Procedures and processes in criminal litigation - Plea befor...

Learning Outcomes

This article covers plea before venue, allocation, and sending without allocation for either way offences:

• The step-by-step progression of either way cases through plea before venue, allocation, and sending without allocation where applicable
• Distinguishing summary, either way, and indictable-only classifications and their jurisdictional consequences
• Applying the allocation guideline and statutory framework (Magistrates’ Courts Act 1980, ss 17A–22A; Crime and Disorder Act 1998, s 50A) to realistic venue advice, including special categories such as low‑value shoplifting and low‑value criminal damage
• Evaluating venue options using client‑centred analysis of sentencing exposure, timing, disclosure, and tactical considerations, aligned to realistic scenarios
• Recognising common pitfalls: when the right to elect does not arise, when the court must decline jurisdiction, and when “sending without allocation” applies
• Explaining the purpose and content of Initial Details of the Prosecution Case (IDPC), the effect of an indication of sentence, and how linked/related offences affect venue and sending

SQE2 Syllabus

For SQE2, you are required to understand the procedures governing plea before venue and allocation for either way offences, the statutory frameworks that shape venue decisions (including sending without allocation), and the associated client‑focused advisory considerations, with a focus on the following syllabus points:

• the correct procedure for plea before venue in either way offences
• allocation under the Magistrates’ Courts Act 1980, ss 19–20 (factors, representations, guideline, aggregate sentencing)
• the advisory process on trial venue, including sentencing exposure, speed, disclosure and client priorities
• initial details of the prosecution case (IDPC): timing and content
• indications of sentence under MCA 1980, s 20 and their effect
• sending without allocation under CDA 1998, s 50A (serious/complex fraud; child‑witness cases; related offences/offenders)
• special statutory routes affecting allocation (e.g., low‑value shoplifting; low‑value criminal damage)
• prosecution application to send after acceptance of jurisdiction (MCA 1980, s 25)
• how mixed pleas and multiple counts are handled at PBV/allocation

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 type of offences require a plea before venue procedure at the first magistrates’ court appearance?
2. When do magistrates decline jurisdiction, and what is the effect for the defendant?
3. Which factors should a solicitor consider when advising a client about trial venue?
4. True or false: A defendant can always choose to have an either way offence tried in the Crown Court.

Introduction

When a defendant appears before the magistrates’ court on a criminal charge, the procedure by which the court determines how and where a case will be tried is critical for both legal advisers and for the SQE2 exam. For either way offences, this involves a statutory plea before venue and allocation process. You must be able to explain not just the mechanics, but also the practical client-focused advice essential to legal practice.

Key Term: plea before venue
The statutory process in which a defendant charged with an either way offence is asked to indicate their plea at the magistrates’ court, determining further procedural steps about trial venue. Key Term: initial details of the prosecution case (IDPC)
A concise set of materials the prosecutor must provide in advance of, or by, the first hearing. It includes a case summary, any interview account, key statements/exhibits material to plea/allocation/sentence, previous convictions, and (if available) a victim impact statement. Its purpose is to enable plea, case management and allocation decisions.

The Structure of Plea Before Venue and Allocation

Classification of Offences and Initial Steps

There are three main classifications: summary only, either way, and indictable only. For summary only and indictable only offences, the procedural path is generally straightforward. For either way offences, plea before venue and allocation are required.

Key Term: either way offence
An offence that can be tried in either the magistrates’ court or the Crown Court, depending on the circumstances and statutory procedure.

Before the hearing, the defence should obtain and review the IDPC. In either way and summary matters, CrimPR Part 8 requires service as soon as practicable and ordinarily before the first hearing (digital service via the Common Platform is common). If the defence has not received IDPC, the court should allow time to consider it before taking an indication or allocation decisions.

