Procedure in the magistrates’ courts. Sending indictable offences to the Crown court Flashcards
Sending Cases from the Magistrates’ Court to the Crown Court
Introduction
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
There remains one other way of securing the Crown Court trial of an accused, namely the ‘voluntary bill of indictment’
Court of First Appearance
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.
Either Way Offences under s. 51
Sending Cases to the Crown Court Under the Crime and Disorder Act 1998, s. 51
The CDA 1998, s. 51(1) 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.
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)
Either Way Offences under s. 51
The CDA 1998, s. 50A(3) 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.
Related Either Way and Summary Offences
The CDA 1998, s. 51(3) 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 either way 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 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.
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 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 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’.
it had to be decided whether the summary offence of failure to surrender was ‘related to’ the indictable offences for which D had been sent for trial. The Court concluded
It is clear to us that the Bail Act offence did not arise out of ‘circumstances connected with those giving rise to the indictable offence’. There was obviously a connection between the Bail Act offence and the substantive offences in that it was for the substantive offences that he had been granted bail and failed to surrender. But the circumstances giving rise to the substantive offence had no connection with the circumstances out of which the Bail Act offence arose. If that were so, then every Bail Act offence would be ‘related’ to the substantive offence, with the consequence that there would always be a mandatory obligation under s. 51(3)(b) to send the linked Bail Act offence to the Crown Court for trial. That could not possibly be correct…
The test applicable to linked summary offences
D was arrested for shoplifting; when at the police station, he racially abused police officers. He was charged with an either way offence relating to that abuse and elected Crown Court trial. The offence of shoplifting fell within the MCA 1980, s. 22, as the value involved did not exceed £200, and so (because he did not elect Crown Court trial in respect of that offence) it had to be dealt with as a summary offence. It was therefore sent to the Crown Court under the CDA 1998, s. 51(3). The Court of Appeal adopted the same reasoning as in Osman, holding that, although there was a clear connection between the shoplifting and the racially aggravated harassment (D would not have abused the officers had he not been arrested for shoplifting), the ‘circumstances’ giving rise to the shoplifting had no connection with the circumstances of the racially aggravated harassment at the police station approximately four hours later. It followed that the summary offence did not arise out of circumstances that were the same as or connected with those giving rise to the either way offences.
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.
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)
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.
Co-accused
CrimPR 9.2(6) and (7) 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
The CDA 1998, s. 51(5) applies where the court sends an adult for trial 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 D to the Crown Court for trial for any either way or summary offence with which D is charged and which appears to the court to be related to the offence for which D is sent for trial (provided that, if it is a summary offence, it is punishable with imprisonment or disqualification from driving).
Co-accused under the Age of 18
Section 51(7) 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 D to the Crown Court for trial for any indictable or summary offence with which D is charged and which appears to the court to be related to the offence for which D is sent for trial (again, if the offence is a summary one, it must be punishable with imprisonment or disqualification from driving).
Subsidiary Matters
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
Presence of the Accused
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 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.
the Court of Appeal ruled that the MCA 1980, s. 122, permits the accused to be absent when a case is being sent to the Crown Court under the CDA 1998, s. 51
The Court went on to hold that, even if s. 51 is treated as requiring the accused to be physically present, that requirement is ‘entirely procedural in nature’, and so failure to comply does not deprive the Crown Court of jurisdiction to try the matter on indictment (at [96]). It followed that if, contrary to the Court’s primary conclusion, an accused could not lawfully be sent for trial under s. 51 in his or her absence, this point could be raised only in the Crown Court under the Administration of Justice (Miscellaneous Provisions) Act 1933, s. 2(2) and (3), asking for any indictment based upon that sending to be quashed.
The Court added that, even if the non-attendance of the accused at a s. 51 hearing were to be treated both as unlawful and as falling outside s. 2(2) and (3) of the 1933 Act, whether the proceedings should be treated as invalidated would have to depend on the circumstances of the case ; where the accused has agreed or asked to be represented by an advocate rather than appear in person, it would be difficult for that accused to demonstrate prejudice unless something prejudicial to the accused occurred which would probably not have happened if he or she had been physically present.
