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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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Environmental Permitting Regime—waste incineration Waste incineration is overseen within the UK environmental permitting framework, chiefly through the Environmental Permitting ( England and Wales) Regulations 2016 ( EPR 2016), SI 2016/1154, Sch 20. EPR 2016, SI 2016/1154 came into effect on 1 January 2017, consolidating and revoking the Environmental Permitting ( England and Wales) Regulations 2010 ( EPR 2010), SI 2010/675. EPR 2016, SI 2016/1154 is the principal set of rules for permitting and compliance in England and Wales, applying across numerous industries and activities. What is waste incineration? The term is often used interchangeably with ‘energy from waste’ ( Ef W) or ‘waste to energy’ to describe the thermal treatment of waste to produce electricity and heat. This Practice Note also covers regulation of smaller-scale waste burning for disposal, such as bonfires. Energy recovery from waste can be achieved via various...
What is the ‘waste hierarchy’? Under the Waste ( England and Wales) Regulations 2011, SI 2011/988, reg 12, any establishment or undertaking that imports, produces, collects, transports, recovers or disposes of waste—or that, as a dealer or broker, has control of waste—must, at the point of transfer, take all measures reasonably available in the circumstances to apply the following hierarchy in order of priority: prevention preparing for re-use recycling other recovery (eg energy recovery) disposal The Waste ( England and Wales) Regulations 2011 transposed the requirements of the Waste Framework Directive 2008/98/ EC ( WFD) into domestic law......
Relevant legislation In England and Wales, the Environmental Permitting ( England and Wales) Regulations 2016 ( EPR 2016), SI 2016/1154, set the applicable legal framework. These provisions initially transposed the EU Waste Framework Directive 2008/98/ EC—see Practice Note: EU Waste Framework Directive—snapshot. Government guidance explains how to register or renew waste exemptions and how to choose the appropriate exemption for a waste management activity. What are waste exemptions? A waste exemption is a waste operation that does not need an environmental permit, as long as the particular limits and conditions of that exemption are satisfied. Under EPR 2016, no person may operate a ‘regulated facility’ except in accordance with an environmental permit. A regulated facility covers ‘installations’ and ‘waste operations’, but excludes an ‘exempt facility’. For clarification of the terms ‘regulated facility’, ‘installation’ and ‘waste operation’, see Practice Note: Environmental Permitting Regulations 2016—waste...
Introduction Waste is defined as ‘any substance or object which the holder discards or intends or is required to discard’. Assessing whether something amounts to waste is complex and usually calls for a case-by-case evaluation of whether the holder has discarded an item, intends to do so, or is obliged to discard it. The term ‘discard’ must be construed in light of legislative provisions addressing the harmful effects of waste and the protection of the environment and human health. Nonetheless, some materials lie outside the scope of waste. This Practice Note describes the provisions dealing with matters excluded from the statutory definition of waste. See also the following Practice Notes: Meaning of waste—what is waste? Meaning of waste—definition of waste Waste projects—overview Environmental Permitting Regulations 2016—waste installations, waste operations and exempt waste...
The Waste Electrical and Electronic Equipment Regulations 2013 Waste Electrical and Electronic Equipment Regulations 2013 ( WEEE 2013), SI 2013/3113, as amended, revoked and superseded the Waste Electrical and Electronic Equipment Regulations 2006 ( WEEE 2006), SI 2006/3289. They initially gave effect in full to the obligations in Directive 2012/19/ EU, the recast WEEE Directive. WEEE 2013, SI 2013/3113, is, in essence, founded on the concept of extended producer responsibility, which obliges producers to bear responsibility for the environmental consequences of their products, particularly at the end of their life when they become waste. Comparable producer responsibility frameworks apply under the Packaging Waste Regulations ( SI 2007/871 and SI 2015/1640) and the End of Life Vehicles Regulations ( SI 2005/263 and SI 2003/2635). For more detail on producer responsibility, see Practice Note: Packaging waste—extended producer responsibility regime. For an overview of the WEEE...
Introduction Under section 34 of the Environmental Protection Act 1990 ( EPA 1990), as amended, from time to time, the waste duty of care obliges all waste ‘holders’ to fulfil requirements and follow procedures designed to protect the environment and prevent harm from the moment waste is produced at source through to its eventual recovery or disposal. A central obligation is to supply a written description of the waste so that, in practice, every holder can continue to ensure fully legal compliance with the other elements of the duty of care. For more information and guidance, see: Waste duty of care—overview. Distinct rules apply when handling hazardous waste and when managing POPs waste (waste with a high concentration of persistent organic pollutants, ‘ POPs’). For more on POPs, see Practice Note: Persistent organic pollutants ( POPs). Annex III to the Waste Framework...
