Solicitors Qualifying Examination (SQE) Criminal Law and Practice (FLK2) Syllabus

State the elements of the defence of loss of control (ss.54-55 Coroners and Justice Act 2009).

A partial defence to murder reducing it to manslaughter where: (1) the killing resulted from a loss of self-control; (2) caused by a qualifying trigger (fear of serious violence and/or things said/done amounting to circumstances of an extremely grave character giving a justifiable sense of being seriously wronged — sexual infidelity is excluded); and (3) a person of the defendant's sex and age with normal tolerance/self-restraint might have reacted similarly. The loss need not be sudden.

State the elements of diminished responsibility (s.2 Homicide Act 1957 as amended).

A partial defence to murder where the defendant had an abnormality of mental functioning that (1) arose from a recognised medical condition, (2) substantially impaired his ability to understand his conduct, form rational judgment, or exercise self-control, and (3) provides an explanation for the killing. The burden is on the defence on the balance of probabilities. Reduces murder to manslaughter.

When can the defence of intoxication be raised, and the basic/specific intent distinction (DPP v Majewski)?

Voluntary intoxication can negate mens rea only for SPECIFIC intent offences (e.g. murder, s.18, theft) — it may reduce liability to a basic intent fallback. It is NO defence to BASIC intent offences (e.g. assault, battery, s.20, criminal damage) because becoming intoxicated is itself reckless. Involuntary intoxication is a defence if it negated mens rea.

What are PACE Code G powers of arrest without warrant under s.24 PACE 1984?

A constable may arrest anyone who is about to commit/is committing/has committed an offence, or whom there are reasonable grounds to suspect of these. The arrest must also be NECESSARY on one of the s.24(5) grounds (the mnemonic COP PLAN: ascertain Name/Address, prevent physical injury, prevent loss/damage to property, prevent indecency/obstruction of highway, protect a child/vulnerable person, allow prompt and effective investigation, prevent disappearance).

What is the stop and search power under s.1 PACE 1984 and what does the constable need?

A constable may stop and search a person/vehicle in a public place for stolen or prohibited articles (e.g. offensive weapons, items for theft/burglary). He must have REASONABLE GROUNDS for suspicion. Before searching he must give (under s.2) GOWISELY: Grounds, Object, Warrant card, Identity, Station, Entitlement to a record, Legal power, and 'You are detained for a search'.

State the PACE detention time limits before charge for a standard (non-indictable-terrorism) suspect.

Initial maximum: 24 hours from the 'relevant time'. A superintendent may authorise extension to 36 hours for an indictable offence. A Magistrates' Court may issue warrants of further detention up to a maximum of 96 hours total. Detention must be reviewed by a review officer (inspector) at 6 hours then every 9 hours.

What are the conditions for searching premises without a warrant under ss.17, 18 and 32 PACE 1984?

s.17: entry to arrest or save life/limb. s.18: search of premises occupied/controlled by a person under arrest for an indictable offence, for evidence of that or a connected offence — needs an inspector's written authority (or after charge). s.32: search of an arrested person and premises where they were when/immediately before arrest, for evidence or items to aid escape.

State the suspect's three principal rights on arrival at the police station (PACE & Codes).

(1) The right to free and independent legal advice (s.58 PACE); (2) the right to have someone informed of the arrest (s.56); and (3) the right to consult the PACE Codes of Practice. The custody officer must inform the suspect of these rights, both orally and in writing, and they are recorded on the custody record.

When can the right to legal advice (s.58) be delayed, and for how long?

Only where the suspect is detained for an INDICTABLE offence and a senior officer (superintendent or above) has reasonable grounds to believe exercising it would lead to interference with evidence, harm to others, alerting other suspects, or hindering recovery of property. Maximum delay is 36 hours, and the right to consult a solicitor itself (not just a specific solicitor) is rarely lawfully delayed in practice.

What is the caution and what 'adverse inferences' can be drawn under the CJPOA 1994?

Caution: 'You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.' Adverse inferences may be drawn under: s.34 (failure to mention facts later relied on), s.36 (failure to account for objects/marks/substances), s.37 (failure to account for presence at a scene). No inference under s.34 if the suspect had no legal advice.

