SQE - Criminal Law and Practice (copy)

Who can serve as a judge in the Magistrates' Court?

District Judge, Deputy District Judge, or two to three lay magistrates with a legal adviser.

What is the sentencing power of the Magistrates' Court?

Up to 6 months for summary offences, 12 months for either-way offences, and unlimited fines (subject to statutory limits).

Who presides over the Crown Court?

Circuit Judge, High Court Judge, or Recorder.

What is the role of the High Court (kings Bench Division) in criminal matters?

It handles appeals by way of case stated and judicial review from the Magistrates' Court and Crown Court (in its appellate capacity).

What does the Court of Appeal (Criminal Division) handle?

Appeals from the Crown Court on conviction, sentence, or other significant rulings.

What are the standard directions for summary-only offences?

• Within 20 Days of Not Guilty Plea:

  • Prosecution must serve notice to introduce bad character or hearsay evidence.

• Within 10 Business Days of Bad Character/Hearsay Notice:

  • Defence must indicate if it opposes the application.

• Within 10 Business Days of Prosecution Disclosure:

  • Defence must serve a defence statement if one is to be provided.

  • Defence must apply to introduce bad character of a prosecution witness.

• Within 5 Business Days of Witness Statement Service:

  • Defence must make any objections to witness statements being read at trial.

• As Soon as Reasonably Practicable:

  • Defence to notify if intending to rely on hearsay evidence.

• At Least 10 Business Days Before Trial:

  • Defence to serve any statements if a witness is not to testify live.

  • Skeleton arguments for any point of law should be submitted.

• 10 Business Days Before Trial:

  • Certificate of Readiness must be served by both prosecution and defence.

Summary Only Offences

Offences that are tried only in a magistrates' court.

• Assault

• Battery

• Simple criminal damage (value of £5,000 or less)

• Attempt to commit simple criminal damage (£5,000 or less)

• Attempt to commit a summary-only offence

Either-Way Offences

Offences that can be tried in either the magistrates' court or the Crown Court, depending on the severity.

• Theft – s. 1, Theft Act 1968

• Burglary – s. 9(1)(a) or s. 9(1)(b), Theft Act 1968

• Fraud

  • By false representation

  • By abuse of position

  • By failing to disclose

• Assault occasioning actual bodily harm – s. 47, OAPA 1861

• Wounding or inflicting grievous bodily harm – s. 20, OAPA 1861

• Simple criminal damage (value exceeds £5,000)

• Simple arson

Indictable Only Offences

Offences that must be tried in the Crown Court.

• Robbery – s. 8, Theft Act 1968

• Wounding or causing grievous bodily harm with intent – s. 18, OAPA 1861

• Aggravated burglary – s. 10, Theft Act 1968

• Aggravated arson

• Aggravated criminal damage

• Murder (where voluntary manslaughter may be an outcome)

• Involuntary manslaughter

  • Unlawful act manslaughter

  • Manslaughter by gross negligence

What are the primary responsibilities of the custody officer at the police station?

The custody officer, of at least sergeant rank, must:

• Authorise continued detention.

• Inform the detainee of their rights.

• Conduct a risk assessment and manage the detainee’s welfare.

• Ensure the grounds for detention are valid or release the detainee if they cease to exist.

What information must be included in a custody record?

The custody record must include:

• Reason for arrest and circumstances.

• Necessity of the arrest.

• Comments made by the detainee. A solicitor can consult the custody record as soon as practicable.

What are the detention review time limits?

First review within 6 hours of detention,

subsequent reviews every 9 hours.

A review officer (inspector or above), not involved in the investigation, must ensure that detention is still necessary.

What is the initial detention time limit under PACE?

The maximum period of detention without charge is 24 hours from the relevant time (arrival at the station or 24 hours after arrest).

When and how can detention be extended beyond 24 hours?

For indictable offences, detention can be extended to 36 hours by a superintendent if:

• Detention is necessary to secure or obtain evidence.

• The investigation is diligent and ongoing. The extension must be authorised before the initial 24 hours expires.

Detention Time Frames for Review and Extension

1. Initial Detention Limit:

• 24 hours from the relevant time (arrival at station or 24 hours after arrest).

2. First Review of Detention:

• 6 hours after detention is first authorised by the custody officer (sergeant rank).

