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Indictable only cases: sending to the Crown Court

Updated: 13 September 2021|Legal Guidance

Headlines

  • Indictable only offences must be tried in the Crown Court.
  • Some 'either way' burglary and drug trafficking offences become triable only on indictment in certain circumstances.
  • Either way and summary only offences related to indictable only cases may (and sometimes must) be sent to the Crown Court for trial.
  • A child or young person must be sent to the Crown Court for trial if the conditions in s.51A (3) Crime and Disorder Act 1998 (CDA 1998) are met.
  • A child or young person may be sent to the Crown Court for trial if jointly charged with an adult for an indictable only offence. It must be "necessary in the interests of justice" to do so.
  • Some charges of serious or complex fraud can be transferred to the Crown Court by the giving of a notice under section 51B of the CDA 1998. Section 51C allows for transfer of certain charges involving a child as a victim or a witness by giving a notice.
  • The time limit for service of the prosecution case is 50 or 70 days after the date on which the person was sent for trial depending upon whether the defendant is on bail or in custody. However under "Better Case Management" there is more emphasis on earlier service when possible.
  • After service of the prosecution case the defendant may apply in writing to dismiss cases sent to the Crown Court.
  • Extended powers of discontinuance beyond those normally available in Crown Court proceedings enable the case to be stopped at any time before the indictment is served.

Principle

Indictable only offences

Indictable only offences include:

  • those common law and statutory offences that are indictable only by definition; and
  • some either way offences triable only on indictment by virtue of the circumstances in which they are committed.

The second category includes:

  • Trafficking a class A drug where the accused has two previous convictions for such an offence (s.313 Sentencing Act 2020)
  • Burglary of a dwelling (s.314 Sentencing Act 2020)
  • Burglary of a dwelling where violence was used or threatened against anyone within the house (schedule 1, paragraph 28(c) Magistrates' Courts Act 1980).

The magistrates will consider whether the defendant should be granted bail.

The Allocation Guideline was issued by the Sentencing Council on 1 March 2016.

Defendants charged with an indictable-only offence must be sent for trial "forthwith" to the Crown Court by the magistrates' court before which they first appear (section 51(1) (a) CDA).

The "sending" is an administrative act, involving only a determination as to whether the defendant faces an indictable-only or related offence. The magistrates' court is not concerned with evidential sufficiency but will consider whether the defendant should be sent on bail or in custody.

The procedure for sending indictable only cases to the Crown Court is governed by the Criminal Procedure Rules. If the court sends the defendant to the Crown Court for trial, it must ask whether the defendant intends to plead guilty in the Crown Court. If the answer is "yes", the court must make arrangements for the Crown Court to take the defendant's plea as soon as possible, or if the defendant does not answer, or the answer is "no", make arrangements for a case management hearing in the Crown Court - Rule 9.7 (5) (a) Criminal Procedure Rules. This is an important step that affects the amount of preparation to be undertaken by the prosecution and the early listing of the case. It is also a marker for the defence to indicate a guilty plea at the earliest stage. Further see Better Case Management processes, in force from 5 October 2015, below.

Related offences

When an indictable only offence is sent to the Crown Court, any summary only offence, punishable with imprisonment or involving obligatory or discretionary disqualification from driving (section 51(11)), or either-way offence related to the indictable only offence, must also be sent to the Crown Court (section 51(3) CDA).

When an adult who has been sent for trial subsequently appears before a magistrates' court charged with a summary only offence, punishable with imprisonment or involving obligatory or discretionary disqualification from driving (section 51(11)), or an either-way offence, the court may send him/her to the Crown Court for trial if the offence is 'related' to an indictable only offence (section 51(4) CDA).

An either-way offence is "related" if the charge for the either-way offence could be joined in the same indictment as the charge for the indictable-only offence (section 51E(c).

A summary offence is "related" if it arises out of circumstances which are the same as, or connected with, those giving rise to the indictable-only offence (section 51E (d).

A summary only offence sent to the Crown Court is treated as if the court had adjourned it under section 10 Magistrates' Courts Act 1980 and had not fixed the time and place for resumption (section 51(10) CDA).

Related offenders

Adults

When the court sends an adult (A) for trial for an indictable only offence, and another adult (B) is:

  • charged jointly with A
  • with an either-way offence related to the indictable only offence

the court has the power to send B for trial for the related either way offence (section 51(5) CDA).

