Study area
Court procedures associated with either-way procedures - Part 1
In the first of two articles, Mel Megitt discusses either-way offences in the ‘examination focus’ occasional series.1 Part 2 will appear in (2017) August CILExJ.2
About the author
Mel Megitt is a law tutor at the Law Academy, Liverpool.
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 issue is that these three categories of criminal offences must be dealt within the two criminal trial courts, ie, the magistrates’ court or the crown court. Defendants charged with a summary offence are dealt with in the magistrates’ court, whilst those charged with an indictable offence are immediately transferred to the crown court following an initial appearance in the magistrates’ court.
However, while defendants charged with an either-way offence are seen initially in the magistrates’ court, the magistrates must then decide whether the case is suitable to be dealt with in their court or needs to be transferred to be dealt with in the crown court. In other words, the magistrates act as a filter, directing defendants charged with an either-way offence to the court in which they will be dealt with.
The procedure which magistrates follow in order to determine in which court an either way offence should be dealt with is set out below.
There are three important stages in prosecuting an either-way offence:
- plea before venue;
- allocation hearing (formerly known as ‘mode of trial’ enquiry); and
- defendant’s election.
Plea before venue
After confirming the defendant’s details and outlining the charge(s) against the person, the legal adviser in the magistrates’ court will ask the defendant how s/he intends to plead: guilty or not guilty.
The magistrates’ [court] acts as a filter, directing defendants charged with an either-way offence to the court in which they will be dealt with
Under Criminal Procedure Rules 2015 SI No 1490 Part 8, before their first appearance before a magistrates’ court, defendants charged with an either-way offence are entitled to receive initial details of the prosecution case, which used to be known as ‘advanced information’ or ‘disclosure of used material’. This includes all the evidence that the prosecution intends to use against the defendant if the matter proceeds to trial. This is as opposed to ‘unused’ material, which consists of all the material that has been accumulated during the investigation into the criminal offence, but which will not be used by the prosecution in evidence against the accused. (Details of the disclosure of unused material will be discussed in a future article).
Initial details of the prosecution case are essential for defendants charged with an eitherway offence, as the accused will be expected to indicate what their likely plea will be at the plea before venue stage, and the defendant can only do this with advanced knowledge about the strength of the prosecution case.
In order to improve the efficiency and effectiveness of the magistrates’ courts, a new initiative, the Transforming summary Justice (TSJ) programme was adopted by all criminal justice agencies, from May 2015, and supersedes two previous initiatives: Criminal Justice: Simple, Speedy, Summary, which was introduced in 2007, and Stop Delaying Justice!, which was introduced in January 2012.
The aim of TSJ is to reform the way that criminal cases are handled in the magistrates’ courts, and to create a swifter system with reduced delay and fewer hearings. This will be achieved by ensuring that the first hearing in the magistrates’ court will be as effective as possible.
If the defendant pleads guilty, the court will proceed to sentencing whereas if they plead not guilty, give no indication of plea or if the plea is equivocal, the magistrates will proceed on the basis that the defendant is pleading not guilty and continue to an allocation hearing.
A defendant will also be advised that if they plead guilty or are found guilty following a summary trial, the magistrates reserve the right to transfer them to the crown court for sentencing under Powers of the Criminal Courts (Sentencing) Act (PCC(S)A) 2000 s3, if magistrates feel that their sentencing powers are insufficient.
Allocation hearing
If a defendant pleads not guilty to an either-way offence, the magistrates must proceed to an allocation hearing, which is governed by Magistrates’ Courts Act (MCA) 1980 ss17–21 as amended by Criminal Justice Act 2003 Sch 3. The purpose of this hearing is for the magistrates to determine the most appropriate venue for the trial, ie, whether the case should be tried summarily in the magistrates’ court or on indictment in the crown court. In reaching their decision, the magistrates will take into account the following:
- submissions by the prosecution and the defence;
- the statutory factors contained in MCA s19; and
- the Allocation guideline issued by the Sentencing Council.3
The statutory factors contained in MCA s19 require the magistrates to take into account the following:
- whether the accused has any previous convictions;
- representations by the prosecution and the accused about whether the trial would be more suitable to be held summarily or on indictment;
- whether the sentencing powers of the magistrates’ court are adequate; and
- any allocation guidelines or revised allocation guidelines issued as definitive guidelines under Coroners and Justice Act 2009 s122.
