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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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The Proceeds of Crime Act 2002 ( POCA 2002) took effect on 24 February 2003. It captures money laundering carried out after that date, regardless of when the predicate offence occurred. The timing of the underlying criminal conduct is immaterial, as the Act targets the laundering activity itself. This Practice Note discusses key details of POCA 2002 as they relate to money laundering and is intended for law firms. Offences POCA 2002 sets out a number of money laundering offences, including: three principal money laundering offences comprising: concealing arranging acquiring failure to disclose tipping-off and prejudicing an investigation The principal offences apply to everyone. Certain failure to disclose and tipping-off offences only apply to persons engaged in the...
The Proceeds of Crime Act 2002 ( POCA 2002) took effect on 24 February 2003 and applies to money laundering conduct from that date onwards. The point in time when the underlying crime occurred does not matter for these purposes. Offences POCA 2002 creates several money laundering offences, including: three core offences of: concealing, arranging, and acquiring failure to disclose tipping-off and prejudicing an investigation The principal offences apply to all individuals. Certain failure to disclose and tipping-off provisions only cover those working within the regulated sector. For more on what constitutes regulated sector activity, see Practice Note: Money laundering—key information for businesses. The principal offences POCA 2002 replaced the parallel drug and non-drug laundering offences previously found in the Criminal Justice Act 1988 and the Drug Trafficking Act 1994, representing a significant shift. The three principal offences—concealing, arranging and acquiring—no longer draw a line between proceeds of drug...
Child of the deceased Definition A child of the deceased is an eligible applicant under section 1(1)(c) of the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975) for these purposes. For the avoidance of doubt, I( PFD) A 1975, s 25(1) states that a child includes an illegitimate child and a child en ventre sa mere (ie in the womb) at the date of the deceased’s death. The meaning of child extends to an adult and/or married child as well. A child of the deceased? Questions can arise as to whether the individual is the deceased’s child in particular circumstances in law too. Under the Human Fertilisation and Embryology Act 2008, ( HFEA 2008), the general rule is that where a woman carries a child as a result of placing an embryo in her, or sperm and eggs, or...
Under the Insolvency Act 1986 ( IA 1986), a company director commits a criminal offence by making a statutory declaration that a company is solvent without reasonable grounds. The case can be tried in either the magistrates' court or the Crown Court......
False accounting A person who, with a view to gain for themselves or another, or intending to cause loss to someone else, falsifies or conceals information required for an accounting purpose, knowing that such information is misleading, may be committing the offence of false accounting. The offence can be committed in either of two ways: by falsifying documents for an accounting purpose; or by using false or misleading documents for any purpose The elements are established when a person, with a view to gain for themselves or another, or with intent to cause loss to another, either: dishonestly destroys, defaces, conceals, or falsifies any account, record, or document required for any accounting purpose whatsoever; or produces, presents, or makes use of any account, record, or document for any purpose which they know is, or may be, false, misleading, or deceptive in a...
There are several grounds on which a gift may fail, one of which is lapse. For more detailed guidance on the different causes of failure of a testamentary gift, see Practice Note: Failure of gifts—effects. This Practice Note explores the doctrine of lapse in greater depth. Nature of lapse For a person to take under a Will, the beneficiary must outlive the testator. A legacy is treated as lapsed and falls into residue: if the beneficiary dies before the testator if the beneficiary dies before fulfilment of a condition precedent to the vesting of the legacy Testamentary gifts can also be regarded as lapsed for alternative reasons, eg where a beneficiary witnesses the Will, or where the beneficiary disclaims the gift. A testator cannot disapply the doctrine of lapse merely by adding a provision to the Will stating that the gift shall not lapse. However, a testator can ensure that a...
Possessing extreme pornography Mere possession of extreme pornography constitutes an offence under section 63 of the Criminal Justice and Immigration Act 2008 ( CJIA 2008). It is prosecuted more frequently than offences under the Obscene Publications Act 1959, because no act of publication needs to be shown, making it simpler to establish. Refer to Practice Note: Obscene publications. Pornography is distinct from obscenity: material deemed obscene may deprave and corrupt and might be violent or morally offensive; by contrast, the pornography offence focuses on sexual images that are gross or extreme in character. Pictures depicting extreme violence can amount to obscenity, yet they are not pornography unless they possess a sexual context or intent. The provision aims to curb the proliferation of extreme material and applies equally to online and offline contexts, covering both moving and still images, regardless of how they were...
