CILEX Professional Qualification (CPQ) Advanced Stage: Civil and Criminal Litigation Syllabus

Distinguish 'disclosure' from 'inspection' of documents.

Disclosure (CPR 31.2) is stating that a document exists or has existed, usually by serving a list (Form N265). Inspection (CPR 31.3) is the right of the other party to actually see and copy a disclosed document, unless it is no longer in the disclosing party's control, inspection would be disproportionate, or the party has a right/duty to withhold it (e.g. privilege).

What is legal professional privilege, and what are its two branches?

Legal professional privilege protects certain confidential communications from disclosure. Its two branches are: legal advice privilege (confidential communications between lawyer and client for the purpose of giving or receiving legal advice) and litigation privilege (confidential communications with the client or third parties whose dominant purpose is pending or contemplated litigation).

What is the general rule for how a witness's evidence in chief is given at a civil trial?

Under CPR 32.2 a witness's evidence in chief at trial is normally given by their signed witness statement, which stands as their evidence in chief, unless the court orders otherwise. The witness then attends for cross-examination.

What is the overriding duty of an expert witness, and to whom is it owed (CPR Part 35)?

Under CPR 35.3 an expert has an overriding duty to help the court on matters within their expertise, and this duty overrides any obligation to the person from whom the expert has received instructions or by whom they are paid. Expert evidence is restricted to what is reasonably required and requires the court's permission.

What is a 'single joint expert' and when is one typically used?

A single joint expert (CPR 35.7) is an expert instructed jointly by two or more parties to give evidence on an issue. The court may direct one where the issue is not central or substantial, commonly on the fast track, to save costs and reduce duplication.

What is a Part 36 offer and what is the key costs consequence if a claimant beats its own offer at trial?

A Part 36 offer is a formal offer to settle made under CPR Part 36. If a claimant obtains a judgment at least as advantageous as its own Part 36 offer, the court will normally order, from the end of the relevant period: indemnity-basis costs, enhanced interest of up to $10\%$ above base rate, and an additional amount of up to $10\%$ of the sum awarded.

What is the difference between a final judgment in default, summary judgment, and a judgment after trial?

Default judgment is entered because the defendant failed to respond in time. Summary judgment is given without a full trial because there is no real prospect of success/defence. A judgment after trial is given after the court hears all the evidence and submissions and determines the issues on their merits.

On what grounds is permission to appeal granted in civil cases?

Under CPR 52.6 permission to appeal will be granted only where the court considers the appeal would have a real prospect of success, or there is some other compelling reason for the appeal to be heard.

What are the main methods of enforcing a money judgment in civil proceedings?

Methods include: a writ/warrant of control (taking control of goods via enforcement officers/bailiffs), a third party debt order (formerly garnishee), a charging order over property (which may lead to an order for sale), an attachment of earnings order, and insolvency proceedings (bankruptcy or winding up).

What is the standard of proof in a civil claim, and how is it expressed?

The standard of proof in civil cases is 'the balance of probabilities' — the claimant must prove that its version of events is more likely than not to be true (i.e. greater than $50\%$ probability). This contrasts with the criminal standard of beyond reasonable doubt.

Under PACE 1984, what is the maximum period a suspect may be detained without charge for an indictable offence, and how is it extended?

The basic limit is 24 hours from the 'relevant time'. A superintendent may authorise up to 36 hours. A magistrates' court may issue warrants of further detention extending detention up to a maximum of 96 hours in total. (Terrorism cases are governed by separate, longer limits.)

What are the PACE 1984 requirements for a lawful arrest without warrant by a constable under s.24?

A constable may arrest without warrant anyone who is, is about to, or is in the act of committing an offence, or whom the constable reasonably suspects of doing so. The arrest must also be reasonably believed to be 'necessary' on one of the statutory grounds (e.g. to ascertain name/address, prevent harm, allow prompt and effective investigation, prevent disappearance) under s.24(5).

What detention rights does a suspect have on arrival at a police station under PACE?

The suspect has the right to have someone informed of their arrest (s.56), the right to free and independent legal advice (s.58), and the right to consult the PACE Codes of Practice. A custody officer must open a custody record and inform the detainee of these rights; they can be delayed only in limited circumstances for indictable offences.

What is the threshold test the CPS applies when deciding whether to charge a suspect (the Full Code Test)?

The Full Code Test has two stages: (1) the evidential stage — is there sufficient evidence to provide a realistic prospect of conviction? and (2) the public interest stage — is a prosecution required in the public interest? Both must be satisfied to charge.

How are criminal offences classified by mode of trial in England and Wales?

Three categories: (1) Summary only offences — tried only in the magistrates' court (e.g. common assault, most driving offences); (2) Either-way offences — may be tried in the magistrates' or Crown Court (e.g. theft, ABH); (3) Indictable only offences — tried only in the Crown Court (e.g. murder, robbery, rape).

Outline the 'plea before venue' and 'allocation' procedure for an either-way offence.

The defendant is first asked to indicate a plea (plea before venue). If they indicate guilty, the magistrates proceed to sentence or commit for sentence. If not guilty (or no indication), the court conducts allocation: it decides if its sentencing powers are adequate; if so it offers summary trial, and the defendant may consent or elect Crown Court trial. If the court declines jurisdiction, the case goes to the Crown Court.