3. Subsequent Reviews:

• Every 9 hours following the first review.

• Conducted by a review officer of at least inspector rank.

4. Extension to 36 Hours (Indictable Offences):

• Requires authorisation from an officer of Superintendent rank or above.

• Must be approved before the 24-hour limit expires.

5. Extension Beyond 36 Hours (Indictable Offences):

• Magistrates’ court can authorise further detention up to 96 hours in 36-hour increments.

• Grounds include securing or preserving evidence and diligent investigation.

When must a suspect be reminded of their right to legal advice?

Before an interview, intimate sample or drug search, and identification procedures (parade or video).

Who can authorise a delay to the right to legal advice, and under what conditions?

A superintendent or higher can delay if:

• The suspect is held for an indictable offence, and

• There are reasonable grounds for believing legal advice will lead to interference with evidence/others, alerting accomplices, or hindering property recovery.

How long can the police delay a suspect's right to legal advice?

Up to 36 hours.

Under what conditions and by whom can informing someone of a suspect’s arrest be delayed?

An inspector can delay if notifying would likely interfere with evidence/others, alert accomplices, or hinder property recovery.

The offence must be indictable and can only be delayed up to a maximum of 36 hours.

Who cannot serve as an appropriate adult?

Those suspected of the offence, witnesses, victims, police employees, or estranged parents (if objected to by the juvenile).

What must occur before a police interview can begin?

The suspect must be cautioned.

Under PACE, who can authorise an interview if the suspect’s fitness is impaired?

A Superintendent or higher-ranking officer.

What is "oppression" under s 76(2) of PACE 1984, which can lead to excluding confessions?

Oppression includes torture, inhuman or degrading treatment, or the use/threat of violence.

What are the general disclosure obligations under PACE for police interviews, and what information is a solicitor entitled to see before the interview?

Under PACE Code C, there is no general "right to disclosure" for the defence. However, before an interview, a solicitor is entitled to:

1. Significant Statements: Any statement by the suspect that could be used in evidence, especially direct admissions of guilt (i.e., confessions), must be disclosed.

2. Custody Record: A record of the suspect’s detention in custody, including any notable events or welfare concerns, should be available to the solicitor.

3. Sufficient Case Information: The solicitor must be given enough information to understand:

   • The nature of the offence for which their client is suspected.

   • Why their client is suspected of committing that offence.

The solicitor’s role is to use this information to advise the client effectively, balancing the client’s best interests with the police’s interest in securing an untainted account from the suspect.

What are the types of adverse inferences under the Criminal Justice and Public Order Act 1984?

• s34: Failure to mention a fact later relied on in trial.

• s36: Failure to account for a mark, object, or substance.

• s37: Failure to explain presence at a crime scene.

What must happen for an inference to be drawn under Section 34?

The suspect must have been cautioned, and it must have been reasonable for them to mention the fact during questioning.

When can an inference be drawn under section 36?

if a suspect fails to account for an object, substance, or mark found on them during arrest, provided they were given a special warning.

When can an inference be drawn under section 37?

if a suspect fails to explain their presence at a specific place when the offense was committed, provided they were given a special warning.

What is the "special warning" requirement?

Under sections 36 and 37, a special warning requires informing the suspect about the offense, the fact they are asked to account for, and that a court may draw an inference if they fail to explain.

Which law and guidelines address reliability in visual identification evidence?

PACE Code D during investigation and Turnbull guidelines at trial.

Under Code D, when is an identification procedure required?

When an eye-witness has identified or claims the ability to identify a suspect, and the suspect disputes being the person identified.

What are the primary identification procedures under PACE Code D?

Video identification

Identification parade

Group identification

Confrontation by an eye-witness.

What is VIPER in the context of video identification?

VIPER (Video Identification Parade Electronic Recording) is a system where suspects are filmed and matched with lookalikes for identification.

What is the consequence of breaching Code D?

The defendant may apply to exclude the evidence under s 78 PACE 1984 if the breach affects the fairness of the proceedings.

Visual Identification Procedures Summary

• Video Identification: Witnesses view moving images of the suspect alongside lookalikes using the VIPER system.

• Identification Parade: The suspect is presented in a line up with at least eight similar individuals. Witnesses may request to hear the suspect speak or adopt specific poses.