What is extradition? Extradition is the formal legal mechanism by which one territory requests another to hand over a person sought so they can face trial or complete a sentence imposed by the requesting territory. The UK’s statutory framework The UK’s extradition system is governed by the Extradition Act 2003 ( EA 2003). The UK maintains extradition arrangements, under multilateral conventions and bilateral extradition treaties, with more than 120 territories. Under the EA 2003, these territories are designated as either Part 1 or Part 2. Part 1 territories are listed in the Extradition Act 2003 ( Designation of Part 1 Territories) Order 2003, SI 2003/3333, as amended. See further below: Part 1 territories. Notwithstanding the UK’s departure from the EU, this list continues to include the remaining 27 EU Member States. Part 2 territories are identified in the Extradition Act 2003 ( Designation of Part 2...
This Practice Note addresses securing extra time to serve the claim form. It reviews threshold issues, including whether the claim form is valid (under CPR 7.5 or as prescribed by statute). It also examines the effect of applying within or after the claim form’s validity window, the bases on which the court may allow more time, and any imitation considerations. An extension for service of the claim form is not a mere box‑ticking exercise. It highlights the difference between applying while the claim form remains valid and applying once validity has lapsed, and related procedural considerations. For guidance on: making an application, see Practice Note: Extending time for service of the claim form—making an application the alternative routes when faced with difficulties serving the claim form, see Practice Note: Difficulties with service of the claim...
Read this Practice Note alongside Practice Note: Civil restraint orders, which sets out general information on civil restraint orders ( CROs) that applies to all forms of CRO. For material on other orders available against vexatious litigants, also see the following Practice Notes: Limited civil restraint orders General civil restraint orders Civil proceedings orders against vexatious litigants What is an extended civil restraint order ( ECRO)? An extended civil restraint order ( ECRO) can be made where a party has persistently brought claims or lodged applications that are ‘totally without merit’ ( CPR PD 3C, para 3.1). It stops that party from issuing further applications or claims in specified courts relating to the matters in the present proceedings, unless prior permission of the court is obtained ( CPR PD 3C, para 3.2). The Court of Appeal has signalled that courts should be readier to grant...
This Practice Note considers the framework within which expert witness evidence is presented in arbitration proceedings. An expert witness in arbitration generally fulfils a function akin to that performed in civil court cases, broadly mirroring the role seen in civil litigation. Appointed by the parties or, more rarely, by the tribunal, the expert must provide an impartial professional opinion on the issues put to them, grounded in the evidence they are given and informed by their own expertise, skill and experience. Both parties and the tribunal may test or dispute that evidence robustly, including by questioning the analysis and reasoning, by each side where relevant, and the tribunal will determine which expert it finds more persuasive or, where there is a sole expert, whether to adopt their conclusions. Although an arbitrator might be chosen for sector knowledge, this is usually to...
Practice Note This Practice Note sets out how expert witnesses differ from expert advisers, outlines the key contrasts between these functions, weighs the pros and cons of engaging an expert adviser, and highlights the matters to address if that adviser is subsequently instructed to serve as an expert witness. It also addresses what an assessor is and the part they may play in certain proceedings. The Note gives guidance on elements of the court rules. Depending on the court dealing with your matter, you may need to consult the relevant court guides as well; see the section: Court specific guidance below......
This Practice Note This Practice Note explains the factors to carefully weigh when deciding whether expert evidence is necessary, and how to approach that assessment. It sets out why appropriate, relevant expertise—both of instructed experts and any proposed candidates—matters, and identifies the kinds of issues and disputes that may call for expert input, including questions of foreign law, as well as how to research and evaluate other categories of expert material. This Practice Note also gives guidance on interpreting and applying the pertinent provisions of the CPR. Depending on the court in which your case is progressing, you should be alert to any further and applicable requirements—see: Court specific guidance. This Practice Note should also be read alongside the following Practice Notes: Applying for permission to adduce expert evidence Duties of an expert When instructing experts, you are expected to have regard to: all...
This Practice Note outlines the passporting entitlements and associated notification obligations of insurance undertakings based in the EEA under Directive 2009/138/ EC (the Solvency II Directive). The Treaty and Solvency II The Treaty on the Functioning of the European Union ( TFEU) provides the overarching framework for freedom of establishment and the free movement of services within the EU. In the financial services sphere, including insurance, these freedoms are further detailed by the Single Market Directives. The regulatory regime for EEA life and non-life insurers and reinsurers—covering supervision, solvency, risk management, governance, reporting and passporting—is set out in the Solvency II Directive, supported by Commission Delegated Regulation ( EU) 2015/35 (the Solvency II Delegated Regulation) together with applicable Implementing and Regulatory Technical Standards ( RTS). Under Solvency II, an insurance undertaking that has secured authorisation from its home state regulator may exercise the right of...
