A criminal charge is the beginning of a process, not the end of a story. In England and Wales, every defendant is presumed innocent until the prosecution proves guilt to a high standard, and a great deal can be done at each stage to test the case against you. Understanding how that process works — and where a defence is built — is the first step in facing it.
Few experiences are as disorienting as being accused of a crime. The language is unfamiliar, the timetable feels out of your hands, and the stakes — your liberty, your livelihood, your reputation — could not be higher. Yet the system is structured, rule-bound, and weighted, by design, in favour of the accused. A defence is not built in a single dramatic moment in the witness box; it is assembled methodically, from the charging decision onward.
The charge and the decision to prosecute
Being arrested or interviewed does not mean you will be prosecuted. In most cases the decision to charge is taken not by the police but by the Crown Prosecution Service (CPS), the independent body responsible for prosecuting criminal cases in England and Wales. The CPS applies the Full Code Test set out in the Code for Crown Prosecutors, and that test has two distinct stages, both of which must be satisfied.
The first is the evidential stage: is there enough evidence to provide a realistic prospect of conviction? This is an objective assessment of whether an impartial tribunal, properly directed, is more likely than not to convict. If the evidence does not pass this stage, the case should go no further, however serious the allegation. Only if it does is the second, public-interest stage considered: is a prosecution actually in the public interest? Here the CPS weighs factors such as the seriousness of the offence, the harm caused, the suspect's age and circumstances, and whether prosecution is a proportionate response. A case can be evidentially sound yet still, on balance, not be pursued.
The prosecution must prove its case. The defendant proves nothing. That single principle — the presumption of innocence — shapes every stage of a criminal trial in England and Wales.
Where a case is heard
Not every offence is dealt with in the same court, and where a case is heard affects how it proceeds, who decides the verdict, and the maximum sentence available. English criminal offences fall into three categories.
The classification of the offence determines the court — and, in some cases, gives the defendant a say in the matter:
- Summary offences — less serious matters such as most motoring offences and minor assaults. These are tried in the Magistrates' Court, before a bench of magistrates or a district judge, with no jury.
- Either-way offences — offences such as theft or many assaults that can be tried in either court. The defendant may elect Crown Court trial by jury, or the magistrates may decline jurisdiction and send the case up.
- Indictable-only offences — the most serious crimes, including murder, rape and robbery. These must be sent to the Crown Court, where a judge presides and a jury of twelve decides the verdict.
The Magistrates' Court handles the great majority of cases and has limited sentencing powers; the Crown Court deals with the gravest matters and serious sentencing. For an either-way offence, the choice of venue is a genuinely strategic decision, with implications for the mode of trial, the likely sentence, and the conduct of the defence.
The building blocks of a defence
Between charge and trial, the real work of the defence is done. It is rarely glamorous, but it is decisive — and it begins with the material the prosecution holds.
Central to any criminal case is disclosure. The prosecution must serve the evidence it intends to rely on, but it must also review its unused material — everything gathered during the investigation that is not part of the case — and disclose anything that might reasonably undermine the prosecution or assist the defence. Combing through disclosure for inconsistencies, gaps, and material that helps the accused is one of the most important tasks a defence team performs. What is missing can matter as much as what is there.
Underpinning everything is the burden and standard of proof. The burden rests on the prosecution, not the defendant, and the standard is high: the jury or magistrates must be sure of guilt — the traditional formulation being satisfied "beyond reasonable doubt." The defence does not have to prove innocence. It only has to show that the prosecution has not made the tribunal sure. That is a meaningfully different, and much harder, task for the Crown.
From this flow the practical tools of the defence: challenging the evidence — testing the reliability of witnesses, the integrity of forensic and identification evidence, and whether procedures such as those under the Police and Criminal Evidence Act were followed, since improperly obtained evidence may be excluded. Alongside this sits plea strategy. A defendant who is genuinely guilty and intends to plead guilty receives credit for an early guilty plea — a reduction in sentence of up to one third where the plea is entered at the first reasonable opportunity, tapering as the case progresses. Deciding whether, and when, to plead is among the most consequential decisions in a case, and one that should never be taken without considered advice.
The trial and what follows
If a case is contested, it goes to trial. In the Magistrates' Court the verdict is decided by magistrates or a district judge; in the Crown Court, by a jury, with the judge ruling on the law and directing the jury on how to approach the evidence. The prosecution presents its case first and must satisfy the tribunal so that it is sure; the defence tests that case and may, but need not, call evidence of its own. The defendant has the right to remain silent, though a court may in certain circumstances draw inferences from that silence.
If a defendant is convicted or pleads guilty, the court moves to sentencing. Sentencing in England and Wales is guided by published Sentencing Council guidelines and by principles including the seriousness of the offence, culpability and harm, aggravating and mitigating factors, and the aims of sentencing — punishment, reduction of crime, reform and rehabilitation, protection of the public, and reparation. Well-prepared mitigation can materially affect the outcome. Finally, there are appeals: a defendant may appeal against conviction or sentence — from the Magistrates' Court to the Crown Court, and from the Crown Court to the Court of Appeal — where there is a proper basis to do so. A verdict is not always the last word.
- A charge is a starting point, not a conviction — the CPS must pass both the evidential and public-interest stages of the Full Code Test before prosecuting.
- Offences are summary, either-way, or indictable-only, and that classification decides whether a case is heard in the Magistrates' Court or the Crown Court.
- The presumption of innocence governs everything: the prosecution carries the burden of proof and must make the tribunal sure beyond reasonable doubt.
- Much of a defence is built before trial — scrutinising disclosure and unused material, challenging evidence, and making a considered plea decision.
- Sentencing follows defined guidelines and principles, and a conviction or sentence may be appealed where there is a proper basis.
How Crejj & Partners can help
Our criminal defence team acts at every stage of the process, from the first interview at the police station through to trial and, where necessary, appeal. We scrutinise the charging decision and the evidence behind it, press for full disclosure of unused material, identify weaknesses in the prosecution case, and advise clearly on plea and venue so that every decision is made with a full understanding of its consequences. Above all, we hold the prosecution to its burden and ensure that your right to a fair trial — and your presumption of innocence — is protected throughout. If you have been charged or believe you are under investigation, the time to seek advice is now, not later.
This article is provided for general information only and does not constitute legal advice or create a solicitor–client relationship. It describes the law of England & Wales, which may change; seek tailored advice for your circumstances. Crejj & Partners is a fictional firm presented for illustrative purposes on this website.