Plea before venue and allocation
- Electing Mode of Trial
- Failure to attend the mode of trial hearing
- "Plea before venue" procedure
- Defence "right of election" to the Crown Court
- Co-defendants (joint defendants)
- Offences suitable for trial on indictment
- Committal for Sentence
- Offences committed after the 12th March 2015
Co-defendants (joint defendants)
Electing Mode of Trial
1. As from 28th May 2013 committal proceedings (except a committal sentence) were abolished throughout England and Wales and defendants charged with an either way offence are subject to the 'allocation procedure'.
2. Where a defendant has been charged with an offence which is triable either way, the magistrates' court should proceed with plea before venue and allocation. This will decide whether the case will be heard in the magistrates' court or Crown Court (s19 Magistrates' Courts Act (MCA)1980.) You may represent the prosecution at this hearing and will have an important role to play in making representations to the court.
3. The Magistrates' Courts Act 1980 sections 17A- 17C, deals with the "plea before venue" procedure.
4. 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. Allocations 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
5. As the defendant must be asked at plea before venue 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 when a plea is entered, (s 18(2)) unless:
- their behaviour is too unruly for the court to be able to proceed; or,
- the court considers that there is a good reason to proceed in their absence and their legal representative signifies their consent. (s23)
6. Where the defendant is a company, the court may proceed to determine plea before venue in its absence, (MCA sch. 3) but is not obliged to do so.
"Plea before venue" procedure (see below for offences committed after 12th March 2015)
7. 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.
8. The justices' legal adviser will explain the plea before venue procedure to the defendant (if an individual), ie:-
- 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.
9. 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. MCA 1980 Sched 3 and CJA 1925, S33(6).
10. 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.
11. 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 will usually be by reference to the Definitive Guideline for the sentencing of health and safety cases- see the section on the Sentencing hearing for further guidance- which refers to the offence category based on culpability and harm as well as the turnover of the organisation and aggravating/mitigating factors.
12. 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. 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.
13. If the defendant pleads not guilty, or fails to indicate how s/he would plead, all parties should be asked by the court to make representations as to whether the case is suitable for summary trial.
14. The court should refer to definitive guidelines (in health and safety cases this will be the Definitive Guideline referred to above) to assess the likely sentence for the offence 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, including any personal mitigation to which the defence wish to refer.
15. When deciding whether to recommend trial on indictment you should therefore consider the likely application of the Definitive Guideline (see above).
16. The Court will apply the Sentencing Councils Allocation Guideline from 1 March 2016 to determine whether cases should be dealt with by a magistrates' court or the Crown Court. In general, either way offences should be tried summarily unless:
- the outcome would clearly be a sentence in excess of the court's powers for the offence(s) concerned after taking into account personal mitigation and any potential reduction for a guilty plea; or
- for reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court. This exception may apply in cases where a very substantial fine is the likely sentence. Other circumstances where this exception will apply are likely to be rare and case specific; the court will rely on the submissions of the parties to identify relevant cases.
17. For offences committed prior to 12th March 2015 the maximum fine available for convicted defendants in the magistrates' court is £20,000. If consideration of the Definitive Guideline indicates that the starting point is clearly in excess of 20,000 then the Court should consider sending the case to the Crown Court because the likely outcome will be in excess of its powers.
18. Where cases involve complex questions of fact or difficult questions of law, the magistrates should consider allocation to the Crown Court. Many health and safety offences will be factually complex especially if there is detailed technical or expert evidence or, for example, because there are multiple dutyholders which, in the context of the normal cases dealt with in the magistrates' court, may be deemed to be unusually complex. All of that may mean it falls within the second category of cases which the Allocation guideline suggests should be dealt with in the Crown Court.
19. You will be given the opportunity to inform the court of the defendant's previous convictions (if any) and there will be representations by both the prosecution and defence. The court will assess the likely sentence in light of the prosecution case, but will also take into account all aspects of the case including those advanced by the defence.
20. 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.
21. If a case is heard by the magistrates, they may nevertheless commit both individuals and companies to the Crown Court for sentence.
