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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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Brexit Impact At 11 pm ( GMT) on 31 December 2020 the Brexit transition/implementation phase concluded following the UK’s exit from the EU. At this moment—termed in UK law ‘ IP completion day’—principal transitional measures ceased and notable alterations started to apply across the UK legal framework. This note offers guidance on areas affected by these developments. On IP completion day, the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) established a new strand of domestic UK law—retained EU law ( REUL)—made up of EU-derived rights and legislation preserved in the UK post- Brexit. On 29 June 2023, the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023) received Royal Assent. REUL( RR) A 2023 reshapes the treatment of REUL by: revoking substantial parts of REUL from 31 December 2023 rebranding REUL as ‘assimilated law’ from 1 January...
This Practice Note outlines the principal UK government support available across 2022–25 for households and non-domestic users—such as businesses, charities and public sector bodies—designed to help them handle exceptionally high energy costs following the 2022 energy price crisis. Why did the UK government need to provide exceptional energy bills support? Global energy price shocks, intensified by the Russian invasion of Ukraine on 24 February 2022, drove wholesale prices markedly higher in the second half of 2022. There was broad concern about the consequences for domestic and non-domestic consumers, many of whom feared bills would become unaffordable, with serious implications for the wider economy. In response, the then Prime Minister, Liz Truss, stated on 8 September 2022 that emergency legislation would be introduced to help customers manage their energy costs over the winter. More broadly, the government has undertaken, and continues to pursue, reform of the retail...
This Practice Note sets out the principal existing, planned and historic caps on domestic energy supply tariffs in Great Britain ( GB). It provides detailed treatment of: the government cap on standard variable and default tariffs introduced from 1 January 2019 under the Domestic Gas and Electricity ( Tariff Cap) Act 2018; and the cap on charges for customers with prepayment meters established by the Competition and Markets Authority, which has been within the scope of the Default Tariff Cap since 1 January 2021. The Practice Note cites statutory provisions and the standard licence conditions for electricity and gas suppliers, and includes links to the relevant consultations and guidance. What is the evolving position of price caps for electricity and gas suppliers in Great Britain? The following table presents a high-level snapshot of the key price caps applied to licensed GB electricity and gas suppliers in recent years as the...
What is the Capacity Market? The Capacity Market ( CM) forms a component of the government’s Electricity Market Reform ( EMR) programme. As a statutory framework, it is intended to stimulate the delivery of dependable electricity capacity, in order to prevent prospective gaps in electricity supply. This Practice Note concentrates on the entitlements and duties of participants who secure success in the prequalification and auction stages through which CM assistance is granted and conferred to successful recipients......
What is smart metering? For an introduction to smart meters, see also Practice Note: What is a smart meter? In Great Britain, licensed electricity and gas suppliers are required under their supply licences to take all reasonable steps to roll out smart meters to domestic and small business customers. The programme is expected to lower customers’ energy bills, boost energy efficiency, and make it simpler to switch energy supplier. The UK government views smart metering as a crucial instrument for a low‑carbon economy, reaching net zero emissions by 2050, and realising ambitions for an affordable, secure and sustainable energy supply chain. The smart meter roll‑out has been extended on several occasions since the Electricity Act 1989 and Gas Act 1986 were amended to place duties on licensed suppliers to complete it. There have also been multiple reviews and publications on progress, including National Audit Office...
Under English law, binding agreements may arise orally, in writing, or by deed. This Practice Notice explores when a deed is required or preferable, and the formalities that must be observed to ensure validity. What is a deed? When a deed is required Formalities (1): in writing Formalities (2): face value Formalities (3): execution Formalities (4): delivery Escrow Witnessing Variation Failure to comply with formalities and other defects Reform For details on executing deeds in jurisdictions outside England and Wales, see Practice Note: Execution of deeds—jurisdictional guide. We have created a comprehensive, interactive collection to help users identify and navigate concepts and common issues in executing documents, including deeds. Each phase includes practical guidance, precedent clauses and Q& As relevant to that stage. For further information, see: Execution...
The official receiver ( OR)’s primary function in a compulsory liquidation is to enquire into: whether the company has failed and why; and, more broadly, the company’s promotion, formation, business, dealings and affairs, and to lodge any report, if appropriate, with the court. This is done by examining the company’s officers, anyone who has acted as liquidator, administrator, receiver or manager, and others able to give information on those matters, at informal meetings or in public or private examination. This Practice Note addresses public examination under section 133 of the Insolvency Act 1986 ( IA 1986). Official receiver’s application Where a company is in compulsory liquidation, the OR may, at any time before dissolution, apply to the court for the public examination of any person who: is or has been an officer of the company; has acted as liquidator or...
