WHY SOME CASES REMAIN IN MAGISTRATES’ COURT AND OTHERS GO TO THE CROWN COURT?
“THE COURT YOUR CASE WILL GO TO DEPENDS ON THE TYPE OF CRIMINAL OFFENCE YOU ARE FACING. THERE ARE 3 TYPES”
TYPES OF CRIMINAL OFFENCES
The overwhelming majority of cases are heard in the Magistrates’ Court, but some cases of a more serious nature can move on to the Crown Court. The court your case will go to depends on the type of criminal offence you are facing. There are 3 types:
1. SUMMARY OFFENCES
(which can be heard only in the Magistrates’ Court);
2. EITHER-WAY OFFENCES
(which can be heard either in the Magistrates’ Court or the Crown Court);
3. INDICTABLE ONLY OFFENCES
(which can be heard only in the Crown Court).
Each type of offence and the court they can be heard in is dealt with in the columns below:
Summary offences are those that can be tried only in the Magistrates’ Court.
Cases in the Magistrates’ Court are usually heard either by a District Judge sitting alone, or by a bench of three Magistrates (Magistrates are sometimes referred to as Justices or Justices of the Peace which is often shortened to JP’s). District Judge sits full time and is a professional lawyer whereas Magistrates sit part-time and are not professional lawyers. For this reason they are often referred to as ‘lay’ Magistrates. They will receive training to carry out their roles as Magistrates and in court will get assistance from a legal adviser (also known as a court clerk or justices’ clerk) who will advise them on the law but will not make decisions for them.
For more information about the Magistrates’ Court and Magistrates’ Court trial click here on What will happen at my Magistrates’ Court trial?
COMMON SUMMARY OFFENCES
Summary offences are generally the least serious types of criminal offence. These include:
- Most motoring offences such as speeding, careless driving, driving whilst disqualified, driving with no insurance, driving when under the influence of drink or drugs, failing to stop or report an accident and failing to give the identity of a driver;
- Offences of violence and public disorder such as common assault and battery, being drunk and disorderly, using threatening behaviour, harassment, stalking and assaulting or obstructing a police constable in the execution of his duty;
- Offences relating to property and property damage at the lower end of the overall scale of seriousness, including vehicle interference, taking a motor vehicle without the owner’s consent (TWOC), squatting in a residential building, aggravated trespass and criminal damage (where the value of the damage is £5,000 or under);
- Certain miscellaneous offences such as TV licence evasion and dishonestly receiving pay TV services with intent to avoid payment.
SENTENCING FOR SUMMARY OFFENCES
Many summary offences do not carry a potential sentence of imprisonment (for example careless driving carries a maximum sentence of a fine, mandatory endorsement of 3 to 9 penalty points and discretionary disqualification) but where the offence in question does carry a potential sentence of imprisonment the maximum prison sentence for a summary offence is 6 months. Some summary offences are restricted to less than 6 months. One example is criminal damage where the value of the damage is £5,000 or less: the maximum sentence available for this is 3 months and/or a £2,500 fine. It is important to remember that just because an offence carries a potential sentence of imprisonment does not mean that prison will follow. For a fuller explanation of sentencing have a look at how sentencing works.
So summary offences are, in general, the least serious offences and they are heard only in the Magistrates’ Court. This means that a person charged with a summary offence cannot go to the Crown Court to have his or her trial heard by a judge and jury.
LOW VALUE SHOPLIFTING
An exception here to the rule that summary offences can only be tried in the Magistrates’ Court is ‘low value shoplifting’ (i.e. theft of goods with a value of £200 or under). Even though this is classified as a summary offence, defendants who are accused of this offence are entitled to elect to go to the Crown Court for trial by jury. The only reason this low value offence is classified as a summary offence is because over 80,000 cases of shop theft come before the courts every year  and this classification allows the police to prosecute without the involvement of the Crown Prosecution Service (i.e. it is quicker, cheaper and cuts down on admin).
 Source: Home Office Guidance: Implementing Section 176 of the Anti-social Behaviour, Crime and Policing Act 2014: Low-value shoplifting. June 2014.
Either-way offences are the mid-level criminal offences ranging from the not so serious to the very serious. They are called ‘either-way’ offences because they can be tried either in the Magistrates’ Court (before a District Judge or Magistrates) or in the Crown Court (before a judge and jury).
