4. Procedure in the magistrates' courts, allocation for trial, and sending to the Crown Court for trial or sentence

Question 1

When must the initial details of prosecution case be served?

Answer 1

As soon as practicable and no later than the beginning of the day of the first hearing.
It is submitted that the reference to a magistrates’ court in Part 8 should be taken to include youth courts, and so these provisions apply equally to cases in the youth court where the accused is under the age of 18.
CrimPD 5.1.1(a) (see Supplement, PD5.1) notes that it is ‘essential’ that initial details are ‘sufficient to assist the court to identify real issues and give directions for an effective magistrates’ court or Crown Court trial’.

Question 2

When must a prosecutor serve the IDPC on the defendant?

Answer 2

When a defendant requests those details, as soon as practicable and no later than the beginning of the day of the first hearing.
If the defendant does not request those details, the prosecutor must make them available to the defendant at or before the beginning of the day of the first hearing

Question 3

What details are included in the IDPC?

Answer 3

Where the defendant was in police custody immediately before the first hearing:
(a) The summary of the circumstances of the offence
(b) The defendant’s criminal record
Where the defendant was NOT in police custody immediately before the first hearing:
(a) A summary of the circumstances of the offence
(b) Any account given by the defendant in interview
(c) Any written witness statement or exhibit that the prosecutor has available and considers material to plea or allocation or sentence
(d) The defendant’s criminal record
(e) Any available statement of the effect of the offence by a victim/others

Question 4

What happens where the prosecutor has not served the IDPC?

Answer 4

The court must not allow the prosecutor to introduce the information within CrimPR 8.3 (information dependent on whether the defendant has been in police custody immediately before) unless the court first allows the defendant sufficient time to consider it.
Part 8 contains no specific sanction if the prosecution fail to supply the required initial details. However, it is submitted that it would be open to the magistrates’ court to make a direction (under CrimPR 3.5: see Supplement, R3.5) requiring the prosecution to comply. It should be noted that r. 3.5(6)(a) provides that, if a party fails to comply with direction given by the court, the court may (for example) adjourn the hearing (see D5.22). Failure on the part of the prosecution to comply with Part 8 is likely to result in an adjournment (and possibly a costs sanction under r. 3.5(6)(b)).
However, it would appear that the court cannot dismiss the charge(s) brought by the prosecution because of non-compliance with a request for initial details of the prosecution case (King v Kucharz (1989) 153 JP 336). In R (AP, MD and JS) [2001] EWHC Admin 215, the Divisional Court held that, even taking into account the coming into force of the HRA 1998, the court does not have jurisdiction to dismiss proceedings for abuse of process simply on the basis of the failure to supply the information now required by Part 8

Question 5

May a pre-trial hearing take place by live link?

Answer 5

Yes (CJA 2003 s51) where a court requires or permits it via a direction. Can be through a live audio or video link.

Question 6

What pre-trial proceedings may take place via live link?

Answer 6

Preliminary hearings and hearings before a mags’ court or the crown court which are held after D has entered a plea of guilty, and sentencing hearings.

Question 7

When may a court allow a person to attend via live link?

Answer 7

Only where it is satisfied that it is in the interest of justice for the person to take part through a live link and that the parties have been given an opportunity to make representations.
The factors to consider include:
1. Any need to attend in person
2. The views of the person
3. The suitability of the facilities
4. Whether the person would be able to take part effectively
5. Where the person is a witness, the importance of their evidence
6. Whether the direction for a live link would inhibit effective cross-examination
7. The arrangements for members of the public to see or hear the proceedings
CrimPD 5.5.1 (see Supplement, PD5.5) states that, where it is lawful and in the interests of justice to do so, ‘courts should exercise their statutory and other powers to conduct hearings by live link’ and must comply with the guidance on the use of live links in the criminal courts issued by the Lord Chief Justice in July 2022. . That guidance notes (at para. 8) that:

… it may be in the interests of justice to allow or require a defendant to attend hearings (particularly preliminary hearings) by live link so as to avoid delays and disruption. As well as the parties’ representations, the court will wish to take account of any mental health or other medical assessment before deciding if a live link is in the interests of justice. Pre and post court conferences between advocate and defendant may not be able to take place effectively by live link: where such conferences are desirable alive link is less likely to be in the interests of justice.

