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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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Secretary of State’s function When a category 2 territory submits an extradition request in the approved manner and it includes the requisite information, the Secretary of State is obliged to issue a certificate under section 70 of the Extradition Act 2003 ( EA 2003) (see below), unless a ground for refusing certification applies. The first principal role in extradition is therefore to receive formal requests from category 2 territories and certify them where the stated conditions are satisfied. After an extradition judge has concluded the hearing concerning a person sought by a category 2 territory and has referred the matter to the Secretary of State to decide whether that person should be extradited, the Secretary must determine, within a specific timeframe, whether any statutory bars to extradition, within the scope of their consideration, prevent an order being made. The second principal role is...
The offence of contravening or failing to comply with the food hygiene requirements— Regulation 19(1) Pursuant to the Food Safety and Hygiene ( England) Regulations 2013 ( FSH( E) R 2013), SI 2013/2996, reg 19 provides that any person who breaches or does not comply with the specified EU provisions commits an offence. Those specified provisions are set out in FSH( E) R 2013, SI 2013/2996, Sch 2 (as amended by the General Food Law ( Amendment etc) ( EU Exit) Regulations, SI 2019/641) and chiefly relate to: Assimilated Regulation ( EC) 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law (the Assimilated Food Safety Regulation); Assimilated Regulation ( EC) 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of...
Archived: This Practice Note has been archived and is not maintained. It is intended for situations where a notification offence arose before 25 May 2018. If a notification offence occurred prior to 25 May 2018, it may still be prosecuted under the Data Protection Act 1998, notwithstanding that the legislation has been repealed. Notification offences under the DPA 1998 cannot be committed after 25 May 2018. The Data Protection Act 2018 ( DPA 2018) contains no corresponding notification offences, so any such offence could only have been committed historically, before 25 May 2018 when the DPA 1998 was in force. For information on the data protection offences created by the DPA 2018, see Practice Note: Offences under the Data Protection Act 2018. Notification required under the Data Protection Act 1998 Note that these offences cannot be committed after 25 May 2018. Failure to notify the...
The Insolvency Service Legal Services Directorate ( LSD) The Insolvency Service’s Legal Services Directorate ( LSD) acts as the principal criminal enforcement body for insolvency-related fraud and corporate misconduct. It serves as the prosecuting authority for breaches of insolvency and company law that are referred by other Insolvency Service teams, the Official Receiver, Companies House, and allied agencies. The LSD also handles assorted criminal matters arising within the Department for Business and Trade... The Insolvency Service oversees the complete spectrum of investigation and enforcement activity being undertaken. Depending on the nature or scale of suspected offences, the LSD may pass cases to other enforcement authorities, such as: Crown Prosecution Service ( CPS) HM Revenue & Customs ( HMRC) Serious Fraud Office ( SFO) Practitioners should take the LSD’s remit into account when assessing potential liabilities for their clients. In making charging...
cases cases cases cases describe situations in which alterations are made to the process employed under the Extradition Act 2003 ( EA 2003) for the purpose of extraditing an individual who has been found guilty of an offence in one territory (the convicting territory), transferred to another to serve their sentence (the imprisoning territory), and has absconded......
Fraudulent trading A defendant who operates as a sole trader, is in a partnership, or is in a trust commits the offence of fraudulent trading if they are knowingly involved in the carrying on of a company’s business either with intent to defraud creditors, or for any other fraudulent purposes. Where the offending conduct is by a company, the matter would be charged under section 993 of the Companies Act 2006 ( CA 2006). Section 9 of the Fraud Act 2006 ( Fr A 2006) widens the concept of a fraudulent business to situations where the business is not conducted by a company or other corporate body. This mirrors the offence applicable to fraudulent businesses run by companies and other corporate bodies, while extending criminal liability to non‑corporate traders, including: sole...
This Practice Note sets out the constituent parts of the offence of fraudulent trading in section 993 of the Companies Act 2006, and, drawing on case law, shows how the courts construe those parts. It covers the sanctions for fraudulent trading and potential sentences, reflecting any pertinent considerations and aggravating aspects. It also addresses ancillary orders available on conviction... Fraudulent trading A company commits the offence of fraudulent trading contrary to section 993 of the Companies Act 2006 ( CA 2006). Section 9 of the Fraud Act 2006 ( Fr A 2006) criminalises fraudulent trading by sole traders, partnerships, trusts and other non-corporate entities. See Practice Note: Fraudulent trading under the Fraud Act 2006. The CA 2006, s 993 offence is triable either in the magistrates' court or in the Crown Court... Elements of CA 2006 offence of fraudulent trading The offence comprises two limbs: ...
