First hearings before the magistrates' court - Classificatio...

Learning Outcomes

This article examines how criminal offences are classified as summary-only, either-way, or indictable-only and how that classification drives procedure at the first hearing in the magistrates’ court. It explains the statutory foundations for each category, including the Magistrates’ Courts Act 1980, the Crime and Disorder Act 1998, and key Criminal Procedure Rules provisions, linking the doctrinal framework directly to commonly tested SQE1 syllabus points. It details the distinct first-hearing pathways for each offence type, including plea before venue, allocation decisions, defendant election for jury trial, and sending or committing cases to the Crown Court. It analyzes how classification affects venue, time limits, sentencing powers, bail decisions, disclosure obligations, and the strategic advice a defence solicitor should give on plea and forum. It explores special rules for low-value shoplifting, criminal damage, and youth or multi-count cases that commonly feature in SQE1 scenarios. It discusses how the burden and standard of proof, evidential burdens, and core defendant rights interact with first-hearing procedure. It presents realistic worked examples that test the ability to identify the correct procedure, predict the procedural trajectory of a case, and avoid common traps in multiple-choice questions.

SQE1 Syllabus

For SQE1, you are required to understand how offence classification (summary-only, either-way, indictable-only) determines venue and procedure at first hearings in the magistrates’ court, with a focus on the following syllabus points:

• Classification of criminal offences: summary-only, either-way, indictable-only
• Procedural functions of offence classification: allocation of cases between courts, venue, and trial procedure
• Stages of first hearings in the magistrates’ court for each category of offence
• Functions and implications of plea before venue and allocation hearings
• Consequences of classification for bail, representation, and legal advice
• Key statutory frameworks: Magistrates’ Courts Act 1980; Crime and Disorder Act 1998; relevant provisions of the Criminal Procedure Rules
• Effect of special rules (e.g., low-value shoplifting, criminal damage)
• Principles governing summary trials versus trial on indictment
• Initial disclosure of prosecution case and the defence’s advisory role at first hearing

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. Which category of offence must always be sent to the Crown Court for trial after the first hearing in the magistrates' court?
   1. Summary only offences
   2. Either-way offences where the defendant pleads guilty
   3. Indictable-only offences
   4. Low-value shoplifting
2. What is the primary purpose of an allocation hearing for an either-way offence?
   1. To determine the defendant's guilt or innocence
   2. To decide which court (magistrates' or Crown Court) is the appropriate venue for trial
   3. To sentence the defendant following a guilty plea
   4. To consider the defendant's application for bail
3. A defendant is charged with theft (an either-way offence) alleged to involve goods worth £150. They indicate a not guilty plea. Which statement is most accurate regarding the trial venue?
   1. The case must be tried in the Crown Court.
   2. The case is treated as summary only, but the defendant can elect Crown Court trial.
   3. The case must be tried in the magistrates' court with no option for Crown Court trial.
   4. The magistrates must decline jurisdiction due to the value involved.

Introduction

All criminal prosecutions in England and Wales commence before the magistrates’ court, regardless of the seriousness of the offence charged. The classification of the offence—whether summary-only, either-way, or indictable-only—will determine the procedural course taken, including which court will ultimately hear and determine the case, the preliminary decisions required, and the rights available to the defendant. The distinctions form the architecture of the criminal justice system, guiding the allocation of cases and the specialist powers and functions of courts at each stage. A firm understanding of these classification principles and their statutory framework is fundamental for effective practice, case analysis, and client advice in criminal litigation.

Classification of Offences

Criminal offences in England and Wales are sorted into three principal categories. Each category determines the venue for proceedings, the procedure at the first hearing, and the powers available to the courts. The statutory basis for each is found primarily in the Magistrates’ Courts Act 1980, with further guidance in the Crime and Disorder Act 1998 and the Criminal Procedure Rules.

Summary Offences

Summary-only offences represent the least serious category of criminal behaviour, designed to be dealt with expeditiously and efficiently.

Key Term: summary offence
Summary offences are those which can be tried only in the magistrates’ court. They cannot be heard on indictment in the Crown Court. Most summary offences have a maximum penalty of six months’ imprisonment per offence (or twelve months for two or more either-way offences sentenced together since changes in May 2022), though some lesser offences have only financial or non-custodial penalties.

Common examples include common assault under s 39 Criminal Justice Act 1988, battery, speeding, minor criminal damage (valued under £5,000), public order offences, and most road traffic contraventions. Magistrates’ courts have exclusive jurisdiction but limited powers of punishment. Time limits apply: proceedings must generally be commenced within six months of the alleged commission of the offence (s 127 Magistrates' Courts Act 1980), a principle that supports procedural fairness and ensures cases are prosecuted without unnecessary delay.

