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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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Enforcing road traffic regulation orders is more complicated than for many other offences, as the first indication that a breach has occurred is often merely a report that a particular motor vehicle was, for example, speeding, travelling the wrong way along a one-way street, or parked in the wrong place or left for too long. A vehicle cannot commit an offence; it is the driver who does, and identifying the actual driver is frequently difficult, especially with parking offences, because they are commonly not in or near the vehicle. Road traffic—criminal offences Standard criminal law procedures can be used where a witness can reliably identify the motorist alleged to have committed the offence. In other situations and circumstances, when the driver’s identity is not known at all, secondary offences have been created, as in section 172 of the Road Traffic Act 1988 ( RTA 1988), which makes it an...
This Practice Note explains the threshold criteria contained in section 31(2) of the Children Act 1989 ( Ch A 1989) and identifies the public children law applications within its scope. It outlines the statutory definition of those criteria under the Ch A 1989 and the need for evidence of significant harm. It further considers standards of proof, situations where the perpetrator is unknown, and the court’s responsibilities and duties, including how findings are to be formally recorded......
This Practice Note is intended for judgment creditors thinking about seeking an attachment of earnings order. It sets out what an attachment of earnings order is, when you can seek one, how to make the application, and what follows after it is lodged. What is an attachment of earnings order? To enforce a judgment debt, a creditor may apply for an attachment of earnings order ( AEO). This directs the judgment debtor’s employer to send a specified portion of the debtor’s pay to a central collecting office for transfer to the judgment creditor. The statutory basis for AEOs is the Attachment of Earnings Act 1971 ( At EA 1971), and the procedural framework appears in CPR 89. Under At EA 1971, s 6(1), an AEO is a direction to the judgment debtor’s employer to: make periodical deductions from the debtor’s earnings at such times as the...
STOP PRESS: As of 24 February 2025, the principal provisions of the Procurement Act 2023 ( PA 2023) are in effect. Procurements initiated on or after that date must proceed under PA 2023, while those started under the earlier regime—the Public Contracts Regulations 2015 ( PCR 2015), the Utilities Contracts Regulations 2016, the Concession Regulations 2016, and the Defence and Security Public Contracts Regulations 2011—must continue to be run and overseen in accordance with that legislation. See Practice Note: Introduction to the Procurement Act 2023— PA 2023. PCR 2015 as assimilated law PCR 2015 are EU-derived domestic legislation and therefore fall within assimilated law under sections 2 and 6 of the European Union ( Withdrawal) Act 2018. For practical guidance on the status and construction of assimilated law, see Practice Note: Assimilated law. Investigating abnormally low...
offences Section 2 of the Refuse Disposal ( Amenity) Act 1978 ( RD( A) A 1978) creates a criminal offence where, without lawful authority, a motor vehicle is abandoned on any land in the open air, or on any land that forms part of a highway. It is likewise an offence to abandon anything that once formed part of a motor vehicle and was taken from it while the vehicle was being dismantled on the land. Where the vehicle has not been abandoned but is left on the road and is causing a nuisance to residents and road users, this conduct may well amount to an offence. See Practice Note: Nuisance parking criminal offences. Sentences for abandoning a vehicle The maximum penalty upon summary conviction is a level 4 fine, three months’ imprisonment, or both. RD( A) A 1978, s 2A authorises an officer of a local...
This Practice Note This Practice Note sets out that the standard of highway maintenance required is determined by the level of expected ordinary traffic on the route concerned. It further explains that a person injured by a danger on a highway may sue the highway authority in negligence, and that the authority has a statutory defence under the Highways Act 1980 ( Hi A 1980) if it can show it exercised reasonable care. It also notes that, at common law, the obligation is to keep the highway in a reasonable condition rather than to improve it. The authority must carry out routine inspections of the highway surface and run a system for incoming reports of damage; however, the duty to keep the highway in repair does not extend to damage caused by extraordinary traffic. A highway authority is under a duty to...
This Practice Note sets out the principal highways law matters relating to bridges and tunnels—namely the public’s entitlement to pass and re‑pass across bridges or through tunnels, and who carries responsibility for their maintenance. It outlines the four categories of highway bridge and explains, for each, where the maintenance duty falls, with particular reference to the Highways Act 1980 ( Hi A 1980) and the Transport Act 1968 ( Tr A 1968). It also summarises relevant legislation that is specific to toll bridges and tolled tunnels, new bridges across navigable water, bridges across boundaries, and footbridges. The main highways law issues concerning bridges and tunnels are as to the: rights of the public to pass and re‑pass across bridges or through tunnels maintenance liability for them The Hi A 1980 definitions of a bridge and a tunnel provide little practical...
