised without a warrant in appropriate circumstances, although a warrant might be necessary where permission to enter has been, or is expected to be, refused. However, access must strictly comply with the express terms of written authorisation and be solely for the specified purpose of: ascertaining whether pollution control or flood risk activity law is being, or has been, complied with carrying out one of the authority’s relevant pollution control or flood risk activity functions deciding whether, and if so how, such a function should be...
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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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