The Plea Before Venue Procedure

For either way offences, magistrates must follow a statutory process as follows:

• The charge is read to the defendant, who is asked to indicate a plea (guilty or not guilty).
• If the defendant indicates a guilty plea, the court proceeds to sentence or commits for sentence to the Crown Court if its sentencing powers are insufficient.
• If a not guilty plea is indicated, or if no plea is given, the process moves to allocation.

Key Term: allocation
The procedure by which the court determines whether a case will be heard in the magistrates’ court or sent to the Crown Court for trial.

Where a defendant indicates guilty, the magistrates sentence if their powers are adequate or commit for sentence under Powers of Criminal Courts (Sentencing) Act 2000, s 3 if the offence(s) are so serious that the Crown Court should have full powers. Remember that magistrates’ custody powers are up to 12 months for one or more either way offences, and 6 months for a single summary offence (subject to any specific statutory maxima).

The Allocation Hearing

If not guilty or no plea is indicated to an either way offence, the magistrates must determine where the case should be tried. The steps are as follows:

• The prosecution outlines the case and previous convictions.
• Both prosecution and defence can make representations regarding venue.
• The magistrates consider three main factors:
  • Adequacy of their own sentencing powers if the defendant is convicted.
  • Any representations of the parties.
  • Allocation guidance issued by the Sentencing Council.

In assessing adequacy, the court must consider the likely sentence in the light of alleged facts, aggravating/mitigating features and the defendant’s record. Where there are multiple counts, they consider aggregate sentencing powers (MCA 1980, s 19(4)).

The allocation guideline directs that, in general, either way offences should be tried summarily unless the court’s powers are likely to be insufficient, or the case has unusual legal/procedural/factual complexity better suited to the Crown Court. The court may still retain jurisdiction and, if convicted, commit for sentence if necessary.

If the magistrates consider the case is too serious for their sentencing powers, they must decline jurisdiction and send the matter to the Crown Court for trial (“sent forthwith”). Otherwise, if they deem their powers adequate, the defendant is advised of their right to elect trial in the Crown Court.

Key Term: allocation guideline
Official guidance, issued by the Sentencing Council, instructing that either way offences should generally be tried summarily unless the case’s seriousness or complexity suggests trial on indictment is necessary.

The Defendant’s Right to Elect

If the magistrates accept jurisdiction (i.e., retain the case for summary trial), the defendant—unless the case falls under a statutory exception—may choose:

1. Summary trial before the magistrates, or
2. Trial by jury in the Crown Court.

If the defendant elects the Crown Court, the magistrates must send the case there for trial.

Key Term: elect trial by jury
The defendant’s right in certain either way offences to choose trial in the Crown Court before a judge and jury, rather than summary trial in the magistrates’ court. Key Term: defendant’s choice
The point in allocation where, after the court accepts summary jurisdiction, the defendant must decide whether to consent to summary trial or to elect Crown Court trial (MCA 1980, s 20(9)).

Even after accepting jurisdiction, the court retains a gatekeeping role under MCA 1980, s 25: on the prosecutor’s application (made before any other issues are dealt with), an either way case can still be sent to the Crown Court if the magistrates consider their sentencing powers would be inadequate.

Indications of Sentence and their Effect

At the allocation stage (where jurisdiction is accepted), a defendant may request a high-level indication: custodial or non‑custodial if they were to plead guilty and be tried summarily. The court may give such an indication but need not do so. If a defendant then changes their indication and pleads guilty, MCA 1980, s 20A restricts any court from later imposing a custodial sentence unless custody was indicated. If the defendant does not change their plea, the indication is non‑binding and cannot be the basis of appeal.

Key Term: indication of sentence
A limited indication (custodial or non‑custodial) available in the magistrates’ court at allocation where summary trial is suitable; binding only if the defendant promptly changes to a guilty plea in reliance on it (MCA 1980, s 20A).

Note the contrast with a Goodyear indication in the Crown Court at a PTPH, which is judge‑led, consensus‑informed and binding if the plea follows immediately.

