1. On18th June 2012 the Criminal Justice Act 2003 (Commencement No. 28 and Saving Provisions) Order 2012 introduced phased abolition of committal proceedings and mode of trial process in cases where a defendant has pleaded not guilty or declined to indicate a plea. As from 28th May 2013 committal proceedings (except a committal sentence) have been abolished throughout England and Wales and defendants charged with an either way offence will now be subject to a new type of procedure known as the ‘allocation procedure’.
2.At the first hearing the either way charge will be put to the defendant and the defendant will be asked to indicate a plea of guilty or not guilty. If the defendant enters a guilty plea then the Magistrates must decide whether their sentencing powers are sufficient or if the case should be committed to the Crown Court for sentence. If the defendant pleads not guilty or declines to indicate a plea at the Magistrates' court the Court must decide whether to allocate the case to the Magistrates’ Court or Crown Court for trial. This is known as the ‘allocation process’.
3. If the court allocates the case to a Magistrates’ Court for trial, the defendant can nonetheless require trial in the Crown Court
4. Before the Magistrates’ Court makes a decision on allocation it will invite the prosecution and the defence to make submissions on the issue. It is therefore important to prepare submissions on allocation prior to the hearing. In determining allocation the Court will have regard to their sentencing powers and any relevant previous convictions and shall have regard to the allocation guideline issued by the Sentencing Council.
5. The allocation guideline states that, in general, either way offences should be tried summarily unless it is likely that the court’s sentencing powers will be insufficient. It adds that ‘the court should assess the likely sentence in the light of the facts alleged by the prosecution case, taking into account all aspects of the case including those advanced by the defence’
6. The Magistrates’ Court Sentencing Guidelines for the relevant offences should be referred to when allocation decisions are being made. In considering the adequacy of its sentencing powers when dealing with two or more offences, the court should consider its potential sentencing powers in the light of the maximum aggregate sentence the magistrates could impose for all the offences taken together, if the charges could be joined in the same indictment or arise out of the same or connected circumstances.
7. If the court decides that the offence appears more suitable for trial in the Crown Court the defendant must be sent forthwith to the Crown Court. If the court decides that the case is more suitable for summary trial, it must explain to the defendant (a) that the case appears suitable for summary trial; (b) they can consent to be tried summarily or choose to be tried on indictment; and (c) if they consent to be tried summarily and are convicted, they may be committed to the Crown court for sentence. The defendant must then indicate whether it wishes to be tried in the Magistrates’ or the Crown Court.
8. The introduction of the allocation procedure does not change the requirements on service of initial details of the prosecution case, however as committal proceedings have now been abolished there it is no longer a requirement to serve a committal bundle.
9. If a defendant has pleaded guilty and the Magistrates have determined that their sentencing powers are sufficient then where possible they should proceed to sentence the defendant at the first hearing. If this is not possible a future Magistrates’ Court hearing will be fixed for sentence.
10. If a defendant has pleaded guilty and the Magistrates have determined that their sentencing powers are insufficient and committed the case to Crown Court for sentence a Crown Court date for sentence will be identified either by the Magistrates’ Court or at a later date by the Crown Court itself. Where a case is committed to the Crown Court for sentence and a solicitor agent is not instructed you should contact HSE’s Legal Adviser’s office.
11. If a defendant has pleaded not guilty and the Magistrates have allocated the case to the Magistrates’ Court a trial date will be identified and the Court may make directions on matters relating to the trial including the service of additional evidence. After the hearing you should appoint a solicitor agent or refer the case to HSE’s Legal Adviser’s Office if the criteria for referral set out in OC 168/11 are or may be satisfied.
12. If the Magistrates have allocated the case to the Crown Court for trial then the next hearing will be in the Crown Court. Again you should appoint a solicitor agent or refer the case to HSE’s Legal Adviser’s Office if the criteria for referral set out in OC 168/11 are or may be satisfied. The Magistrates will set a timetable for service of the prosecution evidence on the defence and Court before the Plea and Directions Hearing in the Crown Court. Your solicitor agent or Legal Advisers Office (if they are dealing with the case) will advise on the contents of the bundle.