Allocation of cases between magistrates' court and Crown Cou...

Learning Outcomes

This article outlines the allocation of criminal cases between the magistrates' court and the Crown Court, including:

• Statutory and procedural framework (Magistrates’ Courts Act 1980 ss 19–21, 22A; Crime and Disorder Act 1998 ss 50A, 51A–C; Criminal Procedure Rules Part 9; Sentencing Council’s Allocation Guideline)
• Offence classification (summary, either-way, indictable-only) and effects on case routing
• Steps of plea before venue (PBV) and allocation hearing for either-way offences
• Assessment of seriousness, legal and evidential complexity, and factual background
• Offence-specific sentencing guidelines and aggravating and mitigating factors
• Magistrates’ sentencing powers and aggregate powers under s 19(4) MCA 1980
• Adequacy of magistrates’ summary powers and Crown Court jurisdiction requirements
• Committal for sentence and statutory limitations
• Practical and strategic consequences of venue choice (procedural rights, legal aid eligibility, prior criminal record, custodial indications at allocation hearings)
• Routes for sending cases directly to the Crown Court without allocation and the associated statutory requirements and prosecutorial powers
• Statutory carve-outs and exceptions (low-value shoplifting and criminal damage under £5,000) and their procedural effects
• Application to realistic problem-based scenarios and advice on allocation and sentencing route

SQE1 Syllabus

For SQE1, you are required to understand the allocation of cases between the magistrates' court and the Crown Court, with a focus on the following syllabus points:

• the threefold offence classification: summary, either-way, indictable-only, and impact on allocation process;
• steps and statutory basis of plea before venue and allocation hearings for either-way offences;
• the exercise of judicial discretion and the Magistrates' sentencing powers (incl. aggregate powers under s 19(4) MCA 1980);
• role of aggravating and mitigating factors and Sentencing Council guidelines in assessing seriousness and sentencing suitability;
• judicial and prosecutorial process for sending without allocation (s 50A CDA 1998), including cases involving serious/complex fraud or child witnesses;
• effect and procedural limits of an indication of sentence (MCA 1980 s 20A);
• procedure and criteria for committal for sentence to the Crown Court (Powers of Criminal Courts (Sentencing) Act 2000 s 3), and cases where this is statutorily excluded;
• specialist statutory carve-outs affecting allocation (e.g., low-value shoplifting and criminal damage under £5,000);
• procedural and practical consequences of allocation, including for representation, bail, case management, and appeals;
• relevant statutory framework: Magistrates’ Courts Act 1980 ss 19–21, 22A; Crime and Disorder Act 1998 ss 50A, 51A–C; Criminal Procedure Rules Part 9.

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 offences, and how does each affect the allocation of a case?
2. What is the purpose of the plea before venue and allocation hearing for either-way offences?
3. Name two key factors magistrates must consider when deciding whether to retain jurisdiction or send a case to the Crown Court.
4. In what circumstances can an either-way offence be sent to the Crown Court without an allocation hearing?
5. What is the maximum custodial sentence a magistrates' court can impose for a single either-way offence?

Introduction

When a criminal case is brought before the courts in England and Wales, determining which court should deal with the case is a fundamental procedural step. This allocation, governed by statutory rules, judicial guidance, and the classification of the offence, profoundly affects the trial process, sentencing range, case management, and defendants’ rights.

Summary offences are tried exclusively in the magistrates’ court, while indictable-only offences are sent directly to the Crown Court without an allocation hearing, following the sending provisions in section 51A of the Crime and Disorder Act 1998. The range of either-way offences, however, requires the application of the plea before venue (PBV) and allocation procedures which determine the trial venue for each case. These processes draw upon the procedural rules in Part 9 of the Criminal Procedure Rules, as well as guidelines issued by the Sentencing Council.

