Procedures and processes in criminal litigation - First hear...

Learning Outcomes

This article covers first hearings before the magistrates’ court, including:

• The structure and objectives of the first appearance and the distinctions between summary-only, either-way, and indictable-only offences
• The required procedural steps at first hearing, from confirming the charge and securing public funding to plea entry and early case management
• The principal statutory tests and evidential requirements for representation orders (legal aid), and accurate application to realistic scenarios
• The comprehensive role of the defence solicitor, including ethical and professional conduct under the SRA Code of Conduct and the Criminal Procedure Rules
• The initial duties of the prosecution, particularly service of initial details of the prosecution case (IDPC), and how these support plea, allocation, and defence preparation
• The impact of early decisions—venue, bail, and plea—on case progression and the tactical and ethical challenges that may arise
• Weighing procedural options such as negotiating bail, managing co-defendant conflicts, and ensuring fairness for vulnerable defendants, including the use of appropriate adults

SQE2 Syllabus

For SQE2, you are required to have a detailed working knowledge of first hearing procedures before the magistrates’ court, with a focus on the following syllabus points:

• The three main classifications of criminal offences (summary-only, either-way, indictable-only) and how they shape procedure.
• Core events and required steps at the defendant’s initial magistrates’ court appearance according to offence type.
• Statutory framework and practical application for representation orders, means testing, and the interests of justice (merits) test.
• The precise obligations for prosecution service of initial details of the prosecution case (IDPC) and the implications this has for disclosure, pleading, and directions.
• The full range of duties and necessary actions of the defence solicitor at first hearing, including preparation, ethical conduct, professional responsibilities, advice on plea and venue, and handling pre-trial disclosure.
• The options and pathways for bail, including procedural applications, common conditions, and rights of appeal.
• The impact of first hearing outcomes on case management, including directions for trial, further disclosure, and setting dates for subsequent hearings.
• Principles surrounding the treatment of vulnerable defendants and juveniles at first appearance.
• The relationship between initial appearance decisions and subsequent case progression, including transfers to the Crown Court and adjournments for reports.

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 offence for first hearings before the magistrates’ court?
2. What determines whether a defendant’s case at first hearing will remain in the magistrates’ court or go to the Crown Court?
3. Which two queries about public funding must be considered when applying for a representation order before the magistrates’ court?
4. Explain, in one sentence, the principal function of the defence solicitor at a client’s first court appearance.

Introduction

Upon being charged with a criminal offence as an adult in England and Wales, an individual will have their first court appearance before the magistrates’ court. This initial hearing is a critical stage in criminal litigation, intended to clarify the offence and case classification, determine representation, facilitate the entry of a plea, consider bail or remand, and ensure the Court can manage the case's progression effectively. The outcome of the first hearing shapes not only immediate procedural decisions but also the entire trajectory of the case, including the potential for summary trial, allocation to the Crown Court, and early case management. A solicitor must be prepared to advise, defend, and protect the interests of the client—while fulfilling duties to the Court and the integrity of the legal process.

Classifying Criminal Offences

Central to all first hearing decisions is the classification of the offence, which dictates the procedural pathway, the available sentencing powers, and whether trial occurs in the magistrates’ court or the Crown Court.

Key Term: summary-only offence
An offence that may be tried only by magistrates and not the Crown Court. Examples include most road traffic offences and minor public order incidents.

Key Term: either-way offence
An offence that may be tried either summarily (by magistrates) or on indictment (by Crown Court), depending on seriousness, factual circumstances, and allocation procedures. Theft (other than low-value shoplifting) and assault occasioning actual bodily harm are illustrative examples.

Key Term: indictable-only offence
An offence tried exclusively on indictment before a judge and jury in the Crown Court; the most serious criminal matters, such as murder, rape, and robbery.

This classification is determined by statute and is important for advising clients accurately and conducting early hearings efficiently.

Essential Rules and Special Cases

Most offences fall straightforwardly into one of these three categories. However, certain statutory provisions create exceptions. For example, shoplifting involving goods valued at £200 or less is generally tried as a summary-only offence unless the defendant elects for jury trial on a not guilty plea (Magistrates’ Courts Act 1980, s. 22A). Low-value criminal damage (under £5,000) is similarly subject to summary trial only, regardless of the defendant’s preference. Some either-way offences are escalated to indictable-only status if aggravated by prior convictions (e.g., domestic burglary under the "three strikes" rule).