The procedure at the first hearing is straightforward: the charge is read, the defendant enters a plea, and, if guilty, sentence may follow immediately or after a brief adjournment for pre-sentence reports. If the plea is not guilty, a trial date is scheduled in the magistrates’ court, with standard pre-trial case management directions issued to both parties to ensure a fair and efficient trial.

Either-Way Offences

Either-way offences constitute a broad middle ground in the classification of criminal offences, spanning a range of seriousness and complexity.

Key Term: either-way offence
Either-way offences may be tried in either the magistrates’ court or the Crown Court. The mode of trial—and thus the venue—is determined by statutory factors, the seriousness of the particular case, the defendant’s plea, and the decisions made during statutory plea before venue and allocation/mode of trial procedures (ss 17A–21 Magistrates’ Courts Act 1980).

Examples include theft (s 1 Theft Act 1968), burglary (except 'three-strikes' or aggravated burglary), possession of certain drugs, assault occasioning actual bodily harm (s 47 Offences Against the Person Act 1861), and most frauds under the Fraud Act 2006. Prosecution of either-way offences is not limited by time, so historical offences can be prosecuted so long as evidence remains available.

The procedure at the first hearing is more elaborate than for summary offences and involves, in sequence:

• Plea before venue: The magistrates’ court ascertains whether the defendant would plead guilty or not guilty if the charge were put (s 17A MCA 1980).
• Allocation hearing: If a not guilty plea is indicated, the court (after hearing brief facts and representations) determines whether it will retain jurisdiction for a summary trial, considering the facts, seriousness, complexity, and its own sentencing powers (see s 19 MCA 1980).
• Defendant's election: Where the magistrates consider the case suitable for summary trial and accept jurisdiction, the defendant may choose to consent to summary trial or elect Crown Court trial by judge and jury (s 20 MCA 1980).
• Jurisdiction declined: If either the defendant pleads guilty but the facts suggest the sentencing powers may be insufficient, or if the magistrates find the case too serious for their sentencing powers, the court refers the case for trial or sentence to the Crown Court.

Special rules can apply for youth defendants and for cases involving several charges of mixed classification. The "plea before venue" and "allocation" procedures provide a mechanism for ensuring that more serious cases are tried at the appropriate level and that defendants are afforded the option for jury trial, a central feature of the right to a fair trial in English criminal justice.

Key Term: plea before venue
The statutory procedure for either-way offences where the defendant is asked to indicate an intended plea. The response triggers either an immediate sentencing process (in the case of a guilty plea) or an allocation hearing (for not guilty pleas, or where no indication is given).

Key Term: allocation hearing
A judicial process where magistrates decide the venue of trial for an either-way offence following a not guilty plea. The court considers representations, reviews the sentencing guidelines, and assesses the seriousness and complexity of the offence relative to its powers. The outcome is either retention for summary trial or release for trial on indictment in the Crown Court.

Indictable-Only Offences

Indictable-only offences are reserved for the most serious criminal conduct and applicants must be familiar with the substantive and procedural rules that govern these cases.

Key Term: indictable-only offence
These are offences which, by statute, may only be tried on indictment in the Crown Court. They cannot be tried summarily.

Indictable-only offences include murder, manslaughter, rape, robbery, aggravated burglary, and other grave crimes carrying society’s highest maximum penalties. Cases of this nature are addressed in dedicated parts of the criminal justice system and immediately transferred to the Crown Court after the first appearance. The magistrates’ role in such cases is largely administrative: confirming identity, addressing issues of bail, and ensuring initial procedural requirements (such as legal representation and reporting restrictions) are fulfilled.

No plea is taken for indictable-only offences at the magistrates' court. The case is sent directly to the Crown Court for a Plea and Trial Preparation Hearing (PTPH) under s 51 Crime and Disorder Act 1998.

Worked Example 1.1

David is charged with robbery. He appears for his first hearing at the local magistrates' court. What procedure will the court follow regarding the venue for his trial?

Answer:
Robbery is an indictable-only offence, so the magistrates’ court has no jurisdiction to try the case or sentence upon it. The magistrates do not take a plea. They address preliminary administrative matters, such as confirming the defendant’s details, considering bail and legal aid, and then formally send the case to the Crown Court for further proceedings under s 51 of the Crime and Disorder Act 1998.

Procedure at the First Hearing

The first hearing protocol is dictated by the classification of the offence. Each category triggers a distinct set of statutory and procedural requirements with significant implications for case management, defendant advice, and the progression of proceedings.