22. 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).
Defence "right of election" to the Crown Court after not guilty plea
23. 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?"
24. 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.
25. If they do agree then the case will be adjourned to a date in the future for trial, but the court will want to fix the trial date straight away so it is important that you are prepared. You will need to have all witnesses' availability to hand and be aware of the issues that are likely to be contested at any trial.
Co-defendants (joint defendants)
26. 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.
27. 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
28. Where magistrates consider offences to be suitable for trial on indictment, the defendant will be sent to the Crown Court forthwith and a date for the first hearing at the Crown Court will be provided. Counsel will then need to be instructed as soon as possible in readiness for the Plea & Case Management Hearing at the Crown Court.
Committal for Sentence
29. There is ordinarily no statutory restriction on committing an either way case for sentence following conviction. The general power of the magistrates' court to commit to the Crown Court for sentence after a finding that a case is suitable for summary trial and/or conviction continues to be available where the court is of the opinion 'that the offence or the combination of the offence and one or more offences associated with it was so serious that the Crown Court should, in the court's opinion, have the power to deal with the offender in any way it could deal with him if he had been convicted on indictment.
30. The court should refer to the Definitive Guideline to arrive at the appropriate sentence taking into account all of the circumstances of the case including personal mitigation and the appropriate guilty plea reduction
Offences committed after 12th March 2015
31. Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force on 12th March 2015. This has the effect of increasing the level of fine available for Magistrates Courts to an unlimited fine (previously £20,000 for most health and safety offences). However, the increase will only apply in respect of offences committed after 12th March 2015. Apart from elements of the allocation procedure (see below) the procedures set out above will still apply.
32. The Sentencing Councils Allocation Guideline, from 1 March 2016, will be used to determine whether cases should be dealt with by a magistrates' court or the Crown Court. See above.
33. It is likely that more cases will be suitable to be dealt with by the Magistrates Court than previously because their powers of sentence will be sufficient. However, applying the allocation guideline, cases of unusual legal, procedural or factual complexity, should be tried in the Crown Court including in cases where a very substantial fine is the likely sentence.
34. Many health and safety offences will be factually complex especially if there is detailed technical or expert evidence or, for example, because there are multiple dutyholders which, in the context of the normal cases dealt with in the magistrates' court, may be deemed to be unusually complex. All of that may mean it falls within the second category of cases which the Allocation guideline suggests should be dealt with in the Crown Court.
35. Similarly if the Definitive Guideline points to a very substantial fine, as it may well do for serious cases, then the magistrates' court should consider sending the case to the Crown Court.
Authorised District Judges
36. The Criminal Practice Direction has been amended by (the Criminal Practice Direction (Amendment No. 2) 2014) so that for offences committed after the 12th March 2015 an authorised District Judge must deal with any allocation decision, trial and sentencing hearing in the following types of cases which are triable either way:
- Cases involving death or significant, life changing injury or a high risk of death or significant, life-changing injury;
- Cases involving substantial environmental damage or polluting material of a dangerous nature;
- Cases where major adverse effect on human health or quality of life, animal health or flora has resulted;
- Cases where major costs through clean up, site restoration or animal rehabilitation have been incurred;
- Cases where the defendant corporation has a turnover in excess of £10 million but does not exceed £250 million, and has acted in a deliberate, reckless or negligent manner;
- Cases where the defendant corporation has a turnover in excess of £250 million;
- Cases where the court will be expected to analyse complex company accounts;
- High profile cases or ones of an exceptionally sensitive nature.
37. Many of HSE's more serious cases are likely to come within these types of cases.
38. The prosecutor should inform the justices' clerk where practicable of any case of the type mentioned above, no less than 7 days before the first hearing to ensure that an authorised District Judge is available at the first hearing.
39. Section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 can be invoked where, despite the magistrates' court having maximum fine powers available to it, the offence or combination of offences make it so serious that the Crown Court should deal with it as though the defendant had been convicted on indictment. As the practice direction makes clear, an authorised District Judge should consider allocating the case to the Crown Court or committing the accused for sentence.