COMMON EITHER-WAY OFFENCES
Either-way offences encompass a vast array of offences. These include:
- Offences of dishonesty such as theft, fraud, bribery, most forms of burglary, going equipped for burglary, handling stolen goods, various company and commercial offences, insolvency offences, currency counterfeiting and computer misuse offences;
- Offences of violence or damage such as assault occasioning actual bodily harm (ABH), wounding, grievous bodily harm (GBH), child cruelty, harassment by putting a person in fear of violence, stalking involving fear of violence or serious alarm or distress, making a threat to kill, possession of an offensive weapon in a public place and criminal damage (where the damage value is over £5,000);
- More serious offences of public disorder such as affray and violent disorder;
- Class A to C Drugs offences such as possession of controlled drugs, supply, possession with intent to supply, production and importation;
- Some of the more serious motoring offences such as dangerous driving, causing serious injury by dangerous driving, causing death by careless driving, causing death by driving when unlicensed, disqualified or uninsured and aggravated vehicle taking;
- Certain sexual offences such as sexual assault, exposure, voyeurism, taking and possessing indecent images of children and outraging public decency.
- Numerous regulatory offences relating to trading standards and consumer protection.
MAGISTRATES OR CROWN COURT? ALLOCATION OF EITHER-WAY OFFENCES
The procedure to determine whether the trial of an either-way offence takes place in the Magistrates’ Court or the Crown Court is known as allocation (and also ‘mode of trial’).
There are 2 main reasons why a defendant facing an either-way offence will be sent for trial to the Crown Court:
1. Because the case is deemed too serious to remain in the Magistrates’ Court; or
2. Because the defendant elects trial in the Crown Court.
CASES WHICH ARE TOO SERIOUS TO REMAIN IN THE MAGISTRATES’ COURT
The most important factor in deciding if a case is too serious to remain in the Magistrates’ Court is the likely sentence a defendant will face if found guilty at trial.
In the Crown Court the maximum sentence for an either-way offence is set out in the legislation (the Act of Parliament) that creates that offence. For example, in the Crown Court the offence of theft (an either-way offence contrary to section 1(1) of the Theft Act 1968) has a maximum sentence of 7 years’ imprisonment and/or a fine.
In the Magistrates’ Court, however, the maximum sentence that can be imposed for a single either-way offence is 6 months’ imprisonment and/or a fine. A defendant facing 2 or more either-way offences can be sentenced to a maximum of 12 months’ imprisonment and/or a fine). Taking the same theft example, if a single offence of theft is dealt with in the Magistrates’ Court the maximum sentence that could be imposed is 6 months’ imprisonment and/or a fine, whereas in the Crown Court the maximum is 7 years and/or a fine.
The starting point is that either-way offences should be tried in the Magistrates’ Court, but if the Magistrates/District Judge consider that, if found guilty, the defendant should receive a sentence in excess of their sentencing powers (of 6 months and/or a fine), they will not keep the case but rather will send it to the Crown Court for trial by jury.
On the other hand, if they reach the view that they would have adequate powers to sentence the defendant (i.e. their maximum of 6 months and/or a fine is sufficient), then the magistrates/District Judge inform the defendant that the case can remain in the Magistrates’ Court (known as being ‘suitable for summary trial’). The defendant can accept this and have his trial in the magistrates’ court or he/she can elect trial in the Crown Court (because for either-way offences the defendant always has a right, if he or she so chooses, to trial by jury).
Staying with the theft example, there can be numerous examples of theft, from simple shoplifting or pickpocketing (both of these are types of theft) involving taking money or goods of relatively low value, to large scale theft from an employer or business customer involving millions of pounds. At one end of the scale, a single offence of pickpocketing of a small sum of money by a defendant who has never been in trouble before will be suitable to remain in the Magistrates’ Court, whereas at the other end of the scale a theft of millions of pounds will merit a sentence significantly in excess of the Magistrates’ Court powers and will be sent to the Crown Court.
HOW THE MAGISTRATES OR DISTRICT JUDGE ASSESS THE LIKELY SENTENCE?
To determine what the likely sentence is going to be the Magistrates will consult what is known as the Allocation Guideline (available on the Sentencing Council website). This, in turn, requires the court to look at Sentencing Guidelines for the specific type of offence which the defendant faces. You can read our guide to Sentencing Guidelines here.
