PI & Clinical Negligence analysis: In an appeal heard by Mr Justice Bourne, the High Court held that the arrests of a married couple, both of whom were serving Metropolitan Police officers, by Surrey Police were unlawful. The court found that the arresting officers had not given appropriate consideration to voluntary attendance for interview as a less intrusive alternative under section 24 of the Police and Criminal Evidence Act 1984 (PACE 1984) and Code G. The court stressed that the ‘necessity’ limb in PACE 1984, s 24 is an important constitutional safeguard, following a line of authority that stresses strict adherence to PACE 1984—an officer who gives no real consideration to alternatives runs the ‘plain risk’ of being found to have had no reasonable grounds to believe arrest was necessary. The court therefore allowed the liability appeal. This decision is an important reaffirmation of the strict operational limits on arrest powers. On costs, the court provided useful guidance as to the starting point in mixed personal injury claims, confirming that properly supported PI claims should attract QOCS protection. Bourne J concluded that the claimants’ pleaded and evidenced psychiatric injury claims meant the proceedings could properly be regarded as a personal injury action ‘in the round’ for QOCS purposes, and that the trial judge’s enforcement order permitting 70% of the defendant’s costs should not have been made, under the mixed-claim discretion in CPR 44.16. Written by Connor Wright, barrister, St Philips Chambers.

Commercial analysis: The Court of Appeal in Bains considered the proper approach to remedying material breaches of contract where contractual termination clauses are engaged and relied upon. Breach notices will require a cautious interpretation and parties would be well advised to clarify exactly what performance the contractual counter-party considers essential to remedy a breach. Bains confirms that actual performance will be necessary and merely stating an intention to perform will not go far enough. Questions of the extent of catch-up or restored performance required are left open after the decision. Written by James Saunders, barrister, at New Square Chambers.

In the aftermath of an incident occurring on a construction site, consider the following: Appoint an incident team If a hypothetical incident management team has already been appointed as part of the business’ incident planning regime, deploy this team immediately. Otherwise, appoint an incident management team immediately. Consider RIDDOR reporting requirements Ensure appropriate reporting is carried out in accordance with the requirements of RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013, SI 2013/1417). See Practice Note: Reporting of Injuries, Diseases and Dangerous Occurrences at Work Regulations 2013, SI 2013/1471 (RIDDOR)—general requirements. Allocate responsibilities Responsibilities must be divided/allocated among the team so that each incident team member has a clearly defined role and actions required can be carried out quickly and efficiently. Pay particular attention to communication between team members to avoid tasks being duplicated or slipping through the net altogether. Responsibilities may include: • isolation of machinery or closing a particular work area • liaising with employees/their representatives • briefing the media • speaking

This term refers to the process of creating a radioisotope. This is achieved when a stable element is bombarded with either neutrons or protons.

Activation products are materials made radioactive by neutron activation. Fission products and actinides produced by neutron absorption of nuclear fuel itself are normally referred to by their specific names, and activation products reserved for products of neutron capture by other materials, such as structural components of the nuclear reactor, the reactor coolant, control rods or materials in the environment.

Wholesale access to the network infrastructure through electronic equipment.

This Checklist summarises the issues to consider when assessing active and passive sales, as well as restrictions of those sales, in EU vertical agreements under Article 101 TFEU and the EU Vertical Block Exemption Regulation 2022/720 (VBER 2022). For detailed information regarding the VBER 2022, see further: The Vertical Block Exemption Regulation 2022/720. NOTE—This Checklist assumes the starting point is a vertical agreement containing territorial, customer or online sales restrictions. It is aimed at guiding an assessment of whether the relevant sales activity is active or passive, whether the restriction falls within a permitted exception under VBER 2022 and, if not, whether further self-assessment under Article 101 TFEU is required. The availability of VBER 2022 also depends on the general conditions for the block exemption being met, including the market share thresholds and the absence of other hardcore restrictions. When does the distinction matter? The first question to consider is whether the agreement contains territorial or customer restrictions for which the distinction between active and passive sales is relevant. The distinction is critical

This term refers to the offence committed by the party that promises or gives the bribe.

