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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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Why you need to manage this risk The G20/ OECD Principles of Corporate Governance state that effective governance depends upon a reliable legal, regulatory and institutional architecture that market actors can trust when forming their private contractual arrangements. In the UK, multiple corporate governance frameworks exist, differing in strength and tailored to distinct business types. Some classes of company must adhere to specified frameworks or codes, whereas others elect to follow them voluntarily. Under the Companies Act 2006 ( CA 2006), directors of UK companies hold statutory obligations, and these duties are also receiving growing attention within the range of corporate governance codes in domestic use. This growing emphasis is reflected across the various codes currently in wide operation within the UK market today. A host of further laws may scrutinise or call into question an organisation’s governance, such as health and safety...
This Practice Note outlines the UK’s financial and trade sanctions framework created by the Sanctions and Anti- Money Laundering Act 2018 ( SAMLA 2018). Introduced to provide a resilient domestic system after Brexit, it allows the UK to impose a comprehensive range of sanctions to meet UN sanctions obligations, including: financial sanctions director disqualification sanctions immigration sanctions trade sanctions aircraft sanctions shipping sanctions other sanctions What is the background to the UK’s domestic sanctions regime? ‘ Sanctions’ describes a set of tools intended to create adverse effects for foreign states or designated persons (individuals or corporate entities) for specified aims—most often foreign policy, and sometimes counter-terrorism. These measures place prohibitions and obligations not only on the targets themselves, but also on third parties who trade with, or otherwise deal with, them. For detailed guidance, see Practice Note:...
This Practice Note outlines the Office of Financial Sanctions Implementation ( OFSI) General Licences concerning the delivery of legal services. It also includes a concise overview of the General Trade Licence, made under regulation 65 of the Russia Regulations and published by the Export Control Joint Unit ( ECJU), which applied from 11 August 2023 to 6 September 2024, covering the provision of certain legal advisory services otherwise barred by the Russia Regulations. From 6 September 2024, narrow carve-outs from the ban on supplying legal advisory services are now embedded directly within the Russia Regulations, SI 2019/855, reg 60DB, rather than certain matters being dealt with by way of licensing. The General Trade Licence has therefore been revoked—see: DBT General Trade Licence ( Russia Sanctions— Legal Advisory Services). OFSI Legal Services General Licence Since October 2022, OFSI has released a succession of General Licences under the...
The Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017 ( MLR 2017), SI 2017/692, constitute part of the UK’s overarching anti-money laundering ( AML), counter-terrorist financing ( CTF) and counter-proliferation financing framework, as amended. The MLR 2017 prescribe administrative obligations that operate alongside the criminal limbs of the AML, CTF and counter-proliferation financing regime found in the Proceeds of Crime Act 2002 ( POCA 2002), the Terrorism Act 2000 ( TA 2000) and a range of sanction measures. Some provisions intersect with that legislation. Since June 2017, the MLR 2017 have been amended on several occasions. This Practice Note reflects the MLR 2017 in their amended form. For further information on POCA 2002, TA 2000 and counter-proliferation financing, refer to the Practice Notes: Proceeds of Crime Act 2002;...
This Practice Note gives practical guidance on responding to a dawn raid by the Information Commissioner’s Office ( ICO). It outlines what the ICO is, common grounds for a raid, its powers, and the consequences of not co‑operating. It reflects the UK General Data Protection Regulation ( GDPR). All GDPR references and links are to the UK GDPR ( Retained Regulation ( EU) 2016/679), unless stated otherwise. What is the ICO? The ICO is an independent authority established by the UK government to uphold information rights in the public interest, promote openness in public bodies, and protect individuals’ data privacy. It is an executive non‑departmental public body sponsored by the Department for Digital, Culture, Media & Sport. The ICO oversees and may enforce: Data Protection Act 2018 ( DPA 2018) GDPR Freedom of Information Act 2000 ...
