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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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Chapter 16 Annex 16A of the Financial Conduct Authority ( FCA) Handbook's Supervision Manual ( FCA SUP 16, Annex 16A) Annex 16A in Chapter 16 of the FCA Handbook’s Supervision Manual ( FCA SUP 16, Annex 16A) describes the standing data kept by the regulators for every authorised firm. This information covers: the firm’s registered name and any trading names registered office and main place of business website address complaints contact and complaints officer the name and email address of the principal compliance contact information about the firm on the Financial Services Register name and address of the firm’s auditor accounting reference date details of any locum used The FCA and PRA use this standing data to: ensure a firm is provided with the correct regulatory return when reporting...
Practice Note This Practice Note presents the law and regulatory framework aimed at preventing bribery and corruption across financial services firms......
Background to investment research rules This Practice Note outlines the Financial Conduct Authority’s ( FCA) regime on investment research, set out in Chapter 12 of the Conduct of Business sourcebook ( COBS 12). The COBS 12 provisions address conflicts of interest and prescribe detailed obligations for creating and distributing investment research and non-independent research. Before 3 January 2018, COBS 12 gave effect to Articles 24 and 25 of Commission Directive 2006/73/ EC (the Mi FID Implementing Directive), which itself implemented the Markets in Financial Instruments Directive ( Directive 2004/39/ EC) ( Mi FID). Mi FID was subsequently replaced by the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) (the Mi FID II Directive) and the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR) (together, the Mi FID II framework). Both the Mi FID II Directive and Mi FIR...
Background to FCA suitability requirements This Practice Note examines the suitability rules set by the Financial Conduct Authority ( FCA)... For detailed guidance on gauging a customer’s risk appetite and capacity, and selecting suitable investments, see Practice Note: Establishing risk and suitable investment selections... Conduct of business rules for investment activity appear in the FCA Handbook’s Conduct of Business sourcebook ( COBS)... In 2006, the Financial Services Authority ( FSA)—now the FCA—reworked COBS to implement the Markets in Financial Instruments Directive ( Directive 2004/39/ EC) ( Mi FID)... Mi FID was subsequently superseded by the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II Directive) and the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR), together forming the Mi FID II framework... The Mi FID II Directive and Mi FIR entered into force on 2 July...
Background to this Practice Note Section 19 of the Financial Services and Markets Act 2000 ( FSMA 2000) bars any person from undertaking regulated activities in the UK—or even holding themselves out as doing so—unless they are duly authorised or fall within an available exemption. This is commonly termed the general prohibition. In this Practice Note, references to exemptions concern persons who are relieved from applying to the Prudential Regulation Authority ( PRA) or the Financial Conduct Authority ( FCA) for the authorisation needed to perform regulated activities. For further detail on the general prohibition, in particular, see Practice Note: The general prohibition and implications of its breach. For additional practical guidance on regulated activities, see the Practice Note: What are regulated activities? For discussion of the territorial scope of the general prohibition and the meaning of carrying on regulated activities by way of business, see...
Water abstraction and impounding—introduction Abstraction occurs when surface water or groundwater is taken from any source of supply. It covers the temporary or permanent removal of water from that source, as well as the transfer of water between sources. A source of supply comprises: inland waters—rivers, streams, springs, reservoirs, lakes, ponds and canals—other than 'discrete waters'; and groundwater, including water held in wells, boreholes and certain excavations, but not water stored in sewers, pipes, reservoirs, tanks or other underground works ' Discrete waters' means waters that do not discharge into other inland waters for the purposes of WRA 1991, s 221. Per section 25(8) of the Water Resources Act 1991 ( WRA 1991), 'impounding works' are any dams or other structures in inland waters by which water can be held back or diverted. This includes: dams weirs fish passes ...
Contaminated land ' Land contamination' broadly refers to any land that might be affected by pollutants. In contrast, 'contaminated land' is a precise legal term set out in the Environmental Protection Act 1990, Part IIA ( EPA 1990). See Practice Note: Contaminated land—definition of contaminated land. Where a local authority determines land is contaminated, it must issue a remediation notice to any person who caused, or knowingly allowed, the contaminant(s) to be in, on or under the site. If no such party can be traced, responsibility may pass to the blameless owner or occupier. The contaminated land regime is stringent and retrospective. It applies across the whole UK. It was established to: address the legacy of contaminated sites across the UK that would not be cleaned up without regulatory action foster market-based solutions by incentivising businesses to carry out voluntary...
