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

Question 1

D5.20

Answer 1

.

Disclosure of Initial Details of Prosecution Case

D5.20

CrimPR part 8 (see Supplement, R-71) applies in every case (r. 8.1(1)). Rule 8.2(1)(a) requires the prosecutor, as soon as practicable (and, in any event, no later than the beginning of the day of the first hearing), to provide to the court ‘initial details’ of the prosecution case. These initial details of the prosecution case do not have to be supplied automatically to the accused; rather, r. 8.2(2) provides that, if the accused requests the initial details, the prosecutor must serve them as soon as practicable (and, in any event, no later than the beginning of the day of the first hearing); if the accused does not request those details, the prosecutor must make them available to the accused at, or before, the beginning of the day of the first hearing (r. 8.2(3)).

What constitutes ‘initial details’ of the prosecution case is defined by r. 8.3. Where, immediately before the first hearing in the magistrates’ court, the accused was in police custody for the offence charged, initial details comprise a ‘summary of the circumstances of the offence’, and the accused’s criminal record (if any). If the accused is not in custody, initial details comprise: a summary of the circumstances of the offence; any account given by the accused in interview (set out either in the summary or in a separate document); any written witness statements (including exhibits) that the prosecutor has available at that stage and which he considers to be material to plea, or to whether the case should be tried in a magistrates’ court or the Crown Court, or to sentence; the accused’s criminal record (if any); and any available statement of the effect of the offence on victims or their family (or on others).

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 I, para. 3A.4, states that the information supplied pursuant to CrimPR 8.3 must be sufficient to allow the accused and the court, at the first hearing, to take an informed view on plea and (where applicable) venue for trial. Paragraph 3A.12 makes the point that, if the accused is on bail and the prosecutor does not anticipate a guilty plea at the first hearing in a magistrates’ court, the initial details of the prosecution case that are provided for that first hearing must be sufficient to assist the court to identify the real issues and to give appropriate directions for an effective trial (regardless of whether the trial is to be heard in the magistrates’ court or the Crown Court). Moreover, by virtue of para. 3A.13, as well as the material required by CrimPR part 8, the information required by the Preparation for Effective Trial form must be available to be submitted at the first hearing, and the parties must complete that form.

Question 2

D5.38

Answer 2

Pre-trial Hearings by Television Link

D5.38

The CDA 1998, ss. 57A, 57B, 57D and 57E, enable the court to direct that an accused who is in custody may appear at preliminary hearings, and at sentencing hearings, via a ‘live link’ from prison or from a police station. Under s. 57A(2), the accused is to be treated as present in court when attending via a live link (defined, by s. 57A(3), so as to require that that the accused be able to see and hear, and to be seen and heard by, the court during the hearing). CrimPR 3.2(4) (see Supplement, R-8) strongly encourages the use of live links; moreover, CrimPD I, para. 3N.1 (see Supplement, PD-15), says 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 or telephone’. Paragraph 3N.4 emphasises that all participants must be able to hear and, in the case of a live link, see each other clearly, and notes that, if a hearing is open to the public, use of media such as Skype or Facetime, which are not generally considered secure from interception, may not be objectionable (as the information is in the public domain anyway). Paragraph 3N.8 states that, in principle, nothing prohibits the conduct of a pre-trial hearing by live link or telephone with each participant, including the member(s) of the court, in a different location (sometimes described as a ‘virtual hearing’), so long as the hearing can be witnessed by the public (e.g. by public attendance at a venue from which the participants can all be seen and heard (if by live link), or heard (if by telephone)).

Question 3

, D5.41

Answer 3

Proceeding to Sentence

D5.41

Under the CDA 1998, s. 57D, where an accused attends a preliminary hearing over a live link (pursuant to s. 57B or 57C) and pleads guilty to the offence (or, if it is an either-way offence, indicates a guilty plea and so is deemed to have pleaded guilty under the ‘plea before venue’ procedure), and the court proposes to proceed immediately to sentencing, the accused may continue to attend through the live link provided the court is satisfied that it is not contrary to the interests of justice for this to take place (s. 57D(2)). Section 57D(3) provides that, where a preliminary hearing over a live link continues as a sentencing hearing, the offender can give oral evidence over the live link only if the court is satisfied that it is not contrary to the interests of justice.

Question 4

, D21.33-21.35

Answer 4

Pre-trial Hearings

D21.33

CrimPD I, para. 3A.5 (see Supplement, PD-3), requires that, if the accused is charged with an indictable (including either-way) offence and is in custody, the magistrates’ court should, at the first hearing, proceed ‘at once’ with the allocation of the case for trial (if it is an either-way offence) and, if so required, with the sending of the accused to the Crown Court for trial. If the offence is a summary one or an either-way offence that is allocated for summary trial, the magistrates should ‘forthwith’ give such directions as are necessary, either (on a guilty plea) to prepare for sentencing or for a trial (para. 3A.6).

If the accused is on bail, para. 3A.7 requires that the case must be listed for the first hearing 14 days after charge (or the next available court date thereafter) if the prosecutor anticipates a guilty plea ‘which is likely to be sentenced in the magistrates’ court’. Where it is anticipated that the accused will plead not guilty, or that the case is likely to be sent for trial or committed for sentence to the Crown Court, the case must be listed for the first hearing 28 days after charge (or the next available court date thereafter).

Where the accused pleads guilty or indicates a guilty plea in a magistrates’ court, the court should consider whether a pre-sentence report is necessary (para. 3A.8). Paragraph 3A.9 requires that, where a magistrates’ court is considering committal for sentence, or the accused has indicated an intention to plead guilty in a matter which is to be sent to the Crown Court, the magistrates’ court should request a pre-sentence report for use by the Crown Court if the magistrates’ court considers that there is a realistic alternative to a custodial sentence, the accused may satisfy the criteria for classification as a dangerous offender or there is some other appropriate reason for doing so.

The CDA 1998, s. 50, makes provision for pre-trial hearings. It provides that where the accused has been charged with an offence at a police station, the magistrates’ court before which the accused appears for the first time in relation to that charge may consist of a single justice (s. 50(1)). At a hearing under s. 50, the accused is asked whether he or she wishes to be provided with legal aid (s. 50(2)(a)); if the accused does so wish, the necessary arrangements for an application must be made and, where appropriate, legal aid obtained (s. 50(2)(b)) and, if necessary, the hearing may be adjourned for this purpose under s. 50(4A)(a). On adjourning the hearing, the magistrate may remand the accused in custody or on bail (s. 50(3)(b)). Under s. 50(4), an early administrative hearing may be conducted by a justices’ clerk (or an assistant clerk who has been specifically authorised by the justices’ clerk for that purpose), but the clerk is not empowered to remand the accused in custody or, without the consent of the prosecutor and the accused, to remand the accused on bail on conditions other than those (if any) previously imposed.

Section 50(1) makes it clear that s. 50 applies only where the accused was charged at the police station, and so does not apply where the accused is granted police bail and is then charged by the CPS using the written charge and requisition procedure. However, there is nothing to prevent magistrates’ courts operating a system of early administrative hearings in all cases where a not guilty plea is expected.

Answer 5

D21.34

Preparation for Trial Hearings By virtue of CrimPR 3.27, a magistrates’ court must conduct a ‘preparation for trial hearing’ (unless the accused is sent for trial in the Crown Court or enters a written guilty plea, or the single justice procedure applies). The court may conduct one or more further pre-trial case management hearings if (i) the court anticipates a guilty plea; or (ii) it is necessary to conduct such a hearing in order to give directions for an effective trial; or (iii) such a hearing is required to set ground rules for the conduct of the questioning of a witness or defendant (r. 3.27(1)). At a preparation for trial hearing, ‘the court must give directions for an effective trial’ (r. 3.27(2)). Under r. 3.27(3), if the accused is present, the court must: (a) satisfy itself that the accused understands that credit will be received for a guilty plea; (b) take a plea from the accused (or, if no plea can be taken, find out whether the accused is likely to plead guilty or not guilty); and (c) unless the accused pleads guilty, satisfy itself that the accused understands that, at the trial, (i) he or she will have the right to give evidence after the court has heard the prosecution case; (ii) if he or she does not attend, the trial is likely to take place in his or her absence; and (iii) if released on bail, failure to attend court when required to do so is an offence which may lead to arrest and punishment, and that bail may be withdrawn. The court is also required to ascertain the name, date of birth and nationality of the accused (r. 3.27(5)). These hearings will usually take place in public (r. 3.27(4)).

