Allocation of cases between magistrates' court and Crown Cou...

Learning Outcomes

This article explains the allocation of criminal cases between the magistrates' court and Crown Court in England and Wales, with emphasis on the defendant's right to elect trial venue for either-way offences, including:

• Offence categorisation and jurisdictional consequences (summary-only, either-way, indictable-only)
• Statutory process for allocation of either-way offences (Magistrates’ Courts Act 1980, Crime and Disorder Act 1998, Criminal Procedure Rules, Sentencing Council allocation guideline)
• Scope and limits of the defendant’s right to elect jury trial and its interaction with magistrates’ acceptance or refusal of summary jurisdiction
• Plea before venue and allocation hearings
• Indication of sentence at allocation and the binding effect of non-custodial indications (ss 20–20A MCA 1980)
• Sending without allocation under s 50A Crime and Disorder Act 1998, including serious or complex fraud notices, child witness provisions, and related offences/offenders
• Low-value shoplifting (s 22A Magistrates’ Courts Act 1980) and the retained right to elect jury trial
• Strategic, practical, and legal implications of venue choice (sentencing exposure, trial complexity, case management, disclosure, evidential protections)
• Effects of prosecution case presentation, defence strategy, and aggravating and mitigating factors on allocation and election
• Consequences of venue selection for case progress, procedural rights and obligations, and trial outcomes, with relevance to the SQE1 criminal litigation syllabus

SQE1 Syllabus

For SQE1, you are required to understand the allocation of criminal cases between the magistrates' court and Crown Court and the defendant's right to elect trial venue for either-way offences, with a focus on the following syllabus points:

• the classification and jurisdictional consequences of summary-only, either-way, and indictable-only offences
• statutory procedures for allocation of either-way offences, including plea before venue, allocation (mode of trial) hearing, and statutory rights of election
• the discretionary and mandatory factors magistrates must weigh in accepting or declining jurisdiction (including the Sentencing Council guideline)
• the defendant's right to elect Crown Court trial and the statutory circumstances restricting or extinguishing that right
• circumstances which require sending without allocation under s 50A Crime and Disorder Act 1998 (serious or complex fraud notices, related offences/offenders, child witness provisions)
• procedures and rights in cases triable summarily only, in particular low-value shoplifting under s 22A Magistrates’ Courts Act 1980 (including retained right to elect jury trial)
• indication of sentence regime at allocation (ss 20–20A MCA 1980), its binding effect and its limitations
• strategic, professional, and case management considerations for the defendant and defence adviser, including implications for disclosure, bad character rulings, case duration, and sentencing exposure
• interaction between allocation, election, case management, and pre-trial procedures in both magistrates' court and Crown Court settings

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What are the three main classifications of criminal offences, and how do each determine initial trial venue?
2. What statutory steps must be followed when allocating an either-way offence to the magistrates’ court or Crown Court?
3. In what circumstances does a defendant possess a statutory right to elect trial by jury, and how is that right limited?
4. What are two key strategic considerations that the defendant and legal adviser should reflect upon when faced with the election of trial venue?
5. When may a magistrates’ court provide an indication of sentence at allocation, and what is the legal effect of that indication?

Introduction

Upon being charged with a criminal offence in England and Wales, the route by which a case proceeds—whether in the magistrates' court or the Crown Court—is governed by the offence classification and a series of statutory procedures. In particular, either-way offences introduce complexity: in some instances, the defendant is entitled to choose the venue in which their case is tried, while in others, that choice is removed by statutory or judicial decisions. The effective exercise of the defendant’s right to elect trial venue, and full knowledge of the allocation procedure, are fundamental for criminal practitioners and are directly assessable for SQE1.

Classification of Offences and Trial Venue

The allocation of criminal cases is rooted in the statutory classification of offences and the division of trial jurisdiction between the magistrates' court and Crown Court.

Key Term: summary offence
A summary offence is one which can only be tried in the magistrates’ court. These are the least serious offences, and the magistrates exercise limited sentencing powers—generally up to six months for a single offence or a maximum of twelve months for two or more offences tried together.

Key Term: either-way offence
An either-way offence is an offence for which, depending on various factors, trial may take place either summarily in the magistrates' court or on indictment with a jury in the Crown Court. Typical examples include theft, burglary (other than domestic dwelling burglary with requisite previous convictions), and assault occasioning actual bodily harm.

