Procedure in the magistrates’ courts. Sending linked summary only offences and procedure for the at the Crown Court Flashcards
Summary Offences in the Crown Court
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.
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.
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 .
Counts for Summary Offences
In addition to being able to indict the accused for those offences for which the accused 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.
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)).
an indictment including offences pursuant to s. 40 remained valid even if the accused was acquitted of the indictable offence.
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 but common assault is not included as a lesser alternative to assault by beating unless added as a specific count.
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.
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.
However, the Court of Appeal came to the opposite view. 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.
