Criminal Charge, Arrested, and Convicted: Difference Explained

Facing the criminal justice system can be overwhelming, particularly when your career, relationships, reputation and future may be at stake. Add unfamiliar procedures and legal jargon, and an already stressful situation can become difficult to make sense of.

During criminal proceedings, terms such as arrested, charged and convicted are often tossed around casually, with the assumption that the person hearing them knows what they mean. But if you’ve never had any reason to deal with police or the courts before, why would you? These terms also have quite different meanings.

At a basic level, being arrested means police have taken you into custody. Being charged means you have formally been accused of an offence. Being convicted means guilt has been established and a conviction recorded by the court.

They can be stages of the same case, but not always. You may be arrested and never charged. You can also be charged without being arrested first. And, importantly, a criminal charge doesn’t mean you’ll be convicted.

There is some variation between Australian states and territories too, particularly when it comes to police powers and court procedures.

What Does Being Arrested Mean?

An arrest is when police take you into custody and you’re no longer free to leave. There are limits on when police can do this. The exact rules depend on the state or territory, and police may arrest someone under a warrant or without one where the law allows it.

In NSW, section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) deals with arrest without a warrant. Among other requirements, police need to suspect on reasonable grounds that a person is committing or has committed an offence, and the arrest must be reasonably necessary for one of the purposes listed in the Act. That could be to stop someone fleeing, preserve evidence or protect another person.

Once someone has been arrested, police may question them and continue investigating what happened. Charges may follow, sometimes they don’t.

This is where the everyday meaning of “arrested” can be misleading. Hearing that someone was arrested can sound as though they’ve already been caught committing a crime. Legally, that’s not what an arrest establishes. Being arrested doesn’t mean you’ve been found guilty.

Can You Be Charged Without Being Arrested?

Yes. Police don’t necessarily need to arrest you before they can charge you. Depending on the circumstances and jurisdiction, you may instead receive paperwork requiring you to attend court.

In NSW, for example, this can happen through a Court Attendance Notice. So there isn’t one fixed path through the system. Arrest might come before a charge in one case and not happen at all in another.

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What Does Being Charged With a Crime Mean?

A criminal charge is a formal accusation that you have committed an offence. At this stage, police are no longer simply investigating whether an offence may have occurred. An allegation has formally been made against you. What hasn’t happened, though, is a finding of guilt.

A person charged with a criminal offence in Australia is generally presumed innocent unless and until their guilt is established according to law. Where a person pleads not guilty, the prosecution has to prove the offence beyond reasonable doubt.

What happens immediately after you’re charged will vary. You should be told what offence or offences you’re accused of. You may then be released without bail, granted bail with conditions or, depending on the circumstances, kept in custody while bail is considered.

For someone actually going through it, the word “charged” can sound pretty conclusive. Your family may be worried. You might already be thinking about your job or what people will say. But the legal case hasn’t been decided at this point.

A charge may later be withdrawn or dismissed. If you plead not guilty, the court may ultimately find you not guilty.

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What Does Convicted Mean?

A conviction is different because, by this stage, guilt has been established. This may happen because a person pleads guilty or because they’re found guilty after a hearing or trial.

Consider someone charged with assault who says they didn’t commit the offence. They plead not guilty and the matter goes to a hearing. If the prosecution can’t prove the charge beyond reasonable doubt, they may be found not guilty.

That person was charged, they weren’t convicted. There is a little more to it, however. A finding of guilt doesn’t always result in a conviction being recorded.

Australian states and territories have their own sentencing laws dealing with this. In NSW, section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows a court in certain circumstances to deal with an offence without recording a conviction. That doesn’t mean a person can simply ask for “a section 10” and expect to receive one. Whether a conviction is recorded will depend on the law and the circumstances before the court.

Arrested vs Charged vs Convicted

You will sometimes see the process laid out as:

Investigation → Arrest → Charge → Court → Conviction or Acquittal

That’s a useful rough guide, not a rule. Someone may be charged without an arrest. An arrested person might be released without charge. A charge could be withdrawn, or the person could go to court and be found not guilty.

Why Does the Difference Matter?

If you’re actually caught up in a criminal matter, knowing the difference gives you a much clearer picture of where you stand. Being arrested concerns your immediate liberty. Being charged means there is now an allegation against you that may have to be answered in court. A conviction is a different matter again. It can result in a sentence and may have consequences outside the courtroom, including for employment, professional licences or travel.

If you’ve just been arrested or charged, it’s easy to jump ahead and start worrying about those consequences. But neither an arrest nor a charge means you’ve been found guilty.

Getting legal advice early can help you understand the allegation, what happens next and what options are available in your particular circumstances.

And if all the terminology becomes confusing, come back to the basic difference: arrested means taken into custody, charged means accused, and convicted means a conviction has been recorded following a finding of guilt.

This article is general information, not legal advice. Criminal law and procedure vary between Australian states and territories. For professional advice, you can get in touch with our criminal lawyers at Oxford Lawyers.