Procedure in the magistrates’ courts. Allocation (criminal damage, low value shoplifting cases) Flashcards
Allocation: Determination of Mode of Trial
Introduction
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.
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.
Plea before Venue
The initial procedure set out in the MCA 1980, s. 17A applies whenever a person who has attained the age of 18 appears before a magistrates’ court charged with an either way offence.
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 should take place in the presence of the accused.
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
(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 to the Crown Court if the court is of the opinion that its powers of punishment are inadequate.
(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
(d) If the accused indicates a guilty plea, the court proceeds as if the accused had pleaded guilty at summary trial 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, 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
Allocation
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.
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. At that stage, the prosecution must also be given the opportunity of informing the magistrates of any previous convictions recorded against the accused 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. 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.
(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 or if it appears to the court that the criteria for the imposition of a sentence under (dangerous offenders), would be met.
(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. The magistrates are not obliged to give such an indication
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.
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.
(e) If the accused indicates an intention to plead guilty following an indication of sentence, this is regarded as a guilty plea 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.
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
(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
(g) Depending on the choice made by the accused, the court either proceeds to summary trial or sends the case to the Crown Court.
(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.
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
Presence of the Accused
The accused must generally be present at the ‘plea before venue’ hearing and when allocation is determined
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.
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
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.
(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 the absence of the accused, and the court is satisfied that there is good reason for the proceedings being so conducted.
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’
Clearly, this does not require the magistrates to commence the trial forthwith, as they are entitled to adjourn under the general power given them.
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.
It should be noted that the court may use alive television link in a case where the accused is held in custody and facilities are available there.
The slight inconsistency as regards the presence of the accused in plea before venue and allocation hearings provide that the court has the power to proceed with the plea before venue hearing or, as the case may be, the allocation hearing in the absence of the accused where he or she does not appear at the hearing, and:
(a) any one of these four conditions is met:
(i) a legal representative of the accused is present at the hearing and signifies the accused’s consent to the court proceeding in the accused’s absence;
(ii) a legal representative of the accused is present at the hearing, and the court does not consider that there is an acceptable reason for the accused’s failure to attend;
(iii) it is proved to the satisfaction of the court that notice of the hearing was served on the accused within what appears to the court to be a reasonable time before the hearing, and the court does not consider that there is an acceptable reason for the accused’s failure to attend; or
(iv) the accused has appeared on a previous occasion to answer the charge, and the court does not consider that there is an acceptable reason for the accused’s failure to attend; and
(b) the court is satisfied that it is not contrary to the interests of justice to proceed in the absence of the accused.
The court may also determine venue and allocation in the absence of the accused where he or she appears at the hearing, but the court considers that, by reason of the accused’s disorderly conduct before the court, it is not practicable for the hearing to be conducted in the accused’s presence, and the court is satisfied that it is not contrary to the interests of justice to proceed in the absence of the accused.
Reason for Committal under s.14
In order to commit to the Crown Court for sentence under the SA 2020, s. 14, the magistrates must be of the opinion that the offence(s) are so serious that the appropriate sentence exceeds their powers. Committal for sentence under s. 14 may be appropriate where, for example, the accused is revealed as having a record of relevant previous convictions, indicates that each previous conviction may be treated as an aggravating factor), or the accused asks for further offences to be taken into consideration.
the Divisional Court held that the power of the magistrates to commit for sentence under what is now s. 14 is unfettered. There is therefore nothing unreasonable or illogical about permitting a court to form one view at the stage of deciding on the appropriateness of summary trial, and a different view at the stage of deciding to commit for sentence.
the Divisional Court confirmed that the decision to commit for sentence under s. 14 does not have to be based on information received by the court after the decision to try the accused summarily.
Binding Effect of Indication of Sentence
Where the court gives an indication of sentence under the MCA 1980, s. 20(4), and the accused then indicates a guilty plea, 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).
A magistrates’ court is 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 s. 267 (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. 15 (Committal for sentence of dangerous adult offenders) , or the power of the Crown Court to impose an extended sentence under s. 267.
Section 18(8) applies where the magistrates’ court commits an offender to the Crown Court for sentence under s. 18(1) 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) (If the accused requests an indication of sentence, the court may, but need not, give such an indication). However, the ambit of this provision is limited by the SA 2020, s. 21(6), which makes it clear that the powers of the Crown Court are freed from the restriction imposed by the MCA 1980, s. 20A(1), only where the offence committed for sentence under the SA 2020, s. 18(2), is a specified offence (i.e. specified under s. 306) in respect of which the magistrates’ court has stated (under s. 18(4)) that, in its opinion, it also had power to commit the offender for sentence under s. 15(2).
Indication of Not Guilty Plea: Magistrates’ Decision Whether to Accept Jurisdiction
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. T
he maximum penalty which magistrates can impose on summary conviction for an either way offence is six months’ imprisonment.
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.
Allocation Guideline
The Sentencing Council’s overarching guideline, Allocation, 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.
Turning to the power to commit for sentence under the SA 2020, s. 14 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.
Allocation Where There Are Co-accused
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.
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).
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).
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
Prosecution Influence on the Allocation Decision
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.
The effect of such a notice is that the magistrates’ court is required, to send the case forthwith to the Crown Court for trial instead of conducting a plea before venue hearing.
Special Procedure for Criminal Damage Charges
Procedure on Criminal Damage Charges
If the accused is charged with a ‘scheduled offence’, the allocation procedure must be preceded by consideration of the value involved in the offence.
Depending on what that value is, the accused may be deprived of the right to elect trial on indictment, notwithstanding 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.
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.
(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 and so they are triable only on indictment; and
(c) any offence committed by destroying or damaging a memorial (i.e. a building or other structure erected or installed on land, or in or on any building or other structure, or a garden or any other thing planted or grown on land, which has a commemorative purpose:
It should also be noted that conspiracy to commit criminal damage is not a scheduled offence
