All about criminal cases
WHAT IS A CRIMINAL CASE?
HOW IS A CRIMINAL CASE STARTED?
WHAT COURTS ARE CRIMINAL CASES HEARD IN?
WHO CAN BRING A CRIMINAL CASE?
HOW ARE CRIMINAL OFFENCES CREATED?
WHAT DO THE PROSECUTION HAVE TO PROVE?
UNDERSTANDING CRIMINAL OFFENCES
WHAT IS A CIVIL CASE?
WHAT IS THE DIFFERENCE BETWEEN A CIVIL & A CRIMINAL CASE?
CAN A CIVIL CASE ALSO BE A CRIMINAL CASE?
IS THE BURDEN AND STANDARD OF PROOF THE SAME IN CIVIL AND CRIMINAL CASES?
WHAT DO THE POLICE MEAN IF THEY SAY IT'S A 'CIVIL MATTER'?
Here you can find out what criminal offences are and how to understand their legal meaning, as well as how criminal cases are commenced and where they are heard, what the prosecution have to prove and to what standard, as well as how criminal cases differ from civil cases. Remember that the better informed you are the more it will help you with your own case, but you should always seek legal advice from a qualified lawyer who will be able to undertake any legal research that is required and who can represent you in court if necessary.
What is a criminal case?
If you are charged with a crime at the police station the answer to this question will probably be pretty obvious. On the other hand, if you receive paperwork through your door telling you to go to court the answer is not always so clear. Either way, here is a short guide to help you.
A criminal case is one where a person or a company, (known as ‘the defendant’ or ‘the accused’) is accused of committing a criminal offence (usually referred to as ‘the charge’, ‘the crime’ or ‘the offence’).
There are numerous criminal offences from the relatively minor such as speeding or driving without insurance to the very serious, such as murder and manslaughter. Every criminal offence carries with it a potential penalty or sentence. The nature of this sentence depends on the type and seriousness of the offence involved.
Using motoring offences as an example, a fixed penalty speeding offence is punishable with a fine and endorsement of your driving licence with penalty points, whereas the far more serious offence of causing death by dangerous driving is punishable by imprisonment of up to 14 years and mandatory disqualification from driving.
How is a criminal case started?
As mentioned above, 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?
Criminal cases are heard in the Magistrates’ Court and in the Crown Court. 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).
It is worth mentioning here that although Magistrates’ Courts deal with the majority of 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).
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 have to attend court.
Most prosecutions in England & Wales are carried out by the Crown Prosecution Service (CPS). 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, 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?
How are criminal offences created?
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 belongings and intending to keep them or treat them 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.
what do the prosecution have to prove?
To get to grips with what the prosecution have to prove means looking at all the elements of a particular offence. Sometimes this is not as easy as it sounds. The people who draft criminal offences often use several words where one would do and Acts of Parliament can be very long and hugely complicated. For example, the Sexual Offences Act 2003 contains 143 sections and 7 schedules and the Criminal Justice Act 2003 contains 339 sections and 38 Schedules. On top of all this, statutes are added to and amended all the time, often by successive governments, who insert new sections into statutes to create new offences, to modify existing ones, or to change the penalties available to the courts for particular offences.
Understanding Criminal offences
An example - The Offence of Theft
To get the full meaning of a criminal offence you often have to search around for various definitions in other sections of the statute. Let’s take theft as an example. 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? Well, to answer these questions, ‘appropriates’ is defined under section 3 of the Theft Act 1968 which states, ‘Any assumption by a person of the rights of an owner amounts to an appropriation.’ So to understand section 1 we also need to read section 3. So far so good.
And what about the dishonesty part? The Theft Act 1968 section 2 gives some limited help here by telling 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. was Robin Hood dishonest or not when he stole from the rich to give to the poor?).
Oh Ghosh! The Meaning of Dishonesty
This question was initially answered when in 1981 a defendant by the name of Deb Baran Ghosh was convicted of a number of offences involving dishonesty and he appealed against his conviction to the Court of Appeal (Criminal Division) who considered what the test for dishonesty should be.
This is what the judges said: “In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails. If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did.” (R v Ghosh  EWCA Crim 2. Link provided by BAILII.)
So for many years that was the test for dishonesty. However, on 25th October 2017 the legal meaning of dishonesty was changed when the Supreme Court gave judgment in the case of Ivey v Genting Casinos (UK) Ltd (t/a Crockfords)  UKSC 67 and concluded that the second limb of the Ghosh test above was wrong and should no longer be applied. This means that the test for dishonesty is now the same in civil and criminal cases. When dishonesty is in issue the jury "must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest." (Lord Huges).