When B appears on the same occasion the court must send B to the Crown Court for trial forthwith. When B appears on a subsequent occasion the court may do so.

The court also has the power (section 51(6) CDA) to send B for trial for any other offences that fulfil the requirements for related offences in section 51E (c) and (d) above, provided that in the case of a summary only offence, that is punishable with imprisonment or involves obligatory or discretionary disqualification from driving as set out at section 51(11) CDA.

Children and young persons

When the court sends an adult (A) for trial the court has the power (section 51(7) CDA) to send a child or young person (Y) for trial, whether Y appears before the court on the same or a subsequent occasion. The court must do so if:

  • Y is charged jointly with A with an indictable offence; and
  • the court considers it "necessary in the interests of justice".

The court also has the power (section 51(8) CDA) to send a child or young person for trial for an indictable or summary offence punishable with imprisonment or involving obligatory or discretionary disqualification that is related to that sent under section 51(7) CDA.

A youth sent to the Crown Court may be remitted to the Youth Court for trial if there is no longer an indictable offence on the indictment (schedule 3 paragraph 13(2) CDA 1998).

Dangerous Young Offenders

If it appears to the magistrates' court that the criteria for imposing a sentence of indeterminate detention for public protection would be met, if a young person charged with a "specified offence" (section 224 Criminal Justice Act 2003) were convicted, then that young person must be sent for trial (section 51A(3)(d) CDA).

If a youth is sent for trial for a specified offence, then an adult charged jointly with the youth on the either way offence:

  • must be sent to the Crown Court for trial, if the adult and the youth appear on the same occasion; and
  • may also be sent if the adult appears on a subsequent occasion (section 51A (6) CDA)

For detailed guidance on the procedure in youth cases, especially the policy on determining venue in cases involving youth offenders refer to Youth Offenders elsewhere in the Legal Guidance.  

Procedure

Details of the case

Part 8 Criminal Procedure Rules regulates the service of initial details of the prosecution case in proceedings that can be tried in the magistrates' court. It does not apply to indictable only proceedings.

The Crown should, however, serve equivalent details of indictable only offences whenever possible.

Prosecutors should also serve any material that should be disclosed in accordance with common law disclosure under the case of R v DPP ex parte Lee [1999] 2 Cr. App. R. 304, DC in particular, anything which might assist the defendant in applying for bail.

This material may need to be updated for the Plea and Trial Preparation Hearing ('PTPH') at the Crown Court and prosecutors should review the information available prior to the first Crown Court hearing.

A copy of the same material should be served in good time on the Crown Court, via DCS where available, for the use of the judge at the PTPH. The more information that can be disclosed at this stage, the greater the likelihood of the defendant indicating a guilty plea at the PTPH.

Initial hearing (Magistrates' court)

The initial hearing in a case to which section 51 applies takes place in the magistrates' court. It cannot be heard by a single lay justice (section 50 CDA). It should be listed for hearing before two or more justices (or a District Judge (magistrates' court). This restriction applies also to remand hearings.

The CPS must be represented by a Crown Prosecutor, as Associate Prosecutors caseworkers are precluded by section 53 and section 7A(5)(b) Prosecution of Offences Act 1985 from acting in indictable only cases.

Failure to observe the formalities of these or other sending provisions may result in the sending being declared a nullity. In that event, the case would, in effect, still be within the jurisdiction of the magistrates' court and a further hearing would have to be arranged.

Adjournment

Defendants should be sent to the Crown Court "forthwith". There is, however, an unfettered right to adjourn the hearing (section 52(2) CDA).

The prosecutor may wish to seek an adjournment where, for example, it appears that it may not be appropriate to continue the case as an indictable only case, or there are concerns about the evidence.

A request by the police that the defendant be remanded to police cells under section 128(7) of the Magistrates' Courts Act 1980 will also require an application to adjourn a PTPH. There is no equivalent power available in the Crown Court.

The prosecutor may wish to ensure that all defendants are before the same court on the same occasion (where this will not avoid undue delay or unfairness). This would apply if other defendants have been, or are shortly to be charged, with related either way offences.

Although there is power in section 51 to send a co-defendant appearing subsequently, the court has a discretion at that subsequent separate hearing to allow plea before venue to take place. There is no such power when all defendants appear together at the same hearing.

The defence may seek an adjournment if, for example, an application for a bail hostel placement could be resolved in a day or so.