The guidance goes on to say (at para. 9) that factors to consider when deciding where D should attend a sentencing hearing via live link include ‘the potential penalty; ensuring the explanations of sentence can be given satisfactorily for all participants and for the public; and the preferences of the maker of any Victim Personal Statement which is to be read’. The guidance adds that it is ‘rarely appropriate for a youth to be sentenced over a live link’ (para. 11). This guidance also notes that preliminary hearings such as bail applications ‘will generally be suitable for remote attendance by all advocates’.

Question 8

What are pre-trial hearings and what happens there?

Answer 8

Where an accused has been charged at a police station, the mags’ court the accused appears before for the first time may consist of a single justice. The accused is asked whether they want legal aid, after which, if the answer was yes, necessary arrangements will be made (the hearing may be adjourned for this purpose). It may be conducted by a justices’ clerk but the clerk is not empowered to remand the accused in custody or, without the consent of the prosecutor and accused, to remand the accused on bail conditions other than those previously imposed.
(CDA 1998 s50)

Question 9

What are Preparation for Trial Hearings?

Answer 9

CrimPR 3.16 means that a mag’s court must conduct these (unless sent for trial at the CC or enters a written guilty plea, or the SJP procedure applies).
The court may conduct one or more further pre-trial case management hearings if:
(i) The court anticipates a guilty plea
(ii) It is necessary to conduct such a hearing to give directions for an effective trial
(iii) Such a hearing is required to set ground rules
At this hearing, the court must give directions for an effective trial.
If the accused is present, the court must:
(a) Satisfy itself the accused understands credit would be given if he pleads guilty now
(b) Take a plea (or if no plea can be taken find out whether the accused is likely to plead guilty or not guilty)
(c) Unless the accused pleads guilty, satisfy itself that the accused understand that at trial:
a. He will have the right to give evidence after the court has heard the prosecution case
b. If the accused does not attend, the trial is likely to take place in their absence
c. If released on bail, failure to attend court when required is an offence which may lead to arrest and punishment and that bail may be withdrawn
(d) Ascertain his date of birth and name unless previously provided.
These are public hearings.

Question 10

What are pre-trial rulings?

Answer 10

At a pre-trial hearing (at a hearing that takes place before the court begings to hear evidence from the prosecution or consider whether to exercise its power under the Mental Health Act 1983 s 37(3) to make a hospital order without conviction), the magistrates may decide any question as to the admissibility of evidence and any other question of law relating to the case. Such rulings may only be made if the parties have been given an opportunity to make representations and it appears to the court to be in the interests of justice to do so. If the accused is unrepresented, they must be given the chance to apply for legal aid. These rulings can be made on the court’s own motion or on application.

Question 11

How binding are pre-trial rulings?

Answer 11

It is binding until the case is disposed of (acquitted or convicted or the prosecution is not proceeding or it is dismissed).
However, on its own motion or on application the court may discharge or vary a pre-trial ruling provided it appears to the court that it is in the interests of justice to do so and the court has given the parties an opportunity to be heard. Can only apply to do so if there has been a material change in circumstances since the ruling or since a previous application if one has been made; it is not sufficient that a different bench reaches a different conclusion on the same material.
Any appeals can only be made via case stated, once there has been a final determination of the proceedings.

Question 12

Can the court proceed to sentence following a plea of guilty?

Answer 12

Yes or may take the plea and then adjourn. Entirely the discretion of the court. Common reasons for an adjournment are to obtain reports on the accused or await the outcome of other proceedings with a view to the accused being sentence on one occasion for all matters.

Question 13

What is an ambiguous plea and what should happen if one is given?