• Group Identification: The suspect joins an informal group in a public space for observation by the witness.

• Confrontation by an Eye-Witness: The eye-witness confronts the suspect in a police station, where they are informed the person may or may not be the suspect, ensuring impartiality in identification.

What is the rank of Officer for Identification Procedures

Identification Officer: An officer not below the rank of Inspector is responsible for arranging and conducting identification procedures. This officer must be independent of the investigation to ensure impartiality and integrity in the process.

Are all suspects entitled to free legal advice at the police station?

Yes, all suspects are entitled to free legal advice at the police station, regardless of their means.

What does the means test assess?

The means test assesses the defendant’s financial eligibility for public funding based on their income and capital.

Defendants under 18 years old or those on specified welfare benefits automatically pass the means test.

What is the merits test?

The merits test determines whether it is in the interests of justice for the defendant to be legally represented.

Which summary offences do the police have discretion to charge without involving a Crown Prosecutor?

The police can charge summary offences like minor road traffic offences, low-value criminal damage (under £5,000), and some offences under the Public Order Act 1986.

How long does the prosecution have to bring a charge for a summary-only offence?

For summary-only offences, charges must be brought within six months of the date of the alleged offence.

Is there a time limit for charging someone with an indictable offence?

No, there is no time limit for charging an accused person with an indictable offence.

What does it mean when a defendant is on remand?

It means the defendant is obliged to return to court to continue their case and can either be in custody or on bail in the community.

What are the main three grounds for objecting to bail for indictable offences?

1) Failure to attend court / surrender
2) Committing further offences while on bail.
3) Interfering with witnesses or obstructing justice.

When does the automatic right to bail not apply?

It does not apply to defendants appealing their conviction or sentence and those being committed for sentence from the Magistrates' Court to the Crown Court.

it is still available in these cases but is not an automatic right

What happens when a defendant breaches bail conditions?

The defendant may be arrested under s.7 of the Bail Act 1976 and their bail status reconsidered, potentially leading to objections based on risk of reoffending or absconding.

What must the court consider before attaching a bail condition?

Whether the condition is relevant, proportionate, and enforceable.

What is a 'surety' in bail conditions?

A person offering money to ensure the defendant's return to court, forfeiting the amount if the defendant absconds.

What distinguishes a 'security' from a 'surety' for bail purposes?

Security involves the defendant or another person providing a depositable asset / money, while a surety is a promise by a third party.

How can bail conditions be varied?

Either party can apply to vary conditions with advance notice to the other party, usually through the court that granted bail.

Is it a criminal offence to breach a bail condition?

No, but it is a criminal offence to fail to surrender to custody without reasonable cause.

What is the potential penalty for failing to surrender to custody ('FTS')?

Up to three months' imprisonment and/or an unlimited fine if tried summarily, or up to 12 months and/or an unlimited fine on indictment.

How many attempts can a defendant have to apply for bail in the magistrates' court?

Generally, two attempts, with the possibility to appeal once to the Crown Court.

When must a bail appeal to the Crown Court be heard after an appeal notice is served?

Within one business day.

What is the custody time limit for trials of summary-only or either-way offences in the magistrates' court?

56 days from first appearance.

The remand must be renewed with 8 days of the first appearance, and thereafter every 28 days until the Trial.

What is the custody time limit for trials in the Crown Court of indictable-only or either-way offences?

182 days, less any time spent in custody before the case was sent to the Crown Court.

How is the start of a trial defined in the magistrates' court?

As the moment the court begins hearing prosecution evidence.

How is the start of a trial defined in the Crown Court?

As the moment a jury is sworn.

How often must a defendant be brought back to court if remanded in custody and their trial is in the magistrates' court?

First within eight days of their first appearance, then every 28 days.

What is the purpose of the Preparation for Effective Trial (PET) form?

To manage case progression by recording contact details, trial issues, witness details, and potential applications.

What is the MG6C schedule used for?

It lists unused material in Crown Court cases for the prosecutor to review and decide on disclosure.

When does the duty of initial disclosure arise in the magistrates' court?

When a defendant pleads not guilty, and the case is adjourned for summary trial.

What is a defence statement under s.5 CPIA 1996?

A defence statement is a written document served by the defendant, setting out the nature of their defence, matters they take issue with in the prosecution's case, and why.