Offences relating to untrue declarations etc Under section 167(1)(a) of the Customs and Excise Management Act 1979 ( CEMA 1979), an individual commits an offence if, acting knowingly or recklessly, they: make or sign, procure the making or signing of, or submit or cause to be submitted to HMRC any declaration, notice, certificate, or other document that is untrue in a material particular. Under CEMA 1979, s 167(1)(b), an offence is likewise committed where a person, when required to respond to a customs officer, provides an answer that is untrue in a material particular. Both offences under s 167(1) are triable either way. CEMA 1979, s 167(3) sets out the same offence as s 167(1) but without any mental element, making it a strict liability offence. See Practice Note: Strict liability. An offence under s 167(3) is summary only and can therefore be tried solely in the...
The Food Safety and Hygiene ( England) Regulations 2013 ( FSH( E) R 2013), SI 2013/2996, have effect solely in relation to England. All enforcement action relating to food safety and food hygiene is pursued under these regulations. For an introduction to the scope of FSH( E) R 2013, see Practice Note: Introduction to the Food Safety and Hygiene ( England) Regulations 2013. Who do the FSH( E) R 2013 apply to? FSH( E) R 2013, SI 2013/2996, primarily concern 'food businesses' and 'food business operators'. Regulation 3 provides a presumption that specified food is intended for human consumption. The meanings of a 'food business' and a 'food business operator' are set out in Article 3 of Assimilated Regulation ( EC) 178/2002 of the European Parliament and of the Council of 28 January 2002, which lays down the general principles and...
Fraud by false representation This Practice Note considers the offence of fraud by false representation under section 2 of the Fraud Act 2006 ( Fr A 2006), read together with Fr A 2006, section 1. The constituent elements are: making a false representation dishonestly knowing that the representation is, or might be, untrue or misleading with the intention of obtaining a gain for the defendant or another, causing loss to another, or exposing another to the risk of loss The offence spans a wide range of behaviour. No actual gain or loss is required, and the representation need not in fact deceive anyone for Fr A 2006 liability to arise. The offence is complete once a false representation is made with the necessary knowledge, dishonesty and intent, and it is immaterial whether anyone is aware of it... You may also be...
This Practice Note sets out the requirements for establishing a general partnership under the Partnership Act 1890 ( PA 1890). It also addresses statutory limits on the partnership’s name, the trading disclosures partnerships must provide, and the duty to prepare and retain partnership accounts. Formation To create a partnership, there is no need to file documents, register details anywhere, or complete other formalities. Two people may form one simply by beginning to run a business together and sharing profits, provided the definition below is satisfied. For an overview, see flowchart: Forming a general partnership—flowchart. For how a partnership may come to an end, see Practice Notes: Ending a general partnership—dissolution otherwise than by the court and Ending a general partnership—dissolution by the court. ‘ Partnership’ is defined in the PA 1890 as ‘the relation which subsists between persons carrying on a business in common with a view of...
ARCHIVED This Practice Note has been archived and is not maintained. This note is for information only and concentrates on the Model Code formerly set out in the Listing Rules, issued by the Financial Conduct Authority ( FCA), which a company with a premium listing of equity shares was previously required to follow. It curtailed dealings in the company’s securities by persons discharging managerial responsibilities. The FCA removed the Model Code following implementation of the Market Abuse Regulation. ICSA, the GC100, the QCA and other market participants released a guidance note and various specimen dealing codes for use by listed and quoted companies from 3rd July 2016. See ICSA, GC100, QCA: Market Abuse Regulation ( MAR) dealing code and policy document. Market Abuse Regulation In November 2015, the FCA issued a consultation paper outlining proposals for amendments to the FCA Handbook needed to implement the EU Market Abuse...
Funding options When establishing a joint venture ( JV), the parties must decide how it will be financed, both at the outset and throughout the life of the arrangement. Although this note focuses on the key funding issues typically arising in corporate JVs, the overarching principles are relevant to all JV structures. The selection of finance methods may turn on: the parties’ commercial aims the comparative resources available to each party whether the parties intend and are able to finance the JV themselves or if external finance will be required, and tax considerations A joint venture company ( JVC) is usually financed, initially and on an ongoing basis, by a combination of the following methods: The joint venture agreement ( JVA) should specify how the JV’s initial and future funding needs will be met......
