SQE2 – Criminal law
Assessments
Assessment Details
SQE2 oral Advocacy
SQE2 written Legal drafting, legal writing, legal research, case and matter analysis
Core principles of criminal liability – Refer to SQE1 notes
SQE2 Assessment Specification Details
Specified criminal offences
Offences against the person Assault and battery
S47 Offences Against the Person Act 1861 (ABH)
S20 Offences Against the Person Act 1861 (inflicting GBH)
S18 Offences Against the Person Act 1861 (wound or cause GBH)
Theft offences S1 Theft Act 1968
S8 Theft Act 1968 (robbery)
S9 Theft Act 1968 (burglary)
S10 Theft Act 1968 (aggravated burglary)
Criminal damage Simple criminal damage
Aggravated criminal damage
Arson
Homicide Murder
Voluntary manslaughter
Involuntary manslaughter (unlawful act manslaughter, manslaughter by gross negligence)
Fraud By false representation
By abuse of position
By failing to disclose
l Other principles
Definition of the offence Actus reus
Mens rea
General defences Intoxication
Self defence / defence of another
Partial defences Loss of control
Diminished responsibility
Parties Principal offender
Accomplices
Joint enterprise
Inchoate offences Attempt to commit an offence
1
,Advising clients, including vulnerable clients, about the procedure and processes at the police station
Rights of a suspect being detained by the police for questioning
PACE codified many existing police powers, strengthened the safeguards of suspects and their welfare and introduced additional
laws governing evidence and procedure.
The Codes of Practice (COP) provide fundamental framework for operation of PACE, binding police officers and others (those
persons who are charged with duty to investigate offences and charge offenders e.g. customs officers). The COP are admissible in
evidence and must be taken into account by the Courts. Breaches of COP by police officers and other officers investigating the
offences may result in evidence obtained being ruled inadmissible in Court.
When arrested person arrives at police station, would (i) see custody officer, (ii) be informed of rights, (iii) have certain non-
intimate samples taken (intimate samples are removal of more than outer clothing and search of body cavities), (iv) may see
appropriate healthcare professional if necessary, (v) if detainee requests, he will speak to legal representative, (vi) detainee may be
interviewed, often with legal representative present. After interview, detainee may be released on police bail to return to police
station after enquiries made by police. Alternatively, detainee may be charged and either released on police bail to appear at MC
at later date / charged and remanded in police custody to appear at MC on following day.
Right to legal advice Suspect is entitled to private consultation with a solicitor at any time or person duly accredited or is a probationary representative
undertaking accreditation. Police Station Advice and Assistance Scheme administered by Legal Aid Agency offers free legal
advice.
The right under s58 PACE (see also COP C6) is the fundamental right to free and independent legal advice. This includes
consulting with the solicitor either in person, on the phone, or in writing. It can only be delayed in accordance with s58 and COP
C Annex B.
- In practice, the delay to the exercise of the right under s58 is hardly ever justified. The decision to delay a suspect’s right to
legal advice is a serious step and must be justified by the police, as it can have major implications for any evidence obtained
against the suspect as a result. It is also a breach of the suspect’s rights under the ECHR.
COP C6.1: All detainees must be informed that they may at any time consult and communicate privately with a solicitor, whether
in person, in writing or by telephone, and that free independent legal advice is available, unless Annex B (delay in notification of
arrest and whereabouts or allowing access to legal advice) applies, e.g. will lead to interference with / harm to evidence / physical
harm etc.. COP Note 6B explains arrangements which enable detainees to obtain legal advice. An outline of the arrangements
included in the Notice of Rights and Entitlements is given to detainees.
COP C6.3: A poster advertising the right to legal advice must be prominently displayed in the charging area of every police
station.
COP C6.4: No police officer should, at any time, do or say anything with the intention of dissuading any person who is entitled to
legal advice, whether or not they have been arrested and are detailed, from obtaining legal advice.
2
, COP C6.5: Whenever legal advice is requested, and unless Annex B applies, custody officer must act without delay to secure the
provision of such advice. If detainee has right to speak to solicitor in person but declines to exercise the right, the officer should
point out that right includes right to speak on telephone. If detainee continues to waive right, officer should ask why and any
reasons should be recorded on the custody record / interview record as appropriate. Reminders of the right to legal advice must be
given. Once clear that detainee does not want to speak to solicitor in person / by telephone they should cease to be asked their
reasons.
COP C6.5A: In case of juvenile / vulnerable person, an appropriate adult (see page 11) should consider whether legal advice from
solicitor is required. If such detained person wants to exercise right, appropriate action should be taken and should not be delayed
until appropriate adult arrives. If person indicates they do not want legal advice, appropriate adult has the right to ask for solicitor
to attend if this would be in the best interests of the person and must be so informed, if so action to secure provision of advice shall
be taken without delay in the same way. However, the person cannot be forced to see solicitor if adamant that they do not wish to
do so.
