Unit 8 - Court Procedure Reading PDF

1\. Overview of criminal procedure 1. The classification of offences (indictable, either-way and summary). *(This reading was covered in Unit 1, you should revisit your reading as necessary.)* 4\. Procedure in the magistrates' courts, allocation for trial, and sending to the Crown Court f...

1\. Overview of criminal procedure 1. The classification of offences (indictable, either-way and summary). *(This reading was covered in Unit 1, you should revisit your reading as necessary.)* 4\. Procedure in the magistrates' courts, allocation for trial, and sending to the Crown Court for trial or sentence 1. the rules relating to the provision of initial details of the prosecution case. *(This reading was covered in Unit 2, you should revisit your reading as necessary)* 2. preliminary hearings and entering a plea in the magistrates' court, including equivocal pleas  3. the factors the defendant should be aware of in deciding whether to elect Crown Court trial 4. plea before venue and allocation, including the special rules for criminal damage and low value shoplifting cases 5. committal for sentence 6. sending indictable offences to the Crown Court 7. the sending of linked summary only offences and the procedure for dealing with them in the Crown Court 8\. Summary trial procedure 1. pre-trial rulings 1. Overview of criminal procedure ============================== 1. The classification of offences (indictable, either-way and summary) 1. Interpretation Act 1978, sch. 1 (a)     \'indictable offence\' means an offence which, if committed by an adult, is triable on indictment, whether it is exclusively so triable or triable either way; (b)     \'summary offence\' means an offence which, if committed by an adult, is triable only summarily; (c)     \'offence triable either way\' means an offence, other than an offence triable on indictment only by virtue of \[s. 40\] of the Criminal Justice Act 1988 which, if committed by an adult, is triable either on indictment or summarily; and the terms \'indictable\', \'summary\' and \'triable either way\', in their application to offences, are to be construed accordingly. Procedure in the magistrates' courts, allocation for trial, and sending to the Crown Court for trial or sentence ================================================================================================================= 1. the rules relating to the provision of initial details of the prosecution case 2. preliminary hearings and entering a plea in the magistrates' court, including ambiguous pleas 3. the factors the defendant should be aware of in deciding whether to elect Crown Court trial 4. determining allocation (mode of trial) including the special rules for criminal damage and low value shoplifting cases 5. committal for sentence 6. sending indictable offences to the Crown Court 7. the sending of linked summary only offences and the procedure for dealing with them in the Crown Court 1. [Disclosure of initial details of Prosecution case] D5.20 CrimPR Part 8 (see Supplement, R8.1 et seq.) applies in every case (r. 8.1(1)). Rule 8.2(1)(a) requires the prosecutor, as soon as practicable (and, in any event, no later than the beginning of the day of the first hearing), to provide to the court \'initial details\' of the prosecution case. These initial details of the prosecution case do not have to be supplied automatically to the accused; rather, r. 8.2(2) provides that, if the accused requests the initial details, the prosecutor must serve them as soon as practicable (and, in any event, no later than the beginning of the day of the first hearing); **if the accused does not request those details,** the prosecutor must make them available to the accused at, or before, the beginning of the day of the first hearing (r. 8.2(3)). What constitutes \'initial details\' of the prosecution case is defined by r. 8.3. Where, immediately before the first hearing in the magistrates\' court, the accused was in police custody for the offence charged, initial details comprise a: - \'summary of the circumstances of the offence\', - and the accused\'s criminal record (if any). If the accused is not in custody, initial details comprise: - a summary of the circumstances of the offence; - any account given by the accused in interview (set out either in the summary or in a separate document); - any written witness statements (including exhibits) that the prosecutor has available at that stage and which the prosecutor considers to be material to plea, or to whether the case should be tried in a magistrates\' court or the Crown Court, or to sentence; - the accused\'s criminal record (if any); - and any available statement of the effect of the offence on victims or their family (or on others). [Failure to Comply] D5.21 Part 8 contains no specific sanction if the prosecution fail to supply the required initial details. However, it is submitted that it would be open to the magistrates\' court to make a direction (under CrimPR 3.5: see Supplement, R3.5) requiring the prosecution to comply. It should be noted that r. 3.5(6)(a) provides that, if a party fails to comply with direction given by the court, the court may (for example) adjourn the hearing (see D5.22). Failure on the part of the prosecution to comply with Part 8 is likely to result in an adjournment (and possibly a costs sanction under r. 3.5(6)(b)). Moreover, CrimPR 8.4 applies where the prosecutor wants to introduce information contained in a document listed in r. 8.3 but has not served that document on the accused or made that information available. - In such cases, the prosecutor will not be permitted to \'introduce that information unless the court first allows the defendant sufficient time to consider it\'. However, it would appear that the court cannot dismiss the charge(s) brought by the prosecution because of non-compliance with a request for initial details of the prosecution case (King v Kucharz (1989) 153 JP 336). 2. [Pre-trial hearing by television link] D5.43 The CJA 2003, s. 51, provides that the court may, by a direction, require or permit a person to take part in eligible criminal proceedings through a live audio link or a live video link. Eligible proceedings include preliminary hearings and hearings before a magistrates\' court or the Crown Court which are held after D has entered a plea of guilty, and sentencing hearings. Under s. 51(4), the court may not give a direction under s. 51 unless satisfied that it is in the interests of justice for the person to whom the direction relates to take part in the proceedings through such a live link, and the parties to the proceedings have been given the opportunity to make representations. Under s. 51(6), the court has to consider (amongst other factors): - any need for that person to attend in person; - the views of that person; the suitability of the facilities at the place where that person would take part in the proceedings via a live link; - whether that person would be able to take part in the proceedings effectively; - where the person is a witness, the importance of his or her evidence to the proceedings, and whether the direction might tend to inhibit any party to the proceedings from effectively testing the witness\'s evidence; - and the arrangements for members of the public to see or hear the proceedings as conducted in accordance with the direction. The guidance adds that it is \'rarely appropriate for a youth to be sentenced over a live link\' (para. 11). This guidance also notes that preliminary hearings such as bail applications \'will generally be suitable for remote attendance by all advocates\'. [Trial in Absence of the Accused] D5.46 If the accused fails to appear for the trial in the magistrates\' court, the case may (if the accused is under 18) or must (if the accused has attained the age of 18 and it does not appear to the court to be contrary to the interests of justice to do so) proceed in the accused\'s absence (MCA 1980, s. 11(1). [Pre-trial Hearings] D21.33 The CDA 1998, s. 50, makes provision for pre-trial hearings. It provides that where the accused has been charged