Any attempt by the defence for an adjournment for a second bail application to be made in the magistrates' court should ordinarily be resisted since any such applications can be made to the judge at the PTPH at the Crown Court.

The magistrates' court can resolve the issue of contributions to legal aid administratively and this should therefore not provide the basis for an adjournment.

Custody Time Limits

A custody limit (CTL) of 182 days commences if the defendant is remanded in custody by the magistrates' court. The CTL continues through to the start of the trial in the Crown Court, unless the defendant is granted bail.

The period is a single unified time limit and is unaffected by the sending to the Crown Court.

Each charge, whether indictable only or either way attracts its own time limit. The period of 182 days does not include the day on which custody commenced. For full details see: The Prosecution of Offences (Custody Time Limits) (Amendment) Regulations 2000.

If the defendant is not remanded in custody until a later stage, the period of 182 days is calculated from the date that the defendant is first remanded in custody.

Prosecutors should refer to the Custody Time Limit Calculator to determine when the time limit expires.

Better Case Management

Better Case Management ('BCM') links certain key complementary initiatives to improve the way cases are processed through the system, to benefit all parties concerned in the criminal justice system. It is based on the principles of the Leveson Review, namely:

  • Getting it Right First Time
  • Case Ownership
  • Duty of Direct Engagement
  • Consistent judicial case management

The overarching aims of BCM are:

  • Robust case management
  • Reduced number of hearings
  • Maximum participation and engagement from every participant within the system
  • Efficient compliance with the Criminal Procedure Rules; Practice and Court Directions.

After the first magistrates' hearing

Case progression is one of the fundamental principles of BCM and is at the root of the effective PTPH and the reduction in the number of hearings to trial. The police should be informed what matters have been sent to the Crown Court, any early identification of the issues (from the case management form completed at the magistrates' court the 'BCM Questionnaire') and any matters arising which will assist the early case management at PTPH or sentencing if an early plea is indicated.

The Digital Case System ('DCS') is allied to BCM but the two are not dependant, as BCM incorporates a process and DCS is a deliverable mechanism. The digital transmission of material (IDPC, Indictment, Disclosure, additional evidence and service of the case) is greatly assisted by DCS and defence engagement in the digital communication is crucial to dealing with future case presentation and defence engagement.

The file should be reviewed again following the initial hearing and consideration given as to whether to serve any further material on the defence. Carefully considered service at an early stage may make the PTPH more effective and may also lead to an early guilty plea.

Plea and Trial Preparation Hearing (PTPH) (Crown Court)

Usually, the first hearing in the Crown Court will be the PTPH. The PTPH form which will need to be completed digitally, and uploaded to DCS where available. All cases will be listed for the PTPH within 28 days (maximum 35 days) of being sent from the magistrates' court.

Where a guilty plea is advanced, the case should proceed to sentence whenever possible, with a stand down Pre-Sentence Report if appropriate. Where there is a not guilty plea, a case management hearing should take place. Straight-forward cases should be listed for trial.

A Further Case Management Hearing (FCMH) will only occur in identified complex cases or if a judge decides that the interests of justice require a further hearing. Thereafter, the next appearance in court should be for trial.

Part 1 of the Consolidated Criminal Practice Direction provides guidance on Case Progression and Trial Preparation in the Crown Court.

The defendant must be remanded either in custody or on bail to appear at the given date and time.

The purpose of the PTPH is to deal with pleas, case management, to provide directions and consider the PTPH form, to set a timetable for the service of the prosecution case and material to be served by the defence and deal with any outstanding bail issues.

The PTPH form should be completed by the parties and served digitally on the court in advance of the hearing.

The aim is to ensure that hearings are productive and effective. This will be enhanced by early review and preparation and communication prior to the hearing by the parties – narrowing trial issues, witness requirements and resolving pleas, basis of pleas and acceptable pleas – as well as preparing for sentence where a guilty plea will be forthcoming. The indictment should be uploaded to DCS no less than 7 days prior to, and ready for the PTPH (Part 1 Criminal Practice Direction (CrimPD) I General Matters 3A.16). The parties will be expected to have prepared for the hearing in compliance with Criminal Procedure Rule 3.3(1) to avoid unnecessary and wasted hearing and to have communicated, beforehand.

The material served must comply with CrimPD I 3A.12 and in accordance with 3A.20, in addition the prosecutor must serve sufficient evidence to enable the Court to case manage effectively.

