Will I Be Prosecuted ?

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.