Client-Centred Advice on Trial Venue

A key role of the solicitor is to advise on the relative merits of choosing summary trial or Crown Court trial. The relevant considerations include:

• Sentencing powers: Crown Court often has higher sentencing limits, but the magistrates can commit for sentence so overall exposure may be similar where guideline ranges exceed summary powers.
• Likelihood of conviction: jury acquittal rates are generally higher than conviction rates in the magistrates’ court.
• Delay and case progression: Crown Court trials are typically slower; summary trials are listed quicker and are shorter.
• Formality, stress and publicity: Crown Court procedure is more formal and often higher profile; some defendants find juries less intimidating than speaking directly to magistrates.
• Disclosure and defence obligations: mandatory defence statements apply in the Crown Court; not required in the magistrates’ court (though witness details under CPIA s 6C still apply). Earlier, fuller prosecution disclosure will usually occur in the Crown Court.
• Costs and funding: Crown Court representation may involve income contributions; magistrates’ proceedings are usually cheaper to fund privately. Legal aid scope and contributions should be considered.
• Tactical issues: points of law or the exclusion of contested evidence are determined by a judge away from the jury in the Crown Court; in the magistrates’ court, the tribunal of fact hears it all.

Key Term: initial details of the prosecution case (IDPC)
See above definition. In either way cases, you should be ready to address plea and allocation only after considering IDPC; where it is not available, invite the court to allow time.

Always tailor advice to the defendant’s priorities (speed, risk appetite, personal vulnerability, reputational issues) and the case’s evidential complexity.

Special Routes and Exceptions

Certain offences and combinations affect allocation:

• Low‑value shoplifting (MCA 1980, s 22A): treated as summary‑only but with a defendant’s right to elect Crown Court trial. The court should still take a PBV because a guilty indication leads to summary sentence.
• Low‑value criminal damage (less than £5,000): summary‑only; no election right; and if guilty, no power to commit for sentence for that offence.
• Serious or complex fraud: the DPP/SFO may serve a notice (CDA 1998, s 51B) requiring the case be sent without allocation.
• Certain child‑related cases: a notice (CDA 1998, s 51C) can require sending without allocation to protect a child‑witness.
• Related offences/offenders: where an indictable‑only offence is sent, related either way (and certain summary) offences must (or may, on later appearance) be sent with it (CDA 1998, s 50A(3)); co‑defendants jointly charged may be sent together.

Key Term: sending without allocation
Statutory routes under the Crime and Disorder Act 1998 by which either way offences bypass allocation and are sent directly to the Crown Court (e.g., serious/complex fraud, certain child‑witness cases, and offences related to an indictable‑only count or to a co‑defendant being sent).

Exam Warning

Do not confuse the defendant’s right to elect with cases where the court must send: if magistrates decline jurisdiction, or a s 50A notice applies, the case goes to the Crown Court and no election arises.

Worked Example 1.1

Jas is charged with an either way offence for theft. She indicates a not guilty plea. The magistrates are not convinced they have adequate sentencing powers. What happens next?

Answer:
The magistrates must decline jurisdiction, and Jas’s case will be sent to the Crown Court for trial.

Worked Example 1.2

Brian is charged with ABH (an either way offence) and indicates a not guilty plea. The magistrates accept jurisdiction. Brian is unsure whether to elect Crown Court trial. What advice should his solicitor consider giving?

Answer:
The solicitor should discuss sentencing powers, speed, potential for acquittal, cost, stress, and differences in procedure with Brian, considering his specific circumstances and explaining the implications of both summary trial and Crown Court trial.

Worked Example 1.3

Omar is charged with shoplifting goods worth £95 from a supermarket. He indicates a not guilty plea. How does allocation work?

Answer:
Low‑value shoplifting is triable summarily under MCA 1980, s 22A, but the defendant retains a right to elect trial by jury. The court should explain summary suitability and Omar’s right to elect. If he elects, the case must be sent to the Crown Court; if he consents to summary trial, the magistrates will try it.

