UNIT 8 - Preliminary Hearings In The Magistrates’ Court, Plea Before Venue And Allocation Flashcards
Disclosure of initial details of prosecution case
- requires P 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
Disclosure of initial details of prosecution case: time frame when 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)
Disclosure of initial details of prosecution case: time frame when the accused has not requested the initial details:
the prosecutor must make them available to the accused at, or before, the beginning of the day of the first hearing
What the initial details of P include:
- Summary of circumstances;
- any account given by D in interview;
- any written witness statements material to plea,
- mode of trial,
- sentence;
- criminal record;
- victim impact statement.
Where, immediately before the first hearing in the magistrates’ court, the accused was in police custody for the offence charged, initial details comprise of:
‘summary of the circumstances of the offence’,
and
the accused’s criminal record (if any).
the accused is not in custody, initial details comprise of:
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 the prosecutor 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).
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
What happens if the prosecution fail to supply the required initial details?
No specific sanction
What can the court do if the prosecution fail to supply the required initial details?
1) open to the magistrates’ court to make a direction requiring the prosecution to comply
2) court can adjourn hearing
What if the P wants to introduce information contained in a document listed in r. 8.3 but has not served that document on the accused or made that information available?
In such cases, the prosecutor will not be permitted to ‘introduce that information unless the court first allows the defendant sufficient time to consider it’.
Can the court dismiss the charge(s) brought by the prosecution because of non-compliance with a request for initial details of the prosecution case?
NO!
the court cannot dismiss the charge(s) brought by the prosecution because of non-compliance with a request for initial details of the prosecution case
the Divisional Court held that, even taking into account the coming into force of the HRA 1998, the court does not have jurisdiction to dismiss proceedings for abuse of process simply on the basis of the failure to supply the information now required by Part 8.
Preliminary hearing: over link
where an accused attends a preliminary hearing over a live link
+ and pleads guilty to the offence
= 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
+ 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.
Pre-trial hearings: MC’s role in an indictable offence
CrimPD I, para. 3A.5
if the accused is charged with an indictable (including either way) offence and is in custody
the MC 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
Pre-trial hearings: MC’s role if the offence is a summary one or an either way offence that is allocated for summary trial:
The MC should ‘forthwith’ give such directions as are necessary, either (on a guilty plea) to prepare for sentencing or for a trial
If the accused is on bail, 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).
so if accused is on bail and if the prosecutor anticipates a guilty plea ‘which is likely to be sentenced in the magistrates’ court’, case must be listed:
for the first hearing 14 days after charge (or the next available court date thereafter)
so if accused is on bail and if 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
PSR
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
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
if the accused does so wish, the necessary arrangements for an application must be made and, where appropriate, legal aid obtained THEN =
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
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.
Preparation for Trial Hearings
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).
Preparation for Trial Hearings
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
At a preparation for trial hearing, ‘the court must give directions for an effective trial’
Under r. 3.16(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 the accused 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
MC: 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.
Live evidence + witness in the MC:
The ‘live’ evidence at the trial should be confined to those disputed issues
so only witnesses ‘who are really needed in relation to genuinely disputed, relevant issues should be required to attend’
witness/timetable of hearing in the MC: 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.
Ambiguous pleas
If an accused purports to enter a plea of guilty but, either at the time of pleading or subsequently in mitigation, qualifies it with words that suggest the accused may have a defence (e.g., ‘Guilty, but it was an accident’ or ‘Guilty, but I was going to give it back’),
Should the court proceed with sentencing?
the court MUST not proceed to sentence on the basis of the plea but should explain the relevant law and seek to ascertain whether the accused 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
‘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, can accused appeal?
YES = accused will have a good ground of appeal
COA will have the options:
a) either of setting the conviction and
b) sentence aside and ordering a retrial
the factors the defendant should be aware of in deciding whether to elect Crown Court trial
Prosecution Influence:
summary trial may be vetoed either by the court or by the accused, NOT P
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.
the factors the defendant should be aware of in deciding whether to elect Crown Court trial:
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
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
so when case involves serious fraud or involves injury/threat of injury and child will be called as witness = pro should serve a notice.
on serving notice = MC will not even take plea and will send case straight to CC
Defence statement
The defence statement is a written statement setting out the basis on which the case will be defended. The areas that the statement must cover are set out in s. 6A of the CPIA 1996 and include:
- the nature of the accused’s defence, including any particular defences upon which the accused intends to rely;
- the matters of fact on which the accused takes issue with the prosecution, with the reasons why;
- particulars of the matters of fact on which the accused intends to rely for the purposes of defence; and
- any points of law which the accused wishes to take, with any authorities relied upon.