The Bribery Act 2010 (BA 2010) criminalises: • bribing another person (active bribery) • soliciting or accepting a bribe (passive bribery) • bribing a foreign public official, and • for a business or commercial organisation only, failing to prevent bribery The purpose of this Practice Note is to provide a general understanding of the active and passive bribery offences under BA 2010, ss 1, 2 and the offence of bribing a foreign public official under BA 2010, s 6; in short, the giving or receiving of bribes. It does not provide a summary of the corporate offence of failing to prevent bribery, which is covered in Practice Note: Failure to prevent bribery—the offence. This Practice Note should be read in conjunction with Practice Note: The Bribery Act 2010—an introductory guide. BA 2010 came into force on 1 July 2011. Conduct committed before the entry into force of BA 2010 is prosecuted under the old law, see Practice Notes: Corruption and common law bribery—pre-Bribery Act 2010 [Archived]

Generally, active devices refer to medical devices powered by electricity or any source of power other than that generated by the human body or gravity. Examples are examination lights, surgical microscopes, gas pressure regulators or blood pumps for heart-lung machines or devices for viewing diagnostic images such as ultrasound images. Under Regulation (EU) 2017/745 (EU MDR), ‘active device means any device, the operation of which depends on a source of energy other than that generated by the human body for that purpose, or by gravity, and which acts by changing the density of or converting that energy. Devices intended to transmit energy, substances or other elements between an active device and the patient, without any significant change, shall not be deemed to be active devices. Software shall also be deemed to be an active device’. UK legislation compounds the definition of an ‘active’ device with implantable devices.

Generally, active implantable medical devices (AIMDs) are powered devices (other than from the human body or gravity) that are inserted into a patient’s body partially or fully through a natural orifice or by surgical means, and are intended to remain in the patient’s body. For example, coronary pacemakers, cochlear hearing implants, infusion pumps or neurostimulators. The UK and EU legislative definitions differ and are as follows: The UK Medical Devices Regulations 2002 (MDR 2002), SI 2002/618, which implement Directive 90/385/EEC, the Active Implantable Medical Devices Directive in the UK, define AIMD as: ‘…a medical device which— • relies for its functioning on a source of electrical energy or a source of power other than that generated directly by the human body or by gravity; and • is intended to be totally or partially introduced into the human body (whether surgically or medically, including being introduced into a natural orifice) and which is intended to remain in the human body after completion of the surgical or medical procedure during which it is introduced, even if it is intended to administer a medicinal product or incorporates as an integral part a substance which, if used separately, would be a medicinal product.’ Under Regulation (EU) 2017/745, the Medical Devices Regulation (EU MDR), an active device and an implantable device are separately defined: ‘…active device means any device, the operation of which depends on a source of energy other than that generated by the human body for that purpose, or by gravity, and which acts by changing the density of or converting that energy. Devices intended to transmit energy, substances or other elements between an active device and the patient, without any significant change, shall not be deemed to be active devices. Software shall also be deemed to be an active device.’ ‘…implantable device means any device, including those that are partially or wholly absorbed, which is intended: • to be totally introduced into the human body, or • to replace an epithelial surface or the surface of the eye by clinical intervention and which is intended to remain in place after the procedure. Any device intended to be partially introduced into the human body by clinical intervention and intended to remain in place after the procedure for at least 30 days shall also be deemed to be an implantable device.’ Specific requirements for AIMDs are set out in Annex I of the EU MDR at Chapter 2, section 19.

Active investing involves continuous buying and selling of shares by the asset manager who needs to keep a frequent eye on market conditions. It is expensive in dealing fees, and needs to avoid being treated as trading by HMRC who might then charge tax on any profits.