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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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GOVERNMENT CONSULTATION : The government is consulting on proposals to require close companies to give HMRC more granular information about transactions with participators (usually shareholders). In scope are: Cash withdrawals Loans Debts Dividends Other distributions Asset transfers Items already reported via RTI, such as salary, would be excluded. Reported data would set out the recipient, amount, date, and identifying details, potentially including NI numbers. Views are sought on the scope, timing and delivery method (for example via CT600A, the company tax return, or a digital service), whether repayments, releases and write‑offs of loans should be included, and whether existing penalties are adequate or bespoke penalties are needed. The consultation closes on 10 June 2026. Introduction and summary of main rules Without specific rules, a company controlled by a small number of persons could structure its affairs to enable those persons to...
Background to Financial Services and Markets Act 2023 The Financial Services and Markets Act 2023 ( FSMA 2023) delivers significant reforms to the UK’s regulatory architecture for financial services. It cancels retained/assimilated EU-derived rules in this field and empowers HM Treasury, alongside the financial services regulators, to substitute them with measures tailored for UK markets, building on the UK’s established regulatory model (see Practice Note: The Financial Services and Markets Act 2023—essentials). The accompanying Explanatory Notes explain that FSMA 2023 preserves the UK’s status as a competitive marketplace with strong regulatory standards by, among other steps, giving the Bank of England ( Bo E) new instruments to lessen risks arising from the failure of critical financial institutions. FSMA 2023 obtained Royal Assent on 2 June 2023, yet different provisions commence on varying dates, as indicated in section 86 and in subsequent...
FORTHCOMING CHANGE relating to the UK funds regime : The outcome of the government’s review of the UK funds regime (see News Analyses: Review of the UK funds regime—an analysis, and HM Treasury’s review of the UK funds regime—a call for input) contains proposals to keep the tax treatment of the new long-term asset fund structure ( LTAF) under ongoing review. This Practice Note considers the genuine diversity of ownership ( GDO) requirement, which: certain authorised investment funds must meet to obtain favourable tax treatment under the tax regime applicable to authorised investment funds; and all authorised investment funds must meet to benefit from the certainty provided by the ‘investment transactions list’ (sometimes called the ‘white list’); and relevant authorised investment funds must meet to enter the property AIF ( PAIF) or tax elected fund ( TEF) tax...
This Practice Note outlines the principal routes for tackling the UK trade in counterfeit goods, weighing the benefits and drawbacks of each, and providing practical pointers for brand owners. It addresses action by the authorities—customs, Trading Standards ( TS) and the police—as well as civil proceedings and private criminal prosecutions pursued by right holders. While some jurisdictions permit administrative action against infringers, that avenue is not considered here. The focus is counterfeiting (trade mark-related offences), with brief reference to piracy (copyright-related offences) and offences concerning registered designs. Anti-counterfeiting measures are discussed across both online and offline channels. For broader guidance on online brand protection, see Practice Note: Brand protection online—strategy and Brand protection online—checklist. For tackling counterfeit goods at EU-level, see Practice Note: IP enforcement and the EU customs regime. Further reading is available from the UK Intellectual Property Office ( IPO): IP crime and...
GDPR On 31 January 2020, the UK left membership of the EU and EEA. From 1 January 2024, retained EU law still operative in UK legislation is renamed ‘assimilated law’, under section 5 of the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023), and should generally be read through ordinary domestic legal principles. Consequently, ‘ GDPR’ may denote either: Regulation ( EU) 2016/679, the General Data Protection Regulation ( EU GDPR), which applied in UK law up to the close of the Brexit implementation period (11 pm UK time on 31 December 2020) and continues to apply across the EEA—any mention of EEA or EU states in this Practice Note should therefore be taken to include the UK until that period ended the Assimilated Regulation ( EU) 2016/679, the Assimilated General Data Protection...
Who/what is the ASA? The Advertising Standards Authority ( ASA) is the UK’s independent regulator overseeing advertising in every type of media. It applies and enforces the Advertising Codes of Practice. The ASA Council serves as the final decision‑maker, ruling on whether advertisements meet the Codes of Practice, and you would generally only encounter the Council at the closing stage of the complaints process. For more information visit www. ASA.org.uk... Statutory regulatory objectives The UK’s regulatory framework is shaped by two committees that create the Codes implemented by the ASA: the Committee of Advertising Practice ( CAP), and the Broadcast Committee of Advertising Practice ( BCAP) CAP develops the UK Code of Non‑ Broadcast Advertising and Direct & Promotional Marketing ( CAP Code), while BCAP authors the UK Code of Broadcast Advertising ( BCAP Code) (together, the Codes of Practice). For further guidance, see...