Where the accused chooses to serve a defence statement this must be done within
14 days from the date on which the prosecutor complies or purports to comply with the initial duty of disclosure
The court has power to extend this time-limit on the application of the accused
The Magistrates’ Courts Protocol makes the following points in respect of defence statements:
(1) Defence advocates must give consideration at an early stage to whether to serve such a statement.
* (2) Defence statements must contain a clear and detailed exposition of the issues of fact and law in the case and courts should examine them with care to ensure that they comply with the formalities required by the CPIA.
* (3) Where late service of a defence statement results in potential delay to the proceedings, any application to adjourn for further disclosure or to make an application under s. 8 must be scrutinised carefully by the court.
* (4) Any case which raises difficult issues of disclosure should be referred to a district judge, where one is available.
Determining allocation when an adult is charged with an either way offence
Not guilty
STAGE ONE
(‘plea before venue’) ascertains the accused’s intended plea
STAGE TWO
determine whether the case will be tried in a magistrates’ court or in the Crown Court
Whenever a person who has attained the age of 18 appears before a magistrates’ court charged with an either way offence
This procedure is:
(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 under the SA 2020, s. 14, 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 SA 2020, ss. 306 to 308 (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 G or NG
(d) If the accused indicates a G 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 NG 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)).
If the accused gives a written indication of a guilty plea, the MC MAY:
consider whether it can, on the material before it (without any hearing or representations), be satisfied that it is highly likely that, were the accused to plead guilty, the court would commit the accused to the Crown Court for sentence.
If so, the court may, in writing, ask whether the accused objects to being sent to the Crown Court for trial for the offence. If the court does so, it must also inform the prosecutor that the court has done so and ask whether the prosecutor objects to the accused being sent to the Crown Court for trial for the offence. If neither objects, the court sends the case to the Crown Court for trial; if either objects, the court proceeds to try the offence summarily. However, under s.17ZB(10) if, at such a summary trial, the accused pleads not guilty, the trial and the plea are void, and the court has to proceed as if the hearing were a plea before venue hearing under s. 17A and the accused had indicated an intention to plead not guilty.
If the accused gives a written indication of a not guilty plea,
+ If the offence is not a scheduled offence
the court MUST:
in writing, ask whether the accused wishes to give a written indication of non-consent to summary trial, and if the accused does not wish to give that indication, whether he or she wishes to make an election for written allocation proceedings
if the accused gives a written indication of non-consent to summary trial = the court sends the case to the Crown Court for trial
Under s. 17ZC(5), if the offence in question is a scheduled offence (under s. 22(1)), the court must =
in writing, ask whether the accused wishes to make an election for written allocation proceedings and give a written indication of non-consent to summary trial and, if the accused does not wish to make that election and give that indication, whether the accused wishes to make an election for written allocation proceedings. I
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:
- (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 (see D6.15).
(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 (SA 2020, s. 14; see D23.30) or if it appears to the court that the criteria for the imposition of a sentence under the SA 2020, ss. 306 to 308 (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, then =
the case will be sent to the Crown Court for trial
if the magistrates accept jurisdiction but the accused elects trial on indictment =
the case will be sent to the Crown Court for trial.
The discretion of the magistrates to commit for sentence is subject to the general principle of ‘legitimate expectation’
If the offender has been led to believe, whether expressly or by implication, that the magistrates will pass sentence, the offender should not subsequently be committed for sentence, whether by the same or a differently constituted bench.
[CASE EXAMPLE]
For example, in Horseferry Road Magistrates’ Court, ex parte
- D indicated a guilty plea at the ‘plea before venue’ hearing; the court ordered a pre-sentence report, stating that all sentencing options were to remain open with the exception of committal to the Crown Court for sentence.
- At the next hearing, D was committed to the Crown Court for sentence
- The Divisional Court held that D had a ‘legitimate expectation’ that he would be sentenced in the magistrates’ court
- The subsequent decision to commit him for sentence was in breach of this legitimate expectation; accordingly, it was appropriate to quash the decision to commit for sentence.
If sentence is not passed immediately because PSR is needed:
the case will have to be adjourned
Case adjourned because PSR is needed: does this change bail?
