26.3 Plea Before Venue, Allocation, Case Management and Disclosure

This OpenExamPrep section is independent study material for SQE1 FLK2. It is not a Criminal Procedure Rules commentary. Either-way work is where candidates lose marks by running allocation on an indictable-only robbery, or by treating unused material as the same pile as the IDPC.

Plea before venue (MCA 1980 s.17A)

For an adult charged with an either-way offence, the court puts the charge and explains the consequences of each indication.

If the client indicates guilty, the magistrates treat it as a guilty plea. They may sentence if their powers are adequate, or commit to the Crown Court for sentence under the Sentencing Code. There is no allocation for trial, because there will be no trial.

If the client indicates not guilty, or gives no indication, the court moves to allocation — unless a sending-without-allocation gateway already applies under the Crime and Disorder Act 1998.

Advise on indication with eyes open. A guilty indication is not a dry run. If the indication is not guilty, s.19(2)(a) requires the court to give the prosecution a chance to state previous convictions before allocation. Warn the client of that before they choose to contest. A vulnerable client who is confused about the difference between "indicating" and "pleading" needs that difference explained in ordinary language before they speak.

Advising on trial venue

Venue advice is a risk analysis, not a slogan that juries acquit.

• Sentencing powers. If convicted in the magistrates' court, an adult may currently receive up to 12 months' imprisonment for a single either-way offence (powers in force for convictions on or after 18 November 2024). If the realistic sentence after a trial sits well above that, the magistrates should decline jurisdiction.
• Factual and legal complexity. Multiple complainants, telephone downloads, or a difficult point of law may belong in the Crown Court.
• Speed and stress. Magistrates' trials are usually listed sooner.
• Tribunal. Lay justices or a District Judge, versus a judge and jury.
• Co-defendants and related indictable-only charges that will pull the case to the Crown Court in any event.
• Election. If the magistrates accept jurisdiction, an adult can still elect Crown Court trial. If they decline, the client cannot elect summary trial.

Low-value shoplifting (s.22A). Theft from a shop of goods offered for sale at £200 or less (aggregated if several such offences are charged on the same occasion), where the accused was or purported to be a customer, is triable only summarily. An adult who appears before the summary trial begins must still be given the chance to elect Crown Court trial. If they elect, the court proceeds under s.51. Do not run a full s.19 allocation on a pure s.22A charge.

Allocation: MCA 1980 ss.19–20

Section 19. The court decides whether the offence appears more suitable for summary trial or for trial on indictment. It must allow the prosecution to inform it of previous convictions and both parties to make representations. It considers whether a magistrates' court's sentence would be adequate, those representations, and the Sentencing Council allocation guideline. Where charges could be joined or arise from the same or connected circumstances, adequacy is judged against the maximum aggregate sentence the magistrates could impose for the offences taken together.

Section 20. If summary trial appears more suitable, the court explains in ordinary language that the client may consent to summary trial or be tried on indictment, and that even after a summary conviction they may be committed for sentence in the circumstances set out in the Sentencing Code. The client may ask for an indication of whether a custodial sentence would be given if they pleaded guilty and were dealt with summarily. If the court indicates a non-custodial sentence and the client then pleads guilty, custody cannot be imposed.

If the court decides trial on indictment is more suitable, or the client elects, the case is sent to the Crown Court through the s.51 machinery. That is allocation then sending, not sending without allocation.

Sending without allocation: CDA 1998 ss.50A and 51

Section 51 is the sending power. Where the statutory conditions are met, the magistrates send the adult forthwith to the Crown Court for trial. The headline condition is an indictable-only offence. Related either-way offences, and specified related summary offences (imprisonable or carrying disqualification, arising from the same facts or a connected series), can go with it. Notices under s.51B (serious or complex fraud) or s.51C (certain cases involving child witnesses) also trigger sending. A single justice may discharge the s.51 functions.

Section 50A is not a second sending power. It is the order of consideration for either-way offences, so the court does not allocate a case that should be sent, and does not send a case that should finish plea before venue:

• If a s.51B or s.51C notice is given, deal with the offence under s.51 — do not allocate.
• If the adult (or a co-accused adult) is being or has been sent for an indictable-only or notice offence, consider first whether the either-way offence should be sent as a related offence under s.51. Only if it is not sent do you proceed to ss.17A–23.
• In other either-way cases, complete plea before venue first. A guilty indication is sentenced or committed for sentence; the court does not then send for trial. If there is no guilty indication, the court considers ss.51 and 51A and, if the adult is still not sent, finishes allocation under s.20(9) or s.21.

s.50A is also subject to the low-value rules in s.22 of the 1980 Act (certain criminal damage). Do not confuse s.22 with s.22A shoplifting.

Magistrates' case management and the PTPH

If the case stays in the magistrates' court for trial, CrimPR Part 3 and the Preparation for Effective Trial (PET) form drive directions: what is agreed, which witnesses are required live, special measures, interpreters, unused material, expert evidence, bad character and hearsay applications, and a realistic time estimate. Standard directions are not optional homework. Missed dates generate vacated trials.

If the case is sent, the first Crown Court listing is the Plea and Trial Preparation Hearing (PTPH). The defendant is arraigned. On a not guilty plea the judge identifies issues, sets a trial date, and gives staged directions, including the disclosure timetable. The PTPH form is the working document. A solicitor who arrives without instructions on plea, basis of plea, and the live issues is not ready. A client who needs an intermediary or who has not understood the sending should not be arraigned on a guess.

Disclosure: prosecution, defence, unused material

Keep three piles separate.

Used prosecution material is the case the Crown will rely on: IDPC at the first hearing (statements, exhibit list, record of convictions where required), then full statements and exhibits for trial.

Unused material is relevant material retained by the investigator that is not being used as evidence. After a not guilty plea (or sending), CPIA 1996 s.3 requires the prosecutor to disclose unused prosecution material that might reasonably be considered capable of undermining the prosecution case or assisting the defence, or to give a written statement that there is no such material. The duty continues under s.7A. Investigators must pursue all reasonable lines of enquiry, record, and retain, under the CPIA Code of Practice. Non-sensitive unused is typically scheduled; sensitive unused raises public-interest issues. Unused is not "everything on the disc", and it is not the IDPC by another name.

Defence disclosure. In the Crown Court, a defence statement is compulsory (CPIA s.5). In the magistrates' court it is optional (s.6), but without an adequate statement the defence cannot make a s.8 application for further unused disclosure. A defence statement (s.6A) must set out the nature of the defence, the matters of fact on which issue is taken and why, particular defences, points of law, and alibi details where alibi is relied on. Time limits sit in the regulations and CrimPR Part 15 (commonly 28 days from the prosecutor's s.3 compliance in the Crown Court, subject to the court's power to vary). Failure can found comment and inferences, and it leaves unused-material complaints without a statutory engine.

Worked example: magistrates decline jurisdiction on a dwelling burglary. At PTPH the client pleads not guilty and raises alibi. You diary unused disclosure, serve a s.6A statement naming the alibi witness, then chase bus CCTV that never appeared on the unused schedule. That is disclosure practice, not a fishing letter.