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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 offence of false imprisonment False imprisonment is an offence at common law, though it more frequently arises as a civil tort claim (see Practice Note: False imprisonment). It is triable only on indictment. The offence is closely related to the common law offence of kidnapping. The crucial difference is that, unlike kidnapping, there is no requirement to prove the victim was ‘taken and carried away’ ( R v Hutchins [1988] Crim LR 379 (not reported by Lexis Nexis®)). See Practice Note: Common law offence of kidnapping. Elements of the offence In R v Rahman (1985) 81 Cr App Rep 349 (not reported by Lexis Nexis®), it was held that, on a charge of false imprisonment, the prosecution must establish: unlawful intentional or reckless restraint of a victim’s freedom of movement from a particular...
ARCHIVED: This Practice Note is retained for background only and is no longer updated. From 3 May 2015, no further financial reporting orders can be issued in England, Wales, Scotland or Northern Ireland. Any orders already in force continue until their stated term ends, and the existing criminal offence of breaching an order persists in relation to those orders until expiry. From that date, serious crime prevention orders are the exclusive mechanism for imposing financial reporting obligations on an individual convicted of a serious offence. For more detail, see Practice Note: Serious crime prevention orders. Making a financial reporting order A financial reporting order ( FRO) was imposed following conviction for a listed offence, in addition to the defendant’s sentence. A court would make such an order only where satisfied that the likelihood of the defendant committing a further listed offence was...
This Practice Note summarises the procedural framework for sentencing in England and Wales (the Sentencing Code), which took effect on 1 December 2020 and is contained in Parts 2–13 of the Sentencing Act 2020 ( SA 2020). If you are considering whether the Sentencing Code applies to a particular matter, see Practice Note: Sentencing Code. What is an absolute discharge? Under SA 2020, s 79, an absolute discharge is an order that releases an offender absolutely in respect of an offence. It represents the least severe sentence the court can impose. The court may make this order where, having regard to the nature of the offence and the offender’s character, it considers it would be ‘inexpedient’ to impose any punishment. This outcome is typically reserved for cases where the offender is technically guilty (and convicted) but otherwise without blame. Granting such an order does not stop the...
Director disqualification orders A disqualification order is imposed to safeguard the public from individuals who, through dishonesty, naivety or incompetence, misuse their role and status as a director. In England and Wales, the criminal courts may impose a director disqualification order under the Company Directors Disqualification Act 1986 ( CDDA 1986) where: an offender has been convicted of an indictable offence, tried either on indictment or summarily, in connection with the promotion, formation, management, liquidation or striking off of a company; or an offender has been convicted of an offence involving a failure to file documents with, or give notice to, the registrar of companies and has also been the subject of three default orders or convictions in the preceding five years. Practitioners should therefore refer to the Sentencing Council’s offence specific guidelines, which set out when a director...
What inferences can be drawn from failure to testify? Inferences may arise where a defendant: after taking the oath, declines without proper reason to answer a specific question or questions; or elects not to give evidence at all. Where either situation occurs, the court or jury, in deciding whether the accused is guilty, may draw such inferences as appear appropriate. Put simply, the tribunal of fact can be asked to treat the defendant’s silence as supporting guilt. When can an inference be drawn? Before an inference can be drawn under the Criminal Justice and Public Order Act 1994 ( CJPOA 1994), these requirements must be met: the defendant fails to give evidence; having been sworn, refuses to answer questions; the failure to testify or respond is without ‘good cause’; and the defendant has either: been...
Should a suspect ask for an identification procedure? Where the police have not proposed one, a suspect may require legal advice on whether to ask for an identification procedure, and if so, when to do so. A code of practice governing police use of statutory powers to identify individuals has been issued under the Police and Criminal Evidence Act 1984, referred to as PACE Code D. Under PACE Code D, an identification procedure can take place if the officer leading the investigation thinks it would be 'useful', even when the criteria for a compulsory procedure are not met in the circumstances of the investigation. See also Practice Note: Eyewitness identification evidence, which explains when an identification procedure is mandatory. When advising a suspect on requesting a formal identification procedure, a legal representative should carefully weigh several matters,...
Judicial independence Judicial independence is the bedrock of the rule of law. The criminal justice system’s integrity rests on hearings that are open, fair, and decided by a tribunal that is both independent and impartial. Alongside those core tenets sits the imperative that justice is delivered promptly, and with that comes an accepted place for plea discussions. A prospective indication of the likely sentence forms part of that framework. The value of receiving such an indication early is that a defendant can reach a more informed view on whether to enter a guilty plea. The Attorney General’s guidelines on accepting pleas stress transparency in the administration of justice and, in particular, prescribe a structured method for giving sentence indications in the Crown Court. These are commonly referred to as ‘ Goodyear indications’. The Court of Appeal, in R v Goodyear,...