The allocation outcome determines not only which tribunal hears the evidence—in the magistrates’ court or before a judge and jury in the Crown Court—but also the available sentencing powers, the potential collateral impact on the defendant such as eligibility for legal aid, the speed and administrative burden of the trial, and the routes and mechanisms by which appeals may be lodged. For SQE1, precise knowledge of this allocation framework, its detailed stages, statutory triggers, and limitations are necessary for effective problem-solving and client-focused advice.

Classification of Offences

Allocation decisions begin with classifying the offence charged. All criminal offences fall into one of three categories:

Key Term: summary offence
An offence that can only be tried summarily in the magistrates' court. Summary offences are generally minor, such as common assault or most public order and road traffic offences. The Crown Court has no jurisdiction for these offences unless attached to related indictable matters.

Key Term: either-way offence
An offence that can be tried either summarily in the magistrates' court or on indictment in the Crown Court, depending on the facts, seriousness, and a judicial assessment of suitability. Typical examples include theft, burglary (other than aggravated forms), and assault occasioning actual bodily harm.

Key Term: indictable-only offence
An offence that is triable solely in the Crown Court, reflecting the most serious criminal acts, such as murder, manslaughter, rape, and robbery.

Most allocation scenarios arise in relation to either-way offences. The magistrates’ exercise of jurisdiction is not absolute: judicial discretion and the statutory allocation framework intervene to ensure appropriately serious and complex cases are reserved for the Crown Court. Statutory carve-outs affect particular offences; for instance, low-value criminal damage and certain shoplifting (under specified value thresholds) are deemed summary-only, even though the offences are usually either-way.

Judges and magistrates must be able to correctly classify the offence to ensure the proper procedural pathway is followed, and to identify where summary-only “uplifts” (e.g., when a summary offence is related to an indictable matter) or “downgrades” (where an either-way offence is treated as summary due to value) apply.

Allocation Procedure for Either-Way Offences

For either-way offences, the allocation procedure systematically determines whether the magistrates’ court can and should try the case, or whether it should be sent to the Crown Court. This is a rigid, staged procedure, and understanding its sequence is essential.

Plea Before Venue (PBV)

At the defendant's first appearance on an either-way charge, the magistrates' court deals with the PBV. The charge will be read, and the defendant is invited—but not required—to indicate their intended plea.

Key Term: plea before venue
The procedure, unique to either-way offences, by which the defendant is asked by the court to indicate whether they would plead guilty or not guilty were the matter to be tried.

If the defendant indicates a guilty plea, the magistrates must assess whether their sentencing powers are sufficient for the facts as alleged, referencing both the relevant sentencing guidelines and information about any previous convictions. Under the Powers of Criminal Courts (Sentencing) Act 2000 s 3, if the offence (or offences, in combination) is so serious that greater sentencing powers are needed, committal for sentence to the Crown Court is required.

Where a guilty plea is indicated, the prosecutor outlines the facts and previous convictions; the defence advances submissions in mitigation. The court then sentences immediately, adjourns for reports, or commits for sentence if powers are considered inadequate. In general, the existing bail or remand status continues unless there is a significant change in the grounds for bail—the threshold for revisiting bail is set by statute and practice.

Key Term: committal for sentence
The process by which a magistrates’ court, on convicting a defendant or accepting a guilty plea for an either-way offence, and finding its sentencing powers insufficient, commits the convicted person to the Crown Court for sentence. The Crown Court then sentences as if for a conviction on indictment, exercising its full range of powers.

If the defendant pleads not guilty—or declines to indicate a plea (in which case the court proceeds as if a not guilty plea was entered)—an allocation hearing follows. This bifurcated approach at PBV highlights the importance of the plea in structuring the entire allocation process.

