Martha Whitehead, Specialist Criminal Solicitor, considers the issue of which court will hear a defendant’s case in the context of the new allocation guidelines.
The phrase “Trial by Judge and Jury” describes how defendants cases are determined but for the large majority of criminal cases there is no judge and no jury. These cases are dealt with summarily by the magistrates’ court. Some cases are limited to the magistrates’ court such as common assault. Some at the most grave level must pass directly to the crown court such as murder. There are then a large number of offences which are capable of being dealt with in either the magistrates’ or crown court these are being known as “either way offences” such as assault causing actual bodily harm.
Sentencing Council Allocation Guidelines
The decision about where to resolve these “either way” offences starts in the magistrates’ court. The Sentencing Council have very recently published new guidelines on this allocation procedure which will come into effect on 1 March 2016. The decision making process is guided by the principle that in general either way cases should be tried there unless exceptions apply. The exceptions concern whether the likely outcome would be a sentence in excess of the magistrates’ powers or unusual legal, procedural or factual complexity.
The new guidelines now specify that the court deciding upon venue must take into personal mitigation and potential reduction for a guilty plea. These were not previously areas the court would take into account when considering venue.
Sir Brian Leveson’s ‘Review of Efficiency in Criminal Proceedings’
Usually the Sentencing Council produce guidelines on the level of sentence for particular offences but the new guidelines solely direct which court deals with the case for trial and for sentence. These guidelines follow from recommendations in Sir Brian Leveson’s ‘Review of Efficiency in Criminal Proceedings’. It is anticipated that the new guidelines will result in a larger proportion of cases being retained in the magistrates’ court where cases are dealt with in less time. This is said to benefit victims and witnesses and leads to greater efficiency in the criminal justice system.
Magistrates’ Court Closures
The Sentencing Guidelines Council do not quantify the change they anticipate in the work load of the magistrates’ courts but refer to more cases being heard at magistrates’ courts. This will have an impact on the courts in areas where the government also propose the closure of magistrates’ courts and the moving of work to other courts. For example in Greater Manchester it is proposed that 4 magistrates’ courts at Bury and Rochdale, Oldham, Stockport and Trafford are closed.
Legal Aid and Privately Funded Defendants
For those pleading NOT guilty and intending to test the evidence brought against them there will be increasing pressure to keep their case in the magistrates’ court. If the defendant is informed that the Magistrates are prepared to hear a case as the guidelines will more frequently direct, then they may be encouraged to choose this court. Legal aid payments are very restricted for cases where the defendant has elected crown court trial. It would not be surprising if some representatives of the accused encouraged defendants to keep their case at the magistrates’ court as the payment scheme for crown court cases in many cases does not allow proper preparation. If this were to happen then electing crown court trial may become increasingly restricted to privately paying defendants and the wealth of the defendant may come to be an important factor in trial venue.
Martha Whitehead – Specialist Criminal Defence Lawyer
Written by Martha Whitehead, Solicitor. Martha has over 20 years of experience as a criminal lawyer specialising in the defence of serious criminal allegations.