Learning Outcomes
After reading this article, you will be able to explain the role and structure of the first hearing before the magistrates’ court in England and Wales. You will recognise the key classifications of offences, outline what processes occur at the defendant’s initial appearance, summarise the function of public funding, and identify the primary responsibilities of a defence solicitor during the hearing. You will also be able to evaluate the practical steps relevant to SQE2 criminal procedure questions.
SQE2 Syllabus
For SQE2, you are required to understand the procedures and practical implications of the first hearing before the magistrates’ court. This article covers the following syllabus areas, relevant both for oral and written skills, and especially for client interview and attendance note or case analysis tasks:
- The main classifications of criminal offences: summary-only, either-way, and indictable-only offences
- What takes place at the defendant’s first appearance in the magistrates’ court for each classification
- Application process for representation orders and public funding eligibility
- The core responsibilities and actions of the defence solicitor at the first hearing
- How key decisions at this stage affect subsequent criminal litigation and case management
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.
- What are the three main classifications of criminal offence for first hearings before the magistrates’ court?
- What determines whether a defendant’s case at first hearing will remain in the magistrates’ court or go to the Crown Court?
- Which two queries about public funding must be considered when applying for a representation order before the magistrates’ court?
- Explain, in one sentence, the principal function of the defence solicitor at a client’s first court appearance.
Introduction
When a defendant is charged with a criminal offence as an adult in England and Wales, their first court appearance will be before the magistrates’ court. This initial hearing is a core procedural step to ensure the case moves swiftly towards resolution, whether by guilty plea, trial, or committal to the Crown Court for serious offences. Understanding what happens at this stage—and why—is essential for advising clients and for handling SQE2 practice scenarios.
Classifying Criminal Offences
The procedure at the first hearing depends primarily on the classification of the offence:
Key Term: summary-only offence
An offence that can be tried only in the magistrates’ court, such as most low-level public order or motoring offences.Key Term: either-way offence
An offence that may be tried either in the magistrates’ court or in the Crown Court, depending on the seriousness and factual context.Key Term: indictable-only offence
An offence that must be tried in the Crown Court before a judge and jury; for example, murder or rape.
The court identifies the classification at the start, as this determines most subsequent procedural decisions.
Worked Example 1.1
A defendant, Emma, is charged with burglary. The charge is read out at her first hearing before the magistrates’ court. What must the court do next?
Answer:
As burglary is generally either-way, the magistrates will ask Emma to indicate her plea. If she pleads not guilty, they must hold an allocation procedure to decide if the case remains in the magistrates’ court or is sent to the Crown Court. If she pleads guilty, sentencing options are considered.
What Happens at the First Hearing?
Once the charge and classification are established, the magistrates proceed as follows, typically on the same day as the defendant’s first appearance:
- For summary-only offences: The defendant is required to enter a plea. If guilty, the court will usually move to sentence or adjourn for a pre-sentence report. If not guilty, directions for trial are issued.
- For either-way offences: The plea before venue (PBV) is taken. The court asks the defendant to plead, and then—if not guilty—holds an allocation hearing to decide venue (summary trial or Crown Court trial). If guilty, the court sentences or commits for sentence.
- For indictable-only offences: The court reads the charge, asks for indication of plea (for case management), and immediately sends (commits) the case to the Crown Court. The magistrates do not determine guilt or sentence for these cases.
Exam Warning Do not confuse "either-way" and "indictable-only" at this stage: only indictable-only offences must always be sent to the Crown Court, whereas either-way offences may be retained by the magistrates if suitable.
Public Funding and Representation Orders
Most defendants need representation, and public funding is available in many cases via a representation order. To obtain an order for a defended criminal case in the magistrates’ court, the applicant must satisfy two separate requirements:
- Interests of justice: Is it in the interests of justice for legal funding to be granted? Factors include risk of custody, complexity of law, seriousness, and ability to self-represent.
- Means test: Does the defendant have financial means below statutory thresholds? Some applicants qualify automatically (for example, if under 18 or on certain benefits).
Key Term: representation order
Authority for publicly funded legal representation in a criminal case, granted only when both merits and means tests are passed.
Worked Example 1.2
Maria is 21, in work, charged with assault occasioning actual bodily harm (an either-way offence). She wishes to apply for a representation order. The court asks about her income, and the form is completed. What additional information must Maria provide to support her application?
Answer:
Maria must explain why it is in the interests of justice for funding to be awarded (e.g., because she faces possible imprisonment or the case involves complex facts). She must also provide financial details (income, outgoings, dependants); both tests must be passed for the order to be granted.
The Role of the Defence Solicitor at First Hearing
The defence solicitor’s tasks at the first hearing typically include the following:
- Obtaining full case details from the CPS and checking for sufficient initial prosecution disclosure (including charge, summary, and previous convictions)
- Meeting the client to explain the process, take instructions, and assess likely plea
- Advising the client on plea, bail prospects, public funding, and possible sentence
- Raising immediate issues (such as mental health, fitness to plead, or vulnerability)
- Making or responding to bail applications as needed
- Ensuring procedural fairness (requesting further case management directions if required)
Key Term: initial prosecution disclosure
The prosecution is required to provide sufficient information at first hearing for the defence and court to understand the case and facilitate effective plea and case management.
Worked Example 1.3
You represent a client, Alex, who wishes to plead not guilty at the first hearing to a summary-only charge. What action should you take before advising Alex how to plead?
Answer:
You should review the initial prosecution disclosure, discuss the available evidence with Alex, check for pre-existing legal or factual issues, and confirm that Alex understands the potential implications of each plea. Then you can advise accordingly.
Next Steps After First Hearing
If the plea is guilty, the case proceeds to sentencing or, if required, adjourns for further reports. If the plea is not guilty, the court gives detailed case management directions (such as orders for service of statements, timetables for legal arguments, and fixing the trial date). If the case is being sent to the Crown Court, the court sets the date for the next hearing at that venue.
Key Point Checklist
This article has covered the following key knowledge points:
- The procedural path in the magistrates’ court depends on whether an offence is summary-only, either-way, or indictable-only
- Summary-only offences are decided and sentenced by magistrates, either-way offences might be retained or sent to the Crown Court based on allocation, and indictable-only offences are always sent to the Crown Court
- At first hearings, public funding is available via representation orders if both the merits (interest of justice) and means tests are satisfied
- Defence solicitors play an essential role: reviewing disclosure, advising on plea, applying for funding, and advancing bail applications or case management requests where appropriate
- The first hearing sets the procedural basis for all subsequent criminal litigation steps
Key Terms and Concepts
- summary-only offence
- either-way offence
- indictable-only offence
- representation order
- initial prosecution disclosure