What is the appropriate adult and when must one be present at the police station?

An appropriate adult must be present to safeguard the interests of a juvenile (under 18) or a vulnerable adult (e.g. with a mental disorder). Their role is to advise, observe whether the interview is conducted fairly, and facilitate communication. They are NOT a legal adviser and communications with them are not privileged. An interview generally cannot proceed without one (except urgent cases under Annex C).

As a legal adviser, what are the three broad options when advising a suspect on whether to answer questions in interview?

(1) Answer questions (give a full account); (2) Go 'no comment' (remain silent); or (3) Provide a prepared written statement and then make no comment. The choice depends on the strength/disclosure of police evidence, the suspect's account and reliability, fitness for interview, and the risk of adverse inferences under s.34 CJPOA 1994.

What is the presumption regarding bail, and where is it found?

Under s.4 Bail Act 1976 there is a general presumption (right) to bail for defendants accused or convicted of an offence (subject to exceptions). This means the court must grant bail unless one of the statutory grounds/exceptions for refusing bail applies.

What are the main grounds for refusing bail for an indictable imprisonable offence?

Bail may be refused where there are substantial grounds for believing the defendant would, if released: (a) fail to surrender to custody; (b) commit further offences while on bail; or (c) interfere with witnesses or otherwise obstruct justice. Factors considered include the nature/seriousness of the offence, character, antecedents, community ties, and bail record.

What conditions can be attached to bail, and what happens on breach or failure to surrender?

Conditions (e.g. residence, curfew, reporting to a police station, surety, security, surrender of passport, non-contact) may be imposed where necessary to address bail risks. Failure to surrender (s.6 Bail Act 1976) is a separate offence; breaching a condition is not an offence but allows arrest under s.7 and may lead to remand in custody.

How are criminal offences classified for trial purposes, and how is each tried?

Three classes: (1) Summary-only offences (e.g. common assault, low-value criminal damage) — tried only in the Magistrates' Court; (2) Either-way offences (e.g. theft, ABH, burglary) — tried in either court following allocation; (3) Indictable-only offences (e.g. murder, robbery, s.18) — must be sent to the Crown Court for trial.

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

First the defendant indicates a plea (plea before venue). If GUILTY, the magistrates proceed to sentence or commit for sentence to the Crown Court. If NOT GUILTY (or no indication), the court conducts ALLOCATION (s.19 MCA 1980): it decides if its sentencing powers are adequate. If it accepts jurisdiction, the defendant may consent to summary trial or ELECT Crown Court trial by jury.

What sentencing limits guide the Magistrates' Court, and when may it commit for sentence?

The Magistrates' Court can impose up to 6 months' custody for a single either-way offence (12 months aggregate for two or more either-way offences). If, after summary trial/guilty plea, its powers are insufficient, it may commit the defendant to the Crown Court for sentence under s.14/s.18 Sentencing Act 2020.

What is the overriding objective of the Criminal Procedure Rules?

That criminal cases be dealt with JUSTLY — which includes acquitting the innocent and convicting the guilty, dealing with the prosecution and defence fairly, respecting the rights of the defendant (including the presumption of innocence and Art 6 ECHR), dealing with the case efficiently and expeditiously, and dealing with it in ways proportionate to its seriousness, complexity and severity. Parties have a duty to assist the court in furthering it.

State the prosecution's duties of disclosure under the CPIA 1996.

Initial (formerly 'primary') disclosure (s.3): the prosecution must disclose unused material that might reasonably be considered capable of undermining the prosecution case or assisting the defence case. There is a CONTINUING duty to review and disclose (s.7A). Material is gathered and listed by the disclosure officer on schedules (used and unused).

What is a defence statement, when is it required, and what must it contain?

A defence statement is COMPULSORY in the Crown Court and voluntary in the Magistrates' Court (s.5/s.6 CPIA 1996). It must set out the nature of the defence, matters of fact in issue with the prosecution and why, points of law, and details of any alibi (with witness details). Faults (late, incomplete, inconsistent) may lead to adverse inferences. It can trigger an application for further disclosure (s.8).

Explain the burden and standard of proof in a criminal trial (the 'golden thread').

