A candidate emailed us the week before her sitting with a single question. In the mock, a man had swung a bottle at a rival outside a pub, missed, and struck a bystander who later died of a bleed on the brain. Four answer options: murder, unlawful act manslaughter, gross negligence manslaughter, section 18. She had picked gross negligence manslaughter because "he was careless with the bottle". She lost the mark, and she could not see why.
That single question contains almost everything Criminal Law and Practice tests in SQE1 FLK2: identifying the correct mens rea, applying transferred malice, choosing between offences on the homicide ladder, and resisting the option that merely sounds plausible. Criminal is one of the six FLK2 subjects, and it is the one where candidates most often feel confident and still bleed marks. Let me show you where the marks actually sit.
Mens rea in SQE1 FLK2: intention, recklessness and transferred malice
Almost every criminal MCQ turns on a fault element. Get the vocabulary precise and the questions become far easier to sort.
Direct intention is straightforward: it was D's aim or purpose. Oblique intention is the harder one. Following R v Woollin [1999], the jury may find intention where death or serious bodily harm was a virtual certainty from D's actions and D appreciated that. Note the wording carefully — the jury may find, it is not automatic, and it is a rule of evidence rather than a definition.
Recklessness is subjective after R v G and Another [2003]: D must actually foresee the risk and it must be unreasonable in the circumstances to take it. A defendant of low intelligence or young age who genuinely did not see the risk is not reckless, however obvious the risk was to everyone else. Examiners love that fact pattern.
Then transferred malice: the mens rea aimed at one victim transfers to the actual victim where the offence is the same in kind. Our bottle-swinger intended serious harm to the rival; that intention transfers to the bystander. Murder, not manslaughter. Malice will not transfer between different types of offence — intention to break a window does not become intention to injure a person.
Drill for the exam: for each offence on your list, write the actus reus and mens rea on one line each. If you cannot state the mens rea of section 20 OAPA 1861 in under ten seconds, you are not ready for the property and offences-against-the-person questions.
The homicide ladder: murder, voluntary and involuntary manslaughter
Murder remains a common law offence: unlawful killing of a person under the King's peace with malice aforethought, meaning intention to kill or to cause grievous bodily harm (R v Vickers; R v Cunningham [1982]). Candidates lose marks by assuming an intention to kill is required. It is not.
If murder is made out, ask whether a partial defence reduces it to voluntary manslaughter. There are only two you need in depth.
Loss of control under sections 54–55 of the Coroners and Justice Act 2009 requires a loss of self-control, a qualifying trigger, and that a person of D's sex and age with a normal degree of tolerance and self-restraint might have reacted in the same way. The triggers are fear of serious violence from V, or things said or done of an extremely grave character giving D a justifiable sense of being seriously wronged. Sexual infidelity is excluded as a qualifying trigger on its own. The loss of control need not be sudden, but a considered desire for revenge kills the defence.
Diminished responsibility under section 2 of the Homicide Act 1957 (as amended) needs an abnormality of mental functioning arising from a recognised medical condition, which substantially impaired D's ability to understand the nature of the conduct, form a rational judgement or exercise self-control, and which provides an explanation for the killing. Watch the burden: the defence must prove it on the balance of probabilities, whereas with loss of control the prosecution must disprove it beyond reasonable doubt once sufficient evidence is raised. Burden questions are easy marks if you have memorised them.
Where there is no intention to kill or cause GBH, you are into involuntary manslaughter. Unlawful act manslaughter requires an intentional act which is criminal (not merely a civil wrong), objectively dangerous in the sense that a sober and reasonable person would recognise some risk of harm (R v Church), and which caused death. D needs the mens rea for the base offence only — no foresight of death is required. Gross negligence manslaughter (R v Adomako [1995]) needs a duty of care, breach, a serious and obvious risk of death at the time of the breach, causation, and conduct so bad as to be criminal. That "serious and obvious risk of death" limb, sharpened in R v Rose [2017] and R v Broughton [2020], is where most wrong answers hide.
Non-fatal offences and property offences in Criminal Law and Practice
Non-fatal offences are a hierarchy question in disguise. Assault and battery are common law offences charged under section 39 of the Criminal Justice Act 1988. Section 47 of the Offences Against the Person Act 1861 (assault occasioning actual bodily harm) needs no extra mens rea beyond that of the assault or battery — R v Savage settled this. Section 20 requires a wound or GBH with intention or recklessness as to some harm. Section 18 demands intention to cause GBH, or intention to resist or prevent lawful apprehension. So a defendant who recklessly inflicts a serious injury commits section 20, never section 18, no matter how bad the wound looks in the facts.
