Criminal Case
Prosecution: Meaning and How It Begins
A criminal case is formally referred to as a prosecution. It is typically initiated by the state — most commonly through a police arrest or the laying of a charge against the accused. The individual accused of wrongdoing is known as the defendant. In England and Wales, the prosecution is usually brought on behalf of the Crown, which represents the state and the public interest.
Standard of Proof: Beyond All Reasonable Doubt
In criminal proceedings, the prosecution bears the burden of proving the case beyond all reasonable doubt. This is a high threshold, reflecting the serious consequences that a criminal conviction may carry. If the prosecution fails to meet this standard, the defendant must be acquitted — that is, found not guilty and discharged.
Purpose and Outcome: Punishment
The primary purpose of a criminal case is punishment. Where a defendant is found guilty, the court may impose a sentence of imprisonment, a fine, or another form of penalty prescribed by law. The sanction is intended to punish the offender, deter future conduct, and protect the public.
Case Notation: R v Defendant
Criminal cases in England and Wales are typically expressed in the form R v [Defendant's name] — for example, R v Smith. The letter "R" stands for Regina (Latin for "Queen") when a female monarch is on the throne, or Rex (Latin for "King") when the monarch is male. In either case, it represents the Crown as the prosecuting party on behalf of the state.
It is important to note that, in practice, the "v" in a case name is read aloud as "and" in both criminal and civil proceedings in England and Wales. The form "R v Smith" is therefore pronounced "The Crown and Smith." The use of "against" in this context reflects American usage and is not standard in English legal practice.
Civil Case
Action or Claim: Meaning and How It Begins
A civil case is referred to as an action or a claim. Unlike a criminal prosecution, which is initiated by the state, a civil claim is typically brought by a private individual who has suffered loss or harm. The party bringing the claim is known as the claimant, and the party against whom the claim is made is the defendant. The proceedings are commenced when the claimant files the relevant documents with the court.
Standard of Proof: On the Balance of Probabilities
In civil proceedings, the standard of proof is lower than in criminal cases. A party must establish their case on the balance of probabilities — meaning that it must be shown to be more likely than not that the facts asserted are true. This standard is sometimes described as a "51% threshold." It is the standard recognised throughout English civil law and is distinct from the criminal standard of beyond all reasonable doubt.
Purpose and Outcome: Compensation
The primary purpose of a civil case is compensation. Where the claimant succeeds, the court will typically award damages — a monetary sum intended to compensate the claimant for the loss or injury they have suffered. The aim is to restore the claimant, as far as money can do so, to the position they would have been in had the wrong not occurred.
Case Notation: Claimant v Defendant
Civil cases are expressed in the form [Claimant's name] v [Defendant's name] — for example, Smith v Jones. As with criminal cases, the "v" is read aloud as "and": the case would be pronounced "Smith and Jones." The party named first is the claimant who has brought the action; the party named second is the defendant responding to it.
Claimant and Plaintiff: A Change in Terminology
Prior to 1999, the party bringing a civil action in England and Wales was referred to as the plaintiff. Following the implementation of the Civil Procedure Rules 1998, which came into force on 26 April 1999, the term claimant was formally adopted in its place. The Civil Procedure Rules 1998 introduced sweeping reforms to the civil justice system, and this terminological change was part of that modernisation. Whilst the term "plaintiff" may still be encountered in older cases and academic texts, "claimant" is the current standard in English civil proceedings.
Key Differences Between Criminal and Civil Cases
The distinction between criminal and civil cases can be summarised across several key dimensions:
| Feature | Criminal Case | Civil Case |
|---|---|---|
| Name | Prosecution | Action / Claim |
| Initiated by | The state (Crown) | Private individual (claimant) |
| Standard of proof | Beyond all reasonable doubt | On the balance of probabilities |
| Purpose | Punishment | Compensation |
| Outcome | Imprisonment, fine, or other penalty | Damages or equitable remedy |
| Case notation | R v Defendant | Claimant v Defendant |
It is also worth noting that the same set of facts may give rise to both criminal and civil proceedings. For example, an assault may result in a criminal prosecution brought by the Crown, as well as a civil claim for damages brought by the victim.
Equitable Remedies
In addition to the common law remedy of damages, English law provides a range of equitable remedies — remedies developed by courts of equity, now administered by all courts. These remedies are discretionary: a court is not obliged to grant them and will do so only where it is just and equitable in the circumstances. The two most significant equitable remedies in civil proceedings are the injunction and specific performance.
Injunction: Mandatory and Prohibitory Orders
An injunction is a court order directing a party to do, or not to do, something. This definition is broader than a simple prohibition: an injunction may be either prohibitory (restraining a party from doing something) or mandatory (compelling a party to take a positive action). For example, a prohibitory injunction might prevent a former employee from disclosing confidential information, whilst a mandatory injunction might require a party to remove a structure they have unlawfully erected.
Injunctions are a flexible and powerful remedy, available in a wide variety of civil disputes including those involving nuisance, breach of confidence, and intellectual property.
Specific Performance: The Order to Perform
Specific performance — sometimes referred to in older authorities as a decree of performance — is an equitable remedy by which a court orders a party to fulfil their obligations under a contract or a trust. Rather than awarding damages as a substitute for performance, the court compels the party to carry out exactly what they promised to do. Specific performance is most commonly granted in relation to contracts for the sale of land, where damages are considered an inadequate remedy because each piece of land is regarded as unique.
It should be noted that "decree of performance" is not the standard legal term used in modern English practice. The correct and widely recognised term is specific performance or, where a formal court order is issued, an order for specific performance.
Non-Compliance and Contempt of Court
A party who fails to comply with an injunction or an order for specific performance is in contempt of court. Contempt of court is a serious matter and is governed in part by the Contempt of Court Act 1981. Under s 14 Contempt of Court Act 1981, a court may impose a penalty of up to two years' imprisonment or an unlimited fine for contempt. This underscores the importance of court orders in the English legal system: equitable remedies carry genuine coercive force, and non-compliance may result in significant personal consequences for the party in default.