Practice Note: section 365 of the Insolvency Act 1986 This Practice Note reviews section 365 of the Insolvency Act 1986 ( IA 1986), which empowers a search and seizure remedy over any property within a bankrupt’s estate and/or any books, papers or records about the bankrupt’s estate or affairs that must be handed over to the office-holder. Because of its draconian and extensive scope, it is regarded as a measure of last resort and is seldom used in practice. The bankrupt’s duties A number of obligations are placed on a bankrupt to secure the statutory objectives of bankruptcy, including the collection, realisation and distribution of the bankruptcy estate to creditors. These include: Providing the official receiver with an inventory of their estate and any other information the official receiver may reasonably request; where a trustee in bankruptcy (trustee) is appointed, the official receiver forwards this to the...
This Practice Note outlines the function of the official receiver ( OR) in personal insolvency. Appointment of ORs An OR is a statutory office-holder. In relation to any bankruptcy, individual voluntary arrangement ( IVA), debt relief order, or any application for such an order, the OR is any person who, by virtue of sections 399 or 401 of the Insolvency Act 1986 ( IA 1986), is authorised to act as OR in respect of that bankruptcy, IVA, debt relief order, or application. The Secretary of State may, with the Treasury’s approval as to numbers, appoint persons to the office of OR. Anyone appointed will be attached to either the High Court or the County Court. Subject to any directions issued by the Secretary of State, an OR assigned to a particular court is the person authorised to act as OR for every...
This Practice Note examines equitable accounting—what it is, and the circumstances in which it operates. It does not address how the trustee in bankruptcy (trustee) identifies and values any interest in property, which assets vest in the trustee, the manner in which any interest is released, or the equity of exoneration. For more detail, refer to the following Practice Notes: Property that vests in the trustee in bankruptcy on bankruptcy and how the trustee in bankruptcy ascertains the extent of their interest in it Protecting a trustee in bankruptcy's interest in property following their appointment The equity of exoneration and how it applies in practice Possession and sale applications in respect of a bankrupt's family home What is equitable accounting? Equitable accounting is the mechanism by which an account of a property's sale proceeds is undertaken...
Introduction Part 5 of the Tribunals, Courts and Enforcement Act 2007 ( TCEA 2007) set out fresh frameworks for debt management and relief, though some measures remain unimplemented. Although designed to help individuals manage indebtedness more effectively, these changes plainly carry consequences for creditors looking to enforce judgments against such individuals. Through amendments to the County Courts Act 1984, TCEA 2007, s 106 created a new administrative route for debtors without business debts whose income is above what is required for their reasonable needs. TCEA 2007, s 106 has not yet been commenced By further amendment to the County Courts Act 1984, TCEA 2007, s 107 introduced a mechanism allowing a debtor experiencing a ‘sudden and unforeseen deterioration in their financial circumstances’ to seek an enforcement restriction order ( ERO). TCEA 2007, s 107 has not yet been...
The purpose of a statutory demand The purpose of a statutory demand is to demonstrate that a company cannot pay its debts, rather than the creditor relying on section 123(1)(e) or section 123(2) of the Insolvency Act 1986 ( IA 1986). A statutory demand is a written demand, in the prescribed form, for a debt over £750, served on a company by leaving it at the company’s registered office ( IA 1986, s 123(1)(a)). This threshold is not altered by the increase in the bankruptcy level for bankruptcy petitions from £750 to £5,000 that came into force on 1 October 2015. If the statutory demand is left unpaid and is not disputed, the company is treated as unable to pay its debts, giving a creditor grounds to present a winding-up petition against the company. When not to use a statutory demand A statutory demand should not be used...
What is a provisional liquidator? A provisional liquidator is essentially a temporary liquidator, appointed under section 135 of the Insolvency Act 1986 ( IA 1986) as an interim measure, with either a licensed insolvency practitioner ( IP) or the official receiver ( OR) taking the role before the court makes a winding-up order, or before the winding-up petition is heard or otherwise determined. Further detailed explanation of the procedure and its consequences appears below. IA 1986, s 135 is bolstered by the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, rr 7.33–7.39. For guidance on applications to appoint a provisional liquidator, the hearing, the order, costs, security, and bringing the appointment to an end, see Practice Note: The appointment of a provisional liquidator. Why are provisional liquidators appointed? The principal driver for such an appointment is the need for swift...
Delivering up information and property to the office-holder The Insolvency Act 1986 ( IA 1986) and the Insolvency ( England and Wales) Rules 2016, SI 2016/1024 empower insolvency office-holders, in specified circumstances, to recover property of a bankrupt or insolvent company, including cash, books, records and documents. Under IA 1986, designated persons and bodies must co-operate with the office-holder, with penalties applicable if they do not. Further, certain individuals or entities can be compelled to hand over accounts and give explanations—either orally, face to face, or by sworn statement—covering their involvement with the affairs and assets of the insolvent person or company. These powers exist to enable the office-holder to rebuild the knowledge base of the insolvent estate, potentially uncovering previously unrecognised assets that can be realised for creditors. This Practice Note outlines the fundamental rules on delivering up information and property to the...