Allocation Hearing

The allocation hearing is a formal statutory process. Here, the court undertakes a structured consideration, giving both prosecution and defence the opportunity to make representations as to the appropriate forum (summary or indictment). The procedure, rooted in the Magistrates’ Courts Act 1980 ss 19–20, unfolds as follows:

• The prosecution informs the court of the defendant’s previous convictions if any—these are relevant to sentencing powers and seriousness.
• Both sides present representations addressing the suitability of summary trial or trial on indictment, considering the facts, value, and nuances of the case.
• The court is required to apply the Sentencing Council's Allocation Guideline, which emphasizes summary trial as the norm unless sentencing powers are likely to be insufficient or the case involves unusual complexity.
• The court must assess the aggregate sentencing powers available where multiple connected offences are charged, as the totality of sentence may exceed what is permissible for a single offence (s 19(4) MCA 1980).

If the court accepts jurisdiction, the defendant has a statutory right to elect jury trial in the Crown Court; the magistrates must ensure the defendant is aware of this right. If jurisdiction is declined, the case is sent directly to the Crown Court for trial, and the defendant has no right to insist on summary trial.

Key Term: Allocation Guideline
A guideline from the Sentencing Council instructing that, as a matter of policy, either-way offences should ordinarily be tried summarily unless the court’s sentencing powers are likely to be insufficient, or the case involves unusual complexity that is best suited for management in the Crown Court.

This process is both protective of defendants’ rights and ensures the efficient use of Crown Court time. Throughout, the court must strive for an informed and reasoned allocation, consistent with statutory authority and policy objectives.

If the court considers the case suitable for summary trial, the defendant is informed and must choose to consent to summary trial or elect trial by jury. Before that decision is made, the defence may request an indication of sentence (if applicable).

Key Term: indication of sentence
Where summary trial is considered suitable and the defence requests, the magistrates may indicate whether a custodial or non-custodial sentence would be more likely if the defendant pleaded guilty at this stage (MCA 1980 s 20). If a non-custodial sentence is indicated and the defendant immediately pleads guilty, no court—including the Crown Court upon committal—may impose custody for the offence. This protection lapses if the plea is not immediately changed (MCA 1980 s 20A).

If no indication is given, or the defendant does not alter their plea following the indication, the right of election remains, and the trial venue is then established by their choice or by reference to the earlier allocation decision.

Factors Influencing Allocation Decisions

The decision to allocate an either-way offence to the magistrates’ court or the Crown Court depends on a range of interconnected factors, rooted in the legislative scheme, the Sentencing Council’s Allocation Guideline, and case law.

Seriousness of the offence is always a principal factor. The court must anticipate, in light of the facts, any "starting point" sentence indicated by the relevant sentencing guideline for the offence. Seriousness is determined by considering the degree of harm caused or intended, and the level of culpability (blameworthiness), including any aggravating or mitigating circumstances, as the offence-specific sentencing guidelines require.

Key aggravating factors, mandated either by statute or by guideline, include:

• Previous convictions, particularly where recent or of the same type;
• Committing the offence on bail or while subject to a court order;
• Racial or religious aggravation or hostility based on disability or sexual orientation;
• Premeditation or significant planning;
• Use of a weapon;
• Offences against vulnerable victims or those in public sector roles;
• High value of property or sentimental loss in property offences.

Mitigating factors may include:

• Lack of relevant convictions or a history of good character;
• Offences committed impulsively or under provocation;
• Mental illness or significant personal hardship;
• Early guilty plea (attracting a one-third reduction in sentence if entered at the first opportunity);
• Demonstrable remorse, reparation, or co-operation with authorities;
• Youth or great age of the defendant.

Reference must be made to the definitive guidelines for the offence in question (e.g., theft, assault occasioning ABH, burglary) to accurately gauge the likely sentence. The court applies the guideline’s categorisation of culpability and harm, identifies the appropriate starting point, then adjusts for aggravating and mitigating factors.

Complexity, both legal and factual, is a further influential factor. Cases involving complex issues—such as serious fraud, sensitive matters involving child or vulnerable witnesses, multi-defendant conspiracies, or protracted disputes of identification (invoking PACE Code D)—may be deemed better suited to Crown Court case management and trial by jury, regardless of the anticipated sentence.