Summary Only Offences

• Charge is read: The formal charge(s) is presented to the defendant.
• Plea is taken: The defendant pleads guilty or not guilty.
• Guilty plea: The magistrates sentence the defendant immediately, unless a pre-sentence report or other preparation is required, in which case the case is adjourned and an interim bail or custody decision is taken. Sentencing powers are capped at six months for a single offence, but can reach up to twelve months for multiple offences. The court may also impose ancillary orders (e.g., driving disqualifications, restraining orders).
• Not guilty plea: The case is listed for trial before the magistrates’ court. The bench gives standard directions for service of evidence, disclosure, and witness management, and may order a pre-trial review for case management issues.

In summary proceedings, the process is intended to be accessible, efficient, and expeditious. There are strict statutory time limits: usually, a prosecution must be commenced within six months of the alleged commission of a summary offence.

Either-Way Offences (Procedure)

The process for an either-way offence is more elaborate:

• Charge read: The charge(s) is/are put to the defendant.
• Plea Before Venue (PBV): The defendant is asked to indicate a plea, but this is an 'indication' rather than a formal plea at this point. This indication determines the next procedural step:
  • Guilty plea indicated: The magistrates must then consider whether their sentencing powers are adequate for the particular facts. They will take into account the Sentencing Council’s guidelines, the value involved, previous convictions, aggravating and mitigating features, and the prosecution’s submissions. If powers are sufficient, sentencing proceeds in the magistrates’ court; if not, the case is committed to the Crown Court for sentence. The PBV procedure also applies where the prosecution intend to accept a plea to a lesser offence or combination of offences.
  • Not guilty plea indicated or no indication given: The court proceeds to an allocation hearing.
    • Allocation hearing: The prosecution summarises the case, including previous convictions, and both sides make representations. Magistrates consider their sentencing guidelines, powers of punishment, and the seriousness and complexity of the case. Relevant considerations may include the potential for lengthy custody, whether the defendant played a leading role, and public interest.
    • If suitable for summary trial: Magistrates explain to the defendant that if they consent to summary trial, they may still be committed for sentence to the Crown Court if, after conviction, the seriousness of the case warrants a greater sentence than the magistrates' powers allow (committal for sentence). The defendant must then decide whether to consent to summary trial or to elect Crown Court trial by jury.
    • If unsuitable: If the magistrates decline jurisdiction—meaning the case is considered too serious or complex—matters are sent to the Crown Court and the defendant has no right to remain for a summary trial in the magistrates’ court.

Where multiple related either-way offences are charged, magistrates take into account the aggregate seriousness and potential sentences when making this decision.

Key Point: The magistrates’ decision at allocation is guided by the relevant Sentencing Council guidelines and must be reasoned in open court. The defendant’s right to elect trial by jury is a significant feature, and the court must ensure the defendant fully understands the implications of both options.

Indictable-Only Offences (Procedure)

• Defendant produced before the court: The court confirms the defendant’s identity and that the charges are understood.
• No plea taken: The magistrates’ court cannot take a plea in relation to indictable-only offences. Any indication as to plea is for administrative efficiency only and does not bind the defendant.
• Administrative issues: The court hears applications as to bail, addresses representation (legal aid), and imposes reporting restrictions as appropriate. Any concerns regarding media coverage or identification are dealt with at this time.
• Sending to Crown Court: The case is sent directly to the Crown Court under s 51 CDA 1998. A date is set for the Plea and Trial Preparation Hearing (PTPH), and standard directions are given for the prosecution’s service of evidence.

Worked Example 1.2

Sarah is charged with theft of items valued at £600 from her employer. At her first hearing in the magistrates' court, she indicates a not guilty plea. The magistrates consider the breach of trust makes the case potentially serious but decide their sentencing powers might be adequate. What happens next?

Answer:
Theft is an either-way offence. At PBV, Sarah indicates not guilty. The magistrates, after considering the seriousness and likely sentence, accept jurisdiction for summary trial. Sarah is then given the option: consent to summary trial in the magistrates’ court, or elect for jury trial in the Crown Court. She is warned that if she consents to summary trial and is convicted, the magistrates might still commit her for sentence to the Crown Court if further facts emerge or if the sentence exceeds their powers.

Exam Warning

Pay attention to offences subject to statutory modification in classification. For low-value shoplifting (value not exceeding £200), the offence is classified as summary-only, but, exceptionally, the defendant retains the right to elect Crown Court jury trial if pleading not guilty (s 22A MCA 1980). In contrast, low-value criminal damage (under £5,000 where not arson) is treated as summary-only and cannot be tried on indictment—no right to jury trial attaches (s 22 MCA 1980). Arson, regardless of value, remains either-way or indictable based on the facts.

