First hearings before the magistrates' court - Plea before v...

Learning Outcomes

This article outlines the complete plea before venue process for either-way offences in adult magistrates' court, including:

• Statutory and practical steps of plea indication, preliminary disclosure requirements (IDPC), and legal significance of indication.
• Purpose, legal framework, and function of allocation; factors under the Sentencing Council’s Allocation Guideline, including seriousness, complexity, antecedents, and adequacy of sentencing powers (with multiple either-way counts).
• Defendant’s right and procedure for election of trial venue; court’s communication obligations, legal effect of choice, and strategic venue considerations.
• Circumstances requiring magistrates to decline jurisdiction; statutory and guideline restrictions, sentencing maxima, and implications for Crown Court proceedings.
• Operation of sentence indications at allocation; judicial discretion, conditions for binding effect, and consequences of plea changes following an indication.
• Low-value shoplifting rules; hybrid summary/either-way classification, aggregation of counts, and interaction with election rights under s 22A Magistrates’ Courts Act 1980.
• Routes for sending without allocation; serious or complex fraud notices, child witness notices, related either-way offences linked to indictable-only matters, and rationale for bypassing standard allocation.
• Mixed pleas and co-defendant or related-offence situations; management of multi-count and multi-defendant proceedings and concurrent procedural treatment.
• Legal and practical consequences of venue outcomes; committal for sentence, bail status, disclosure duties, and appeal options for defendants and prosecution.
• Special considerations for youth defendants, joint charges with adults, grave crimes, and specified offences under the Sentencing Code and Crime and Disorder Act 1998.

SQE1 Syllabus

For SQE1, you are required to understand the plea before venue process and related allocation and venue decisions in magistrates' courts, with a focus on the following syllabus points:

• the classification of offences and their procedural effect (summary, either-way, indictable-only)
• all steps of the plea before venue process for either-way offences, including pre-hearing disclosure (IDPC)
• the allocation decision and application of the Sentencing Council's Allocation Guideline
• the defendant’s right to elect trial in the Crown Court and the procedural protections surrounding this choice
• practical and legal consequences of venue determinations (including subsequent committal for sentence or liability for costs)
• effect of the court’s aggregate sentencing powers on allocation where multiple offences are charged
• the availability and effect of a sentence indication at allocation, including statutory constraints and the binding nature of custodial indications
• special jurisdictional rules for low-value shoplifting (Magistrates’ Courts Act 1980, s 22A) and low-value criminal damage
• statutory and procedural mechanisms for sending either-way matters without allocation in cases involving serious fraud, child witnesses, and related indictable-only offences (Crime and Disorder Act 1998, s 50A)
• process and limitations of prosecution applications to send cases to the Crown Court after allocation, if magistrates’ sentencing powers prove inadequate
• application of special rules to youth defendants, co-defendants, and related-offence scenarios, including grave crimes and specified offences

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 is the first step in the plea before venue procedure for an either-way offence?
2. If a defendant indicates a guilty plea to an either-way offence, what must the magistrates consider next?
3. Name two factors magistrates must consider when deciding whether to accept jurisdiction for summary trial.
4. True or false? If the magistrates accept jurisdiction, the defendant must be tried in the magistrates' court.

Introduction

When an adult defendant is charged with an either-way offence, their first appearance is always before the magistrates' court, regardless of the seriousness of the charge. The plea before venue procedure is a critical stage, governing whether the case continues in the magistrates’ court for summary trial or is committed to the Crown Court for jury trial. The applicable process is rooted in the Magistrates’ Courts Act 1980 and governed further by the Criminal Procedure Rules (notably Part 9), incorporating key principles on fairness from Article 6 of the ECHR.

At this first appearance, the court ensures the defendant and defence have access to initial details of the prosecution case (IDPC), which is essential for informed decision-making about plea and for effective case management. The court carefully balances efficient progress with procedural safeguards, including legal representation, disclosure rights, and consideration of bail. Outcomes at this stage fundamentally shape the remainder of the proceedings: they determine trial preparation routes, evidence and disclosure requirements, sentencing maxima, the applicability of appeals, and—centrally—whether the defendant faces trial by magistrates or by judge and jury.

Understanding this process requires not only the procedural steps, but also the policy aims: swift and fair justice, proportionality of resources, and protection of defendants’ rights.

Key Term: plea before venue
The statutory process by which a defendant charged with an either-way offence is asked to indicate their plea (guilty or not guilty, or no indication) before the court decides on allocation—i.e., whether the case remains in the magistrates’ court or is sent to the Crown Court for trial.

