Mode of trial hearing

• Electing Mode of Trial
• Failure to attend the mode of trial hearing
• "Plea before venue" procedure
• Mode of trial following not guilty plea
• Defence "right of election" to the Crown Court
• Co-defendants (joint defendants)
• Offences suitable for trial on indictment
• Changing mode of trial
• Re-election by defendant
• Committal for Sentence

Co-defendants (joint defendants)

Electing Mode of Trial

1. Where a defendant has been charged with an offence which is triable either way, the magistrates' court must hold a "mode of trial" hearing at which a decision is made as to whether the case will be heard in the magistrates' court or Crown Court.¹ You may represent the prosecution at this hearing and will have an important role to play in making representations to the court.

2. The Magistrates' Courts Act 1980 ², deals with the "plea before venue" procedure.

3. A defendant charged with an either way offence can plead guilty and be sentenced in the magistrates' court, unless there is a committal to the Crown Court for sentence.  Mode of trial hearings apply to those cases where the defendant either pleads not guilty, or refuses to state a plea.

Failure to attend the mode of trial hearing

4. Because the defendant must be asked at the mode of trial hearing where s/he wishes the case to be tried, the court cannot proceed in the absence of an individual defendant. Therefore the defendant must normally be present at the mode of trial proceedings,³ unless:

• their behaviour is too unruly for the court to be able to proceed ⁴ or,
• the court considers that there is a good reason to proceed in their absence and their legal representative signifies their consent. ⁵

5. Where the defendant is a company, the court may proceed to determine mode of trial in its absence,⁶ but is not obliged to do so.

"Plea before venue" procedure

6. The defendant is identified at the hearing and the charge is read out.

• The justices' legal adviser will check whether the defendant has received the initial details of the prosecution case.  An adjournment may be granted, at the defendant's request, where he/she has not received the initial details of the prosecution case.

7. The justices' legal adviser will explain to the defendant (if an individual) what plea before mode of trial means, i.e.:-

• Will read the allegation of the offence to the defendant;
• Will explain the allegation and the procedure for the hearing;
• Will ask whether the defendant has been advised about the potential effect on sentence of a guilty plea;
• Will explain that if s/he pleads guilty the court will proceed to hear the case as a guilty plea; but
• Will explain that if s/he pleads guilty s/he may still be committed for sentence to the Crown Court if the magistrates consider their powers of punishment insufficient.

8. The court will then ask the defendant whether s/he would plead guilty or not guilty. If the defendant is a corporation, a representative of the corporation may indicate the plea ⁷. That representative must have a written statement, signed by the managing director or other person having the management of its affairs, appointing the representative to act for the corporation ⁸

9. The procedure outlined above will take place without hearing any representations from the prosecutor regarding the seriousness of the offence and whether or not, the prosecution consider that, the magistrates' powers of punishment are sufficient.

10. If the defendant indicates a guilty plea, then the prosecutor will open the case fully and the court will proceed as if the defendant had been convicted of the offence and consider sentence. It is at that stage that the prosecutor should emphasise any aggravating features or particularly serious aspects of the case which may mean that the Magistrates powers of sentence are insufficient. This may be by reference to sentencing guideline cases such as  R v F Howe & Son (Engineers) Ltd ⁹ as well as the Magistrates Courts Sentencing Guidelines (pages 181- 183) ¹⁰ and, (when the offence was a significant cause of a death) ,the Sentencing Guideline Council’s guideline. The prosecutor may also advise the magistrates what their representations on venue would have been, had a not guilty or no indication of plea been entered and the plea before venue procedure had taken place. ¹¹ The court will then decide whether or not to deal with the case themselves or (if the court is of the opinion that the sentencing powers of the magistrates court are not sufficient) to commit for sentence to the Crown Court.

11. The Magistrates Court sentencing guidelines (see above) indicate that offences under the HSWA are serious and “particular care needs to be taken to when considering whether to accept jurisdiction or to commit a case to the Crown Court especially when the defendant is a large company.

12. Cases involving a fatality will not be suitable for sentence in the Magistrates Court when the prosecution say that the offence was a significant cause of the death (see link to sentencing guideline above) as the appropriate fine will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more.

Mode of trial following not guilty plea

13. If the defendant pleads not guilty, or fails to indicate how s/he would plead, the prosecution and then the defendant, will be asked whether summary trial or trial on indictment is more suitable.

14. When deciding whether to recommend trial on indictment you should consider the factors given in the Enforcement Policy Statement including sentencing guidelines and case law (see paragraph 10 above).  You can refer to these when making your representations and relate them to the facts of your case. Note that the decision as to mode of trial should be made on the prosecution version of the facts. When dealing with a fatality where it is proved that the offence was a ‘significant cause of death’ not simply that death occurred, the Sentencing Guidelines Council on Corporate Manslaughter & Health and Safety Offences Causing Death apply.  In these circumstances the appropriate fine will seldom be less than £100,000, therefore it is difficult to envisage when such cases would be suitable to be dealt with on summary trial in the magistrates court.

15. You are entitled to have regard to the delay, additional cost, and possible adverse effect upon witnesses occasioned by proceeding on indictment. but prosecutors should recommend Crown Court trial when they are satisfied that the guidelines require them to do so.¹²

16. If a case is heard by the magistrates, they may nevertheless commit both individuals and companies to the Crown Court for sentence. ¹³

17. If you think that the case should proceed on summary trial, you should simply say so (but the magistrates may require you to go into further details). If you recommend trial on indictment, but you know that the defendants are seeking summary trial, then you should give your reasons for your recommendation (although you must not mention the defendant's previous convictions). You may exceptionally mention previous advice etc, if it makes the defendant more culpable. This is discussed further below.