Key Term: indictable offence
An indictable offence, when not further qualified, refers to any criminal offence triable on indictment. However, for allocation purposes, ‘indictable-only offences’ are those that can only be tried on indictment in the Crown Court and must be sent there from the magistrates’ court without further allocation.

Summary Offences

Summary-only offences are at the lower end of seriousness (for example, most road traffic offences, common assault, and public order offences). The defendant does not have the right to elect for jury trial. The prosecution and defence present representations and, on a not guilty plea, the case is listed for a summary trial, or for sentence following a guilty plea. Any committal to the Crown Court for sentence is only permissible where statute specifically allows it (e.g., on breach of suspended sentence orders or under certain dangerous offender provisions).

Indictable-Only Offences

Indictable-only offences, such as murder, manslaughter, rape, robbery, and aggravated burglary, are recognised as the most serious offences in the criminal calendar. The procedure here is clear: the magistrates’ court conducts only a preliminary hearing pursuant to s 51 Crime and Disorder Act 1998, at which point the case is sent ("sent" not "committed") to the Crown Court. The defendant is not invited to make an election as to venue, nor does the court have jurisdiction to deal with the case other than by sending. At the initial magistrates’ hearing for such cases, no plea is taken, but the defendant is asked to indicate whether a guilty plea would be entered at the earliest opportunity in the Crown Court to facilitate early management.

Either-Way Offences

For either-way offences, the case may be tried either summarily or on indictment. The mechanism for allocation is central to understanding the defendant’s right to elect trial venue.

Key Term: low-value shoplifting (s 22A MCA 1980)
Low-value shoplifting is a form of theft where the goods stolen were offered for sale in a shop and the value does not exceed £200. Parliament has made such cases triable only summarily. However, if the defendant pleads not guilty, they retain a right to elect trial by jury in the Crown Court.

The Allocation Procedure for Either-Way Offences

When faced with an either-way offence, the allocation process determines the appropriate trial venue, following a structured statutory process.

Plea Before Venue

The allocation procedure initiates with the plea before venue hearing. At this stage, the charge is put to the defendant and an invitation to indicate plea is made. The court must explain:

• the detail of the alleged offence, unless self-explanatory;
• the triability of the offence in both courts, and that a plea indication is being sought;
• consequences of a guilty plea (the court will proceed to sentence or, if the offence is too serious for a magistrates’ court, commit for sentence to the Crown Court);
• consequences of a not guilty plea or no indication (the court will move to consider venue allocation).

The defendant is entitled to abstain from indicating a plea; if so, allocation proceeds as if a not guilty plea had been made.

Key Term: plea before venue
The statutory process in which a defendant charged with an either-way offence is asked to state their proposed plea before the court considers trial venue.

The initial details of the prosecution case (IDPC) must be served by this stage to enable meaningful engagement, including a summary of the evidence and previous convictions (CrimPR Part 8). The defence solicitor has the opportunity to advise the client on plea, based on the disclosed material, disciplinary history, strength of the prosecution case, and relevant admissibility arguments.

• If a guilty plea is indicated, the court may sentence immediately, request a pre-sentence report, or (where statutory powers are insufficient) commit to the Crown Court for sentencing.
• If a not guilty plea is indicated (or the defendant does not indicate a plea), the process moves to the allocation hearing.

Mode of Trial (Allocation) Hearing

At the allocation (mode of trial) hearing, the court applies the procedure set out in ss 19–20 Magistrates’ Courts Act 1980 and the Sentencing Council's allocation guideline. The essential decision is whether the case "appears more suitable" for summary trial or trial on indictment. The court must:

• Hear the facts and representations from both prosecution and defence, including details of previous convictions;
• Consider the seriousness of the alleged offence, the potential complexity (factual or legal), and the adequacy of the magistrates’ sentencing powers;
• Refer to the Sentencing Council's allocation guideline, which prescribes a general preference for summary trial unless the sentencing powers are clearly likely to be inadequate, or the case is of unusual complexity or seriousness.

