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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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FORTHCOMING CHANGE relating to penalty reform calls for evidence and behavioural penalties consultation : Building on an earlier 2021 call for evidence, on 15 February 2024 HMRC issued a further call for evidence titled “ The Tax Administration Framework Review: enquiry and assessment powers, penalties safeguards”, which set out potential routes to reform penalties, including changes to penalty suspension and escalation for ongoing or repeated non-compliance. On 30 October 2024, HMRC published the outcome, providing a summary of responses and the government’s proposed next steps. Following this, at Spring Statement 2025 on 26 March 2025, the government launched a consultation on behavioural penalties relating to penalties for inaccuracies in returns and failure to notify. The consultation outlines two possible approaches to reform these regimes: Refining the existing framework while simplifying how penalties are calculated and applied; and Exploring a more...
FORTHCOMING CHANGE relating to penalty reform calls for evidence and behavioural penalties consultation Building on the 2021 call for evidence, HMRC issued on 15 February 2024 a further evidence-gathering document, The Tax Administration Framework Review: enquiry and assessment powers, penalties safeguards. It set out potential penalty reforms, including changes to penalty suspension and escalation where non-compliance is ongoing or repeated. On 30 October 2024, HMRC released the outcome, providing a summary of responses and the government’s planned next steps. Following this, at Spring Statement 2025 on 26 March 2025, the government launched a consultation on reforming behavioural penalties relating to inaccuracies in returns and failure to notify. The consultation outlines two possible directions for reform: Maintain the current framework while simplifying how penalties are calculated and applied. Explore a more fundamental alternative model, with a clear separation between penalties for...
FORTHCOMING CHANGE relating to penalty reform calls for evidence and behavioural penalties reform: At Budget 2025, the government released a summary of feedback to the consultation launched at Spring Statement 2025 on behavioural penalty reform and confirmed plans to proceed with changes to penalties for inaccuracies in tax returns and for failures to notify chargeability. This consultation was informed by two calls for evidence: an initial call for evidence, ‘ The Tax Administration Framework: Supporting a 21st Century tax system’, issued on 23 March 2021, with a summary of responses on 30 November 2021; and a second call for evidence, ‘ The Tax Administration Framework Review – enquiry and assessment powers, penalties, safeguards’, published on 15 February 2024, followed by a summary on 30 October 2024—this later paper set out potential options for penalty reform, including revisions to penalty suspension and escalation where...
FORTHCOMING CHANGE relating to penalty reform calls for evidence and behavioural penalties reform: At Budget 2025, the government released a summary of feedback to the consultation opened at Spring Statement 2025 on behavioural penalties reform, and confirmed plans to advance proposals to change penalties for errors in tax returns and for failures to notify chargeability. This work builds on two earlier calls for evidence: an initial call for evidence on ‘ The Tax Administration Framework: Supporting a 21st Century tax system’ on 23 March 2021, with a summary published on 30 November 2021; a second call for evidence on ‘ The Tax Administration Framework Review–enquiry and assessment powers, penalties, safeguards’ on 15 February 2024, followed by a summary on 30 October 2024; this later exercise explored options for penalty reform, including changes to penalty suspension and the escalation of penalties for ongoing or...
Dependent relative revocation Where a testator cancels a Will on the basis of a condition, that cancellation has no effect if the condition is not fulfilled. A revocation is not treated as conditional absent clear proof of the testator’s intention and purpose. Dependent relative revocation arises where the original gift is only to be revoked if a fresh disposition, made or contemplated, actually takes effect. If that new arrangement does not operate, the original disposition stands. An illustration of dependent relative revocation is found in Re Bridgewater (deceased). The testator made three Wills and wrote to his solicitor stating that the second Will was held at his bank and that he had destroyed the third Will, intending thereby to give effect to the second. On his death, only the first Will was located. The letter was accepted as admissible evidence of an...
Background and aims At EU level, a range of Directives on gender equality and working conditions have already dealt with matters linked to work–life balance, notably: Directive 2006/54/ EC on enforcing the principle of equal opportunities and equal treatment for women and men in employment and occupation (recast) Directive 2010/41/ EU on applying equal treatment between women and men engaged in self‑employed activities Directive 92/85/ EEC introducing measures to improve workplace safety and health for pregnant workers and for those who have recently given birth or are breastfeeding Directive 97/81/ EC concerning the Framework Agreement on part‑time work Directive 2010/18/ EU implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC, the Parental Leave Directive The principles of gender equality and work–life balance are reiterated in Principles 2 and 9 of the European Pillar of Social...
FORTHCOMING CHANGE Section 10 of the Finance Act 2022 will lift the normal minimum pension age ( NMPA) from 55 to 57 on 6 April 2028, excluding members of the firefighters, police and armed forces public service pension schemes. It will also permit members of registered pension schemes to access benefits before 57 where, on or before 4 November 2021, they either held an ‘unqualified right’ to take benefits, or were already undertaking a substantive transfer to a scheme that, on or before that date, offered an unqualified right to a protected pension age below 57. To rely on this new protection in 2028, the scheme’s rules must have, as at 11 February 2021, contained an unqualified right to take entitlement to scheme benefits before age 57. For further details, see Practice Note: Increasing the normal minimum pension age ( NMPA) to 57—pensions...
