Criminal Law
Understanding Criminal Cases, Offences & Court Procedure
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“... every criminal offence carries with it a potential penalty or sentence. The nature of the sentence depends on the type and seriousness of the offence involved”
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What is the difference between a criminal case and a civil case?
What do the prosecution have to prove in a criminal case? The burden and standard of proof
Researching the criminal law - What text books do criminal lawyers use?
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What is a criminal case?
A criminal case is one where a person or a company, (‘the defendant’ or ‘the accused’) is alleged to have committed a criminal offence (‘the charge’, ‘the crime’ or ‘the offence’). All criminal offences have a potential maximum penalty available, from a fine for the least serious to life imprisonment for the most serious. A person cannot be sentenced for a criminal offence unless convicted, either by pleading guilty of being convicted after trial (where the guilt of the defendant must be established beyiond reasonable doubt).
Unlike criminal offences, civil cases do not carry any sentence or penalty. Civil cases relate to disputes between individuals, businesses or other public or private institutions and are often based on one party seeking damages against another party, such as for breach of contract, personal injury or unfair dismissal from work. When a civil case goes to court, there is a lower standard of proof than in criminal cases, so liability must be established on the balance of probabilities (i.e. more lkikely than not).
The purpose of the criminal law (and the creation of criminal offences) is to regulate conduct in society. Criminal offences are usually created by Acts of Parliament (also known as statutes or legislation). For example, the offence of theft is contained in section 1 of the Theft Act 1968 as follows: ‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it’ (which effectively means dishonestly taking someone else’s property and intending to keep it or treat it as your own to dispose of).
Not all criminal offences are created by statute - a very small proportion have come into existence and been developed and refined by judges over a long period of time through what is known as the common law. Common law offences include murder, manslaughter, perverting the course of justice, kidnapping, false imprisonment and cheating the public revenue.
When a statute (such as the Theft Act 1968) is created, judges are often required to interpret precisely what the law means. When senior judges in the High Court, the Court of Appeal (Criminal Division) or the Supreme Court give a judgment on the meaning of the law, this becomes a precedent which other lower courts (the magistrates’ court and the Crown Court) must follow. An example of this can be seen below in Understanding Criminal Offences.
What is the difference between a criminal case and a civil case?
Civil cases relate to disputes between individuals, businesses or other public or private institutions and are often based on one party seeking damages against another party, such as for breach of contract, personal injury or unfair dismissal from work. Civil cases do not carry any sentence or penalty.
Sometimes when the police refuse to get involved in a case it will be because they say it is a ‘civil matter’. What they mean is the dispute is a private one between individuals but is not one which, in their view, amounts to a criminal offence.
There is sometimes an overlap between civil cases and criminal cases. A clear example is an assault. If one person unlawfully punches another person in the face this amounts to an assault, which is both a criminal offence and also a matter which can be pursued through the civil courts to recover damages.
The victim could bring a civil case for assault and seek to recover damages for their pain and suffering and perhaps any other damage that had resulted (e.g. dental work, a new pair of glasses and lost income). This would be pursued through the civil courts, such as the County Court or the High Court.
Also, the assailant could be prosecuted for assault in the criminal courts. If there was a conviction (i.e. if the defendant was found guilty or pleaded guilty) he/she would be sentenced (and this could include a fine and potentially a sentence of imprisonment). A compensation award could also be made as part of that sentence but this would rarely amount to what could be recovered in the civil courts.
Even where a prosecution is unsuccessful in the criminal courts (because, for example, the jury were not satisfied beyond reasonable doubt), a claim can often still be made for damages for the same matter through the civil courts where a lower standard of proof is required.
How is a criminal case started?
Criminal proceedings are sometimes commenced by a person being formally charged at the police station. In these cases the person charged will usually have been arrested previously and questioned at the police station.
Where a person is not formally charged, the criminal proceedings are usually started by what is known as a Written Charge and Requisition (i.e. a written notice containing what the alleged offence is together with a requirement to attend court).
Minor motoring offences (such as being caught speeding by a speed camera) begin with a notice of intention to prosecute seeking the identity of the driver, often followed by a conditional offer of a fixed penalty (where you can accept the fixed penalty or choose to contest your case in court) or alternatively a written charge and requisition requiring attendance at court.
A small minority of cases, including private prosecutions, start by the issue of a summons to attend court.
What courts are criminal cases heard in?
The overwhelming majority of criminal cases are heard and completed in the magistrates’ court (around 95%), but some cases continue to the Crown Court for sentence or trial by jury.
Every case that requires a court appearance starts in the magistrates’ court, but only some carry on to the Crown Court (see which court will I go to? for more information).