Classification of Offences

Criminal offences in England and Wales are divided according to trial venue and seriousness:

• Summary only: Offences which can only be tried in the magistrates' court, such as common assault or many road traffic offences. The court’s sentencing powers are restricted—typically a maximum of six or (currently) twelve months' imprisonment.
• Either-way: Offences which may be tried either summarily (by magistrates) or on indictment (by judge and jury in the Crown Court). Examples include theft, burglary (subject to exceptions), and assault occasioning actual bodily harm.
• Indictable only: The most serious offences, such as murder and robbery, which must be tried on indictment in the Crown Court. The magistrates' only role is to send these cases on to the higher court after preliminary procedures.

Key Term: either-way offence
An offence triable either summarily in the magistrates’ court or on indictment in the Crown Court, depending on the allocation process.

Importantly, the plea before venue process is only relevant for either-way offences. Indictable-only offences are immediately sent to the Crown Court, while summary-only offences are handled entirely within the magistrates’ court.

Two special regimes interlock with this framework:

• Low-value shoplifting (Magistrates’ Courts Act 1980, s 22A): Where goods stolen from a shop are valued at £200 or less, the case must be tried summarily (magistrates’ court), but the defendant retains a right to elect Crown Court trial if pleading not guilty. If multiple shoplifting matters are charged and the aggregate value exceeds £200, the case reverts to normal either-way rules.
• Low-value criminal damage: Where the value of the property damaged does not exceed £5,000, prosecution proceeds summarily and the defendant cannot elect jury trial. If the damage was caused by fire (arson), it remains either-way, regardless of value.

Some burglary cases (notably 'domestic burglary' on a third conviction for those aged 18 or over) shift to indictable-only status due to statutory provisions, bypassing plea before venue entirely.

The Plea Before Venue Procedure: Step-by-Step

The stepwise process for an either-way offence at first hearing is as follows:

• The charge is formally presented to the defendant in open court. The court and defence solicitor confirm receipt of sufficient prosecution details (IDPC) to enable meaningful instructions on plea.
• The magistrates’ legal adviser or bench then invites the defendant to indicate whether they would plead guilty or not guilty if the case proceeded to trial. The defendant may also decline to indicate a plea, which is treated as a not guilty indication for allocation purposes.
• If the defendant indicates a guilty plea, the magistrates immediately consider their sentencing powers in light of the facts and any antecedents.
• If the defendant indicates a not guilty plea, or declines to indicate, the court moves to the allocation stage.

The indication of plea at this stage does not formally constitute an arraignment as in the Crown Court; it is a procedural device to inform allocation and to encourage early consideration of the key issues. Failure or refusal to indicate a plea is not penalised but results in the case proceeding as if a not guilty plea had been entered.

Key Term: initial details of the prosecution case (IDPC)
The prosecution’s summary of the case, including circumstances of the offence and the defendant’s record, designed to allow informed decision-making at the first hearing.

Allocation Decision

If a not guilty plea is indicated (or no indication is offered), the court must determine whether the case is suitable for summary trial in the magistrates’ court or whether it should be sent to the Crown Court for trial on indictment.

The allocation process involves:

• Hearing the prosecution’s summary of the facts and the defendant's record.
• Inviting both prosecution and defence to make representations on the appropriateness of summary trial and the adequacy of magistrates' sentencing powers—including the practicalities and complexities of the case.
• Reference to any relevant sentencing guidelines, weighing the case’s seriousness, the likely sentence in context, and any aggravating or mitigating factors.
• Consulting the Sentencing Council’s Allocation Guideline, the statutory requirement of ss 19–20 Magistrates’ Courts Act 1980, and the court’s aggregate sentencing powers where multiple offences are charged.

Key Term: allocation
The procedural decision by which magistrates determine whether to retain jurisdiction for summary trial or to decline and send the matter to the Crown Court.

Key considerations for allocation include:

• Whether the seriousness of the offence, alone or in combination with other charged offences, is beyond magistrates’ sentencing powers (currently up to twelve months' custody for a single either-way offence, with a maximum aggregate of twelve months for multiple either-way offences).
• The complexity of factual, legal, procedural, or evidential issues, including novel points of law, large-scale fraud, or cases involving large numbers of witnesses or documents.
• The defendant’s antecedents, particularly where there is escalation of offending or recent relevant convictions.
• Practical and policy considerations, such as the risk of inconsistent verdicts with co-defendants or the proper administration of justice in light of case management.