Answer 13

If they plead guilty but qualify it with words that suggest the accused may have a defence. In such a circumstance, the court should explain the relevant law and seek to ascertain whether the accused genuinely intends to plead guilty.
If the plea cannot be clarified. In such a situation, the court should order a not guilty plea (CLA 1967 s6).

Question 14

What is the effect if the court sentences on a plea which is imperfect, unfinished or otherwise ambiguous?

Answer 14

The accused will have a good ground of appeal. The CoA will have the option of either setting the conviction and sentence aside and ordering a retrial or of simply quashing the conviction. If the former course is chosen, the court may either then and there direct a not guilty plea be entered or order the accused be re-arraigned in the court below.

Question 15

How should the court use its case management powers to give effect to the Criminal Procedure Rules?

Answer 15

Where the accused pleads not guilty, the parties must, from the start, identify the disputed issues and tell the court what they are. If the parties do not, the court must require them to do so. The ‘live’ evidence should be confined to those issues, and so only witnesses who are really needed in relation to genuinely disputed, relevant issues should be required to attend.
The court should also issue directions for a timetable for the progression of the case, and the parties are required to warn the court promptly if any problems relating to witnesses are anticipated.
In setting the timetable, the court should scrutinise the reasons why it is said a witness is necessary and the time examination and cross-examination would take. It is also important in setting a timetable to have regard to the nature of the issues and the fact that the trial is a summary trial; any estimate of more than a day in the Magistrates’ Courts should be scrutinised with the utmost rigour. Parties must realise that a summary trial requires a proportionate approach. If a timetable for the trial is not set, it is difficult to have any real confidence that the estimate is accurate.
In DPP v Radziwilowicz [2014] EWHC 2283 (Admin), Sir Brian Leveson P referred (at [8]) to a judicially-led initiative known as ‘Stop Delaying Justice!’, the aim of which is that ‘all contested trials in the magistrates’ court will be fully case managed in the first hearing and disposed of, by way of trial or otherwise, at the second’. His lordship noted that ‘such a course might be adopted if the initial or advanced disclosure contains all of the likely available evidence of note’ and the ‘prosecution evidence is not challenged and the only evidence, if any, will be that of the defendant’. However, his lordship emphasised (at [9]) that the ‘real issue’ is the ‘fairness of the proceedings to all parties’.

Question 16

What factors may impact on the accused’s decision to opt for trial in the mags?

Answer 16

Perhaps that submissions on admissibility are made in front of a judge and not jury.
A supposed difference is that in the crown D is entitled to receive written statements of witnesses (though, as a matter of good practice, this is generally provided already).
It is also shorter and less formal on trial on indictment and also cheaper.
The differing disclosure regimes for the defence (defence statements are required in the Crown Court). However, a defence statement is required to ask for specific disclosure and the court cannot make any orders for disclosure of unused without. If a choice is made to serve a defence statement, this must be done within 14 days on which the prosecutor complies or purports to comply. Even without, the defence must identify real issues in the case. (From my understanding, a good tactical decision within the Mags is to not serve one where specific disclosure or disclosure of unused is needed).
Also, there is a duty to give reasons in the Mags Court whereas a jury does not.

Question 17

How is a plea-before-venue hearing held?

Answer 17

If the accused pleads not guilty, the next stage is to determine where the case will be heard.
The general procedure is:
(a) The charge is written down and read to the accused
(b) The court explain that the accused may indicate whether the plea would be guilty or not guilty (if he pleads guilty here, the accused will be treated as having been convicted at summary trial so it can still be committed)
(c) The court asks the accused to indicate a guilty oir not guilty plea
(d) If accused pleads guilty, the court will proceed as if the accused had pleaded guilty at summary trial and so moves to sentencing
(e) If the accused indicates a not guilty plea, an allocation hearing will be held.

Question 18

How is allocation decided upon?