This Practice Note explains when organisations are required to appoint a nominated officer (often called a money laundering reporting officer, or MLRO), outlines the nominated officer’s responsibilities, and suggests practical actions they can take to carry out the role. It reflects the obligations set by the Money Laundering Regulations 2017, SI 2017/692 ( MLR 2017), as updated. The guidance is intended for general use. You should confirm whether your regulator imposes any additional, sector‑specific expectations concerning nominated officers. What is a nominated officer? A nominated officer is the individual designated to receive and evaluate suspicious activity reports ( SARs) under the Terrorism Act 2000 ( TA 2000) and the Proceeds of Crime Act 2002 ( POCA 2002). They are also expected to submit external SARs to the National Crime Agency ( NCA). The nominated officer is different from the MLCO, ie the...
Section 54(5) of the Modern Slavery Act ( MSA 2015) Under section 54(5) of the Modern Slavery Act ( MSA 2015), there are six types of particulars that can be set out in an organisation’s transparency in supply chains ( TISC) statement on slavery and human trafficking. One of these concerns information on the organisation’s effectiveness in ensuring slavery and human trafficking do not occur within its business or supply chains, assessed against performance indicators it considers appropriate. Statutory guidance to section 54 on the TISC provisions highlights two main ways key performance indicators ( KPIs) are relevant: your TISC statement may include evidence showing you have evaluated whether your business KPIs might cause, contribute to, or result in modern slavery within your operations and supply chains you can establish outcome‑focused KPIs to measure year‑on‑year progress towards your business aims for...
This Practice Note outlines how far an employer may probe a candidate about past convictions and cautions, and when checks with the Disclosure and Barring Service ( DBS) can be undertaken. Employers might seek confirmation of a criminal record because: it bears on the individual’s integrity and fit for the role, or the detail is needed to satisfy regulatory requirements Details can be obtained by questioning the applicant or by requesting DBS searches. Key principles As a rule, employers are not entitled to unrestricted disclosure of all historic convictions and cautions. Under the Rehabilitation of Offenders Act 1974 ( ROA 1974), convictions and cautions may become spent and the person is treated as ‘rehabilitated’ once the rehabilitation period ends—see: Spent convictions and Effect of rehabilitation below. However: some sentences never become spent—see: Excluded sentences (never spent) below, and there are...
Politically exposed person ( PEP) status Individuals who have, or have held, political standing, or who occupy, or have occupied, public office, can present an elevated money laundering risk to firms because their role may leave them vulnerable and exposed to corruption. This exposure also covers their immediate family members and known close associates. While holding politically exposed person ( PEP) status does not, of course, implicate people or organisations, it does place the client or beneficial owner within a higher risk bracket. You must carry out enhanced due diligence ( EDD) steps and enhanced ongoing monitoring where you conclude that the client or prospective client is a PEP, or a relative or known close associate of a PEP. When this threshold is met, undertaking EDD is compulsory, though you may adopt a risk-based approach when deciding the type and breadth of EDD...
Updated in October 2025 Introduction Brazil ranks fifth globally by land area (3,287,956 sq mi) and seventh by population (a little over 213,000,000). With a US$2.12trn economy, as projected by the International Monetary Fund for 2025, it places tenth worldwide by nominal GDP. As South America’s largest state and a leading participant in BRICS and the G20, Brazil occupies a pivotal position in the international economy. Its corporate landscape is constantly evolving, influenced by shifts in domestic policy, worldwide macroeconomic tides, and a sustained drive to build a more favourable setting for investment. Grasping these layered dynamics is essential to succeed, and this paper seeks to arm readers with the core understanding needed to approach the market with confidence, acknowledging both its core advantages and current hurdles. As a fast-moving emerging market, Brazil continues to draw strong global interest for its expansion prospects and...
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...
As part of your customer due diligence ( CDD) measures, you must keep your business relationships under continual review. This Practice Note outlines the ongoing monitoring obligations set out in the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017 ( MLR 2017), SI 2017/692, as amended. The guidance is of general applicability. You should verify whether the MLR 2017 contain additional or different duties for your sector and whether your regulatory body sets any further, sector specific expectations regarding ongoing monitoring. Counter-proliferation financing is the most recent element of the long-established anti-money laundering ( AML) and counter-terrorist financing ( CTF) regime. Amendments to the MLR 2017 introduced requirements relating to, for instance, systems and controls, risk assessment, etc. No specific counter-proliferation financing rules were added to CDD, and the existing CDD provisions in the MLR 2017 were not...