with an offence at a police station, the magistrates\' court before which the accused appears for the first time in relation to that charge may consist of a single justice (s. 50(1)). At a hearing under s. 50, the accused is asked whether he or she wishes to be provided with legal aid (s. 50(2)(a)); - if the accused does so wish, the necessary arrangements for an application must be made and, where appropriate, legal aid obtained (s. 50(2)(b)) - and, if necessary, the hearing may be adjourned for this purpose under s. 50(4A)(a). - On adjourning the hearing, the magistrate may remand the accused in custody or on bail (s. 50(3)(b)). [Preparation for trial hearings] D21.34 By virtue of CrimPR 3.16 (see Supplement, R3.16), a magistrates\' court must conduct a \'preparation for trial hearing\' (unless ***the accused is sent for trial in the Crown Court or enters a written guilty plea***, or the single justice procedure applies). The court may conduct one or more further pre-trial case management hearings if i. the court anticipates a guilty plea; or ii. it is necessary to conduct such a hearing in order to give directions for an effective trial; or iii. such a hearing is required to set ground rules for the conduct of the questioning of a witness or defendant (r. 3.16(1)). At a preparation for trial hearing, \'the court must give directions for an effective trial\' (r. 3.16(2)). Under r. 3.16(3), if the accused is present, the court must: iii. if released on bail, failure to attend court when required to do so is an offence which may lead to arrest and punishment, and that bail may be withdrawn. The court is also required to ascertain the name and date of birth of the accused unless previously provided (r. 3.16(5)). These hearings will usually take place in public (r. 3.16(4)). [Pre-trial Rules] D21.35 The MCA 1980, s. 8A (see D21.37), applies to cases that are to be tried summarily where the accused has entered a not guilty plea (s. 8 A (1)). For these purposes, a pre-trial hearing is a hearing that takes place before the court begins to hear evidence from the prosecution at the trial. At a pre-trial hearing, the magistrates may decide any question as to the admissibility of evidence and any other question of law relating to the case (s. 8 A (4)). If the accused is unrepresented, he or she must be given the chance to apply for legal aid (s. 8 A (5)). Pre-trial rulings may be made on the application of the defence or prosecution, or of the court\'s own motion (s. 8 A (6)). Under s. 8 B (1), a pre-trial ruling is binding until the case against the accused (or, where there is more than one, against each of them) is disposed of. The case is disposed of if the accused is acquitted or convicted, or the prosecutor decides not to proceed with the case, or the case is dismissed (s. 8 B (2)). - However, under s. 8 B (3), the court may (on application by a party or of its own motion) discharge or vary a pre-trial ruling provided it appears to the court that it is in the interests of justice to do so, and the court has given the parties an opportunity to be heard. - A party can apply for the ruling to be discharged or varied only if there has been a material change of circumstances since the ruling was made or, if there has been a previous application under s. 8B, since that application was made (s. 8 B (5)). In R (CPS) v Gloucester Justices \[2008\] EWHC 1488 (Admin), MacKay J, considering the power of the magistrates\' court to vary the pre-trial ruling of its own motion, made the point that it is difficult to accept that it could be in the interests of justice for the court to annul or discharge its own ruling without a compelling reason to do so, such as changed circumstances or fresh evidence; it is not sufficient that a different bench reaches a different conclusion on the same material (at \[12\]). [Essential Case Management: Applying the Criminal Procedure Rules] D21.40 In December 2009, Leveson LJ (then Senior Presiding Judge for England and Wales) issued guidance to magistrates\' courts in a document entitled Essential Case Management: Applying the Criminal Procedure Rules. Where the accused pleads not guilty, the parties must, from the start, identify the disputed issues and tell the court what they are; if the parties do not supply this information, the court must require them to do so. - The \'live\' evidence at the trial should be confined to those issues, and so only witnesses \'who are really needed in relation to genuinely disputed, relevant issues should be required to attend\'. In R (Drinkwater) v Solihull Magistrates\' Court \[2012\] EWHC 765 (Admin), Sir John Thomas P said (at \[49\]) that \'in any case in the magistrates\' court where a trial is likely to be other than a short one, it should be the ordinary practice for a timetable for the conduct of a trial to be set at the time the trial date is fixed and the estimate made\' [Ambiguous pleas] D12.99 If an accused purports to enter a plea of guilty but, either at the time of pleading or subsequently in mitigation, qualifies it with words that suggest the accused may have a defence (e.g., \'Guilty, but it was an accident\' or \'Guilty, but I was going to give it back\'), then the court must not proceed to sentence on the basis of the plea but should explain the relevant law and seek to ascertain whether the accused genuinely intends to plead guilty. If the plea cannot be clarified, the court should order a not guilty plea to be entered on the accused\'s behalf (CLA 1967, s. 6(1)(c): \'if \[the accused\] stands mute of malice or will not answer directly to the indictment, the court may order a plea of not guilty to be entered\'). Should the court proceed to sentence on a plea which is imperfect, unfinished or otherwise ambiguous, the accused will have a good ground of appeal. Since the defect in the plea will have rendered the original proceedings a mistrial, the Court of Appeal will have the options either of setting the conviction and sentence aside and ordering a retrial (see, e.g., Ingleson \[1915\] 1 KB 512) or of simply quashing the conviction (see, e.g., Field (1943) 29 Cr App R 151). 3. [Accused's Decision whether to Consent to Summary Trial] D6.19 It is sometimes asserted that one advantage of summary trial is that there is a limit on the sentence which the magistrates\' court can pass. However, this advantage is nullified by the power of the magistrates to commit the accused to be sentenced in the Crown Court under the SA 2020, s. 14. One potential advantage of trial on indictment is that submissions on the admissibility of evidence can be made in the absence of the jury, with the obvious benefit that the jury do not find out about any matters that are ruled inadmissible. Another supposed advantage of trial on indictment is that the defence are entitled to receive copies of the written statements of the witnesses to be called by the prosecution as part of the process whereby the case is transferred to the Crown Court. However, as a matter of good practice, the prosecution also provide to the defence all the evidence upon which they propose to rely in a summary trial. Thus, an accused who is to be tried in the magistrates\' court should be in the same position as one being tried in the Crown Court as regards obtaining copies of the prosecution witness statements. One possible advantage of magistrates\' court trial is that it is shorter and less formal than trial on indictment, and is therefore also cheaper (likely to be particularly relevant if the accused is not legally aided). [Defence Statements] D9.30 By the CPIA 1996, s. 5, once the case is sent to the Crown Court and the prosecution case is served, the accused must give a defence statement to the court and the prosecutor. The defence statement is a written statement setting out the basis on which the case will be defended. The areas that the statement must cover are set out in s. 6A of the CPIA 1996 and include:  - the nature of the accused\'s defence, including any particular defences upon which the accused intends to rely;  - the matters of fact on which the accused takes issue with the prosecution, with