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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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Lexis+® UK complete Scottish Will styles Will ( Scotland)—leave to spouse; if none, to children; straightforward powers Will ( Scotland)—to spouse; failing which, to issue; trust terms for young beneficiaries; extended powers; guardian appointment Will ( Scotland)— Nil Rate Band Discretionary Trust; residue to spouse; in default, to issue; clause requiring accounting for advances......
FORTHCOMING CHANGE : The Trusts and Succession ( Scotland) Act 2024 received Royal Assent on 30 January 2024, delivering the first overhaul of Scottish trusts law in over 100 years since the Trusts ( Scotland) Act 1921. Provisions on trusts require commencement by secondary legislation from Scottish Ministers, while certain succession measures took effect on 30 April 2024. The principal updates to modernise the framework are outlined in News Analysis: Trusts and Succession ( Scotland) Bill passed. Practice Notes covering Scottish trusts and succession will be further revised to reflect this new legislation. What is a trust for (or with) a vulnerable beneficiary? A trust for a vulnerable beneficiary falls into one of two types: a disabled person's trust; or a trust for a bereaved minor (referred to as ‘relevant minors’ in statutory provision) Where a trust satisfies both sets of conditions, it is treated as a disabled...
A glossary of frequently used terms and phrases in Scottish Private Client law, with the closest England and Wales equivalents (where applicable) and links to helpful websites Ab intestato Meaning From someone who dies without a will; describes property taken under the laws of intestate succession. Nearest English equivalent None Action of specific implement Meaning A court action seeking an order compelling a party to carry out a particular act. In Scotland there is no division between equitable and legal remedies, unlike England and Wales. Nearest English equivalent Specific performance (an equitable remedy for breach of contract that can be ordered alongside, or in place of,...
Scottish GAAR The Scottish GAAR is intended to safeguard tax and public revenues by tackling artificial tax avoidance arrangements, and is designed to work in parallel with the targeted anti-avoidance rules embedded in the legislation that implements the devolved taxes. It has applied from 1 April 2015 and covers devolved taxes. A devolved tax is one designated as such by Part 4A of the Scotland Act 1998. The devolved taxes currently operating are land and buildings transaction tax ( LBTT) and Scottish landfill tax ( SLFT). Air departure tax, the aggregates levy and wild fisheries taxes are listed in Part 4A as devolved, but have not yet commenced, although the aggregates levy is anticipated to commence on 1 April 2026. The Scottish rate of income tax is not devolved; it remains administered by HMRC and falls outside the Scottish GAAR. Although the...
FORTHCOMING CHANGE: The Charities ( Regulation and Administration) ( Scotland) Act 2023 will be implemented in two additional stages, which are expected to occur (i) in late summer or early autumn 2025 and (ii) by the close of the 2025 calendar year, respectively. The Scottish Government has indicated it will legislate to revise the accounting audit thresholds in Scotland, in order to raise the gross income threshold from £500,000 to £1m. New regulations are expected in autumn 2025. Regulation by the Office of the Scottish Charity Regulator The Office of the Scottish Charity Regulator ( OSCR) was created by the Charities and Trustee Investment ( Scotland) Act 2005 (2005 asp 10) ( CTI( S) A 2005) to be the registrar and regulator of Scottish charities. It functions as the registrar and regulator of Scottish charities......
FORTHCOMING CHANGE: The Fundraising Regulator has recently revised the Code of Fundraising Practice, and a revised code was published in early 2025. The revised code will take full effect from 1 November 2025, with a structured transition phase commencing in May 2025. Self-regulatory regime in Scotland Apart from limited statutory provisions, charity fundraising in Scotland is self-regulated. Since July 2016, following a review carried out on behalf of the Scottish Government, the regime has been described as enhanced self-regulation. This places the initial responsibility on charities when concerns about fundraising practice arise. Fundraising staff (where they exist) should seek to resolve a complaint at the first opportunity. If this does not work, the second stage is a direct complaint to the charity’s trustees. Role of the Scottish Fundraising Adjudication Panel If a complaint needs to go beyond a charity’s trustees, the third and final step is to take the...
Unrestricted funds—general use of assets The overarching rule for applying a charity’s assets is that, unless a specific restriction applies, both income and capital should be used to further the charity’s purposes and to deliver public benefit. Even where funds are classed as unrestricted, there may still be constraints on spending income and capital on the charity’s assets, typically set out in the charity’s constitution. Constitutions may impose conditions on distributing income, on carrying income forward for use in later years, or on accumulating it and converting it into capital. Limits on distributing capital may likewise be specified in the constitution. Where the constitution is silent, the usual expectation is that trustees will, as a minimum, distribute income and have discretion to distribute capital. Funds that are not unrestricted generally fall into three main types: designated funds (which are truly a subset of...