Consideration of electronic data interchange ( EDI) frameworks, blockchain, smart contracts, or sector‑specific legislation or regulation, including regimes for financial services, intermediation services, or online auctions, falls outside the scope of this Practice Note. For a primer on EDI and smart contracts, see Practice Notes: Business to business e‑commerce—introduction and Smart legal contracts. For blockchain guidance, refer to Blockchain—overview and Practice Note: Blockchain—key legal and regulatory issues. The type and functionality of the website A website’s compliance obligations and the rules that apply will vary according to the kind of site in question and its intended functionality or aim and audience. As an initial step, the site operator should determine, early on, the nature of the proposed site and the planned extent of its functionality. For example, consider the following questions: will the site be an ‘information only’ destination? will it operate as a...
The UK Government has enacted measures allowing various UK authorities to secure search warrants to ‘raid’ business premises. For many companies, the risk of a dawn raid is part of everyday operations, driven by the growing criminalisation of corporate conduct, the rise in regulatory criminal offences, and the spread of money laundering legislation and regulations. The chance of intervention has further increased with the Bribery Act 2010 and the corporate offence of failing to prevent bribery, the Criminal Finances Act 2017 creating a corporate offence of failing to prevent tax evasion, and the widening of corporate criminal liability together with a new offence of failing to prevent fraud introduced by the Economic Crime and Corporate Transparency Act 2023 ( ECCTA 2023). As technology within businesses continues to develop, organisations must keep information and policies current so staff understand how to respond...
This Practice Note outlines counter-proliferation financing ( CPF). It highlights regulatory duties and explores the risks linked to proliferation financing. It is directed at businesses within scope of the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017 ( MLR 2017), SI 2017/692—see Practice Note: Money Laundering Regulations 2017—scope and application, and for law firms Money Laundering Regulations 2017—scope and application—law firms. Organisations subject to the MLR 2017 must evaluate proliferation financing risks and establish policies, controls and procedures to manage and reduce those risks. What is proliferation financing? Proliferation financing is the provision of funds or financial services used, in whole or in part, for any of the following in relation to chemical, biological, radiological or nuclear ( CBRN) weapons, in breach of a relevant financial sanctions obligation: manufacture acquisition ...
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...
An undertaking is a solicitor’s binding assurance to act. The courts may enforce it against the solicitor. Breaching an undertaking may amount to professional misconduct, exposing the solicitor to SRA or SDT disciplinary measures. See Practice Note: Undertakings and the SRA. That Practice Note sets out what may amount to an undertaking. The court’s powers concerning undertakings are set out in Practice Note: Undertakings and the court. It is, therefore, a serious professional obligation. SRA definition For the purpose of the SRA, an undertaking is: a statement, made orally or in writing (even if it does not use the term 'undertake' or 'undertaking') addressed to a person who reasonably relies upon it that you, or another party, will do or procure something, or refrain from an act Every element must be present for an undertaking to arise. Without them, no...
This Practice Note outlines the regulatory obligations concerning anti-money laundering ( AML), counter-terrorist financing ( CTF) and counter-proliferation financing record keeping set out in the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017 ( MLR 2017), SI 2017/692, as amended. You should verify whether the MLR 2017 include any additional or altered requirements for your sector, and whether your regulatory body sets further, sector-specific expectations in relation to record keeping. If the MLR 2017 apply to you, you must establish and maintain appropriate, risk-sensitive policies and procedures relating to record keeping. Record keeping is a core element of the AML, CTF and counter-proliferation financing framework because it: demonstrates your compliance with regulatory obligations; and assists law enforcement agencies in carrying out financial...
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 considers privilege and confidential information where the client–solicitor relationship has ended. It explores who holds privilege in general and in later litigation, and whether a former client can restrain their previous solicitor from acting for another party on the basis of privilege or breach of confidence. Who does privilege belong to in any subsequent litigation? Legal professional privilege belongs to the client—see further: Privilege—general principles— Who does privilege belong to? Moreover, once a communication is privileged, it will usually remain so—see further: Privilege—general principles— How long does privilege last? This was illustrated in Kousouros v O’ Halloran, where it was decided that a party retained legal advice privilege over a document disclosed to an opponent by a former solicitor, even after the retainer had concluded. The underlying dispute involved a brother and sister who were each given equal shares in their...
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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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