the reasons why; - particulars of the matters of fact on which the accused intends to rely for the purposes of defence; and  - any points of law which the accused wishes to take, with any authorities relied upon. It should be stressed that the duty of disclosure imposed on the defence is different to that which is meant by the prosecution \'duty of disclosure\'. In respect of the defence, it is a duty to reveal the case which will be presented at trial (rather than, as in the case of the prosecution, to disclose unused material). [Defence Statements in cases tried summarily ] D9.38 In cases tried summarily there is no obligation on the defence to provide a defence statement. However, once the prosecutor has complied (or purported to comply) with the duty to disclose unused material (see D9.16), the accused may give the prosecutor and the court a defence statement (CPIA 1996, s. 6). In the absence of a defence statement, the accused cannot make an application for specific disclosure under s. 8, and the court cannot make any orders for disclosure of unused prosecution material (see s. 8(1) and D9.27). Where the accused chooses to serve a defence statement this must be done within 14 days from the date on which the prosecutor complies or purports to comply with the initial duty of disclosure (Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011, reg. 2: see D9.41). Notwithstanding the absence of a requirement to serve a defence statement, the defence must identify the real issues in a case in accordance with the overriding objective in CrimPR 1.1. [Decision on The Issue of Guilt] [Manner of Arriving at and Announcing Decision -- DUTY TO GIVE REASONS] D22.69 CrimPR 24.3(5) (see Supplement, R24.3) provides that the court, if it convicts the accused (or makes a hospital order instead of doing so), must give \'sufficient reasons to explain its decision\'. However, the justices are not required to state their reasons in the form of a judgment or to give reasons in any elaborate form. If a party wishes to obtain more detailed reasons, a request can be made to the magistrates to state a case. If the court acquits the accused, it may (but is not required to) give an explanation of its decision (CrimPR 24.3(6)(a)). 4. **[ALLOCATION: Determination of Mode of Trial]** [Introduction] D6.6 Sections 17A to 21 of the MCA 1980 set out the method of determining allocation (mode of trial) when an adult is **charged with an either way** offence. - The first stage (\'plea before venue\') ascertains the accused\'s intended plea (see D6.7); - if the intended plea is (or is deemed to be) not guilty, the second stage is to determine whether the case will be tried in a magistrates\' court or in the Crown Court (see D6.9). [Plea before Venue] D6.7l The initial procedure set out in the MCA 1980, s. 17A (see D6.20), applies whenever a person who has attained the age of 18 appears before a magistrates\' court charged with an either way offence (s. 17A(1)). **This procedure must be complied with before** any evidence is called for purposes of a summary trial or the case is sent for Crown Court trial. The steps in the standard procedure are as follows: a. The charge is written down (if that has not already been done) and read to the accused (s. 17A(3)).  b. The court explains that the accused may indicate whether the plea would be guilty or not guilty if the offence were to proceed to trial. The court should explain that, if the accused indicates a plea of guilty, the proceedings will be treated as a summary trial at which a guilty plea has been tendered, and that the accused may be committed for sentence under the SA 2020, s. 14, if the court is of the opinion that its powers of punishment are inadequate (see D23.30), or under s. 15, if it appears to the court that the criteria for the imposition of a sentence under ss. 306 to 308 (the \'dangerous offender\' provisions), apply (MCA 1980, (s. 17A(4);see D23.49).  c. The court asks the accused to indicate whether (if the offence were to proceed to trial) the plea would be guilty or not guilty (s. 17A(5)).  d. If the accused indicates a guilty plea, the court proceeds as if the accused had pleaded guilty at summary trial (s. 17A(6)), and so moves on to the sentencing stage.  e. **If the accused indicates a not guilty plea, an allocation (\'mode of trial\') hearing must take place, pursuant to s. 18** (s. 17A(7)). If the accused fails to give an indication of intended plea, the court will regard this as an indication of an intention to plead not guilty and so will go on to determine allocation under s. 18 (s. 17A(8)). [Allocation] D6.9 Where the accused has indicated an intention to plead not guilty to an either way offence (or has failed to give an indication as to plea), the court must proceed to determine allocation (MCA 1980, s. 18(1); see D6.20). The steps in this stage of the procedure are as follows: a. The court affords the prosecution and defence the opportunity to make representations about whether the offence is more suitable for summary trial or trial on indictment (s. 19(2)(b)). At that stage, the prosecution must also be given the opportunity of informing the magistrates of any previous convictions recorded against the accused (s. 19(2)(a)), since the existence of relevant previous convictions would affect the appropriate sentence.  b. The court then must decide whether the offence appears to be more suitable for summary trial or for trial on indictment (s. 19(1)). Section 19(3) provides that the court, when deciding which mode of trial is more suitable, must consider:  i.  whether the sentence which a magistrates\' court would have power to impose for the offence would be adequate;  ii. any representations made by the prosecution or the accused; and  iii. allocation guidelines issued by the Sentencing Council under the CAJA 2009, s. 120 (see D6.15 c. If it appears to the court that summary trial is more appropriate, the court explains to the accused that:   i. such is the court\'s view, and that the accused can either consent to be tried summarily or elect to be tried on indictment in the Crown Court; and  ii. if the accused is tried summarily and convicted, the magistrates may commit the accused to the Crown Court for sentence if they are of the opinion that greater punishment should be inflicted than they have power to inflict (SA 2020, s. 14; see D23.30) or if it appears to the court that the criteria for the imposition of a sentence under the SA 2020, ss. 306 to 308 (dangerous offenders), would be met (s. 20(1) and (2); see D23.49).  d. At that point, the accused may request that the magistrates indicate whether, if the accused were to be tried summarily and were to plead guilty at that stage, the sentence would be custodial or non-custodial (s. 20(3)). The magistrates are not obliged to give such an indication (s. 20(4)). If the court does give an indication of sentence, it must ask the accused whether he or she wishes, on the basis of the indication, to reconsider the indication of plea which was given (s. 20(5)). If the accused does wish to do so, the court must ask for a fresh indication of intended plea, and so the \'plea before venue\' stage is repeated (s. 20(6)).  e. If the accused indicates an intention to plead guilty following an indication of sentence, this is regarded as a guilty plea (s. 20(7)), and the magistrates\' court will proceed to sentence, if necessary adjourning for a pre-sentence report; in such a case, a custodial sentence will be available only if such a sentence was indicated by the court (s. 20A(1)). Where an indication of sentence is given and the accused does not choose to plead guilty on the basis of it, the sentence indication is not binding on the magistrates who later try the case summarily, or on the Crown Court if the accused elects trial on indictment (s. 20A(3)).  