Allegation, charge and finding: three different stages

The allegation stage

An allegation can come from a complainant, a whistleblower, a regulator, a journalist or the police. At this stage nobody has tested the evidence. Human rights law protects the person accused. The Universal Declaration of Human Rights says everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law ⁶. The European Convention on Human Rights uses almost the same words ³.

In the European Union, a 2016 directive adds a rule for officials. Public authorities must not refer to a suspect or accused person as guilty in public statements before guilt is proved according to law ⁷. Member states had to bring the directive into national law by 1 April 2018 ⁷.

The charge stage

A charge is a formal step. In England and Wales, the Code for Crown Prosecutors sets a Full Code Test with two stages ¹. At the evidential stage the prosecutor must find a realistic prospect of conviction, meaning a jury or bench is more likely than not to convict ¹. At the public interest stage the prosecutor weighs factors such as seriousness, culpability and the impact on the victim ¹. A case that fails the evidential stage must not go ahead, no matter how serious it is, the Code says ¹.

The Code allows a narrower Threshold Test in limited cases. It needs reasonable grounds to suspect, a prospect of further evidence, and continuing substantial grounds to object to bail, among other conditions ¹.

In United States federal cases, the Justice Manual says a prosecutor should start or recommend a prosecution if the conduct is a federal offence and the admissible evidence will probably be sufficient to obtain and sustain a conviction ⁴. The Fifth Amendment requires a grand jury presentment or indictment for capital or otherwise infamous crimes ⁵. The Sixth Amendment gives the accused the right to be informed of the nature and cause of the accusation ⁵.

The finding stage

A finding comes from a court, tribunal or other decision maker after it hears the evidence. In criminal cases the bar is high. The US Supreme Court held in In re Winship in 1970 that due process protects the accused against conviction except on proof beyond a reasonable doubt of every fact needed for the crime ². In England and Wales a court may convict only if it is sure of guilt, the CPS Code notes ¹.

Under the EU directive the burden of proof is on the prosecution, and any doubt about guilt benefits the accused ⁷.

Why the stages matter for reporting

The stage of a case changes what may be published. In England and Wales, an arrest or a charge makes criminal proceedings active under the Contempt of Court Act 1981 ⁸. They stay active until the case is concluded, for example by acquittal or sentence ⁸.

Words matter too. A person charged is accused, not convicted. A person under investigation has not been charged. A complaint that a regulator or commissioner is examining has not been decided.