The court also has to consider whether the likely sentence, in light of all connected charges that might be tried together, would exceed the maximum sentence it could impose if convicted on all counts (the "aggregate sentence" principle). The guideline emphasises that the ability to commit for sentence following summary conviction may mean summary trial is still suitable even if the sentence could exceed the usual maximum. The allocation decision must be informed by all facts and representations but is ultimately that of the bench.

Key Term: allocation hearing
The allocation hearing is the statutory process in which the magistrates determine, after consideration of submissions and the relevant guidelines, if a case is suitable for summary trial or should proceed to the Crown Court for trial.

Indication of Sentence at Allocation

Once a decision to retain jurisdiction (summary trial) is made, the defendant may request an indication of sentence—an early forecast by the magistrates as to whether a custodial or non-custodial sentence is more likely, should the accused plead guilty at this juncture. Only one such indication may be given, and if the defendant accepts it by pleading guilty immediately, the court is subsequently bound: if the indication is of a non-custodial sentence, the court may not impose imprisonment upon conviction following such a plea. Otherwise, any indication given does not bind the magistrates (ss 20–20A MCA 1980). The mechanism is designed to ensure fairness and informed decision-making.

Key Term: indication of sentence
An indication under ss 20–20A MCA 1980 is an early statement by the magistrates, given on request and only after retaining jurisdiction, as to the likely type of sentence (custodial or non-custodial) upon an immediate guilty plea. If a non-custodial indication is given and the defendant pleads guilty forthwith, custody cannot be imposed.

If the magistrates conclude the case is unsuitable for summary trial—due to likely sentencing inadequacy or complexity—they decline jurisdiction and send the case to the Crown Court for trial. The defendant in this instance cannot insist on a summary trial.

Defendant’s Right to Elect Trial Venue

Where the court accepts summary jurisdiction for an either-way offence, the defendant is then invited to make an election: either consent to summary trial or choose trial by jury in the Crown Court. This statutory election is a fundamental procedural safeguard and occupies an important place in criminal procedure.

Key Term: defendant’s election
When the magistrates accept summary jurisdiction in an either-way case, the defendant has a legal right to "elect" (choose) to be tried in the Crown Court instead of consenting to summary trial.

The impact of this right is significant: a defendant may reject the apparent convenience or speed of a summary trial in favour of a jury determination, even where the case is relatively minor or carries a lower risk of conviction.

Practical and Strategic Considerations

There are significant strategic factors the defendant and adviser must weigh:

• The likelihood of acquittal by a jury (Crown Court juries historically show a lower conviction rate than magistrates' courts);
• Risk of a higher sentence: although Crown Court judges can impose longer sentences, in practice circumstances and context (such as early guilty pleas and adherence to sentencing guidelines) remain relevant;
• Procedural protections: in the Crown Court, the judge determines contested points of law (e.g., admissibility of evidence) before the jury hears the case, minimising exposure to potentially prejudicial material;
• Case management and disclosure: the defence is obliged to serve a defence statement in the Crown Court, whereas it is optional in the magistrates' court. Failure to comply may permit adverse comment and inference at trial;
• Costs and delay: Crown Court proceedings are usually slower and more expensive, with the potential for longer remands and more procedural complexity;
• Public scrutiny: Crown Court trials tend to attract greater media attention.

There are, correspondingly, factors weighing in favour of summary trial: limited sentencing powers, earlier and swifter disposal, reduced disclosure obligations and preparation, and a more informal environment.

Professional Duties and Conduct

The legal representative must balance their duties to act in the client’s best interests (SRA Principle 7) with the duty never to mislead the court or place evidence before the court known to be false (SRA Principle 1 and Code of Conduct). Where a client intends to enter a not guilty plea despite confessing guilt, the solicitor must not advance a positive defence known to be untrue, though it is permissible to require the prosecution to prove its case and to test prosecution allegations by cross-examination or challenge on points of law. The representative must explain the consequences and limitations of maintaining such a plea, including when professional reasons may arise for withdrawal from the case.

Worked Example 1.1

Scenario:
Sam is charged with theft (an either-way offence) after allegedly stealing £1,000 from his employer. At the plea before venue hearing, Sam pleads not guilty. The magistrates consider the relevant factors and, after hearing representations and reviewing the Sentencing Council guideline, decide the case is suitable for summary trial. Sam is informed of his statutory right to elect Crown Court trial or consent to summary trial.