The statutory duty of care in relation to controlled waste EPA 1990, s 34(1) first established the statutory duty of care for controlled waste, and it has since been revised on several occasions. Breach of that duty is an offence under EPA 1990, s 34(6). The principal waste regulators are: Environment Agency ( EA) in England Natural Resources Body for Wales ( NRW) Scottish Environment Protection Agency ( SEPA) Northern Ireland Environment Agency ( NIEA) Local authorities also regulate the less polluting processes and facilities. The main government departments are: Department for Environment, Food and Rural Affairs ( Defra) Welsh Government Scottish Government Department for Agriculture, Environment and Rural Affairs ( DAERA) This Practice Note addresses the duty of care for controlled waste in England and Wales only. It cites EU law. For guidance on how this applies in the UK see...
Compliance All carriers must: The following obligations apply: register with the Environment Agency in England and with Natural Resources Wales in Wales, as applicable present authorisation (for example, a registration certificate) promptly when asked avoid transporting controlled waste unless properly registered, unless operating as an exempt carrier provide relevant information requested by the regulator update registration details within 28 days of any change These duties are required. Brokers and dealers are required to: register with the Environment Agency ( EA) in England and Natural Resources Wales ( NRW) in Wales amend registration information within 28 days when any changes occur Enforcement Carriers The EA in England and NRW in Wales enforce a carrier’s duties under the Control of Pollution ( Amendment) Act 1989 ( CP( A) A 1989) and the Waste ( England and Wales) Regulations 2011, SI 2011/988. Under CP( A) A 1989,...
This Practice Note offers an introduction to waste law and waste producer responsibility, aimed at trainee solicitors and anyone beginning to engage with these topics. An introduction to waste law Waste law and policy comprise the legal rules and policy frameworks for managing waste so as to protect human health and the environment. In England and Wales, they are grounded in circular economy principles, keeping resources in use for as long as possible and reducing waste through reuse and recycling. The different strands of waste law interconnect to create a comprehensive system for responsible waste management. The definition of waste underpins classification and controls, while the duty of care ensures safe handling across the waste lifecycle. Permits regulate waste management activities, with hazardous waste regulations providing extra safeguards. Effective waste management, planning and policy support sustainable practices, and transport rules ensure the safe movement of waste....
The Hazardous Waste ( England and Wales) ( Amendment) Regulations 2016, SI 2016/336, revoked Part 5 of the Hazardous Waste ( England and Wales) Regulations 2005, SI 2005/894, thereby removing the need for any premises in England that produced or had hazardous waste removed to register with the Environment Agency ( EA). The obligation for premises in Wales to register with Natural Resources Wales ( NRW) was not altered by this change and, therefore, this Practice Note chiefly covers the registration requirements in Wales. What is hazardous waste? Almost every business will create some hazardous waste. Typical examples include: solvents, eg aerosols, paint remover chemicals, eg printer toner batteries refrigerators containing ozone-depleting substances asbestos Waste is generally considered hazardous if it, or the substances within it, are harmful to human health or the environment. The definition of waste refers to...
The Welsh Zone The Marine and Coastal Access Act 2009 ( MCAA 2009) amended the Government of Wales Act 2006 ( GWA 2006) to establish the ‘ Welsh Zone’. This comprises the sea next to Wales that falls within British fishery limits, calculated from Welsh baselines (set by section 1 of the Fisheries Limits Act 1976), and designated by an Order in Council under GWA 2006, s 58, or by an order of the Secretary of State under GWA 2006, s 158(3). The extent of the Welsh Zone is detailed in the Welsh Zone ( Boundaries and Transfer of Functions) Order 2010, SI 2010/760, reg 3... The Wales Act 2017 The Wales Act 2017 ( WA 2017) commenced on 31 January 2017. It retains the single legal jurisdiction of England and Wales, while introducing a revised Welsh devolution settlement that shifts from a conferred powers model to a...
Landowners of contaminated land may opt to remediate voluntarily, rather than trigger formal action under Pt IIA of the Environmental Protection Act 1990 ( EPA 1990) legislation. Voluntary efforts should be promoted wherever reasonably practicable, provided the remediation reaches a standard at least broadly equivalent to that required by Pt IIA. Prohibition on serving remediation notices Where suitable remediation is being undertaken, or is due to be carried out, without the service of any notice, enforcement authorities are barred from issuing a remediation notice under Pt IIA in relation to that contaminated land......
Reasons for reporting greenhouse gas emissions Over the past decade, expectations on businesses and public bodies to disclose greenhouse gas ( GHG) emissions have steadily escalated, creating growing momentum for transparent reporting. Analyses of climate impacts—most notably assessments from the Intergovernmental Panel on Climate Change ( IPCC)—together with tangible extreme weather events across the real world, have sharpened this pressure by underscoring the urgent need to cut emissions. Global accords, including the 2015 Paris Climate Agreement and the UNFCCC Conferences of the Parties ( COP), further amplify the drive on organisations and authorities to curb GHG releases. For further detail on the Paris Agreement and recent COP gatherings, see Practice Note: The Paris Agreement 2015—snapshot. Within the UK, the Climate Change Act 2008 imposes binding obligations on government to cut national carbon emissions, including a statutory requirement for the UK to reach net zero carbon by...
