Criminal Law and Practice
Outline of the module
Workshop/ Subtopics covered Common mistakes Tracker
Topic
Understand Make sure as you revise the material that • Not identifying and applying the
the process you have a sound understanding of the substantive criminal law involved in
principles of the criminal justice system the case.
from arrest through to sentence and • Not distinguishing between the
beyond, including the role of the CPS and classification of offences and the
defence solicitor, duties to the courts and impact on jurisdiction and
clients and the ways in which cases can • sentencing and police powers.
be funded. • Confusing terminology or issues
with the civil litigation process.
• Forgetting that the exceptions to
the rule against conflicts of
interests do not apply in criminal
proceedings.
• Knowing when the means and
merits test apply in legal aid.
Police • How the police investigate crimes • Not knowing the ranks of officers.
powers generally. • Not identifying whether an offence
(Workshop 1) • An overview of arrest. is indictable.
• Processes in the custody suite. • Not applying the facts to consider
• Role and duties of the custody whether reasonable grounds for
officer. the delay in the rights exist.
• Limits on detention before charge • Not applying all the relevant
(the 24 hour clock) criteria.
• Extensions to detention. • Confusing the time of arrival (for
• Reviews of the detention. the ‘clock’) and time detention was
• Role of the investigating officer. authorised (for reviews).
• Right to legal advice. • Failing to understand that there is
• Right to have someone notified of no statutory obligation on the
arrest. police to provide pre - interview
• Powers under PACE and COP to disclosure beyond the custody
delay these rights. record and first description and
• Role of legal adviser. basic information set out in COP C
• The purpose and information in a 11A.
custody record. • Not knowing the guidance in
• Obtaining pre interview disclosure. Annex B.
Police station • The options available to a suspect in • Not undertaking case analysis and
advice an interview. failing to appreciate where the
(Workshop 2) • The inferences under s 34 CJPOA strengths and weaknesses are in
from failing to mention a fact relied the police case.
on in defence. • Not fully understanding the three
• The inferences from failing to provide options of no comment, answer
an account for a mark, object etc (s questions and prepared statement.
36) or presence at • Not focusing on reasonableness
• the place of arrest (s 37) for s 34.
• The caution and the special warning. • Not appreciating that a denial is a
• The importance of analysing pre defence to an allegation.
interview disclosure. • Forgetting that an inference can
• The risks in remaining silent in only occur at court (trial).
interview. • Not applying to the specific facts
• The risks of answering questions in well enough.
interview. • Assuming that a court MUST draw
• The advantages of remaining silent an inference.
, in interview. • Forgetting inferences can be
• The advantages of answering drawn from silence at charge.
questions in interview. • Knowing the different types of ID
• Role of legal adviser in interview. procedure other than VIPER and
• Removal of legal adviser from when they can be used
interview.
• When an ID procedure must be held
• Types of identification procedure.
First • How proceedings are issued. • Not knowing the difference
hearings • Detention after charge. between summary only, indictable
(Workshop 3) • What happens at the first hearing. only and either-way offences.
• The right to bail. • Not appreciating how the
• Exemptions from the right to bail for classification of offences above
e.g. murder. affect how a case will progress and
• Exceptions to the right to bail under what can be dealt with at a first
Sch 1 part 1 Bail Act 1976. hearing for each type.
• Conditions of bail. • Confusing exemptions to the right
• Procedure for a bail hearing before to bail with exceptions to the right
the magistrates. to bail.
• Appealing a refusal of bail to the • Confusing the paragraph 9 factors
Crown Court. with the exceptions under
• Offences under the Bail Act. paragraphs 2-6.
• Plea before venue. • Not applying conditions to the facts
• Allocation. (e.g. a curfew is not appropriate for
• Election. a day time offence).
• Indications of sentence. • Remembering plea before venue is
• Sending. for either-way offences only.
• Funding. • Remembering the test for
• IDPC. allocation and that it only happens
• Sentencing powers in the after an indication of a not guilty
magistrates’ court. plea at the PBV.
• Appreciating the relevance of
sentencing at this juncture.
• Confusing reasons why the
magistrates might accept or
decline jurisdiction with reasons
why
• the defendant might elect trial by
jury.
• Appreciating the basics of the
means and merits test for a
representation order.
Confession • The stages between the magistrates • Not understanding the 'normal'
evidence sending a case to the Crown Court rules of evidence.