The default position under the Allocation Guideline is that cases should be tried summarily unless the sentencing powers would be clearly inadequate, or complexity or other factors (rarely) tip the balance toward Crown Court trial.

Before reaching a conclusion, magistrates must also warn the defendant that, even if tried summarily, the court retains the power to commit for sentence to the Crown Court if, in light of the facts found and antecedents, a more severe punishment is deemed appropriate.

Key Term: aggregate sentencing powers
The total custodial sentence (subject to statutory maxima) available to the magistrates when a defendant is facing more than one either-way offence arising out of the same or connected circumstances.

Worked Example 1.1

A defendant is charged with two either-way offences: theft (£1,500) and handling stolen goods from the same incident. The prosecution asserts the case warrants significant custody, while the defence suggests mitigation and raises issues relating to complexity. The court observes the defendant has a prior relevant conviction from the previous year.

Answer:
The magistrates must consider sentencing guidelines for both theft and handling, look at the aggregate maximum sentence (twelve months' custody), and take account of the defendant’s previous convictions. They must also consider complexity and listen to both parties' representations. If the likely sentence does not clearly exceed their powers and the case is not unusually complex, they may accept jurisdiction. Otherwise, if powers are insufficient or complexity is high, the case must be sent to the Crown Court.

Defendant's Election

When the magistrates accept jurisdiction for summary trial, the defendant is informed of their legal right to choose the trial venue. This right is fundamental: the defendant may consent to summary trial or elect for Crown Court trial by jury. The legal adviser is required to explain to the defendant:

• That summary trial is available, and the nature of magistrates' sentencing powers, including the ability to commit for sentence if appropriate.
• The option to elect Crown Court trial, including basic details of the process.

If the defendant consents to be tried summarily, the case is retained in the magistrates’ court, and directions are set for further case management, with timelines for prosecution evidence and any voluntary defence statement. If the defendant elects Crown Court trial, the matter is sent directly to the Crown Court, and a plea and trial preparation hearing (PTPH) is listed.

Key Term: defendant's election
The right, available to an adult defendant in an either-way offence where summary trial is offered, to choose to be tried by a judge and jury in the Crown Court.

Strategic advice at this stage should be tailored to the specific defendant’s circumstances, the evidential case, the complexity of the trial, and factors such as speed, cost, likelihood of conviction, and potential sentence. In practice, considerations include:

• Perceived benefit of jury trial (statistically higher acquittal rates, especially in contested cases).
• Capacity for more robust challenge to prosecution evidence in the Crown Court, where the judge can rule on admissibility in the absence of the jury.
• More time for defence preparation (trials in the Crown Court are often listed later than in the magistrates’ court).
• The limited, and sometimes preferable, sentencing options in the magistrates’ court, with swifter resolution and less expense or exposure to prosecution costs.
• Differences in disclosure and defence obligations (no compelled defence statement in summary proceedings; compulsory in the Crown Court).
• The greater publicity, formality, and procedural complexity of the Crown Court.
• Multiple defendants: If one co-defendant elects for jury trial (or summary jurisdiction is not accepted for one), typically all co-defendants will be tried together in the Crown Court to avoid inconsistent verdicts.

Where co-defendants or multiple counts are involved, the court will give careful directions to ensure all defendants are fully informed of their independent right to choose.

Further, the defendant can request a sentence indication at this stage.

Key Term: sentence indication
Any indication given by the court at the allocation stage as to whether a custodial or non-custodial sentence is likely if the defendant pleads guilty to an either-way offence tried summarily. If a non-custodial indication is given and the defendant pleads guilty on this basis, the court is generally bound not to impose a custodial sentence for that offence.

If a sentence indication is given, the defendant is permitted to reconsider their choice in light of that indication. If the defendant then pleads guilty, the court is bound by its indication as to the type of sentence. If not, the indication is disregarded. If the indication covers only custody/non-custody and the court later wishes to impose a custodial sentence, this can only be done if it was included in the indication.

Worked Example 1.2

A defendant charged with assault occasioning actual bodily harm (an either-way offence) is offered summary trial. After considering both procedural speed and possible sentencing outcomes, the defendant elects trial in the Crown Court.

Answer:
The magistrates arrange for the case to be sent to the Crown Court, where a plea and trial preparation hearing (PTPH) will be held. The defendant’s plea will be formally taken, and the case will be managed with full directions for evidence and disclosure.