Answer 18

The general procedure is:
(a) The court affords both sides opportunity to give representation (the pros. Inform the mags of previous convictions here)
(b) The court decides whether the offence appears more suitable for summary trial or indictment trial. The court must consider:
a. What sentence is likely and whether this is to be within the powers of the court
b. The representations made by the prosecution or accused; and
c. Allocation guidelines issued by the Sentencing Council
(c) If summary trial appears more appropriate, the court explains:
a. This is the court’s view and the accused can either consent to summary trial or elect to be tried on indictment in the Crown Court
b. If the accused is tried summarily and convicted, the magistrates may commit the accused to the Crown Court for sentence
(d) The accused may request information on whether a likely sentence is custodial or non-custodial if pleading guilty at summary trial. Magistrates are not obliged to give such an indication. If the court does give an indication, the court must ask the accused whether he or she wishes to reconsider the indication of plea which was given. If the accused does wish to do so, the court must ask for a fresh indication of intended plea.
(e) If the accused indicates an intention to plead guilty following indication, this is regarded as a guilty plea and the magistrates will proceed to sentence. A custodial sentence will be available only if it was indicated. If the accused chooses to plead not guilty, the indication will not be binding on later courts.
(f) If no further plea of guilty is given or no indication is made by the court, the accused will be asked whether he or she consents to summary trial
(g) The accused will then either be tried summarily or be sent to the crown for trial.
(h) If the court finds that trial on indictment is to be preferred, it tells the accused this is so and sends him for trial there.
There is a special procedure for criminal damage and for certain proceedings to be carried out in the absence of the accused in certain conditions.

Question 19

Must the accused be present for the plea before venue hearing?

Answer 19

Yes, except where:
(a) The accused is represented legally; and
(b) The court considers, by reason of the accused’s disorderly conduct, it is not practicable for the proceedings to be conducted in the presence of the accused; and
(c) The court considers it should proceed in absence of the accused
In such a case, the representative is asked to indicate whether the accused intends to plead guilty or not guilty. If the representative indicates a guilty plea, the court proceeds as if the accused had pleaded guilty. Otherwise, the court proceeds to determine allocation.

Question 20

Must the accused be present for the allocation hearing?

Answer 20

Yes, unless
(a) The court considers that, by reason of disorderly conduct before the court, it is no practicable for the proceedings to be conducted in the presence of the accused. Where there is a legal representative present in court, they speak for the accused.
(b) If an accused is represented legally and they signify they consent to mode of trial proceedings being conducted in their absence, and the court considers there is good reason for proceeding like this. The phrase ‘good reason’ is not defined; sickness is an obvious example, but it is submitted that ‘good reason’ extends beyond that. Assuming the court does proceed in the accused’s absence and considers that the offence is more suitable for summary trial, consent to such a trial may be signified by the legal representative, in which event ‘the court shall proceed to … summary trial’ (s. 23(4)(a)). Clearly, this does not require the magistrates to commence the trial forthwith, as they are entitled to adjourn under the general power given them by s. 10(1) if an immediate hearing is impracticable or undesirable (e.g., because of the accused’s absence). If the court considers that trial on indictment is more appropriate, or if the legal representative does not signify that the accused consents to summary trial, then the court must proceed to send the case to the Crown Court for trial under the CDA 1998, s. 51 (s. 23(4)(b) and (5)).
The court may use a live television link in a case where the accused is held in custody and facilities are available there.
THERE IS A CHANGE IN THE LAW AWAITING COMMENCEMENT.

Question 21

How binding is an indication of sentence?

Answer 21

Where ethe court gives an indication of sentence and the accused then indicates a guilty plea, no court may impose a custodial sentence unless it too was indicated.
The accused must still be committed to the Crown Court, which may give an extended sentence under s267, if the criteria for the imposition of a sentence under s.267 is applicable. Also, the power to commit is not ousted where they are also being sent for trial in respect of one or more related offences only where it is also a specified offence.

Question 22

What should the magistrates consider when determining whether the accept jurisdiction?