(Workshop 4) and the Plea and Trial • Confusing which party has a duty
• Preparation Hearing. to serve or disclose what and
• How a case is managed via the when.
digital case system. • Not appreciating the purpose of
• Drafting a brief to counsel. the PTPH and confusing with the
• Basic rules of evidence. magistrates’ court hearings.
• What is a confession. • Confusing the tests in s 76 with 78.
• Admissibility of confessions. • Remembering that s 78 covers all
• Meaning of oppression. prosecution evidence.
• Meaning of things said or done. • Remembering that s 76 is
• Meaning of unreliability. mandatory and s 78 is
• Section 76 PACE. discretionary.
• Discretionary test in s 78. • Identifying the relevant facts which
• Comparison of 76 and 78. might give rise to ‘oppression’ or
• Breaches of PACE and COP. ‘things said or done’ or the
• Voir dire. ‘circumstances in which the
evidence was obtained’.
Identification • The stages in a trial from the opening • Confusing evidential with legal
,evidence to end of the prosecution case. burdens.
(Workshop 5) • Burdens of proof – the difference • Thinking that it is necessary to
between legal and evidential. make an application under s 78 to
• Admissibility of evidence. exclude weak ID evidence.
• Strength of evidence. • Section 78 would be used to
• Putting together the application to exclude an ID procedure that was
exclude a confession. conducted in breach of PACE.
• Identification evidence and when the • Not understanding when Turnbull
Turnbull guidelines apply. is relevant.
• Using ADVOKATE to apply the • Not correctly identifying when the
guidelines. Turnbull direction should be given.
• Submissions of no case to answer.
• Options available to judge regarding
ID evidence.
• When a Turnbull direction should be
given and what it is.
• Duty to the court (not to mislead).
Character • What happens at a PTPH including • Not understanding the distinction
evidence the orders sought and types of between disclosure of unused
(Workshop 6) directions made. material and the evidence which is
• Information on a PTPH form contained in the IDPC or the digital
including deciding on the witnesses case management.
required and why. • Thinking that a defence statement
• The statutory framework for is always mandatory.
disclosure under the CPIA. • Forgetting that the duty is ongoing.
• Meaning of used material. • Not understanding what bad
• Meaning of unused material. character is and how it is used as
• Test for disclosure. evidence at trial.
• Applications for specific disclosure. • Confusing the use of convictions in
• Applications for PII. a bail application and at
• The requirements of a defence sentencing with applications to
statement. adduce them as evidence of bad
• Time limits for serving a defence character at trial.
statement. • Confusing the gateways and not
• Meaning of ‘bad character’. identifying which would be relevant
• The 7 gateways in the CJA 2003. on the facts.
• Meaning of ‘important explanatory • Understanding the arguments that
evidence.’ can be out forward by the defence
• Meaning of ‘important matter in issue to try and prevent the inclusion of
between defendant and prosecution’. the evidence.
• Meaning of ‘false impression’. • Not appreciating the meaning of
• Meaning of ‘attacking another’s 'propensity to be untruthful'.
character’. • Understanding the purpose of the
• The safeguards in the CJA 2003 and convictions once admitted.
s 78 PACE to exclude bad character
evidence.
• Procedure for making bad character
applications.
• Responding to bad character
applications.
Corporation • The stages of a trial from the end of • Not realising that a statement read
tax and VAT the prosecution case to the verdict. to the court is hearsay.
(Workshop 7) • Basic courtroom etiquette • Not appreciating that confessions
• How witnesses give evidence by live are hearsay but are admissible as
testimony. an exception to the rule
• The purpose of evidence in chief. • against hearsay.
• The purpose of cross examination. • Not going through the basic criteria
• Types of questions allowed. for admissibility under s 116.
• The meaning of competence and • Not identifying a leading question.
compellability of witnesses. • Confusing the roles of judge and
• Defendants as witnesses. jury.
• Role of judge and jury. • Not remembering the majority
, • The meaning of hearsay. direction and timing.
• Distinction between documentary • Not applying the IOJ test to fear.
and oral hearsay. • Thinking the IOJ applies to all
• The reading of witness statements hearsay.
under s 9 CJA 1967. • Not distinguishing between s 9
• The reading of statements when a CJA 1967 and s 116 CJA 2003.
witness whose evidence is not
agreed is unavailable.
