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.
239.Paragraphs 15-20 amend the Crime and Disorder Act 1998, Paragraph 17 sets out the order in which a magistrates’ court is to apply various procedures in respect of either-way offences.
240.Paragraph 18 substitutes section 51 of the Crime and Disorder Act 1998 so that it applies not only (as now) to indictable-only offences (and cases related to such offences), but also where an either-way case involving an adult defendant is allocated for trial on indictment. The provisions for sending to the Crown Court related cases against the same defendant or another defendant (including one under 18) are preserved.
241.Paragraph 18 also inserts into the Crime and Disorder Act 1998 new section 51A, which replaces the existing provisions for moving cases where the principal defendant is under 18 to the Crown Court for trial; and new sections 51B and 51C, which subsume the transfer provisions now in section 4 of the Criminal Justice Act 1987 (serious fraud cases) and section 53 of the Criminal Justice Act 1991 (child witness cases) respectively. The procedure in sections 51B and 51C is initiated, as it is now, by the issue of a notice by the prosecutor.
242.Paragraph 19 makes provision for reporting restrictions.
243.Paragraphs 21 to 28 amend the Powers of Criminal Courts (Sentencing) Act 2000. The most important of these concerns the committal to the Crown Court for sentence of offences triable either-way. This power will no longer be available in cases where the magistrates’ court has dealt with the case having accepted jurisdiction (whether as a contested case or a guilty plea) but will be limited to cases where a guilty plea has been indicated at plea before venue.
244.If a defendant is charged with a number of related either-way offences, pleads guilty to one of them at plea before venue and is sent to the Crown Court to be tried for the rest, the existing power in section 4 of the Powers of Criminal Courts (Sentencing) Act 2000 to send the offence to which he has pleaded guilty to the Crown Court for sentence is retained.
245.Part 2 of Schedule 3 contains minor and consequential amendments to various statutes.
