Introduction: what the process means for you

A criminal case is a series of decisions and actions made by you and your lawyers as well as the police, a prosecutor and, if a charge is brought, the courts. What happens at one stage can have an important effect on the next. An account given in police interview will shape the charging decision and how a trial will unfold.

Not every case passes through all of the six stages we will talk about in this guide. Most cases will end without a criminal charge being brought at all. Many more will end after one hearing in the magistrates’ court, of those a number will proceed to trial either in the magistrates’ or Crown Court. Only a handful will ever go to appeal.

This guide explains the usual route for an adult criminal case in England and Wales. Youth court proceedings and some specialist cases follow different pathways through the justice system.

Police investigation

An investigation may begin with a complaint, a report from another organisation, information obtained by the police, or an incident witnessed by an officer. The police will then decide what enquiries are reasonable and proportionate. Those enquiries may include taking statements, obtaining CCTV or body-worn video, examining phones and computers, searching premises, securing financial or medical records and obtaining forensic evidence. Investigators should pursue reasonable lines of enquiry whether they point towards or away from a suspect.

A person may be arrested where the legal grounds for arrest are met and arrest is considered necessary. Alternatively, the police may invite them to attend a voluntary interview under caution. A voluntary interview is still a formal suspect interview and can be used in evidence, but the interviewee is not under arrest and is free to leave unless subsequently arrested.

You are entitled to independent legal advice before, during and after your police interview. Chetwode Criminal Defence Solicitors have many years’ experience advising those suspected of criminal offences.

The usual sequence is that the police provide the solicitor with some disclosure about the allegation, the solicitor advises the client in private, and the interview then takes place. Depending on the circumstances, the available approaches may include answering questions, providing a prepared statement, making no comment, or using a combination of those options. There is no single approach that is right in every case.

Read our guide about dealing with police interviews for more information.

If a person is arrested, the police may take fingerprints, photographs and a DNA sample. They may also retain property for examination. After interview, the police may take no further action, use an appropriate out-of-court disposal, continue investigating or seek a charging decision. A person who has been arrested may be released on pre-charge bail, sometimes with conditions, or released under investigation. A voluntary attendee cannot be placed on pre-charge bail unless they have also been arrested.

Release under investigation does not mean that the case has ended. Enquiries may continue for a considerable period. During that time, it can be important to preserve messages, documents, CCTV, location data and details of potential witnesses before they are lost.

The charging decision

Being suspected, arrested or interviewed is different from being charged. A charge is the formal allegation that begins the court process. Depending on the type and seriousness of the case, the charging decision may be made by the police or by the Crown Prosecution Service. More serious or complex cases will generally be referred to a CPS prosecutor, although other public bodies and private prosecutors can also begin criminal proceedings.

The person making the decision should apply the Full Code Test. The first stage asks whether there is sufficient evidence to provide a realistic prospect of conviction. This requires an objective assessment of the evidence, including its likely admissibility and reliability and the effect of any explanation or defence put forward by the suspect. It is a lower test than the standard applied at trial, where the court or jury must be sure of guilt.

If the evidential stage is met, the prosecutor considers whether a prosecution is required in the public interest. Relevant factors include the seriousness of the allegation, the suspect's level of responsibility, the circumstances and harm suffered by any victim, the suspect's age and maturity, and whether prosecution is a proportionate response.

In limited cases, the Threshold Test permits a charge before the Full Code Test can be met. It is reserved for cases in which an immediate charging decision is justified, there are substantial grounds to oppose bail, and identifiable further evidence is expected within a reasonable period. A Threshold Test decision must be reviewed and the Full Code Test applied as soon as possible.

The outcome may be a charge, a request for further investigation, an out-of-court disposal or no further action. A prosecutor should select charges that fairly reflect the alleged offending and allow the case to be presented clearly. The decision remains under review after charge, so charges may later be amended or discontinued if the evidence or circumstances change.

We have written about charging decisions on our blog.

After charge, the police will either release the defendant on bail to attend court or, where the legal grounds exist, keep them in custody to be brought before the court. Proceedings may also begin by a written charge and requisition or, in suitable summary cases, through the single justice procedure.

The first appearance in court

Almost every adult criminal case begins in a magistrates' court. The first hearing is not simply an administrative appointment. The court will deal with plea, decide where the case should be heard, consider bail and give directions that shape the trial.

What happens next depends on the plea you entered and the seriousness of the offence.

If a guilty plea is entered, sentence will usually follow immediately. However, the court can adjourn for the preparation of a pre-sentence report by the probation service. In serious cases, it can also send the case to the Crown Court for sentencing as the Crown Court can impose longer sentences.

There are three types of offence. In order of seriousness from least to most: summary only, either-way, and indictable only.

A summary-only offences, can normally be tried only in the magistrates' court. An indictable-only offence must be sent to the Crown Court. An either-way offence can be tried in either court.

All three types of offence will begin with the magistrates asking whether the Defendant is guilty or not guilty. If you say “guilty” then the court will either impose sentence immediately or send the case to the Crown Court. If you say, “not guilty” then the court will either fix a trial date in a matter that can be tried in the magistrates’ court or will send the case to the Crown Court for them to set a trial date.

In all not guilty cases, the magistrates or Crown Court will expect the defendant to identify the real issues in the case, i.e. what the trial is going to be about. That might be self-defence or a factual denial, etc. This helps identify which witnesses are going to be required for the trial and work out how long the trial is likely to take.