This will not usually alter the position regarding bail (unless there is good reason for remanding in custody)
When a person who has been on bail enters a guilty plea at the ‘plea before venue’ hearing, the usual practice should be to continue the bail, even if it is anticipated that a custodial sentence will be imposed by the Crown Court, unless there is good reason for remanding in custody
If sentence is not passed immediately because PSR is needed and MC take the view that their sentencing powers are insufficient =
they can commit the offender to the Crown Court for sentence
G plea reduction ‘at the first stage of proceedings’ =
1/3
G plea reduction after the first stage of proceedings =
the maximum level of reduction is reduced to 1/4
Where the court gives an indication of sentence and D plead G =
‘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)
Magistrates’ Decision Whether to Accept Jurisdiction, MC must consider:
most important = is whether the sentencing powers of the MC are sufficient
Where the accused is charged with more than one offence = MC must look at the totality of the allegations
Magistrates’ Decision Whether to Accept Jurisdiction: what should MC do if they think powers are insufficent?
DECLINE JURIS!!
What is the max penalty which MC can impose?
12 months imprisonment and/or unlimited fine!!
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’.
If MC is uncertain of the adequacy of their sentencing powers when dealing with EWO =
they should err on the side of offering the accused the option of summary trial.
With cases of no factual or legal complications + sentencing powers enough, MC should =
normally accept juris
When MC considering juris of EWO offence, who can make representation?
‘all parties should be asked by the court to make representations as to whether the case is suitable for summary trial’.
What should the MC also consider wehn considering juris of EWO?
- relevant definitive offence-specific guidelines
- to assess the likely sentence for the offence in the light of the facts alleged by the P’s 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)
If MC accept juris, what should tell the accused about sentencing options?
- 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.
MC: Sentencing to CC following conviction - when to commit to CC
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’
MC: Sentencing to CC following conviction: what should MC consider:
(1) any definitive guideline to arrive at the appropriate sentence,
(2) taking into account all the circumstances of the case (including personal mitigation and the appropriate guilty plea reduction).
(3) in borderline cases, should consider obtaining a pre-sentence report before deciding whether to commit to the Crown Court for sentence.
MC : 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 CC
- for sentence even if a community order may be the appropriate sentence
- this will allow the Crown Court to deal with any breach of a community order, if that is the sentence passed
This is only relevant in exceptional cases!!
(eg 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
[EWO OFFENCES]
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
Applies EVEN when: by then, decided that the case against the other accused is suitable for summary trial.
[EWO OFFENCES]
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 =
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).
Magistrates’ Courts Act 1980, ss. 17A
[THE LAW]
17A.—
(1) This section shall have effect where a person who has attained the age of 18 years appears or is brought before a magistrates’ court on an information charging him with an offence triable either way.
(2) Everything that the court is required to do under the following provisions of this section must be done with the accused present in court.
(3) The court shall cause the charge to be written down, if this has not already been done, and to be read to the accused.
(4) The court shall then explain to the accused in ordinary language that he may indicate whether (if the offence were to proceed to trial) he would plead guilty or not guilty, and that if he indicates that he would plead guilty—
* (a) the court must proceed as mentioned in subsection (6) below; and
* (b) he may (unless section 17D(2) below were to apply) be committed for sentence to the Crown Court under section 14 or (if applicable) 15 of the Sentencing Code if the court is of such opinion as is mentioned in subsection (1)(b) of that section.
(5) The court shall then ask the accused whether (if the offence were to proceed to trial) he would plead guilty or not guilty.
(6) If the accused indicates that he would plead guilty the court shall proceed as if—
* (a) the proceedings constituted from the beginning the summary trial of the information; and
* (b) section 9(1) above was complied with and he pleaded guilty under it.
(7) If the accused indicates that he would plead not guilty section 18(1) below shall apply.
(8) If the accused in fact fails to indicate how he would plead, for the purposes of this section and section 18(1) below he shall be taken to indicate that he would plead not guilty.
(9) Subject to subsection (6) above, the following shall not for any purpose be taken to constitute the taking of a plea—
* (a) asking the accused under this section whether (if the offence were to proceed to trial) he would plead guilty or not guilty;
* (b) an indication by the accused under this section of how he would plead.
Magistrates’ Courts Act 1980, ss. 17B
[THE LAW]
17B.—
(1) This section shall have effect where—
* (a) a person who has attained the age of 18 years appears or is brought before a magistrates’ court on an information charging him with an offence triable either way,
* (b) the accused is represented by a legal representative,
* (c) the court considers that by reason of the accused’s disorderly conduct before the court it is not practicable for proceedings under section 17A above to be conducted in his presence, and
* (d) the court considers that it should proceed in the absence of the accused.
(2) In such a case—
* (a) the court shall cause the charge to be written down, if this has not already been done, and to be read to the representative;
* (b) the court shall ask the representative whether (if the offence were to proceed to trial) the accused would plead guilty or not guilty;
* (c) if the representative indicates that the accused would plead guilty the court shall proceed as if the proceedings constituted from the beginning the summary trial of the information, and as if section 9(1) above was complied with and the accused pleaded guilty under it;
* (d) if the representative indicates that the accused would plead not guilty section 18(1) below shall apply.