Assimilated law and retained EU law are concepts created by the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018), as amended, arising from Brexit, and denoting a new class of domestic legislation. They are umbrella labels used, at two junctures in the UK legal system’s engagement with Brexit, for the corpus of EU‑derived rules kept within domestic law following the transition period (termed IP completion day in the EU( W) A 2018 and associated legislation). For initial background reading, see Practice Note: Retained EU law and assimilated law. Assimilated law versus retained EU law: what’s the difference? Both expressions describe the residual body of domestic rules originally deriving from the UK’s membership of the EU. The pair marks two phases in the legal system’s adaptation to Brexit: retained EU law was the label for that body as it was...
This Practice Note This Practice Note examines force majeure within the context of English law and the circumstances in which a force majeure event may bring a contract to an end, addressing the burden of proof, construction of force majeure clauses (including the operative verb), procedural obligations, and how to challenge the validity of a force majeure clause. See also Practice Notes: Force majeure clause analysis—a practical guide Force majeure—key and illustrative decisions For assistance when giving notice of a force majeure event, see Precedent: Force majeure notice. Force majeure clauses came under intense scrutiny in light of ‘world events’, such as the coronavirus ( COVID-19) pandemic in 2020 and Russia’s invasion of Ukraine in 2022, on which see: Force majeure and current world events below......
Facilitating the performance of a duty by public officials Facilitation payments, sometimes termed ‘grease’ or ‘facilitating’ payments, are typically modest sums made to public officials or third parties in order to secure the carrying out of their functions, either more swiftly or even to ensure it occurs at all. This may extend to the giving of ‘gifts’, such as cigarettes or alcohol. In certain jurisdictions, these payments are routine and lawful (eg permitted in some situations under the US Foreign Corrupt Practices Act 1977 ( FCPA 1977); see Practice Note: The US Foreign Corrupt Practices Act 1977 ( FCPA 1977) and Bribery Act 2010 ( BA 2010) comparison table). Are facilitation payments illegal under BA 2010? Such payments amount to the offering, promising or providing of a financial advantage and therefore constitute bribery, as the Bribery Act 2010 ( BA 2010) provides no...
Purpose An environmental impact assessment ( EIA) evaluates a project’s likely significant environmental effects. It ensures the environmental implications of a development proposal are given appropriate weight, alongside economic and social considerations, when planning applications are determined, and creates opportunities to lessen those impacts. It also allows the public and other consultees to participate in the decision-making procedures. Legislation and guidance In relation to town and country planning, EIA is governed by: The Town and Country Planning ( Environmental Impact Assessment) Regulations 2017, SI 2017/571 (the English EIA Regulations) in England; and The Town and Country Planning ( Environmental Impact Assessment) ( Wales) Regulations 2017, SI 2017/567 (the Welsh EIA Regulations) in Wales Together, the ‘ EIA Regulations’. The EIA Regulations transpose into English and Welsh law the changes introduced by Archived Directive 2014/52/ EU to Archived Directive 2011/92/ EU on assessing the effects of certain public and private...
Court judgments and orders do not always require one party to pay money to another; they can also direct a party to perform an act, rather than provide a monetary remedy. Where the person obliged to carry out a specified step does not comply, the court may step in to see the required act is achieved by appropriate judicial measures where necessary. CPR 70.2A serves this purpose and ought to be read with, though distinct from, the contempt provisions for non-compliance with a court order (see: Tapecrown). Which court orders are covered by CPR 70.2A CPR 70.2A applies when a party has secured any of these: a mandatory order—eg party A obtains an order that party B destroy......
Where a developer, for whatever reason, does not fulfil its duties under an agreement made or binding on it pursuant to section 106 of the Town and Country Planning Act 1990 ( TCPA 1990) (a planning obligation/section 106 agreement), the relevant local planning authority ( LPA) may take steps to secure performance of the obligations contained in the section 106 agreement and to ensure compliance with its terms and requirements. On recognising that it cannot meet an obligation in a section 106 agreement, the developer should promptly engage with the LPA and seek to discharge or vary the obligation. For instance, it could propose a reduced or otherwise amended contribution, or negotiate a later trigger date for payment, delivery or compliance. See Practice Note: Renegotiating planning obligations/section 106 agreements. If that is not achievable, and the developer fails to comply with an...
The Health and Safety Executive The Health and Safety Executive ( HSE) is a non- Departmental Body within the Department of Work and Pensions and primarily serves as the principal regulator for health and safety offences. It co-operates closely with the Crown Prosecution Service ( CPS) and the police under the work related deaths protocol where manslaughter and corporate manslaughter are in issue. See Practice Note: Corporate manslaughter—an introductory guide. Section 10 of the Health and Safety at Work etc. Act 1974 (as amended) ( HSWA 1974) establishes the HSE to advance health and safety at work by conducting research, by providing training and information, and by undertaking enforcement. Basis of the HSE’s statutory powers Its powers and duties derive from a wide and comprehensive range of relevant statutes and statutory instruments......