Mastering advocacy forms a strand of solicitor training, yet many seldom deploy it in practice. Structured modules feature in the Solicitors Qualifying Examination ( SQE), Legal Practice Course ( LPC) and Professional Skills Course ( PSC), but, when set beside the Bar, the provision is slight. Before April 2013, legal aid family cases generated ample advocacy openings, particularly for junior lawyers, to build confidence so they could carry it into their work as they moved to senior roles, but the excision of so much from legal aid’s scope has meant chances to practise advocacy are shrinking. This Practice Note examines advocacy in terms of training and business development rather than detailed practical techniques. It does not address courtroom mechanics or the granular craft of delivery. Why should a practice develop advocacy as a...
Judicial review Judicial review is the mechanism through which the High Court scrutinises the legality of decisions, actions or failures to act by public authorities. For general guidance on judicial review procedure, consult the Practice Notes: Judicial review—what it is and when it can be used— Preliminary and pre-action considerations, Judicial review—time limits and the pre-action protocol, and Judicial review—how to start proceedings. For material on challenging decisions of the criminal courts, see Practice Note: Judicial review of magistrates' court and Crown Court decisions. Judicial review does not assess the merits of an outcome; instead, it focuses on the lawfulness of the decision-making process. It is a remedy granted at the court’s discretion. The High Court will exercise its powers only where appropriate and may decline to do so where an alternative remedy is available, in the circumstances of the case as...
Summary of magistrates’ powers to commit Magistrates’ courts can impose custody only up to the relevant statutory maximum for a single offence. Refer to Practice Note: Sentences imposed following conviction. The magistrates’ court does, however, also retain wide-ranging authority to commit a defendant to the Crown Court to be sentenced......
ARCHIVED: This Practice Note is archived and no longer maintained. For further reading on this topic, see: State aid—overview. State aid—generally European Union rules on state aid prevent member states from granting support that distorts, or may distort, competition and trade between states. Consequently, whenever a public authority or publicly funded body (such as a quango) offers financial assistance to an undertaking, they must consider carefully whether that support constitutes state aid, mindful that the European Commission is obliged to recover any unlawfully granted aid, together with applicable interest. The EU nevertheless recognises that state aid can be a legitimate element of public policy, for example to attract inward investment into underdeveloped regions (often called ‘assisted areas’) or to foster investment in high-technology industries. Article 107(1) of the Treaty on the Functioning of the European Union sets out the primary prohibition on state aid, while TFEU, art 7,...
Discretionary power to disqualify from driving The principal legislation governing discretionary bans from driving consists of the Road Traffic Offenders Act 1988 ( RTOA 1988) and the Sentencing Act 2020 ( SA 2020), the latter being known as the Sentencing Code. The Sentencing Council has issued overarching guidance drawing together all existing material on driver disqualification. These guidelines apply to every adult offender sentenced on or after 1 April 2025, regardless of when the offence was committed. They explain when the power to disqualify is engaged, how the term of any disqualification should be fixed, the available exceptions, and how a disqualification is administered. Offences to which discretionary disqualification applies Where an offender is convicted of an offence for which disqualification is discretionary and either the penalty points to be counted are fewer than 12, or the offence does not require obligatory endorsement, the court may order a period of...
The offences The Road Traffic Act 1988 ( RTA 1988) sets out two specific offences: securing a driving licence whilst disqualified; and driving a motor vehicle on a road whilst disqualified. A uniformed constable may, without a warrant, arrest any person found driving on a road where there is reasonable cause to suspect they are disqualified. What the prosecution has to prove To establish either offence, the prosecution must prove the accused did one of the following: obtained a licence whilst disqualified from holding or obtaining one; or drove a motor vehicle on a road whilst disqualified from holding or obtaining a licence. A licence procured during a period of disqualification is not valid. Consequently, an accused could also face an allegation of driving otherwise than in accordance with a licence. For this offence, being merely in charge is...