f. If the court does not give an indication of sentence (either because the accused does not seek one or the court declines to give one), or if the accused seeks and receives an indication of sentence but does not then wish to reconsider the indication of plea, or if the accused goes through the plea before venue stage a second time but does not indicate an intention to plead guilty, then the accused is asked whether he or she consents to summary trial (s. 20(8) and (9)). g. Depending on the choice made by the accused, the court either proceeds to summary trial or sends the case to the Crown Court for trial under the CDA 1998, s. 51 (s. 20(9)).  h. If, on the other hand, it appears to the court that trial on indictment is more appropriate, it tells the accused that this is so and proceeds to send the case to the Crown Court under the CDA 1998, s. 51 (s. 21). [Presence of the Accused] D6.10 The accused must generally be present at the \'plea before venue\' hearing (MCA 1980, s. 17A(2)) and when allocation is determined (s. 18(2); see D6.20). However, by virtue of s. 17B, the \'plea before venue\' hearing may take place in the absence of the accused if: a. the accused is represented by a legal representative; and b. the court considers that, by reason of the accused\'s disorderly conduct before the court, it is not practicable for proceedings under s. 17A to be conducted in the presence of the accused; and c. the court considers that it should proceed in the absence of the accused. In such a case, the representative is asked to indicate whether the accused intends to plead guilty or not guilty (s. 17B(2)(b)); if the representative indicates a guilty plea, the court proceeds as if the accused had pleaded guilty (s. 17B(2)(c)). Otherwise, the court proceeds to determine allocation under s. 18 (s. 17B(2)(d) and (3)). The allocation hearing can take place in the absence of the accused under either s. 18(3) or s. 23.  a. Under s. 18(3), the court may determine allocation in the absence of the accused if it considers that, by reason of disorderly conduct before the court, it is not practicable for the proceedings to be conducted in the presence of the accused. Where there is a legal representative present in court, the representative speaks on behalf of the accused (s. 18(3)).  b. Under s. 23, the court may determine allocation in the absence of an accused who is represented by a legal representative who signifies to the court that the accused consents to the mode of trial proceedings being conducted in the absence of the accused, and the court is satisfied that there is good reason for the proceedings being so conducted (s. 23(1)). The slight inconsistency as regards the presence of the accused in plea before venue and allocation hearings is addressed by the JRCA 2022, s. 9, which (from a date to be appointed) amends ss. 17B and 23 to provide that the court has the power to proceed with the plea before venue hearing or, as the case may be, the allocation hearing in the absence of the accused where he or she does not appear at the hearing, and:  a.      any one of these four conditions is met:   1. a legal representative of the accused is present at the hearing and signifies the accused\'s consent to the court proceeding in the accused\'s absence 2. a legal representative of the accused is present at the hearing, and the court does not consider that there is an acceptable reason for the accused\'s failure to attend;  3. it is proved to the satisfaction of the court that notice of the hearing was served on the accused within what appears to the court to be a reasonable time before the hearing, and the court does not consider that there is an acceptable reason for the accused\'s failure to attend; or  4. the accused has appeared on a previous occasion to answer the charge, and the court does not consider that there is an acceptable reason for the accused\'s failure to attend; and  (b)     the court is satisfied that it is not contrary to the interests of justice to proceed in the absence of the accused. D23.35 [Binding Effect of Indication of Sentence] D6.13 Where the court gives an indication of sentence under the MCA 1980, s. 20(4), and the accused then indicates a guilty plea (under s. 20(7)), s. 20A(1) stipulates that \'no court (whether a magistrates\' court or not) may impose a custodial sentence for the offence unless such a sentence was indicated in the indication of sentence\' given under s. 20(4). The SA 2020,s.15(1) and (2), require a magistrates\' court to commit an offender to the Crown Court for sentence where it appears to the magistrates\' court that the criteria for the imposition of a sentence under s. 267 (extended sentences for dangerous offenders) would be met. Section 18(8) applies where the magistrates\' court commits an offender to the Crown Court for sentence under s. 18(1) on the basis that the accused has indicated an intention to plead guilty to an either way offence (and therefore is deemed to have pleaded guilty to it) **and is also being sent to the Crown Court for trial in respect of one or more related offences.** [Indication of Not Guilty Plea: Magistrates' Decision whether to accept Jurisdiction] D6.14 If the accused indicates a not guilty plea (or gives no indication, and so is deemed to be indicating a guilty plea), the court must consider whether to offer the accused the opportunity to consent to summary trial. Section 19(3) of the MCA 1980 sets out the matters to which the magistrates must have regard in considering whether summary trial or trial on indictment is more appropriate. The most important consideration for the magistrates (and for the parties, when making their representations) is whether the sentencing powers of the magistrates would be adequate to deal with the offence(s) in the event of the accused being convicted. Where the accused is charged with more than one offence, the magistrates are required to look at the totality of the allegations, and not at each offence in isolation. - Thus, the magistrates can, and should, decline jurisdiction if they take the view that their sentencing powers are insufficient to deal with the totality of the offending, even if each offence taken by itself would not merit a harsher sentence than the magistrates could impose for that individual offence. - The maximum penalty which magistrates can impose on summary conviction for an either way offence is six months\' imprisonment (SA 2000, s. 224) and/or an unlimited fine (see also E13.5). [Allocation Guideline] D6.15 The Sentencing Council\'s overarching guideline, *Allocation*, states that, in general, either way offences should be tried summarily unless either: a. the outcome would clearly be a sentence in excess of the court\'s powers for the offence(s) concerned **after taking into account personal mitigation and any potential reduction for a guilty plea**; or  b. for reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court. This exception may apply in cases where a very substantial fine is the likely sentence; other circumstances where this exception will apply are likely to be \'rare and case specific\'. The guideline goes on to say that, in cases with no factual or legal complications, the court should bear in mind its power to commit for sentence after a trial, and may retain jurisdiction notwithstanding that the likely sentence might exceed its powers. It is submitted that the practical effect is that, if the magistrates are uncertain of the adequacy of their sentencing powers, they should err on the side of offering the accused the option of summary trial. Where the court decides that the case is suitable to be dealt with in the magistrates\' court, it must warn the accused that all sentencing options remain open and that, if the accused consents to summary trial and is convicted by the court or pleads guilty, the accused may be committed to the Crown Court for sentence. D6.16 Turning to the power to commit for sentence under the SA 2020, s. 14 (see D23.30), the guideline notes that there is ordinarily no statutory restriction on committing an either way offence for sentence following conviction. - The general power of the magistrates\' court to commit to the Crown Court for sentence after a finding that a case is suitable for summary trial and/or conviction continues to be available where the court is of the opinion \'that the offence or the combination