• Considerations of the court when
granting leave when a witness is
unavailable through fear.
• The safeguards in the CJA 2003 and
s 78 PACE to exclude hearsay
evidence.
• Judge’s summing up and directions.
• Verdicts including majority and
alternatives.
Sentencing • Types of sentences. • Applying credit too early.
(Workshop 8) • Purpose of sentences. • Forgetting the maximum
• Thresholds under the SA 2020. sentences available in the
• Discretionary and mandatory magistrates’ court.
custodial sentences. • Confusing mandatory with
• Assessment of seriousness for maximum.
discretionary sentences and the • Using the wrong guideline.
thresholds. • Ignoring key facts.
• Culpability and harm.
• Sentencing guidelines.
• Categories
• Starting points and ranges.
• Statutory aggravating factors
• Other aggravating factors.
• Mitigating factors.
• The adjustment to the starting point.
• Credit for a guilty plea.
• Suspended custodial sentences.
• Totality, concurrent and consecutive
sentences.
• Maximum sentences in magistrates’
and Crown Court. 18. Duty to the
court.
Appeals • The ways to appeal a magistrates’ • Forgetting which appeal route
(Workshop 9) court decision. needs leave.
• The ways to appeal a Crown Court • Not remembering time limits.
decision. • Forgetting the limits and
• Leave to appeal and grounds. constitution of the Crown Court as
• Unsafe convictions. an appellate court.
• Appeals by way of case stated. • Confusing the powers of the
• Appeals to the Supreme Court. appeal courts.
• Judicial review. • Not appreciating which route is the
• Powers of the appeal courts. most appropriate.
• Procedure. • Understanding the means and
• Constitution of the appeal courts. merits tests in legal aid.
• Prosecution appeals. • Appreciating the similarities and
• Alternative routes: Slip rule, CCRC, differences between a trial on
reopening case in magistrates’ court. indictment and summary trial.
• Advantages and disadvantages of • Remembering the basis of a
different routes. Judicial Review.
• Summary trials.
• Representation orders: the IOJ
(merits) test.
• Limits of a representation order.
Youths • The role of the appropriate adult at • Confusing aspects of youth courts
Outline of the module
Workshop/ Subtopics covered Common mistakes Tracker
Topic
Understand Make sure as you revise the material that • Not identifying and applying the
the process you have a sound understanding of the substantive criminal law involved in
principles of the criminal justice system the case.
from arrest through to sentence and • Not distinguishing between the
beyond, including the role of the CPS and classification of offences and the
defence solicitor, duties to the courts and impact on jurisdiction and
clients and the ways in which cases can • sentencing and police powers.
be funded. • Confusing terminology or issues
with the civil litigation process.
• Forgetting that the exceptions to
the rule against conflicts of
interests do not apply in criminal
proceedings.
• Knowing when the means and
merits test apply in legal aid.
Police • How the police investigate crimes • Not knowing the ranks of officers.
powers generally. • Not identifying whether an offence
(Workshop 1) • An overview of arrest. is indictable.
• Processes in the custody suite. • Not applying the facts to consider
• Role and duties of the custody whether reasonable grounds for
officer. the delay in the rights exist.
• Limits on detention before charge • Not applying all the relevant
(the 24 hour clock) criteria.
• Extensions to detention. • Confusing the time of arrival (for
• Reviews of the detention. the ‘clock’) and time detention was
• Role of the investigating officer. authorised (for reviews).
• Right to legal advice. • Failing to understand that there is
• Right to have someone notified of no statutory obligation on the
arrest. police to provide pre - interview
• Powers under PACE and COP to disclosure beyond the custody
delay these rights. record and first description and
• Role of legal adviser. basic information set out in COP C
• The purpose and information in a 11A.
custody record. • Not knowing the guidance in
• Obtaining pre interview disclosure. Annex B.
Police station • The options available to a suspect in • Not undertaking case analysis and
advice an interview. failing to appreciate where the
(Workshop 2) • The inferences under s 34 CJPOA strengths and weaknesses are in
from failing to mention a fact relied the police case.
on in defence. • Not fully understanding the three
• The inferences from failing to provide options of no comment, answer
an account for a mark, object etc (s questions and prepared statement.
36) or presence at • Not focusing on reasonableness
• the place of arrest (s 37) for s 34.
