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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 archived Practice Note provides an introduction to the 2012 version of the National Planning Policy Framework (2012 NPPF) This archived Practice Note outlines the 2012 National Planning Policy Framework, explaining sustainable development, the presumption in favour of it, and the core planning principles set out in that edition. On 24 July 2018 the government issued a revised NPPF that replaced the 2012 framework; the earlier text was archived and now applies only in specified circumstances described below. Further revisions to the 2018 NPPF followed in: 2019 2021 2023 For information on the 2023 NPPF now in force, see Practice Note: The National Planning Policy Framework. The 2012 NPPF took effect in England on 27 March 2012, immediately replacing all Planning Policy Statements and Planning Policy Guidance Notes, except PPS10 ( Planning for Sustainable Waste Management). It sought to make the planning system simpler and more...
Commissions Commissions amount to offering a financial benefit to another. They are not invariably bribes. Typically, a commission arises when a seller or buyer provides a benefit to a third party or fiduciary for arranging or mediating the supply of goods or services, or otherwise assisting with a transaction for goods or services. While normal in many industries and accepted practice, an anticipated advantage can create a tangible risk that functions are performed improperly. A commission can also be a facilitation payment, paid to secure the performance (or swifter performance) of an obligation already owed (see Practice Note: Facilitation payments under the Bribery Act 2010). Where a commission is a facilitation payment, it is unlawful. The Serious Fraud Office ( SFO) has indicated it will bring proceedings where the Code for Crown Prosecutors, Full Code Test is satisfied; namely, there is a...
This Practice Note outlines the key criminal offences and civil protections against unlawful eviction affecting certain tenants and licensees. Unlawful eviction and harassment—criminal offences A landlord commits a criminal offence under section 1 of the Protection from Eviction Act 1977 ( PEA 1977) if they: unlawfully exclude a residential tenant or occupier from possession of the premises, or any part of it, or attempt to do so (it is a defence to have believed, with reasonable cause, that the occupier had stopped living in the premises), or carry out acts likely to disturb the peace or comfort of the residential tenant or any member of their household, or persistently cut off or withhold services reasonably required for occupation of the premises as a home. The landlord must either intend to induce the occupier to give up occupation or to refrain from...
Part 3, Schedule 5 Parts 1–6 and Schedule 6 of the Consumer Rights Act 2015 ( CRA 2015) establish a consolidated, generic suite of investigatory powers to be used across the catalogue of consumer protection legislation. These powers amount to a consolidation, refinement and amendment of those that previously stemmed from the fractured legislative framework that once governed consumer law. Enforcers with access to the generic set of investigatory powers under CRA 2015 Various regulatory bodies and enforcers are responsible for applying consumer law in the UK. Under the CRA 2015, an enforcer’s type is determined by the legislation or offences being addressed, and the powers available to them depend on that classification. The CRA 2015 provides for four categories of enforcer: domestic enforcers who have responsibility to enforce consumer law in the UK. In relation to England and Wales, this includes Trading...
The Bribery Act 2010 ( BA 2010) criminalises: offering or giving a bribe to another person (active bribery) requesting, agreeing to receive, or accepting a bribe (passive bribery) bribing a foreign public official for a business or commercial organisation only, failing to prevent bribery The purpose of this Practice Note is to present a general overview of the active and passive bribery offences in BA 2010, ss 1 and 2, together with the offence of bribing a foreign public official under BA 2010, s 6; in essence, the giving or receiving of bribes. It does not include a synopsis of the corporate offence of failing to prevent bribery, which is dealt with in Practice Note: Failure to prevent bribery—the offence. This Practice Note should be considered alongside Practice Note: The Bribery Act 2010—an introductory guide. BA 2010 came into force on 1 July 2011. Conduct occurring prior to...
Guidance Advice on enforcing breaches of planning control is contained in: Planning Practice Guidance ( PPG) in England Development Management Manual ( DMM) in Wales Time limits for issuing an enforcement notice All enforcement action for breaches of planning control is constrained by statutory time limits. Action taken beyond these periods is not authorised, save in limited situations; see Practice Note: Deliberate concealment of planning breaches. The time limits for taking enforcement action in England are: Operational development: ten years from the date the operations were ‘substantially completed’ (or four years where substantially completed before 25 April 2024) Change of use of any building to ‘use as a single dwellinghouse’: ten years from the date of the breach (or four years where the breach occurred before 25 April 2024) Any other breach of planning control: ten years from the date of the...
Purpose Highways can be stopped up when a section is no longer required, or where the land is needed to enable a development. When a road is ‘stopped up’, the public’s right to use it is removed. Legislation Powers to stop up and to divert highways are set out in: sections 247, 248, 249, 253 and 257 of the Town and Country Planning Act 1990 ( TCPA 1990) sections 116, 118 and 119 of the Highways Act 1980 ( Hi A 1980) Guidance The Rights of Way Circular (1/09) offers direction to local authorities on recording, managing and maintaining, protecting and amending public rights of way. The government has produced guidance for applicants in England on applying for a stopping up order to close or divert a highway. The Welsh government has issued guidance and services for applicants on the requirements and procedures for stopping up and diversion of...
