SQE1 · Subject page 13 · 8 min read

SQE1 FLK2 subject notes: criminal liability, the specified offences, defences, parties and attempts, then the police station, bail, allocation, disclosure, evidence, trial, sentencing, appeals and youth courts.

What this subject covers

This is the largest subject in FLK2: the SRA's blueprint counts criminal liability and criminal practice as two separate bands.

• Criminal liability: actus reus and mens rea for the specified offences: assault and battery, sections 47, 20 and 18 of the Offences Against the Person Act 1861; theft, robbery, burglary and aggravated burglary (Theft Act 1968, ss 1, 8, 9, 10); simple and aggravated criminal damage and arson; murder, voluntary and involuntary manslaughter; fraud by false representation, failing to disclose and abuse of position. Also intoxication and self-defence, loss of control and diminished responsibility, accessories and joint enterprise, and attempts.
• Criminal practice: advising at the police station (rights, detention limits, identification, silence, interviews, appropriate adults); bail; first hearings, plea before venue and allocation; case management and disclosure; evidence (burden and standard, identification, inferences from silence, hearsay, confessions, bad character, section 78); trial procedure; sentencing; appeals; and youth court procedure.

Key principles: criminal liability

Actus reus and mens rea

• An omission is criminal only where there is a duty to act, for example a duty voluntarily assumed or one arising from creating a dangerous situation (R v Miller).
• Causation: the defendant's act must be a factual and legal cause; negligent medical treatment rarely breaks the chain (R v Cheshire), and a foreseeable reaction by the victim does not (R v Roberts).
• Intention may be direct or oblique: for murder the jury may find intention where death or serious harm was a virtual certainty and the defendant appreciated that (R v Woollin).
• Recklessness is subjective: awareness of a risk that it was unreasonable to take (R v G).
• Actus reus and mens rea must coincide, but a continuing act can supply the overlap (Fagan v MPC). Transferred malice applies within the same offence (R v Latimer).

The offences

• Assault: causing apprehension of immediate unlawful force (words can suffice, R v Ireland). Battery: applying unlawful force.
• Section 47: assault or battery occasioning actual bodily harm; mens rea only for the assault or battery.
• Section 20: unlawfully inflicting grievous bodily harm or wounding, foreseeing some harm (R v Mowatt). Section 18: with intent to cause grievous bodily harm.
• Theft: dishonest appropriation of property belonging to another with intention permanently to deprive. Dishonesty is decided on the defendant's actual knowledge or belief, then the standards of ordinary decent people (Ivey; R v Barton and Booth), subject to section 2. Borrowing can be theft where the item's value is used up (s 6).
• Robbery: stealing with force or the threat of force immediately before or at the time and in order to steal.
• Burglary: entering a building or part as a trespasser with intent to steal, inflict grievous bodily harm or do unlawful damage (s 9(1)(a)), or having entered, stealing or inflicting grievous bodily harm (s 9(1)(b)). Aggravated burglary adds having a weapon at the time.
• Criminal damage: destroying or damaging another's property intending or reckless as to damage, without lawful excuse; an honest belief in the owner's consent is a lawful excuse (s 5). Aggravated damage requires intent or recklessness as to life being endangered by the damage (R v Steer). By fire, it is arson.
• Murder: unlawful killing with intent to kill or cause grievous bodily harm. Unlawful act manslaughter: an unlawful and objectively dangerous act causing death (R v Church). Gross negligence manslaughter: breach of a duty of care with an obvious risk of death, so bad as to be criminal (R v Adomako).
• Fraud (Fraud Act 2006): false representation (s 2), failing to disclose information under a legal duty (s 3), abuse of position (s 4). Each is complete without any gain or loss.

Defences and parties

• Self-defence: force reasonable in the circumstances as the defendant honestly believed them (Criminal Justice and Immigration Act 2008, s 76), but not a belief due to voluntary intoxication.
• Intoxication: voluntary intoxication may negate a specific intent but is no defence to basic intent offences (DPP v Majewski).
• Loss of control (Coroners and Justice Act 2009, ss 54 and 55): a qualifying trigger and the normal person test; it need not be sudden but is excluded for considered revenge. Once raised, the prosecution must disprove it.
• Diminished responsibility (Homicide Act 1957, s 2): an abnormality of mental functioning from a recognised medical condition; the defence must prove it on the balance of probabilities.
• Both partial defences reduce murder to manslaughter.
• Accessories must intend to assist or encourage, knowing the essential facts; foresight is only evidence of intent (R v Jogee).
• Attempt: an act more than merely preparatory, with intent to commit the offence (Criminal Attempts Act 1981, s 1).

