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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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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:

Summary trial

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

>> Pre Trial Disclosure or Evidence