FLK2, Session 2 · Free practice questions

SQE1 Criminal Law and Practice practice questions

5 single best answer questions on Criminal Law and Practice, written to the SRA specification. Pick an answer, then open the explanation: the correct option, why each of the others fails, and the authority behind it. No sign-up.

Start with question 1

Criminal Law and Practice in SQE1

The police station — a suspect's rights, detention, interviews and identification procedures under PACE 1984 and its Codes, and advising whether to answer questions; then bail, first hearings, plea before venue and allocation, case management and disclosure, the admission and exclusion of evidence, trial in the magistrates' court and the Crown Court, sentencing, appeals and the youth court.

Questions follow a client from arrest to sentence and ask for the next procedural step or the advice a defence solicitor should give.

Question 1

Right to have someone informed of arrestMedium

A man who is a national of another country has been arrested on suspicion of fraud committed at his workplace and detained at a police station. The custody officer explains his rights. The man asks the custody officer to inform his flatmate of his arrest. He also asks that his country's consulate be contacted, and the custody officer says that an officer will have to sit in on any consular visit. While the man is resting in his cell, his employer telephones the solicitor attending for him. The employer says that it has dismissed the man and has sent his work emails to the police, and asks the solicitor not to tell the man because the dismissal letter has not yet been posted. The employer then asks the solicitor whether the man is still in custody.

How should the solicitor deal with these matters?

Show the answer and explanation

Correct answer

The solicitor should tell the man what the employer has said and ask the custody officer to contact the consulate.

The solicitor must pass on information material to the client's matter, and the detainee's consular right is separate from his right to have someone informed of his arrest.

The dismissal and the disclosure of work emails to the police are material to the man's matter, and no exception in para 6.4 applies to a third party's request for silence. The man's request for consular contact should be actioned; Code C para 3.1(a)(iv) gives him that right independently of the notification to his flatmate.

The dismissal and the passing of emails to the police are material to the man's matter and none of the exceptions to disclosure applies; the consular right should be acted on at his request.

SRA Code of Conduct for Solicitors, RELs and RFLs, para 6.4 — Duty to make the client aware of all material information subject to limited exceptions.
PACE Code C, para 3.1(a)(iv) — Right to communicate with a High Commission, Embassy or Consulate.

Rule card

Code C para 3.1(a): separate continuing rights, including having someone informed of arrest and communicating with a consulate. Code C para 7.3: consular visits take place out of the hearing of a police officer. SRA Code para 6.4: material information must be given to the client, subject to four listed exceptions.

Why the other options fail

A
Surface reading
The solicitor may confirm to the employer that the man is detained, because someone must be informed of his arrest anyway.
The right under s 56 is the detainee's right to have a person of his choosing told; it does not entitle the solicitor to disclose his detention to anyone who asks.
- PACE 1984, s 56 — The detainee is entitled to have one named person told of his arrest and whereabouts.
B
Adjacent ruleClosest alternative
The employer's information may be withheld from the man because it was given in confidence.
A third party's request for confidence is not one of the exceptions to the duty to give the client material information.
Ruled out by: The employer's request for confidence is not one of the four exceptions in para 6.4, and the information goes directly to the police case against the man.
- SRA Code of Conduct for Solicitors, RELs and RFLs, para 6.4 — The exceptions to the duty to inform are limited to legal restrictions, the client's informed written consent, risk of serious injury, and mistakenly disclosed privileged documents.
D
Adjacent rule
Notification of the consulate satisfies the right to have someone informed, so the flatmate need not be told.
Code C para 3.1(a) lists the right to have someone informed and the right to communicate with a consulate as separate continuing rights.
- PACE Code C, para 3.1(a) — The rights listed, including having someone informed of arrest and communicating with a High Commission, Embassy or Consulate, are separate continuing rights exercisable at any stage.
E
Outdated law
The solicitor should advise the man to refuse a consular visit, as an officer must be present.
Consular visits, if the detainee agrees, take place out of the hearing of a police officer, so the custody officer's statement is wrong.
- PACE Code C, para 7.3 — Consular visits to a national in police detention shall take place out of the hearing of a police officer.