• The caution and the special warning. • Not appreciating that a denial is a
• The importance of analysing pre defence to an allegation.
interview disclosure. • Forgetting that an inference can
• The risks in remaining silent in only occur at court (trial).
interview. • Not applying to the specific facts
• The risks of answering questions in well enough.
interview. • Assuming that a court MUST draw
• The advantages of remaining silent an inference.
, in interview. • Forgetting inferences can be
• The advantages of answering drawn from silence at charge.
questions in interview. • Knowing the different types of ID
• Role of legal adviser in interview. procedure other than VIPER and
• Removal of legal adviser from when they can be used
interview.
• When an ID procedure must be held
• Types of identification procedure.
First • How proceedings are issued. • Not knowing the difference
hearings • Detention after charge. between summary only, indictable
(Workshop 3) • What happens at the first hearing. only and either-way offences.
• The right to bail. • Not appreciating how the
• Exemptions from the right to bail for classification of offences above
e.g. murder. affect how a case will progress and
• Exceptions to the right to bail under what can be dealt with at a first
Sch 1 part 1 Bail Act 1976. hearing for each type.
• Conditions of bail. • Confusing exemptions to the right
• Procedure for a bail hearing before to bail with exceptions to the right
the magistrates. to bail.
• Appealing a refusal of bail to the • Confusing the paragraph 9 factors
Crown Court. with the exceptions under
• Offences under the Bail Act. paragraphs 2-6.
• Plea before venue. • Not applying conditions to the facts
• Allocation. (e.g. a curfew is not appropriate for
• Election. a day time offence).
• Indications of sentence. • Remembering plea before venue is
• Sending. for either-way offences only.
• Funding. • Remembering the test for
• IDPC. allocation and that it only happens
• Sentencing powers in the after an indication of a not guilty
magistrates’ court. plea at the PBV.
• Appreciating the relevance of
sentencing at this juncture.
• Confusing reasons why the
magistrates might accept or
decline jurisdiction with reasons
why
• the defendant might elect trial by
jury.
• Appreciating the basics of the
means and merits test for a
representation order.
Confession • The stages between the magistrates • Not understanding the 'normal'
evidence sending a case to the Crown Court rules of evidence.
(Workshop 4) and the Plea and Trial • Confusing which party has a duty
• Preparation Hearing. to serve or disclose what and
• How a case is managed via the when.
digital case system. • Not appreciating the purpose of
• Drafting a brief to counsel. the PTPH and confusing with the
• Basic rules of evidence. magistrates’ court hearings.
• What is a confession. • Confusing the tests in s 76 with 78.
• Admissibility of confessions. • Remembering that s 78 covers all
• Meaning of oppression. prosecution evidence.
• Meaning of things said or done. • Remembering that s 76 is
• Meaning of unreliability. mandatory and s 78 is
• Section 76 PACE. discretionary.
• Discretionary test in s 78. • Identifying the relevant facts which
• Comparison of 76 and 78. might give rise to ‘oppression’ or
• Breaches of PACE and COP. ‘things said or done’ or the
• Voir dire. ‘circumstances in which the
evidence was obtained’.
Identification • The stages in a trial from the opening • Confusing evidential with legal
,evidence to end of the prosecution case. burdens.
(Workshop 5) • Burdens of proof – the difference • Thinking that it is necessary to
between legal and evidential. make an application under s 78 to
• Admissibility of evidence. exclude weak ID evidence.
• Strength of evidence. • Section 78 would be used to
• Putting together the application to exclude an ID procedure that was
exclude a confession. conducted in breach of PACE.
• Identification evidence and when the • Not understanding when Turnbull
Turnbull guidelines apply. is relevant.
• Using ADVOKATE to apply the • Not correctly identifying when the
guidelines. Turnbull direction should be given.
• Submissions of no case to answer.
• Options available to judge regarding
ID evidence.
• When a Turnbull direction should be
given and what it is.
• Duty to the court (not to mislead).
Character • What happens at a PTPH including • Not understanding the distinction
evidence the orders sought and types of between disclosure of unused
(Workshop 6) directions made. material and the evidence which is
• Information on a PTPH form contained in the IDPC or the digital
including deciding on the witnesses case management.
required and why. • Thinking that a defence statement
• The statutory framework for is always mandatory.
disclosure under the CPIA. • Forgetting that the duty is ongoing.