FORTHCOMING CHANGE : The Trusts and Succession ( Scotland) Act 2024 received Royal Assent on 30 January 2024, signalling the first significant overhaul of Scottish trust law in more than a century since the Trusts ( Scotland) Act 1921. The trust provisions still require secondary legislation from the Scottish Ministers before full commencement, whereas the succession elements took effect on 30 April 2024. The headline reforms aimed at modernisation are outlined in News Analysis: Trusts and Succession ( Scotland) Bill passed. Practice Notes addressing Scottish trusts and succession will be updated further to reflect this new legislation... Civilian origin of Scots trust law and fideicommissum Scottish trust law differs from the English law of trusts in several notable respects, though Scots law has absorbed certain English concepts and terminology. A concise overview of the historical foundations of the Scots law of trust may aid...
FORTHCOMING CHANGE The Trusts and Succession ( Scotland) Act 2024 obtained Royal Assent on 30 January 2024, representing the first reassessment of Scottish trusts law in more than a century since the Trusts ( Scotland) Act 1921. The trusts provisions will come into force only following secondary legislation made by the Scottish Ministers, whereas the succession elements commenced on 30 April 2024. The principal updates modernising the law are outlined in News Analysis: Trusts and Succession ( Scotland) Bill passed. Practice Notes dealing with Scottish trusts and succession will be further revised to reflect this new statute. This Practice Note outlines the Scots law requirements for a Will to be formally valid and the conditions that must be satisfied to give effect to a Will. For general guidance on Wills under Scots law, see Practice Note: Wills in...
Devolution Devolution describes the transfer of decision-making authority to subordinate levels within the nation state. In particular, it denotes granting the UK’s smaller nations their own governmental and parliamentary institutions. This Practice Note summarises, in concise terms, the taxes devolved to, or capable of variation by, Scotland’s law-making body, the Scottish Parliament, which may affect individuals and their affairs. The Scotland Act 1998 ( SA 1998) set up a Scottish Parliament of 129 members ( MSPs), chosen using an additional member model of proportional representation. The inaugural election took place in May 1999 and the new Parliament assumed primary legislative authority on 1 July 1999. A devolved tax is one designated as such by SA 1998, Pt 4A. The devolved taxes are as follows: land and buildings transaction tax ( LBTT) (see LBTT below) Scottish landfill tax (not covered further in this Practice Note) air...
FORTHCOMING CHANGE : A review of LBTT by the Scottish Government began in spring 2025. It is also exploring LBTT reliefs for Co-ownership Authorised Contractual Schemes ( Co ACS), Property Authorised Investment Funds ( PAIFs) and Reserved Investor Funds ( RIFs), with a consultation paper issued on 11 July 2025. For more details, see OEICS (including PAIFs), Co ACSs and RIFs below. Background and overarching principles for land and buildings transaction tax ( LBTT) appear in Practice Note: Scotland: Land and buildings transaction tax ( LBTT)—the basics. This Practice Note outlines how LBTT operates for specific categories of transactions and taxpayers, including: leases and licences options and right of pre-emption contract providing for conveyance to third party sub-sale development relief exchanges and partitions partnerships joint buyers residential property holding companies trusts open ended investment companies ( OEICs) and certain other types of...
FORTHCOMING CHANGE : The Scottish government has started a review of LBTT that began in spring 2025. Areas under particular scrutiny include: using non‑residential rates for ‘mixed’ transactions multiple dwellings relief the 6+ exemption from the additional dwellings supplement first time buyer relief the three‑yearly lease review returns whether LBTT rates can be aligned with net zero objectives No alterations are expected until after the Scottish Parliament elections (which must take place by 7 May 2026). How is LBTT calculated? The land and buildings transaction tax ( LBTT) due on a land transaction is worked out by applying the relevant tax rate or rates (including a nil rate) to the chargeable consideration. Where transactions that appear separate are linked under the legislation, the LBTT must be computed as if there were a single transaction. Revenue Scotland provides online tools to calculate the LBTT due—see the Revenue Scotland property...
Safeguarding concerns often underpin or arise during welfare proceedings in the Court of Protection, and this Practice Note explains how such matters should be approached. What is safeguarding? In its widest sense, ‘safeguarding’ covers every facet of a person’s welfare. This understanding of safeguarding guides local authorities’ approach to providing adult services within their functions and commissioning responsibilities too. In proceedings before the Court of Protection, however, ‘safeguarding’ is usually shorthand for what is more precisely described legally as ‘adult protection’ within practice. That term relates to inquiries and interventions by a public authority where there is concern that someone has been, is at present, or could in future be, the victim of abuse. The statutory basis of safeguarding applications Under the Care Act 2014 ( CA 2014), local authorities in England have defined safeguarding duties. In Wales, comparable obligations arise under the Social Services and...