Practice Note This Practice Note sets out when the employment tribunal panel, or any of its individual members, should step aside, explains the concept of bias, and describes how improper conduct and procedural mishaps can jeopardise the overall fairness of the proceedings. On occasion, one or more parties may become dissatisfied with the tribunal hearing the matter, or uncomfortable or concerned with a specific member of that tribunal. Illustrations include a member being related to, or on friendly terms with, a party or with a witness, or circumstances in which it is known that a tribunal member holds a substantial shareholding in the respondent company, so that it appears inappropriate for that individual to adjudicate upon the case. Displeasure with a tribunal may equally arise from the manner in which a party perceives the case is being managed throughout, from start to finish. That party may...
Loan market and developments The corporate finance landscape in Germany has shifted markedly, with clear trends and challenges compared to earlier years: Interest rate environment and financing costs: In contrast to the era of zero rates once seen across Europe, borrowing costs remain relatively elevated, even though the European Central Bank has cut policy rates multiple times. Reflecting the wider macro backdrop and sector‑specific demand, financing margins climbed sharply in recent years but have now begun to ease. That said, in some segments—such as software, technology and business services—pricing has largely normalised again amid intense competition. Across the market as a whole, the macroeconomic setting has pushed up companies’ financing costs significantly when set against the near‑zero interest years that persisted until 2021. Despite some margin compression, the overall cost of debt remains materially higher than during that period....
CASE HUB ARCHIVED This archived case hub records the position as at the decision date of 20 September 2016; it is no longer maintained. See the timeline and commentary for further detail. Case facts Outline European Commission Article 102 TFEU investigation concerning Altstoff Recycling Austria (case number AT.39759). Latest development On 15 October 2016, the Commission adopted its infringement decision. ARA was fined €6,015,000. The figure includes a 30% reduction for ARA’s cooperation, comprising: acknowledging the infringement ensuring the decision benefited from administrative efficiencies proposing the structural remedy (see below) The Commission also required a structural remedy to tackle the foreclosure concern, under which ARA will divest the portion of household collection infrastructure it owns. Proposed by ARA, this measure ensures ARA will no longer be in a position to block competitors’ access to that infrastructure, preventing any recurrence of the...
CASE HUB ARCHIVED This archived case hub presents the position as at the judgment of 11 July 2013 and is no longer maintained. For further detail, see the timeline and related cases. Case facts Outline Spira brought an appeal before the General Court seeking the annulment of the Commission decision of 26 January 2007, which rejected Spira’s complaint against De Beers alleging breaches of Articles 81 and 82 EC in the rough diamond market, linked to De Beers’ use of distribution agreements referred to as Supplier of Choice ( SOC). Spira also sought to annul a later Commission decision, in which the Commission held that subsequent changes in circumstances—namely, the Court of First Instance judgment annulling the Commission decision in 2006 that made binding the commitments offered by De Beers—did not justify reopening or reconsidering the earlier decision that dismissed the applicant’s...
CASE HUB ARCHIVED This archive records the position as at the judgment dated 11 July 2013 and is no longer being updated. For additional detail, see the timeline and related cases. Case facts Outline Belgische Vereniging van handelaars in- en uitvoerders geslepen diamant ( BVGD) lodged an appeal before the General Court, seeking to annul the Commission decision of 26 January 2007 that dismissed BVGD’s complaint against De Beers. The complaint alleged infringements of Articles 81 and 82 EC in the rough diamond market, said to result from De Beers’ use of distribution agreements branded ‘ Supplier of Choice’ ( SOC)......
CASE HUB ARCHIVED –this archived case hub reflects the position at the date of the decision of 10 July 2013; it is no longer maintained. This archived hub records the position as at the decision date of 10 July 2013 and is not maintained. Case facts Outline: European Commission Article 101 TFEU investigation into five cartels within the market for wire harnesses for cars (case number COMP/39.748). Latest development On 10 July 2013, the Commission handed down its infringement decision and levied fines totalling €141m. Sumitomo received immunity from fines after it brought the cartels to the Commission’s attention, admitted wrongdoing and co-operated fully......
CASE HUB ARCHIVED This archived case hub sets out the position as at the judgment dated 5 July 2013; it is no longer maintained. See the timeline and related cases for further details. Case facts Outline Appeals to the General Court were lodged challenging the Commission decision of 9 December 2009, which made binding, on Rambus, specified commitments concerning potentially abusive royalties, contrary to Article 102 TFEU, for the use of certain patents covering DRAM. An appeal was brought against the Commission decision of 15 January 2010, which rejected, for lack of EU interest, Hynix’s complaint alleging infringements by Rambus of Article 102 TFEU, relating to potentially abusive royalties for the use of DRAM-related patents......
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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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