(3) If the representative in fact fails to indicate how the accused would plead, for the purposes of this section and section 18(1) below he shall be taken to indicate that the accused would plead not guilty.
(4) Subject to subsection (2)(c) above, the following shall not for any purpose be taken to constitute the taking of a plea—
* (a) asking the representative under this section whether (if the offence were to proceed to trial) the accused would plead guilty or not guilty;
* (b) an indication by the representative under this section of how the accused would plead.
Magistrates’ Courts Act 1980, ss. 17C
[THE LAW]
17C.
A magistrates’ court proceeding under section 17A or 17B above may adjourn the proceedings at any time, and on doing so on any occasion when the accused is present may remand the accused, and shall remand him if—
* (a) on the occasion on which he first appeared, or was brought, before the court to answer to the information he was in custody or, having been released on bail, surrendered to the custody of the court; or
* (b) he has been remanded at any time in the course of proceedings on the information; and where the court remands the accused, the time fixed for the resumption of proceedings shall be that at which he is required to appear or be brought before the court in pursuance of the remand or would be required to be brought before the court but for section 128(3A) below.
Magistrates’ Courts Act 1980, ss. 19
[THE LAW]
19.—
(1) The court shall decide whether the offence appears to it more suitable for summary trial or for trial on indictment.
(2) Before making a decision under this section, the court—
* (a) shall give the prosecution an opportunity to inform the court of the accused’s previous convictions (if any); and
* (b) shall give the prosecution and the accused an opportunity to make representations as to whether summary trial or trial on indictment would be more suitable.
(3) In making a decision under this section, the court shall consider—
* (a) whether the sentence which a magistrates’ court would have power to impose for the offence would be adequate; and
* (b) any representations made by the prosecution or the accused under subsection (2)(b) above,
and shall have regard to any allocation guidelines (or revised allocation guidelines) issued as definitive guidelines under section 170 of the Criminal Justice Act 2003.
(4) Where—
* (a) the accused is charged with two or more offences; and
* (b) it appears to the court that the charges for the offences could be joined in the same
indictment or that the offences arise out of the same or connected circumstances, subsection (3)(a) above shall have effect as if references to the sentence which a magistrates’ court would have power to impose for the offence were a reference to the maximum aggregate sentence which a magistrates’ court would have power to impose for all of the offences taken together.
(5) In this section any reference to a previous conviction is a reference to—
* (a) a previous conviction by a court in the United Kingdom;
* (aa) a previous conviction by a court in another member State of a relevant offence under the law of that State; or
* (b) a previous conviction of a service offence within the meaning of the Armed Forces Act 2006.
(5A) For the purposes of subsection (5)(aa) an offence is ‘relevant’ if the offence would constitute an offence under the law of any part of the United Kingdom if it were done in that part at the time when the allocation decision is made.
(6) If, in respect of the offence, the court receives a notice under section 51B or 51C of the Crime and Disorder Act 1998 (which relate to serious or complex fraud cases and to certain cases involving children respectively), the preceding provisions of this section and sections 20, 20A and 21 below shall not apply, and the court shall proceed in relation to the offence in accordance with section 51(1) of that Act
Magistrates’ Courts Act 1980, ss. 20
[THE LAW]
20.—
(1) If the court decides under section 19 above that the offence appears to it more suitable for summary trial, the following provisions of this section shall apply (unless they are excluded by section 23 below).
(2) The court shall explain to the accused in ordinary language—
* (a) that it appears to the court more suitable for him to be tried summarily for the offence;
* (b) that he can either consent to be so tried or, if he wishes, be tried on indictment;
* (c) that if he is tried summarily and is convicted by the court, he may be committed for sentence to the Crown Court under section 14 or (if applicable) 15 of the Sentencing Code if the court is of such opinion as is mentioned in subsection (1)(b) of the applicable section.
(3) The accused may then request an indication (‘an indication of sentence’) of whether a custodial sentence or non-custodial sentence would be more likely to be imposed if he were to be tried summarily for the offence and to plead guilty.
(4) If the accused requests an indication of sentence, the court may, but need not, give such an indication.
(5) If the accused requests and the court gives an indication of sentence, the court shall ask the accused whether he wishes, on the basis of the indication, to reconsider the indication of plea which was given, or is taken to have been given, under section 17A or 17B above.
(6) If the accused indicates that he wishes to reconsider the indication under section 17A or 17B above, the court shall ask the accused whether (if the offence were to proceed to trial) he would plead guilty or not guilty.