COP C6.6: A detainee who wants legal advice may not be interviewed or continue to be interviewed until they have received such
advice, unless certain circumstances apply, e.g. Annex B applies, officer of superintendent rank or above has reasonable grounds
for believing that the consequent delay may lead to interference with / serious loss etc., solicitor that the detainee has nominated or
selected cannot be contacted / declined to attend, detainee changes their mind about wanting legal advice or (as the case may be)
about wanting a solicitor present at the interview.
COP C6.16-17: Any request for legal advice and the action taken shall be recorded. A record shall be made in the interview record
if a detainee asks for legal advice and an interview is begun either in the absence of solicitor / representative, or they have been
required to leave an interview.
Right to have someone Right to have someone informed of their arrest is a continuing right which may be exercised at any stage during the period in
informed of arrest custody. Can include a telephone call or writing to the person or a visit, at custody officer’s discretion. Right can be delayed by
inspector or above (i.e. chief inspector, superintendent, chief constable etc.) where suspect is arrested for an indictable / either-way
offence and certain grounds are met, relating to interference with evidence, injury to persons, tipping off others or hindering in
recovery of property (but cannot exceed 36 hours from the time the suspect arrives at the police station).
Section 56 PACE provides that an arrested person has the right to have a friend, relative or other person told that he is under arrest.
This right can only be delayed under s56 and COP C Annex B if certain criteria are present, and as set out in COP C5.7A, any
delay or denial of the rights in this section should be proportionate and should last no longer than necessary.
COP C5.1: Any person arrested and held in custody at a police station or other premises may, on request, have one person known
to them or likely to take an interest in their welfare informed at public expense of their whereabouts as soon as practicable. If the
person cannot be contacted the detainee may choose up to two alternatives. If they cannot be contacted, the person in charge of
detention or the investigation has discretion to allow further attempts until the information has been conveyed. Subject to 5.7
which states that detainee shall be informed that what they say in any letter, call or message may be read or listened to and may be
given in evidence before any such letter / message is sent or telephone made.
3
, COP C5.8: A record must be kept of any request made and the action taken; letters, messages or telephone calls made / received /
visit received, refusal by the detainee to have information about them given to an outside enquirer.
Reviews and detention time PACE and COP C govern the questioning and treatment of detained persons at police stations and other designated places.
limits under PACE 1984, Suspect is searched on arrival at police station. Custody officer must record suspect’s property, which may be seized and retained
Code C (including clothing) if they could cause injury or damage or assist escape. Strip / intimate searches require special justification and
special procedures.
Section 37(1) PACE requires that the custody officer will firstly determine whether or not there is sufficient evidence to proceed to
charge the detainee. If not, then the arrested person must be released (released with or without charge and without or without bail
(s37(2) PACE)) unless there are reasonable grounds for believing that his detention is necessary to: (i) secure / preserve evidence
or (ii) obtain such evidence by questioning (s37(3) PACE).
If there are grounds to detain, custody officer will: Authorise detention of the suspect, open a custody record, inform the detainee
of the reason for his arrest, inform the detainee of the reason for his detention, and advise the detainee of his rights (right to have
someone informed of their arrest, right to private, free and independent legal advice, right to consult the PACE COP). Should also
carry out a risk assessment to consider specific needs, e.g. whether legal advice wanted, whether medical treatment needed,
whether appropriate adult should be present, whether interpreter is required.
Custody officer is responsible for welfare of each detainee. A separate custody record must be opened as soon as practicable for
each detainee, detailing requirement to inform person of the reason for arrest, circumstances of arrest, why arrest was necessary,
and any comments made by the arrested person. COP C2.4 confirms the right of a legal representative to consult his client’s
custody record as soon as practicable after his arrival at police station and at any time client is still detained. Record can be
accessed and inspected by suspect’s legal advisor and/or appropriate adult, along with the suspect, when they leave the police
station. Record is admissible in evidence, legal representative should ensure all representations made about client’s detention are
entered in the record.
If custody officer determines that he has before him sufficient evidence to charge the person, the person arrested may be released
without charge and on bail, or kept in police detention, for the purpose of enabling DPP to make a charging decision (s37(7)
PACE).
Reviews of detention: Reviews of detention must be carried out during detention of a suspect (s40 PACE). Review officer must
be satisfied that the detention is still necessary (COP C15.1), i.e. must consider whether grounds for detention as authorised by
custody officer under s37 still exist.
- Review officer must be an officer of at least the rank of inspector who is not connected with the investigation of the offence
and is not the custody officer.
- S40 stipulates that the first review of the suspect’s detention will take place not more than 6 hours after suspect’s detention
was first authorised by the custody officer and then periodically every 9 hours thereafter.
- At time of review, detained person must be reminded of his right to free legal advice, and be given right to make
representations unless he is unfit to make such representations / asleep at time of review.
4
