2.3 Allocation and Mode of Trial

2.3 Allocation and Mode of Trial

The Allocation Procedure for Either-Way Offences

When an adult defendant charged with an either-way offence indicates a Not Guilty plea (or declines to indicate a plea) during the Plea Before Allocation procedure, the Magistrates' Court must immediately conduct a formal Allocation and Mode of Trial hearing pursuant to sections 19 to 21 of the Magistrates' Courts Act 1980 (MCA 1980).

Submissions and Allocation Criteria (Section 19 MCA 1980)

Under section 19 MCA 1980, the court hears representations from the prosecution and the defense as to which venue (Magistrates' Court or Crown Court) is more suitable for trial.

• Prosecution Submissions: The prosecutor outlines the facts of the case, highlighting aggravating factors, previous convictions, and whether prosecution considers magistrates' sentencing powers adequate.
• Defense Submissions: The defense advocate makes submissions regarding suitability for summary trial, emphasizing mitigating features or lower factual culpability.
• Statutory Considerations: In making the allocation decision, the court must consider:
  1. The Sentencing Council Allocation Guideline;
  2. Whether the court's sentencing powers (a maximum of 12 months' custody for a single either-way offence under section 224(1A)(b) of the Sentencing Code, since 18 November 2024) would be adequate to deal with the case if the defendant were convicted;
  3. The complexity of any questions of law or fact; AND
  4. Any representations made by the prosecution or defense.

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Magistrates' Allocation Decision & Defendant's Election

Following submissions, the bench of magistrates or District Judge announces the court's allocation decision:

Scenario A: Magistrates Decline Jurisdiction

If the magistrates decide that the offence is too serious for summary trial (i.e., sentencing powers are inadequate) or involves complex issues:

• The court declines jurisdiction.
• Pursuant to section 51A of the Crime and Disorder Act 1998, the court orders that the defendant be sent forthwith to the Crown Court for trial.
• The defendant has no choice or right to request summary trial; the case MUST proceed to the Crown Court.

Scenario B: Magistrates Accept Jurisdiction & Defendant's Right of Election (Section 20 MCA 1980)

If the magistrates decide that the offence is suitable for summary trial:

• The court accepts jurisdiction, but summary trial does NOT happen automatically.
• Under section 20 MCA 1980, the court clerk must address the defendant personally and explain the statutory choice in plain language:
  • The court has decided that the case is suitable for trial in the Magistrates' Court;
  • The defendant has the absolute statutory right to agree to be tried summarily in the Magistrates' Court OR elect to be tried by a jury in the Crown Court.

The Statutory Warning (Section 20(2) MCA 1980)

Before the defendant makes their election under section 20 MCA 1980, the court must warn the defendant, in substance, that even if they consent to summary trial and are convicted, the magistrates may still commit them to the Crown Court for sentence under section 14 of the Sentencing Code. Learn the current statutory test rather than the old formula: under s.14(1)(b) the magistrates may commit where they are 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 have the power to deal with the offender in any way it could deal with the offender if the offender had been convicted on indictment. The pre-Sentencing Code phrasing — "greater punishment than the magistrates have power to impose" — is no longer the wording of the section.

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Tactical Considerations in Mode of Trial Selection

The decision whether to accept summary trial or elect trial by jury in the Crown Court is one of the most critical tactical choices in criminal litigation.

Advantages of the Crown Court (Jury Trial)

• Higher Acquittal Rates: Statistical data consistently shows higher acquittal rates in jury trials compared to summary trials before lay magistrates.
• Evidentiary Rulings & Voir Dire: The Crown Court features formal preliminary hearings (voir dire) before a circuit judge where defense counsel can make complex legal submissions to exclude unfair evidence under section 78 PACE 1984 or hearsay outside the presence of the jury.
• Formal Disclosure Regime: Full statutory disclosure obligations under the Criminal Procedure and Investigations Act 1996 (CPIA 1996) apply rigorously in Crown Court proceedings.

Disadvantages of the Crown Court

• Unlimited Sentencing Exposure: If convicted by a jury, the Crown Court judge is limited only by the statutory maximum sentence for the offence (e.g., 5 years for ABH under s.47 OAPA 1861, 7 years for theft), whereas magistrates are capped at 12 months for a single either-way offence unless they commit for sentence.
• Severe Financial Costs: Convicted Crown Court defendants face substantially higher prosecution cost orders and legal aid defense contributions.
• Delay: Substantially longer waiting times before trial in the Crown Court.

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Special Allocation Rules & Low-Value Shoplifting (Section 22A MCA 1980)

Special statutory provisions modify the standard allocation procedure for specific categories of either-way offences.

Low-Value Shoplifting (Section 22A MCA 1980)

Under section 22A of the Magistrates' Courts Act 1980 (inserted by the Anti-social Behaviour, Crime and Policing Act 2014), where an adult defendant is charged with shoplifting (section 1 Theft Act 1968) and the total value of the goods stolen does not exceed £200:

• Default Classification: Low-value shoplifting is classified as summary-only by default.
• Defendant's Statutory Exception: Before trial commences, the court must give the adult defendant the opportunity to elect trial by jury in the Crown Court.
• Procedural Effect: If the defendant elects jury trial, the offence is treated as an either-way offence and sent to the Crown Court. If the defendant does not elect, the matter remains summary-only and cannot be sent to the Crown Court (nor can the defendant be committed to the Crown Court for sentence upon conviction).

Committal for Sentence (Section 14 & Section 20 Sentencing Code)

Under sections 14 and 20 of the Sentencing Code (Sentencing Act 2020), where an either-way offence is tried summarily in the Magistrates' Court and the defendant is convicted (either by plea or after trial), the magistrates may commit the offender in custody or on bail to the Crown Court for sentence if they are 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 have the power to deal with the offender in any way it could deal with the offender if the offender had been convicted on indictment (s.14(1)(b)).