Facing Criminal Prosecution: What to Expect During the Legal Process

What will happen if I’m prosecuted for a criminal offence?

Interview Under Caution If the police, or some other investigatory body (eg the DWP, Health and Safety Executive, Border Force etc), suspect that you have committed a criminal offence it is likely that they will want to conduct an interview with you.  The purpose of an interview is to collect evidence against you and so the interview will be ‘under caution’.  Although an interview will also give you, as the suspect, an opportunity to deny your involvement in the offence or to put forward a defence. You should always have legal representation in interview.  If there are grounds to arrest you (in other words, an arrest is deemed to be ‘necessary’ in law) then you will be detained in police custody until that interview process is complete and a charging decision is made.  If the police (or CPS) need to carry out further enquiries, you may be bailed for a short period (usually 28 days in the first instance) or you may be released under investigation (RUI’d).

Voluntary Interview If an arrest is not deemed to be necessary, the police may contact you and invite you to attend a local police station for interview.  This is known as a Voluntary Attendance.  Even if you are not under arrest, you should always have legal representation in interview: The interview is still under caution and can therefore be used in evidence against you. You do not have to attend or comply with the interview process but this may provide the police with grounds to arrest you, so compliance is usually advised (even if you then decide not to answer questions).

Release Under Investigation (RUI) A suspect may remain “under investigation” for a considerable period of time.  It is not uncommon for cases to remain live for twelve months’ or more before a charging decision is taken.  Being placed on bail involves a restriction of liberty in that conditions must be complied with and you must return to the police station on the date and time specified.  Being RUI’d does not, in itself, involve a restriction of liberty.  However, there can be repercussions at work if your employer is aware of the situation and many suspects find themselves suspended from work for extended periods while the employer awaits the conclusion of the police investigation.

Seized Property If the police have seized property from you, such as your phone or computer equipment, it is unlikely that this will be returned until the conclusion of your case. .

Once the police have concluded their investigation, a charging decision will be sought.  In many cases this simply involves the investigating officer presenting their evidence to their superior officer (usually their Sergeant) who will make the decision.  In more serious cases or cases involving a sexual allegation or a domestic violence aspect, the police are obliged to present their file to the Crown Prosecution Service (CPS).  A Reviewing Lawyer will consider the evidence gathered by the police, including the interview account provided by the suspect (or lack of one) together with the public interest, and will advise the police whether to prosecute or not.

No Further Evidence (NFA) If the decision is taken not to prosecute, either due to lack of evidence or due to public interest considerations, you will be notified that “No Further Action” is being taken against you.  An NFA decision usually marks an end to the process although the police do reserve the right to re-instigate their investigation if further evidence comes to light.

Prosecution – Charge, Summons or Postal Requisition If the decision is taken to prosecute you, you may be notified as follows:

• If you are still in police custody, you will be charged whilst in custody and a decision will be taken regarding bail. You may be bailed, with or without conditions, to attend the Magistrates’ Court.  If the Custody Sergeant believes there are grounds to remand you in custody (due to a perceived risk of further offending, a risk that you will not attend or will interfere with witnesses) then you will continue to be detained at the police station until the next sitting of the Magistrates’ Court – the courts sit every day of the year with the exception of Sundays, Christmas Day and Good Friday.
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• If you had been bailed to re-attend the police station, you may be charged upon your return. Again, the Custody Sergeant will decide whether you should be bailed to court, with or without conditions, or whether a remand in custody is justified (this is less likely, but not impossible, where you have been on bail pending charge).
• If you have been RUI’d, you may receive a Requisition through the post, summonsing you to attend court. The Requisition will set out details of the charge(s) and inform you of the date and time you need to attend court.  You will not be subject to bail at this point.  As such, if you fail to attend court when required, you will not have committed an offence under the Bail Act.  However, provided the Requisition was posted to your last known address, the court may issue a warrant for your arrest, usually without bail.

If you are charged and bailed at the police station, your first hearing will usually be within 2 or 3 weeks’.  If you receive a postal Requisition, the first hearing may be 4 to 6 weeks’ away.

When you first attend the Magistrates’ Court, the case will proceed in one of the following ways:

1. If you are facing an “Indictable Only” offence, which may only be tried in the Crown Court, you will not formally enter a plea in court. However, an indication of your likely plea(s) will be entered onto a form by your lawyer which is provided to the court.  In any event, the Magistrates will simply send your case to the crown court for a Plea & Trial Preparation Hearing (PTPH).  That hearing will usually be fixed 28 days after your Magistrates’ Court appearance.