Compulsory in crown court

Is serving a defence statement mandatory in the magistrates' court?

No, it is not mandatory in the magistrates' court, but failure to serve one means the defence cannot apply for specific disclosure.

What is the time limit for serving a defence statement in the Crown Court?

Within 28 days of the prosecution's compliance (or purported compliance) with initial disclosure.

How long does a defendant have to serve a defence statement in the magistrates' court if they choose to do so?

Within 10 business days of the prosecution's compliance (or purported compliance) with initial disclosure.

What must be included in a defence statement if it raises an alibi?

The statement must provide particulars, including the name, address, and date of birth of any alibi witness or any information to help identify and locate the witness.

What is the consequence under s.11 CPIA for failing to serve a defence statement?

The jury may draw adverse inferences, and the prosecution or co-defendant may comment on the failure.

What conditions must be met for the defence to make an application for specific disclosure?

The defence must serve a defence statement

the prosecution must have reviewed disclosure, and

the material must be capable of assisting the defence or undermining the prosecution case.

What steps should the prosecution take for third-party disclosure?

The prosecution should make a request for material from third parties that is believed to be relevant and retain it if necessary, seeking a summons if access is refused.

What is the Plea and Trial Preparation Hearing (PTPH)?

The PTPH is a key pre-trial hearing in the Crown Court where the defendant enters a plea, and directions are given for trial preparation.

When must a PTPH occur in Crown Court?

A PTPH must occur within 28 days after the case is sent to the Crown Court from the magistrates' court.

When is evidence served in the Crown Court?

Evidence must be served within 50 days if the defendant is in custody or 70 days if the defendant is on bail after being sent for trial.

This applies after the case is transferred from the magistrates' court to the Crown Court.

Who is eligible for special measures under the Youth Justice and Criminal Evidence Act 1999?

Eligible witnesses include:

• All witnesses under 18 at the time of trial.

• Those with a mental disorder, significant impairment of intelligence, or physical disability.

• Those in fear or distress about giving evidence.

• Adult complainants of sexual offences and certain offences under the Modern Slavery Act 2015.

What can happen if a witness disobeys a witness summons?

The court can issue a warrant for the arrest of the witness, and failure to comply can be punishable as contempt of court.

What is meant by 'judicial notice'?

When a judge or jury accepts a fact as known or can verify it through reliable sources without formal proof in court.

What makes evidence admissible?

It must be relevant (logically probative of a fact in issue), not subject to exclusionary rules, and not so poor in quality that no reasonable reliance can be placed on it.

What is 'real evidence'?

Objects or things brought to court for inspection, sometimes accompanied by a witness to verify their origin.

How does the burden shift in a case involving duress as a defence?

The defence must raise sufficient evidence to make duress a live issue, but the prosecution retains the burden to disprove it beyond a reasonable doubt.

In a criminal trial, when can the defence raise an alibi?

The defence can raise an alibi, but it is the prosecution's responsibility to disprove the alibi beyond reasonable doubt.

What does s.78 of PACE regulate, and what does it allow courts to do?

s.78 of PACE regulates the exclusion of prosecution evidence if admitting the evidence would have an adverse effect on the fairness of the proceedings due to how it was obtained it includes significant and substantial breaches of the codes.

When can a submission of 'no case to answer' be made?

During trial, after the prosecution presents all evidence; it asserts that there is insufficient evidence for any reasonable court to convict the defendant.

What is an abuse of process application?

It is used to stay proceedings if continuing the trial would be unfair or offend the court’s sense of justice, either due to the impossibility of a fair trial or undermining public confidence in the justice system.

The defence must prove on the balance of probabilities that continuing the case would be an abuse of process.

What is the test for a submission of no case to answer as set out in R v Galbraith [1981]?

• First limb: If there is no evidence that the crime alleged has been committed by the defendant, the judge must stop the case.

• Second limb: If there is some evidence but it is tenuous (e.g., inherently weak, vague, or inconsistent), the judge must consider whether the prosecution evidence, taken at its highest, is such that a properly directed jury could not reasonably convict. If so, the judge should stop the case. However, if the strength or weakness of the evidence depends on issues of witness reliability or credibility, the case should proceed to trial for the jury to decide.

When can an application to exclude evidence under s.78 PACE be made?