Answer:
Sam now faces a choice. He must weigh the limited sentencing power of the magistrates if convicted against the advantages of a jury trial (such as perceived greater impartiality or fairness). Other considerations include speed of resolution, personal stress, disclosure obligations (defence statements are optional in magistrates’ court), possible committal for sentence if the bench later finds the matter more serious than thought, and his own confidence in the tribunal. The defence solicitor should give clear, objective advice, leaving the ultimate decision to Sam.

Worked Example 1.2

Scenario:
Maria is charged with assault occasioning actual bodily harm. After considering the circumstances—including whether the incident involved unusual weapons, sustained injury, use of significant force, or vulnerability of the victim—the magistrates decline jurisdiction.

Answer:
Maria’s case will be sent forthwith to the Crown Court for trial, under the statutory procedure. She does not have the right to elect summary trial. The Crown Court will assume case management; trial will be by judge and jury.

Worked Example 1.3

Scenario:
At the allocation stage, the magistrates accept jurisdiction in a non-complex, low-value fraud. The defence requests an indication of sentence. The bench gives an indication of a non-custodial sentence if there is an immediate guilty plea. Liam promptly pleads guilty.

Answer:
The magistrates are now barred, under s 20A MCA 1980, from imposing a custodial sentence for that offence. However, other legal consequences, including fines, discharges, or ancillary orders, may still be imposed.

Worked Example 1.4

Scenario:
Ava is charged with theft (either-way) alongside Ben for robbery (indictable-only). The court is required to send Ben to the Crown Court under s 51 CDA 1998. Ava’s theft charge is related, arising from the same incident.

Answer:
Ava’s charge will be sent to the Crown Court along with Ben’s indictable-only offence, without the allocation procedure (s 50A CDA 1998). Ava will not be given the opportunity to elect for summary trial; the allocation decision is taken from her.

Sending Without Allocation

In defined circumstances, the court may or must send either-way (and some summary) offences to the Crown Court without a formal allocation hearing.

Key Term: sending without allocation
The process mandated or empowered under s 50A CDA 1998 (and related provisions), whereby a court sends an offence to the Crown Court without affording the defendant the right to elect trial venue, due to statutory notice or case connection.

Circumstances

• A notice has been issued under s 51B CDA 1998 for serious or complex fraud, by the Director of Public Prosecutions, Director of the SFO, or Secretary of State.
• A notice under s 51C CDA 1998 in cases involving certain child welfare concerns, authorising immediate transfer to the Crown Court.
• One or more related offences/offenders are also being sent for trial on an indictable-only offence, i.e., the defendant is jointly charged with an indictable-only offence, or the charges arise from the same or connected circumstances as a principal indictable-only offence.

Key Term: related offence
An offence that arises out of the same or connected facts as an indictable-only matter, or which could be joined on the same indictment (including specified summary offences which may be so joined), thus triggering sending without allocation under s 50A CDA 1998.

When these circumstances pertain, the statutory right of election is lost for those related either-way or summary offences. The case is administered in the Crown Court for all proceedings and sentence.

Worked Example 1.5

Scenario:
Nadia is charged with low-value shoplifting (goods under £200) and pleads not guilty at the first hearing.

Answer:
Her case is, by s 22A MCA 1980, triable only summarily. However, the legislature provides that, on a not guilty plea, she may elect trial by jury in the Crown Court. If she makes this election, the case must be transferred to the Crown Court and tried there; this right is unique for this offence and arises despite its summary-only categorization.

Factors Affecting Magistrates’ Decision

When deciding whether to retain jurisdiction for trial of an either-way offence, magistrates must consider:

• The seriousness of the alleged offence, including any aggravating or mitigating features (degree of harm, use of weapon, number of victims, vulnerability, breach of trust, etc);
• The complexity of the evidence or potential legal arguments, including issues of law or fact for which the Crown Court is better equipped (e.g., complex frauds);
• The defendant’s criminal record or antecedents, weighing the significance and recency of previous convictions;
• The adequacy of their sentencing powers, and whether the predicted sentence could exceed the statutory maximum for the bench;
• Any factual or procedural connection to other cases being dealt with at the same time.

