Criminal offences can be categorised into one of three types. Either-way offences are the middle range of offences that include crimes, such as theft and assault occasioning actual bodily harm. The other two categories of criminal offences are summary and indictable offences. Examples of summary offences, which are the least serious, include minor assault and criminal damage below £5,000, while murder and manslaughter comprise examples of indictable offences, which are the most serious types of criminal offence.
The section covers the factors that will influence a defendant’s choice of venue for their trial. If the magistrates accept jurisdiction, the defendant has the right to consent to be tried summarily in the magistrates’ court or elect trial by jury in the Crown Court (ie, trial on indictment).
Following the initial details of the prosecution case (IDPC), the defendant’s solicitor will be in a position to advise the defendant about the advantages and disadvantages of each option. The following factors will influence their choice.
High acquittal rate
Although there is no conclusive evidence to support this, the perception is that more defendants are acquitted in the Crown Court than in the magistrates’ court. This is based on the belief that jurors are more sympathetic to defendants than magistrates, who are case hardened because they sit on a regular basis and tend to be more cynical when hearing the same defence time and again.
Jurors, in comparison, supposedly approach a case with a more open mind, and are not governed by precedent and nor need to give reasons for their decision; consequently, they can make their decision based on what they believe is just.
See also ‘Court procedures associated with eitherway offences – Part 1’, which appeared in (2017) June CILExJ pp47–49
Disputed evidence
Magistrates are lay people and, therefore, a judge is better qualified to deal with an issue of disputed evidence or a complex area of law. In the Crown Court, any dispute over the admissibility of evidence will be considered by the judge in the absence of the jury (which may involve a voir dire), and if excluded jury members will not hear the disputed evidence.
However, lay magistrates, who must consider the admissibility of evidence, may subconsciously be prejudiced if the defence submission is rejected, and this could affect any decision on innocence or guilt. To avoid the potential problem of prejudice, therefore, most magistrates’ courts try to deal with issues of admissibility of evidence at a pre-trial hearing before a different bench of magistrates.
Therefore, trial by jury should be advised when there is an issue about the admissibility of evidence.
Judge’s summing up
The judge’s summing up of a trial in the Crown Court may provide grounds for an appeal if it is misleading or incorrect.
Delay
It may take several months for a case to come to trial in the Crown Court, and this can be stressful to a defendant. However, the delay may also be advantageous by allowing more time to prepare the defence case, and to find contact and interview witnesses. In comparison, the delay before a summary trial is shorter.
Formality
A Crown Court trial is more formal (ie, the judge and barristers wear wigs and gowns), and therefore it is more stressful and intimidating. In comparison, a trial in the magistrates’ court would be more suitable if the defendant is nervous.
Cost
This is an important factor, especially if the defendant is eligible to fund their legal costs, because contributions are likely to be greater in the Crown Court. Means testing is based on income, capital and equity as opposed to being based on income only, which it is in the magistrates’ court. However, ‘passported’ defendants or defendants who fall below the financial threshold, which is currently £12,475, are exempt.
Powers of sentence
The sentencing powers in the Crown Court are far greater than in the magistrates’ court. The maximum penalty that magistrates can impose is six months’ imprisonment for an either-way offence, or 12 months for two or more either-way offences; however, under Powers of the Criminal Courts (Sentencing) Act 2000 s3, a defendant who is dealt with summarily can still be sent to the Crown Court for sentencing if the magistrates feel that their sentencing powers are inadequate.
A defence statement
Following the initial disclosure of unused material under Criminal Procedure and Investigations Act (CPIA) 1996 s3, under CPIA s5 it is mandatory for the accused to serve a defence statement in all cases to be tried on indictment. As a consequence, they lose any tactical element of surprise. However, under CPIA s6, this option is voluntary in the magistrates’ court.
Representing lawyer provides greater continuity
A defendant who elects to be tried summarily is more likely to have met the solicitor who will be defending them before the trial, providing greater continuity. This is less likely to happen in the Crown Court, where unless the solicitor representing the defendant has a higher right of audience to appear in the Crown Court, often a barrister will meet their client for the first time on the day of the trial.
