First hearings before the magistrates' court - Advising the ...

Learning Outcomes

This article outlines the law and procedure governing trial venue at first magistrates’ court hearings, including:

• Classification of criminal offences and its effect on venue, distinguishing summary, either-way, and indictable-only offences and their procedural routes.
• Plea before venue (PBV) and allocation for either-way offences, highlighting the sequence of decisions and key statutory provisions.
• Roles and responsibilities at a first hearing before the magistrates’ court, with emphasis on what the defence solicitor must do in practice.
• Assessment of the strengths and weaknesses of the prosecution case at this early stage and how this informs venue strategy.
• Relevance of legal defences at first hearing, including when to flag potential defences and how they influence allocation.
• Strategic factors influencing venue choice between the magistrates’ court and the Crown Court, such as sentencing powers, speed, and likelihood of conviction.
• Professional and ethical obligations when advising on trial venue, including duties of candour, confidentiality, and conflict management.
• Legal aid eligibility and its practical implications for representation in both magistrates’ and Crown Court proceedings.
• Exceptional circumstances affecting venue (e.g., low-value shoplifting, linked offences), and how statutory exceptions modify the normal rules.
• Consequences and tactical considerations of client choices at this stage, including appeal options and sentencing risks.
• Application of principles to realistic scenarios and SQE1-style multiple-choice questions to reinforce exam technique.

SQE1 Syllabus

For SQE1, you are required to understand the law and procedure governing trial venue at first magistrates’ court hearings, with a focus on the following syllabus points:

• the classification of criminal offences (summary, either-way, indictable-only) and its impact on trial venue
• the plea before venue (PBV) process and allocation hearings for either-way offences
• the defendant's rights and choices concerning trial venue
• the procedural and statutory framework for allocation (including relevant provisions of the Magistrates’ Courts Act 1980 and the Crime and Disorder Act 1998)
• factors influencing venue selection, such as sentencing powers, trial procedure, likelihood of conviction, costs, publicity, stress, and client preference
• legal defences available at first hearing, and the impact on subsequent proceedings
• special rules for specific offence types (e.g., low-value shoplifting, criminal damage)
• interaction between mode of trial and related offences or co-defendants
• the solicitor’s professional duties to the client and the court, including conflicts of interest and confidentiality
• legal aid eligibility criteria and process at the first hearing
• determination of the allocation guideline and its practical application
• application of current law, evidential standards, and procedural rules as of 2025

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 does each affect trial venue?
2. What is the purpose of the plea before venue (PBV) hearing for either-way offences?
3. In what circumstances does a defendant have a choice of trial venue?
4. List three key factors you should discuss with a client when advising them on whether to elect Crown Court or magistrates’ court trial.

Introduction

The decision regarding trial venue at a first appearance in the magistrates’ court is critical. The chosen venue will affect not only the style and formality of the trial, who determines guilt, and the applicable sentencing powers, but also numerous practical considerations including time to trial, cost, stress, and how the available legal defences are presented. Solicitors must be able to explain the relevant law and procedure with clarity, identify the key decision points for clients, and provide comprehensive, ethical advice on the available options, while complying at all times with their obligations to both the client and the court.

Classification of Offences and Venue

The starting point for venue determination is always the classification of the charged offence. English criminal law recognises three principal categories, with each dictating the initial procedural path for the case:

Key Term: summary offence
An offence that can only be tried in the magistrates’ court. These are the least serious offences (e.g., common assault, most driving offences), with proceedings that start and end in the magistrates’ court. The magistrates (or District Judge) are the arbiters of both fact and law.

Key Term: either-way offence
An offence that is triable either in the magistrates’ court or the Crown Court, depending on seriousness, the defendant’s wishes, and the court’s assessment of suitability (e.g., theft, assault occasioning actual bodily harm). The venue is determined by the PBV, allocation, and any statutory exceptions.

