1.3 Classification of Offences, Court Jurisdiction & Funding
Key Takeaways
- Offences are classified as summary-only, triable either way, or indictable only, and the classification alone dictates which court may try the case.
- The BSB syllabus names the offences whose classification you must know cold: theft, robbery, burglary, fraud, sexual assault, rape, common assault, ABH, GBH/wounding under sections 18 and 20 OAPA 1861, criminal damage, and possession, possession with intent and supply of Class A and B drugs.
- Criminal damage worth £5,000 or less must be tried summarily with a maximum of 3 months' imprisonment, but arson is excluded from that special procedure and remains triable either way whatever its value.
- Advice and assistance at the police station under the duty solicitor scheme is free and is neither means-tested nor merits-tested, unlike a representation order for court proceedings.
- A representation order requires both an interests-of-justice (merits) test and a means test; in the Crown Court every defendant passes the interests-of-justice test, but income and capital contributions may still be ordered.
1.3 Classification of Offences, Court Jurisdiction & Funding
Topic 1 of the BSB syllabus is largely explanatory scaffolding — but it carries one hard, examinable duty. The syllabus states that "for the purposes of the assessment students will be required to know the classification of the following offences: theft, robbery, burglary, fraud, sexual assault, rape, common assault, ABH, GBH/wounding contrary to sections 18 and 20 OAPA 1861, criminal damage and possession, possession with intent and supply of Class A and B drugs." Classification is the hinge on which almost every procedural SBA turns: it decides whether a plea can be taken, whether allocation happens, whether the defendant can elect jury trial, and what the sentencing ceiling is.
1. The three classes
| Class | Where tried | Route |
|---|---|---|
| Summary only | Magistrates' court only | Plea taken at the first hearing; trial in the magistrates' court |
| Triable either way | Magistrates' court or Crown Court | Plea before venue (s.17A MCA 1980), then allocation (ss.19–21) if not guilty |
| Indictable only | Crown Court only | Sent forthwith under s.51 CDA 1998; no plea is taken in the magistrates' court |
"Indictable offence" is a wider expression than "indictable only": it covers both indictable-only and either-way offences. That distinction is examined directly — for example, the power to delay access to legal advice under s.58 PACE and the power to arrest without warrant both key off "indictable offence", and therefore extend to either-way offences.
2. The syllabus offences, fixed
| Offence | Statute | Class | Maximum on indictment |
|---|---|---|---|
| Theft | Theft Act 1968, s.1 | Either way | 7 years |
| Robbery | Theft Act 1968, s.8 | Indictable only | Life |
| Burglary | Theft Act 1968, s.9 | Either way (indictable only where the burglary is of a dwelling and a person there was subjected to violence or the threat of violence, or where it comprised or was intended to comprise an indictable-only offence) | 14 years (dwelling); 10 years (other) |
| Fraud | Fraud Act 2006, s.1 | Either way | 10 years |
| Sexual assault | Sexual Offences Act 2003, s.3 | Either way | 10 years |
| Rape | Sexual Offences Act 2003, s.1 | Indictable only | Life |
| Common assault / battery | Criminal Justice Act 1988, s.39 | Summary only | 6 months (summary) |
| Assault occasioning ABH | OAPA 1861, s.47 | Either way | 5 years |
| Wounding / inflicting GBH | OAPA 1861, s.20 | Either way | 5 years |
| Wounding / causing GBH with intent | OAPA 1861, s.18 | Indictable only | Life |
| Criminal damage | Criminal Damage Act 1971, s.1(1) | Either way, but see the £5,000 rule below | 10 years |
| Simple possession, Class A / Class B | Misuse of Drugs Act 1971, s.5(2) | Either way | 7 years (A) / 5 years (B) |
| Possession with intent to supply, and supply | Misuse of Drugs Act 1971, ss.5(3), 4(3) | Either way | Life (A) / 14 years (B) |
Three traps live in that table:
- s.18 versus s.20. Both are "GBH", but s.18 requires intent and is indictable only with a life maximum; s.20 is either way with a five-year maximum. Any SBA that sends a "GBH" defendant to the Crown Court without a plea is testing whether you spotted the s.18 label.