18. The magistrates must then decide which mode of trial appears most suitable. In making this decision they will take into account the representations made by you and the defence. They will also consider the nature of the case, any circumstances which make the offence one of a serious character, whether the penalty that the magistrates could inflict would be adequate, and any other relevant circumstances (Practice Direction (Criminal Procedings:Consolidation) [2002]).

19. Where cases involve complex questions of fact or difficult questions of law, the magistrates should consider committal to the Crown Court. The defendant's previous convictions are not relevant considerations for the magistrates.¹⁴

20. However, exceptionally there may be circumstances when previous advice or enforcement action other than criminal proceedings would assist the court in determining the seriousness of the case and whether the court's powers of punishment are adequate.

21. The difficulty is whether these matters are admissible and if so whether their prejudicial effect outweighs their probative value. Whenever these circumstances are envisaged, the Legal Adviser’s Office should be consulted before such submissions are made to the court.

Defence "right of election" to the Crown Court after not guilty plea

22. Where the magistrates consider the offence is suitable for summary trial, the defendant is told of this, and warned that, even after a summary trial, the magistrates may nevertheless send the defendant to the Crown Court for sentence where they feel the offence merits greater punishment than they have the power to impose. The defendant will then be asked: "Do you wish to be tried by this court or do you wish to be tried by a jury?" ¹⁵

23. A defendant therefore has to agree to a summary trial if this is the course of action to be followed, but has the right to "elect" or choose jury trial. In simple terms this means that the defendant still has the choice to elect a Crown Court trial even if the magistrates' court decides that a case is suitable for summary trial.

Co-defendants (joint defendants)

24. It is not always clear to the court that the prosecution regards defendants as co-defendants or that the cases are linked. If this is the case, make sure you bring it to the attention of the court.

25. Where more than one defendant has been involved with an event which gives rise to a prosecution you should be prepared to argue that the circumstances of each defendant's involvement are so inextricably linked with the others that the charges should be heard together in order to save time and allow the court to decide relative degrees of blame.

Offences suitable for trial on indictment

26. Where magistrates consider offences to be suitable for trial on indictment, the defendant will be so informed, and has no right to insist on summary trial.

27. The magistrates may then immediately proceed to committal proceedings, or can adjourn the case if more time is needed to prepare for committal. If legal advice has not been obtained on the committal bundles, or a solicitor agent has not been appointed, you should ask for the case to be adjourned for six to eight weeks.

Changing mode of trial

28. Once the "court has begun to try the Information summarily", in the sense of determining the guilt or innocence of the accused, ¹⁶ the magistrates may at any time before the conclusion of the prosecution evidence, decide to discontinue the summary trial and instead sit as examining justices and hold committal proceedings.¹⁷ On doing so, they may adjourn.

29. Similarly, at any time during the magistrates' court inquiry as examining justices (i.e. during committal proceedings), they may decide that the case is more suitable for summary trial and, with the consent of the defendant, may change to trying the case summarily.¹⁸ In this situation, evidence that has been put before the court in the committal proceedings may be used in the summary trial.¹⁹

Re-election by defendant

30. Magistrates have a discretion to allow a defendant to change the original election of mode of trial. The test to be applied is whether the defendant properly understood the nature and significance of the choice being made when originally electing summary or Crown Court trial.²⁰

Committal for Sentence

31. If the defendant pleads guilty at a magistrates' court, and the court determines that the sentence should be greater than it has power to impose, the defendant will be committed to the Crown Court for sentence.

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Footnotes

1. MCA 1980, s.19.
2. MCA s.17A - s.17C.
3. MCA 1980, s.18(2).
4. MCA 1980, s.18(2).
5. MCA 1980, s.23(1).
6. MCA 1980. sch.3.
7. MCA 1980 Sched 3 and CJA 1925, S33(6).
8. CJA1925, s.33(6).
9. [1999] 2 A;; ER 249
10. Sentencing Guidelines Council - Magistrates’ Court Sentencing Guidelines - Definitive Guideline
11. Sentencing Guidelines Council - Corporate Manslaughter & Health and Safety Offences Causing Death - Definitive Guideline
12. See Code for Crown Prosecutors 2013
13. Section 3 Powers of Criminal Court (Sentencing Act) 2000
14. Practice Direction (Criminal Procedings:Consolidation) [2002] and R v Colchester Justices, ex parte North Essex Building Co Ltd [1977] 3 All ER 567; [1977] 1 WLR 1109.
15. MCA 1980, s.20.
16. R v Birmingham Stipendiary Magistrate, ex parte Webb (1992) 95 Cr. App. R. 75. If a guilty plea has been entered, the magistrates have not "begun to try the information" and they cannot then change to sitting as examining justices.
17. MCA 1980, s.25(2), as amended by The Public Order Act 1985 (POA), schs.1 and 2, and CJA 1991, s.68 and sch.8, para.6(1)(a). They should not use this power to avoid the decision in Nicholls v Brentwood Justices and the individual right of election of summary trial of each accused, just because 2 out of 3 co-defendants had elected Crown Court trial, and the magistrates wish all to be tried together: R v West Norfolk Justices, ex parte McMullen [1993] 157 JPN 250, DC.
18. MCA 1980, s.25(2) and (4).
19. MCA 1980, s.28.
20. R v Birmingham Justices, ex parte Hodgson [1985] 2 All ER 193; R v Highbury Corner Metropolitan Stipendiary Magistrate, ex parte Weekes [1985] 2 WLR 643: an unrepresented accused who originally pleaded guilty was unlikely to have directed their mind to where they wished to be tried.