(7) If the accused indicates that he would plead guilty the court shall proceed as if—
* (a) the proceedings constituted from that time the summary trial of the information; and
* (b) section 9(1) above were complied with and he pleaded guilty under it.
(8) Subsection (9) below applies where—
* (a) the court does not give an indication of sentence (whether because the accused does not request one or because the court does not agree to give one);
* (b) the accused either—
*
o (i) does not indicate, in accordance with subsection (5) above, that he wishes; or
o (ii) indicates, in accordance with subsection (5) above, that he does not wish, to reconsider the indication of plea under section 17A or 17B above; or
* (c) the accused does not indicate, in accordance with subsection (6) above, that he would plead guilty.
(9) The court shall ask the accused whether he consents to be tried summarily or wishes to be tried on indictment and—
* (a) if he consents to be tried summarily, shall proceed to the summary trial of the information; and
* (b) if he does not so consent, shall proceed in relation to the offence in accordance with section 51(1) of the Crime and Disorder Act 1998.
Magistrates’ Courts Act 1980, ss. 20A
[THE LAW]
(1) Where the case is dealt with in accordance with section 20(7) above, 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 referred to in section 20 above.
(2) Subsection (1) above is subject to sections 15(4), 18(8) and 21(6) of the Sentencing Code.
(3) Except as provided in subsection (1) above—
* (a) an indication of sentence shall not be binding on any court (whether a magistrates’ court or not); and
* (b) no sentence maybe challenged or be the subject of appeal in any court on the ground that it is not consistent with an indication of sentence.
Magistrates’ Courts Act 1980, ss. 21
[THE LAW]
If the court decides under section 19 above that the offence appears to it more suitable for trial on indictment, the court shall tell the accused that the court has decided that it is more suitable for him to be tried on indictment, and shall proceed in relation to the offence in accordance with section 51(1) of the Crime and Disorder Act 1998
Magistrates’ Courts Act 1980, ss. 23
[THE LAW]
23.—
(1) Where—
* (a) the accused is represented by counsel or a solicitor who in his absence signifies to the court the accused’s consent to the proceedings for determining how he is to be tried for the offence being conducted in his absence; and
* (b) the court is satisfied that there is good reason for proceeding in the absence of the accused, the following provisions of this section shall apply.
(2) Subject to the following provisions of this section, the court may proceed in the absence of the accused in accordance with such of the provisions of sections 19 to 22 above as are applicable in the circumstances.
(3) If, in a case where subsection (1) of section 22 above applies, it appears to the court as mentioned in subsection (4) of that section, subsections (5) and (6) of that section shall not apply and the court—
* (a) if the accused’s consent to be tried summarily has been or is signified by the person representing him, shall proceed in accordance with subsection (2) of that section as if that subsection applied; or
* (b) if that consent has not been and is not so signified, shall proceed in accordance with subsection (3) of that section as if that subsection applied.
(4) If the court decides under section 19 above that the offence appears to it more suitable for summary trial then—
* (a) if the accused’s consent to be tried summarily has been or is signified by the person representing him, section 20 above shall not apply, and the court shall proceed to the summary trial of the information; or
* (b) if that consent has not been and is not so signified, section 20 above shall not apply and the court shall proceed in relation to the offence in accordance with section 51(1) of the Crime and Disorder Act 1998.
(5) If the court decides under section 19 above that the offence appears to it more suitable for trial on indictment, section 21 above shall not apply and the court shall proceed in relation to the offence in accordance with section 51(1) of the Crime and Disorder Act 1998.
Magistrates’ Courts Act 1980, ss. 26
[THE LAW]
[26.
Powers ancillary to s. 23 to issue a summons or warrant for arrest in respect of the accused if either the court considers that he should be present while the mode of trial is determined or, having proceeded in his absence and adjourned without remanding him prior to committal or transfer proceedings, he does not appear for the resumption of the hearing.]
D6.21
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 D6.27). 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 (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; 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: s. 22(11A)).
Value Involved
STEP ONE
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
Value Involved
{MCA 1980, s. 22}
STEP 2
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
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
MC TO only consider the value of the damage to the property itself, NOT any consequential losses which might have been sustained as a result of the damage.
Value Involved
{MCA 1980, s. 22}
STEP 3
If VALUE NOT OVER RELEVANT SUM =
they must proceed as if the offence charged were triable only summarily
Value Involved
{MCA 1980, s. 22}
STEP 3
If VALUE OVER RELEVANT SUM =
it is obliged to determine allocation in accordance with the usual procedure, just as for any other either way offence
Value Involved
{MCA 1980, s. 22}
STEP 3
If VALUE INVOLVED NOT CLEAR WITH
-MC must explain to the accused:
A) that he or she may consent to summary trial
B) and that, if consent is given, a summary trial will take place
C) 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
D) The accused is then asked for consent.