For either-way offences, the factual matrix, possible sentence, and prosecution representations affect whether the case is tried by magistrates or the Crown Court.

Worked Example 1.1

A defendant, Emma, is charged with burglary. The charge is read out at her first hearing before the magistrates’ court. What must the court do next?

Answer:
As burglary is generally classified as either-way, the magistrates are required to ask Emma to indicate her plea. If she indicates not guilty, the allocation procedure takes place to determine if the matter is fit for summary trial or should be allocated to the Crown Court. If Emma pleads guilty, the court must consider whether their sentencing powers are sufficient and either sentence her or commit her for sentence to the Crown Court.

What Happens at the First Hearing?

Once classification is established, the following steps occur, each tailored to the category of offence:

• Summary-only offences: The charge is read, and the defendant is invited to enter a plea. Where a guilty plea is entered, the magistrates may sentence immediately or adjourn for reports. For not guilty pleas, a trial date is set, and directions for the preparation of trial are provided, including deadlines for disclosure, service of witness lists, and applications for special measures.
• Either-way offences: The court undertakes the plea before venue (PBV) process. The defendant is asked to indicate a plea. If not guilty, the magistrates conduct an allocation hearing to determine trial venue. Where the case is retained for summary trial, the defendant may still elect jury trial. If the magistrates find their sentencing powers inadequate, the case is sent to the Crown Court.
• Indictable-only offences: The magistrates lack jurisdiction to try or sentence. After confirming the charge and taking a plea indication (for administrative purposes only), the court must send the matter to the Crown Court pursuant to s. 51 Crime and Disorder Act 1998. Representations about bail or remand may be made but no trial-preparation directions are set.

Alongside these procedural routes, the first hearing addresses bail, public funding, and representation.

Exam Warning

The distinction between "either-way" and "indictable-only" offences must be strictly observed. Indictable-only offences are automatically sent to the Crown Court. Either-way offences necessitate a venue allocation process if there is a not guilty plea.

Worked Example 1.2

A man is charged with theft of £150 of goods from a supermarket. He pleads not guilty. What procedure will the court follow?

Answer:
The matter would be classified as low-value shoplifting, recognised as a summary-only offence. Although the defendant pleads not guilty, the magistrates must inform him of his right to elect a Crown Court trial. If he elects summary trial, the case remains in the magistrates’ court. If he chooses jury trial, it is transferred to the Crown Court for trial.

Prosecution Disclosure – Initial Duties

For summary-only and either-way offences, the prosecution must serve initial details of the prosecution case (IDPC) at or before the first hearing (CrimPR Part 8). The IDPC must include a summary of the offence, key statements, evidence to be relied on at plea or allocation, and the defendant’s criminal record (see below for further details under "Initial Prosecution Disclosure"). For indictable-only offences, full evidence disclosure is managed in accordance with directions made by the court after the transfer to the Crown Court.

Key Term: initial details of the prosecution case (IDPC)
Pre-trial disclosure provided by the prosecution, sufficient to clarify the nature of the case, support an informed plea, and enable magistrates to give appropriate directions for trial or allocation. Contents include a summary of facts, witness statements, evidence exhibits, and previous convictions.

Where the prosecution fails to provide IDPC, the court cannot admit undisclosed evidence without allowing the defence sufficient time to consider it.

Worked Example 1.3

The prosecution has served limited details before the first hearing, but at the outset seeks to introduce further material from a witness not disclosed in the IDPC. What may the court do?

Answer:
The court must not allow the newly presented material to be admitted unless the defence is given adequate time to consider it. It is a strict rule that undisclosed prosecution evidence cannot be introduced without fairness to the defence; the magistrates must ensure procedural justice.

Public Funding and Representation Orders

An essential step at first appearance is ascertaining how the defendant will be represented. Solicitors must ensure that all funding and eligibility documentation is prepared at the outset.