Sellers frequently employ a virtual data room (a restricted-access online platform established by a service provider for the sellers, as opposed to a 'physical' data room) to manage the bidding process (where relevant and appropriate) and to oversee the due diligence stage of the overall transaction......
Regulatory Enforcement and Sanctions Act 2008 The Regulatory Enforcement and Sanctions Act 2008 introduced new powers enabling regulators to address offences using six distinct forms of civil sanction, rather than initiating formal prosecutions. From 2010, the Environment Agency ( EA) and Natural England ( NE) were granted these powers in relation to a range of environmental offences. In 2015 the regime widened further, with the EA authorised to accept enforcement undertakings in respect of environmental permitting offences. In England, the Environmental Civil Sanctions ( England) Order 2010, SI 2010/1157 applies; in Wales, the Environmental Civil Sanctions ( Wales) Order 2010, SI 2010/1821 applies. Schedule 5 to each instrument specifies the sanctions available for particular offences set out in those orders. The EA commenced use of its civil sanctions powers on 4 January 2011, with NE following on 3 January 2012. Since 1 April 2013,...
This guide This guide supports organisations to pledge to quantify, oversee and disclose their greenhouse gas emissions; to adopt legally binding, enforceable emissions-reduction targets; to consider and satisfy reporting and disclosure obligations, in particular regarding scope 3 emissions; and to commit to a transition plan that aligns their operations with Paris Agreement goals. These sustainability clauses were created by The Chancery Lane Project ( TCLP) and are linked to on the TCLP website below. For detailed, step-by-step guidance on how to measure, manage, reduce and report emissions, please consult the guide provided by TCLP. TCLP is the code name for a focused and collaborative initiative of lawyers from around the world, working together to develop new contracts and model laws to help fight climate change. For more information, see:...
Why use environmental consultants? Environmental consultants operate across varied sectors and disciplines, working to regulate, manage and prevent pollution of air, soil and water. They evaluate environmental risks, check conformity with environmental legislation and best practice, and appear as expert witnesses in formal legal proceedings......
General position regarding land contamination and water pollution There is ordinarily no blanket duty on polluters, owners or occupiers of contaminated land to carry out remediation, nor even to alert the regulators, unless a legal or contractual trigger in this Practice Note bites. Examples include: an environmental permit condition obliges the operator to act at once or to inform the regulators the contamination, water pollution or harm to protected nature sites amounts to “environmental damage” or there is an “imminent threat” of such damage urgent steps are necessary to protect the health and safety of employees or others who could be impacted Accordingly, in many situations there is no statutory requirement to clean up contaminated land, let alone to take immediate measures. Voluntary urgent remediation Given how pollution and waste offences are framed, anyone causing, or knowingly permitting, the harm would be prudent to act...
Sewage disposal Sewage disposal in England and Wales is mainly governed by the Urban Waste Water Treatment ( England and Wales) Regulations 1994, SI 1994/2841, which give effect to the Urban Waste Water Treatment Directive 91/271/ EEC (as amended). For a summary of that Directive, see Practice Note: Urban Waste Water Treatment Directive 91/271/ EEC—snapshot. Under regulation 4 of the 1994 Regulations, the duties on sewerage undertakers in section 94 of the Water Industry Act 1991 are reinforced by obligations to ensure that “collecting systems” are in place by set dates, and to ensure that urban waste water entering those systems receives treatment in line with regulation 5. For more on WIA 1991, s 94, see Practice Note: Sewers and drains—sewerage undertakers’ core duties and powers. Every sewerage undertaker must produce, publish and keep up to date a drainage and wastewater management plan ( DWMP). This is a...
Before any nuclear power station proceeds to construction, its design is scrutinised to establish whether the social, economic, or other prospective gains genuinely outweigh the health hazards or any other detriments linked to exposure to ionising radiation. This formal appraisal is referred to as ‘regulatory justification’. Brexit impact— Euratom and the UK Nuclear Sector As at 31 January 2020 (exit day), the UK ceased to be an EU Member State. At exactly 11 pm ( GMT) on 31 December 2020, the Brexit transition/implementation period drew to a close. From that point (termed ‘ IP completion day’ in UK legislation), key transitional measures came to an end and significant changes began to take effect across the UK’s legal framework. Departure from the EU likewise meant leaving Euratom. On 24 December 2020, the UK government confirmed it had reached agreement on the EU‑ UK Trade and...
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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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