Question 2

Advising the client on trial venueMedium

A firm takes criminal defence work from a vehicle recovery business which passes on details of drivers who have been charged. The business asks £200 per client referred, to be paid from the firm's office account. A solicitor has told one such privately paying client of the arrangement, considers it does not affect her independence, and is advising him on plea and venue for an either-way offence.

Which of the following best describes the solicitor's position?

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Correct answer

The solicitor may advise on plea and venue, but the firm must not pay the referral fee.

Advice on plea and venue may be given, but no referral fee may be paid to the introducer in a criminal matter.

Payments to introducers in respect of clients who are the subject of criminal proceedings are prohibited, whatever the source of funds, whether or not disclosed, and irrespective of funding. Acting and advising on venue remain perfectly proper.

There is no bar on acting or on advising the client about plea and venue; what is prohibited is the payment to the introducer in respect of a client subject to criminal proceedings.

SRA Code of Conduct for Solicitors, RELs and RFLs, para 5.1(d) — A solicitor does not make payments to an introducer in respect of clients who are the subject of criminal proceedings.

Rule card

Code para 5.1(d): no payments to introducers for clients subject to criminal proceedings.

Why the other options fail

A
Adjacent ruleClosest alternative
The firm may pay the fee provided the arrangement is disclosed in writing to the client before advice on venue is given.
Disclosure does not cure the position: payments to introducers are prohibited outright where the client is the subject of criminal proceedings.
Ruled out by: The solicitor's disclosure of the arrangement to the client does not make the payment permissible; the prohibition is absolute in criminal matters.
- SRA Code of Conduct for Solicitors, RELs and RFLs, para 5.1(d) — A solicitor does not make payments to an introducer in respect of clients who are the subject of criminal proceedings.
B
Surface reading
The firm may pay the fee if the solicitor's independence is not affected.
The prohibition is unqualified in criminal matters and does not turn on an assessment of whether independence is in fact compromised.
- SRA Code of Conduct for Solicitors, RELs and RFLs, para 5.1(d) — The prohibition on payments to introducers in criminal proceedings is not conditional on any effect on independence.
D
Adjacent rule
The firm may pay the fee because the restriction on referral payments applies only where the client is publicly funded.
Under SRA Code of Conduct para 5.1(d), the prohibition on making payments to an introducer applies to any client who is the subject of criminal proceedings, irrespective of whether the client is privately paying or publicly funded.
- SRA Code of Conduct for Solicitors, RELs and RFLs, para 5.1(d) — A solicitor does not make payments to an introducer in respect of clients who are the subject of criminal proceedings.
E
Adjacent rule
The solicitor must decline to advise on plea and venue because the introducer has requested a referral fee.
Paragraph 5.1(d) of the SRA Code of Conduct prohibits the firm from paying a referral fee to the introducer, but it does not prevent the solicitor from acting for or advising the client, provided the fee is not paid.
- SRA Code of Conduct for Solicitors, RELs and RFLs, para 5.1(d) — A solicitor does not make payments to an introducer in respect of clients who are the subject of criminal proceedings.

Question 3

Magistrates' court case management directionsMedium

At a preparation for trial hearing the magistrates gave standard directions and fixed a trial date, and the man, aged 19, was warned that if he did not attend the trial would be likely to take place in his absence. He does not attend on the trial date. The prosecutor tells the bench that it has a discretion whether to proceed. The solicitor cannot contact the man and wants an adjournment.

How should the solicitor respond to the prosecutor's statement?

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Correct answer

Explain that as the man is 19 the court must proceed unless contrary to the interests of justice, then argue that proceeding in his absence would be contrary to the interests of justice.