Key Term: indictable-only offence
An offence that must be tried in the Crown Court (e.g., murder, robbery), save for initial procedural steps which begin in the magistrates’ court before mandatory transfer.

If a case involves multiple offences of different classifications, the most serious classification dictates the venue. For example, if a defendant is charged with an indictable-only offence and a related either-way offence, both are sent to the Crown Court (Crime and Disorder Act 1998, s. 51).

For special categories such as low-value shoplifting (theft of goods of £200 or less), s. 22A Magistrates’ Courts Act 1980 applies: the case is normally summary-only, but the defendant may elect jury trial if the plea is not guilty, ensuring the defendant retains an element of choice in such matters.

Plea Before Venue and Allocation

For either-way offences, the first hearing involves a structured process:

Key Term: plea before venue (PBV)
The process by which a defendant charged with an either-way offence is asked to indicate whether they would plead guilty or not guilty (or choose to remain silent). The consequences of the response determine the next procedural step.

Key Term: allocation hearing
The hearing at which the magistrates decide whether the case is suitable for summary trial or whether it should be sent to the Crown Court for trial (also known as the 'mode of trial' decision).

If the defendant indicates a guilty plea, the magistrates must determine if their powers are sufficient for sentencing. The maximum custodial sentence is 12 months for either a single offence or in total for two or more either-way offences sentenced concurrently. If the offence (or combination of offences) appears so serious that a higher penalty may be required, the magistrates may commit the defendant to the Crown Court for sentence (Powers of Criminal Courts (Sentencing) Act 2000, s. 3).

If a not guilty plea is indicated, or if the defendant declines to give an indication, the case proceeds to allocation. Here, magistrates consider the facts (as summarised by the prosecution), any representations from both parties, the defendant’s previous convictions, and the Sentencing Council’s allocation guideline, which sets the general presumption that either-way offences should be tried summarily unless the alleged offence appears too serious for the summary court’s powers.

The court must also assess aggregate sentencing powers when there are multiple counts (MCA 1980, s. 19(4)). If all offences together risk outstripping the available sentencing power, Crown Court trial is required.

Where summary trial is deemed suitable by the magistrates, the defendant is asked whether they wish to be tried summarily or elect Crown Court trial. If the court declines jurisdiction, the case is sent directly to the Crown Court for trial, and the defendant loses any right to elect summary trial.

Worked Example 1.1

Scenario:
A client is charged with theft (an either-way offence). At the PBV, they indicate a not guilty plea. The magistrates consider the case suitable for summary trial. What happens next?

Answer:
The magistrates explain the case is suitable for summary trial. The client is asked whether they consent to summary trial or wish to be tried in the Crown Court. The client can choose the venue.

Additional Considerations

• In cases of related co-defendants or multiple charges, the procedural route for the most serious offence will govern all connected matters.
• For certain specified cases (e.g., cases involving serious or complex fraud, cases involving children, or where there are joint charges with indictable-only matters), statutory provisions may require sending an either-way offence to the Crown Court without an allocation hearing (CDA 1998, s. 50A and related provisions).

Factors to Consider When Advising on Venue

Where the client is given the right to elect the venue, advising them on the distinction between the magistrates’ court and the Crown Court is a key function of the defence solicitor. The main factors to discuss are:

• Sentencing Powers:
  Magistrates’ courts are limited to 12 months’ imprisonment (either for a single either-way offence or in total if sentencing for two or more such offences concurrently), community orders, fines, and lesser penalties. The Crown Court can impose sentences up to the statutory maximum for each offence, including life imprisonment for some offences. However, even magistrates retain the power to commit the client to the Crown Court for sentence after summary trial if new information comes to light.

• Speed and Trial Process:
  Trials in the magistrates’ court usually occur much sooner (weeks or a few months), are less formal (no wigs or gowns), often shorter, and usually involve less elaborate case management. Crown Court trials are more formal, involve a judge and jury, are listed less frequently, and may involve substantial preparation for evidence, disclosure, expert reports, or complex legal argument.