This Practice Note explores when the Transfer of Undertakings ( Protection of Employment) Regulations 2006, SI 2006/246 ( TUPE 2006) may apply to property transactions, and the consequences for employers (such as landlords, tenants, managing agents and other third‑party contractors) and for employees. It outlines the scope and effect of TUPE 2006, covering business transfers and service provision changes. It then looks at specific contexts: the sale of commercial freehold or leasehold property; the grant, termination or assignment of a lease; property management and service providers; changes in third‑party service provision; and employee accommodation and resident employees. The impact of insolvency on staff transfers in the commercial property setting is also highlighted. Finally, the Note addresses due diligence and the steps parties can take to manage TUPE risk in property...
Power of court to appoint new trustees This Practice Note outlines the purpose and process of section 41 of the Trustee Act 1925 ( TA 1925), which gives the court power to appoint or replace trustees in specified situations. As a remedy of last resort, this Practice Note sets out when that jurisdiction might be engaged. It also reviews alternative options open to practitioners and differentiates between the scope of TA 1925, s 41 and the court’s inherent power to remove trustees. Under TA 1925, s 41 the court has a statutory power to appoint a new trustee, either instead of, or in addition to, those currently acting. TA 1925, s 41 states in effect that, whenever it is expedient to appoint a new trustee or trustees, and it is found inexpedient, difficult, or impracticable to do so without the court’s...
This Practice Note outlines the options open to landowners faced with unlawful occupation by a trespasser or squatter, the issues that can follow from trespass, and the potential measures the owner may pursue, including physical repossession. It considers the Criminal Law Act 1977 ( CLA 1977) and the exception for displaced residential occupiers, the use of police powers to arrest where suitable, the effect of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ( LASPO 2012) in criminalising residential squatting, injunctions and interim injunctions, and damages, including the negotiating damages approach, mesne profits, exemplary and aggravated damages, anticipated damages, and res judicata defences. The ways a landowner can recover possession from a trespasser include: physical repossession arrest of the trespasser by the police for a criminal offence injunction possession claim (including a claim for an interim...
The principle of transferred malice/transferred mens rea The Supreme Court has indicated that a more accurate label than 'transferred malice' is 'transferred mens rea'. Indeed, 'transferred malice' has been criticised as a misleading tag. Accordingly, this article will use 'transferred mens rea'. The doctrine is engaged when a criminal purpose produces an unintended result or injury. It operates so long as the result or injury is of the same character as that intended, even if the person harmed is not the person aimed at. Latimer illustrates the foundational rule. D attempted to strike V with his belt, missed, and unintentionally struck V2. D was convicted of assault notwithstanding the absence of an intention to hit V2. The same logic was applied in Mitchell, in which D assaulted V, causing V to topple into V2. V2 was elderly and suffered a fracture that led to her death in...
This Practice Note identifies the traffic authorities empowered to manage highway traffic across the highway network under the Road Traffic Regulation Act 1984 ( RTRA 1984), and outlines a traffic authority’s obligations in relation to road traffic. It sets out how that duty is discharged by making Traffic Regulation Orders ( TROs) pursuant to the RTRA 1984, and the situations where approval from the Secretary of State or the Welsh Ministers is required, where necessary and appropriate, before an Order is made. What is a Traffic Regulation Order? A TRO is a formal order or byelaw issued by a traffic authority specifying the type and scope of traffic restrictions within a particular locality......
This tracker provides a summary of the applicable legislation and guidance, and case law on the issue of out-of-court appointments of administrators and e-filing This resource distils the relevant law, guidance and authorities concerning out-of-court administrator appointments and e‑filing. Reported decisions are grouped by the route used for the proposed appointment: directors under IA 1986, Sch B1, para 22 a qualifying floating charge-holder ( QFCH) under IA 1986, Sch B1, para 14 Many issues in the cases below were addressed by the Temporary Insolvency Practice Direction Supporting the Insolvency Practice Direction 2021 ( MIPD 2021), which applies after 30 September 2021. MIPD 2021 remains operative unless amended or revoked and offers an indefinite answer to conflicting authorities on the timing of administration appointments using the CE file. From 1 October 2025, CPR PD 5C ( CE‑ File electronic filing and case...
Where a respondent (debtor) cannot be located, enforcing an order becomes problematic. If nothing useful is known and no redirection address exists, information may be sought from government departments. This Practice Note explains when departmental data may be obtained to identify a debtor/respondent’s address, the steps for making an application, the relevant Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955—most notably FPR 2010, PD 6C and FPR 2010, SI 2010/2955, Pt 18—and summarises the details government departments require. It covers applications issued on or after 6 April 2022; for the Practice Direction that applied to applications issued before 6 April 2022, see the earlier version referenced there... Application On an applicant’s request, the court may ask government departments to disclose the address of a debtor who cannot be traced. The governing provisions sit within FPR 2010. From 18 January 2023, FPR 2010, PD 6C was...
