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Summary of the main differences

Important differences exist between civil and criminal proceedings that have implications for fraud investigations, including evidential and interview requirements and the burdens of proof that must be met in court. The main differences between the criminal and civil justice systems in England and Wales are described in this section and can also be read as a PDF.

Please use our interactive decision tree tool to understand more about the criminal and civil justice systems and how the two systems can interact. Also read our frequently asked questions.

  • Focus
    • Criminal
    • Criminal prosecutions focus on bringing offenders to justice (punishment).
    • Civil
    • Civil cases focus on victim redress, such as a payment of money or transfer of assets.
  • Control and flexibility
    • Criminal
    • Criminal prosecutions are generally controlled by public bodies. There is little scope for the victim of a fraud to influence the proceedings.
    • There is an increasingly important role being played by private prosecutions. These are prosecutions brought by individuals or companies, rather than by the state. Private prosecutions may be brought because traditional state bodies do not wish, or are not able, to bring prosecutions. These prosecutions do enable the private prosecutor, usually the victim, to retain a degree of control over the proceedings. However, it is important to be aware that sometimes the Crown Prosecution Service will take over a private prosecution and either prosecute it or discontinue it.
    • As a rule of thumb, criminal proceedings often attract greater publicity.
    • Civil
    • Civil cases are private actions in which individuals can protect their legal rights, and as such public bodies very rarely have any interaction with such cases. There is a great deal of control available to anyone bringing a civil claim and, generally, the claimant (the victim) will retain complete control over the proceedings and will be able to make decisions over whether and how to continue them.
  • Burden and standard of proof
    • Criminal
    • The criminal courts generally place the burden of proof on the prosecution. The standard of proof is beyond reasonable doubt. Therefore, the prosecution must prove the case they allege beyond reasonable doubt in order to obtain a conviction.
    • Civil
    • The civil courts generally place the burden of proof on the claimant. The standard of proof is the balance of probabilities. Therefore, the claimant must prove the case they allege is more likely than not in order to obtain judgment in their favour.
  • Courts
    • Criminal
    • There are two types of criminal court: Magistrates’ Courts and Crown Courts.
    • Usually Crown Courts hear the most serious offences. They have greater sentencing powers and trials are heard by a jury with a judge overseeing proceedings.
    • Magistrates’ Courts generally hear less serious offences, are limited to passing sentences of 6 months per offence (and 12 months in total), and limited to fines of £5,000. Trials are heard by two or three magistrates, or a judge.
    • Civil
    • The civil court system can be complicated. Generally, if you are the victim of fraud, where your case will be heard is a question of how much you are claiming.
    • If you are claiming less than £100,000 your case is likely to be heard at the county court local to the defendant. The greater the value of the claim, the more formal the hearing at the county court will be and the greater the direction and management of the matter by the court (matters under £10,000 can be very informal and even heard in private – although this is very rare with allegations of fraud). If the claim totals over £100,000 then the case is likely to be heard at the High Court.
    • Your case will always be heard by a judge, never a jury.
  • Jurisdiction
    • Criminal
    • Generally, all fraud offences can be prosecuted in England and Wales, provided some part of the offence occurred in England and Wales. It is irrelevant whether the defendant is a British citizen, or was even in Britain at the time. However if the defendant is overseas, extradition proceedings will have to be considered which can be complex and lengthen the process.
    • Civil
    • Generally, any defendant can only be sued in England and Wales if they live in England and Wales. However, there are exceptions and it can be possible to start proceedings against someone regardless of where they live. If the defendant objects then the court will consider whether there is a more appropriate jurisdiction for the claim to be heard in.
  • Time
    • Criminal
    • It takes an average of 21 weeks from an offence being committed until a verdict at trial in the Magistrates’ Court, and an average of 45 weeks from an offence until a verdict in the Crown Court.
    • These figures are from the Ministry of Justice, dated March 2015. Any compensation (see below) may take several months after the verdict.
    • The length of any trial will reflect the seriousness and complexity of the case.
    • There is no time restriction on when a criminal prosecution may be brought but Article 6 of the European Convention on Human Rights requires that a hearing should take place ‘within a reasonable time’.
    • Civil
    • The length of civil cases can vary hugely. It is possible for judgment or settlement to be obtained very quickly – within weeks – in some circumstances (for instance, if the claimant has an overwhelmingly strong case), or proceedings may take years to get to trial. Generally, if your claim is for less than £25,000 then it should be heard within about nine months. The length of any trial will reflect the complexity of the case.
    • It is important to note that, unlike criminal cases, a victim must normally begin civil proceedings within six years of discovering the fraud.
  • Costs
    • Criminal
    • There is no cost to the victim in a public prosecution.
    • In a private prosecution there can be significant cost to the private prosecutor. This may be recovered, in full or in part. If the defendant is found guilty, an order may be made for the defendant to pay some or all of the costs. If the defendant is acquitted then an order may be made for the private prosecutor to have their costs reimbursed by the state, in full or in part.
    • Civil
    • Civil proceedings require funding. Court fees, lawyers’ fees, and expert witness fees all need to be funded. Aside from privately paying, there are two main funding options, often used together. First, conditional fee agreements, commonly known as ‘no win, no fee’ agreements; these agreements mean that the claimant pays little or nothing to their own lawyers, unless they are successful, in which case the lawyers receive a success fee from the claimant. Second, insurance; a claimant can take out ‘after the event insurance’ to cover costs in the event of losing the case.
    • Following judgment, costs generally ‘follow the event’, which means that if the claimant wins the case then the defendant pays the claimant’s costs. Equally, of course, if the defendant wins the case then the claimant will pay the defendant’s costs.
    • There are some controls. If you are claiming less than £10,000 then, generally, neither party will have to pay costs beyond general expenses and court fees. If you are claiming less than £25,000 then, generally, the costs will be limited to no more than £1,650, plus general expenses and court fees. These are not hard and fast rules, however, and the courts can make exceptions, especially with fraud.
  • Enforcement
    • Criminal
    • A guilty verdict in a trial can result in a range of sentences for the defendant, from a fine or a community order to a prison sentence. The court may make a number of ancillary orders as well.
    • From the victim’s perspective, if the court is satisfied that the defendant has the funds to pay (and it may be able to use very intrusive powers to investigate their assets), then the court may make a compensation order requiring the defendant to pay the victim for any loss they suffered (at the Magistrates’ Court this is limited to a maximum of £5,000). If the defendant does not pay then the defendant will serve a prison sentence until payment, ranging from 7 days for orders under £200, to 10 years for orders over £1m. If the defendant offers part payment, then his or her sentence would be reduced proportionately.
    • Civil
    • The civil justice system provides a variety of enforcement mechanisms for a victim of fraud. For instance, it may be possible to identify certain property capable of satisfying a debt, which a bailiff can then seize in order to auction. Alternatively, an order could be made compelling an employer to make regular deductions from the defendant’s future earnings.
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