What is the general right to bail and where is it found?

Under s.4 of the Bail Act 1976 there is a presumption (a prima facie right) in favour of bail for a defendant in criminal proceedings. The right may be rebutted where one of the statutory exceptions applies.

State the main grounds for refusing bail for an imprisonable offence under the Bail Act 1976.

For an indictable/either-way imprisonable offence, bail may be refused where there are substantial grounds for believing the defendant would: (a) fail to surrender to custody; (b) commit further offences while on bail; or (c) interfere with witnesses or otherwise obstruct the course of justice. The court considers factors such as nature/seriousness of the offence, character, community ties and previous bail record.

What conditions may a court attach to bail, and for what purposes?

Conditions may be imposed to address the bail exceptions, e.g. a surety or security, residence at a given address, a curfew, reporting to a police station, surrender of passport, electronic tagging, or non-contact with witnesses. Conditions must be necessary to prevent failure to surrender, further offences, or interference with witnesses.

What is the standard custody time limit for an either-way or indictable offence awaiting Crown Court trial?

The custody time limit before the start of a Crown Court trial is generally 182 days (less any period already in custody before committal/sending), after which the defendant must be released on bail unless the prosecution successfully applies to extend it on good and sufficient cause with due expedition.

How does an indictable-only offence proceed through the magistrates' court?

Under s.51 of the Crime and Disorder Act 1998 an indictable-only offence is 'sent' immediately by the magistrates to the Crown Court at the first hearing without any consideration of the evidence (no committal). The magistrates deal only with bail and legal aid; the trial and plea take place in the Crown Court.

What is a Plea and Trial Preparation Hearing (PTPH) in the Crown Court?

The PTPH is the first hearing in the Crown Court after a case is sent. The defendant is arraigned (the indictment is put and a plea taken). If a guilty plea is entered, the court proceeds to sentence; if not guilty, the court gives directions to prepare the case for trial, fixing a trial date and timetable.

Who determines questions of law and questions of fact in a Crown Court trial?

The judge determines all questions of law (e.g. admissibility of evidence, legal directions) and the jury of 12 determines all questions of fact and delivers the verdict. The judge directs the jury on the law and the jury applies the law to the facts as they find them.

What are the five purposes of sentencing for adults under s.57 of the Sentencing Act 2020?

(a) The punishment of offenders; (b) the reduction of crime (including by deterrence); (c) the reform and rehabilitation of offenders; (d) the protection of the public; and (e) the making of reparation by offenders to persons affected by their offences.

What is the scale of sentence reductions for a guilty plea under the Sentencing Council guideline?

A reduction of up to one-third ($\tfrac{1}{3}$) is given for a guilty plea entered at the first stage of proceedings. This reduces to a maximum of one-quarter ($\tfrac{1}{4}$) after that, sliding down to a maximum of one-tenth ($\tfrac{1}{10}$) for a plea entered at the door of the court or during trial.

What is the general maximum custodial sentence a magistrates' court can impose for a single either-way offence?

A magistrates' court can impose up to 6 months' custody for a single either-way offence (and historically up to 12 months for two or more either-way offences). If its sentencing powers are inadequate it may commit the offender to the Crown Court for sentence.

What is the threshold for imposing a custodial sentence under the Sentencing Act 2020?

The 'custody threshold' (s.230): a court must not pass a custodial sentence unless it is of the opinion that the offence (or combination of the offence and associated offences) was so serious that neither a fine alone nor a community sentence can be justified. The sentence must also be for the shortest term commensurate with the seriousness.

What are the routes of appeal from a decision of the magistrates' court?

A convicted defendant may appeal to the Crown Court against conviction and/or sentence (a full rehearing, available as of right after a not-guilty plea; sentence-only after a guilty plea). Alternatively, either party may appeal to the High Court (Divisional Court) by way of 'case stated' on a point of law or jurisdiction, or seek judicial review.

What is the test for the Court of Appeal (Criminal Division) to allow an appeal against conviction from the Crown Court?

Under s.2 of the Criminal Appeal Act 1968 the Court of Appeal shall allow an appeal against conviction if it thinks the conviction is 'unsafe', and shall dismiss it in any other case. Appeal requires leave (permission), usually from a single judge.

State the standard and burden of proof in a criminal trial.

The legal (persuasive) burden is generally on the prosecution to prove guilt, and the standard is 'beyond reasonable doubt' (so the jury/bench is 'sure' of guilt). This reflects the presumption of innocence under the 'golden thread' principle in Woolmington v DPP [1935].

What is hearsay evidence in criminal proceedings and when is it admissible?

Hearsay is a statement, not made in oral evidence in the proceedings, that is relied on as evidence of the matter stated. Under s.114 of the Criminal Justice Act 2003 it is admissible only if: a statutory provision makes it admissible, a common-law exception preserved by s.118 applies, all parties agree, or the court is satisfied it is in the interests of justice to admit it.

When may the court draw adverse inferences from a suspect's silence under the Criminal Justice and Public Order Act 1994?

Adverse inferences may be drawn under: s.34 (failure when questioned/charged to mention a fact later relied on in defence which the suspect could reasonably have been expected to mention); s.36 (failure to account for objects, substances or marks); and s.37 (failure to account for presence at a place). No conviction may be based 'solely' on such an inference, and the proper caution must have been given.