ELECTING TRIAL IN THE CROWN COURT
Even if the Magistrates/District Judge are content for the case to remain in the Magistrates’ Court, the defendant is still entitled to elect trial by jury in the Crown Court. If an election for Crown Court trial is made by a defendant the case is sent to the Crown Court for trial. You can read about the pros and cons of Crown Court trial here in Should I elect trial by jury?.
CASES SENT FOR TRIAL TO THE CROWN COURT
The vast majority of criminal cases that go to court, including either-way offences, remain in the Magistrates’ court.
However, if the Magistrates/District Judge reach the view that the their sentencing powers are not sufficient or for some other reason the case is too serious to remain in the Magistrates’ Court, they will inform the defendant of this and send the case for trial to the Crown Court. Both the prosecution and the defence are entitled to address the court on allocation issues before the final decision is made (i.e. as to why they say the case should stay in the magistrates’ court or go up to the Crown Court), but the defendant cannot elect to remain in the Magistrates’ Court once a decision is taken to send the case to the Crown Court.
COMMITTAL FOR SENTENCE TO THE CROWN COURT
Even if the District Judge/Magistrates allow an either-way offence to be tried in the Magistrates’ Court and the defendant is found guilty, they still reserve the power to commit for sentence to the Crown Court if they decide that their sentencing powers are insufficient due to the seriousness of the offence. This could happen, for example, when something occurs during the trial itself to lead the District Judge/Magistrates to consider that the offence is more serious than they originally thought.
Similarly, a defendant who indicates a guilty plea to an either-way offence in the Magistrates’ Court will also be committed for sentence to the Crown Court where the magistrates’/District Judge consider their sentencing powers are insufficient. This means that the defendant will be sentenced by a judge in the Crown Court where the sentencing powers are much greater.
INDICTABLE ONLY OFFENCES
Indictable only offences are those that can only be tried in the Crown Court. They are the most serious offences on the criminal calendar.
Because indictable only offences can only be tried in the Crown Court a defendant charged with an indictable only offence cannot have a trial at the Magistrates’ Court. All cases start at the Magistrates’ Court but at their first appearance a defendant facing an indictable only offence will simply be sent directly to the Crown Court.
COMMON INDICTABLE ONLY OFFENCES
Indictable only offences include:
- The most serious offences of violence including murder, attempted murder, manslaughter; grievous bodily harm with intent/wounding with intent to cause grievous bodily harm, robbery, aggravated burglary, possession of a firearm with intent, explosives offences and arson with intent to endanger life/arson being reckless as to whether life is endangered.
- The most serious motoring offences are indictable only, such as causing death by dangerous driving and causing death by careless driving when under the influence of drink or drugs.
- Many sexual offences involving penetration are indictable only offences including the offence of rape.
- Other common law offences: perverting the course of justice, perjury, escape from custody, kidnapping, false imprisonment, cheating the public revenue.
INDICTABLE AND SUMMARY ONLY OFFENCES TRIED TOGETHER
Summary offences must be tried in the Magistrates’ Court, either-way offences can be tried in the Magistrates’ or Crown Court, and indictable only offences must be tried in the Crown Court.
What happens if a defendant is charged with an indictable only offence or an either-way offence (collectively known as ‘indictable’ offences) and is going to the Crown Court for trial, but he also faces a summary only offence? Will the summary only offence have to stay in the Magistrates’ Court or will it join the more serious offence in the Crown Court?
- The first question to ask is, is the summary only offence connected to the either-way offence (i.e. does it arise out of the same facts or is it of the same or similar character)? If no, it must tried in the Magistrates’ Court. If yes, ask:
- Is the summary only offence a common assault, an assault of a prison/secure training centre custody officer, a taking of a vehicle without the owner’s consent (TWOC), a driving whilst disqualified or a criminal damage where the damage value is £5000 or under? If yes, it can be tried together with the more serious offence in the Crown Court. If no, ask:
- Is the summary offence punishable with imprisonment or disqualification from driving? If no, it must be tried in the Magistrates’ Court. If yes, the summary offence can go to the Crown Court not for trial but for plea, i.e. for the defendant to enter a plea of guilty or not guilty. If the plea is guilty to the summary offence, it will be sentenced at the end of the trial for the more serious offence. If the plea to the summary offence is one of not guilty, it will not be tried at the Crown Court but can be sent back to the Magistrates’ Court for a trial at a later date.