Answer 6

Pre-trial Rulings

D21.35

The MCA 1980, s. 8A (see D21.37), applies to cases that are to be tried summarily where the accused has entered a not guilty plea (s. 8A(1)). For these purposes, a pre-trial hearing is a hearing that takes place before the court begins to hear evidence from the prosecution at the trial (or, in those cases where fitness to plead is an issue, before the court considers whether to exercise its power under the Mental Health Act 1983, s. 37(3), to make a hospital order without convicting the accused (s. 8A(2)). At a pre-trial hearing, the magistrates may decide any question as to the admissibility of evidence and any other question of law relating to the case (s. 8A(4)). Such rulings may be made only if the court has given the parties an opportunity to be heard and it appears to the court that it is in the interests of justice to make the ruling (s. 8A(3)(b) and (c)). If the accused is unrepresented, he or she must be given the chance to apply for legal aid (s. 8A(5)). Pre-trial rulings may be made on the application of the defence or prosecution, or of the court’s own motion (s. 8A(6)).

Under s. 8B(1), a pre-trial ruling is binding until the case against the accused (or, where there is more than one, against each of them) is disposed of. The case is disposed of if the accused is acquitted or convicted, or the prosecutor decides not to proceed with the case, or the case is dismissed (s. 8B(2)). However, under s. 8B(3), the court may (on application by a party or of its own motion) 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. A party can apply for the ruling to be discharged or varied only if there has been a material change of circumstances since the ruling was made or, if there has been a previous application under s. 8B, since that application was made (s. 8B(5)).

In R (CPS) v Gloucester Justices [2008] EWHC 1488 (Admin), MacKay J, considering the power of the magistrates’ court to vary the pre-trial ruling of its own motion, made the point that it is difficult to accept that it could be in the interests of justice for the court to annul or discharge its own ruling without a compelling reason to do so, such as changed circumstances or fresh evidence; it is not sufficient that a different bench reaches a different conclusion on the same material (at [12]). In Jones v South East Surrey Local Justice Area [2010] EWHC 916 (Admin), Cranston J noted (at [11]) that, before the introduction of ss. 8A and 8B into the MCA 1980, Newham Juvenile Court, ex parte F (a minor) [1986] 3 All ER 17 had recognised a similar rule in common law. Cranston J quoted from the judgment of Simon Brown LJ in Newham (at p. 946B): ‘Once a decision has been made after proper inquiry and consideration of all relevant factors, it cannot be reversed merely by re-examining the case afresh on the same material’. In Newham, McCullough J (at p. 947D–E) had also said that review of a decision ‘will be permissible if a change of circumstances has occurred since the original decision was taken’ or ‘if circumstances are brought to the attention of the court which, although existing when the original decision was taken, were not then drawn to the attention of the court’. Cranston J also referred to Acton Youth Court, ex parte DPP [2002] Crim LR 75, where Laws LJ (at [25] and [26]) had said that it is ‘necessary for the efficacious administration of justice to take a strict approach to the power of a lower court to revisit and revoke an order earlier made by itself’ but that ‘there must be some power to do so in the interests of justice’; that power arises where there is ‘a change of relevant circumstances’ but ‘cases in which an earlier existing circumstance, not drawn to the attention of the court at the first hearing, would justify the court in later overturning its first decision would be most infrequent’. Cranston J (at [24] and [25]) assumed (having heard no argument to the contrary) that the common-law rule remains, but would be relevant only to those cases where ss. 8A and 8B do not apply (those sections ‘bite’ only once the decision has been made that a summary trial will occur).

There is no provision for appeals against rulings under s. 8A. However, an error of law in such a ruling could form the basis of an appeal by way of case stated (under the MCA 1980, s. 111), once there has been a final determination of the proceedings in the magistrates’ court (see, e.g., Miller v DPP [2018] EWHC 262 (Admin), [2018] RTR 19 (278)). See D29.17 et seq.

Question 7

, D21.40

Answer 7

D21.40

Essential Case Management: Applying the Criminal Procedure Rules In December 2009, Leveson LJ (then Senior Presiding Judge for England and Wales) issued guidance to magistrates’ courts in a document entitled Essential Case Management: Applying the Criminal Procedure Rules. 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 supply this information, the court must require them to do so. The ‘live’ evidence at the trial 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’. Moreover, the court’s directions must include a timetable for the progress of the case, and the parties are required to warn the court ‘promptly’ if any problems (e.g., relating to witnesses) are anticipated.

In R (Drinkwater) v Solihull Magistrates’ Court [2012] EWHC 765 (Admin), Sir John Thomas P said (at [49]) that ‘in any case in the magistrates’ court where a trial is likely to be other than a short one, it should be the ordinary practice for a timetable for the conduct of a trial to be set at the time the trial date is fixed and the estimate made’. His lordship went on to say (at [50]) that, 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 8

and D12.100

Answer 8

Ambiguous Pleas

D12.100

If an accused purports to enter a plea of guilty but, either at the time he pleads or subsequently in mitigation, qualifies it with words that suggest he may have a defence (e.g., ‘Guilty, but it was an accident’ or ‘Guilty, but I was going to give it back’), then the court must not proceed to sentence on the basis of the plea but should explain the relevant law and seek to ascertain whether he genuinely intends to plead guilty.

If the plea cannot be clarified, the court should order a not guilty plea to be entered on the accused’s behalf (CLA 1967, s. 6(1)(c): ‘if [the accused] stands mute of malice or will not answer directly to the indictment, the court may order a plea of not guilty to be entered’).

Should the court proceed to sentence on a plea which is imperfect, unfinished or otherwise ambiguous, the accused will have a good ground of appeal. Since the defect in the plea will have rendered the original proceedings a mistrial, the Court of Appeal will have the options either of setting the conviction and sentence aside and ordering a retrial (see, e.g., Ingleson [1915] 1 KB 512) or of simply quashing the conviction (see, e.g., Field (1943) 29 Cr App R 151). If the former course is chosen (i.e. there is to be a retrial), the court may either then and there direct that a not guilty plea be entered or order that the accused be re-arraigned in the court below (e.g., Baker (1912) 7 Cr App R 217).

Question 9

D6.18

Answer 9

Accused’s Decision Whether to Consent to Summary Trial

D6.18

It is sometimes asserted that one advantage of summary trial is that there is a limit on the sentence which the magistrates’ court can pass (six months’ imprisonment for one ‘either-way’ offence, an aggregate of 12 months for two or more). However, this advantage is nullified by the power of the magistrates to commit the accused to be sentenced in the Crown Court under the PCC(S)A 2000, s. 3.

One potential advantage of trial on indictment is that submissions on the admissibility of evidence can be made in the absence of the jury, with the obvious benefit that the jury do not find out about any matters that are ruled inadmissible. However, under the Courts Act 2003, sch. 3, a bench of magistrates may give a pre-trial ruling on the admissibility of evidence and that ruling binds the bench that tries the case (see D21.35).

