An Unusual Application: Request to Withdraw Consent for Summary Trial

A defendant recently appeared before the court wishing to withdraw their consent for summary trial.

This is a highly unusual situation. Section 25 of the Magistrates' Court Act 1980 allows the prosecution to apply to the Magistrates' Court for reconsideration of a case it has accepted for summary trial, but there is no similar option available to a defendant who has elected trial on indictment.

By way of a reminder, a defendant who denies an either way offence can elect to have their trial at either the Magistrates' Court (summary trial, only an option if the Magistrates' Court accepts jurisdiction) or the Crown Court (trial on indictment). This process is known as allocation. I have also written about some of the perceived advantages and disadvantages of having a trial at either the Magistrates' Court or Crown Court.

The man in question had been charged in relation to an allegation of theft by employee. He had failed to attend the first hearing at his home Magistrates' Court, which resulted in a warrant being issued for his arrest. He was subsequently arrested elsewhere in the country, where he was put before the local Magistrates' Court.

Appearing in custody, the theft allegation was put to him and he denied the offence. The matter was then adjourned back to his home Magistrates' Court for the purposes of case management and trial listing.

Appearing before the defendant's home Magistrates' Court, his solicitor told the court that he had discussed matters with his client who was now rather keen to have his trial at the Crown Court. That being the case he would like to withdraw his earlier consent for summary trial.

As I said, this is a bit of a novel situation. It was a new one for the Legal Advisor too, who was thumbing her way through Stone's and struggling to find the relevant information.

Eventually, after a bit of further discussion, she was directed to the case of R v Birmingham Justices, ex parte Hodgson [1985] QB 1131, which confirms that notwithstanding the specific wording of section 19 of the Magistrates' Court Act 1980 the court does have the discretion to allow the withdrawal of consent for summary trial.

In deciding whether or not to exercise its discretion, the court had to consider the circumstances in which the defendant had consented to summary trial in the first instance. They key consideration was whether or not he fully understood the consequences of his decision.

In this case the defendant, having been arrested on warrant, had sought legal advice from the duty solicitor during his time in custody. He had received this advice prior to his initial consent to summary trial. Having been through the system a few times previously, the court also considered it unlikely that he was as naive to the allocation process as he was trying to make out. There was the distinct impression that his change of heart was for tactical and delaying reasons more than anything else.

The court refused the application and the matter proceeded to summary trial.

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