Worked Example 1.3

A defendant, facing charges of theft (pleading guilty) and criminal damage (pleading not guilty), is allocated to summary trial for the not guilty count.

Answer:
The court deals with the allocation and management of the criminal damage charge (not guilty). In relation to the theft charge, the magistrates may sentence immediately or postpone sentencing to follow the trial of the remaining count. If the not guilty count is later sent to the Crown Court (either because of a change in jurisdiction or co-defendant election), the guilty plea count may be committed to the Crown Court for sentencing.

Worked Example 1.4

A defendant is charged with shoplifting to the value of £120 (low-value) and pleads not guilty. The magistrates cannot decline jurisdiction due to s 22A, but the defendant prefers jury trial.

Answer:
Despite the offence being classified as summary only under s 22A for low-value shoplifting, the defendant retains the right to elect Crown Court trial. The case can therefore be sent to the Crown Court upon the defendant’s election.

Worked Example 1.5

Two linked charges: an indictable-only offence of robbery, and an either-way count of criminal damage are listed together.

Answer:
As the criminal damage is related to the indictable-only robbery charge and both offences are listed together at the first hearing, the either-way count is sent to the Crown Court alongside the indictable-only one, with no allocation hearing for the criminal damage.

Sentencing Powers and Committal

Where a defendant pleads guilty (either at the outset or at summary trial) or is convicted, magistrates must next determine whether their sentencing powers are sufficient for appropriate disposal.

If the magistrates' powers are adequate (having applied the sentencing guidelines and considered all cases together), they may proceed to sentence. If at any stage it appears that only a more severe penalty than they can lawfully impose would be appropriate (for example, aggravated facts emerging on the prosecution evidence or at Newton hearing), the court must commit the defendant to the Crown Court for sentence.

Key Term: committal for sentence
The statutory process by which a magistrates’ court sends a convicted or pleading defendant to the Crown Court for sentence because the facts or the combination of offences demand punishment that exceeds the magistrates’ powers.

Bail must be considered afresh at each stage. If a defendant, previously on bail, is committed for sentence, magistrates typically extend bail pending sentence unless custody is now justified. Remand status may not be changed where committal is for sentence alone.

Credit for an early guilty plea remains a significant mitigating factor; defendants indicating guilt at the plea before venue stage generally receive the maximum reduction, although successful challenge to prosecution facts (at a Newton hearing) may reduce this credit.

If facts relevant to a guilty plea are disputed in a way material to sentence, or the basis of plea is not agreed, the court should hold a Newton hearing (a trial of issue) to resolve the questions. A Newton hearing can affect outcome and credit for plea.

Factors Affecting Venue Decision

Magistrates' consideration—when determining allocation—must be comprehensive and guided by:

• The specific seriousness and surrounding facts of the offence(s), calibrated by applicable Magistrates’ Court Sentencing Guidelines.
• The defendant’s antecedents, including prior convictions that may increase risk or penal requirements.
• The factual and legal complexity of the case, including anticipated disputes, volume of evidence/witnesses, and the likelihood of substantial legal argument.
• The adequacy of the court’s sentencing powers, bearing in mind the possible need for committal if powers are exceeded.
• Submissions by both prosecution and defence, particularly where there is consensus for summary trial, or, conversely, compelling reasons for Crown Court trial.
• Practical matters: the risk of prejudice to co-defendants, the desirability of joined proceedings, and case management advantages or challenges with each venue.

Where either-way offences are charged alongside summary-only or indictable-only matters, or with youth defendants, further statutory and procedural considerations apply around allocation to ensure just and coordinated case management.

Where the prosecution believes, before trial begins, that magistrates’ powers would be inadequate in light of emerging facts, they may apply to have the case sent to the Crown Court. This must be done before the trial starts.

Key Term: allocation guideline
The guidance issued by the Sentencing Council, stating that either-way offences should generally be tried summarily unless, based on the circumstances of the case, the court considers its sentencing powers are inadequate.

Exam Warning

If the magistrates accept jurisdiction, the defendant retains an absolute right to elect Crown Court trial. Summary allocation does not bind the defendant to summary trial.