Another supposed advantage of trial on indictment is that the defence are entitled to receive copies of the written statements of the witnesses to be called by the prosecution as part of the process whereby the case is transferred to the Crown Court. However, as a matter of good practice, the prosecution also provide to the defence all the evidence upon which they propose to rely in a summary trial. Thus, an accused who is to be tried in the magistrates’ court should be in the same position as one being tried in the Crown Court as regards obtaining copies of the prosecution witness statements.

Question 10

D6.6-6.9,

Answer 10

Introduction

D6.6

Sections 17A to 21 of the MCA 1980 set out the method of determining allocation (mode of trial) when an adult is charged with an either-way offence. The first stage (‘plea before venue’) ascertains the accused’s intended plea (see D6.7); if the intended plea is (or is deemed to be) not guilty, the second stage is to determine whether the case will be tried in a magistrates’ court or in the Crown Court (see D6.8).

Section 22 provides for a special procedure where the charge is one of criminal damage (see D6.20), and s. 23 allows for proceedings under ss. 19 to 22 to be carried out in the absence of the accused provided certain conditions are satisfied (see D6.9). Section 25 relates to changing the decision about mode of trial originally taken (see D6.30).

The relevant statutory provisions are set out at D6.19.

Answer 11

Plea before Venue

D6.7

The initial procedure set out in the MCA 1980, s. 17A (see D6.19), applies whenever a person who has attained the age of 18 appears before a magistrates’ court charged with an either-way offence (MCA 1980, s. 17A(1)). This procedure must be complied with before any evidence is called for purposes of a summary trial or the case is sent for Crown Court trial, and (subject to certain exceptions, considered at D6.9) should take place in the presence of the accused (s. 17A(2)). The steps in the standard procedure are as follows:

(a) The charge is written down (if that has not already been done) and read to the accused (s. 17A(3)).
(b) The court explains that the accused may indicate whether the plea would be guilty or not guilty if the offence were to proceed to trial. The court should explain that, if the accused indicates a plea of guilty, the proceedings will be treated as a summary trial at which a guilty plea has been tendered, and that the accused may be committed for sentence under the PCC(S)A 2000, s. 3, if the court is of the opinion that its powers of punishment are inadequate (see D23.30), or under s. 3A, if it appears to the court that the criteria for the imposition of a sentence under the CJA 2003, s. 226A (the ‘dangerous offender’ provisions), apply (s. 17A(4); see D23.49).
(c) The court asks the accused to indicate whether (if the offence were to proceed to trial) the plea would be guilty or not guilty (s. 17A(5)).
(d) If the accused indicates a guilty plea, the court proceeds as if the accused had pleaded guilty at summary trial (s. 17A(6)), and so moves on to the sentencing stage.
(e) If the accused indicates a not guilty plea, an allocation (‘mode of trial’) hearing must take place, pursuant to s. 18 (s. 17A(7)). If the accused fails to give an indication of intended plea, the court will regard this as an indication of an intention to plead not guilty and so will go on to determine allocation under s. 18 (s. 17A(8)).

Answer 12

Allocation

D6.8

Where the accused has indicated an intention to plead not guilty to an either-way offence (or has failed to give an indication as to plea), the court must proceed to determine allocation (s. 18(1); see D6.19). The steps in this stage of the procedure are as follows:

(a) The court affords the prosecution and defence the opportunity to make representations about whether the offence is more suitable for summary trial or trial on indictment (s. 19(2)(b)). At that stage, the prosecution must also be given the opportunity of informing the magistrates of any previous convictions recorded against the accused (s. 19(2)(a)), since the existence of relevant previous convictions would affect the appropriate sentence.
(b) The court then must decide whether the offence appears to be more suitable for summary trial or for trial on indictment (s. 19(1)). Section 19(3) provides that the court, when deciding which mode of trial is more suitable, must consider:
(i) whether the sentence which a magistrates’ court would have power to impose for the offence would be adequate;
(ii) any representations made by the prosecution or the accused; and
(iii) allocation guidelines issued by the Sentencing Council under the CAJA 2009, s. 120 (see D6.14).
(c) If it appears to the court that summary trial is more appropriate, the court explains to the accused that:
(i) such is the court’s view, and that the accused can either consent to be tried summarily or elect to be tried on indictment in the Crown Court; and
(ii) if the accused is tried summarily and convicted, the magistrates may commit the accused to the Crown Court for sentence if they are of the opinion that greater punishment should be inflicted than they have power to inflict (PCC(S)A 2000, s. 3; see D23.30) or if it appears to the court that the criteria for the imposition of a sentence under the CJA 2003, s. 226A (dangerous offenders), would be met (s. 20(1) and (2); see D23.49).
(d) At that point, the accused may request that the magistrates indicate whether, if the accused were to be tried summarily and were to plead guilty at that stage, the sentence would be custodial or non-custodial (s. 20(3)). The magistrates are not obliged to give such an indication (s. 20(4)). If the court does give an indication of sentence, it must ask the accused whether he or she wishes, on the basis of the indication, to reconsider the indication of plea which was given (s. 20(5)). If the accused does wish to do so, the court must ask for a fresh indication of intended plea, and so the ‘plea before venue’ stage is repeated (s. 20(6)).
(e) If the accused indicates an intention to plead guilty following an indication of sentence, this is regarded as a guilty plea (s. 20(7)), and the magistrates’ court will proceed to sentence, if necessary adjourning for a pre-sentence report; in such a case, a custodial sentence will be available only if such a sentence was indicated by the court (s. 20A(1)). Where an indication of sentence is given and the accused does not choose to plead guilty on the basis of it, the sentence indication is not binding on the magistrates who later try the case summarily, or on the Crown Court if the accused elects trial on indictment (s. 20A(3)).
(f) If the court does not give an indication of sentence (either because the accused does not seek one or the court declines to give one), or if the accused seeks and receives an indication of sentence but does not then wish to reconsider the indication of plea, or if the accused goes through the plea before venue stage a second time but does not indicate an intention to plead guilty, then the accused is asked whether he or she consents to summary trial (s. 20(8) and (9)).
(g) Depending on the choice made by the accused, the court either proceeds to summary trial or sends the case to the Crown Court for trial under the CDA 1998, s. 51 (s. 20(9)).
(h) If, on the other hand, it appears to the court that trial on indictment is more appropriate, it tells the accused that this is so and proceeds to send the case to the Crown Court under the CDA 1998, s. 51 (s. 21).

It follows that summary trial of an either-way offence is possible only if the magistrates’ court and the accused both agree to summary trial. If the magistrates decline jurisdiction, the case will be sent to the Crown Court for trial; likewise, if the magistrates accept jurisdiction but the accused elects trial on indictment, the case will be sent to the Crown Court for trial.

It should be noted that the procedure for determining allocation is modified in the case of low value criminal damage and shoplifting (see D6.20 and D6.27 respectively).

Answer 13

Presence of the Accused

D6.9

The accused must generally be present at the ‘plea before venue’ hearing (MCA 1980, s. 17A(2)) and when allocation is determined (s. 18(2); see D6.19). However, by virtue of s. 17B, the ‘plea before venue’ hearing may take place in the absence of the accused if:

(a) the accused is represented by a legal representative; and
(b) the court considers that, by reason of the accused’s disorderly conduct before the court, it is not practicable for proceedings under s. 17A to be conducted in the presence of the accused; and (c) the court considers that it should proceed in the absence of the accused.
(c) the court considers that it should proceed in the absence of the accused.

In such a case, the representative is asked to indicate whether the accused intends to plead guilty or not guilty (s. 17B(2)(b)); if the representative indicates a guilty plea, the court proceeds as if the accused had pleaded guilty (s. 17B(2)(c)). Otherwise, the court proceeds to determine allocation under s. 18 (s. 17B(2)(d) and (3)).

The allocation hearing can take place in the absence of the accused under either s. 18(3) or s. 23.

