Allocation of Either Way Offences

As we have previously mentioned, an either way offence is one that can be dealt with at either the Magistrates' or Crown Court.

The process of determining which cases are dealt with by the Magistrates' or Crown Court is known as allocation.

Allocation Procedure for Guilty Plea

If the defendant enters a guilty plea the Magistrates/District Judge will need to decide whether or not to sentence the defendant at the Magistrates' Court or commit the case for sentence at the Crown Court. 

The Magistrates/District Judge will hear representations from the prosecution and defence advocates and carefully consider the Sentencing Guidelines.

If the offence (or combination of offences) can be appropriately sentenced using the powers available to the Magistrates' Court, then that court will normally sentence the defendant.

If the offence is likely to attract a sentence exceeding the maximum available to the Magistrates' Court, then the case will be committed for sentence at the Crown Court.

In borderline cases the Magistrates/District Judge should consider obtaining a pre-sentence report before deciding whether to commit to the Crown Court for sentence.

Where the offending is so serious that the Magistrates/District Judge are of the opinion that the Crown Court should have the power to deal with the offender, the case should be committed to the Crown Court for sentence even if a community order may be the appropriate sentence (this will allow the Crown Court to deal with any breach of a community order, if that is the sentence passed).

Allocation Procedure for Not Guilty Plea

If the defendant enters a not guilty plea the Magistrates/District Judge will need to decide the most appropriate venue for the trial, be that the Magistrates' or Crown Court.

Trials at the Magistrates' Court are known as summary trials; those at the Crown Court are known as trials on indictment. Summary trials happen much faster and cost far less than trials on indictment.

Generally speaking, the Magistrates/District Judge should accept jurisdiction for a summary trial unless:

• the outcome would clearly be a sentence in excess of the court's powers for the offence(s) concerned after taking into account personal mitigation and any potential reduction for a guilty plea; or
• for reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court. This exception may apply in cases where a very substantial fine is the likely sentence. Other circumstances where this exception will apply are likely to be rare and case specific; the court will rely on the submissions of the parties to identify relevant cases.

In cases with no factual or legal complications the Magistrates/District Judge should bear in mind their power to commit for sentence after summary trial and may retain jurisdiction notwithstanding that the likely sentence might exceed the Magistrates' Court's powers.

Cases may be tried summarily even where the defendant is subject to a Crown Court Suspended Sentence Order or Community Order.

All parties should be asked by the court to make representations as to whether the case is suitable for summary trial. The Magistrates/District Judge should refer to the Sentencing Guidelines to assess the likely sentence for the offence in the light of the facts alleged by the prosecution case, taking into account all aspects of the case including those advanced by the defence, including any personal mitigation to which the defence wish to refer.

Where the Magistrates/District Judge decide that the case is suitable to be dealt with in the Magistrates’ Court, they must warn the defendant that all sentencing options remain open and, if the defendant consents to summary trial and is convicted or pleads guilty, the defendant might still be committed to the Crown Court for sentence. The defendant may, at this stage, ask the Magistrates/District Judge for an indication of whether a custodial or non-custodial sentence would be more likely should they consent to summary trial and subsequently change their plea to guilty.

If the Magistrates/District Judge decline jurisdiction for summary trial, the defendant will undergo trial on indictment at the Crown Court.

Even when the Magistrates/District Judge have accepted jurisdiction for summary trial, the defendant can elect trial on indictment at the Crown Court.