This Practice Note outlines the formal requirements for witnesses, covering who may witness another person’s signature on a document connected to a commercial deal, such as a deed or simple contract, as well as witnessing electronic signatures and the current approach to video witnessing in practice. For guidance on witnessing wills, see Practice Note: Validity of Wills—signature. We have created a collection that serves as a comprehensive, interactive resource to help users recognise and navigate the concepts and frequent issues and pitfalls in executing documents, including the witnessing of signatures. Each stage or phase provides practical guidance, precedent clauses and Q& As relevant to that stage. For further details, see: Execution collection. Witnessing What is the difference between witnessing and attestation? Witnessing is the act of observing the execution of a document. Attestation adds the further step of noting, on the document itself, that the witness has seen the...
This Practice Note This Practice Note offers an overview of the exemptions and exclusions relevant to the general prohibition set out in section 19 of the Financial Services and Markets Act 2000 ( FSMA 2000, s19). Those exemptions and exclusions are contained within the following instruments: FSMA 2000 itself The Financial Services and Markets Act 2000 ( Exemption) Order 2001, SI 2001/1201 ( Exemption Order) The Financial Services and Markets Act 2000 ( Regulated Activities) Order 2001, SI 2001/544 ( RAO) FSMA 2000, the Exemption Order and the RAO have each undergone a number of amendments since coming into force. This Practice Note addresses the most up-to-date iterations of these instruments. In this Practice Note, references to exemptions concern persons who are relieved from the requirement to seek prior authorisation from the Prudential Regulation Authority ( PRA) or the Financial Conduct Authority ( FCA) in order to...
This Practice Note outlines the principal features of Directive 2009/65/ EC, as amended ( Undertakings for Collective Investment in Transferable Securities ( UCITS) Directive), including the UCITS regulatory framework, the authorisation process, operating UCITS on a cross-border basis, UCITS management companies, master-feeder structures, depositaries, remuneration, and investment information... What is a UCITS fund? UCITS funds are authorised open-ended investment vehicles that can be marketed to retail investors throughout the EU, provided they comply with, for example, the Directive’s rules on diversification and eligible investments. EEA UCITS funds must be both managed and domiciled within the EEA... Definition and requirements of a UCITS fund Article 1 of Directive 2009/65/ EC (the UCITS Directive) defines a UCITS as an undertaking that has: the sole purpose of collective investment in transferable securities or certain other liquid financial assets using capital raised from the public, operating on the...
This Practice Note explores the concept of tied agents within the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II). It also sets out the obligations for firms that appoint a tied agent or an EEA tied agent, and summarises the passporting framework for tied agents. For information on the broader passporting regime under Mi FID II, see Practice Note: Exercising passport rights under EU Mi FID II. For details on options available to third-country firms seeking to access the EEA market, see Practice Note: EU Mi FID II & Mi FIR—third-country regime. regime Mi FID II sets out a regime for tied agents and requires Member States to have a tied agents regime in place. Under Mi FID II, a ‘tied agent’ is a natural or legal person who, under the full and...
OTC derivatives and ETDs Derivatives fall into two principal categories: over the counter ( OTC) derivatives, and exchange traded derivatives ( ETDs) OTC derivatives can be further divided into: non-cleared OTC derivatives, and cleared OTC derivatives, which combine characteristics found in both non-cleared OTC derivatives and ETDs For additional detail on OTC derivatives and ETDs, see Practice Notes: OTC and exchange traded derivatives—key features and concepts and OTC and exchange traded derivatives—documentation. Why are derivatives regulated? Derivatives trading is a significant area of financial activity and has long been regulated—however, the purpose and scope of that regulation shifted after the 2007–2008 global financial crisis. Before the crisis, in broad terms: ETDs were regulated because they were traded on public exchanges and there was a wish to protect market users and the public from fraud, manipulation, and abusive practices, but OTC...
This Practice Note summarises the organisational and conduct of business obligations under Directive ( EU) 2016/97, the Insurance Distribution Directive ( IDD), which superseded the Insurance Mediation Directive (2002/92/ EC) ( IMD) from 1 October 2018. For further detail on the IDD, see: EU Insurance Distribution Directive ( IDD)—essentials EU Insurance Distribution Directive ( IDD)—scope, registration, passporting and sanctions EU Insurance Distribution Directive ( IDD)—insurance-based investment products EU Insurance Distribution Directive ( IDD)— Insurance Product Information Document requirements IDD organisational and conduct of business requirements—overview The IDD prescribes organisational and conduct standards for insurance and reinsurance distributors, encompassing insurance and reinsurance intermediaries, ancillary insurance intermediaries, insurers and reinsurers. The requirements include: professional standards to ensure those selling insurance to consumers are competent, covering knowledge and ability, training and development, good repute and record-keeping obligations on insurance and...
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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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