(a) Under s. 18(3), the court may determine allocation in the absence of the accused if it considers that, by reason of disorderly conduct before the court, it is not practicable for the proceedings to be conducted in the presence of the accused. Where there is a legal representative present in court, the representative speaks on behalf of the accused (s. 18(3)).
(b) Under s. 23, the court may determine allocation in the absence of an accused who is represented by a legal representative who signifies to the court that the accused consents to the mode of trial proceedings being conducted in his or her absence, and the court is satisfied that there is good reason for the proceedings being so conducted (s. 23(1)). 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)).

It should be noted that the court may use a live television link in a case where the accused is held in custody and facilities are available there (CDA 1998, s. 57B: see D5.38).

Question 14

D23.35

Answer 14

D23.5

Keeping Sentencing Options Open Where the court does not pass sentence immediately, the magistrates must be careful not to create an expectation that the accused will ultimately be sentenced in that court if they wish the option of committal for sentence to the Crown Court to remain open (see D23.35) or that the sentence will or will not take a particular form. In Nottingham Magistrates’ Court, ex parte Davidson [2000] 1 Cr App R (S) 167, Lord Bingham CJ (at p. 169), set out the following principle:

If a court at a preliminary stage of the sentencing process gives to a defendant any indication as to the sentence which will or will not be thereafter passed upon him, in terms sufficiently unqualified to found a legitimate expectation in the mind of the defendant that any court which later passes sentence upon him will act in accordance with the indication given, and if on a later occasion a court, without reasons which justify departure from the earlier indication, and whether or not it is aware of that indication, passes a sentence inconsistent with, and more severe than, the sentence indicated, the court will ordinarily feel obliged, however reluctantly, to adjust the sentence passed so as to bring it into line with that indicated.

This dictum was cited with approval in Thornton v CPS [2010] EWHC 346 (Admin), [2010] 2 Cr App R (S) 65 (434). In that case, Aikens LJ went on to say (at [49]) that:

… it is imperative that magistrates do not put themselves in a position which binds the hands of another bench on the question of sentence unless they are absolutely certain that it is the right course to take. Forms can be used, and forms of words used, to ensure that no expectation about sentence, legitimate or otherwise, is engendered in the mind of defendants or their advisers. If those forms and words are used correctly, then unnecessary and expensive expeditions to this court will be avoided.

His lordship also referred to the dictum of Wilkie J in Nicholas v Chester Magistrates’ Court [2009] EWHC 1504 (Admin) (at [13]), that the court would ‘thoroughly deprecate the practice, if such it be, of one bench to adjourn sentencing for reports and in so doing giving an indication as to the type of sentence which it would be appropriate to pass where that bench is not reserving sentence to itself’. He explained that, by so doing, the effect (save in an exceptional case) is to fetter the discretion of the sentencing court and that ‘should only be done where the bench reserves to itself the sentence, or in a case where it is absolutely obvious that a certain type of sentence should be considered or should not be considered’.

Question 15

, D6.12-6.17

Answer 15

Binding Effect of Indication of Sentence

D6.12

Where the court gives an indication of sentence under the MCA 1980, s. 20(4), and the accused then indicates a guilty plea (under s. 20(7)), s. 20A(1) stipulates that ‘no court (whether a magistrates’ court or not) may impose a custodial sentence for the offence unless such a sentence was indicated in the indication of sentence’ given under s. 20(4). However, this is subject to the proviso contained in s. 20A(2), which refers to the PCC(S)A 2000, ss. 3A(4), 4(8) and 5(3).

The PCC(S)A 2000, s. 3A(2), requires a magistrates’ court to commit an offender to the Crown Court for sentence where it appears to the magistrates’ court that the criteria for the imposition of a sentence under the CJA 2003, s. 226A (extended sentences for dangerous offenders) would be met; it follows that an indication of a non-custodial sentence does not oust the power of the court to commit for sentence under s. 3A (see s. 3A(4)), or the power of the Crown Court to impose an extended sentence under s. 226A (see s. 5(3)).

Section 4(8) applies where the magistrates’ court commits an offender to the Crown Court for sentence under s. 4(2) on the basis that the accused has indicated an intention to plead guilty to an either-way offence (and therefore is deemed to have pleaded guilty to it) and is also being sent to the Crown Court for trial in respect of one or more related offences. This power to commit for sentence is not ousted by an indication of sentence under the MCA 1980, s. 20(4). However, the ambit of this provision is limited by the PCC(S)A 2000, s. 5(3), which makes it clear that the powers of the Crown Court are freed from the restriction imposed by s. 20A(1) only where the offence committed for sentence under the PCC(S)A 2000, s. 4(2), is a specified offence (i.e. specified under the CJA 2003, s. 224) in respect of which the magistrates’ court has stated (under s. 4(4)) that, in its opinion, it also had power to commit the offender for sentence under s. 3A(2).

Answer 16

Indication of Not Guilty Plea: Magistrates’ Decision Whether to Accept Jurisdiction

D6.13

If the accused indicates a not guilty plea (or gives no indication, and so is deemed to be indicating a guilty plea), the court must consider whether to offer the accused the opportunity to consent to summary trial. Section 19(3) of the MCA 1980 sets out the matters to which the magistrates must have regard in considering whether summary trial or trial on indictment is more appropriate. The most important consideration for the magistrates (and for the parties, when making their representations) is whether the sentencing powers of the magistrates would be adequate to deal with the offence(s) in the event of the accused being convicted.

Where the accused is charged with more than one offence, the magistrates are required to look at the totality of the allegations, and not at each offence in isolation. Thus the magistrates can, and should, decline jurisdiction if they take the view that their sentencing powers are insufficient to deal with the totality of the offending, even if each offence taken by itself would not merit a harsher sentence than the magistrates could impose for that individual offence. The maximum penalty which magistrates can currently impose on summary conviction for an either-way offence is usually six months’ imprisonment (an aggregate total of up to 12 months’ imprisonment if the court is dealing with two or more either-way offences) and/or an unlimited fine.

Although the maximum sentence available in the magistrates’ court is the most important factor when considering whether or not a case is suitable for summary trial, it is open to the magistrates to consider other factors. In Horseferry Road Magistrates’ Court, ex parte K [1997] QB 23, for example, the Divisional Court accepted that a possible defence of insanity might make the case more suitable for trial on indictment.

Answer 17

D6.14

Allocation Guideline The Sentencing Council’s definitive guideline, Allocation (see Supplement, SG1-1), states that, in general, either-way offences should be tried summarily unless either:

• the outcome would clearly be a sentence in excess of the court’s powers for the offence(s) concerned after taking into account personal mitigation and any potential reduction for a guilty plea; 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 very substantial fine is the likely sentence; other circumstances where this exception will apply are likely to be ‘rare and case specific’.

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 a trial, and may retain jurisdiction notwithstanding that the likely sentence might exceed its 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.

The guideline also says that ‘all parties should be asked by the court to make representations as to whether the case is suitable for summary trial’. The court should refer to the relevant definitive offence-specific guidelines (if any) to assess the likely sentence for the offence 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, including any personal mitigation to which the defence wish to refer).

Where the court decides that the case is suitable to be dealt with in the magistrates’ court, it must warn the accused that all sentencing options remain open and that, if the accused consents to summary trial and is convicted by the court or pleads guilty, the accused may be committed to the Crown Court for sentence.

Answer 18

D6.15

Turning to the power to commit for sentence under the PCC(S)A 2000, s. 3 (see D23.30), the guideline notes that there is ordinarily no statutory restriction on committing an either-way offence for sentence following conviction. The general power of the magistrates’ court to commit to the Crown Court for sentence after a finding that a case is suitable for summary trial and/or conviction continues to be available where the court is of the opinion ‘that the offence or the combination of the offence and one or more offences associated with it was so serious that the Crown Court should, in the court’s opinion, have the power to deal with the offender in any way it could deal with him if he had been convicted on indictment’. An important consequence of this approach is that the magistrates’ court does not, in order to commit for sentence under s. 3, have to be in possession of new information making the offence appear more serious than it did when the court initially accepted jurisdiction at the allocation hearing.