The magistrates must also consider the Sentencing Council’s Allocation guideline (above):
In general, either-way offences should be tried summarily unless the outcome would be a sentence in excess of the court’s powers, or for reasons of unusual, legal, procedural or factual complexity the case should be tried in the crown court. This exception may apply in cases where a substantial fine is the likely sentence.
- In cases with no factual or legal complications, the court should bear in mind its power to commit for sentence after a trial and may retain jurisdiction even though the likely sentence might exceed its powers.
- Cases may be tried summarily even where the defendant is subject to a crown court suspended sentence order or community order.
- All parties should be asked by the court to make representations about whether the case is suitable for summary trial. The court should assess the likely sentence in the light of the facts alleged by the prosecution case, taking into account all aspects of the case, including those advanced by the defence together with any personal mitigation to which the defence wishes to refer.
Court procedures associated with either-way offences: in summary
- There are three important stages in prosecuting an either way offence, plea before venue, allocation hearing and defendant’s election.
- At the plea before venue stage, defendants charged with an either-way offence are entitled to receive disclosure of the initial details of the prosecution case. Defendants can only make an informed decision about how to plead with the knowledge of the strength of the case against them.
- The Transforming Summary Justice initiative aims to improve the efficiency and effectiveness of the magistrates’ courts by reducing delay and holding fewer hearings.
- If a defendant pleads not guilty to an either-way offence, the magistrates must proceed to an allocation hearing in order to determine the most appropriate venue for the trial.
- In reaching their decision, the magistrates will take into account submissions by the prosecution and the defence, the statutory factors contained in MCA 1980 s19 and the Allocation guideline issued by the Sentencing Council.
Defendant’s election
Where the magistrates are prepared to accept jurisdiction, the legal adviser will explain to the defendant that they now have a choice, ie, they can elect to be tried summarily in the magistrates’ court or opt for trial by jury in the crown court (ie, trial on indictment). It will also be explained to the defendant that if they agree to be tried summarily and are found guilty, they could still be sent to the crown court for sentencing under PCC(S)A s3.
If the defendant elects to be tried summarily, the TSJ initiative demands that all contested trials in the magistrates’ court are fully case managed at the first hearing and disposed of at the second hearing. A date will then be set for the trial, together with directions for disclosure of unused material.
Under MCA s20, where the magistrates accept jurisdiction the defendant is now able to enquire of the likely sentence that would be imposed if they were to plead guilty. Where an indication of sentence is given, the defendant will be asked whether they would wish to reconsider their earlier indication of plea at the plea before venue. Magistrates are not obliged to give an indication of sentence; however, if they do and the indication is that a custodial sentence will not be imposed, the indication is binding if the defendant then changes their plea to guilty.
If the magistrates refuse jurisdiction for a trial summarily, the defendant loses the right to choose in which court they would like to be tried. The case is then adjourned and, under Crime and Disorder Act (CDA) 1998 s51, is sent to the crown court and a date is set for a plea and trial preparation hearing.
1 This article is especially relevant to those studying CILEx Level 3 Certificate and Level 3 Professional Diploma in Law and Practice Unit 11
2 Part 2 of this article will discuss the factors which will influence a defendant’s choice of venue for their trial if the magistrates accept jurisdiction, and the rules that govern the disclosure of unused material
3 Allocation definitive guideline, effective from 1 March 2016, available at: http://tinyurl.com/n7lqlaj