The basic position is that marriage cancels any earlier Will made by either person before they wed — this is called involuntary revocation under statute. The rule is set out in both: the original section 18 of the Wills Act 1837 ( WA 1837), which stated that every Will would be revoked by the maker’s marriage; this applies to Wills made before 1 January 1983 the current WA 1837, s 18 (as substituted by section 18(1) of the Administration of Justice Act 1982 ( AJA 1982)), which provides that a Will is revoked by the testator’s marriage; this applies to Wills made on or after 1 January 1983 For guidance on revocation by choice, see Practice Note: Revocation of Wills. Void and voidable marriages A void marriage is treated as never having taken place and therefore does not revoke a Will made by either party. As Lord Greene MR...
A Will can be cancelled at any time during the testator’s life. It can only be undone either by operation of law (involuntary revocation) or through an intentional act by the testator (voluntary revocation). Aside from these routes, and where there has been an obliteration under section 21 of the Wills Act 1837 ( WA 1837), any other purported method of revocation is ineffective. For instance, neither a supposed intention nor a change in circumstances revokes a Will unless WA 1837 expressly provides for that change. Involuntary revocation A Will is set aside by operation of law on the testator’s: marriage civil partnership Certain provisions only are set aside by law on: divorce or nullity of marriage dissolution or nullity of civil partnership Involuntary revocation, or revocation by operation of law, is limited to these cases. For Wills made on or after 1...
Although the trusteeship is, in theory, held for life, a trustee can step down in several ways: by relying on a clause in the trust instrument if a successor can be found, retirement may proceed under section 36 of the Trustee Act 1925 ( TA 1925) by using the statutory authority in TA 1925, s 39 through the beneficiaries’ written direction under section 19 of the Trusts of Land and Appointment of Trustees Act 1996 ( TOLATA 1996) with the beneficiaries’ agreement under the rule in Saunders v Vautier by an order of the court under TA 1925, s 41 Express provision in the trust instrument that a trustee may unilaterally retire A trust instrument may confer on a trustee an express, unilateral power to retire. That said, some view such a term as encouraging a less diligent trustee to...
This Practice Note is currently maintained internally. Reasons for restructuring a trust A trust might be reorganised for several aims, such as to: establish an interest in possession for one or multiple beneficiaries narrow the class of beneficiaries set up distinct trusts for named beneficiaries or for a defined class form one or more sub-funds appoint alternative trustees for a segment of the trust fund broaden the trustees’ administrative powers Restructuring may proceed through one or more of these routes: using a statutory power, or an express power within the trust deed or instrument applying to the court to vary the trust’s terms a beneficiary disposing of, or disclaiming, a vested or contingent interest Exercise of a power This is generally the most straightforward and effective route to restructuring, as it can (if the trust’s terms permit) be carried out quickly and without any action required from a beneficiary. The terms of the trust...
FORTHCOMING CHANGE: A consultation, which closed on 7 July 2025, invited views on options to simplify, modernise and reform HMRC’s approach to dispute resolution, aiming to boost awareness of dispute resolution processes and to enhance access to (and uptake of) alternative dispute resolution ( ADR) and statutory review routes. The consultation further proposes aligning and streamlining the appeals framework to draw together the advantages of the different methods currently applied to direct and indirect tax disputes. For more detail, see the News Analysis articles: Tax update spring 2025— Tax analysis— Taxes management and dispute resolution and Tax update spring 2025— Improving HMRC’s approach to dispute resolution. This Practice Note is authored by Anne Redston, Barrister. It represents her personal view; she is not authorised to speak for the Tribunals Service or the judiciary. This Practice Note sets out the HMRC tax alternative dispute resolution ( ADR)...
FORTHCOMING CHANGES At the Budget on 26 November 2025, the government outlined small corrective updates to the residence-based tax rules introduced by Finance Act 2025. Key measures are: Newcomers seeking access to the foreign income and gains ( FIG) regime must be at least 10 years of age at the start of the tax year. Claims for FIG relief are confined to offsetting the particular foreign income, foreign employment income or foreign gains to which they directly relate. Aligning the qualifying asset holding company ( QAHC) framework so carried-interest-style returns connected with services provided to a QAHC benefit from FIG relief. Amending the capital gains tax ( CGT) residence test for personal representatives so they are not UK resident where the deceased was UK non-resident but was a long-term UK resident for inheritance tax purposes. ...
Residence of individuals Q& As This Practice Note collates Q& As on the residence of individuals, covering residence under the statutory residence test ( SRT) and the considerations when entering or leaving the UK. For general guidance on residence, see: Residence of individuals—overview. While new Q& As are added to this Practice Note as they arise, the individual entries are not currently maintained and record the law only as at the date shown in each instance. SRT and split year treatment In broad terms, the SRT deems an individual to be either UK resident, or not UK resident, for the whole of a tax year. In certain situations, the split year rules soften this position where someone arrives in, or departs from, the UK part way through a tax year. There are eight situations (cases) in which a split year can be claimed. Under Case 4, at some...
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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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