This Practice Note sets out guidance on case law concerning claims brought under the Trusts of Land and Appointment of Trustees Act 1996 ( TOLATA 1996), highlighting the leading authorities of Stack v Dowden and Jones v Kernott. It further reviews decisions addressing the welfare of any minor and also the position of any secured creditor of any beneficiary. See also Practice Note: Eligibility to apply under TOLATA 1996, on relevant matters for the court and on the court’s powers. For practice and procedure, refer to these Practice Notes: TOLATA 1996—pre-action matters TOLATA 1996—when to issue in the County Court and when to issue in the High Court TOLATA 1996—when to use Part 7 and when to use Part 8 TOLATA 1996—procedure TOLATA 1996— Part 36 offers Stack v Dowden The principal authority on disputes between cohabitants is Stack v Dowden, where the...
This Practice Note sets out the core income tax rules that apply to a beneficiary of a discretionary trust for income tax purposes only. An individual is liable to income tax only when they are entitled to, or actually receive, income from a taxable source. For a discretionary trust beneficiary, the taxable income arises from the discretionary trust itself. The source of a beneficiary's income When a beneficiary is paid income by a discretionary trust, it is because the trustees have exercised their discretion so that the beneficiary becomes entitled to it. Accordingly, the trustees are treated as the source of that beneficiary’s income. This differs from the treatment of an interest in possession beneficiary, who is regarded as taking income directly from the trust property. See Practice Note: Interest in possession beneficiaries (life tenants)—income tax......
The courts of equity have a well-recognised jurisdiction to grant relief against the consequences of mistakes and ambiguities in a variety of contexts relating to trusts. Such matters seldom involve adversarial contention. Ordinarily, petitions for this kind of relief amount to ‘friendly litigation’, with participants collaborating to resolve the difficulty through the court process. A shadow claim in professional negligence can sit in the background, quite often against an adviser whose guidance, or omission of it, produced the error. In those circumstances, professional indemnity insurers often meet the cost of the application, providing the necessary funding. When uncertainty or an error emerges, the initial task is to identify the character of the problem so as to determine the available remedy in principle. Does it concern the wording of an instrument, or the legal effect of that instrument or a broader...
Trade sanctions Trade sanctions place restrictions on the following: the import, export, transfer, movement, supply, and procurement of goods and technology the delivery and sourcing of services connected to goods and technology the supply and obtaining of specified non-financial services This Practice Note outlines exceptions and licences permitting activities otherwise prohibited by trade sanctions. For general guidance on trade sanctions, see Practice Notes: Understanding the UK trade sanctions regime; Trade sanctions—offences; and The enforcement of trade sanctions breaches in the UK. This Practice Note concerns trade sanctions only. For information on licences and exemptions in financial sanctions, see Practice Note: Licences and exemptions in financial sanctions. For background on the UK’s domestic sanctions framework, governed by the Sanctions and Anti-money Laundering Act 2018 ( SAMLA 2018) and regulations made under it, see Practice Notes: The UK sanctions framework under SAMLA 2018 and...
This Practice Note explains who may face prosecution under the General Product Safety Regulations 2005, SI 2005/1803 ( GPSR 2005). It further outlines, in particular, the statutory due diligence defence, sets out in detail the applicable limitation periods for instituting proceedings, and summarises the sanctions available on conviction for these offences. For guidance on the duties placed on producers and distributors by the GPSR 2005, SI 2005/1803, see Practice Note: General Product Safety Regulations 2005— Offences. For material on how the GPSR 2005, SI 2005/1803 are enforced, see Practice Note: Enforcement of the General Product Safety Regulations 2005. Time limit for bringing prosecutions under the General Product Safety Regulations 2005 Under the GPSR 2005, SI 2005/1803, any prosecution must be commenced within three years of the commission of the offence (ie a breach of the general safety requirement, etc), or within 12 months of the...
This Practice Note explains the concept of money laundering and the legal framework that regulates it. The Proceeds of Crime Act 2002 ( POCA 2002), the Terrorism Act 2000 ( TA 2000) and the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017 ( MLR 2017), SI 2017/692, as amended, significantly influence UK businesses. Non-compliance can bring serious criminal, administrative and, for some, professional sanctions. Definitions of money laundering Money laundering refers to the means by which criminal proceeds, along with their actual source and ownership, are altered so they appear lawful. Nevertheless, the statutory concepts of money laundering are much broader. Under POCA 2002, money laundering is defined to include: hiding, obscuring, converting, transferring or taking criminal property out of the jurisdiction entering into, or being involved in, an arrangement that enables the...