So the offence of theft is a good example of the complications involved in getting a full understanding of what an offence actually means and it also shows how the law changes and develops over time. This example requires consideration of a number of sections of the Theft Act 1968, as well as looking at case law (i.e. precedents where judges from the higher courts like the Court of Appeal and Supreme Court have analysed the meaning of words in statutes; their rulings then become binding on the lower courts, like the Magistrates’ Court and Crown Court, and assist with how the law should be interpreted and applied). Once this is done we know what all the elements of the offence of theft are, what they mean and what the prosecution must prove beyond reasonable doubt for the defendant to be convicted of this offence.
what is a civil case?
Civil cases relate to disputes between individuals, businesses or other public or private institutions. Civil cases are often based on one party seeking damages against another party, such as for an unpaid debt, personal injury or unfair dismissal from work. In other cases, such as family law cases, the courts are asked to make decisions about dividing money and assets or with whom the children should live.
Common examples of civil cases are:
- Family law cases – these often involve dealing with financial matters on divorce or separation, or making arrangements for who the children will live with and how often they will have contact with each party. Increasingly family law disputes are dealt with by a process of mediation;
- Personal Injury cases – these involve claims for compensation for injuries and other losses sustained as a result of car crashes, falls and other accidents where one party blames another;
- Clinical negligence – this involves bringing a claim against the NHS or another medical organisation or doctor for injuries and other losses due to poor quality medical care;
- Commercial and contractual claims – these arise from agreements which one party alleges the other has not fulfilled causing, usually, financial loss. They include claims for unpaid debts. These can be between businesses, individuals or both;
- Consumer cases – many civil cases involve claims relating to faulty products which are not fit for purpose, rogue traders who take your money and don’t do what they’ve promised to do, or poor service such as a useless car repair or shoddy building work. Consumer cases also involve utility companies who supply gas, electricity, water and other services to consumers;
- Housing – these involve rental issues in landlord & tenant cases, homelessness, eviction from rented accommodation or from your own home due to mortgage arrears, and other home-related issues.
- Land law and nuisance – these involve issues from the purchase and sale of land and property to issues between neighbours and landowners, including boundary disputes, trespass and issues regarding the use of land which causes a nuisance to neighbouring occupiers, such as excessive noise.
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. As mentioned earlier, the law continually develops. 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.
What is the difference between a civil & a criminal case?
Unlike criminal offences, civil matters do not carry any sentence or penalty; the essence of civil cases is to assist one party in a dispute with another and, often, to make a financial award to achieve justice between them. Criminal cases, on the other hand, are not brought to resolve disputes; rather, the criminal law exists to regulate conduct in situations where parliament considers a failure to abide by that standard of conduct is sufficiently serious to be a criminal offence. As such, criminal offences always carry a sentence or penalty, such as a fine for low-level offences up to imprisonment for more serious offences.
Can a civil case also be a criminal case?
Yes. There is sometimes an overlap between civil cases and criminal cases. A clear example is an assault. If one person unlawfully punches another in the face this amounts to an assault. The victim could bring a civil case for assault and seek to recover damages for his pain and suffering and perhaps any other damage that had resulted (e.g. dental work, a new pair of glasses and lost earnings). Also, the assailant could be prosecuted in the criminal courts because assault is a criminal offence. If there was a conviction (i.e. if he was found guilty or he pleaded guilty) he 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.
Is The burden & standard of proof the same in civil & criminal cases?
Another area of difference between civil and criminal cases is the burden and standard of proof. In a civil case the party bringing the proceedings (the claimant) usually has the burden of proving the case and must do so on the balance of probabilities (i.e. so the judge thinks it is more likely than not).
In a criminal case the burden of proof rests on the prosecution but the standard of proof is far higher so the prosecution must prove beyond reasonable doubt that the defendant is guilty (meaning the magistrates or jury have to be satisfied so that they are sure of the defendant’s guilt). The reason for the higher standard of proof in criminal cases is precisely because significant punishment by the state (which for some offences includes imprisonment) can follow from a criminal conviction.
It follows that even if a prosecution in the criminal courts fails (i.e. because the jury/magistrates are not satisfied so they are sure of the defendant’s guilt), a civil action for damages could potentially be brought on the same facts and it would be far easier to prove because of the lower standard of proof required.
What do the police mean if they say it's a 'civil matter'?
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, in their view, that amounts to a criminal offence.
For example, there may be a financial dispute between two people who have just ended a relationship; this may involve money in a joint account and a flat which they both shared. Imagine that one party withdraws all the money from the joint bank account. The other party may call the police saying all their money has been stolen by their partner. Unfortunately, given that it is a joint account both parties are often entitled to withdraw whatever is in it so no offence has been committed. For this reason the police would not take any action and the losing party would have to seek to recover the money using the civil court procedures.
It is worth bearing in mind here that police officers are not legal experts and sometimes get the law wrong, believing that a case is 'civil' rather than 'criminal' in nature when in fact there is ample evidence in support of a criminal prosecution.