Worked Example 1.4

Meera faces a single either way count of fraud. The magistrates accept jurisdiction. The prosecutor applies under MCA 1980, s 25 to send the case to the Crown Court on the basis that summary powers would be inadequate. What must the court do?

Answer:
The court must determine the s 25 application before any other issue concerning the summary trial. If satisfied its sentencing powers would be inadequate, it should send the case to the Crown Court notwithstanding earlier acceptance of jurisdiction.

Worked Example 1.5

Lewis is sent to the Crown Court for robbery (indictable only). He also faces a related common assault arising from the same incident. What is the venue for the assault?

Answer:
As a related offence, the common assault can be sent with the robbery (CDA 1998, s 50A(3), read with CJA 1988, s 40(1) on Crown Court trial of certain summaries). In practice, it will travel with the robbery to the Crown Court.

Worked Example 1.6

At the first hearing for an either way offence, the defence has not yet received IDPC. The court proposes to take a plea indication and proceed to allocation. What should the defence do?

Answer:
Invite the court to ensure compliance with CrimPR 8 (IDPC) and allow time to consider the materials before an indication and allocation. Allocation decisions should be made on a proper understanding of the alleged facts and any relevant antecedents.

Related Statute and Special Cases

The basic procedure is set out in Magistrates’ Courts Act 1980 (ss 17A–22A). Special provisions sometimes apply, e.g., for certain fraud or child‑related cases, where allocation or election may be restricted or bypassed altogether by sending without allocation (CDA 1998, ss 50A, 51B, 51C). Linked offences (either way and certain summary) can be sent with an indictable‑only charge if they arise from the same or connected circumstances. Co‑defendants jointly charged may also be sent together.

Exam Warning

Be careful to distinguish between the defendant's right to elect trial and cases where the magistrates must send the case to the Crown Court—particularly for offences where the law removes the right to summary trial or creates mandatory allocation rules.

Further Practical Points

• Mixed pleas: where multiple either way counts attract different indications, the court allocates on the not‑guilty counts and may sentence on any guilty counts immediately or adjourn pending trial outcome on the not‑guilty count(s).
• Bail: wherever a case is sent for trial or committed for sentence, bail/custody must be reconsidered. The usual practice is to preserve the existing status absent a change of circumstances.
• Criminal damage under £5,000: always check the valuation. If summary‑only, there is no election right and no power to commit for sentence on that count.
• Domestic burglary with relevant previous convictions: while still either way, a guideline starting point and statutory minimums on a “third strike” may point strongly to Crown Court trial due to likely sentencing beyond summary powers.

Key Point Checklist

This article has covered the following key knowledge points:

• Plea before venue applies to either way offences at the first magistrates’ court hearing.
• The court must ensure the defence has IDPC; plea indication and allocation should follow meaningful disclosure and brief representations.
• Allocation turns on sentencing powers, party representations and the allocation guideline; consider aggregate powers for multiple counts.
• If jurisdiction is accepted, the defendant usually has the right to elect jury trial; however, where the court declines jurisdiction, there is no election.
• An indication of sentence (custodial/non‑custodial) may be requested; if a guilty plea follows, a non‑custodial indication prevents later custody for that offence (s 20A).
• The prosecution may, before summary trial starts, seek sending on the basis that magistrates’ powers are inadequate (MCA 1980, s 25).
• Certain categories must or may be sent without allocation under CDA 1998, s 50A (serious/complex fraud; child‑witness cases; related offences/offenders).
• Special rules: low‑value shoplifting (summary‑only with right to elect); low‑value criminal damage (summary‑only, no election, no committal for sentence on that count).
• Client advice on venue must address sentencing exposure, timing, disclosure obligations, costs/funding, and procedural/tactical differences between courts.

Key Terms and Concepts

• plea before venue
• initial details of the prosecution case (IDPC)
• either way offence
• allocation
• allocation guideline
• indication of sentence
• defendant’s choice
• elect trial by jury
• sending without allocation