Increasingly, organisations are required to conduct investigations to meet their legal obligations. Typical triggers for an inquiry include: An individual raising concerns internally, for example via a whistleblowing hotline. A demand from a regulator or criminal agency. Pre‑merger or acquisition due diligence. A civil litigation claim. An internal or external auditor’s report. Media reports. An external allegation, eg from a customer or counter-party. For multinational groups, a persistent difficulty is the friction between data protection rules and duties created by laws tackling financial crime. Under the Bribery Act 2010, the burden of proof is reversed: the business must prove it had adequate procedures to stop those performing services for it from committing bribery, rather than prosecutors proving it did not. The tax evasion facilitation regime operates similarly. See Practice Notes: Failure to prevent bribery—the offence and Failure to...
STOP PRESS: We are revising this document to align with the coming into force of the Data ( Use and Access) Act 2025 ( DUAA 2025), which modifies the UK GDPR and the Data Protection Act 2018. For further detail on DUAA 2025’s compliance impact, consult Practice Note: Data ( Use and Access) Act 2025—compliance implications. This Practice Note is aimed at in-house counsel and privacy/compliance specialists working within private sector commercial organisations. It explains how to carry out a transfer impact assessment when exporting personal data from the UK or EU relying on the EU standard contractual clauses ( SCCs), the International Data Transfer Agreement ( IDTA), or binding corporate rules ( BCRs). Where one of these transfer tools is used, you are required to evaluate data protection risks in the destination country by undertaking an appropriate transfer assessment. The UK data...
STOP PRESS: This document is currently being revised to account for the coming into force of the Data ( Use and Access) Act 2025 ( DUAA 2025), which updates the UK GDPR and the Data Protection Act 2018. For further detail on DUAA 2025’s compliance impact, consult Practice Note: Data ( Use and Access) Act 2025—compliance implications. This Practice Note is aimed at in-house counsel and privacy and compliance specialists within private sector commercial organisations in the UK. It explains how to carry out a transfer risk assessment when exporting personal data from the UK using standard contractual clauses ( SCCs), the International Data Transfer Agreement ( IDTA) or binding corporate rules ( BCR). When you rely on any of these transfer tools, you must evaluate data protection risks in the destination jurisdiction by completing an impact or risk assessment. The...
Why you need to manage this risk Data protection ranks among the toughest strands of risk management—the framework is intricate and far‑reaching, operates across UK and EU spheres, changes continually and attracts legal disputes. It spans UK, EU and international regimes, shifts regularly and meets litigation. Breaching obligations under the UK General Data Protection Regulation ( UK GDPR) can leave an organisation facing significant reputational harm, claims from dissatisfied data subjects and penalties of up to £17.5m or 4% of total worldwide annual turnover. Comparable sanctions exist under the EU GDPR. Top five priorities The table below sets out five core priorities for managing data protection risk and flags why each matters. It gives the heads‑up on why each is prioritised. The main body of this Risk management guide then explores each priority in depth and includes mini action lists...
A contractual option to take a lease for a further term is a ‘call’ option It gives the tenant a one-sided entitlement to demand a renewal lease. The tenant is not compelled to use it, yet upon exercise the landlord must honour the bargain. The ability to seek a renewal lease is commonly conditional on satisfaction of conditions precedent (for example, all rent paid and other tenant covenants observed) – for further discussion see Conditions precedent below. A call option is a contract for the sale of an interest in land within the Law of Property ( Miscellaneous Provisions) Act 1989, s 2(1). The option must: be in writing contain or incorporate all of the terms expressly agreed between the parties be signed by or on behalf of each party When the tenant exercises the option by giving notice to the...
This Practice Note sets out the UK financial sanctions legal and regulatory framework as it applies to firms regulated by the Financial Conduct Authority ( FCA) under the Financial Services and Markets Act 2000 ( FSMA 2000), and to firms within the FCA’s supervisory scope, such as e-money and payment firms (collectively, firms). It outlines the FCA and Prudential Regulation Authority ( PRA) regulatory requirements for firms and senior management concerning sanctions. It also explores the interplay between the anti-money laundering ( AML)/counter-terrorist financing ( CTF) framework and sanctions compliance, and the FCA and Joint Money Laundering Steering Group ( JMLSG) guidance on sanctions compliance, including the scope and status of that guidance. Key points Firms have legal and regulatory duties to put in place, and maintain, robust defences and risk management frameworks that identify and mitigate financial crime risk, including sanctions risk The FCA does not make,...
ARCHIVED This Practice Note is archived, retained solely for reference purposes and is no longer being updated. It summarises and explains the cap provisions contained in the 2016 draft regulations, now overtaken by the 2020 draft regulations (which remain not in force as yet). For the present position on the capping of exit payments for public sector employees and office-holders, including discussion of the 2020 draft regulations, see Practice Note: Capping the size of public sector exit payments—the revoked 2020 regulations [ Archived]. For how proposed legislation (also not yet in force) would operate to allow claw-back of part or all of an exit payment made to a public sector employee or office-holder in the event that they re-enter public service within one year of receipt, see Practice Note: Claw-back of public sector exit payments. A complete history of the status and legislation to cap exit...
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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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