of the offence and one or more offences associated with it was so serious that the Crown Court should, in the court\'s opinion, have the power to deal with the offender in any way it could deal with him if he had been convicted on indictment\' In borderline cases, the magistrates\' court should consider obtaining a pre-sentence report before deciding whether to commit to the Crown Court for sentence. Finally, the guideline says that **where the offending is so serious** that the court is of the opinion that the Crown Court should have the power to deal with the offender, the case should be committed to the Crown Court for sentence even if a community order may be the appropriate sentence. [Allocation where there are Co-accused] D6.17 CrimPR 9.2(6)(a) (see Supplement, R9.2) provides that, where the court is dealing on the same occasion with two or more accused who are charged jointly with an offence that can be tried in the Crown Court, the court must explain that, if one of them is sent to the Crown Court for trial, the other(s), if they do not wish to plead guilty, must also be sent for trial in the Crown Court for the offence that is jointly charged and for any other offence which the court decides is related to that offence. - This is so even if the court has, by then, decided that the case against the other accused is suitable for summary trial. In any event, by virtue of r. 9.2(7), if the court is dealing on the same occasion with two or more accused who are jointly charged and it accepts jurisdiction in respect of one of them but another is then sent for Crown Court trial (this would be as a result of that accused electing Crown Court trial), the court must deal again with the accused in respect of whom it has accepted jurisdiction (sending that accused instead to the Crown Court for trial). [Prosecution Influence on the Allocation Decision] D6.18 The overall effect of the mode of trial provisions in the MCA 1980 is that summary trial may be vetoed either by the court or by the accused, but not by the prosecution. The most the prosecution can do is to make representations that trial on indictment would be more appropriate having regard to the gravity of the offence. However, where either - a. the case involves fraud of such seriousness or complexity that it is appropriate that the management of the case should without delay be taken over by the Crown Court, or b. the accused is charged with an offence which involves an assault on, or injury or a threat of injury to, a person or is charged with certain other specified offences and a child will be called as a witness at the trial and, for the purpose of avoiding any prejudice to the welfare of the child, the case should be taken over and proceeded with without delay by the Crown Court, The effect of such a notice is that the magistrates\' court is required, by s. 51(2)(c), to send the case forthwith to the Crown Court for trial instead of conducting a plea before venue hearing under the MCA 1980, s. 17A (s. 17A(10)). [Procedure on Criminal Damage Charges] D6.21 If the accused is charged with a \'scheduled offence\', the allocation procedure must be preceded by consideration of the value involved in the offence (MCA 1980, s. 22(1); see D6.27). Depending on what that value is, the accused may be deprived of the right to elect trial on indictment, notwithstanding that the offence is otherwise triable either way. Scheduled offences comprise: Some offences under the Criminal Damage Act 1971 are **not scheduled offences**, including: [Value Involved] D6.22 If the accused is charged with an offence of criminal damage to which the provisions of the MCA 1980, s. 22, apply, then the court must give the accused the opportunity to indicate plea (pursuant to s. 17A). It must then consider, having regard to any representations made by the prosecution and defence, whether the \'value involved\' in the offence exceeds the \'relevant sum\', currently £5,000 (s. 22(1)). If the property was allegedly destroyed or damaged beyond repair, the value involved is what it would probably have cost to purchase a replacement in the open market at the time of the offence; if the property was repairable, the value involved is the probable market cost of repairs or the probable market replacement cost, whichever is the less (sch. 2). If it appears to the magistrates that the value involved clearly does not exceed the relevant sum, they must proceed as if the offence charged were triable only summarily (s. 22(2)). Consequently, the allocation provisions of the 1980 Act do not apply and the accused has **no** right to elect trial on indictment. If it appears to the court clear that the value involved exceeds the relevant sum, it is obliged to determine allocation in accordance with the usual procedure, just as for any other either way offence (s. 22(3)). Where, for any reason, it is not clear to the court whether the value involved does or does not exceed the relevant sum, it must explain to the accused that he or she may consent to summary trial and that, if consent is given, a summary trial will take place and (in the event of conviction) liability to imprisonment or a fine will be limited in accordance with the provisions of s. 33 of the 1980 Act (see D6.27). The accused is then asked for consent. Depending on the accused\'s response, **the court either proceeds to summary trial or embarks on the ordinary procedure for determining mode of trial (**s. 22(5) and (6)). D6.23 The MCA 1980, s. 17D(1), provides that where the accused, at the plea before venue hearing, indicated a guilty plea to an offence to which s. 22 applies (and so is deemed to have pleaded guilty to it), the court must consider whether, having regard to any representations made by the accused or by the prosecutor, the value involved exceeds £5,000. - If it appears clear to the court that the value involved does not exceed £5,000, or it is unclear whether the value involved exceeds £5,000, the court\'s sentencing powers are subject to the limits set out in the MCA 1980, s. 33. Section 33 provides that where the accused is convicted of an offence to which s. 22 applies (this includes conviction following a guilty plea under s. 17A(6) and conviction following summary trial of a criminal damage offence where either the court decided that the value involved clearly did not exceed £5,000 or, by virtue of s. 22(5), the accused consented to summary trial in a case where the court was in doubt as to the value involved), then the maximum penalty that may be imposed in the event of conviction is three months\' imprisonment or a fine of £2,500. [Procedure for Determining the Value involved] D6.24 The court is required by the MCA 1980, s. 22(1), to have regard to the \'representations\' of the parties when considering the value involved in a criminal damage offence. This does not entail an obligation to hear evidence. In Canterbury and St Augustine Justices, ex parte Klisiak \[1982\] QB 398 at p. 413D---E, Lord Lane CJ said that \'the word "representations" implies something less than evidence. It comprises submissions, coupled with assertions of fact and sometimes production of documents... In a case where there is real difficulty in arriving at an appropriate basis for calculating the value involved, the prosecution are entitled to say that they will not seek to prove that the accused caused any more damage than can be established with clarity. - Acting on that assurance, the court may conclude that the value was clearly less than the relevant sum even though, in the absence of such an assurance and adopting an alternative method of calculation, the question would have remained doubtful and the accused could therefore have elected trial on indictment (Salisbury Magistrates\' Court, ex parte Mastin (1986) 84 Cr App R248). [Two or more Criminal Damage Charges] D6.25 If the accused is \'charged on the same occasion with two or more scheduled offences and it appears to the court that they constitute or form part of a series of two or more offences of the same or a similar character\', then the **relevant consideration is the aggregate value