The guideline adds that, when deciding whether to commit for sentence, the court should refer to any definitive guideline to arrive at the appropriate sentence, taking into account all the circumstances of the case (including personal mitigation and the appropriate guilty plea reduction). In borderline cases, the magistrates’ court should consider obtaining a pre-sentence report before deciding whether to commit to the Crown Court for sentence.

Finally, the guideline says that where the offending is so serious that the court is of the opinion that the Crown Court should have the power to deal with the offender, the case should be committed to the Crown Court for sentence even if a community order may be the appropriate sentence (the guideline notes that this will allow the Crown Court to deal with any breach of a community order, if that is the sentence passed). It is submitted that this provision will be relevant only in exceptional cases, for example where the offence merits a custodial sentence in excess of the powers of the magistrates’ court but where a community sentence might be appropriate in light of mitigation put forward by the offender.

Answer 19

D6.16

Allocation Where There Are Co-accused CrimPR 9.2(6)(a) (see Supplement, R-76) provides that, 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 to the Crown Court for trial, the other(s) must also be sent for trial in the Crown Court for the offence that is jointly charged and for any other offence which the court decides is related to that offence. This is so even if the court has, by then, decided that the case against the other accused is suitable for summary trial. To prevent having to repeat the procedure where the case has been found suitable for summary trial in respect of one accused but a co-accused then elects Crown Court trial, r. 9.2(6)(b) states that the court may ask the accused questions to help it decide in what order to deal with them (this would include questions about intention to elect Crown Court trial). In any event, by virtue of r. 9.2(7), if the court is dealing on the same occasion with two or more accused who are jointly charged and it accepts jurisdiction in respect of one of them but another is then sent for Crown Court trial (this would be as a result of that accused electing Crown Court trial), the court must deal again with the accused in respect of whom it has accepted jurisdiction (sending that accused instead to the Crown Court for trial). This has the effect of reversing the decision of the House of Lords in Brentwood Justices, ex parte Nicholls [1992] 1 AC 1, where it had been held that a case remained suitable for summary trial even if a co-accused had elected Crown Court trial.

CrimPR 9.2 is a consequence of the effect of the CDA 1998, s. 51(5), which provides that, where one accused is sent to the Crown Court for trial and another adult appears before the court (on the same or a subsequent occasion) charged jointly with the first accused with an either-way offence that appears to the court to be related to an offence for which the first accused was sent for trial, the court must, where it is the same occasion, or may, where it is a subsequent occasion, send the other adult to the Crown Court for trial for that either-way offence. This is so even if that offence would otherwise be suitable for summary trial (see D10.9).

Answer 20

Prosecution Influence on the Allocation Decision

D6.17

The overall effect of the mode of trial provisions in the MCA 1980 is that summary trial may be vetoed either by the court or by the accused, but not by the prosecution. The most the prosecution can do is to make representations that trial on indictment would be more appropriate having regard to the gravity of the offence. However, where either (a) the case involves fraud of such seriousness or complexity that it is appropriate that the management of the case should without delay be taken over by the Crown Court, or (b) the accused is charged with an offence which involves an assault on, or injury or a threat of injury to, a person or is charged with certain other specified offences and a child will be called as a witness at the trial 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, then the prosecutor can serve a notice, under the CDA 1998, s. 51B or s. 51C respectively (see D10.34 et seq.). The effect of such a notice is that the magistrates’ court is required, by s. 51(2)(c), to send the case forthwith to the Crown Court for trial instead of conducting a plea before venue hearing under s. 17A (s. 17A(10)).

Question 21

, D6.20-6.25

Answer 21

Procedure on Criminal Damage Charges

D6.20

If the accused is charged with a ‘scheduled offence’, the allocation procedure must be preceded by consideration of the value involved in the offence (s. 22(1); see D6.26). Depending on what that value is, the accused may be deprived of the right to elect trial on indictment, not with standing that the offence is otherwise triable either way.

Scheduled offences comprise: (a) offences of damaging or destroying property contrary to s. 1 of the Criminal Damage Act 1971, excluding those committed by fire; and (b) aiding, abetting, counselling or procuring such offences, or attempting or encouraging them (MCA 1980, sch. 2). Some offences under the Criminal Damage Act 1971 are not scheduled offences, including:

(a) those committed by damaging or destroying property by fire (these are expressly excluded from scheduled offences by the terms of the MCA 1980, sch. 2); and
(b) those committed with intent to endanger life or being reckless as to the endangering of life contrary to the Criminal Damage Act 1971, s. 1(2): although not expressly dealt with in sch. 2, these cannot be scheduled offences because they are not in the list of offences under the 1971 Act that are triable either way (see the MCA 1980, sch. 1, para. 29), and so they are triable only on indictment.

It should also be noted that conspiracy to commit criminal damage is not a scheduled offence (Ward [1997] 1 Cr App R (S) 442).

Answer 22

D6.21

Value Involved If the accused is charged with an offence of criminal damage to which the provisions of the MCA 1980, s. 22, apply, then the court must give the accused the opportunity to indicate plea (pursuant to s. 17A). It must then consider, having regard to any representations made by the prosecution and defence, whether the ‘value involved’ in the offence exceeds the ‘relevant sum’, currently £5,000 (MCA 1980, s. 22(1)). If the property was allegedly 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 the property was repairable, the value involved is the probable market cost of repairs or the probable market replacement cost, whichever is the less (sch. 2). In Colchester Magistrates’ Court, ex parte Abbott [2001] EWHC Admin 136, the Divisional Court made it clear that the value on which the magistrates must focus is the value of the damage to the property itself; they should not concern themselves with any consequential losses which might have been sustained as a result of the damage.

If it appears to the magistrates that the value involved clearly does not exceed the relevant sum, they must proceed as if the offence charged were triable only summarily (s. 22(2)). Consequently, the allocation provisions of the 1980 Act do not apply and the accused has no right to elect trial on indictment.

If it appears to the court clear that the value involved exceeds the relevant sum, it is obliged to determine allocation in accordance with the usual procedure, just as for any other either-way offence (s. 22(3)).

Where, for any reason, it is not clear to the court whether the value involved does or does not exceed the relevant sum, it 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 (in the event of conviction) liability to imprisonment or a fine will be limited in accordance with the provisions of s. 33 of the 1980 Act (see D6.26). The accused is then asked for consent. Depending on the accused’s response, the court either proceeds to summary trial or embarks on the ordinary procedure for determining mode of trial (s. 22(5) and (6)).

Answer 23

D6.22

The MCA 1980, s. 17D(1), provides that where the accused, at the plea before venue hearing, indicated a guilty plea to an offence to which s. 22 applies (and so is deemed to have pleaded guilty to it), the court must consider whether, having regard to any representations made by the accused or by the prosecutor, the value involved exceeds £5,000. If it appears clear to the court that the value involved does not exceed £5,000, or it is unclear whether the value involved exceeds £5,000, the court’s sentencing powers are subject to the limits set out in the MCA 1980, s. 33, and there is no power to commit for sentence under the PCC(S)A 2000, s. 3 or s. 4. Section 33 provides that where the accused is convicted of an offence to which s. 22 applies (this includes conviction following a guilty plea under s. 17A(6) and conviction following summary trial of a criminal damage offence where either the court decided that the value involved clearly did not exceed £5,000 or, by virtue of s. 22(5), the accused consented to summary trial in a case where the court was in doubt as to the value involved), then the maximum penalty that may be imposed in the event of conviction is three months’ imprisonment or a fine of £2,500, and the court has no power to commit for sentence under the PCC(S)A 2000, s. 3. If the accused is tried summarily in a case where the value involved clearly exceeded the relevant sum but summary trial was nevertheless offered and accepted, the penalties available are as for any either-way offence (currently six months’ imprisonment and/or a fine); moreover, there may be a committal for sentence under the PCC(S)A 2000, s. 3.