E) Depending on the accused’s response, the court either proceeds to summary trial or embarks on the ordinary procedure for determining mode of trial
If D is convicted of MCA 1989, S22
+ 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 =
be imposed in the event of conviction is three months’ imprisonment or a fine of £2,500
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 EWO:
(currently 12 months’ imprisonment and/or a fine); moreover, there may be a committal for sentence under s. 14.
MCA 1980, s. 22
[CASE LAW]
In Kerr :
- D sent to CC for trial
- for criminal damage because a jointly charged co-accused had been sent for trial under s. 51.
- The value of the criminal damage did not exceed £5,000
- held CC should have treated the criminal damage offence as a summary offence and, therefore, subject to the three-month statutory maximum sentence applicable
Procedure for Determining the Value Involved: MC should consider representation from parties:
that ‘the word “representations” =
- implies something less than evidence
- NO obligation to hear evidence.
- It comprises submissions, coupled with assertions of fact and sometimes production of documents
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 indictmen
Two or More Criminal Damage Charges
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
- 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.
Two or More Criminal Damage Charges
summary
if two ore more criminal damage = court needs to total the value
if value more than 5k = ACCUSED retain the right to trial on indictment
Two or More Criminal Damage Charges
‘series of two or more offences of the same or similar character’ =
same indictment
aggregate value is the relevant value where the offences could be joined together in the same indictment
Two or More Criminal Damage Charges
‘charged on the same occasion’ =
This phrase could be construed to mean either
a) being charged at the police station (where that is the way in which proceedings were commenced) or
b) appearing before a magistrates’ court to answer charges
In Harvey [2020] ,COA construed the phrase ‘charged on the same occasion’ to mean ‘appearing at the magistrates’ court to answer the charges’ on the same occasion. It follows that an accused may be charged with offences on separate occasions at a police station but, if the first court appearance for those charges is at the same hearing, then the accused is charged on the same occasion with those offences and their value can be aggregated.
Magistrates’ Courts Act 1980, ss. 17D [CASE LAW]
17D.—
(1) If—
* (a) the offence is a scheduled offence (as defined in section 22(1) below);
* (b) the court proceeds in relation to the offence in accordance with section 17A(6) or 17B(2)(c) above; and
* (c) the court convicts the accused of the offence,
the court shall consider whether, having regard to any represetations made by him or by the prosecutor, the value involved (as defined in section 22(10) below) appears to the court to exceed the relevant sum (as specified for the purposes of section 22 below).
(2) If it appears to the court clear that the value involved does not exceed the relevant sum, or it appears to the court for any reason not clear whether the value involved does or does not exceed the relevant sum—
* (a) subject to subsection (4) below, the court shall not have power to impose on the accused in respect of the offence a sentence in excess of the limits mentioned in section 33(1)(a) below; and
* (b) sections 14 and 18 of the Sentencing Code shall not apply as regards that offence.
(3) Subsections (9) to (12) of section 22 below shall apply for the purposes of this section as they apply for the purposes of that section (reading the reference to subsection (1) in section 22(9) as a reference to subsection (1) of this section).
(4) Subsection (2)(a) above does not apply to an offence under section 12A of the Theft Act 1968 (aggravated vehicle-taking).
Magistrates’ Courts Act 1980, ss. 22 [CASE LAW]
22.—
(1) If the offence charged by the information is one of those mentioned in the first column of Schedule 2 to this Act (in this section referred to as ‘scheduled offences’) then the court shall, before proceeding in accordance with section 19 above, consider whether, having regard to any representations made by the prosecutor or the accused, the value involved (as defined in subsection (10) below) appears to exceed the relevant sum. For the purposes of this section the relevant sum is £5,000.
(2) If, where subsection (1) above applies, it appears to the court clear that, for the offence charged, the value involved does not exceed the relevant sum, the court shall proceed as if the offence were triable only summarily, and sections 19 to 21 above shall not apply.
(3) If, where subsection (1) above applies, it appears to the court clear that, for the offence charged, the value involved exceeds that relevant sum, the court shall thereupon proceed in accordance with section 19 above in the ordinary way without further regard to the provisions of this section.
(4) If, where subsection (1) above applies, it appears to the court for any reason not clear whether, for the offence charged, the value involved does or does not exceed the relevant sum, the provisions of subsections (5) and (6) below shall apply.