Defendant’s criminal record is of great significance, not only for aggravation but as an indicator of risk and future offending, and as a potential barometer of rehabilitation needs.

Magistrates’ sentencing powers are a statutory boundary. For a single either-way offence, magistrates can impose up to 12 months’ custody (extended from 6 months), or up to 12 months in the aggregate for multiple either-way offences, but cannot exceed the statutory maxima applicable to the offences. Where the likely effective sentence exceeds these powers, the Allocation Guideline calls for Crown Court trial, or a committal for sentence following summary conviction.

Aggregate sentencing powers must be considered for multiple charges arising from the same incident or which could be joined in a single indictment. The court must consider the sum total of likely penalties to ensure the totality of the offending can be appropriately punished.

Key Term: criminal damage (value threshold)
For criminal damage, if the value of the damaged property is £5,000 or less and no fire was involved, the matter is triable summarily only. In these instances, the magistrates’ court cannot commit for sentence to the Crown Court under PCC(S)A 2000 s 3.

Key Term: low-value shoplifting
Where theft from a shop concerns goods with a value not exceeding £200, the offence is classified as summary-only unless the defendant elects trial by jury in the Crown Court. If consent to summary trial is given, the court must proceed summarily with no discretion to refuse jurisdiction (MCA 1980 s 22A).

Statutory exclusions and carve-outs also dictate allocation: certain offences, although generally either-way, are treated as summary-only in relation to value or fact-specific criteria—as above—removing either the possibility or the necessity of allocation.

The structure of the allocation process puts an emphasis on evidential sufficiency, seriousness, and complexity, whilst safeguarding the defendant's right to choose venue when appropriate, and ensuring that the forum matches the requirements of justice on the facts.

Worked Example 1.1

A defendant is charged with theft of goods worth £150 from a shop. How is the case allocated?

Answer:
This is low-value shoplifting. The offence is treated as summary-only and is to be tried in the magistrates’ court, unless the defendant—having pleaded not guilty—exercises the right to elect a Crown Court jury trial.

Worked Example 1.2

A defendant is charged with assault occasioning actual bodily harm. The facts suggest a single punch with minor injury. The defendant has no previous convictions. What is the likely allocation?

Answer:
The likely sentence falls within magistrates’ powers. The court will typically accept jurisdiction for summary trial.

Worked Example 1.3

A defendant is charged with burglary (either-way). The facts suggest a night-time break-in with violence threatened. The defendant has previous convictions for similar offences. What is the likely allocation?

Answer:
The combination of seriousness (violence, night-time, prior convictions) suggests a sentence beyond magistrates’ court powers. The offence will usually be sent to the Crown Court for trial.

Worked Example 1.4

A defendant faces two either-way charges: theft (value £1,200) and handling stolen goods. The magistrates consider likely sentence for each in isolation as within powers but together the totality may exceed 12 months. How should allocation proceed?

Answer:
The court must consider its aggregate sentencing powers for connected offences. If the overall likely sentence would exceed the 12-month summary maximum, the case should be sent to the Crown Court for trial.

Worked Example 1.5

Jurisdiction is accepted for an either-way offence and the defence requests an indication of sentence. The magistrates indicate a non-custodial sentence. The defendant then changes plea to guilty. Can custody be imposed later?

Answer:
No. If the indication of sentence given is non-custodial and the defendant promptly pleads guilty in reliance on that indication, no court (including the Crown Court) may later impose a custodial sentence for that offence.

Further Considerations in Sentencing Assessment

The assessment of seriousness—and consequently of allocation—is always rooted in the steps and framework of the Sentencing Council’s Guidelines:

• Step 1: Determine offence category based on harm and culpability.
• Step 2: Consider the appropriate starting point and identify the category range.
• Step 3: Adjust for aggravating and mitigating factors.
• Step 4: Apply credit for plea if relevant.
• Step 5: Consider the totality if there are multiple offences.