Answer 24

D6.23

Procedure for Determining the Value Involved The court is required by the MCA 1980, s. 22(1), to have regard to the ‘representations’ of the parties when considering the value involved in a criminal damage offence. This does not entail an obligation to hear evidence. In Canterbury and St Augustine Justices, ex parte Klisiak [1982] QB 398 at p. 413D–E, Lord Lane CJ said that ‘the word “representations” implies something less than evidence. It comprises submissions, coupled with assertions of fact and sometimes production of documents … The nearest analogy is, perhaps, the speech in mitigation after a finding or plea of guilty in a criminal trial.’ However, the court has a discretion to hear evidence on the question of the value involved if it wishes to do so (Ex parte Klisiak at p. 413D–E).

In a case where there is real difficulty in arriving at an appropriate basis for calculating the value involved, the prosecution are entitled to say that they will not seek to prove that the accused caused any more damage than can be established with clarity. Acting on that assurance, the court may conclude that the value was clearly less than the relevant sum even though, in the absence of such an assurance and adopting an alternative method of calculation, the question would have remained doubtful and the accused could therefore have elected trial on indictment (Salisbury Magistrates’ Court, ex parte Mastin (1986) 84 Cr App R 248).

Answer 25

Two or More Criminal Damage Charges

D6.24

If the accused is ‘charged on the same occasion with two or more scheduled offences and 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’, then the relevant consideration is the aggregate value involved in the offences (MCA 1980, s. 22(11); see D6.26). In other words, the accused will retain the right to trial on indictment if the value of the offences added together exceeds the relevant sum (£5,000), even if the value of each offence taken individually was under the relevant sum.

The reference in s. 22(11) to a ‘series of two or more offences of the same or similar character’ connotes that the aggregate value is the relevant value where the offences could be joined together in the same indictment under CrimPR 3.21(4), which governs joinder of counts in an indictment (see D11.63 et seq.). Thus, s. 22(11) applies where the offences are founded on the same facts (effectively, amounting to a single incident) or constitute a series of offences that are linked by closeness in time and geographical location.

Answer 26

D6.25

Section 22(11) applies where the accused is ‘charged on one occasion’ with two or more scheduled offences. The phrase could be construed to mean either being charged at the police station or appearing before a magistrates’ court to answer charges. It is submitted that the latter interpretation is to be preferred, since there can be no reason of policy why allocation should depend on the method of commencing proceedings. A further question arises of whether s. 22(11) extends to cases where the accused originally appears charged with only one offence but further charges are added prior to allocation; again, it is submitted that s. 22(11) ought to apply (otherwise, for example, the prosecution might artificially deprive an accused of the right to trial on indictment by initially bringing only one charge even though they already have the evidence to found further charges).

Question 27

and D6.27

Answer 27

Special Provision for Low-value Shoplifting

D6.27

The MCA 1980, s. 22A (see D6.28), provides that ‘low-value’ shoplifting (defined as shoplifting where the value of the stolen goods does not exceed £200) is triable only summarily. However, s. 22A(2) goes on to provide that, where an accused who has attained the age of 18 is charged with low-value shoplifting, the court must, before the summary trial of the offence begins, give the accused the opportunity of electing Crown Court trial for the offence; if the accused elects to be so tried, the magistrates’ court must send the case to the Crown Court for trial. Unlike the special procedure for criminal damage (under the MCA 1980, s. 22), in the case of low-value shoplifting the accused retains the right to elect Crown Court trial. CrimPR 9.7(4)(c) makes it clear that, where the offence is low-value shoplifting, the magistrates’ court must offer the accused the opportunity to require trial in the Crown Court.

In McDermott-Mullane [2016] EWCA Crim 2239, [2017] 4 WLR 127, the accused was charged with low-value shoplifting, together with another summary offence and an either-way offence. She did not elect Crown Court trial in respect of the shoplifting, but was sent to the Crown Court for trial. At the Crown Court, the prosecution did not proceed with the either-way offence or the other summary offence. The only charge before the Crown Court, therefore, was the shoplifting. The court ruled that the indictment was a nullity because, unless the accused elects Crown Court trial, low-value shoplifting is not capable of forming the sole count of an indictment (at [27]); only the magistrates’ court had power to deal with the offence of low-value shoplifting unless the accused elected Crown Court trial (at [31]).

In Maxwell [2017] EWCA Crim 1233, [2018] 1 Cr App R 5 (76), the Court of Appeal ruled that low-value shoplifting charges cannot be aggregated with shoplifting offences to which s. 22A does not apply (and so it is only the ‘low-value’ offences that can be aggregated). In this case, the three low-value offences came nowhere near £200 in total and so were (unless the accused elected Crown Court trial) triable only summarily. The Court also rejected the suggestion that the CDA 1998, s. 40 (see D11.17), applies to low-value shoplifting. The Secretary of State has power (under s. 40(4)) to specify additional offences by statutory instrument; however, low-value shoplifting has not been so specified.

Similarly, in Burrows [2019] EWCA Crim 889, the accused was sent for trial for going equipped for stealing (TA 1968, s. 25), having elected Crown Court trial for that offence. A related offence of theft was sent for trial under the CDA 1998, s. 51(3) (see D10.7). The theft charge was included in the indictment. However, the theft was an offence of low value shoplifting and, because the accused had not elected Crown Court trial in respect of that offence, it remained a summary offence. The Court of Appeal noted (at [9]) that only summary offences that are listed in the CJA 1988, s. 40, can be joined to an indictment. Low value shoplifting is not one of the offences listed in s. 40 and so, ‘in the absence of an election by the accused it cannot be included as a count on the indictment’. It followed that the charge of theft should have been dealt with by the Crown Court in accordance with the procedure set out in the CDA 1998, sch. 3, para. 6 (see D10.29).

Question 28

D.23.30

Answer 28

Committal under the Powers of Criminal Courts (Sentencing) Act 2000, s. 3

D23.30

The PCC(S)A 2000, s. 3 (see D23.41), applies where a magistrates’ court has convicted an offender of one or more either-way offences and the court takes the view that the seriousness of the offence(s) is such that its sentencing powers are inadequate. In such a case, the magistrates’ court may commit the offender (in custody or on bail) to the Crown Court to be sentenced. The Crown Court can then pass sentence on the offender as if convicted on indictment, and so the limitations on the magistrates’ sentencing powers do not apply (s. 5).

Question 29

, D23.42

Answer 29

Committal for Sentence under the Powers of Criminal Courts (Sentencing) Act 2000, s. 4

D23.42

The PCC(S)A 2000, s. 4(1) and (2) (see D23.44), provide that, where the accused has indicated a guilty plea to an either-way offence (and so is deemed to have pleaded guilty to it) and is also sent for trial for one or more related offences, the magistrates may commit the offender to the Crown Court for sentence in respect of the either-way offence to which he or she has pleaded guilty. For the purposes of these provisions, one offence is related to another if the charges for them could be joined (under CrimPR 3.21(4): see D11.63) in the same indictment if both charges were to be tried in the Crown Court (s. 4(7)). Thus, the two charges must be founded on the same facts or must be, or be part of, a series of offences of the same or a similar character.

Section 4(4) provides that, where the magistrates’ court has committed an offender for sentence pursuant to s. 4(2), the Crown Court can exceed the sentencing powers of the magistrates’ court in respect of the either-way offence so committed only if either:

(a) the magistrates stated that they considered their sentencing powers were inadequate to deal with the offender for that offence (and so they also had power to commit the offender for sentence under s. 3); or
(b) the offender is convicted by the Crown Court of one or more of the related offences.