(5) The court shall cause the charge to be written down, if this has not already been done, and read to the accused, and shall explain to him in ordinary language—
* (a) that he can, if he wishes, consent to be tried summarily for the offence and that if he consents to be so tried, he will definitely be tried in that way; and
* (b) that if he is tried summarily and is convicted by the court, his liability to imprisonment or a fine will be limited as provided in section 33 below.
(6) After explaining to the accused as provided by subsection (5) above, the court shall ask him whether he consents to be tried summarily and—
* (a) if he so consents, shall proceed in accordance with subsection (2) above as if that subsection applied;
* (b) if he does not so consent, shall proceed in accordance with subsection (3) above as if that subsection applied.
[(7) Repealed.]
[(8) No appeal to the Crown Court against conviction for a scheduled offence on the ground that the decision as to the value involved was mistaken.]
[(9) Where a juvenile and an adult are jointly charged with a scheduled offence, the juvenile as well as the adult may make representations as to the value involved.]
[(10) ‘The value involved’ to be given the meaning set out in sch. 2, and ‘material time’, when used in sch. 2, means the time of the alleged offence.]
(11) Where—
* (a) 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; or
* (b) the offence charged consists in [intentionally encouraging or assisting a person] to commit two or more scheduled offences,
this section shall have effect as if any reference in it to the value involved were a reference to the aggregate of the values involved.
(11A) In paragraph 1 of Schedule 2 ‘memorial’ means—
* (a) a building or other structure, or any other thing, erected or installed on land (or in or on any building or other structure on land), or
* (b) a garden or any other thing planted or grown on land, which has a commemorative purpose.
(11B) For the purposes of that paragraph, any moveable thing (such as a bunch of flowers) which—
* (a) is left in, on or at a memorial within the meaning of subsection (11A), and
* (b) has (or can reasonably be assumed to have) a commemorative purpose, is also to be regarded as a memorial.
(11C) For the purposes of subsections (11A) and (11B)—
* (a) references to a building or a structure include a reference to part of a building or part of a structure (as the case may be), and
* (b) something has a commemorative purpose if at least one of its purposes is to commemorate—
*
o (i) one or more individuals or animals (or a particular description of individuals or animals), or
o (ii) an event or a series of events (such as an armed conflict).
(11D) It is immaterial for the purposes of subsection (11C)(b)(i) whether or not any individuals or animals concerned are or were (at any material time)—
* (a) living or deceased, or
* (b) capable of being identified.
(12) Subsection (8) of section 12A of the Theft Act 1968 (which determines when a vehicle is recovered) shall apply for the purposes of paragraph 3 of Schedule 2 to this Act as it applies for the purposes of that section.
Magistrates’ Courts Act 1980, ss. 33 [CASE LAW]
33.—
(1) Wherein pursuance of subsection (2) of section 22 above a magistrates’ court proceeds to the summary trial of an information, then, if the accused is summarily convicted of the offence—
* (a) subject to subsection (3) below the court shall not have power to impose on him in respect of that offence imprisonment for more than 3 months or a fine greater than level 4 on the standard scale; and
* (b) Section 14 of the Sentencing Code 2020 [committal for sentence if the magistrates’ powers of punishment inadequate] shall not apply as regards that offence.
(2) In subsection (1) above ‘fine’ includes a pecuniary penalty but does not include a pecuniary forfeiture or pecuniary compensation.
(3) Paragraph (a) of subsection (1) above does not apply to an offence under section 12A of the Theft Act 1968 (aggravated vehicle-taking).
Committal under the Sentencing Act 2020, s. 14
MC power to allocate EWO to CC
- 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 that the offence is so serious that the Crown Court should have the power to deal with the offender in any way it could deal with the offender if he or she had been convicted on indictment
MC can commit the offender (in custody or on bail) to the Crown Court to be sentenced
Committal for Sentence under the Sentencing Act 2020, s. 18
When D has plead G to EOW and sent for trial for one or more related offences, MC 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 it to be joined:
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.
Committal for Sentence under the Sentencing Act 2020, s. 18
For an EOW, when MC has committed D to CC, the CC can exceed the sentencing powers of the MC ONLY when:
(a) MC stated (under s. 18(4)) 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. 14); or
(b) the offender is convicted by the Crown Court of one or more of the related offences.
Committal under the Sentencing Act 2020, s. 20
gives a power to commit for sentence which may be used to supplement a committal under the provisions listed in s. 20(1), which include
A) committal for sentence under ss. 14 to 19;
B) committal for sentence in respect of the breach of a conditional discharge imposed by the Crown Court (under sch. 2, para. 5(4));
C) and committal where the offender commits a further offence during the operational period of a suspended sentence imposed by the Crown Court (under sch. 16, para. 11(2)).