An application can be made before the trial, at the commencement of the trial, or just before the prosecution seeks to admit the evidence.

what factors might lead to the exclusion of evidence under s.78 PACE?

Factors include breaches of the PACE Codes of Practice, such as improper denial of legal advice, failure to caution a suspect, or not providing an appropriate adult for juveniles or vulnerable suspects. Significant and substantial breaches are more likely to lead to exclusion.

What is a voir dire in the context of s.78 PACE applications?

A voir dire is a mini-trial or 'trial within a trial' held to resolve factual disputes relevant to a s.78 application. In the Crown Court, it is conducted in the absence of the jury.

What is the general rule regarding hearsay evidence?

The rule against hearsay states that a statement made out of court may not be presented in evidence as proof of its contents. (it is not admissible)

It is an example of an exclusionary rule.

What are the four exceptions under s.114(1) of the CJA 2003 for hearsay admissibility?

a) Any statutory provision makes it admissible,
b) Any rule of law preserved by section 118 makes it admissible,
c) All parties to the proceedings agree to it being admissible,
d) The court is satisfied that it is in the interests of justice for it to be admissible.

What is the three-part test from R v Twist [2011] for determining hearsay?

1) Identify what relevant fact (matter) it is sought to prove.
2) Ask if there is a statement of that matter in the communication.
3) If yes, ask whether the maker intended the recipient or another person to believe or act upon the matter as true.

What are examples of evidence that are not considered hearsay? (and therefore admissible)

• Private diary entries intended for no one else,

• Evidence created entirely by devices (e.g., CCTV),

• Questions without statements of matter.

What are the three criteria that make a statement hearsay under the Criminal Justice Act 2003?

It is made out of court, the person who made it intended another person to believe it, and it is adduced as evidence of the matter stated (s.114(1) and s.115 CJA 2003).

What are the statutory exceptions to hearsay being inadmissible?

S116, 117 & 114 CJA 2003

the witness is unavailable (dead, unfit, outside UK, cannot be found, in fear – must be identified and not anonymous) (s.116);

it is a business document (s.117)- court has the discretion to exclude such a business document if it is satisfied that the statement’s reliability is doubtful (s.117(6) and(7)) – can include medical records / statement written down by the police; or

it is in the interests of justice to admit it (s.114(1)(d)).

What are the four main exceptions that make hearsay admissible?

• Statute (unavailable witness, business document or interest of justice)

• Common Law (public information etc)

• Agreement from all parties

• Court admits it in interest of justice

When is hearsay admissible due to the unavailability of a witness (s.116 CJA 2003)?

If the witness is dead, unfit to be a witness, outside the UK, cannot be found, or does not give evidence due to fear (with court leave).

The person must be identified though.

What is covered under the CJA 2003 s.117 regarding business documents?

Statements in documents are admissible if created or received in the course of business, provided certain conditions are met, including the knowledge of the person supplying the information.

What is the res gestae exception to admissibility of hearsay?

Under common law, Res gestae allows a statement as evidence if it was made by a person emotionally overpowered by an event, accompanied an act, or related to a physical/mental state. It excludes the possibility of concoction or distortion.

Statements made by the complainant in 999 calls or to officers immediately after the incident are often admissible, especially with body-worn camera footage as evidence.

What are the time frames for he prosecution to serve a notice to introduce hearsay evidence

Magistrates: The prosecution must serve the notice no later than 20 business days after a not guilty plea.

Crown: The prosecution must serve the notice no later than 10 business days after a not guilty plea.

Defendant must serve notice as soon as reasonably practicable

Objections: 10 business days after service of the notice

You do not need to give notice to introduce hearsay evidence under common law exceptions (such as public information, body of expertise, or res gestae) under the Criminal Justice Act 2003.

What is the definition of "bad character" under the Criminal Justice Act 2003 (CJA)?

Bad character refers to evidence of, or a disposition towards, misconduct on the defendant's part, which does not relate to the alleged offence or the investigation or prosecution of that offence. (s.98 CJA 2003)

Can evidence of previous acquittals be used as bad character evidence?

Yes, the prosecution can use previous acquittals to argue the defendant’s propensity for similar misconduct, but the defendant is not being punished for the previous offences. (Z [2000] 2 AC 483)