• Likelihood of Conviction:
  Acquittal rates for defendants in the Crown Court (by jury) are statistically higher than in magistrates’ courts, though this may reflect both the types of cases heard and differences in fact-finding. Magistrates are said to be "case-hardened" and sometimes (rightly or wrongly) perceived as more likely to convict, although empirical data is complex and prompt advice should treat conviction risk as a subtle factor.

• Admissibility of Evidence and Legal Arguments:
  The procedure for challenging inadmissible prosecution evidence is generally more robust in the Crown Court, as the judge can exclude evidence from the knowledge of the jury in a voir dire. In the magistrates’ court, where judges of fact and law are the same, magistrates must put inadmissible evidence out of their minds, which may create a risk of subconscious prejudice.

• Appeal Routes:
  From a magistrates’ court conviction, the client has a right of appeal to the Crown Court, which will result in a full rehearing of the case (not simply a review), and in certain circumstances can appeal to the High Court by way of case stated. For Crown Court convictions, the client can appeal to the Court of Appeal (Criminal Division), but only with leave.

• Costs and Funding:
  Legal aid eligibility is generally stricter for trials in the Crown Court, particularly in relation to means testing. Costs for both prosecution and defence can be higher in the Crown Court. If the client is privately paying, the increased cost and the risk of paying prosecution costs if convicted must be explained.

• Stress, Publicity, and Procedural Formality:
  Crown Court trials can be much more intimidating, are subject to greater public scrutiny and reporting, and may involve longer waits. Magistrates’ courts are less intimidating and sometimes less exposed to media attention.

• Client’s Own Preferences:
  The client’s own wishes regarding stress avoidance, speed of resolution, public profile, and perceived fairness must always be considered as part of any comprehensive advice. For some, avoiding the “spotlight” of the Crown Court is a significant factor; for others, a jury trial offers the feeling of a fairer hearing.

• Tactical and Evidential Considerations:
  For cases depending heavily on disputed identification evidence, the procedural protections and jury fact-finding in the Crown Court may benefit the defendant, especially if challenging a breach of the rules under PACE Code D.

• Nature and Complexity of the Case:
  Unusually serious, complex, or sensitive matters, for example conspiracy, serious violence, or cases involving expert witnesses, may be more appropriately dealt with in the Crown Court.

Worked Example 1.2

Scenario:
Your client is charged with assault occasioning actual bodily harm (an either-way offence). They have no previous convictions. The alleged facts are straightforward. Should you advise them to elect Crown Court trial?

Answer:
If the case is suitable for summary trial, and the client has no previous convictions and the facts are simple, summary trial may be preferable due to limited sentencing powers, speed, and reduced stress. However, you should discuss all factors and respect the client’s decision.

Special Considerations and Statutory Details

• In some cases, the nature of the alleged offence may alter the classification and thus the procedure (e.g., burglary with violence, repeat domestic burglaries for adults may be indictable-only in certain situations ("three strikes rule"); low-value criminal damage cases treated as summary-only unless committed by fire).
• Linked or related offences, or multiple defendants charged with offences arising from the same incident, may require sending to the Crown Court even where the individual offence would otherwise be triable summarily (CDA 1998, s. 51(3)-(5)).

Defences and Tactical Considerations at First Hearing

At the first hearing, defence solicitors advise clients not only on venue but also on the available legal defences, procedural fairness, and the potential for the early raising of defences to influence subsequent hearings. The court is not bound by any factual assertions of the defence at this stage, but a clear indication of available defences (e.g., self-defence, alibi) may prompt earlier attention to evidential issues that affect venue selection, such as suitability for summary trial or the possibility of requiring expert cross-examination.

Where a defence is anticipated, it is good practice to record this in the case management forms at the earliest opportunity to ensure appropriate directions are made.