involved in the offences** (MCA 1980, s. 22(11); see D6.27). - In other words, the accused will retain the right to trial on indictment if the value of the offences added together exceeds the relevant sum (£5,000), even if the value of each offence taken individually was under the relevant sum. - s22(11) applies where the offences are founded on the same facts (effectively, amounting to a single incident) or constitute a series of offences that are linked by closeness in time and geographical location. D6.26 Section 22(11) applies where the accused is \'charged on the same occasion\' with two or more scheduled offences. This phrase could be construed to mean either being charged at the police station (where that is the way in which proceedings were commenced) or appearing before a magistrates\' court to answer charges [Special Provision for low-value shoplifting] D6.28 (except the last sub-paragraph) The MCA 1980, s. 22A (see D6.29), provides that \'low-value\' shoplifting (defined as shoplifting where the value of the stolen goods does not exceed £200) is triable only summarily. - However, s. 22A(2) goes on to provide that, where an accused who has attained the age of18 is charged with low-value shoplifting, the court must, before the summary trial of the offence begins, give the accused the opportunity of electing Crown Court trial for the offence; if the accused elects to be so tried, the magistrates\' court must send the case to the Crown Court for trial. Unlike the special procedure for criminal damage (under the MCA 1980, s. 22), in the case of low-value shoplifting the accused **retains** the right to elect Crown Court trial. 5. [Challenge the decision to commit or refuse to commit] D23.40 If an offender is aggrieved at a decision to commit for sentence to the Crown Court, there is little that can be done about it. The Crown Court has power to remit the case back to the magistrates\' court only if the committal is plainly invalid; in any other case, the committal can be challenged only by means of an application for judicial review before the Divisional Court. - However, such a challenge would succeed only if the committal were irrational in the Wednesbury sense that no reasonable bench of magistrates could have decided to commit the offender for sentence. However, two points should be noted. First, it is by no means inevitable that, even if it retains jurisdiction, the Crown Court will in fact impose a sentence which is more severe than the sentence which the magistrates\' court could have imposed. Secondly, there is the option of appealing to the Court of Appeal against the sentence imposed by the Crown Court (under the Criminal Appeal Act 1968, s. 10) if that sentence is in fact excessive. If the prosecution are unhappy with a decision not to commit for sentence, judicial review may be available. - However, the Divisional Court will interfere with such decisions only where they are properly categorised as \'truly astonishing\' (Warley Magistrates\' Court, ex parte DPP \[1999\] 1 All ER 251 at 225 [Committal for Sentence under the Sentencing Act 2020, s18] D23.42 The SA 2020, s. 18(1) (see D23.44), provides that, where the accused has indicated a guilty plea to an either way offence (and so is deemed to have pleaded guilty to it) and is also sent for trial for one or more related offences, the magistrates may commit the offender to the Crown Court for sentence in respect of the either way offence to which he or she has pleaded guilty. For the purposes of these provisions, one offence is related to another if the charges for them could be joined (under CrimPR 3.29(4): see D11.63) in the same indictment if both charges were to be tried in the Crown Court (s. 18(7)). Thus, the two charges must be founded on the same facts or must be, or be part of, a series of offences of the same or a similar character. Section 21(4) and (5) provide that, where the magistrates\' court has committed an offender for sentence pursuant to s. 18(1), the Crown Court can exceed the sentencing powers of the magistrates\' court in respect of the either way offence so committed only if either:  a. the magistrates stated (under s. 18(4)) that they considered their sentencing powers were inadequate to deal with the offender for that offence (and so they also had power to commit the offender for sentence under s. 14); or  b. the offender is convicted by the Crown Court of one or more of the related offences. [Committal under the Sentencing Act 2020, s20] D23.55 (first sub-paragraph up to "... ss.14 to 19;" and third, fourth and fifth sub-paragraphs) The SA 2020, s. 20 (see D23.61), gives a power to commit for sentence which may be used to supplement a committal under the provisions listed in s. 20(1), which include: - committal for sentence under ss. 14 to 19; - committal for sentence in respect of the breach of a conditional discharge imposed by the Crown Court (under sch. 2, para. 5(4)); - and committal where the offender commits a further offence during the operational period of a suspended sentence imposed by the Crown Court (under sch. 16, para. 11(2)). - These committal powers are referred to below as \'primary\' committal powers. By virtue of the SA 2020, s. 20(2), when a magistrates\' court exercises a \'primary\' committal power in respect of an indictable offence (in this context, an either way offence), it may also commit the offender to the Crown Court to be dealt with in respect of any other offence of which he or she stands convicted (whether summary or indictable) that the magistrates\' court has jurisdiction to deal with as regards sentence. Section 20(3) expressly states that, provided the committing court would be able to deal with the matter if it were not to commit, the power to commit arises even if the conviction was by a different court. To take the example of a magistrates\' court which has decided to commit an offender under s. 14, for one either way offence, a committal under s. 20 might (for instance) relate to:  a. another, less serious, either way offence of which the magistrates have convicted the offender on the same occasion;  b. a summary offence of which they have convicted the offender on the same occasion. The reason a committal under s. 14 for the secondary offence would be inappropriate in situation (a) is that, because the offence is not sufficiently serious, the magistrates\' powers of sentencing for it are adequate. In situation (b), a committal under s. 14 would be inappropriate simply because that section does not extend to summary offences. 6. [Sending cases from the Magistrates' Court to the Crown Court] D10.1 All adults accused in criminal cases make their first appearance in the magistrates\' court. If the offence is triable only in the Crown Court, the accused must be sent to that court for trial. If it is triable either way, the accused will be sent to the Crown Court for trial only if the accused indicates, or is deemed to indicate, a not guilty plea at the \'plea before venue\' hearing and the allocation (\'mode of trial\') hearing that follows results in a decision in favour of Crown Court trial. [Court of First Appearance] D10.4 Whether the offence is triable either way or triable only on indictment, the accused\'s first appearance will be in a magistrates\' court. The MCA 1980, s. 2(2), provides: **[Sending cases to the Crown Court under the Crime and Disorder Act 1998, s51]** D10.5 The CDA 1998, s. 51(1) (see D10.41), provides that, where an adult appears or is brought before a magistrates\' court charged with an offence to which these provisions apply, the court must send the accused \'forthwith\' to the Crown Court for trial for the offence. **By virtue of s. 51(2)(a) and (b), these provisions apply where:** 1. the offence is triable only on indictment 2. or where the offence is triable either way and the allocation hearing (sometimes known as the \'mode of trial\' hearing) has resulted in a decision in favour of trial on indictment, either because the magistrates have declined jurisdiction or else the accused has elected Crown Court trial rather than summary trial 3. Under s. 51(2)(c), the