- Common assault is summary only — so it cannot be sent under s.51 in its own right, only as a linked summary offence. (Racially or religiously aggravated common assault under s.29 Crime and Disorder Act 1998 is either way, and is a different offence.)
- Rape and robbery are indictable only. The magistrates take no plea at all: the case is sent forthwith.
The criminal damage £5,000 rule
Under s.22 MCA 1980, where the value involved in a criminal damage charge is £5,000 or less, the court must proceed as if the offence were summary only: there is no allocation, no right to elect Crown Court trial, and the maximum is 3 months' imprisonment or a fine at level 4. Where the value is unclear the defendant may consent to summary trial on that footing. Arson is expressly excluded and remains triable either way whatever the damage, as is criminal damage with intent to endanger life.
3. The criminal courts
- Magistrates' court. A bench of lay justices (usually three, minimum two for a trial) advised on law, procedure and sentencing by a legally qualified justices' legal adviser, or a District Judge (Magistrates' Courts) sitting alone. In the magistrates' court the bench is the tribunal of both law and fact.
- Youth court. A specialist magistrates' court sitting apart from the adult court, with a restricted-attendance rule and reporting restrictions.
- Crown Court. A single court, sitting in centres. Trials on indictment are heard by a High Court judge, a Circuit judge or a Recorder, with a jury of 12 as the sole tribunal of fact. On an appeal from the magistrates' court or a committal for sentence the judge sits with two lay justices, and the justices are full members of the court on questions of fact and sentence.
- High Court (Divisional Court of the King's Bench Division). Hears appeals by way of case stated and applications for judicial review from the magistrates' court and from the Crown Court in its appellate capacity — but not in relation to matters relating to trial on indictment (s.29(3) Senior Courts Act 1981).
- Court of Appeal (Criminal Division). Hears appeals from the Crown Court against conviction and sentence, with leave.
- Supreme Court. Hears appeals from the CACD and from the Divisional Court where a point of law of general public importance is certified and leave is given.
4. Funding criminal cases
At the police station. Advice and assistance from a solicitor under the duty solicitor scheme is free to the suspect, and is neither means-tested nor merits-tested. This is why an SBA about a suspect "who cannot afford a lawyer" almost never turns on funding.
In court — the representation order. Criminal legal aid for proceedings is granted by way of a representation order, which requires two tests to be satisfied:
- The interests of justice (merits) test. The statutory factors — descended from the Widgery criteria — include whether the individual would be likely to lose their liberty, livelihood or reputation; whether a substantial question of law is involved; whether the individual is unable to understand the proceedings or state their own case; whether tracing, interviewing or expert cross-examination of witnesses is required; and whether it is in the interests of another person that the individual be represented.
- The means test. In the magistrates' court the means test is pass/fail: an applicant who is in receipt of a passporting benefit, or under 18, qualifies automatically; others are assessed on gross annual and disposable income. In the Crown Court every defendant is treated as passing the interests-of-justice test (because the case is by definition serious enough), but means assessment may require income contributions during the case and a capital contribution at its end. A defendant acquitted in the Crown Court has any contributions repaid with interest.
Because a representation order can be refused on means, the correct answer to "what should counsel advise?" is often that the defendant applies, and — if refused on the merits in the magistrates' court — may renew the application or appeal it, rather than that the court must appoint counsel.
Exam traps in this section
- "Indictable offence" includes either-way offences. Do not read police powers narrowly.
- Value, not label, drives criminal damage — but never for arson.
- The magistrates' court is the tribunal of law and fact; there is no split, so a "voir dire" in the magistrates' court is heard by the same bench that decides guilt.
- Lay justices sitting with a Crown Court judge on an appeal are full members of the court; the judge does not simply outvote them.
A defendant is charged with wounding with intent to do grievous bodily harm contrary to section 18 of the Offences Against the Person Act 1861. What must the magistrates' court do at the first hearing?
A defendant is charged with criminal damage to a shop window. The agreed replacement cost is £900. The defendant wants a jury trial. What is the position on venue and sentence?
A defendant of limited means is charged in the Crown Court with fraud. What is the correct analysis of their entitlement to a representation order?