Although magistrates’ courts deal mainly with criminal cases, magistrates also deal with some family law cases and a few civil matters (such as making liability orders for failure to pay council tax).
For people aged under 18 who face a criminal charge, their case will usually start and finish in the Youth Court. This type of court is very similar to a magistrates’ court, but is slightly less formal and there are restrictions on public access and press reporting. Only in the most serious of cases are young people sent to the Crown Court. Young people can also appear in the adult courts when they are jointly charged with adults (over 18s).
When defendants wish to appeal against their sentence or conviction, they will go to the criminal appeal courts. Appeals from the magistrates’ court are made to the Crown Court or, for a small number of cases where the appeals are based solely on matters of law, to the High Court. Appeals from the Crown Court are made to the Court of Appeal (Criminal Division). The final court of appeal in criminal cases, as well as in civil cases, is the Supreme Court.
Who can bring a criminal case?
When criminal proceedings are brought against a person it is known as a ‘prosecution’. Some prosecutions result in the case going to court (the magistrates’ court and sometimes the Crown Court) and others, such as certain motoring offences, allow you to accept a fixed penalty offer or to plead guilty by post meaning you do not usually have to attend court.
Most prosecutions in England & Wales are carried out by the Crown Prosecution Service (CPS). The CPS is the public prosecution service and prosecutions are brought in the name of the Crown as the constitutional monarch, so you will see case listed as ‘Rex v [name of defendant]’ or ‘R v [name of defendant]’ or ‘The King v [name of defendant]’.
Some lower level offences can be commenced by the police without being referred to the CPS. There are other public authorities who prosecute cases, such as the Department of Work and Pensions, the Environment Agency, the Food Standards Agency, the Gambling Commission, the Health and Safety Executive and the Serious Fraud Office.
A prosecution can also be brought by a private individual or company (who is not acting on behalf of the police or any other prosecuting authority or body which conducts prosecutions), although this is subject to some restrictions for certain offences and the CPS have the authority to step in and take the case over in certain circumstances. Other private organisations, such as the RSPCA and the Post Office, also bring prosecutions.
If you would like to know more about the process prosecutors go through in deciding whether or not to bring a criminal case click here on Will I be prosecuted? >>
What do the prosecution have to prove in a criminal case? The burden and standard of proof
To be convicted of a criminal offence the prosecution have to prove the case beyond reasonable doubt. This is known as the burden and standard of proof. The burden of proving the case lies on the prosecution (it is for the prosecution to prove that a defendant is guilty, not for the defendant to prove they are innocent). The standard of proof is beyond reasonable doubt - this means that the magistrates or jury must be satisfied so that they are sure of a defendant’s guilt before they can find him or her guilty of a criminal offence.
This standard of proof in criminal cases is a very high one. It means that even if the magistrates or jury think it probable that a defendant committed an offence but they are less than sure of it, then the correct verdict is one of Not Guilty.
This can be contrasted with the lower standard of proof in a civil case, where the party bringing the claim only has to prove the claim on the balance of probabilities, i.e. that it is more likely than not. This explains why a defendant could be found Not Guilty in a criminal trial, but then be successfully pursued through the civil courts on the same facts.
To get to grips with what the prosecution have to prove in an individual criminal case means looking at all the elements of a particular offence. This is how criminal lawyers start when looking at a new case, by analysing the particular offence the defendant is charged with in detail to understand exactly what the prosecution have to prove. Below is an example of this in a case of theft.
Understanding criminal offences
Example - the offence of Theft
Section 1 of the Theft Act 1968 defines the offence of theft in this way: ‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.’
What does all this mean? What does ‘appropriates’ mean? What does ‘dishonestly’ mean in the context of this offence and by whose standards of honesty is the defendant to be judged?
To answer these questions, ‘appropriates’ is defined under section 3 of the Theft Act 1968 as, ‘Any assumption by a person of the rights of an owner amounts to an appropriation.’
And what about the dishonesty part? The Theft Act 1968 section 2 gives some limited help here by informing us that appropriation of another's property is not dishonest in certain circumstances (if you believe in law you have a right to the property, or believe the other would consent to you taking it, or in certain circumstances you believe the owner cannot be found) but it does not explain the standard by which dishonesty should be judged, i.e. whether it is an objective test where a jury should be asked to apply what they believe to be ordinary standards of honesty to decide if someone’s behaviour was dishonest, or it is a subjective test where what matters is the defendant’s belief as to whether he was dishonest according to his own standards or justification (i.e. did Robin Hood believe he was acting dishonestly when he stole from the rich to give to the poor?).