Who makes the determination? Local authorities ( LAs) alone carry the duty to decide whether land constitutes contaminated land under Part IIA of the Environmental Protection Act 1990 ( EPA 1990). They may only pass this duty on in line with their statutory powers under section 101 of the Local Government Act 1972. When weighing up a potential determination, LAs can take into account information or guidance from the Environment Agency ( EA), Natural Resources Wales ( NRW), or another suitably qualified specialist. Even so, the final call rests with the LA. In practice, an officer acting under delegated authority, or a committee through a formal resolution, will usually make the determination. Whichever decision-maker is involved, they must ask the correct question: is the land contaminated land, or not? At that point, it is premature to consider the suitability of serving a...
Determining liability Enforcing authorities should adhere to the five-step procedure set out in the statutory guidance for deciding liability under section 78F of the Environmental Protection Act 1990 ( EPA 1990). Not every stage of that approach will be relevant in all matters. See Practice Note: Contaminated land—process for determining liability. At step five, the enforcing authority must divide liability between the remaining members of each liability group. If a liability group has only one remaining member, that person is responsible for the whole of the costs allocated to that group. If a liability group has two or more remaining members, the enforcing authority should apply the guidance on apportionment. Different considerations apply to Class A liability groups and Class B liability groups. Class A persons General principles When apportioning liability within a single Class A liability group, the enforcing authority must decide the...
Determining liability Enforcing authorities are expected to make use of the five-step process set out in the statutory guidance when determining liability under section 78F of the Environmental Protection Act 1990 ( EPA 1990). Not every stage of that process will be applicable in all cases. See Practice Note: Contaminated land—process for determining liability. Step two applies only where a site has more than one significant contaminant linkage ( SCL). At that point, the enforcing authority must identify which remediation actions correspond to each SCL present on the site. For details, see: Contaminated land—risk assessment— What is a contaminant linkage?......
Background to the contaminated land regime The contaminated land regime was introduced in 2000 to: address the legacy of polluted sites in the UK that would not be cleaned up without regulatory action encourage market-led solutions by motivating companies to undertake voluntary remediation ‘ Contaminated land’ has a precise legal meaning under Part IIA of the Environmental Protection Act 1990 ( EPA 1990). Not all land contamination falls within the scope of ‘contaminated land’. For further details, see Practice Note: Contaminated land—definition of contaminated land. Objectives in the statutory guidance The revised statutory guidance sets out aims that should be read and applied alongside the EPA 1990, Pt IIA......
What is a Fixed Monetary Penalty The Regulatory Enforcement and Sanctions Act 2008 ( RESA 2008) conferred powers on regulators to address offences through civil sanctions rather than prosecution. Under Regulation 39, a regulator may, by notice, impose a fixed monetary penalty ( FMP) on a person for a relevant offence. A ‘fixed monetary penalty’ in RESA 2008 means a requirement to pay a regulator a penalty of a set, prescribed amount. RESA 2008 also sets out guidance on applying civil sanctions and obliges the regulator to prepare and publish guidance explaining how a relevant offence will be enforced. The Environmental Civil Sanctions ( England) Order 2010, read with the Environmental Civil Sanctions ( Miscellaneous Amendments) ( England) Regulations 2010, granted the Environment Agency and Natural England authority to apply civil sanctions for a variety of environmental offences in England. The regime was...
The Environmental Information Regulations 2004, SI 2004/3391 ( EIR 2004) EIR 2004 grants the public a right to obtain environmental information held by public authorities. While openness is the default position, that duty to disclose is limited by several exceptions, most of which appear in regulation 12 of EIR 2004. For an outline of what amounts to environmental information, see Practice Note: Environmental Information Regulations 2004—what is environmental information? For guidance on when a request may properly be refused, see the Information Commissioner’s Office resource ‘ When can we refuse a request for environmental information?’ and a Q& A examining whether, beyond the rulings in Fish v Legal and Attorney- General for the Prince of Wales v the IC, as well as the ICO’s own guidance, there is further authority on what constitutes ‘control’ within the definition of public authority in the...
Noise nuisance Noise makes up the majority of complaints received by local authorities and the Environment Agency ( EA) about environmental pollution. It is any unwelcome sound that happens unexpectedly, or is excessively loud or repetitive. Exposure within certain decibel ranges can be harmful to health, with low frequency noise capable of being as damaging as loud noise. Noise nuisance is typically handled by local authorities as an environmental health matter. The police become involved where the disturbance amounts to a breach of the peace, or is linked to threatening, violent or other anti-social behaviour. Police and local councils frequently work jointly to take action or obtain orders against residents whose anti-social behaviour—causing alarm, harassment and distress—affects others. See Practice Note: Anti-social behaviour—environmental breaches. Public nuisance Creating a public nuisance is both a tort and a criminal offence, formerly at common law and now under section 78 of the...
under the Insolvency Act 1986 A company is regarded as insolvent if it cannot settle its debts as they fall due, if the total of its liabilities exceeds the value of its assets, or if both tests apply. When insolvency arises, the Insolvency Service will place the company into winding up under a statutory scheme that fairly administers the company’s assets and the creditors’ claims. Within the Insolvency Act 1986 ( IA 1986) are provisions that establish criminal offences for unfit conduct by directors once a company has become insolvent. Where the company is in the course of being wound up, an officer or contributory commits an offence if they destroy or falsify any company books or securities, or if they make, or are privy to the making of, any false or fraudulent entry in any register, book of account, or document belonging to the...