On the property side, the Theft Act 1968 rewards precision. Theft under section 1 is dishonest appropriation of property belonging to another with intention permanently to deprive. Dishonesty follows Ivey v Genting Casinos [2017], approved in Barton and Booth [2020]: ascertain D's actual state of knowledge or belief as to the facts, then apply the standards of ordinary decent people. There is no longer a second, subjective limb.
Keep these distinctions crisp:
- Robbery (s.8): a completed theft plus force, or putting or seeking to put someone in fear of force, immediately before or at the time of stealing and in order to steal. No theft, no robbery.
- Burglary (s.9): under s.9(1)(a) the ulterior intent to steal, inflict GBH or cause criminal damage must exist at entry; under s.9(1)(b) D must actually steal or inflict GBH (or attempt either) after entering as a trespasser.
- Fraud by false representation (Fraud Act 2006, s.2): a conduct offence. Nobody needs to be deceived and no gain need result — the dishonest representation plus intent to gain or cause loss is enough.
- Criminal damage (Criminal Damage Act 1971): note the aggravated form under s.1(2) where damage is intended or foreseen along with danger to life, and arson under s.1(3).
Defences that decide FLK2 questions
Self-defence and defence of another operate at common law and, for crime prevention, under section 3 of the Criminal Law Act 1967, with section 76 of the Criminal Justice and Immigration Act 2008 supplying the framework. D is judged on the facts as he honestly believed them to be, even if that belief was mistaken and unreasonable — but not where the mistake was caused by voluntary intoxication. The force used must be reasonable in those believed circumstances. In householder cases the test relaxes: force is unreasonable only if grossly disproportionate.
Duress by threats is tightly policed by R v Hasan [2005]: a threat of death or serious injury to D or someone D is responsible for, a reasonable belief in the threat, a reasonable person of D's characteristics would have given in, no safe avenue of escape, and no voluntary association with people D knew might coerce him. Duress is never available to murder or attempted murder (R v Howe; R v Gotts). Voluntary intoxication follows DPP v Majewski: it may negate the mens rea of specific intent offences such as murder, section 18 or theft, but it is no answer to basic intent offences such as section 20 or battery.
Do not forget the inchoate and secondary liability rules. An attempt under section 1 of the Criminal Attempts Act 1981 needs an act more than merely preparatory plus intention — attempted murder requires an intention to kill, nothing less. For accomplices, section 8 of the Accessories and Abettors Act 1861 applies, and after R v Jogee [2016] the mental element is intention to assist or encourage; foresight is evidence of intention, not a substitute for it.
Criminal practice: procedure, evidence and sentencing marks
The "and Practice" half of the subject is not decoration. Expect questions on classification of offences, plea before venue and allocation for either-way matters under the Magistrates' Courts Act 1980, sending indictable-only cases to the Crown Court under section 51 of the Crime and Disorder Act 1998, and the appeal routes — magistrates to the Crown Court by way of rehearing, or to the High Court by case stated on a point of law.
On evidence, know the confession rules in section 76 of PACE 1984 (oppression or things said or done making a confession unreliable), the general exclusionary discretion in section 78, adverse inferences under section 34 of the Criminal Justice and Public Order Act 1994, and the bad character gateways in section 101 of the Criminal Justice Act 2003. Gateway (d), propensity, is the workhorse — and the court must exclude under section 101(3) if admission would have such an adverse effect on fairness that it ought not to be admitted. Hearsay lives in sections 114–116 of the same Act.
Sentencing questions usually test credit for a guilty plea (up to one third where the plea is indicated at the first stage), the custody threshold, and the availability of community orders under the Sentencing Act 2020. Where facts are disputed after a guilty plea, remember the Newton hearing.
What to actually do in your last month of SQE1 revision
Build a one-page offence grid: offence, statute or common law, actus reus, mens rea, key case, available defences. Then practise reading MCQ facts backwards — start with the harm caused, work out what D foresaw, and only then pick the offence. Time yourself; with 180 questions and 5 hours 20 minutes per FLK paper, you have well under two minutes each, and criminal questions are wordy.
One more habit worth forming. When you get a question wrong, write a single sentence explaining why the distractor tempted you. Was it a mens rea mismatch? A burden of proof error? Nine times out of ten you will find the same three or four errors repeating, and fixing those is worth more than another fifty new questions.
If you want structure rather than guesswork, the CELE SQE team has been teaching all 13 SQE1 subjects since the very first sitting in 2021. Our SQE1 courses run at £3,720 (long-term), £2,750 (mid-term) and £1,750 (short-term), with single-FLK options at half those prices and £150 off for early bookings or within three months of your exam; the question bank subscription is £575 per month if you simply need more practice under timed conditions. Questions are welcome on WeChat SQE100 or at [email protected] — no obligation, we are happy just to help you plan.