The court will also decide whether the defendant should remain on bail, be granted bail on different conditions, or be remanded in custody to await the trial.

Trial

In a magistrates' court, guilt is decided by a bench of magistrates or by a District Judge. In the Crown Court, the judge manages the law and procedure while a jury decides the facts and returns the verdict. There are a few exceptions, but they need not trouble us now.

The prosecution presents its case first. Its witnesses may be questioned by the prosecutor and cross-examined by the defence. The court may also receive agreed witness statements, admissions, recordings, documents, photographs and expert evidence. At the end of the prosecution case, the defence may argue that the evidence is legally incapable of supporting a conviction. If that submission succeeds, the relevant charge ends without the defence having to call evidence.

If the defence case has gone particularly well, then the defence advocate has the opportunity to ask the judge to dismiss the matter at the half time stage, i.e. after the prosecution close their case but before the defence open theirs.

If the case continues, the defence may call witnesses and other evidence. This includes the defendant getting in the witness box to give his account if he so wishes.

Once the evidence and closing submissions are complete, the decision-maker considers each charge separately. The prosecution must make the magistrates, District Judge or jury sure that every element of the offence has been proven so that the decision-maker is sure that the prosecution case is correct. If they are not sure, the verdict must be not guilty. An acquittal will ordinarily end that charge. A guilty verdict leads to sentence, either immediately or at a later hearing. If a jury cannot reach a verdict, the prosecution will have to decide whether to seek a retrial.

Sentence

Sentence follows a guilty plea or a guilty verdict. In a straightforward case, it may be imposed on the same day. In other cases, the court may adjourn for a pre-sentence report from the Probation Service, medical or psychiatric evidence, references, financial information or a victim personal statement. The defendant may remain on bail or be remanded in custody while that information is obtained.

Before passing sentence, the court must be clear about the factual basis of the offence. If a guilty plea is entered but the prosecution and defence disagree about an important fact that would materially affect sentence, the court may hold a Newton hearing to resolve the dispute by hearing evidence.

The court applies the Sentencing Code and any relevant Sentencing Council guideline. Offence-specific guidelines commonly begin by assessing culpability and harm to identify a starting point and category range. The court then considers aggravating and mitigating features, relevant previous convictions and the defendant's personal circumstances. Where there is more than one offence, the overall result must be just and proportionate, which means the court should not pile one sentence on top of another to produce an unjust total sentence.

The defence has the opportunity to present mitigation. This may address the circumstances of the offence as well as personal factors about the defendant such as remorse, age and maturity, health, caring responsibilities, employment, rehabilitation, delay and the likely effect of a particular sentence. Assertions that are likely to be controversial should be supported by reliable evidence where possible. A pre-sentence report assists the court in deciding what sentence to impose.

The court must give reasons for its decision in open court. If magistrates consider their powers insufficient in an either-way case, they may commit the defendant to the Crown Court for sentence.

Appeal

Appeals are not a routine part of every criminal case. Although the prosecution can bring appeals, most appeals are by defendants.

In the magistrates court you have an absolute right to appeal a sentence or a conviction after trial. If you plead guilty then you lose your right to appeal conviction, but you can still appeal sentence. Appeals from the magistrates’ court are heard by a Crown Court judge either alone or with two lay magistrates. They are complete re-hearings of the case as if the original decision had not been made. This is very different to the approach of the Court of Appeal when they hear appeals from the Crown Court.

In some situations, you can also take an appeal direct to the King’s Bench Division of the High Court. This is most frequently used where there is said to have been an error in law that requires a senior judge to weigh in on the topic.

A conviction or sentence imposed in the Crown Court is challenged in the Court of Appeal Criminal Division. Permission to appeal is required. A conviction appeal focuses on whether the conviction is unsafe and is thus a review of the thing said to have rendered the conviction unsafe and is not a complete re-hearing of the trial. A sentence appeal may argue, for example, that the sentence was unlawful, wrong in principle or manifestly excessive.

The Court of Appeal does normally conduct the trial again. It reviews the proceedings and the proposed grounds, although it can receive fresh evidence in appropriate circumstances. Depending on the case, it may quash a conviction, order a retrial, substitute another verdict, or reduce or vary a sentence.

Starting an appeal does not automatically suspend the conviction or sentence, although in cases where the sentence includes a driving disqualification you can apply for that to be suspended. Bail pending appeal requires a separate decision. If the ordinary appeal process has been exhausted and there may have been a miscarriage of justice, an application can be made to the Criminal Cases Review Commission. The CCRC can refer a conviction or sentence back to an appeal court where its statutory test is met.

There are strict time limits, which are short, so it is crucial that appeals are brought promptly.

How Chetwode can help

The most useful defence work often begins before the next formal stage is reached. During an investigation, that may mean advising before interview, identifying evidence that should be preserved and making focused representations about charge. After charge, it includes analysing the prosecution case, advising on plea and venue, addressing bail, obtaining expert evidence where necessary and preparing the case for trial.

If a person is convicted, careful preparation for sentence can ensure that the court receives accurate information and properly evidenced mitigation. Where something may have gone wrong at trial or sentence, an early review can identify the correct appeal route, the available grounds and the applicable deadline.

Chetwode Criminal Defence Solicitors provides strategic advice and representation at every stage of the process. We aim to explain the position clearly, identify what can realistically be achieved and prepare each case with care.