{These committal powers are referred to below as ‘primary’ committal powers}
By virtue of the SA 2020, s. 20(2),
when a MC 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 20(3) 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. 14, for one either-way offence, a committal under s. 20 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. 14 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. 14 would be inappropriate simply because that section does not extend to summary offences.
All adults accused in criminal cases make their first appearance in the =
MC
If the offence is triable only in the Crown Court =
the accused must be sent to CC
if offence is EWO, accused will only be sent to CC if:
A) trial only if the accused indicates, or is deemed to indicate, a not guilty plea at the ‘plea before venue’ hearing and
B) the allocation (‘mode of trial’) hearing that follows results in a decision in favour of Crown Court trial;
Voluntary bill of indictment, will this be heard at the CC =
yes
other way of securing the Crown Court trial of an accused
Sending cases to the crown court under the crime and disorder act 1998, S. 51
provides that, where an adult appears or is brought before a MC charged with an offence to which these provisions apply=
the court must send the accused ‘forthwith’ to the CC
Sending cases to the crown court under the crime and disorder act 1998, S. 51
these provisions apply where the offence is triable:
only on indictment,
OR where the offence is triable either way and the allocation hearing has resulted in a decision in favour of trial on indictment
either by =
a) MC declined juris
b) accused elected CC
if offence summary = dont need to send to CC
Sending cases to the crown court under the crime and disorder act 1998, S. 51
Sets out various steps which must be taken where the offence is triable either way (unless notice is given under s. 51B or 51C):
[USUAL PROCEDURE]
(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.
Sending cases to the crown court under the crime and disorder act 1998, S. 51
Related Either-way and Summary Offences
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)
IF RELATED OFFENCE IS SUMMARY OFFENCE = it must be 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 + 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
Sending cases to the crown court under the crime and disorder act 1998, S. 51
[CASE LAW]
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’.
In Osman [2017] EWCA Crim 2178, [2018] 1 Cr App R 23 (337), it had to be decided whether the summary offence of failure to surrender (BA 1976, s. 6) was ‘related to’ the indictable offences for which D had been sent for trial. The Court concluded (at [22]):
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 was considered again in Merritt [2019] EWCA Crim 1514. 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 (at [18]) 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 (see D10.29).
If an adult has already been sent to the CC for trial under s. 51(1)
+
then subsequently appears before a MC 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 CC for the EWO or summary offence
(if the offence is a summary one, it is punishable with imprisonment or disqualification from driving)#
discretionary power, NOT a mandatory duty
Sending cases to the crown court under the crime and disorder act 1998, S. 51
Co-accused over age 18
where there are co-accused and one accused elects CC, the MC 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 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
Sending cases to the crown court under the crime and disorder act 1998, S. 51
Co-accused under age 18
if court sends adult to CC under s51 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
or charged with an indictable offence that appears to the court to be related to that offence:
what should the court do?
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 CC 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).
Sending cases to the crown court under the crime and disorder act 1998, S. 51
Where a summary offence is sent to the CC under s51, 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
Under s. 51(13), the functions of a magistrates’ court under s. 51 may be discharged by a single justice.
Sending cases to the crown court under the crime and disorder act 1998, S. 51
Presence of the Accused
at the MC, if accused does not attend:
A) the court may issue an arrest warrant
Sending cases to the crown court under the crime and disorder act 1998, S. 51
Presence of the Accused
[CASE LAW]
In Umerji = COA ruled that MCA 1980, s122 permits the accused to be absent when a case is being sent to the CC under s.51.
Court held even if s. 51 is treated as requiring the accused to be physically present, that requirement is ‘entirely procedural in nature’
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 (at [97]).
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 (at [104]); 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 (at [105]).
The sending of linked summary only offences and the procedure for dealing with them in the Crown Court
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) =
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.
Summary of CJA 1988, S40 :
if specified summary offences such as:
A) common assault (INC BATTERY)
B) assaulting a prisoner custody officer or a secure training centre custody officer,
C) driving while disqualified,
D) taking a motor vehicle without the owner’s consent,
E) and criminal damage where the value involved does not exceed £5,000
IS LINKED TO indictable or EWO
AND IS BEING SEND TO CC =
THEN THESE SUMMARY OFFENCES MUST BE SENT TO CC
ONLY IF summary offence is punishable with imprisonment or involves disqualification from driving.
CJA 1988, S40
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 G PLEA =
the Crown Court may deal with the offender in respect of that offence in any way in which a magistrates’ court could have done;
CJA 1988, S40
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 NG PLEA =
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).
Summary Offences
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 LAW]
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))
In Lewis [2013]
it was emphasised that an indictment including offences pursuant to s. 40 remained valid even if the accused was acquitted of the indictable offence