Several offences relating to tipping-off and prejudicing an investigation apply within the regulated sector. An additional offence of prejudicing an investigation applies exclusively to the unregulated sector. Both sectors are also exposed to a further offence involving interference with documents. This Practice Note outlines the offences of tipping-off and prejudicing an investigation under the Proceeds of Crime Act 2002 ( POCA 2002). It mirrors the requirements of the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017 ( MLR 2017), SI 2017/692, as amended. For details on what forms the regulated sector, see Practice Note: Money laundering—key information for businesses. Suspicious activity report ( SAR) The principal money laundering offences are: concealing criminal property being party to an arrangement that enables money laundering possessing criminal property POCA 2002 requires knowledge or suspicion of money laundering to be reported by submitting a SAR. You will have a...
Practice Note This Practice Note examines how to file extension bids under the Tier 1 ( Investor) pathway. It additionally outlines the length and terms of leave, and the curtailment rules that will bite where the required investments were not put in place within the stipulated period after the initial grant of leave and then kept up. The Tier 1 ( Investor) strand was shut to fresh applications, without prior notice, from 16.00 on 17 February 2022 via Statement of Changes in Immigration Rules CP 632. Individuals already holding leave in this route can still prolong their stay, including seeking entry clearance from overseas if they have held leave as a Tier 1 ( Investor) migrant during the 12 months before the date of application, and can also apply for settlement. Extension requests lodged in the UK or abroad had to be filed by 17...
This Practice Note examines how the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017, SI 2017/692 ( MLRs) apply to financial services firms. It includes: a high-level outline of the legislation guidance and regulatory expectations linked to the MLRs the MLRs’ obligations relating to: risk assessments, policies, controls and procedures staff training customer due diligence ( CDD), including enhanced due diligence ( EDD) and simplified due diligence ( SDD) beneficial ownership information, the UK register of trusts, and reporting discrepancies in registers the statutory framework of the MLRs—background and reform Key points Key points to note: the MLRs span a broad range of...
Practice Note: Termination payments taxed as earnings The starting point for any termination payment or benefit is to determine whether, on basic principles, it is chargeable as earnings or an emolument of an office or employment under section 62 of the Income Tax ( Earnings and Pensions) Act 2003 ( ITEPA 2003). That issue must be decided before looking at any other charging provisions. For the principles to apply when deciding if a payment linked to the termination of an office or employment is taxable as earnings (or emoluments) under ITEPA 2003, s 62, see Practice Note: Termination payments taxed as earnings. This Practice Note concentrates on the specific deeming rules in ITEPA 2003, Part 6, Chapter 3, which subject to income tax payments and benefits on the termination of, or a change in the duties or functions of, an office or...
Trustee’s checklist The trustee should address the following: Termination of the trust Note key termination triggers, eg a beneficiary attaining 25 Review tax planning in advance of termination Confirm the validity of termination paperwork Check and record the termination date Accounts and liabilities Locate and settle all liabilities Finalise outstanding tax obligations Prepare closing accounts Distribution of assets Confirm the beneficiaries List the trust assets Determine each beneficiary’s entitlement Secure a release, discharge or indemnity Distribute assets and transfer legal title See also: Trustees' checklist on the termination of a trust. Methods of terminating a trust Subject to the terms of the particular trust, an express trust can generally be concluded in the following ways: The settlor invokes a power to revoke The disposition of property into the trust is set aside Expiry of a...
CASE HUB ARCHIVED –this archived case hub reflects the position at the date of the judgment of 17 February 2011; it is no longer maintained. See further: timeline, related/relevant cases and commentary Case facts Outline A request for a preliminary ruling under Article 267 TFEU was referred by the Stockholm District Court to the Court of Justice, addressing how Article 102 TFEU applies in a margin squeeze scenario. The Court of Justice handed down its judgment on 17/02/2011. The Telia Sonera case forms part of a series of notable and high‑profile European matters concerning broadband provision by former national incumbents in newly liberalised telecommunications markets, and has helped confirm, among other points, that a ‘margin squeeze’ constitutes a stand‑alone abuse, capable of existing without additional exclusionary measures. Parties Telia Sonera Sverige AB ( Telia Sonera) Stockholms tingsrätt ( Stockholm District Court) Swedish...
Permitted development rights for telecommunication development Certain types of telecommunication works, eg mobile telephone masts, qualify as permitted development, meaning planning permission is therefore not generally required in practice. For more information and guidance, refer to Practice Notes: Permitted development in England, Permitted development rights and the prior approval system, and Permitted development in Wales. In England, from 4 April 2022, specific permitted development rights for telecommunications were broadened, following a consultation, to advance the UK’s ambition for nationwide gigabit-capable broadband and 4G coverage, with 5G available to most of the population, by 2030. See: LNB News 07/03/2022 53. These revisions are reflected within this Practice Note where relevant. What, then, is permitted?......
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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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