Key Term: representation order
A court-issued document authorising publicly funded legal assistance in criminal proceedings, conditional on passing the means and merits (interests of justice) tests.

Public funding (via criminal legal aid) is available only if both requirements are satisfied:

• Interests of Justice (Merits) Test: Legal representation funded by the state is only allowed where it is in the interests of justice. The governing criteria are extensive and include whether the defendant faces a likely custodial sentence if convicted, the risk of losing employment or suffering serious reputational damage, inability to fairly present their own case (e.g., due to language or mental capacity), likely complexity or the need to trace and cross-examine witnesses, and whether expert legal cross-examination is necessary.
• Means Test: This test measures the defendant’s financial eligibility for funding. Those under 18 or on certain benefits (e.g. Universal Credit, Income-based JSA) satisfy the test automatically. For others, the application examines annual income, number of dependents, essential living costs, and whether disposable income falls below current statutory thresholds. Supporting evidence (payslips, benefit letters, bank statements) must be provided.

Applicants passing both tests will be granted a representation order. Defendants not meeting the threshold may appeal to the court, citing hardship, but funding is not available simply on request.

Key Term: interests of justice test
The test requiring that the merits of the case justify state-funded legal representation—taking account of the likely custody outcome, case complexity, risk to livelihood or reputation, ability to follow proceedings, and other factors set by statute.

Key Term: means test
An evaluation of personal income, expenses, and, where relevant, assets, to determine financial eligibility for legal aid.

Worked Example 1.4

Maria, charged with an either-way offence and earning £17,000 per year, applies for a representation order. She is not on benefits and has no dependants. She faces a possible prison sentence. What information and documentation must she give to succeed in her application?

Answer:
Maria must state reasons (risk of custody, possible loss of livelihood, or complexity of law) why it is in the interests of justice for her to be represented. She must also provide full financial information (income, rent, bills, bank statements). If her disposable income is below the relevant threshold, she may be granted an order; otherwise, she may be refused.

The Role of the Defence Solicitor at First Hearing

The defence solicitor’s role at the first hearing is wide-ranging, encompassing a set of interlocking legal, strategic, and ethical duties.

• Reviewing the Prosecution Case and Disclosure: The solicitor secures and scrutinises the IDPC to ensure the client understands the nature of the case. This enables early advice on plea, prospects for bail, and the relative strength of the evidence.
• Obtaining and Confirming Instructions: The solicitor must ensure the client comprehends the charge, the available evidence, and the legal options (including plea and venue). Detailed instructions are secured and checked against the prosecution’s case.
• Advising on Plea and Venue: The solicitor provides clear guidance on the implications of pleading guilty (including potential credit in sentencing) or not guilty. Where an either-way offence is involved, comprehensive advice regarding the pros and cons of Crown Court vs. magistrates’ court trial is required, taking into account factors such as likelihood of acquittal, sentencing power, cost, length, and public exposure.
• Case Management: Solicitors are responsible for identifying any immediate case management issues—such as the need for special measures, vulnerable witnesses, or early defence submissions. They should ensure that proper directions are requested so evidence is served in good time, witnesses are identified, and the needs of the defence are met.
• Conduct and Ethics: Solicitors must uphold their duties to the court, act with independence, ensure no misleading statements are made, and resolve any conflicts of interest (e.g., co-defendant representation) in line with the SRA Code of Conduct.
• Bail Applications: Where the client is in custody, the solicitor makes prompt, tailored applications for bail—negotiating with the prosecution where possible and addressing all statutory exceptions and potential bail conditions.
• Vulnerable Defendants and Appropriate Adults: Where a defendant is a juvenile or otherwise vulnerable, the solicitor must ensure that an appropriate adult is present, and that all necessary procedural adjustments have been made.

Key Term: initial prosecution disclosure
The prosecution’s legal duty to provide the defence, at the first hearing, with sufficient information about the evidence and allegations to allow meaningful defence preparation and effective management of the proceedings.

Worked Example 1.5

You are representing a vulnerable 17-year-old charged with assault. The client’s parent, who is a witness in the case, attends court. What are your immediate considerations as defence solicitor?