Professional and Ethical Duties

When advising a client on trial venue, solicitors must discharge duties to both their client and the court in accordance with the Solicitors Regulation Authority (SRA) Principles and the SRA Code of Conduct. This includes:

• Providing clear, objective, accurate advice on all available options and implications, including strengths and weaknesses of the prosecution case and available defences.
• Avoiding misleading the court or participating in any conduct which would amount to a deception (e.g., knowingly advancing a false defence).
• Managing conflicts of interest rigorously, particularly where representing multiple defendants. If mutual or substantial interests cannot be preserved, or where a real risk of a conflict arises (e.g., co-defendants blame each other), solicitors must not act.
• Upholding strict duties of confidentiality. Solicitors are prohibited from disclosing client communications unless legally mandated or explicitly consented to by the client.
• Continuing to act for a client who admits guilt but wishes to plead not guilty is permissible, provided the solicitor does not mislead the court or put forward a positive case they know is false. If a client insists on advancing evidence known to be untrue, the solicitor must withdraw and provide only a generic explanation ("withdrawn for professional reasons").
• Ensuring clients are informed of the limited scope of legal aid in the magistrates’ court and the stricter means testing in the Crown Court.

Key Term: legal aid eligibility
Legal aid eligibility at first hearing is governed by a two-stage test—(a) the means test (based on household income, benefits, capital, and other factors), and (b) the merits test (also known as the interests of justice test). The merits test is satisfied automatically for persons under 18 or where the charge is particularly serious (likely to result in custody, potential loss of livelihood, significant damage to reputation, or substantial question of law arises). Means-tested legal aid involves complex thresholds (set out in the Criminal Legal Aid (Financial Resources) Regulations 2013 and subsequent amendments) and may require supporting financial documentation, especially if the case proceeds to the Crown Court.

Worked Example 1.3

Scenario:
You are acting for two co-defendants charged with theft. During initial instructions, one client accuses the other of being the mastermind; the other client disputes this. May you continue to act for both?

Answer:
No. There is now a significant conflict of interest. You cannot act for both. Each defendant would need separate representation.

Case Management and Next Steps Following Venue Decision

Once venue has been determined, either for summary trial or for Crown Court proceedings, the focus shifts to effective case management and compliance with the Criminal Procedure Rules. For cases proceeding in the magistrates’ court, pre-trial directions will involve confirming witness availability, further disclosure, and ensuring all live issues are identified. In the Crown Court, the process moves to the Plea and Trial Preparation Hearing (PTPH), where formal plea is entered, and case management orders are set for trial preparation, expert evidence, disclosure, and special measures applications if relevant.

Where the allocation hearing raises issues relating to expert evidence, vulnerable witnesses, or the need for special procedural measures, early identification of these issues is essential for an effective and fair trial process.

Summary Table: Venue Determination for Offence Types

Key Point Checklist

This article has covered the following key knowledge points:

• The classification of the charged offences (summary, either-way, indictable-only) governs the initial route to trial venue.
• For either-way offences, PBV and allocation determine venue, and a defendant may have a right to elect Crown Court trial only if the magistrates accept jurisdiction.
• Advice on venue must address sentencing powers, procedure, speed, likelihood of conviction, costs, stress, and any relevant legal defences.
• Linked offences, co-defendants, and statutory exceptions can dictate mandatory transfer to the Crown Court.
• Solicitors must fulfil their duties to act in the client's best interests, give impartial, comprehensive advice, and avoid misleading the court, especially regarding known client admissions.
• Legal aid eligibility depends on both the merits (interests of justice) and means test, with different consequences for representation orders in the magistrates’ court and Crown Court.
• The solicitor must manage conflicts of interest strictly, especially when representing co-defendants, and maintain confidentiality at all times.
• The selection of trial venue is a critical and strategic decision that can shape the entire progress and outcome of a criminal matter.

Key Terms and Concepts

• summary offence
• either-way offence
• indictable-only offence
• plea before venue (PBV)
• allocation hearing
• legal aid eligibility