This Practice Note Addresses defamation in the sphere of social media. It considers when individuals, internet service providers ( ISPs), website operators and employers could incur liability for defamatory material, and outlines defences available under the Defamation Act 1996 ( De A 1996), the Electronic Commerce ( EC Directive) Regulations 2002 ( E- Commerce Regulations 2002), SI 2002/2013, the Defamation Act 2013 ( DA 2013) and the Defamation ( Operators of Websites) Regulations 2013 ( DOW Regulations 2013), SI 2013/3028. The internet, and social media in particular, is a high-risk arena for defamation disputes. Posts on blogs, internet forums, online newspaper comment areas and well-known social networking platforms such as Facebook and X (formerly Twitter) can be inaccurate and malicious in nature. Anonymity prompts some people to abandon the normal cautions they would apply to other forms of publication. For a...
The offences of failing to secure regular attendance at school The Education Act 1996 ( EA 1996) places criminal responsibility on a parent who does not ensure their child receives regular education. All offences under EA 1996 are summary only, meaning they can be dealt with solely in the magistrates' court. See Practice Note: Education Act offences. Before starting legal proceedings, the local authority must consider whether to apply for an Education Supervision Order. See Practice Note: Education supervision orders. Statutory guidance aimed at raising school attendance provides advice on when prosecution is suitable. As a rule, prosecution should be a last resort after all voluntary and formal support has been attempted and has not worked. EA 1996 creates two offences concerning a parent's failure to secure a registered pupil’s attendance at school. The first, under s 444(1), is a strict or absolute offence, so proof of the...
What is the Renewables Obligation scheme? The renewables obligation ( RO) was designed to stimulate investment in renewable generation. It came into force in Great Britain in 2002, and in Northern Ireland in 2005. Under the scheme, electricity suppliers serving customers had to procure an ever-rising share of their wholesale power from renewable sources. Subject to certain exceptions, RO accreditation ended on 31 March 2015 for new solar PV and onshore wind projects, and from 1 April 2017 for all other new types of electricity generation. For more on this, see: Closure of the RO to new generation and grace periods below. The Secretary of State ( So S) for Energy, Security and Net Zero, who leads the Department for Energy Security and Net Zero ( DESNZ), determines the obligation in line with the Renewables Obligation Order 2015 ( RO Order 2015) SI...
This Practice Note explains when a rectification claim may be suitable, what you must prove to succeed, and which evidence may be admissible in support. What is rectification? Rectification is an equitable remedy intended to correct a document so that it reflects the parties’ true intentions. When contracting, the parties may have shared a common intention about the meaning of their agreement at the time of drafting, yet that intention is not captured in the wording; ie it diverges from the objective meaning of the contractual document as determined in accordance with the rules of contract interpretation (on which, more generally, see Practice Note: Contract interpretation—rules of contract interpretation). In those circumstances, a claim for rectification may be appropriate. As Hildyard J observed in Procter & Gamble v Svenska Cellulosa, the purpose of rectification is not to vary, modify or extend the bargain; it is to reform the...
Every public authority, when carrying out any of its functions, is subject to and must comply with the Public Sector Equality Duty ( PSED). The PSED is contained in section 149 of the Equality Act 2010 ( Eq A 2010). In performing their functions, public authorities are required to have due regard to the need, in particular, to: eliminate discrimination, harassment, victimisation and any other conduct prohibited by or under the Eq A 2010 advance equality of opportunity between persons who share a relevant protected characteristic and those who do not foster good relations between persons who share a relevant protected characteristic and those who do not Eq A 2010, s 149 replaced the earlier trio of standalone public sector duties on race, gender and disability equality ( Race Relations Act 1976, s 71, Sex...
Public nuisance The common law offence of public nuisance was abolished by section 78 of the Police, Crime, Sentencing and Courts Act 2022 ( PCSCA 2022) and supplanted by a statutory offence of intentionally or recklessly causing serious harm to the public. That said, the common law offence still technically applies to conduct committed before PCSCA 2002, s 78 took effect, or which began prior to PCSCA 2022, s 78 coming into force and continued thereafter. It is, however, highly unlikely that prosecutions will proceed under the common law. See: Public nuisance under common law. Common law public nuisance endures as a tort in civil law, and PCSCA 2022, s 78(8) states the statutory offence does not affect liability for that tort. Statutory offence of intentionally or recklessly causing a public nuisance Although PCSCA 2022 does not expressly use the term ‘public nuisance’ in its wording, it...
