Prosecuting an Either Way Offence

Either way offences have been discussed above and include theft, burglary and assault occasioning actual bodily harm. It is usual in prosecuting a defendant for an either way offence that a mode of trial hearing is scheduled in the magistrates' court to determine whether the defendant should be tried summarily or on indictment. Before the mode of trial hearing there is a Plea before Venue procedure where the defendant is given the opportunity to indicate to the court how he intends to plead. In the event that the defendant indicates a guilty plea the magistrates must hear the case but can commit the defendant to the crown court for sentence.

A mode of trial enquiry is held where the defendant pleads not guilty or does not indicate a plea at this stage and magistrates must make an initial decision as to where the case should be tried. In order to consider this the magistrates will apply the guidelines in s19 MCA 1980 and the National Mode of Trial Guidelines and will consider the nature of the case, seriousness of the offence and in particular whether their maximum sentencing powers are likely to be sufficient. Aggravating factors that would lead to the case belong sent to the crown court include, premeditation, the vulnerability of the victim, any goods stolen or damage to property that is of a high value. For instance in the either offences involving theft and fraud the Mode of trial Guidelines suggest that they must be dealt with summarily unless the court considers that the following aggravating factors are present:

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  • Breach of trust by someone in authority
  • Whether theft or fraud has been disguised in a sophisticated manner
  • Whether committed by an organised gang
  • High value of unrecovered property
  • Vulnerable victims eg. Elderly or infirm

Where the magistrates decide that the either way offence should be tried summarily it is still the decision of the client to agree or to elect for a crown court trial. There are various disadvantages and advantages to being tried in the magistrates or the crown court so you must consider your client's individual circumstances and the facts of the case when giving advice on this. A client who is nervous and not eligible for public funding may well be better suited to facing trial in the magistrates court than one who is publicly funded, has a good defence and feels fit to go through the more rigorous crown court proceedings.

The advantages of a crown court trial are:

  • Higher acquittal rate: lawyers believe that a jury is more likely to acquit their client  of the offence due to the fact that they approach the case from a layman's viewpoint and are not legalistic or case hardened as with the magistrates
  • Disputed evidence: the judge as a legal professional has more knowledge about rules of evidence and the fact that during the voir dire, where issues of admissibility are discussed, the jury are not in the court room means that they do not get to hear these arguments as opposed to the magistrates who hear arguments of admissibility and are required to ‘put them out of their mind'
  • Delay: this can of course be both an advantage and a disadvantage. The advantage being you have more time to prepare your case and test the prosecution case.
  • Cost: there is a provision where by defence costs can be recovered under a Recovery of Defence Costs Order under r 11 of the Criminal Defence Service
  • Powers of sentence: crown court powers of sentence including custody and fines are greater so this will be an important factor to bear in mind

Summary trial

  • More lenient sentence as magistrates have less sentencing power than in the crown court
  • Less delay if client in custody or is nervous and would lie to get the trial over with
  • Publicity- crown court trial generally attract greater publicity
  • Crown court trials are generally more stressful
  • In summary proceedings there is no need for the defence to serve a defence statement as with crown court trials

After the mode of trial hearing where client has elected for the crown court or the magistrates have declined jurisdiction the case will be adjourned for 6-8 weeks after which there will be a committal hearing.  Here the prosecution are required to submit a prima facie case against the accused. During the adjournment the defence solicitor should have received and considered the committal bundle from the prosecution setting out the prima facie case. These papers should include  a list and copies of the evidence that the prosecution would seek to rely on which would include witness statements and exhibits and also a copy of the draft indictment. There are two types of committal hearings, with or without consideration of the evidence.

Committal hearing with consideration of the evidence: Usually this will be held if the defendant is not represented or his solicitor wishes to make representations of no case to answer. Live evidence is not called and the prosecution can only read from witness statements. The charge is read to the defendant and the prosecution must establish a prima facie case against him.

Committal without consideration of the evidence : Largely administrative. The charge is read to the defendant  who is not expected to plead. The defence solicitor must ensure that all the evidence has been correctly served and the case is sent to the crown court.

Other issues to be dealt with upon committal

  • Case management directions: a date will be set for the Plea and Case Management hearing. The standard direction will be given for service of initial disclosure, defence statement, notification of which prosecution witnesses the defence wishes to attend trial
  • Bail: your client would more than likely already be on bail therefore bail should be extended to cover the crown court proceedings
  • Disclosure:  the prosecution must serve used and unused material and defence must make any objections to witness statements being read at trial

>> Pre Trial Disclosure or Evidence