The Sentencing Council's allocation guideline provides a presumption in favour of summary trial. Only in clear cases—where legal or factual complexity, risk of inadequate sentencing options, or unusual evidential issues arise—should the bench decline jurisdiction. The power to commit for sentence following summary trial provides further assurance that serious cases may efficiently be escalated for higher punishment, even if initially tried summarily.

Key Term: indication of sentence
(See above; key in limiting sentencing options for the court where a defendant pleads guilty on the basis of a non-custodial indication.)

Exam Warning

For SQE1 knowledge, the statutory right of election only arises when the magistrates accept jurisdiction after considering both the facts and representations. Should the bench decline jurisdiction, the case is immediately sent to the Crown Court, and the defendant cannot insist on summary trial. The same principle applies in sending without allocation: the court, not the defendant, determines venue by operation of statute.

Consequences of Venue Selection

The outcome of venue selection deeply influences the progress and outcome of criminal proceedings. Electing Crown Court trial leads to:

• The right to be tried by a jury with a Crown Court judge presiding over law and procedure;
• Exposure to unlimited sentencing powers applicable to the offence (subject only to statutory maxima and relevant guidelines, which are significantly more severe than the magistrates’ penalties for many offences);
• Potentially lengthier trial timelines, with increased complexity in pre-trial case management (such as plea and trial preparation hearings), stricter schedules for submission of defence statements and witness details, and greater scrutiny of pre-trial disclosure;
• Compulsory submission of defence statements, and the risk of adverse inference for non-compliance;
• More formal atmosphere and procedure, which may be daunting to some defendants;
• Escalated costs—both publically and privately funded defence costs, and possible higher orders for prosecution costs if convicted;
• Expanded publicity and greater community attention for high-profile cases.

Summary trial in the magistrates’ court, while generally preferred for its speed, informality, and reduced risk of a severe sentence, entails some compromises. Faster listing means less preparation time, fact-finding is undertaken by a bench of magistrates or a District Judge, and disclosure obligations on the defence are less onerous, but limited sentencing powers may mean the case is ultimately committed for sentence to the Crown Court post-conviction.

Revision Tip

When advising on venue, practitioners must consider the totality of consequences—including not only likely outcomes at trial, but also exposure to costs, time, strictness of evidential rules, and the defendant’s willingness or ability to participate in each setting. Assessment of evidential weaknesses in the prosecution case is also essential, as the opportunity to test these in the Crown Court (before judge and jury) may favour an election for jury trial in some cases. In all scenarios, clarity regarding procedure, professional obligations (including those arising in the context of a client who privately confesses guilt but pleads not guilty), and the advisability of election should be built on the statutory and practical merits of each forum.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Criminal offences are divided into summary-only, either-way, and indictable-only categories, each with its own allocation to court jurisdiction.
• Either-way offences require a statutory allocation process, involving plea before venue and allocation (mode of trial) hearing, to determine the appropriate court for trial.
• If the magistrates' court accepts jurisdiction, the defendant then possesses a right to elect trial in the Crown Court before a judge and jury.
• Where the magistrates’ court declines jurisdiction or sending without allocation is engaged by statute, the defendant has no right to choose summary trial; the court decides venue.
• Indication of sentence may be requested following the magistrates’ acceptance of jurisdiction for summary trial; if a non-custodial indication is given and the defendant pleads guilty forthwith, custody cannot be imposed for the offence.
• Certain cases are sent without allocation under s 50A CDA 1998 on statutory grounds, including serious/complex fraud, specified child witnesses, or related offences/offenders; these mechanisms override the defendant's election right.
• For low-value shoplifting under s 22A MCA 1980, although the offence is triable only summarily, the defendant retains a statutory right to elect jury trial.
• Decision-making on venue entails balancing legal, evidential, procedural, and practical considerations, including sentencing powers, trial duration, publicity, and case management.
• Solicitors and advisers must communicate to clients all key implications of venue selection, ensuring the client’s choice is informed by likely outcome, requirements, and risks in both magistrates’ court and Crown Court, as well as their own duties to the court and ethical limitations in representation.

Key Terms and Concepts

• summary offence
• either-way offence
• indictable offence
• low-value shoplifting (s 22A MCA 1980)
• plea before venue
• allocation hearing
• defendant’s election
• indication of sentence
• sending without allocation
• related offence