Answer 22

Primarily, whether the sentencing powers would be sufficient (looking at the totality of offending). Magistrates can consider other factors (i.e. complexity of law, facts, procedure involved). These two elements are given in the allocation guideline.
The guideline goes on to say that, in cases with no factual or legal complications, the court should bear in mind its power to commit for sentence after trial and may retain jurisdiction notwithstanding the likely sentence may exceed the powers. It is submitted that the practical effect is that, if the magistrates are uncertain of the adequacy of their sentencing powers, they should err on the side of offering the accused the option of summary trial.
All parties should be asked to make representations and the court should consider them. Where the court decides the case is suitable to be dealt with in the Mags court, it must warn the accused all sentencing options remain open and that it may commit for sentence.

Question 23

Can the court commit for sentence after trial?

Answer 23

Yes, where the court is of the opinion the offence(s) are so serious that the Crown Court should have the power to deal with the offender (including where a community order is the likely sentence, such as in a case where there would otherwise be a custodial sentence but there is substantial mitigation). In borderline cases, the mags’ court should consider obtaining a PSR before deciding to commit.

Question 24

What happens for allocation where there are co-accused?

Answer 24

Where the court is dealing on the same occasion with two or more accused who are charged jointly with an offence that can be tried in the Crown Court, the Court must explain that, if one of them is sent for trial, the others must also be sent for trial in the CC that is jointly charged and for any other offence that the court decides is related to the offence. They will send even if they opt for summary or if the Mags accept jurisdiction.

Question 25

How much influence does the prosecution have on allocation?

Answer 25

Make representations, except where:
(a) The case involves fraud of such seriousness or complexity that management of the case should be taken over by the CC or
(b) The accused is charged with an offence whicvh inmvolves an assault on, or injury or threat of injury to, a person or is charged with certain other specified offences and a child will be called as a witness and, for the purpose of avoiding any prejudice to the welfare of the child, the case should be taken over and proceeded with without delay by the Crown Court
At which point the prosecutor can serve a notice requiring the court to send the case forthwith to the CC for trial without conducting a PBV hearing.

Question 26

Which offences does the special procedure for allocation on criminal damage apply to?

Answer 26

CD excluding via fire, and including aiding, abetting, counselling or procuring, attempting, or encouraging those such offences.
Also, CD committed WITH INTENT OR RECKLESSLY ENDANGERING LIFE are not applicable, nor is damaging or destroying a memorial.

Question 27

What is the special procedure for criminal damage charges?

Answer 27

It must be preceded with a determination of the value involved.
If less than £5k, the Mags must proceed to trial summarily.
If the value exceeds, the court must proceed to the usual allocation procedure.
Where it is not clear, the court must explain to the accused that he or she may consent to summary trial and that, if consent is given, a summary trial will take place and liability to imprisonment or a fine will be limited in accordance with s33 MCA 1980. (3 months’ custody or a L4 fine) The accused is then asked for consent. Depending on the response, the court either proceeds to summary trial or embarks on the ordinary procedure for determining mode of trial.

Question 28

What happens where an accused pleads guilty to one of the scheduled offences in s22 (criminal damage offences)?

Answer 28

The court must consider whether the value exceeds £5k.
If the value does not, or it is unclear whether it does, the maximum sentence is 3 months’ custody or a L4 fine (£2.5k). (includes where it is sent alongside a co-accused).
The court has no power to commit.
If it exceeded £5k but the summary trial was consented to, and the accused is found or pleads guilty, the court can deal with it like any other either-way offence.

Question 29

How is the value determined?

Answer 29

The court must, after considering representations, the value exceeds £5k. There is no obligation to hear evidence (but has a discretion to do so). Submissions, assertions of fact and production of documents is acceptable. Nearest analogy is a plea in mit. Prosecution are entitled to say they will only seek to prove what can be established with clarity and the court may then conclude the value was clearly less than the relevant sum even where the court may have been doubtful and the accused would have otherwise asked for indictable trial.
If the property was destroyed or damaged beyond repair, the value involved is what it would probably have cost to purchase a replacement in the open market at the time of the offence. If repairable, the cost is the market cost of repairs or replacement cost, whichever is less. No consequential loss should be considered.

Question 30

What is the value when there are two or more schedule offences (CD offences)?