Key principles: criminal practice

At the police station

• Detention: usually up to 24 hours from arrival at the station; a superintendent may extend to 36 hours for an indictable offence; magistrates' warrants to 96 hours. Reviews by an inspector after six hours, then every nine hours.
• Rights: free legal advice (s 58) and having someone informed (s 56). For indictable offences, delay may be authorised for up to 36 hours: by a superintendent for legal advice, by an inspector for informing someone.
• Interviews: a suspect under 18 or vulnerable must have an appropriate adult, who must not be the victim, a witness, involved in the offence or the solicitor. The solicitor may advise silence and challenge improper questions; removal is only for conduct that prevents proper questioning.
• Silence: proper inferences may be drawn from failure to mention a fact later relied on (Criminal Justice and Public Order Act 1994, s 34), and under ss 36 and 37 after a special warning; no conviction on silence alone (s 38).
• Identification: where identity is disputed and the suspect is known and available, an identification procedure (usually a video identification) must normally be held (Code D).

Courts and procedure

• Classification: summary-only, either-way and indictable-only. Indictable-only offences are sent straight to the Crown Court (Crime and Disorder Act 1998, s 51).
• Either-way offences: plea before venue; on a not guilty indication, allocation under ss 19 to 20 of the Magistrates' Courts Act 1980; if the magistrates accept jurisdiction the defendant may still elect jury trial.
• Bail: a general right to bail (Bail Act 1976, s 4), refused only on Schedule 1 grounds such as substantial grounds for believing the defendant would fail to surrender, offend or interfere with witnesses. At the next hearing any argument may be used; after that, only new ones.
• Disclosure: the prosecution must disclose unused material that might undermine its case or assist the defence; in the Crown Court a defence statement is compulsory, normally within 28 days, on pain of adverse inferences (Criminal Procedure and Investigations Act 1996, ss 5 and 11).

Evidence and trial

• The prosecution must prove guilt beyond reasonable doubt; where a defendant bears a legal burden, it is on the balance of probabilities.
• Identification: a Turnbull warning where the case depends substantially on disputed identification.
• Hearsay is admissible only through the routes in the Criminal Justice Act 2003, for example where the witness is dead or unavailable (s 116).
• Confessions must be excluded if obtained by oppression or in circumstances likely to make them unreliable, unless the prosecution proves otherwise beyond reasonable doubt (PACE, s 76); all prosecution evidence may be excluded for unfairness (s 78).
• Bad character of the defendant is admissible only through the seven gateways of s 101(1), for example to show propensity (gateway (d)), subject to exclusion for unfairness (s 101(3)).
• Submission of no case: the judge stops the case if the evidence at its highest could not properly support a conviction (R v Galbraith).
• Witnesses: no leading questions in examination-in-chief on disputed matters; a spouse is compellable for the prosecution only for specified offences such as assault on the spouse (PACE, s 80).

Sentencing and appeals

• Sentencing follows the Sentencing Council guidelines, assessing culpability and harm, then aggravating and mitigating factors. A guilty plea earns up to a one-third reduction at the first stage. A material dispute about the facts after a guilty plea is resolved at a Newton hearing.
• Appeals: from the magistrates' court to the Crown Court as of right (a rehearing), or to the High Court by case stated on a point of law; from the Crown Court to the Court of Appeal with leave, on the ground that the conviction is unsafe.
• Reforms to jury-trial election, plea credit and magistrates' appeals were proposed in 2025 (Leveson); the law stated here is as enacted at 1 September 2026.

Conduct points

• A client who admits guilt may still plead not guilty and put the prosecution to proof, but the solicitor must not advance a positive case known to be false (SRA Code of Conduct for Solicitors, paragraphs 1.4 and 2.2).
• The solicitor must not mislead the court about the client's record. Without the client's consent, the solicitor may not volunteer it, but must cease to act if continuing would mislead the court.

Worked example

Ivan is arrested at 09.00 on Monday for burglary and arrives at the police station at 09.30. He wants a solicitor and asks for his partner to be told.

1. The detention clock runs from 09.30. His detention must be reviewed by 15.30 if it was authorised at 09.30, and he must be charged or released by 09.30 on Tuesday unless a superintendent extends it.
2. Burglary is indictable, so a superintendent could delay legal advice, and an inspector delay telling his partner, for up to 36 hours, but only on the specified grounds.
3. In interview his solicitor may advise silence. If Ivan later relies at trial on a fact he did not mention, a court may draw proper inferences under section 34.
4. Most burglaries are triable either way (burglary of a dwelling involving violence or the threat of it is one exception). On a not guilty indication the magistrates decide allocation, and Ivan may elect Crown Court trial if they accept jurisdiction.

Scope follows the SRA's SQE1 Functioning Legal Knowledge Assessment Specification (FLK2, Criminal Law and Practice). The notes are our own summary, not SRA material. Law of England and Wales as at 1 September 2026 (the SRA assesses the law as it stands four calendar months before the first assessment in a window).