CrimPD I 3A.21 provides guidance in cases and classes of cases where there may be a direction for a Further Case Management Hearing.

Rights of Audience

Rights of audience at PTPHs are restricted to Counsel and Higher Court Advocates (e.g. Solicitor Advocates).

Service of the Prosecution Case

The service of the prosecution case is currently governed by the Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2005 (as amended).

Regulations 2 – 6 provide the procedure for service of prosecution evidence in the case of a person sent for trial.

Copies of the documents containing the evidence must be served on the person sent for trial and given to the relevant Crown Court:

  • no later than 70 days after the date on which the person was sent for trial, or:
  • in the case of a person committed in custody, no later than 50 days after the date on which the person was sent for trial (Regulation 2).

There is no objection to Areas agreeing to serve in a shorter period, but prosecutors will need to be properly informed as to the resources available (police and CPS) to undertake the prioritisation required and other current pressures on the office concerned.

The progress of the police investigation will also have to be taken into account. Prosecutors need to be prepared to fully inform the judge of all these facts.

Extension of Time

The prosecutor may apply orally or in writing to the Crown Court for the period to be extended, or if it has already been extended, for it to be further extended (Regulation 3).

Where the prosecutor proposes to make oral application, he must give written notice to the appropriate officer of the Crown Court and a copy must be given to the person sent for trial at the same time (Regulation 4).

Written application must be sent by the prosecutor to the appropriate officer of the Crown Court setting out the grounds for the application. A copy must also be given to the person sent for trial, who may make written representations within 3 days of service of the application on him (Regulation 5).

If an application is determined other than by oral hearing, the appropriate officer of the Crown Court must send a notice of the outcome of the application to all parties (Regulation 6).

Every possible effort must be made to ensure that applications for more time are made prior to the expiry of the period. The Regulations make no express provision for retrospective applications for extension, once the time for service has passed.

Prosecutors should, where possible, apply for an extension to the relevant period at the PTPH.

Communications should be arranged with the police to provide early warning of difficulties with the evidence gathering and file preparation so that timely and well-reasoned applications for more time can be made.

Provided a prima facie case is made out and served, additional evidence may be served later with a Notice of Additional Evidence, but any such evidence cannot be the basis for an additional count on the Indictment.

In Fehily v Governor of Wandsworth Prison [2003] 1 Cr. App. R. 10 DC it was held (in respect of the identically worded previous Regulations) that retrospective applications could be granted. The judgement also sets out the standard of conduct that the Court would expect from "a competent prosecutor".

Original Statements

There is no "official" role for the original statements. You will need to check on the local practice with the relevant Crown Court, as some Crown Courts like to retain control of the originals. If not, they will need to be on file for a trial to deal with any queries.

Reluctant Witnesses

A witness may be reluctant or unwilling to provide a statement (or produce a document or exhibit) which is required as material evidence in a case sent for trial.

A magistrates' court for the relevant commission area may issue a summons to order the witness to attend before a justice for the purposes of taking a deposition (under oath) or to hand over the document or exhibit (Paragraph 4 of Schedule 3).

The hearing must be listed before the date set for service of the prosecution evidence. It need not take place in open court.

The summons must be served personally with proof of service. A warrant may be issued to enforce attendance. The court can impose a fine and/or imprisonment if a witness refuses to testify or hand over the document or exhibit.

Application to Dismiss

The procedure concerning the dismissal of indictable only counts on an indictment is regulated by Criminal Procedure Rule 3.20.

The judge may dismiss any charge (or quash a count) if it appears that the evidence against the defendant would not be sufficient for a jury to properly convict. The judge will apply the Galbraith test (R v Galbraith (1981) 73 Cr.App.R. 124). No further proceedings may then be brought on that dismissed charge except by the preferment of a Voluntary Bill of Indictment.

A prosecutor who opposes the application (to dismiss) must serve a notice of opposition, not more than 10 business days after service of the defendant's notice, on the Crown Court officer, and each other party. In the notice of opposition (the prosecutor) must explain the grounds of opposition, ask for a hearing, (if the prosecutor wants one, and explain why it is needed), identify any witness whom the prosecutor wants to call to give evidence in person, with an indication of what evidence the witness can give, identify any material already served that the prosecutor thinks the court will need to determine the application, and [CrimPR 3.20(3)(b)(v)] include any material not already served on which the prosecutor relies.