All criminal cases begin in the magistrates' court regardless of the seriousness of the offence. In England and Wales, criminal proceedings may start in several ways: the police may arrest and charge a suspect and bring them before a magistrates’ court the prosecution may apply to the magistrates’ court for a summons (by laying an information), requiring the defendant to attend at a specified date and time a relevant prosecutor can issue a written charge with a requisition directing the defendant to appear at a stated date and time a relevant prosecutor may issue a written charge with a single justice procedure notice, requiring the defendant to indicate a plea and, if guilty, agree to disposal on the papers under the single justice procedure This Practice Note sets out the process for commencing a criminal prosecution by written charge and...
What is bad character? The Criminal Justice Act 2003 ( CJA 2003) regulates when a defendant’s ‘bad character’ may be admitted. The initial step is to assess whether the material the prosecution seeks to use falls within the definition of ‘bad character’ in CJA 2003, s 98. Section 98 adopts a notably wide definition: it covers ‘evidence of, or a disposition towards, misconduct’ or other ‘reprehensible behaviour’, excluding evidence which: concerns the alleged facts of the offence with which the defendant is charged, or relates to misconduct connected to the investigation or prosecution of that offence The distinction between bad character material and evidence bearing on the alleged facts of the charge can be subtle. A link may be shown by demonstrating a connection in time; a temporal nexus. Bad character therefore encompasses prior convictions and cautions. It has also been held to include...
For thorough guidance on dangerous driving where a death occurs, see Practice Note: Death by dangerous driving. The offence of dangerous driving, contrary to section 2 of the Road Traffic Act 1988 ( RTA 1988), can be tried in the Crown Court or in the magistrates’ court. Elements of the dangerous driving offence To be guilty of the offence, a person must satisfy the following: drive a mechanically propelled vehicle on a road or another public place in a dangerous manner Causing injury by dangerous driving RTA 1988, s 1A, outlaws the offence of causing serious injury by dangerous driving. It is an either way offence. Its ingredients mirror those for dangerous driving, with the further requirement that the driving results in serious injury. Serious injury means physical harm amounting to grievous bodily harm for the purposes of the Offences Against the Person Act...
Practitioners need to be mindful of the procedural steps when contesting sentences in health and safety prosecutions, whether before the Crown Court or the Court of Appeal ( Criminal Division). The Court of Appeal has reviewed a range of health and safety sentences and has provided guidance to practitioners on several points, notably the correct approach to sentencing very large companies, public organisations, companies with small operating profits, and the treatment of prosecution costs incurred. Appeal from the magistrates’ court to the Crown Court Section 108 of the Magistrates Courts Act 1980 ( MCA 1980) grants a defendant the right to appeal against conviction, against sentence, or against both the conviction and the sentence imposed by the magistrates’ court. The process for lodging an appeal is set out in the Criminal Procedure Rules 2025 ( Crim PR 2025), SI 2025/909, Part 34. See Practice Notes:...
This Practice Note examines the offences of controlling or coercive behaviour under section 76 of the Serious Crime Act 2015 ( SCA 2015) and causing or allowing a child or vulnerable adult to die or suffer serious physical harm under section 5 of the Domestic Violence, Crime and Victims Act 2004 ( DVCVA 2004). For information on domestic abuse, see: Domestic abuse—overview. Controlling or coercive behaviour offence under the Serious Crime Act 2015 Under SCA 2015, s 76, controlling or coercive behaviour within an intimate or family relationship is a criminal offence where the conduct has a serious effect on the victim. The offence was introduced to address a perceived gap in the law regarding patterns of controlling or coercive behaviour that may occur during a relationship between intimate partners, former partners who remain living together, or family members, where isolated incidents would not, on their own,...
The interests of justice test The sole criterion for permitting an appeal against conviction is whether the conviction is unsafe. The identical standard applies where the proposed grounds rely on fresh evidence that was not placed before the court at trial. Under section 23 of the Criminal Appeal Act 1968 ( CAA 1968), the Court of Appeal may admit fresh evidence if it is considered necessary or expedient in the interests of justice. This jurisdiction covers appeals against conviction, appeals against sentence, and references to the Court of Appeal made by the Home Secretary. The same powers extend to hearings determining applications for leave to appeal, as well as to the appeal proper, or to an appeal challenging the findings of a Newton hearing. CAA 1968, s 23 operates only where a right of appeal exists under CAA 1968, s 1. Once the Court of Appeal has...
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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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