This Practice Note This Practice Note explains how the welfare principle in the Children Act 1989 ( Ch A 1989) applies within public children proceedings. It sets out the court’s discretion and the influence of the welfare principle alongside the welfare checklist. It also gives practical guidance on the paramountcy principle, the need to avoid delay, concurrent and twin-track planning, and early permanence (previously termed ‘fostering to adopt’). Ch A 1989 establishes a two-stage process, which may occur in the same hearing or over multiple hearings, before the court may exercise its discretion to make a care or supervision order: first, the court must consider the threshold criteria in Ch A 1989, s 31(2) second, the court considers the welfare principle This Practice Note focuses on the second, welfare, stage. The local authority must establish the threshold criteria before the court can reach the...
This Practice Note explores circumstances in which parties can resist disclosure and/or inspection of sensitive material on the basis of public interest immunity ( PII). It outlines the steps for advancing a PII claim and securing the court’s leave to withhold documents. Waiver of PII is also addressed here. This Practice Note should be read alongside Practice Note: Closed Material Procedure. What is public interest immunity ( PII)? A party may oppose the disclosure and/or inspection of a document where producing it would prejudice the public interest. That objection is characterised as reliance on PII, the ‘immunity’ describing the capacity to decline disclosure or to refuse permission for inspection of the material. It was formerly referred to as ‘crown privilege’. PII operates in both civil and criminal law settings. The ‘proper approach’ to PII, which deploys a three-stage test, is discussed in the...
The Human Rights Act 1998 ( HRA 1998) obliges public bodies not to behave in a manner that conflicts with Convention rights. A claim can only be brought if the body in question is a public authority. It is therefore crucial to identify what qualifies a body as a public authority for the purposes of HRA 1998. In some matters the answer is straightforward, yet in many others the position is more nuanced. In those circumstances it is necessary to look to guidance issued by the courts on what makes an organisation a public authority. Only bodies meeting this threshold face potential claims under the Act. Judicial guidance remains essential in borderline cases. The legislative background Section 6 of HRA 1998 states: Acts of public authorities (1) It is unlawful for a public authority to act in a manner that is...
This Practice Note sets out the core principles, meaning and rationale for privilege. It identifies the main categories and explains how they operate: legal advice privilege and litigation privilege (together, ‘legal professional privilege’ ( LPP)) common interest privilege joint privilege public interest immunity ( PII) closed material procedures ( CMP) It examines the effect of privilege on disclosure and inspection, distinguishes confidential documents from privileged material, and considers who owns the right, how long it lasts, and its impact on case management. Practical tips on handling privilege are also provided. What is privilege? In English law, privilege is a fundamental right enabling a party, or its successors in title, to refuse production of certain documents (see the Court of Appeal decision in Addlesee v Dentons Europe). Where privilege applies, it generally does not remove the duty to disclose that a...
This Practice Note offers guidance on interpreting and applying the relevant provisions of the CPR. Depending on the court handling your case, you may need to consider additional requirements—see below. It clarifies when the Practice Direction Pre- Action Conduct and Protocols (the Practice Direction) takes effect and outlines its aims and principles. It also covers what a claimant should include in a letter of claim and what is expected in the defendant’s reply, and briefly touches on ADR, limitation and experts. When does the Practice Direction on Pre- Action Conduct and Protocols apply? The Practice Direction sets out the conduct generally expected of parties before proceedings are issued. Its provisions apply across the board, but it is specifically stated to govern where none of the more detailed pre-action protocols is relevant to your claim (see Practice Direction Pre- Action Conduct and Protocols, para 2). For...
This Practice Note condenses the law, guidance and practical approach to executing simple contracts and deeds. It highlights the main distinctions between deeds and simple contracts, pinpoints those transactions that must be effected by deed, and outlines the execution formalities for both. It also covers the need for signature, use of counterparts, dating, smart legal contracts, virtual execution and electronic signatures. We have created a comprehensive, interactive collection to help users recognise and navigate the concepts and recurring issues that arise when executing documents. Each section or phase provides practical guidance, precedent-style clauses and Q& As relevant to that stage. For further information, see: Execution collection. Creating contracts A contract is a binding agreement that confers rights and imposes obligations on two or more parties. There is extensive case law on contract principles which is not examined in detail here. Put simply, for a...
Context Under section 57 of the Town and Country Planning Act 1990 ( TCPA 1990), planning permission is needed for the undertaking of any development of land. The term ‘development’ is set out in TCPA 1990, s 55(1) as: the undertaking of building, engineering, mining or other operations in, on, over or under land, or any material change to the use of buildings or other land Accordingly, consent is necessary for operational development and for material changes of use. See Practice Notes: Operational development and Material change of use. Who can apply for planning permission? Any person may submit a planning application for the development of land; the applicant need not own the land to which the application relates. However, the applicant must notify freehold and leasehold owners of the land concerned prior to submission of the planning application, see: Publicity of planning...
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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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