This is mirrored in the notes of guidance to the PTPH Form. As regards an application to dismiss, the notes state that if the parties indicate that there is an issue that prevents arraignment such as a prospective application to dismiss ... the court will expect nevertheless to give directions to a trial date if it is needed but catering by way of a Further Case Management Hearing (FCMH) for the resolution of the issue (CrimPD I. 3A.21). Where there is a possible dismissal application it will not be possible to arraign the defendant at PTPH.

CrimPD 3A.21 confirms this where it states that after the Plea and Trial Preparation Hearing there will be no further case management hearing before the trial unless (j) an application to dismiss has been made.

If the indictable only case is dismissed, any remaining either way matters must still be prepared for the Crown Court.

Arraignment and Plea

When an indictment contains both indictable only and either way counts there is no need for a mode of trial determination in respect of the either way matters. A plea will be taken on arraignment to all counts on the indictment.

If the related indictable only count is no longer on the indictment (either because the prosecution has discontinued it, or a challenge by the defence has been successful) the Crown Court must deal with the either way in accordance with Paragraphs 7 to 12 of Schedule 3 (in cases involving adults).

Prosecutors should endorse their views on CMS for the benefit of the Crown Court advocate.

A guilty plea will empower the Crown Court to sentence. The court is not restricted to the powers of the magistrates' court.

A not guilty plea or no indication requires the court to consider the most suitable venue. Prosecution representations should deal with the nature of the case, its seriousness, the limitation of powers of sentence in the magistrates' court, and any other relevant factors.

If the Crown Court considers that trial on indictment is appropriate, it will arraign the defendant accordingly.

If the Court considers summary trial appropriate, it should offer the defendant the alternatives of summary trial or trial by jury, with the warning that the magistrates' court may nevertheless commit him/her for sentence back to the Crown Court if they consider their powers of punishment are insufficient.

In cases involving children or young persons, where there has been no arraignment for an indictable only matter may be remitted to the Youth Court for trial if there is no longer an indictable offence on the indictment (schedule 3 paragraph 13(2) CDA 1998).

Summary only offences

The reviewing lawyer must endorse CMS before the case is sent to the Crown Court with a view on whether to continue with the summary only proceedings in the event or of there being no conviction on the indictable only matter, or a not guilty plea to the summary only offence.

Crown Court powers

The powers of the Crown Court to deal with summary only offences sent under section 51 are contained in paragraph 6 of Schedule 3.

The Crown Court may deal to finality with a summary only offence sent under section 51 only where there is:

  • conviction of an indictable only offence to which it is related; and
  • a guilty plea to the summary only offence.

This is so even if there is a conviction on either way charges to which the summary only offence is related. (Paragraph 6 of Schedule 3).

Disposal

If there is a conviction of an indictable only offence, the Crown Court should be asked to decide whether any summary only offence is related to it. The defendant should then be asked to enter a plea to that offence.

A guilty plea enables the Crown Court to deal with the summary only matter, but with only the same sentencing powers as a magistrates' court.

If there is a not guilty plea, the summary only offence may be dealt with only by the magistrates' court. In these circumstances the prosecution must decide whether it is in the public interest to continue with the case.

There is no power for a summary only offence not dealt with by the Crown Court to be remitted back to the magistrates' court. There is no power to retain the defendant in custody or on bail on a summary offence pending its re-listing.

If it is not in the public interest for the proceedings to continue, no evidence should be offered and the case dismissed. If it is in the public interest to continue the prosecution must ask the magistrates' court to re-list the summary only offence.

Attendance can be enforced, if necessary, by asking for a warrant if the defendant fails to respond to a court notice requiring his/her attendance.

Discontinuance

Extended powers of discontinuance (section 23A Prosecution of Offences Act 1985) enable the case to be stopped at any time before the Indictment is served. Notice should be served on the defendant and the Crown Court. No reasons need be given in the notice to the defendant.

Discontinuance does not prevent the initiation of fresh proceedings on the same offence and notices should be worded accordingly.

The defendant does not have the right to require that the proceedings are continued as in the magistrates' court.

If the indictable only charge is discontinued after the sending, any remaining either way matters must continue to be prepared, the evidence served and a draft indictment prepared. There is no mechanism for cases to be 'sent back' to the magistrates' court until mode of trial is considered at arraignment.

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