Answer 30

Where it appears to the court that they constitute or form part of a series of two or more offences of the same or a similar character (i.e. if they could be joined on an indictment. Thus, this means if they are founded on the same facts or constitute a series of offence that are linked by closeness in time and geographical location), the relevant consideration is the aggregate value involved.
Also applies where it is charged on the same occasion (i.e. appearing before the mags or after being charged at the police station. The court has determined that this also means appearing at a mags hearing for two separate offences IF this is both their first hearing).

Question 31

What is the special allocation procedure for low-value shoplifting?

Answer 31

Low-value shoplifting (<£200) is summarily only though they can still elect crown court trial.
Under the MCA 1980, s. 22A(1A) (inserted by the JRCA 2022, s. 6(3), from a date to be appointed), where a person accused of low-value shoplifting is aged 18 or over (and has not appeared before the court to answer the charge before attaining that age), the magistrates’ court must, in writing, ask whether the accused wishes to elect to be tried in the Crown Court. Under s. 22A(1D), if the accused elects to be tried in the Crown Court, the court sends the case to the Crown Court for trial.
Applies where it is charged on the same occasion (i.e. appearing before the mags or after being charged at the police station. The court has determined that this also means appearing at a mags hearing for two separate offences IF this is both their first hearing).
The CJA 1988 s.40 does not apply to low-value shoplifting.
They are not summary only until they have been before the magistrates court (thus the time-barred provisions do not apply to them).

Question 32

How does the principle of legitimate expectation impact on the power to commit for sentence?

Answer 32

It is limited by it. If the offender has been led to believe that the magistrates will pass sentence, the offender should not subsequently be committed for sentence whether by the same or a differently constituted bench (i.e. if the court says that all sentencing options were to remain open except committal and then subsequently committed at a later date, then that option would be quashed).

Question 33

What power does the court have to commit for sentence for either-way offences?

Answer 33

Where it takes the view that the seriousness of the offence(s) is such that its sentencing powers are inadequate. CC can then, once committed, deal with the offender in any way that it may have done if convicted on indictment.

Question 34

What power does the court have to commit for sentence for guilty pleas to an either way offence and the accused, at the same time, is sent for trial to the CC on related offences?

Answer 34

They may commit him (offences to be taken as related if they could be joined so must be founded on the same facts or part of a series of offences of the same or similar character).
Where they have committed the accused in THESE circumstances, the CC can exceed the sentencing powers of the mags only if either:
(a) The magistrates stated their sentencing powers were inadequate (it MUST state this); or
(b) The offender is convicted by the CC of one or more of the related offences.

Question 35

What miscellaneous powers of committal does the court have?

Answer 35

It may supplement a committal under ss14-19. By virtue of this, where a Mags’ court exercises a ‘primary’ committal power in respect of an indictable offence (either-way in this context) it may also commit the offender to the Crown Court to be dealt with for any other offence he stands convicted for (whether summary or indictable) that mags have jurisdiction for. This includes even where the conviction was by a different court so long as the court could sentence them if not committed.
By way of example, a court which has decided to commit an either-way offence under s14 may also commit under s.20:
(A) Another less serious either way offence of which the mags have convicted the offender on the same occasion:
(B) A summary offence of which they have convicted the offender on the same occasion
The reason a committal under s14 for the secondary offence would be inappropriate under s14 for (A) is that the offence is within the powers of the mags and for (B) that because s14 does not extend to summary offences.

Question 36

How are indictable offences sent for trial?

Answer 36

Following the allocation procedure under s51 CDA 1998.
Where an adult is charged with offence triable only on indictment or either-way and jury trial is selected, the accused must be sent forthwith (subject to any adjournments) for trial in the Crown.

Question 37

What happens where an accused is sent for trial for an indictable offence but is also charged with either-way and summary offences?