Sending Without Allocation

Exceptional statutory procedures sometimes allow for either-way offences to be sent directly to the Crown Court without any plea before venue or allocation hearing. These situations, permitted under the Crime and Disorder Act 1998, s 50A and related provisions, are:

• Where an either-way offence is charged jointly with an indictable-only offence, the either-way matter must be sent to the Crown Court together with the indictable-only count.
• When prosecution serves a “serious or complex fraud” notice (s 51B, Crime and Disorder Act 1998) advising that the case’s factual matrix or complexity requires immediate transfer to the Crown Court for effective management.
• Where the case involves a child witness and a notice is served under s 51C, such as in certain sexual, violent, or child cruelty offences, to safeguard the welfare and best interests of the child.
• Either-way offences arising from the same facts as a case already being sent to the Crown Court for a related indictable-only offence or fraud/child witness notice.

Key Term: sending without allocation
The statutory process by which certain either-way offences are sent straight to the Crown Court without the standard determination of plea and venue, usually because they are linked to indictable-only offences or are specially designated cases.

This procedural route avoids fragmentation, ensures effective case management, and reduces the likelihood of inconsistent verdicts or duplication of evidence.

Additional Procedural Considerations

After venue is determined—either by summary allocation or by Crown Court committal—distinct case management practices apply:

• In magistrates’ court, a "Preparation for Effective Trial" hearing is held. The court issues standard directions for service of prosecution evidence (usually within 28 days) and for any voluntary service of a defence case statement (within 14 days). The parties must identify issues in dispute, notify of any special measures applications, and provide details of witnesses and evidence.
• In the Crown Court, a PTPH (Plea and Trial Preparation Hearing) is listed, typically within 28 days of transfer. The indictment is managed, the defendant is arraigned, and bespoke pre-trial timetables and directions are constructed to ensure the case is trial-ready. The prosecution must comply with comprehensive disclosure obligations, and the defence must serve a compulsory defence statement.
• Throughout, disclosure duties for both sides are governed by strict statutory timelines and the Attorney General’s Guidelines on Disclosure. The prosecution must disclose all material which might reasonably assist the defence or undermine the Crown’s case.

Where one or more counts are summary-only (or where there are youth defendants jointly charged with adults), discrete procedures, including the possibility of separate trials or remittal to the youth court, may arise. The magistrates must coordinate venue appropriately, considering statutory limitations and the interests of justice.

Summary

Summary trial proceedings are managed through preparation hearings and directions, focusing on effective and fair progress. If a case is sent to the Crown Court, comprehensive case management directs disclosure timetables, witness identification, special measures, and trial date settings.

Venue decisions, once made, dictate disclosure requirements, sentencing options, route and grounds of appeal, and the availability of summary versus jury trial. Defendants have full rights of appeal (after sentence or conviction) under set procedures, subject to statutory time limits.

Key Point Checklist

This article has covered the following key knowledge points:

• The plea before venue process applies only to either-way offences in the magistrates' court; summary-only and indictable-only offences follow distinct paths.
• The defendant is invited to indicate their plea; a not guilty indication or no indication requires the court to conduct an allocation hearing under statutory rules.
• The magistrates (with reference to the Allocation Guideline) must consider seriousness, complexity, sentencing maxima, the defendant’s antecedents, aggregate sentencing powers, and representations as to venue.
• If the magistrates accept summary jurisdiction, the defendant can still opt for Crown Court trial by election; if they decline jurisdiction, or a co-defendant triggers Crown Court trial, all related cases are sent on for indictment.
• Sentencing indication is at the court's discretion. If an indication is given, and the defendant pleads guilty on that indication, magistrates cannot later impose a more severe sentence than indicated.
• Low-value shoplifting under s 22A MCA 1980 is generally triable summarily, but defendants pleading not guilty retain a right to jury trial by election; where multiple values are aggregated to exceed £200, the case is restored to either-way status.
• Either-way offences related to an indictable-only charge, or in designated serious/complex categories, may be sent to the Crown Court without allocation by operation of statute.
• Where magistrates' sentencing powers are inadequate after conviction or guilty plea, committal for sentence to the Crown Court is available, with bail and remand considered afresh at each transition.
• The process is underpinned by the Criminal Procedure Rules’ overriding objective: to deal with cases justly, efficiently, and with full respect for defendants' and victims’ rights.
• Special rules and discretionary powers exist for youth defendants, related cases, and situations involving vulnerable witnesses or complex factual circumstances.

Key Terms and Concepts

• plea before venue
• either-way offence
• allocation
• aggregate sentencing powers
• defendant's election
• committal for sentence
• initial details of the prosecution case (IDPC)
• sentence indication
• allocation guideline
• sending without allocation