Question 30

and the first sub-paragraph of D23.55

Answer 30

Committal under the Powers of Criminal Courts (Sentencing) Act 2000, s. 6

D23.55

The PCC(S)A 2000, s. 6 (see D23.61), gives a power to commit for sentence which may be used to supplement a committal under the provisions listed in s. 6(4), which include committal for sentence under the PCC(S)A 2000, ss. 3 to 4A; committal for sentence in respect of the breach of a conditional discharge imposed by the Crown Court (under the PCC(S)A 2000, s. 13(5)); and committal to be dealt with for breach of a suspended sentence imposed by the Crown Court (under the CJA 2003, sch. 12, para. 11(2)).

These committal powers are referred to below as ‘primary’ committal powers.

By virtue of the PCC(S)A 2000, s. 6(2), when a magistrates’ court exercises a ‘primary’ committal power in respect of an indictable offence (in this context, an either-way offence), it may also commit the offender to the Crown Court to be dealt with in respect of any other offence of which he or she stands convicted (whether summary or indictable) that the magistrates’ court has jurisdiction to deal with as regards sentence. Section 6(2) expressly states that, provided the committing court would be able to deal with the matter if it were not to commit, the power to commit arises even if the conviction was by a different court.

To take the example of a magistrates’ court which has decided to commit an offender under s. 3, for one either-way offence, a committal under s. 6 might (for instance) relate to:

(a) another, less serious, either-way offence of which the magistrates 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 s. 3 for the secondary offence would be inappropriate in situation (a) is that, because the offence is not sufficiently serious, the magistrates’ powers of sentencing for it are adequate. In situation (b), a committal under s. 3 would be inappropriate simply because that section does not extend to summary offences.

Question 31

D10.1

Answer 31

Introduction

D10.1

All adults accused in criminal cases make their first appearance in the magistrates’ court. If the offence is triable only in the Crown Court, the accused must be sent to that court for trial. If it is triable either way, the accused will be sent to the Crown Court for trial only if the accused indicates, or is deemed to indicate, a not guilty plea at the ‘plea before venue’ hearing and the allocation (‘mode of trial’) hearing that follows results in a decision in favour of Crown Court trial; in either case, the case is sent for trial to the Crown Court under the CDA 1998, s. 51 (see D6).

There remains one other way of securing the Crown Court trial of an accused, namely the ‘voluntary bill of indictment’ (see D10.65).

The special rules relating to accused who are under the age of 18, in particular the CDA 1998, s. 51A, are considered in D24.

Question 32

and D10.4-

Answer 32

Court of First Appearance

D10.4

Whether the offence is triable either way or triable only on indictment, the accused’s first appearance will be in a magistrates’ court. The MCA 1980, s. 2(2), provides:

A magistrates’ court has jurisdiction under sections 51 and 51A of the Crime and Disorder Act 1998 in respect of any offence committed by a person who appears or is brought before the court.

Answer 33

Sending Cases to the Crown Court under the Crime and Disorder Act 1998, s. 51

D10.5

The CDA 1998, s. 51(1) (see D10.44), provides that, where an adult appears or is brought before a magistrates’ court charged with an offence to which these provisions apply, the court must send the accused ‘forthwith’ to the Crown Court for trial for the offence. This is, however, subject to the magistrates’ power (under s. 52(5)) to adjourn if necessary.

By virtue of s. 51(2)(a) and (b), these provisions apply where the offence is triable only on indictment, or where the offence is triable either way and the allocation hearing (sometimes known as the ‘mode of trial’ hearing) has resulted in a decision in favour of trial on indictment, either because the magistrates have declined jurisdiction or else the accused has elected Crown Court trial rather than summary trial (see D6.6 et seq.). Under s. 51(2)(c), the magistrates must also send the accused forthwith to the Crown Court where notice has been given under s. 51B (serious fraud cases) or s. 51C (child witness cases) (see D10.45 and D10.46).

Answer 34

Either-way Offences under s. 51

D10.6

The CDA 1998, s. 50A(3) (see D10.43), sets out various steps which must be taken where the offence is triable either way (unless notice is given under s. 51B or 51C):

(a) ‘plea before venue’: the accused is asked to indicate an intention to plead guilty or not guilty;
(b) in the event of an indication of a not guilty plea (or no indication), the allocation (mode of trial) procedure: the prosecution and, if they wish, the defence make representations as to whether the case is suitable for summary trial and the court then decides whether to accept jurisdiction and offer summary trial to the accused;
(c) if the magistrates’ court declines jurisdiction, or if the accused elects trial on indictment, the case is sent for trial to the Crown Court under s. 51.

The procedure for determining mode of trial for either-way offences is considered in detail at D6.6 et seq.

Answer 35

Related Either-way and Summary Offences

D10.7

The CDA 1998, s. 51(3) (see D10.44), goes on to provide that, where the court sends an adult for trial under s. 51(1), it must also send the accused to the Crown Court for trial for any eitherway or summary offence with which the accused is charged and which appears to the court to be related to the offence being sent to the Crown Court under s. 51(1) (provided that, if the offence is a summary offence, it is punishable with imprisonment or disqualification from driving). Under s. 51E(c), an either-way offence is related to an indictable offence if the charge for the either-way offence could be joined in the same indictment as the charge for the indictable offence (by virtue of CrimPR 3.21(4), this will require consideration, inter alia, of whether the charges are founded on the same facts, or form (part of) a series of offences of the same or a similar character), and under s. 51E(d), a summary offence is related to an indictable offence if it arises out of circumstances that are the ‘same as or connected with’ those giving rise to the indictable offence.

In Maxwell [2017] EWCA Crim 1233, [2018] 1 Cr App R 5 (76), Treacy LJ observed (at [30]) that the test for summary offences ‘appears to be narrower than that applicable to either-way offences’ and that this ‘would be consistent with an intention that only those summary offences which have a close link to more serious offences sent to the Crown Court should trouble that court’. His lordship noted (at [31]) that s. 51(3)(b) uses the phrase, ‘appears to the court to be related to the offence’, and said that this ‘provides leeway to the justices. A determination that there is an apparent connection between the circumstances of the offences is something less than a determination that in fact they are connected.’ His lordship contrasted this with the language of the CDA 1998, sch. 3, para. 6 (see D10.29), which deals with the power of the Crown Court to deal with a summary offence and ‘places an obligation on the Crown Court to consider whether in fact the summary offence is related to an indictable offence for which he was sent for trial’.

One of the consequences of the provisions contained in s. 51(3) is that, if the accused is charged with an indictable-only offence, there will not be any question as to mode of trial in respect of any related either-way offences with which the accused is charged (since any either-way offences will be sent for trial automatically alongside the indictable-only offence). If a summary offence is sent to the Crown Court under s. 51(3), it will be dealt with in accordance with the CDA 1998, sch. 3, para. 6 (see D10.29).

Answer 36

D10.8

If an adult has already been sent to the Crown Court for trial under s. 51(1) and then subsequently appears before a magistrates’ court charged with an either-way or summary offence that appears to the court to be related to the offence sent for trial under s. 51(1), the court may send the accused to the Crown Court for trial for the either-way or summary offence (provided that, if the offence is a summary one, it is punishable with imprisonment or disqualification from driving) (s. 51(4)). Note that this is a discretionary power, not a mandatory duty. It follows from the discretionary nature of the power to send for trial under s. 51(4) that there will be a plea before venue and mode of trial hearing in respect of an either-way offence to which s. 51(4) applies.

Answer 37

Co-accused

D10.9

CrimPR 9.2(6) and (7) (see Supplement, R-76) make it clear that, where there are co-accused and one accused elects Crown Court trial, the magistrates’ court must send any other accused charged with the same offence (or a related offence) to the Crown Court for trial, even if the offence(s) in question would otherwise be suitable for summary trial (see D6.16).