magistrates must also send the accused forthwith to the Crown Court where notice has been given under s. 51B (serious fraud cases) or s. 51C (child witness cases) [Either Way Offences under s51] D10.6 The CDA 1998, s. 50A(3) (see D10.41), sets out various steps which must be taken where the offence is triable either way (unless notice is given under s. 51B or 51C):  a. \'plea before venue\': the accused is asked to indicate an intention to plead guilty or not guilty;  b. in the event of an indication of a not guilty plea (or no indication), the allocation (mode of trial) procedure: the prosecution and, if they wish, the defence make representations as to whether the case is suitable for summary trial and the court then decides whether to accept jurisdiction and offer summary trial to the accused;  c. if the magistrates\' court declines jurisdiction, or if the accused elects trial on indictment, the case is sent for trial to the Crown Court under s. 51. [RELATED Either Way and Summary Offences] D10.7 The CDA 1998, s. 51(3) (see D10.42), goes on to provide that, where the court sends an adult for trial under s. 51(1), it must **also send** the accused to the Crown Court for trial for any either way or summary offence with which the accused is charged and which appears to the court to be related to the offence being sent to the Crown Court under s. 51(1) (provided that, if the offence is a summary offence, it is punishable with imprisonment or disqualification from driving). Under s. 51E(c), an either way offence is related to an indictable offence if the charge for the either way offence could be joined in the same indictment as the charge for the indictable offence (by virtue of CrimPR 3.29(4) (see Supplement, R3.29), this will require consideration, inter alia, of whether the charges are founded on the same facts, or form (part of) a series of offences of the same or a similar character), and under s. 51E(d), a summary offence is related to an indictable offence if it arises out of circumstances that are the \'same as or connected with\' those giving rise to the indictable offence. In Maxwell \[2017\] EWCA Crim 1233, Treacy LJ observed (at \[30\]) that the test for summary offences \'appears to be narrower than that applicable to either-way offences\' and that this \'would be consistent with an intention that only those summary offences which have a close link to more serious offences sent to the Crown Court should trouble that court\'. In Osman \[2017\] EWCA Crim 2178, it had to be decided whether the summary offence of failure to surrender (BA 1976, s. 6) was \'related to\' the indictable offences for which D had been sent for trial. The Court concluded (at \[22\]): One of the consequences of the provisions contained in s. 51(3) is that, if the accused is charged with an indictable only offence, there will not be any question as to mode of trial in respect of any related either way offences with which the accused is charged (since any either way offences will be sent for trial automatically alongside the indictable only offence). D10.8 If an adult has already been sent to the Crown Court for trial under s. 51(1) and then subsequently appears before a magistrates\' court charged with an either way or summary offence that appears to the court to be related to the offence sent for trial under s. 51(1), the court may send the accused to the Crown Court for trial for the either way or summary offence (provided that, if the offence is a summary one, it is punishable with imprisonment or disqualification from driving) (s. 51(4)). Note that this is a discretionary power, not a mandatory duty. It follows from the discretionary nature of the power to send for trial under s. 51(4) that there will be a plea before venue and mode of trial hearing in respect of an either way offence to which s. 51(4) applies. **[Co-accused ]** D10.9 CrimPR 9.2(6) and (7) (see Supplement, R9.2) make it clear that, where there are co-accused and one accused elects Crown Court trial, the magistrates\' court must send any other accused charged with the same offence (or a related offence) to the Crown Court for trial, even if the offence(s) in question would otherwise be suitable for summary trial (see D6.17). The CDA 1998, s. 51(5) (see D10.42), applies where the court sends an adult for trial (under s. 51(1) or (3)), and another adult appears before the court, either on the same or a subsequent occasion, charged jointly with the first adult with an either way offence, and that offence appears to the court to be related to an offence for which the first adult was sent for trial under s. 51(1) or (3). The court must (where it is the same occasion), or may (where it is a subsequent occasion), send the other adult to the Crown Court for trial for the either way offence. Where the court sends an adult for trial under s. 51(5), it must (by virtue of s. 51(6)) at the same time send D to the Crown Court for trial for any either way or summary offence with which D is charged and which appears to the court to be related to the offence for which D is sent for trial (provided that, if it is a summary offence, it is punishable with imprisonment or disqualification from driving). [Co-accused under the age of 18] D10.10 Section 51(7) (see D10.42) covers the situation where an adult and a person under the age of 18 are jointly charged. It applies where the court sends an adult to the Crown Court for trial under s. 51(1), (3) or (5), and a child or young person appears before the court (on the same or a subsequent occasion) charged jointly with the adult with an indictable offence for which the adult is sent for trial under s. 51(1), (3) or (5), or charged with an indictable offence that appears to the court to be related to that offence. The court \'shall, if it considers it necessary in the interests of justice to do so, send the child or young person forthwith to the Crown Court for trial for the indictable offence\'. [Subsidiary matters ] D10.11 (third, fourth and fifth sub-paragraphs) Under the CDA 1998, s. 51(2A) (inserted by the JRCA 2022, s. 10, from a date to be appointed), if it is determined that s. 51 is applicable while the accused is present, the court must explain that it is required to send the accused to the Crown Court for trial, and must then so do. Otherwise, under s. 51(2B), the court inform the accused in writing and, as soon as practicable after doing so, the court must send the accused to the Crown Court for trial. Under the CDA 1998, s. 52(2A) (inserted by the JRCA 2022, s. 10, from a date to be appointed), if the court sends a person for trial under s. 51 other than in open court, it must do so on bail, and that bail must be unconditional, if the accused is not already on bail, or is on unconditional bail, in respect of the charge in question; if the accused is already on conditional bail in respect of that charge, bail must be subject to the same conditions. Where a summary offence is sent to the Crown Court for trial under s. 51, the summary trial for that offence is regarded as having been adjourned by the magistrates\' court without fixing the time and place for its resumption (s. 51(10)). [Presence of the Accused ] D10.12 The CDA 1998, s. 51(1), applies where the accused is \'before a magistrates\' court\'. If the accused does not appear in court for the s. 51 hearing, the court may issue an arrest warrant (see the MCA 1980, s. 1(6), and the BA 1976, s. 7(1), which are applicable, respectively, where the accused fails to answer to a summons or requisition, or fails to answer to bail, whether that bail was granted by the police or by a magistrates\' court. In Umerji \[2021\] EWCA Crim 598, the Court of Appeal ruled that the MCA 1980, s. 122, permits the accused to be absent when a case is being sent to the Crown Court under the CDA 1998, s. 51 (at \[71\]). - The Court went on to hold that, even if s. 51 is treated as requiring the accused to be physically present, that requirement is \'entirely procedural in nature\', and so failure to comply does not deprive the Crown Court of jurisdiction to try the matter on indictment (at \[96\]). 