The prosecutor misstated the law by claiming the court had a discretion to proceed; because the defendant is 19, section 11(1)(b) of the Magistrates' Courts Act 1980 mandates that the court shall proceed unless contrary to the interests of justice, and the solicitor must correct the misstatement before arguing the exception.

Under section 11(1) of the Magistrates' Courts Act 1980, the court has a discretion whether to proceed only where the accused is under 18 (s 11(1)(a)). Where the defendant has attained the age of 18 (here, the man is 19), section 11(1)(b) provides that the court shall proceed in his absence unless it appears contrary to the interests of justice. Paragraph 2.7 of the SRA Code of Conduct requires the solicitor to draw this provision to the court's attention, after which the solicitor can properly argue that proceeding in the man's absence would be contrary to the interests of justice.

Under section 11(1) of the Magistrates' Courts Act 1980, the court has a discretion whether to proceed only where the accused is under 18 years of age (section 11(1)(a)); where the accused has attained the age of 18 (here, the man is 19), section 11(1)(b) provides that the court shall proceed in his absence unless it appears contrary to the interests of justice to do so. Paragraph 2.7 of the SRA Code of Conduct requires the solicitor to draw this governing statutory provision to the court's attention, after which the solicitor may properly argue the interests of justice exception.

Magistrates' Courts Act 1980, s 11(1)(b) — Where an accused who has attained the age of 18 years does not appear at trial, the court shall proceed in his absence unless it appears to the court to be contrary to the interests of justice to do so.
SRA Code of Conduct for Solicitors, RELs and RFLs, para 2.7 — A solicitor draws the court's attention to relevant statutory provisions of which they are aware and which are likely to have a material effect on the outcome of the proceedings.

Rule card

Trial in absence of defendant (MCA 1980 s 11): under 18, the court may proceed (discretion, s 11(1)(a)); 18 or older, the court shall proceed unless contrary to the interests of justice (duty, s 11(1)(b)). Under SRA Code para 2.7, advocates must draw relevant statutory provisions to the court's attention.

Why the other options fail

B
Adjacent rule
Apply to adjourn under section 11(2A) of the Magistrates' Courts Act 1980 on the ground that there is an acceptable reason for the man's failure to appear.
Section 11(2A) of the Magistrates' Courts Act 1980 provides that the court shall not proceed if it considers that there is an acceptable reason for the failure to appear. However, because the solicitor has had no contact with the client and knows no reason for his absence, there is no factual basis on which to make such an application.
- Magistrates' Courts Act 1980, s 11(2A) — The court shall not proceed in the absence of the accused if it considers that there is an acceptable reason for his failure to appear.
C
Right outcome, wrong reasonClosest alternative
Tell the bench that section 11 of the Magistrates' Courts Act 1980 applies and accept that the trial must proceed today.
While section 11(1)(b) establishes a presumption that the trial shall proceed against an absent defendant who is 18 or older, this duty is subject to the qualification 'unless it appears to the court to be contrary to the interests of justice to do so'. Conceding immediately that the trial must proceed surrenders an argument legitimately available to the defence.
Ruled out by: Section 11(1)(b) of the Magistrates' Courts Act 1980 contains an express qualification where proceeding would be contrary to the interests of justice, so immediately conceding that the trial must proceed surrenders an argument open to the defence.
- Magistrates' Courts Act 1980, s 11(1)(b) — The court shall proceed in the absence of an adult defendant unless it appears contrary to the interests of justice to do so.
D
Surface reading
Submit that the trial cannot proceed in the man's absence because he was only warned that trial was 'likely' to proceed rather than that proceeding would be mandatory.
The standard warning that the trial would be likely to take place in the defendant's absence is proper and does not invalidate the operation of section 11(1)(b) of the Magistrates' Courts Act 1980. Section 11(1)(b) mandates proceeding unless contrary to the interests of justice, and the solicitor must state the correct statutory test rather than raise an unmerited challenge to the warning.
- Magistrates' Courts Act 1980, s 11(1)(b) — Where an adult defendant does not attend the trial, the court shall proceed in his absence unless it appears contrary to the interests of justice to do so.
E
Surface reading
Say nothing, because the accuracy of submissions about the applicable statutory provision is the prosecutor's responsibility rather than the defence's.
Under paragraph 2.7 of the SRA Code of Conduct, the advocate's duty to draw the court's attention to relevant statutory provisions of which they are aware applies equally to the defence advocate; an advocate must not remain silent when the court is being misdirected on the law.
- SRA Code of Conduct for Solicitors, RELs and RFLs, para 2.7 — A solicitor draws the court's attention to relevant statutory provisions of which they are aware and which are likely to have a material effect on the outcome of the proceedings.