2. If you are charged with “Either Way Offences” the court will expect you to enter your pleas. If you are pleading not guilty, the court will determine whether your trial should take place in the Magistrates’ Court or in the crown court.  If the Magistrates decide to retain jurisdiction of your case, you may still elect a trial in the crown court.  If the case is to remain in the Magistrates’ Court, then a trial date will be fixed, as per para 3 below.  If your case is to be sent to the Crown court for trial, your case will proceed as per para 1 above.

If you enter guilty pleas and no trial is necessary, the Magistrates will hear the facts from the prosecution and representations from your lawyer and will decide whether to proceed to sentence or whether to commit you to the crown court for sentence.  If the former, the court may proceed to sentence immediately or an adjournment may be necessary for a Pre-Sentence Report (PSR).  If the latter, you will be informed of a date for sentence in the crown court which is usually 4 weeks’ later.

3. If you are facing “Summary Only” offences, the Magistrates will expect you to enter pleas. If you plead not guilty, a trial date will be fixed.  Waiting times for a trial date vary depending on the court area you are in and the number of trials already allocated dates.  However, it is rare to be allocated a trial date in anything less than 6 weeks from the date of first hearing and in most cases, the earliest available date will be at least 8 weeks’ away.

If you plead guilty, the Magistrates will proceed to sentence or may adjourn for a PSR.

Depending on the estimated length of your trial, your case will either be listed for a 10am start or a 2pm start.  You will be expected to attend court at least 30 minutes’ before the start time.  If there are issues that need to be discussed with your lawyer, and that is usually the case, then you should attend an hour before the start time.   Most Magistrates’ Court trials are completed within a day and many within half a day.

Having heard the evidence and closing speeches, the Magistrates (or District Judge) will usually retire to consider their verdict(s) and return them the same day.

If convicted, in some cases, the court will proceed to sentence immediately.  In others, the case may be adjourned for a PSR.  A full PSR usually requires a three week adjournment.  A “Stand Down Report” may require a shorter adjournment, possibly only a few days.

Obviously, if you are acquitted of all charges, there is no sentence procedure and the case is dismissed.

If you entered guilty pleas in the Magistrates’ Court and your case was committed to the crown court for sentence, then the court will usually sentence you at the next hearing.  If a PSR is necessary, it is likely that this will have been done prior to your attendance in the crown court.  However, in some cases, the judge will decide to order a PSR when this has not already been done and so a further adjournment will be necessary, usually for four weeks’.

If you did not plead guilty in the Magistrates’ Court (or your case was simply sent to the crown court without pleas being entered) then the first hearing will be a PTPH. If you enter guilty pleas at the PTPH, the judge will either proceed to sentence or adjourn for a PSR (see above). If you enter not guilty pleas, the judge and the advocates (prosecution and defence) will set a timetable for service of case papers, a Defence Statement, expert reports, disclosure issues and a trial date. In some crown courts, all cases receive a fixed date for trial, which is the same in the Magistrates’ Court.  However, many crown courts operate a “Warned List” system which provides you with less certainty over the start date but allows the courts to remain busy when cases finish early.  If your case is placed into a Warned List, you will be provided with the date where your trial may first be listed.  This is usually a Monday.  However, if your case is not called in on the Monday, it may be called in by the court at any point during that week, and often the following week.  This means that you have to be ready to attend court on any day during a one week or two week period.  If your case is not called to start during the Warned List, there is usually a Reserve Warned List which will commence a few weeks later and the process starts again.

Magistrates’ Court trials are generally much quicker and shorter than crown court trials.  The case will be opened by the Prosecutor, witnesses will be called and cross examined, closing speeches will be made and verdicts delivered in the same day, or half day.

In the crown court, a one day trial is quite rare.  The process of selecting and swearing in the jury can often take half a day.  The prosecution opening may take the rest of that first day or it may not even start until the second day.  The process of calling and cross examining witnesses is much slower, with some witnesses in the box giving evidence for a few days at a time.  After the evidence has been heard, the judge will provide the jury with directions on the relevant law.  The Prosecution and Defence advocates will then make closing speeches to the jury.  Finally, the judge will sum up the evidence.  The length of the summing up will depend on the amount of evidence heard during the trial.

A jury may return their verdict very quickly, within an hour, or they may take a number of days.  To start with, the jury will be told that they must return a “Unanimous” verdict, where all twelve are in agreement to convict or acquit on each Count.  After a period of time, at the judge’s discretion, the jury will be told that a “Majority” verdict can be returned.  This will involve at least ten members of the jury being agreed in respect of each count. If any convictions are returned, the judge may proceed to sentence immediately or an adjournment may be necessary for a PSR, as above.