7. **[Summary offences in the Crown Court ]** **D6.39** **It follows from the basic definition of a summary offence as one which is triable only summarily that the question of mode of trial for such an offence does not normally arise.** **However, the CJA 1988, s. 40, provides that where certain specified summary offences** - **(including common assault, driving while disqualified, taking a motor vehicle without the owner\'s consent, and criminal damage where the value involved does not exceed £5,000)** **are disclosed by the evidence on the basis of which an accused has been sent for trial in respect of an indictable offence, and the summary offence is either founded on the same facts as the indictable offence or forms with it a series of offences of the same or similar character, then the prosecution may include a count for the summary offence on the indictment and, if the accused pleads not guilty, the charge will be tried by a jury.** **The CDA 1998, s. 51(6), provides that, where the court sends an accused for trial in respect of an indictable only or either way offence, it must also send the accused to the Crown Court for trial for any summary offence which appears to the court to be related to the offence(s) which are sent for trial, provided that the summary offence is punishable with imprisonment or involves disqualification from driving.** - **Unless the summary offence is one to which the CJA 1988, s. 40, applies and is added to the indictment, sch. 3, para. 6, governs the procedure in respect of the summary offence (see D10.29).** **If the accused is convicted on the indictment, the Crown Court must, assuming it agrees that the summary offence is related to the offence(s) sent for trial under s. 51, ask the accused to enter a plea to the summary offence.** - **If a guilty plea is entered, the Crown Court may deal with the offender in respect of that offence in any way in which a magistrates\' court could have done;** - **if a not guilty plea is entered, the powers of the Crown Court cease in respect of the summary offence.** **It is submitted that (even though para. 6 is silent as to the possibility) it would also be open to a Crown Court judge to try the summary offence, sitting as a district judge (magistrates\' courts) under the Courts Act 2003, s. 66 (see D3.17).** **[Counts for Summary Offences]** **D11.17** **In addition to being able to indict the accused for those offences for which the accused has been sent for trial together with any other indictable offences disclosed by the material served on the accused, the drafter of an indictment has a limited power to include counts for certain summary offences.** **The power is contained in the CJA 1988, s. 40, and arises when (s. 40(1)):** ** (a)     the accused has been sent for trial for an indictable offence; and** ** (b)     a summary offence to which s. 40 applies is either:** ** ** **(c)     the facts or evidence relating to the summary offence were disclosed \'to a magistrates\' court inquiring into the offence as examining justices\', or are disclosed by material served on the accused as part of the procedure for sending indictable only offences to the Crown Court under the CDA 1998, s. 51 and sch. 3 (see D10).** **Where a count for a summary offence is included in an indictment by virtue of s. 40(1), it is tried exactly as if it were an indictable offence, but, if the accused is convicted, the maximum penalty that may be imposed is that which could have been imposed for the offence by a magistrates\' court (s. 40(2)).** **[Relevant Summary Offences]** **D11.19** The summary offences to which the CJA 1988, s. 40, applies are **common assault, assaulting a prisoner custody officer or a secure training centre custody officer, taking a motor vehicle without the owner\'s consent, driving while disqualified, and criminal damage where the value involved is the relevant sum or less** (s. 40(3)). For the purposes of s. 40(3), common assault includes the offence of battery (Lynsey \[1995\] 3 All ER 654), but common assault is not included as a lesser alternative to assault by beating unless added as a specific count (Nelson \[2013\] EWCA Crim 30). Although included within the scope of s. 40, criminal damage is not, strictly speaking, a summary offence, even when the value involved is less than the relevant sum. - The MCA 1980, s. 22, merely provides that, where it is clear that the value does not exceed the relevant sum of £5,000, the court \'shall proceed as if the offence were triable only summarily\' (Fennell \[2000\] 1 WLR 2011; Considine (1980) 70 Cr App R 239). - If the committing magistrates have not gone through the s. 22 procedure, the Court of Appeal has held that s. 40 will have no relevance, and the Crown Court is therefore not fettered by s. 40(2) to pass such sentence as could have been passed in a magistrates\' court. Summary trial procedure ======================= 1. pre-trial rulings 1. [Pre-trial rulings] D21.35 The MCA 1980, s. 8A (see D21.37), applies to cases that are to be tried summarily where the accused has entered a not guilty plea (s. 8 A (1)). For these purposes, a pre-trial hearing is a hearing that takes place before the court begins to hear evidence from the prosecution at the trial. At a pre-trial hearing, the magistrates may decide any question as to the admissibility of evidence and any other question of law relating to the case (s. 8 A (4)). - Such rulings may be made only if the court has given the parties an opportunity to be heard and it appears to the court that it is in the interests of justice to make the ruling (s. 8A(3)(b) and (c)). - If the accused is unrepresented, he or she must be given the chance to apply for legal aid (s. 8 A (5)). - Pre-trial rulings may be made on the application of the defence or prosecution, or of the court\'s own motion (s. 8 A (6)). Under s. 8 B (1), a pre-trial ruling is binding until the case against the accused (or, where there is more than one, against each of them) is disposed of. The case is disposed of if the accused is acquitted or convicted, or the prosecutor decides not to proceed with the case, or the case is dismissed (s. 8 B (2)). - However, under s. 8 B (3), the court may (on application by a party or of its own motion) discharge or vary a pre-trial ruling provided it appears to the court that it is in the interests of justice to do so, and the court has given the parties an opportunity to be heard. - A party can apply for the ruling to be discharged or varied only if there has been a material change of circumstances since the ruling was made or, if there has been a previous application under s. 8B, since that application was made (s. 8 B (5)). In ***R (CPS) v Gloucester Justices*** \[2008\] EWHC 1488 (Admin), MacKay J, considering the power of the magistrates\' court to vary the pre-trial ruling of its own motion, made the point that it is difficult to accept that it could be in the interests of justice for the court to annul or discharge its own ruling without a compelling reason to do so, such as changed circumstances or fresh evidence; it is not sufficient that a different bench reaches a different conclusion on the same material (at \[12\]). Cranston J also referred to Acton Youth Court, ex parte DPP \[2002\] Crim LR 75, where Laws LJ (at \[25\] and \[26\]) had said that it is \'necessary for the efficacious administration of justice to take a strict approach to the power of a lower court to revisit and revoke an order earlier made by itself\' but that \'there must be some power to do so in the interests of justice\'; that power arises where there is \'a change of relevant circumstances\' but \'cases in which an earlier existing circumstance, not drawn to the attention of the court at the first hearing, would justify the court in later overturning its first decision would be most infrequent\'. There is no provision for appeals against rulings under s. 8A. However, an error of law in such a ruling could form the basis of an appeal by way of case stated (under the MCA 1980, s. 111), once there has been a final determination of the proceedings in the magistrates\' court