Question 4

Relevance of defendant’s good characterHarder

A man is tried in the Crown Court for theft from his employer. He has no previous convictions, but eighteen months ago he accepted a police caution for shoplifting, and the prosecution has not sought to adduce it. He made no comment in his police interview but gives evidence at trial, denying any dishonesty. His counsel asks the judge for a good character direction.

Which of the following best describes the man's entitlement to a good character direction?

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Correct answer

The judge has a discretion to treat him as of effective good character and to give a modified direction.

A caution means he is not of absolute good character, but the judge may treat him as effectively of good character and modify the direction.

Absolute good character requires no convictions and no other reprehensible conduct. A caution accepted eighteen months ago for an offence of dishonesty is such conduct, so the full Vye direction is not his as of right. It does not follow that he gets nothing: the judge retains a discretion to treat him as of effective good character and to give a direction modified to reflect the caution.

With a caution he is not of absolute good character, but the judge may in his discretion treat him as effectively of good character, tailoring the direction to reflect the caution.

R v Vye [1993] 1 WLR 471 — The good character direction addresses credibility and propensity.
R v Hunter [2015] EWCA Crim 631 — Only absolute good character attracts the direction as of right; otherwise the judge has a discretion to give a modified direction.

Rule card

Absolute good character (no convictions, no other blemish) → Vye direction as of right on credibility and propensity. Blemish → judicial discretion to give a modified 'effective good character' direction.

Why the other options fail

A
Surface reading
He is entitled to no good character direction, because the caution is an admission of dishonesty.
A blemish removes the entitlement as of right but does not automatically exclude a modified direction, which remains within the judge's discretion.
- R v Hunter [2015] EWCA Crim 631 — A defendant with a blemish may still be treated as of effective good character in the judge's discretion.
B
Adjacent rule
He is entitled only to the propensity limb, because he made no comment in interview.
The credibility limb arises because he gives evidence at trial; silence in interview does not remove it.
- R v Vye [1993] 1 WLR 471 — The credibility limb is given where the defendant testifies or has relied on an exculpatory pre-trial statement.
D
Adjacent rule
He is entitled to the full direction, because a caution can never be admitted against a defendant as bad character evidence.
A caution is an admission of reprehensible behaviour and is capable of being deployed as bad character; in any event its existence bears on whether he is of absolute good character.
- R v Hunter [2015] EWCA Crim 631 — Cautions and other reprehensible conduct are relevant to whether a defendant may be treated as of good character.
E
Surface readingClosest alternative
He is entitled as of right to the full direction on both credibility and propensity, because a caution is not a conviction.
A caution involves an admission of the offence and is a blemish, so he is not of absolute good character and has no entitlement as of right.
Ruled out by: He accepted a police caution eighteen months ago, so he is not of absolute good character and the full direction is not available as of right.
- R v Hunter [2015] EWCA Crim 631 — Only a defendant with no convictions and no other reprehensible conduct is of absolute good character and entitled to the direction as of right.

