All criminal cases start life in the Magistrates’ Court, but some will go up to the Crown Court for trial or sentencing. Offences will be tried in the Crown Court if they are:
- Indictable only, or
- Triable either way and the mode of trial hearing in the Magistrates’ Court results in the decision that the case should be tried in the Crown Court
- Triable either way and the defendant chooses trial by jury in the Crown Court
In these situations, the case will be moved from the Magistrates’ Court to the Crown Court.There are FOUR ways in which this can happen:
- Allocation procedure
- ‘Sent’ under section 51 of the Crime and Disorder Act 1998 (currently available for indictable only offences)
- Notice of Transfer
- A Voluntary Bill of Indictment
As to whether or not either way offences should be tried by the magistrates or in the Crown Court, the general principle is that they should be tried by the magistrates, unless certain exceptions apply. Those exceptions include where the outcome would clearly be a higher sentence than what the magistrates can pass; or because of reasons of unusual legal, procedural or factual complexity. In deciding the appropriate venue, the magistrates must consider issues of personal mitigation – and a potential reduction for a guilty plea.
Section 51 of the Crime and Disorder Act (CDA) 1998
All indictable only offences start in the magistrates’ court. They will usually be sent to the Crown Court at the first Magistrates’ Court hearing. Section 51 and Schedule 3 CDA 1998 set out the procedure to be followed.
Section 51 (and Sch 3) state that where an adult appears or is brought before the Magistrates’ Court charged with an offence triable only on indictment, the court will send him straight to the Crown Court for trial:
- for that offence, and
- for any either-way or summary offence with which he is charged which fulfils the requisite condition
In addition, under s51 the magistrates may send to the Crown Court:
- A defendant who has already been sent to the Crown Court in respect of an indictable only matter and who is subsequently charged with a related either way offence
- Adult co-defendants charged with a related triable either way offence but who appear subsequent to a defendant already sent to the Crown Court
- Juveniles jointly charged with an adult with an indictable only offence where the magistrates consider it in the interests of justice for the juvenile to be tried jointly, and
- Juveniles sent to the Crown Court by reason of the above in respect of any related either way or summary only offence
Notice of Transfer
In certain circumstances, a case may be quickly passed to the Crown Court by way of a Notice of Transfer.Under section 4(1) of the Criminal Justice Act 1988, the prosecution may simply serve a notice on the defendant, transferring the case to the Crown Court in the case of serious fraud cases and child witness cases.
A Voluntary Bill of Indictment
The prosecution may, in certain circumstances, obtain a Voluntary Bill of Indictment from a High Court judge. It is a procedure to bring a case to the Crown Court in circumstances where, for instance, the Crown believe the magistrates wrongly decide to try the case in the Magistrates’ Court, or whether there are other good reasons to depart from the normal process.
Moving to Trial
Cases are sent to the most convenient Crown Court, ie. convenient to parties and witnesses thus expediting the trial. This usually means the Crown Court closest to the Magistrates’ Court where the defendant first appears.
The Crown Court has the power to alter the place of trial and can take into account wider considerations than the magistrates in selecting a suitable location, for instance, possible prejudice to the accused if the charges have given rise to public hostility in the local area.