The legal (persuasive) burden is generally on the PROSECUTION (Woolmington v DPP — the 'golden thread'), which must prove guilt BEYOND REASONABLE DOUBT (so that the tribunal is 'sure'). Where the defence bears a legal burden (e.g. insanity, diminished responsibility), the standard is the lower civil standard — the BALANCE OF PROBABILITIES.

Define hearsay evidence and state the gateways for its admission (s.114 CJA 2003).

Hearsay is a statement not made in oral evidence in the proceedings that is relied on as evidence of the matter stated. It is admissible only if: (a) a statutory provision makes it admissible (e.g. s.116 witness unavailable, s.117 business documents); (b) a preserved common law rule applies; (c) all parties agree; or (d) the court is satisfied it is in the INTERESTS OF JUSTICE to admit it (the safety-valve).

What is bad character evidence and what are the gateways for the DEFENDANT's bad character (s.101 CJA 2003)?

Bad character = evidence of misconduct (commission of an offence or other reprehensible behaviour) other than that connected with the offence charged. The seven gateways (s.101(1)(a)-(g)): (a) all parties agree; (b) defendant adduces it; (c) important explanatory evidence; (d) relevant to an important matter between defendant and prosecution (e.g. propensity); (e) substantial probative value between co-defendants; (f) correcting a false impression; (g) defendant has attacked another's character.

What is the test for excluding confession evidence under s.76 PACE 1984?

A confession must be excluded if the prosecution cannot prove BEYOND REASONABLE DOUBT that it was NOT obtained: (a) by oppression (torture, inhuman/degrading treatment, use/threat of violence); or (b) in consequence of anything said or done likely to render any resulting confession unreliable. If raised, the court must hold a voir dire and the burden is on the prosecution.

Compare s.76 and s.78 PACE 1984 for excluding evidence.

s.76 applies ONLY to confessions; if oppression/unreliability is made out the court MUST exclude (mandatory), with the burden on the prosecution. s.78 is a general DISCRETION to exclude ANY prosecution evidence if its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it — often used for breaches of PACE/Codes or improperly obtained evidence.

Outline the structure (order of events) of a criminal trial on a not guilty plea.

(1) Prosecution opening speech; (2) prosecution evidence (examination-in-chief, cross-examination, re-examination of each witness); (3) possible submission of no case to answer (Galbraith test); (4) defence case (defendant may give evidence) and any defence witnesses; (5) closing speeches (prosecution then defence); (6) in the Crown Court, the judge's summing up and direction; (7) verdict; (8) sentence if convicted.

State the Galbraith test for a submission of no case to answer.

A submission of no case to answer succeeds where: (1) there is NO evidence that the defendant committed the offence; OR (2) the prosecution evidence, taken at its highest, is so tenuous/inconsistent that a properly directed jury (or bench) could not properly convict on it. If there is some evidence on which a reasonable tribunal could convict, the matter must be left to the jury/magistrates.

State the five purposes of sentencing for adults under s.57 Sentencing Act 2020.

(1) Punishment of offenders; (2) reduction of crime (including by deterrence); (3) reform and rehabilitation of offenders; (4) protection of the public; and (5) making reparation by offenders to those affected by their offences. The court must also follow relevant Sentencing Council guidelines unless contrary to the interests of justice.

What credit (sentence reduction) is given for a guilty plea, and what threshold tests apply to custody and community orders?

Maximum credit of one-third for a guilty plea at the first stage of proceedings, sliding to one-quarter after that and one-tenth at the door of the court. A CUSTODIAL sentence may only be imposed where the offence is so serious that neither a fine nor a community sentence can be justified; a COMMUNITY order requires the offence to be serious enough to warrant it.

Summarise the routes of appeal from the Magistrates' Court and from the Crown Court.

From the Magistrates': the defendant may appeal to the CROWN COURT against conviction and/or sentence (rehearing); either party may appeal by way of CASE STATED to the High Court (Divisional Court) on a point of law/jurisdiction, or seek judicial review. From the Crown Court (trial on indictment): appeal lies to the COURT OF APPEAL (Criminal Division) against conviction (if 'unsafe') or sentence, usually with leave; a further appeal lies to the Supreme Court on a point of law of general public importance.