Question 5

Procedure for appeal against conviction and/or sentenceMedium

A man pleaded not guilty to an offence of criminal damage and was tried in the magistrates' court. On 5 March the magistrates convicted him. They adjourned the case for a pre-sentence report and, on 2 April, imposed a community order. The man tells his solicitor that he is content with the community order but wants to challenge his conviction in the Crown Court. He asks whether his notice should be sent to the Crown Court, and says a friend told him he has a month from the day he was found guilty and that a judge must first agree to hear the appeal.

Which of the following correctly states how the man's appeal must be commenced?

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Correct answer

Notice of appeal must be filed with the magistrates' court and the CPS within 21 days of sentence.

An appeal from the magistrates' court to the Crown Court is a right, commenced by notice filed with the magistrates' court and served on the CPS within 21 days of sentence.

The man pleaded not guilty, so s 108(1)(b) gives him a right of appeal against conviction. No permission is required. The 21-day period runs from 2 April, the date sentence was passed, even though the appeal is against conviction only.

Having pleaded not guilty he may appeal against conviction as of right, by notice filed with the convicting court and served on the prosecution within 21 days of sentence.

Magistrates' Courts Act 1980, s.108(1)(b) — A person convicted by a magistrates' court who did not plead guilty may appeal to the Crown Court against the conviction or sentence.

Rule card

MCA 1980 s 108: convicted defendant may appeal to the Crown Court (conviction and/or sentence if not guilty plea; sentence only if guilty plea). Notice within 21 days of sentence, filed with the magistrates' court and served on the CPS; a Crown Court judge may extend time.

Why the other options fail

A
Adjacent rule
He must first obtain the permission of a Crown Court judge to appeal, applying within 28 days of the community order.
Permission and a 28-day notice period belong to appeals from the Crown Court to the Court of Appeal; an appeal under s 108 is a right requiring no permission.
- Criminal Appeal Act 1968, s.9 — An appeal against sentence passed in the Crown Court requires a certificate from the sentencing judge or the leave of the Court of Appeal.
B
Surface reading
The notice of appeal must be filed with the Crown Court alone, within 21 days of the community order being imposed.
The notice is filed with the magistrates' court and served on the CPS; the magistrates' clerk then sends it to the Crown Court.
- Magistrates' Courts Act 1980, s.108(1) — The right of appeal is exercised by giving notice in the magistrates' court that convicted, which transmits the appeal to the Crown Court.
C
Adjacent rule
He may appeal against sentence only, since he was convicted after pleading not guilty, filing notice within 21 days.
It is the defendant who pleaded guilty whose appeal is limited to sentence; a defendant who pleaded not guilty may appeal against conviction.
- Magistrates' Courts Act 1980, s.108(1)(a) — A person who pleaded guilty may appeal only against sentence.
E
Surface readingClosest alternative
He must file notice of appeal with the magistrates' court and the CPS within 21 days of 5 March, the date of conviction.
The 21-day period runs from the date on which sentence was passed, which was 2 April, not from the date of conviction.
Ruled out by: The community order was imposed on 2 April after an adjournment for a pre-sentence report, and time runs from the passing of sentence, not from the conviction on 5 March.
- Magistrates' Courts Act 1980, s.108(1)(b) — A person who did not plead guilty may appeal to the Crown Court against conviction or sentence; the notice period runs from the passing of sentence.

Where candidates lose marks in Criminal Law and Practice

No adverse inference can be drawn from silence at the police station if the suspect had not been allowed to consult a solicitor before the interview (Criminal Justice and Public Order Act 1994, s 34(2A)).
For an either-way offence, plea before venue comes first: an indicated guilty plea is treated as a guilty plea in the magistrates' court, which may still commit for sentence. Allocation follows only on a not guilty plea or no indication.
A confession must be excluded if obtained by oppression or in circumstances likely to make it unreliable (PACE 1984, s 76(2)); s 78 gives a separate discretion to exclude unfair evidence.

SQE1 Criminal Law and Practice practice questions

Criminal Law and Practice in SQE1

Where candidates lose marks in Criminal Law and Practice

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