In this way, magistrates must look beyond the label of the offence to assess the real gravity and context, forming a reasoned view as to whether the limits of their sentencing powers will suffice.

Sending Without Allocation (Related Offences and Special Cases)

Certain situations require that either-way (or even summary) offences be sent straight to the Crown Court without any allocation hearing. These exceptions support efficient case management and avoid fragmented or prejudicial proceedings, often in the interests of justice or to protect vulnerable witnesses.

Key Term: sending without allocation (related offences)
Where a defendant is before the magistrates’ court charged with an indictable-only offence and a related either-way or summary offence (arising out of the same or connected circumstances), all “related” offences must be sent to the Crown Court alongside the indictable matter (CDA 1998 s 50A).

Further statutory triggers include:

• Serious or complex fraud (CDA 1998 s 51B): If a designated authority (such as the DPP) certifies that the evidence is sufficient and the fraud so serious or complex that Crown Court management is necessary, the matter goes to the Crown Court without allocation.
• Child witnesses (CDA 1998 s 51C): Where a certificate is issued that, due to the involvement of a child witness and welfare concerns, the case should be managed without delay by the Crown Court, it will be sent forthwith without PBV or allocation.
• Related offenders (CDA 1998 s 50A(3)(b)): If a co-defendant is sent to the Crown Court for an indictable-only offence, any other defendants who are jointly charged on related matters may be sent at the same time. The court must, or may, exercise this power depending on concurrent or subsequent appearances.

These provisions ensure that interlinked proceedings are consolidated and managed efficiently. The legislative intent is to prevent piecemeal hearings and limit the stress of repeated testimony, especially for vulnerable or child witnesses.

Worked Example 1.6

D is charged with robbery (indictable-only) and assault occasioning actual bodily harm arising from the same incident. The ABH is either-way. What happens?

Answer:
The ABH, being a related offence to the indictable-only robbery, must be sent with the robbery to the Crown Court. No allocation hearing is held.

Worked Example 1.7

The CPS serves a s 51C notice for an either-way assault where a child witness is to give evidence and welfare considerations justify immediate Crown Court management. What is the allocation outcome?

Answer:
The case must be sent to the Crown Court without allocation, in accordance with CDA 1998 s 51C, provided the statutory criteria are certified.

Defendant's Choice of Trial Venue

Where the magistrates accept jurisdiction for an either-way offence, the defendant is presented with a choice: summary trial in the magistrates’ court or jury trial in the Crown Court. Solicitors advising clients in this context must balance a range of procedural, strategic, and personal considerations, including:

• Likelihood of acquittal: Statistically, defendants are more likely to be acquitted by a jury in the Crown Court than by magistrates or a district judge. Juries are typically unfamiliar with local police or prosecution witnesses, whereas magistrates may have regular exposure to the same characters.
• Sentencing consequences: The Crown Court’s sentencing powers generally far exceed those of the magistrates’ court; although committal for sentence is available following summary conviction, the risk of more severe sentencing can be higher if the matter proceeds on indictment.
• Procedural advantages/disadvantages: For serious evidential disputes—such as whether a confession is admissible—the ability to conduct a voir dire (mini trial) in the absence of the jury is a significant safeguard in Crown Court proceedings, avoiding the risk that inadmissible material may subconsciously affect the magistrates in a summary trial.
• Speed and formality: Magistrates’ court trials are usually scheduled sooner than Crown Court jury trials and tend to be less formal, reducing stress and cost.
• Publicity: Trials in the Crown Court, particularly for notable offences, may attract more attention, which can be beneficial or harmful depending on the defendant’s profile.
• Legal aid eligibility: Legal aid rules are more advantageous for defendants in Crown Court proceedings, often conferring automatic eligibility.
• Appeal routes: Conviction or sentence in the magistrates’ court carries broader, more accessible rights of appeal (including an automatic right to rehearing in the Crown Court), whereas Crown Court appeals require leave.