The meaning of Dishonesty
The legal meaning of dishonesty is contained in the Supreme Court judgment in the case of Ivey v Genting Casinos (UK) Ltd (t/a Crockfords) [2017] UKSC 67 as follows:
First, a jury must decide what the defendant’s actual state of knowledge or belief was as to the facts (e.g. if it is alleged that a defendant stole a charity box but he claims he was given it as a gift, the question is did he know he was not entitled to take it or might he have genuinely believed he could take it?);
Secondly, the jury must then decide, in light of their decision about the defendant’s state of knowledge or belief, whether his conduct was dishonest by the standards of ordinary decent people (in the case of taking a charity box which he knew he was not entitled to take, undoubtedly yes; if he believed he was entitled to take it, then no).
The offence of theft is a good example of the complications involved in getting a full understanding of what an offence actually means.
What rules govern procedure in the criminal courts?
Criminal Procedure Rules and Practice Directions
It will come as no surprise that the court system is governed by a number of rules and regulations. In the criminal courts, the main rules are contained in the Criminal Procedure Rules. These are supplemented by the Criminal Practice Directions 2023 (together with several older Practice Directions).
You can see the Criminal Procedure Rules and Practice Directions on the gov.uk website.
You can also see the Criminal Procedure Rules on the legislation.gov.uk website.
You can see Criminal Procedure Rules forms on the gov.uk website.
The Criminal Procedure Rules are often abbreviated to ‘CrimPR’. They govern procedure in the magistrates’ court, the Crown Court and the Court of Appeal.
These rules cover a wide variety of matters, from the duty of the court and the parties in the case (Part 1 The Overriding Objective) to Service of Documents (Part 4), Bail and Custody Time Limits (Part 14), Expert Evidence (Part 19), magistrates’ court trial and sentence (Part 24), Crown Court trial and sentence (Part 25) Appeal to the Crown Court (Part 34) and Appeal to the Court of Appeal (Parts 36 to 42).
The Criminal Practice Directions 2023 supplement the CrimPR and should be read in conjunction with them.
For example CrimPR 3.31 governs applications for an advance indication of sentence in the Crown Court, and Criminal Practice Direction 2023 9.4 onwards sets out the requirements in more detail.
The Criminal Procedure Rules forms link takes you to any forms that you may need during the course of a case, such as for a Bail Application, an application for a witness summons, the forms required to prepare for trial in the Crown Court or magistrates’ court, or a Notice of Appeal against conviction and/or sentence. Sometimes forms are provided in ‘Easy Read’ versions, (e.g. the Appeal from the Crown Court form) which are far easier to follow for non-lawyers.
Legal Publications
In addition to the rules and practice directions above, there are a number of legal publications which are both freely available and which contain valuable information. Throughout this website reference is made to many of these, such as the Crown Court Compendium which provides guidance to judges on trial and sentence in the Crown Court, the Adult Court Bench Book which provides guidance for magistrates, and the Sentencing Guidelines which set out the approach to sentencing for most criminal offences. Also, throughout this website reference is made to the relevant Criminal Procedure Rules and Practice Directions to help you.
On this website, links are provided to cases where possible. Not all cases are available on free websites, but where they are links are provided on Bailii (British and Irish Legal Information Institute) and judiciary.uk. Links are provided to statutes on legislation.gov.uk and other various parts of gov.uk.
Researching the criminal law - What text books do criminal lawyers use?
There are a number of text books on criminal law which are used by students and academics. However, when it comes to those books used by barristers and solicitors to assist them both in court and for the preparation of cases, there are two main practitioner textbooks that are in use. These are Archbold Criminal Pleading Evidence and Practice; and Blackstone’s Criminal Practice.
New versions of these books are published every year and each has regular supplements containing legal updates to keep legal professionals current in their legal knowledge. Most practitioners will also subscribe to online databases such as LexisNexis and Westlaw. Sadly these practitioner text books and legal databases are expensive. Also, practitioner textbooks assume a certain level of knowledge of the criminal law, so they can be confusing to anyone who has not gained a reasonable level of knowledge or experience.
This website hopefully goes some way to bridging that gap for people who are new to the criminal law or who are hoping to refresh their knowledge in certain areas.
If in doubt, seek legal advice
If you are struggling to make sense of an offence you are facing, this is just one good reason to seek legal advice at an early stage. After all, if you are unsure what the meaning of the offence is you may not realise you have a defence open to you. Criminal lawyers are under a professional duty to stay up-to-date with the law and must have access to the latest legal materials (such as legal texts and cases) to ensure that clients are properly advised.
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