The appeal process
While an appeal from a decision in the Crown Court requires leave, this is not required for an appeal against a decision in the magistrates’ court.
Disclosure in the criminal process is the obligation placed on each party to advise the other party in the proceedings of the evidence at its disposal before the trial. This obligation is much greater on the prosecution than on the defence.
Disclosure is necessary to ensure that a fair trial takes place, and this involves not just the evidence the parties wish to rely on as part of their case (ie, used material), but also all other relevant subject matter which is not part of their case (ie, unused material).
The rules of disclosure are also designed to ensure that the defendant can make informed decisions about their case, for example, whether to plead guilty or not guilty, and if not guilty which venue to elect for the trial.
The disclosure of unused material
The introduction of ‘Transforming summary justice’ initiative, in May 2015, has led to the introduction of a new Code of Practice, which outlines the new streamlined disclosure regime for unused material that arises in three situations:
Disclosure of unused material is regulated by the CPIA, and under section 3 of the Act the prosecutor must disclose to the defendant any prosecution material not disclosed previously, which might reasonably be considered capable of undermining the case for the prosecution or assisting the case for the defence. This is known as the disclosure test, and is an objective test.
The procedure for disclosure differs depending on whether the case is expected to be heard in the magistrates’ court or the Crown Court. Cases to be heard in the magistrates’ court are now-divided into two types.
Anticipated guilty plea
In these cases, it is anticipated that the defendant is to offer a guilty plea and that the case will be heard in the magistrates’ court. Before the anticipated guilty plea hearing, the defence will receive a streamlined version of the IDPC. The case will be heard within 14 days of the defendant being charged, with the aim of dealing with the case at one hearing. In such cases, there is no need to disclose unused material because the defendant will be pleading guilty.
If the defendant pleads not guilty unexpectedly at the anticipated guilty plea first hearing, then the matter will proceed as in an anticipated not guilty plea case (and a streamlined disclosure certificate (SDC) will be prepared, see below).
Anticipated not guilty plea
In these cases, it is anticipated that the defendant is to offer a not guilty plea and that the case will be heard in the magistrates’ court. In order to prepare the case, this hearing will take place 28 days after charge. In such cases, disclosure of unused material will be given via a SDC, which takes two forms.
Under CPIA s7A, if further unused material is uncovered as the case progresses that satisfies the disclosure test, this must be disclosed to the defence in an amended SDC. There is also a continuing duty on the prosecution to continue to monitor unused material.
Under CPIA s6, the service of a defence statement in the magistrates’ court is voluntary; however, if the defence does choose to file a defence statement, the time limit in which to do so is 14 days after the CPS has complied with the initial disclosure obligations under CPIA s3.
The serving of a defence statement also initiates obligations under CPIA s11 (see ‘Disclosure of unused material in the Crown Court’ above), which obviously discourages this in practice. While the serving of a defence statement is voluntary under CPIA s6C, the defence must serve a defence witness statement within 28 days, giving written notice of its intention to call defence witnesses (other than the defendant or an expert witness).
For all cases that are to be tried on indictment, once the CPS has complied with its obligations under CPIA s3, under CPIA s5, the defendant must serve a defence statement within 28 days (although it is possible to apply to the court for an extension), which must be in writing and comply with the requirements under CPIA s6A, ie, it must:
Under CPIA s11, there are consequences for the following:
Under CPIA s7A, as amended by the Criminal Justice Act 2003, once a defence statement has been filed, the prosecutor must continue to keep disclosure requirements under review and decide if any material not disclosed previously or any new material satisfies the disclosure test.
Under CPIA s8, providing a defence statement has been filed, the accused may apply to the court for further disclosure if they have grounds to believe that there is further evidence which may support the defence’s case.
In addition, under CPIA s6C, the defence must serve a defence witness statement within 28 days, giving written notice of their intention to call defence witnesses (other than the defendant or an expert witness).
Used material is disclosed before the plea, while unused material is disclosed before the trial.
* This article is especially relevant to those studying CILEx Level 3 Certificate and Level 3 Professional Diploma in Law and Practice Unit 11