Commentary on Sections Part 6: Allocation and Transfer of Offences Section 41: Allocation of offences triable either way, and sending cases to Crown Court
230.Section 41 introduces Schedule 3, Part 1 of which sets out (through amendments to existing statutes) how it is to be decided whether cases triable either way should be tried summarily or on indictment, and provides for the sending to the Crown Court of those cases which need to go there.
Amendments to the Magistrates’ Courts Act 1980.
231.Paragraphs 3 and 4 of Schedule 3 clarify that the preliminary stages of an either-way case, including the plea before venue and allocation procedures, may take place at a hearing before a single justice. But a single justice may not conduct a contested trial, nor – whilst he may take a guilty plea – may he impose a sentence on the offender. Paragraph 3 also limits the sentence that may be imposed where a person pleads guilty to a low-value offence.
232.Paragraph 5 substitutes section 19 of the Magistrates’ Courts Act 1980, which makes provision for the procedure to be followed by a magistrates’ court in deciding whether a case involving an offence triable either way to which the defendant has not indicated a guilty plea should be tried summarily or on indictment. The new procedure (‘allocation’) differs from the present one in that the court is to be informed about, and take account of, any previous convictions of the defendant in assessing whether the sentencing powers available to it are adequate. The court is to have regard, not only (as now) to any representations made by the prosecution or defence, but also to allocation guidelines which may be issued by the Sentencing Guidelines Council under section 170.
233.Paragraph 6 substitutes section 20 of the Magistrates’ Courts Act 1980 which sets out the procedure to be followed by the magistrates’ court where it decides that a case is suitable for summary trial. As now, defendants will be told that they can either consent to be tried summarily or, if they wish, be tried on indictment. In making that decision they may be influenced by the knowledge that, since it will generally no longer be possible to be committed for sentence to the Crown Court once the magistrates have accepted jurisdiction, they cannot receive a sentence beyond the magistrates’ powers. Moreover, defendants are to have the opportunity of requesting an indication from the magistrates whether, if they pleaded guilty at that point, the sentence would be custodial or not.
234.The magistrates’ court will have a discretion whether or not to give an indication to a defendant who has sought one. Where an indication is given, defendants will be given the opportunity to reconsider their original indication as to plea. Where a defendant then decides to plead guilty, the magistrates’ court will proceed to sentence. A custodial sentence will be available only if such a sentence was indicated, and if so – unlike after a guilty plea indication under s17A or 17B – the option of committal to the Crown Court for sentence under s3 of the Powers of Criminal Courts (Sentencing) Act 2000 will not be available, although committal for sentence under section 3A of that Act will be available where the criteria for an extended sentence or a sentence for public protection appear to be met.
235.Otherwise (i.e. where the defendant declines to reconsider his plea indication, or where no sentence indication is given) the defendant will be given the choice between accepting summary trial or electing trial on indictment, as at present. Where an indication of sentence is given and the defendant 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 defendant elects trial on indictment.
236.Paragraph 7 substitutes section 21 in the Magistrates’ Courts Act 1980 so that, where the court decides that trial on indictment appears more suitable, it will proceed to send the case to the Crown Court in accordance with section 51(1) of the Crime and Disorder Act 1998.
237.Paragraph 10 adds four new sections (24A-24D) to the Magistrates’ Courts Act 1980 which apply a procedure akin to that in sections 17A-17C (‘plea before venue’) to cases involving defendants who are under 18. It would apply in certain cases where it falls to the court to decide whether the defendant should be sent to the Crown Court for trial, whether in his or her own right, or for joint trial with an adult defendant.
238.Paragraph 11 amends section 25 of the Magistrates’ Courts Act 1980. The current power to switch between summary trial and committal proceedings is abolished, and in its place there is a new power for the prosecution to apply for an either-way case which has been allocated for summary trial to be tried on indictment instead.