Answer 37

The accused must be sent to the CC for trial for them if they are related (provided that, if summary, it is punishable with imprisonment or disqualification from driving). It is related if:
(a) For an either way offence, they could be joined in the same indictment (i.e. founded on the same facts or form part of a series of offences of the same or a similar character.
(b) For a summary offence, it arises out of circumstances that are the same as or connect with those giving rise to the indictable offence
The summary test is therefore more restricted, though it does give leeway to the justices as it is merely an ‘apparent’ connection.
Failing to surrender is not a sufficient connection.
Equally, an offence committed post-arrest (i.e. racially abusing officers whilst in the police station) is not connected.

Question 38

What happens if an accused is later charged with an EW or summary offence that appears related to an offence already sent to the Crown?

Answer 38

The court may send the accused to the CC for trial (provided that the summary offence is imprisonable or he may be disqualified from driving)
It is a discretionary power in this instance and there will be a PBV hearing.

Question 39

What happens when a co-accused appears before the court when their other co-accused has been sent for trial on indictment?

Answer 39

They must send them for trial, even if otherwise suitable.
If they appear (either at the same time or on a subsequent occasion) and that offence appears related to an offence to which the first adult was sent for trial the court must (on the same occasion) or may (if subsequent) send the other adult to the Crown Court for trial for the either way offence. Where it sends them for trial, it must send them for trial for any other related offence (if, for summary offences, it is punishable by imprisonment or disqualification from driving).

Question 40

What happens if there is a co-accused under 18 for allocation where the other accused is sent to the Crown Court?

Answer 40

If appearing on the same or subsequent occasion and the child or young person is charged jointly for which the adult is sent for trial or appears related to this offence, the court shall, if it considers necessary in the interests of justice to do so, send the child or young person forthwith to the CC for the indictable offence. Where it sends the child or young person for trial, it may at the same time send the defendant to the CC for trial of any indictable or summary offence with which D is charged and appears to be related to the offence for which he is sent for trial (so long as it is punishable with imprisonment or disqualification from driving).

Question 41

How is any summary trial regarded if that offence is sent to the CC?

Answer 41

The summary trial is regarded as having been adjourned without fixing the time or place.

Question 42

Who may send for trial under s51?

Answer 42

A single justice

Question 43

What is the procedure for sending u18s for trial?

Answer 43

The same (just contained in s51A instead).

Question 44

What happens to sending for trial where the accused is absent?

Answer 44

The court may issue an arrest warrant (and may later lay bail act offences).
Equally, the CoA ruled that s122 of the MCA permits the accused to be absent when it is being sent. The court also said that it is an entirely procedural requirement and failure to comply does not deprive the CC of jurisdiction to try the matter.
It follows that if an accused is sent in his absence, this point could be raised only in the CC via Section 2(sss. 2-3) the Administration of Justice (Miscellaneous Provisions) Act 1933 asking for the indictment to be quashed.
The court also added that, even if the non-attendance is to be considered as unlawful and falling outside of Section 2(sss. 2-3), whether the proceedings are invalidated would depend on the circumstances of the case; where the accused has asked to be represented by an advocate rather than appearing in person, it would be difficult to demonstrate prejudice.

Question 45

Where will the accused’s first appearance be?

Answer 45

At the magistrates’ court (s. 2(2) MCA 1980).

Question 46

How is an offence sent under CJA 1988 s40 dealt with?

Answer 46

By including it as a count on the indictment and being tried by a jury.
The maximum penalty is that which could have imposed by a magistrates’ court (and it can deal with him even if acquitted of the indictable offence).

Question 47

How is a related offence dealt with in the Crown Court?

Answer 47

The CC asks for a plea if it agrees it is related. If it is a guilty plea, the CC can deal with the accused in any way the Mags court could have done. If it is not guilty plea, the powers of the CC in respect of the summary offence cease (though it is open to the judge to deal with it sitting as a DJ).

Question 48

What offences does the CJA s40 power apply to?

Answer 48

1. Common assault (incl. battery)
2. Assaulting a prisoner custody officer or a secure training centre custody officer
3. TWOC
4. Drive whilst disqualified
5. CD where it is £5k or less (though it is technically not a summary offence). If the mags have not determined value, the CC is not fettered to pass such sentence as would have been if in the Mags’ if it is added after the case came to the Crown.