This practical guidance relates to the pre- Procurement Act 2023 regime This Practice Note offers guidance for public procurement exercises launched before the Procurement Act 2023 ( PA 2023) took effect on 24 February 2025. Procurements within scope that start on or after that date are subject to PA 2023. Under PA 2023’s transitional and savings provisions, the former public procurement regimes persist as needed so contracting authorities can conclude and administer procedures begun before PA 2023 commenced (ie ongoing procurements). This Practice Note should be interpreted on that basis. For background, see Practice Note: Introduction to the Procurement Act 2023— PA 2023. Further practical material on PA 2023 sits in a separate subtopic: Procurement Act 2023—overview. It is intended to be read alongside those materials for context and background. Remedies for breach of PCR 2015 The Public Contracts Regulations 2015 ( PCR 2015), SI...
Similarities between Freedom of Information Act and Environmental Information Regulations At their core, the Freedom of Information Act 2000 ( FIA 2000) and the Environmental Information Regulations 2004 ( EIR 2004), SI 2004/3391, share a common purpose: enabling access to information kept by public authorities. For further detail, see Practice Notes: Environmental Information Regulations 2004—what is environmental information? and Introduction to freedom of information. More specific similarities include: time limits—under each framework, where the information is held and no exemption applies, public authorities must respond within 20 working days duty to advise and assist—both FIA 2000 and EIR 2004 set expectations for handling requests, requiring authorities to offer a reasonable level of advice and assistance to requestors and potential requestors appeals—identical appeal routes are available For more information, see Practice Notes: Environmental Information Regulations...
This Practice Note outlines the process for applying to change a child’s name under sections 8 or 13 of the Children Act 1989 ( Ch A 1989). It identifies who may apply, whose consent is needed to effect the change, when the court’s permission must be obtained, and the steps to be followed. The Note clarifies when the court’s permission is necessary. It also lists the considerations the court must have regard to under the Ch A 1989, together with relevant case law. In addition, it provides guidance on changing a name by deed poll. Children's surnames at registration A child’s birth must be registered within 42 days of the birth. The child’s mother and father are responsible for completing the registration. The surname recorded in the register is the name intended for the child at the date of...
Statutory nuisance leading to abatement notice A local authority is required to periodically examine its district for statutory nuisances, and when a resident submits a complaint, it must take all reasonably practicable steps to investigate it. A statutory nuisance may arise where any of the following are, or are likely to be, prejudicial to health or a nuisance: the condition or physical state of premises smoke, fumes or gas released from premises, a vehicle, machinery or equipment in a street dust, steam or odours originating from business, industrial or trade premises refuse, or any accumulation or deposited material noise arising from any premises, vehicle, machinery or equipment in the street For further detail on the above, see Practice Note: Statutory nuisance. A statutory nuisance can also be abated, limited or prevented by a nuisance order made by the...
This Practice Note examines the legal framework governing a student’s relationship with their higher education provider in the context of discipline. It reviews the contractual position, its interface with public law, statutory obligations and criminal law. It also outlines categories of misconduct that may prompt disciplinary proceedings, and the factors to assess before any action is initiated. What power does a higher education institution have to discipline a student? Although a student’s dealings with their university are regulated by several areas of law, including: public law, including discrimination law (as set out in the Equality Act 2010 ( Eq A 2010)) statutory duties relating to freedom of speech on campus, human rights law data protection laws tort law, in respect of negligence claims, and property law concerning student accommodation the institution’s relationship with the student is predominantly contractual ( Clark v University of Lincolnshire and Humberside). An...
Form of commercial contracts This Practice Note sets out the structure and format of a business‑to‑business commercial contract or agreement. It summarises the usual layout of commercial agreements and identifies the details to include in the contract document, covering the parties, background (recitals), the main body, schedules, and the attestation provisions. How a contract is formed A contract is a legally enforceable arrangement that gives rights and imposes duties between two or more parties. For a contract to exist, contract law requires four core elements: offer (see Practice Note: Forming enforceable contracts—offer) acceptance (see Practice Note: Forming enforceable contracts—acceptance) consideration (see Practice Note: Forming enforceable contracts—consideration) an intention to create legal relations (see Practice Note: Forming enforceable contracts—intention to create legal relations) Simple contracts v deeds Simple contracts may arise orally, by conduct, or in writing. Certain categories of simple contract, however, must be in...
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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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