## Introduction

All criminal cases in England and Wales start in the Magistrates’ Court. Whether a case stays there depends on the type of offence, how serious it is, and in some situations the defendant’s choice. Some offences can be tried either in the Magistrates’ Court or the Crown Court. A defendant facing an either-way offence can ask for a jury trial in the Crown Court, and the magistrates can also send the case to the Crown Court if they think their sentencing powers might not be enough.

This guide explains the maximum sentence the Magistrates’ Court can pass, how allocation works, and the key factors that influence sentencing, including early guilty plea credit, pre-sentence reports, and personal mitigation.

## What You'll Learn

- The three offence types: summary-only, either-way, and indictable-only
- How venue is decided and when a defendant can choose Crown Court trial
- The Magistrates’ Court’s maximum custodial powers (single vs multiple offences)
- When and why magistrates commit a case to the Crown Court for sentence
- The temporary 2022–2023 change to magistrates’ custody powers (now reversed)
- How the custody threshold works and the role of the totality principle
- Credit for an early guilty plea and how timing affects the reduction
- The purpose of pre-sentence reports and typical community requirements
- What counts as personal mitigation and how it can affect the sentence

## Core Concepts

### Offence Types and Allocation

There are three offence types:

- Summary-only: can only be tried in the Magistrates’ Court (for example many road traffic offences and some public order offences).
- Either-way: can be tried in either court. Venue is decided based on seriousness and suitability, and the defendant can sometimes opt for Crown Court trial.
- Indictable-only: must be sent to the Crown Court (for example robbery and the most serious violence or drugs offences).

Who hears the case differs between courts:

- Magistrates’ Court: a bench of lay magistrates (usually three) or a District Judge (Magistrates’ Courts) sitting alone.
- Crown Court: a judge and, for trials, a jury of 12.

Allocation for either-way offences is guided by seriousness and the likely sentence. If the magistrates consider their powers may be insufficient, they can send the case to the Crown Court.

### Sentencing Powers in the Magistrates’ Court

Magistrates can impose:

- Discharges (absolute or conditional)
- Fines (often unlimited for many offences, subject to statute)
- Compensation orders and costs
- Community Orders (e.g., unpaid work, rehabilitation activity, curfew)
- Suspended sentences (within their custody limits)
- Immediate custody (within their custody limits)

Maximum custody in the Magistrates’ Court (current position):

- Single either-way offence: up to 6 months’ imprisonment
- Two or more either-way offences: up to 12 months in total if consecutive sentences are imposed
- Summary-only offences: statutory maxima apply (often fines or up to 6 months, depending on the offence)

If the court thinks the case requires a longer sentence than they can impose, they can commit the case to the Crown Court for sentence (often called a committal for sentence) after conviction.

### Temporary change in 2022–2023

To tackle Crown Court backlogs, magistrates’ powers were temporarily extended from 2 May 2022 so they could impose up to 12 months for a single either-way offence. This measure was reversed on 30 March 2023. The position has since reverted to the pre-2022 limits summarised above.

### Custody Threshold, Totality and Consecutive Sentences

Before imposing prison, magistrates must consider whether the “custody threshold” has been crossed. They do this by:

- Assessing the offence’s seriousness using the relevant Sentencing Council guideline
- Considering harm caused and culpability
- Weighing aggravating and mitigating features

Even if the threshold is crossed, immediate custody is not automatic. The court should consider whether a Community Order or a suspended sentence would be a proper alternative.

Factors relevant to an immediate custodial sentence include:

- Risk or danger posed to the public
- Whether punishment can only be achieved by immediate custody
- History of non-compliance with court orders

Where there are multiple offences, the totality principle applies. The overall sentence must be just and proportionate. Magistrates decide whether terms run concurrently (at the same time) or consecutively (one after the other). The 12‑month aggregate limit for two or more either-way offences is only reached by consecutive terms.

### Early Guilty Plea Credit, PSRs and Personal Mitigation

Early guilty plea credit

- Plea at the first reasonable opportunity usually attracts up to one-third reduction.
- Later pleas attract smaller reductions.
- A guilty plea should only be entered if the defendant accepts guilt for the offence charged.

Pre-sentence reports (PSRs)

- Prepared by Probation to assess risk and suitability for community-based sentences.
- Commonly advise on rehabilitative requirements, unpaid work, curfews, and support needs.
- Provide useful context for the court to sentence proportionately and safely within the community where possible.

