BSB Criminal Litigation common mistakes
BSB Criminal Litigation · Understand the traps and how to avoid them.
On an arrest question the candidate says the arrest was lawful because there were reasonable grounds to suspect the suspect's involvement, and never addresses the second limb: whether there were reasonable grounds to believe the arrest was necessary for one of the s.24(5) PACE 1984 reasons, as expanded in Code G.
Arrest is taught early and the suspicion limb feels decisive; necessity is treated as a formality, and Code G's duty to consider alternatives such as voluntary interview or summons is forgotten under time pressure.
What to do instead
Answer arrest questions with an explicit two-limb check: (1) s.24(2)-(4) reasonable suspicion; (2) s.24(5) necessity, naming the specific ground and explaining why the less intrusive alternative would not achieve the same purpose. Then note the s.28 caution, s.30 timing and Code G paragraph 2.2/2.4.
The candidate advises 'bail will be granted' or 'bail will be refused' without working through the statutory sequence: the s.4 Bail Act 1976 right to bail, the Schedule 1 exceptions, the para 2ZA real-prospect assessment, conditions under s.3, and the reasons the court must record under s.5B.
Candidates argue the merits of the case rather than the statutory exceptions; the Bail Act framework is layered and exams test the structure, not the outcome.
What to do instead
Use a fixed checklist: identify the offence category and applicable Schedule 1 Part I paragraph; state which exception is relied on and the evidence for it; test whether conditions (s.3) could meet the risk so that bail can be granted; note para 2A for murder, manslaughter, rape and serious sexual offences (exceptional circumstances only); finish with s.5B reasons and the right to a further application on a change of circumstances.
Custody time limits are calculated from the date of charge or committal, or the 56-day summary limit is applied to an either-way case, and the candidate does not identify who may extend the limit, on what test, or the consequence of expiry.
CTLs are learned as a table of numbers without anchoring them to the statutory start point (first appearance) and the s.22 Prosecution of Offences Act 1985 extension mechanism.
What to do instead
Anchor the answer: start date is the first appearance. Limits are 56 days for summary-only cases, 70 days from first appearance to committal, and 182 days from first appearance to trial in the Crown Court. An extension must be applied for before expiry, to the court, on 'good and sufficient cause' and 'due expedition'; if the limit expires the accused must be released on bail.
The candidate states the prosecution disclosure test as material that 'would' undermine the prosecution case or as material 'relevant to' the defence, rather than material that might reasonably be expected to undermine the prosecution case or assist the defence case.
The 'might reasonably be expected' threshold is deliberately low; candidates tighten it by importing a merits test, and they treat disclosure as a single event rather than a continuing duty.
What to do instead
Quote s.3 CPIA 1996 precisely and analyse both limbs separately - undermine or assist. Note the duty is continuing (s.7A) and subject to prosecutorial review; then move on to the defence statement and any s.8 application rather than stopping at the prosecution schedule.
The candidate treats the defence statement as an optional formality, does not set out the s.6A content requirements, and fails to warn about the s.11 CPIA 1996 consequences of a late, inadequate or inconsistent statement; s.8 applications and public interest immunity are ignored.
The defence statement is seen as paperwork rather than a statutory document with evidential and costs consequences, and PII is perceived as a niche topic.
What to do instead
Set out s.6A content (nature of defence, matters in issue, alibi particulars), the s.6B updated statement, service time limits and the s.11 consequences (adverse inference, comment, costs). For withheld material, use a s.8 application tied to the s.2/s.3 schedules; flag PII and the possibility of special counsel where material cannot be disclosed to the defence.
Allocation is decided by asking whether the case is 'serious' or whether the likely sentence exceeds six months, without applying s.19 Magistrates' Courts Act 1980 (nature and seriousness of the offence and the adequacy of the court's sentencing powers) and without taking the defendant's election in the correct order.
Mode-of-trial guidelines are remembered instead of the statutory test, and the sequence of submissions is lost: prosecution, defence, decision, then election.
What to do instead
Run the sequence explicitly: s.19(1)-(3) considerations, the Bench's decision, the defendant's right to elect Crown Court trial under s.20, and the effect of that election. Separately spot automatic sending cases under s.51 Crime and Disorder Act 1998 (specified offences) and committal for sentence under s.6 Powers of Criminal Courts (Sentencing) Act 2000 after summary conviction.
The candidate argues that previous convictions are 'relevant' and should be admitted, without identifying which s.101(1) Criminal Justice Act 2003 gateway applies, and without addressing s.101(3) exclusion, s.107 stopping the case, or the notice requirements.
Bad character is reduced to 'previous convictions make him look guilty'; the gateways and safeguards are the actual test, and candidates skip straight to the facts of the convictions.
What to do instead
Name the gateway (for example s.101(1)(d) with s.103(1)(a) as an important matter in issue) and show the reasoning that makes the conviction probative. Then consider s.101(3) safety, s.78 PACE 1984 discretion, s.107 and the Criminal Procedure Rules notice requirements, including the non-defendant regime under s.100.
The candidate treats any out-of-court assertion as inadmissible, or conversely admits it without identifying a s.114 gateway - typically relying on 'the witness is unavailable' without checking the closed list of s.116 conditions.
Hearsay is misremembered as a blanket exclusion, and s.116's exhaustive conditions (death, unfitness, fear, unavailability, absence abroad) are collapsed into a general convenience test.
What to do instead
Map s.114(1)(a)-(d) first, then check s.116 or s.117 (business records) or s.118 (preserved common law) as appropriate, then s.121 for multiple hearsay. Finish with s.78 PACE and the s.114(1)(d) interests-of-justice backstop, plus notice and the s.124 impeachment route.
The candidate proposes a sentence above the statutory maximum or the court's overall limit, forgets any credit for a guilty plea, and does not apply the relevant sentencing guideline in the order in which its steps are set out.
Numbers are memorised in the abstract and sentencing is approached as an outcome rather than a process; guideline structure and statutory limits are treated as background.
What to do instead
Work the guideline step by step: culpability and harm, starting point, aggravating and mitigating factors, then the s.144 CJA 2003 guilty-plea reduction, totality, and the duty to give reasons under s.174 CJA 2003. Before announcing figures, check the maximum for each offence and the court's overall limit, and consider ancillary orders and the victim surcharge.
The candidate sends a client to the Crown Court to appeal a Crown Court conviction, or advises a case stated appeal from the Crown Court, and conflates the 21-day and 28-day time limits.
Appeal routes are learned as a list without the pairing between the court of trial and the appellate court, and time limits are not attached to the route.
What to do instead
Map the routes: magistrates to the Crown Court under s.108 MCA 1980 (conviction or sentence, 21 days, notice to the magistrates' court); magistrates to the Divisional Court by case stated under s.111 MCA 1980 (21 days) or judicial review; Crown Court to the Court of Appeal under ss.1 and 9 Criminal Appeal Act 1968 with leave under s.18 (28 days). Then note the CCRC referral route and its 'real possibility' test.