Key Statutory Framework

Effective practice and advice in criminal litigation depend on a sound knowledge of the statutory and procedural basis for offence classification and proceedings. Candidates for SQE1 should be comfortable with the following legislative signposts:

• Magistrates’ Courts Act 1980 (MCA 1980):
  • s 1: General provisions for summary trial.
  • ss 17A–21: Plea before venue (PBV) and allocation for either-way offences; process for court and defendant decision-making.
  • s 22: Criminal damage offences and allocation based on value or type.
  • s 22A: Low-value shoplifting and defendant’s election.
  • s 127: Six-month time limit for prosecuting summary offences.
• Crime and Disorder Act 1998 (CDA 1998):
  • s 50A: Powers for direct sending to the Crown Court in cases of serious or complex fraud, certain child-related cases, and related/linked offences arising from same facts as an indictable-only offence.
  • s 51: Mandatory sending of indictable-only offences from the magistrates’ court to the Crown Court for trial/preparation.
• Criminal Procedure Rules 2020 (CrimPR):
  • Part 9: Procedures for allocation and sending for trial, bail, and case management directions.
  • Part 8: Service of initial details of the prosecution case (IDPC).

Understanding the interaction of these statutes and rules is necessary for analysing which court has jurisdiction, advising clients on plea strategy, and ensuring that no procedural misstep prejudices the defendant or the conduct of a case.

Elements of Criminal Offences and Procedural Impact

Classification also links to the relevant principles of criminal liability, the structure of offences, and the obligations of proof in criminal trials.

• Burden and standard of proof: In criminal cases, the prosecution must prove the elements of the offence (actus reus and mens rea) beyond reasonable doubt. The legal burden almost always sits with the prosecution, except for certain limited defences such as diminished responsibility in murder.
• Evidential burden: In some defences or procedural issues (such as self-defence), the defendant must raise sufficient evidence to make the issue “live,” at which point the prosecution must disprove the defence.
• Role of the defence solicitor: At first hearing, the solicitor must analyse the IDPC, advise on plea by reference to the available evidence and the client's instructions, discuss with the client the implications of classification (including availability of jury trial, the effect of a guilty plea, and potential sentencing forum), and raise any issues concerning bail or eligibility for legal aid.

Worked Example 1.3

A defendant is charged with criminal damage assessed at £4,000. The court asks for a plea and the defendant pleads not guilty. What process follows?

Answer:
Criminal damage under £5,000 (excluding arson) is summary-only and must be tried in the magistrates’ court. The defendant cannot elect jury trial and the magistrates may not commit to the Crown Court for sentence if convicted. If the charge were for arson or for damage above £5,000, the offence would be either-way and the usual PBV and allocation procedures would apply.

Professional Conduct and Client Advice at First Hearings

Solicitors must be alert to the duties owed to the court and to their client at the first hearing. The SRA Code of Conduct, the Law Society’s Practice Notes, and the Criminal Procedure Rules collectively emphasize the following:

• Duty to act in the client’s best interests, balanced by the core duty not to mislead the court.
• Duty to ensure the client understands the implications of their plea and the venue for trial, including the differences in procedure, sentencing powers, and likelihood of acquittal.
• Duty of confidentiality and to manage any conflicts of interest (especially where acting for co-defendants with potentially divergent interests).
• Obligation to secure a representation order if the client is eligible for public funding, which requires satisfying the ‘interests of justice’ test and, where relevant, a means test.

Key Point Checklist

This article has covered the following key knowledge points:

• Offences are classified into summary-only, either-way, and indictable-only.
• Summary-only offences are dealt with exclusively in the magistrates’ court.
• Indictable-only offences are sent to the Crown Court immediately after first hearing; the magistrates’ role is limited to administrative functions.
• Either-way offences may be tried in either magistrates’ or Crown Court. Plea before venue and allocation hearings are central in determining venue.
• For either-way offences, if the magistrates accept jurisdiction, the defendant retains a right to elect for jury trial. If they decline jurisdiction, the case must be sent to the Crown Court.
• Special rules apply to low-value shoplifting (defendant may elect jury trial if not guilty, even though classified as summary-only) and low-value criminal damage (no right to Crown Court trial except for arson).
• All criminal cases commence in the magistrates’ court, with the procedural journey determined by offence classification, plea, and judicial discretion on venue.
• The defence solicitor must be prepared to advise as to plea, venue, and the consequences of electing for summary trial or Crown Court trial.
• The burden and standard of proof conceptually support all procedural steps at first hearing and trial.
• Familiarity with the relevant statutory framework and case management obligations supports effective practice and advocacy at first appearances.

Key Terms and Concepts

• summary offence
• either-way offence
• plea before venue
• allocation hearing
• indictable-only offence