This Practice Note addresses the offence of acquiring, using or possessing criminal property under section 329 of the Proceeds of Crime Act 2002 ( POCA 2002). It is one of the principal money laundering offences in that Act; see Practice Note: Money laundering offences under the Proceeds of Crime Act 2002— The principal money laundering offences. For guidance on the remaining principal offences, refer to Practice Notes: Money laundering offences—concealing, disguising, converting, transferring and removing and Money laundering offences—the arrangement offence... The acquisition, use and possession of the proceeds of crime offence The offence arises where an individual acquires, uses, or has possession of criminal property. For fuller direction on the meaning of criminal property and criminal conduct, see Practice Note: Principal money laundering offences—mens rea, criminal property and criminal conduct— What is criminal property... As to mens rea, suspicion alone suffices. Dishonesty is not an...
Offences of fraudulent evasion of duty—the smuggling offences A person commits an offence under CEMA 1979, s 170(1) if, intending to defraud HMRC of duty or evade any prohibition/restriction, they: knowingly possess goods unlawfully removed from a warehouse, dutiable goods with unpaid duty, or prohibited/restricted goods; or are knowingly concerned in carrying, removing, depositing, harbouring, keeping or concealing them. Section 170(2) is wider: it catches anyone knowingly concerned in fraudulent evasion, or attempt, of duty, prohibitions/restrictions, or CEMA/ T( CT) A provisions, without proof of possession or carriage. Elements demand knowledge and intent; for s 170(2) there must be a fraudulent evasion/attempt and knowing involvement. ‘ Fraudulent evasion’ means conscious acts prejudicing HMRC’s rights; dishonesty is inherent. ‘ Knowingly concerned’ requires participation; recklessness is insufficient; liability may arise pre‑, during or...
Across England and Wales, the Health and Safety Executive ( HSE) and local authorities oversee compliance with health and safety law. For details of how enforcement is carried out, including the HSE’s power to recover the costs of its pre-charge investigations, refer to: Practice Note: Health and Safety Executive prosecutions policy Practice Note: Powers of health and safety inspectors under the Health and Safety at Work etc Act 1974 Practice Note: Improvement and Prohibition Notices under the Health and Safety at Work etc Act 1974 For information on the position in Scotland, see: Scottish health and safety enforcement—overview. Statutory duty to ensure the health, safety and welfare of employees at work Employers are required, so far as is reasonably practicable, to protect the health, safety and welfare of their employees while at work. This obligation is set out in section 2 of the Health and Safety at Work etc Act 1974 (...
Offence of fraudulent evasion of income tax Section 106A of the Taxes Management Act 1970 ( TMA 1970) provides that a person commits an offence if they are knowingly concerned in the fraudulent evasion of income tax, whether for themselves or another. This offence, triable either way, does not extend to the evasion of taxes other than income tax and capital gains tax. Elements of the offence of fraudulent evasion of income tax Being ‘knowingly concerned’ The standard for being ‘knowingly concerned’ in an income tax fraud requires both: knowledge — not merely suspicion — that an offence exists, and genuine involvement in it (for instance, simply paying in cash is unlikely to meet this threshold) In short, the individual must possess knowledge and take part in the fraud. A person is said to know something when they are sure it is true; this contrasts in law with...
This Practice Note outlines the Lord Chief Justice’s Protocol of 22 March 2005 on the Control and Management of Heavy Fraud and other Complex Criminal Cases (the Fraud Protocol) as it operates in heavy fraud and complex criminal cases. It addresses both the investigation of complex fraud and the case management framework set by the Protocol, and explains how disclosure issues and abuse of process applications should be handled. Fraud Protocol The conduct and oversight of fraud trials are governed by the Fraud Protocol together with the Criminal Procedure Rules 2025 ( Crim PR 2025), SI 2025/909. The statutory architecture directing pre-trial and trial management in serious and complex fraud consists of the Criminal Justice Act 1987, the Crime and Disorder Act 1998 and the Criminal Procedure and Investigations Act 1996. Guidance on disclosure in these cases is provided by the Attorney General...
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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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