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.
From 1 October 1997 major changes to mode of trial proceedings, introduced by the Criminal Procedure and Investigations Act 1996 2 ("CPIA"), came into affect for all cases in court for the first time, including cases where the defendant is a corporation. The CPIA inserts new sections to the Magistrates' Courts Act 19803, which deal with the new "plea before venue" changes.
A defendant charged with an either way offence will be able to plead guilty and be sentenced in the magistrates' court, unless there is a committal to the Crown Court for sentence. Mode of trial in pre - 1/10/97 form will be preserved only for those cases where the defendant either pleads not guilty, or refuses to state a plea.
Failure to attend the mode of trial hearing
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,4 unless:
their behaviour is too unruly for the court to be able to proceed;5 or,
the court considers that there is a good reason to proceed in their absence and their legal representative signifies their consent,.6
Where the defendant is a company, the court may proceed to determine mode of trial in its absence,7 but is not obliged to do so.
"Plea before venue" procedure
The defendant is identified at the hearing and the charge is read out.
The court clerk will check whether the defendant is aware of the right to advance information. An adjournment may be granted, at the defendant's request, where:
the defendant was not aware of this right;
the defendant has not previously made a request for advance information;
the defendant has made a request but has not yet received the information.8
The clerk will explain to the defendant (if an individual) what plea before mode of trial means, i.e.:-
that the defendant may indicate whether s/he wishes to plead guilty or not guilty;
that if s/he pleads guilty the court will proceed to hear the case as a guilty plea; but
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.
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 plea9. 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 corporation10
The procedure outlined above will take place without hearing any representations from you regarding the seriousness of the offence and whether or not, in your view, the magistrates' powers of punishment are sufficient.
If the defendant pleads guilty, then you will open the case fully. It is at that stage that you should emphasise any aggravating features or particularly serious aspects of the case which lead you to believe it is more suitable for "trial on indictment", i.e. for committal to the Crown Court for sentence. It is up to the justices' clerk to advise them of their sentencing powers and the case will either be dealt with by them, or committed to the Crown Court for sentence.
Mode of trial following not guilty plea
If the defendant pleads not guilty, or fails to indicate how s/he would plead, the pre - 1/10/97 mode of trial provisions will apply. Under this procedure you and then the defendant, will be asked whether summary trial or trial on indictment is more suitable.
When deciding whether to recommend trial on indictment you should consider the factors given in the Enforcement Policy Statement. Note that the decision as to mode of trial should be made on the prosecution version of the facts.11 There are operational procedures to follow if you intend to recommend trial on indictment.
You are entitled to have regard to the delay, additional cost, and possible adverse effect upon witnesses occasioned by proceeding on indictment.12 It should never be recommended if a summary prosecution would suffice.
The prosecution has no right to appeal in cases heard by the Crown Court,13 so where a case raises a point of law, on which HSE might wish to appeal if it were dismissed, summary trial may be in HSE's interest.
If a case is heard by the magistrates, they may nevertheless commit both individuals and companies to the Crown Court for sentence.14
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.
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.15
Where cases involve complex questions of fact or difficult questions of law, the magistrates should consider committal to the Crown Court.16 The defendant's previous convictions are not relevant considerations for the magistrates.17
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.
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 Solicitor'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
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?"18
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)
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.
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
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.
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
Once the "court has begun to try the Information summarily", in the sense of determining the guilt or innocence of the accused,19 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.20 On doing so, they may adjourn.
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.21 In this situation, evidence that has been put before the court in the committal proceedings may be used in the summary trial.22
Re-election by defendant
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.23
Committal for Sentence
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.
Footnotes
MCA 1980, s.19.
CPIA 1996 s.49.
MCA s.17A - s.17C.
MCA 1980, s.18(2).
MCA 1980, s.18(2).
MCA 1980, s.23(1).
MCA 1980. sch.3.
CLA 1977, s.48 and Magistrates' Court (Advance Information) Rules 1983.
MCA 1980 Sched 3 and CJA 1925, S33(6).
CJA1925, s.33(6).
Practice Note (Mode of Trial: Guidelines) [1990] 3 All ER 979.
See Code of Practice for Crown Prosecutors, June 1994.
SCA 1981, s.28.
MCA 1980, s.38, as amended by CJA 1991, s.25.
MCA 1980, s.19. See also ; [1990] 1 WLR 1439.
Practice Note (Mode of Trial: Guidelines) [1990] 3 All ER 979.
Practice Note (Mode of Trial: Guidelines) [1990] 3 All ER 979; [1990] 1 WLR 1439 and R v Colchester Justices, ex parte North Essex Building Co Ltd [1977] 3 All ER 567; [1977] 1 WLR 1109.
MCA 1980, s.20.
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.
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.
MCA 1980, s.25(2) and (4).
MCA 1980, s.28.
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.