Answer:
A parent who is a complainant or relevant witness should not act as the appropriate adult (see PACE Code C). The solicitor should immediately clarify who may act, and if necessary, request that another responsible adult, or failing that, a local authority social worker, be appointed. The solicitor should also ensure the client understands the process, rights, and options throughout.

Next Steps After First Hearing

The future course of the case depends on the plea and allocation decisions made at the hearing:

• Guilty Plea: The matter proceeds directly to sentence, or is adjourned while pre-sentence reports are obtained or further evidence is prepared. The type and seriousness of the offence, and the court’s sentencing powers, determine whether the magistrates sentence or commit the matter to the Crown Court.
• Not Guilty Plea (summary-only or either-way retained): The magistrates’ court arranges a trial date, issues standard pre-trial directions (including evidence and witness service, special measures for vulnerable witnesses, forensic timelines), and identifies key legal or factual issues in dispute.
• Not Guilty Plea (either-way sent to Crown Court or indictable-only): The court makes procedural directions for first appearance in the Crown Court (PTPH or preliminary hearing), fixes a date for return, and deals with interim matters such as remand or bail.

Each pathway has distinct timelines and disclosure requirements to ensure compliance with the overriding objective of justice and expedition.

Allocation, Plea Before Venue, and Binding Effects

For either-way offences, after PBV, the allocation hearing determines venue (summarily or on indictment). If the magistrates accept summary jurisdiction, the defendant can still elect Crown Court trial. Notably, if the Crown Court is to be used, the case is transferred forthwith, along with any relevant summary-only charges arising out of the same facts, to ensure all matters are dealt with together.

If a defendant requests an indication of sentence before deciding on venue, the indication (while not strictly binding on the Crown Court) restricts the magistrates’ powers. A custodial sentence cannot be imposed if not included within the indication and the plea is changed to guilty on the basis of that indication.

Professional Duties and Ethical Considerations

The defence solicitor at first appearance must not only safeguard the client’s rights but also comply with ethical obligations, including:

• Ensuring all representations to the court are properly arguable and not misleading.
• Refusing to act if the client intends to give false information to the court or police (the solicitor must withdraw in such circumstances).
• Avoiding acting in situations of conflict of interest, especially in co-defendant scenarios.
• Maintaining client confidentiality unless specifically required to disclose under law or with the client’s informed consent.
• Supporting vulnerable clients or juveniles, ensuring that procedural rights—such as the involvement of an appropriate adult—are protected, and making representations where the police or court have failed to provide the necessary safeguards.

Key Term: appropriate adult
An adult, such as a parent, guardian, social worker, or other responsible person (not involved in the investigation or a witness or victim), whose presence is required during investigation and court proceedings for juveniles or vulnerable adults to ensure understanding, communication, and the protection of legal rights.

Solicitors must remain alert to rapid changes at first appearance, including late evidence, disclosure issues, client vulnerability, and emerging ethical concerns.

Key Point Checklist

This article has covered the following key knowledge points:

• The procedural pathway at first appearance depends fundamentally on whether the offence is summary-only, either-way, or indictable-only.
• Summary-only offences are entirely disposed of by magistrates, either-way offences require PBV and allocation, and indictable-only offences are automatically sent to the Crown Court.
• The prosecution must provide sufficient initial disclosure (IDPC) to the defence and the court for meaningful case management and plea advice.
• Representation orders are granted only if both the interests of justice and means test are passed; solicitors must be thorough in gathering and submitting supporting documentation.
• Defence solicitors are responsible for securing and reviewing prosecution disclosure, advising on plea and venue, applying for public funding, making or opposing bail applications, and ensuring procedural fairness for all clients—particularly the vulnerable.
• Essential conduct and ethical duties include the avoidance of conflicts of interest, upholding client confidentiality, and refraining from misleading the court.
• Key procedural choices at the first hearing—including plea, bail applications, venue election, and case management directions—have significant and often irreversible effects on the route and outcome of subsequent criminal litigation.

Key Terms and Concepts

• summary-only offence
• either-way offence
• indictable-only offence
• representation order
• interests of justice test
• means test
• initial details of the prosecution case (IDPC)
• initial prosecution disclosure
• appropriate adult