The CDA 1998, s. 51(5) (see D10.44), applies where the court sends an adult for trial (under s. 51(1) or (3)), and another adult appears before the court, either on the same or a subsequent occasion, charged jointly with the first adult with an either-way offence, and that offence appears to the court to be related to an offence for which the first adult was sent for trial under s. 51(1) or (3). The court must (where it is the same occasion), or may (where it is a subsequent occasion), send the other adult to the Crown Court for trial for the either-way offence. Where the court sends an adult for trial under s. 51(5), it must (by virtue of s. 51(6)) at the same time send the accused to the Crown Court for trial for any either-way or summary offence with which he or she is charged and which appears to the court to be related to the offence for which the accused is sent for trial (provided that, if it is a summary offence, it is punishable with imprisonment or disqualification from driving).

Answer 38

D10.10

Co-accused under the Age of 18 Section 51(7) (see D10.44) covers the situation where an adult and a person under the age of 18 are jointly charged. It applies where the court sends an adult to the Crown Court for trial under s. 51(1), (3) or (5), and a child or young person appears before the court (on the same or a subsequent occasion) charged jointly with the adult with an indictable offence for which the adult is sent for trial under s. 51(1), (3) or (5), or charged with an indictable offence that appears to the court to be related to that offence. The court ‘shall, if it considers it necessary in the interests of justice to do so, send the child or young person forthwith to the Crown Court for trial for the indictable offence’. Under s. 51(8), where the court sends a child or young person for trial under s. 51(7), it may at the same time send the accused to the Crown Court for trial for any indictable or summary offence with which he or she is charged and which appears to the court to be related to the offence for which he or she is sent for trial (again, if the offence is a summary one, it must be punishable with imprisonment or disqualification from driving).

Answer 39

Subsidiary Matters

D10.11

Where a summary offence is sent to the Crown Court for trial under s. 51, the summary trial for that offence is regarded as having been adjourned by the magistrates’ court without fixing the time and place for its resumption (s. 51(10)).

Under s. 51(13), the functions of a magistrates’ court under s. 51 may be discharged by a single justice.

Section 51A contains equivalent provisions to s. 51 for cases where defendants who are under the age of 18 are to be sent to the Crown Court for trial (see D24).

Answer 40

Presence of the Accused

D10.12

The CDA 1998, s. 51(1), applies where the accused is ‘before a magistrates’ court’. If the accused does not appear in court for the s. 51 hearing, the court may issue an arrest warrant (see the MCA 1980, s. 1(6), and the BA 1976, s. 7(1), which are applicable, respectively, where the accused fails to answer to a summons or requisition, or fails to answer to bail, whether that bail was granted by the police or by a magistrates’ court; see D5.17 and D7.98).

Question 41

D6.38,

Answer 41

Summary Offences in the Crown Court

D6.38

It follows from the basic definition of a summary offence as one which is triable only summarily that the question of mode of trial for such an offence does not normally arise. However, the CJA 1988, s. 40, provides that where certain specified summary offences (including common assault, driving while disqualified, taking a motor vehicle without the owner’s consent, and criminal damage where the value involved does not exceed £5,000) are disclosed by the evidence on the basis of which an accused has been sent for trial in respect of an indictable offence, and the summary offence is either founded on the same facts as the indictable offence or forms with it a series of offences of the same or similar character, then the prosecution may include a count for the summary offence on the indictment and, if the accused pleads not guilty, the charge will be tried by a jury (see D11.17).

The CDA 1998, s. 51(6), provides that, where the court sends an accused for trial in respect of an indictable-only or either-way offence, it must also send the accused to the Crown Court for trial for any summary offence which appears to the court to be related to the offence(s) which are sent for trial, provided that the summary offence is punishable with imprisonment or involves disqualification from driving. Unless the summary offence is one to which the CJA 1988, s. 40, applies and is added to the indictment, sch. 3, para. 6, governs the procedure in respect of the summary offence (see D10.29). If the accused is convicted on the indictment, the Crown Court must, assuming it agrees that the summary offence is related to the offence(s) sent for trial under s. 51, ask the accused to enter a plea to the summary offence. If a guilty plea is entered, the Crown Court may deal with the offender in respect of that offence in any way in which a magistrates’ court could have done; if a not guilty plea is entered, the powers of the Crown Court cease in respect of the summary offence (save that the court may dismiss the charge if the prosecution inform the court that they would not desire to submit evidence in respect of it). It is submitted that (even though para. 6 is silent as to the possibility) it would also be open to a Crown Court judge to try the summary offence, sitting as a district judge (magistrates’ courts) under the Courts Act 2003, s. 66 (see D3.16).

Question 42

D11.17

Answer 42

Counts for Summary Offences

D11.17

In addition to being able to indict the accused for those offences for which he has been sent for trial together with any other indictable offences disclosed by the material served on the accused, the drafter of an indictment has a limited power to include counts for certain summary offences.

The power is contained in the CJA 1988, s. 40, and arises when (s. 40(1)):

(a) the accused has been sent for trial for an indictable offence; and
(b) a summary offence to which s. 40 applies is either:
(i) ‘founded on the same facts or evidence as a count charging an indictable offence’, or
(ii) ‘is part of a series of offences of the same or similar character as an indictable offence which is also charged’; and
(c) the facts or evidence relating to the summary offence were disclosed ‘to a magistrates’ court inquiring into the offence as examining justices’, or are disclosed by material served on the accused as part of the procedure for sending indictable-only offences to the Crown Court under the CDA 1998, s. 51 and sch. 3 (see D10).

Where a count for a summary offence is included in an indictment by virtue of s. 40(1), it is tried exactly as if it were an indictable offence, but, if the accused is convicted, the maximum penalty that may be imposed is that which could have been imposed for the offence by a magistrates’ court (s. 40(2)). In Lewis [2013] EWCA Crim 2596, [2014] 1 Cr App R 25 (345) it was emphasised that an indictment including offences pursuant to s. 40 remained valid even if the accused was acquitted of the indictable offence (reaffirmed in Taylor [2014] EWCA Crim 2411, [2015] RTR 11 (97)).

Question 43

and D11.19

Answer 43

D11.19

Relevant Summary Offences The summary offences to which the CJA 1988, s. 40, applies are common assault, assaulting a prisoner custody officer or a secure training centre custody officer, taking a motor vehicle without the owner’s consent, driving while disqualified and criminal damage where the value involved is the relevant sum or less (s. 40(3)).

For the purposes of s. 40(3), common assault includes the offence of battery (Lynsey [1995] 3 All ER 654), but common assault is not included as a lesser alternative to assault by beating unless added as a specific count (Nelson [2013] EWCA Crim 30, [2013] 1 WLR 2861).

Although included within the scope of s. 40, criminal damage is not, strictly speaking, a summary offence, even when the value involved is less than the relevant sum. The MCA 1980, s. 22, merely provides that, where it is clear that the value does not exceed the relevant sum of £5,000, the court ‘shall proceed as if the offence were triable only summarily’ (Fennell [2000] 1 WLR 2011; Considine (1980) 70 Cr App R 239). If the committing magistrates have not gone through the s. 22 procedure, the Court of Appeal has held that s. 40 will have no relevance, and the Crown Court is therefore not fettered by s. 40(2) to pass such sentence as could have been passed in a magistrates’ court (Alden [2002] EWCA Crim 421, [2002] 2 Cr App R (S) 74 (326)).

However, the Court of Appeal came to the opposite view in Gwynn [2002] EWCA Crim 2951, [2003] 2 Cr App R (S) 41 (267). The distinction between the two cases lies in the stage at which the criminal damage count was added to the indictment. In Gwynn the count had been on the indictment from the outset, and the court had applied its mind to the s. 22 consideration of the value of the criminal damage, whereas in Alden the count had been added once the case was in the Crown Court and s. 22 did not therefore arise.