• Meaning of used material. • Not understanding what bad
• Meaning of unused material. character is and how it is used as
• Test for disclosure. evidence at trial.
• Applications for specific disclosure. • Confusing the use of convictions in
• Applications for PII. a bail application and at
• The requirements of a defence sentencing with applications to
statement. adduce them as evidence of bad
• Time limits for serving a defence character at trial.
statement. • Confusing the gateways and not
• Meaning of ‘bad character’. identifying which would be relevant
• The 7 gateways in the CJA 2003. on the facts.
• Meaning of ‘important explanatory • Understanding the arguments that
evidence.’ can be out forward by the defence
• Meaning of ‘important matter in issue to try and prevent the inclusion of
between defendant and prosecution’. the evidence.
• Meaning of ‘false impression’. • Not appreciating the meaning of
• Meaning of ‘attacking another’s 'propensity to be untruthful'.
character’. • Understanding the purpose of the
• The safeguards in the CJA 2003 and convictions once admitted.
s 78 PACE to exclude bad character
evidence.
• Procedure for making bad character
applications.
• Responding to bad character
applications.
Corporation • The stages of a trial from the end of • Not realising that a statement read
tax and VAT the prosecution case to the verdict. to the court is hearsay.
(Workshop 7) • Basic courtroom etiquette • Not appreciating that confessions
• How witnesses give evidence by live are hearsay but are admissible as
testimony. an exception to the rule
• The purpose of evidence in chief. • against hearsay.
• The purpose of cross examination. • Not going through the basic criteria
• Types of questions allowed. for admissibility under s 116.
• The meaning of competence and • Not identifying a leading question.
compellability of witnesses. • Confusing the roles of judge and
• Defendants as witnesses. jury.
• Role of judge and jury. • Not remembering the majority
, • The meaning of hearsay. direction and timing.
• Distinction between documentary • Not applying the IOJ test to fear.
and oral hearsay. • Thinking the IOJ applies to all
• The reading of witness statements hearsay.
under s 9 CJA 1967. • Not distinguishing between s 9
• The reading of statements when a CJA 1967 and s 116 CJA 2003.
witness whose evidence is not
agreed is unavailable.
• Considerations of the court when
granting leave when a witness is
unavailable through fear.
• The safeguards in the CJA 2003 and
s 78 PACE to exclude hearsay
evidence.
• Judge’s summing up and directions.
• Verdicts including majority and
alternatives.
Sentencing • Types of sentences. • Applying credit too early.
(Workshop 8) • Purpose of sentences. • Forgetting the maximum
• Thresholds under the SA 2020. sentences available in the
• Discretionary and mandatory magistrates’ court.
custodial sentences. • Confusing mandatory with
• Assessment of seriousness for maximum.
discretionary sentences and the • Using the wrong guideline.
thresholds. • Ignoring key facts.
• Culpability and harm.
• Sentencing guidelines.
• Categories
• Starting points and ranges.
• Statutory aggravating factors
• Other aggravating factors.
• Mitigating factors.
• The adjustment to the starting point.
• Credit for a guilty plea.
• Suspended custodial sentences.
• Totality, concurrent and consecutive
sentences.
• Maximum sentences in magistrates’
and Crown Court. 18. Duty to the
court.
Appeals • The ways to appeal a magistrates’ • Forgetting which appeal route
(Workshop 9) court decision. needs leave.
• The ways to appeal a Crown Court • Not remembering time limits.
decision. • Forgetting the limits and
• Leave to appeal and grounds. constitution of the Crown Court as
• Unsafe convictions. an appellate court.
• Appeals by way of case stated. • Confusing the powers of the
• Appeals to the Supreme Court. appeal courts.
• Judicial review. • Not appreciating which route is the
• Powers of the appeal courts. most appropriate.
• Procedure. • Understanding the means and
• Constitution of the appeal courts. merits tests in legal aid.
• Prosecution appeals. • Appreciating the similarities and
• Alternative routes: Slip rule, CCRC, differences between a trial on
reopening case in magistrates’ court. indictment and summary trial.
• Advantages and disadvantages of • Remembering the basis of a
different routes. Judicial Review.
• Summary trials.
• Representation orders: the IOJ
(merits) test.
• Limits of a representation order.
Youths • The role of the appropriate adult at • Confusing aspects of youth courts