It is important that the solicitor’s advice is tailored to the facts: a vulnerable defendant may prefer the informality and smaller scale of the magistrates’ court, whereas a case reliant on complex defences or challenging police evidence may benefit from the Crown Court’s procedural safeguards.

Worked Example 1.8

A defendant indicates a guilty plea to an either-way offence at PBV. The magistrates consider their powers insufficient. What happens next and what powers does the Crown Court have?

Answer:
The magistrates must commit the defendant to the Crown Court for sentence under PCC(S)A 2000 s 3. The Crown Court then passes sentence as if the defendant had been convicted on indictment, exercising its full sentencing powers for the offence.

Practical Consequences of Allocation

The allocation determination governs not just trial venue and sentencing, but also deeply affects the management of the case, the procedural timelines, and the defendant’s experience of the justice process:

• Trial forum: Magistrates’ court (lay magistrates or district judge) or Crown Court (judge and jury). This affects both formality, pace, and jury involvement.
• Sentencing powers: Magistrates may impose up to 12 months’ custody for a single either-way offence (aggregate for multiple offences). The Crown Court, in contrast, may impose the statutory maximum for the offence, unconstrained except by Parliament.
• Committal for sentence: Following conviction on summary trial for an either-way offence, a defendant may be committed for sentence if the court (having heard the full facts and mitigation) believes its powers are inadequate, save for offences where the law (e.g., low-value criminal damage) prohibits committal.
• Case management and administration: If the trial remains in the magistrates’ court, case management directions are given immediately, including the witness list, time estimates, special measures, and disclosure schedules. If sent to the Crown Court, the next procedural step is usually a Plea and Trial Preparation Hearing (PTPH).
• Appeal mechanisms: Appeals from summary conviction/sentence are generally to the Crown Court (full rehearing) or by way of case stated to the High Court. Crown Court appeals (against conviction or sentence) are to the Court of Appeal, requiring leave.

Summary

In summary, the allocation of criminal cases between the magistrates’ court and the Crown Court is determined by classification of the offence, seriousness and complexity of the circumstances, and statutory procedural rules. Defendants’ rights and potential outcomes are intricately linked to the chosen forum, and proper application of the statutory framework and judicial guidance is necessary for every stage of the process.

Key Point Checklist

This article has covered the following key knowledge points:

• The classification of offences as summary, either-way, or indictable-only governs the allocation route and procedure.
• PBV is statutory for either-way offences and precedes the allocation hearing, which considers plea, facts, and representations.
• Allocation is driven by seriousness (assessed via Sentencing Council Guidelines) and any extraordinary complexity.
• Aggregate sentencing powers are relevant where multiple connected charges are before the court, per MCA 1980 s 19(4).
• The Sentencing Council's Allocation Guideline provides summary trial as the default for either-way offences unless summary powers are inadequate.
• Indication of sentence upon defence request can limit subsequent imposition of custody if a plea promptly follows a non-custodial indication.
• The procedures for sending to the Crown Court without allocation (serious/complex fraud, child witness welfare, co-defendants, and related offences) ensure efficient, joined-up proceedings.
• For certain “downgraded” either-way offences (e.g., low-value shoplifting and criminal damage under £5,000), trial and sentencing remain exclusively within the magistrates’ court.
• The decision to retain jurisdiction or send a matter up is not subject to defendant’s election where summary trial is declined.
• Practical consequences of allocation affect sentencing options, appeal routes, and case management, requiring sound advice to clients.
• Appeals are structured by the conviction/sentence and trial venue; watch for limitations on committal for sentence for summary-only statutory carve-outs.

Key Terms and Concepts

• summary offence
• either-way offence
• indictable-only offence
• plea before venue
• committal for sentence
• Allocation Guideline
• indication of sentence
• criminal damage (value threshold)
• low-value shoplifting
• sending without allocation (related offences)