Introduction This Practice Note examines the policing and enforcement of the UK listing framework by the FCA. It outlines the FCA’s powers over an issuer for contraventions of the UK Listing Rules ( UKLR), the Prospectus Rules: Admission to Trading on a Regulated Market ( PRM), the transparency regime set out in the Disclosure Guidance and Transparency Rules ( DTR), and the obligations to disclose under Articles 17, 18 and 19 of the UK Market Abuse Regulation (disclosure requirements). The role of the FCA The Financial Conduct Authority ( FCA) supervises financial services firms and financial markets in the UK. Its remit, aims, powers and duties are defined in the Financial Services and Markets Act 2000 ( FSMA 2000). FSMA 2000, s 1B provides that the FCA’s overarching strategic objective is to ensure that financial markets function well. The FCA also serves as the UK’s...
Rules and guidance The statutory framework for amending, correcting or revising defective accounts and reports is contained in Part 15 of the Companies Act 2006 ( CA 2006). Detailed rules on the process for companies to revise their accounts and reports under CA 2006 are laid down in the Companies ( Revision of Defective Accounts and Reports) Regulations 2008, SI 2008/373 (as amended) (the 2008 Regulations), made pursuant to CA 2006, s 454. Those 2008 Regulations were later modified by the Companies, Partnerships and Groups ( Accounts and Reports) Regulations 2015, SI 2015/980 ( C, P and G ( Accounts and Reports) Regs 2015). The 2015 instrument implemented chapters 1–9 of the EU Accounting Directive 2013/34/ EU and refreshed and consolidated existing law (including CA 2006) on the form and content of company accounts. The C, P and G ( Accounts and Reports) Regs 2015 took...
Holding a general meeting of a private company or an unlisted public company This Practice Note outlines the legal framework, guidance and common practice for convening and running a general meeting of a private company or an unlisted public company. Members may call and hold a general meeting at any time, and as often as needed within a year, to pass resolutions that implement changes or authorise specific actions. The Companies Act 2006 ( CA 2006) sets out the detailed rules for convening and conducting such meetings. In addition, a company must follow any provisions in its articles of association concerning the calling of general meetings. Further obligations under the CA 2006 apply where a public company is a traded company. Accordingly, this Practice Note focuses on the law and practice for general meetings of private companies and untraded public companies. For guidance on...
Practice Note This Practice Note outlines the significant revisions made to the City Code on Takeovers and Mergers ( Code) in September 2011. The reforms chiefly sought to curb perceived tactical benefits enjoyed by certain hostile (unrecommended) bidders and to refine the conduct of offers by giving fuller regard to those affected by a takeover beyond offeree shareholders, including employees and other affected parties. This Practice Note concentrates on the principal September 2011 modifications to the Code, preserving the same focus and scope. It does not address or analyse any later changes to the Code or subsequent updates. Material amendments took effect on Monday, 19 September 2011 ( Implementation Date). Putting these measures into effect, through the release of a new version of the Code (the tenth edition), followed an extensive consultation exercise initiated by The Panel on Takeovers and Mergers ( Panel) in...
STOP PRESS: A major overhaul of the UK listing regime took effect on 29 July 2024, including scrapping the premium and standard listing segments and introducing a single listing category covering equity shares in commercial companies. That commercial companies category is strongly disclosure‑led and sits alongside other listing categories, namely the shell companies, secondary listing and closed ended investment fund categories. To implement the reforms, a new UK Listing Rules sourcebook came into force and the previous Listing Rules sourcebook was revoked. For further information, see Practice Note: Reform of the UK listing regime—fundamentals. This Practice Note describes the regime prior to 29 July 2024. It gives a general overview of a listed company’s financial reporting obligations as regards financial reporting under the Listing Rules and the Disclosure Guidance and Transparency Rules ( DTR). These obligations are in addition to a company’s general legal...
A company’s duties concerning audits and auditors are set out in Part 16 of the Companies Act 2006 ( CA 2006). Under the CA 2006, members of quoted companies gained the right to demand publication on the company’s website of any of their concerns relating to: the audit of the company’s accounts, the auditor leaving the company. This Practice Note applies solely to quoted companies. Quoted companies are those with shares officially listed in the UK or the EEA, or admitted to trading on the New York Stock Exchange or NASDAQ ( AIM companies are excluded from the definition)......
Practice Note This Practice Note sets out a summary of the aims, nature and breadth of the disclosure exercise undertaken by a seller when disposing of shares in a private limited company, or on a sale of a business together with its assets (the target). Disclosure sits at the heart of the sale process, and both sides should appreciate the significant time and effort needed to deliver it properly. With suitable professional support, the parties can reduce or manage the risks that might otherwise emerge throughout the transaction... The seller must analyse every warranty closely with its advisers and decide what matters ought to be disclosed against each one, as poor or incomplete disclosure can leave the seller open to breach of warranty claims and associated liabilities. The seller’s solicitors will co‑ordinate the disclosure workstream and, working alongside the seller and its...
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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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