Personal mitigation

- Limited or no previous convictions
- Genuine remorse and steps taken to address causes of offending (e.g., treatment, counselling)
- Caring responsibilities and other personal circumstances
- Good character and positive contributions to the community
- Evidence of compliance on bail and engagement with support services

## Key Examples or Case Studies

### 1) Two theft offences (either-way)

- Facts: A defendant pleads guilty to two shop thefts committed a week apart. Each offence is assessed as crossing the custody threshold due to high value and previous similar convictions.
- Sentence options: The magistrates could impose two short custodial terms and make them consecutive, subject to the 12‑month aggregate limit for either-way offences. Alternatively, a Community Order with rehabilitation and unpaid work may be suitable if there is a realistic prospect of reducing reoffending.
- Key point: The early guilty plea could reduce any custodial term by up to one-third. If the magistrates believe a longer term is needed, they can commit the case to the Crown Court for sentence.

### 2) Assault occasioning actual bodily harm (either-way)

- Facts: The defendant is convicted after trial of assault occasioning ABH (s.47). The guideline places the offence at the upper end of seriousness because of injury and use of a weapon.
- Sentence options: If the court considers that proportionate punishment requires more than 6 months for a single offence, they should commit for sentence to the Crown Court. If within powers, they might impose up to 6 months or consider a suspended sentence with strict requirements.
- Key point: Where the likely sentence exceeds magistrates’ powers, the correct course is to send the case up for sentencing.

### 3) Summary motoring offence

- Facts: A driver pleads guilty to a summary-only speeding offence.
- Sentence options: Fine, costs, victim surcharge, and endorsement or disqualification, according to the guideline. Custody is not relevant.
- Key point: Not all summary offences carry custody. Many are dealt with by fines and driving penalties.

## Practical Applications

- Check offence type early. This informs venue, sentencing powers and plea strategy.
- For either-way offences, be ready to address allocation. Highlight factors showing the case is suitable to remain in magistrates if that benefits the defendant, or explain why Crown Court trial is preferred.
- Assess likely sentence against magistrates’ powers. If it may exceed 6 months for a single either-way offence (or 12 months in total for multiple), anticipate a committal for sentence.
- Secure a pre-sentence report where appropriate. It can support community-based options and outline realistic rehabilitation plans.
- Advise on plea timing. An early guilty plea usually brings up to a one‑third reduction.
- Prepare mitigation thoroughly. Provide evidence of progress (e.g., engagement with treatment, stable work, caring duties) and any steps taken to prevent further offending.
- Consider totality. On multiple counts, address whether sentences should be concurrent or consecutive and ensure the overall package is proportionate.
- Where risk to the public is low and punishment can be achieved in the community, propose a tailored Community Order with targeted requirements.

## Summary Checklist

- Identify offence type: summary-only, either-way, or indictable-only
- Address allocation for either-way offences and defendant’s election where available
- Magistrates’ maximum custody:
  - Single either-way offence: up to 6 months
  - Two or more either-way offences: up to 12 months in total (consecutive)

- Use committal for sentence if magistrates’ powers are insufficient
- Remember the 2022–2023 temporary 12‑month single-offence power is currently reversed
- Apply the custody threshold and consider non-custodial options even if crossed
- Apply totality when sentencing multiple offences
- Seek PSR where helpful; propose workable community requirements
- Advise on early guilty plea credit and timing
- Present clear personal mitigation and supporting evidence

## Quick Reference

| Topic                     | Magistrates’ Court position                           | Note                                                 |
| ------------------------- | ----------------------------------------------------- | ---------------------------------------------------- |
| Single either-way offence | Up to 6 months’ custody                               | Current limit after reversal of 2022–2023 change     |
| Two+ either-way offences  | Up to 12 months total (consecutive sentences)         | Totality applies; consider concurrent vs consecutive |
| Summary-only offences     | Statutory maxima (often fine or up to 6 months)       | Depends on the specific offence                      |
| Fines                     | Often unlimited (subject to statute)                  | Level depends on means and offence guideline         |
| Early guilty plea         | Up to one‑third reduction                             | Reduces with later pleas                             |
| Committal for sentence    | Used when likely sentence exceeds magistrates’ powers | Crown Court can impose higher sentences              |


Magistrates’ Court Sentencing: Maximum Powers and Allocation