Summary offences and the Crown Court
(Criminal Justice Act 1988 section 40; Crime and Disorder Act 1998 section 51 and Sch.3 para.6)
- Committal for sentence
- Alternative verdicts
- Section 40
- Section 51
This guidance sets out the circumstances in which the Crown Court may deal with a summary offence.
Summary offences are normally dealt with in the Magistrates’ Court. However, the Crown Court may deal with a summary offence in the circumstances set out below:
- Committal for sentence (Sections 3 to 7 Power of Criminal Courts (Sentencing) Act 2000;
- Alternative verdicts reached by a jury for a summary offence (Section 6(3) Criminal Law Act 1967);
- Conviction of a summary offence on the indictment (Section 40 Criminal Justice Act 1988);
- Conviction of a summary offence where there has been a sending for trial and the summary offence was sent as a related offence. To be related, the summary-only offence must arise out of circumstances which appear to be the same as, or connected with, those giving rise to the relevant either way or indictable only offence (Section 51 and Paragraph 6 of Schedule 3 Crime and Disorder Act 1998).
Where there is no risk of ambiguity the section numbers only are used in this guidance.
A Magistrates’ Court may commit a Defendant for sentence at the Crown Court for a summary only offence under Section 6 of the Power of Criminal Courts (Sentencing) Act 2000.
This will usually apply where the Court has exercised its powers to commit one or more either-way offences for sentence under Sections 3 or 4 or where the Magistrates’ Court has committed a defendant to be dealt with for breach of a suspended sentence upon subsequent conviction for a summary only offence (Schedule 12 Criminal Justice Act 2003)
By Section, 7 the powers of the Crown Court are limited to the powers of sentence of the Magistrates’ Court.
A jury may find a Defendant guilty of an alternative offence not on the indictment, in accordance with Section 6(3) of the Criminal Law Act 1967, where:
- The Defendant is tried on indictment for any offence, except treason or murder;
- The jury find him not guilty of the offence charged in the indictment; and
- The allegations in the indictment amount to or include, expressly or by implication, an allegation of another offence falling within the jurisdiction of the Crown Court
In addition a jury may find a Defendant guilty of an alternative offence where there is a specific statutory exception, for example Section 24 Road Traffic Offenders Act 1988.
Only a summary offence to which Section 40 or a specific statutory exception applies may be sentenced by the Crown Court. The Court is restricted to the powers of sentencing of the Magistrates Court.
It is important to bear in mind the wide-reaching scope of Section 6. Section 20 wounding, for example, could be an alternative verdict where the Defendant is indicted for Section 18 wounding. Equally, assault occasioning actual bodily harm could be an alternative verdict if the Defendant is indicted for Section 20 GBH.
The following summary offences can be included on an indictment and tried in the Crown Court. They are listed in Section 40(3):
- Common assault (Section 39 Criminal Justice Act 1988)
- Assaulting a prison custody officer (Section 90(1) Criminal Justice Act 1991)
- Assaulting a secure training centre custody officer (Section 13(1) Criminal Justice and Public Order Act 1994)
- Assaulting a secure college custody officer (Paragraph 14 or 24 of Schedule 10 to the Criminal Justice and Courts Act 2015)
- Taking a vehicle without consent (Section 12 Theft Act 1968)
- Driving while disqualified (Section 103 Road Traffic Act 1988)
- Low value criminal damage (Section 22 and Schedule 2 of the Magistrates' Courts Act 1980)
An indictment may only include such an offence if the charge is:
- Founded on the same facts or evidence as a count charging an indictable offence (an indictable-only or either-way offence); or
- Part of a series of offences of the same or similar character as an indictable offence which is also charged
A count charging a summary offence, listed in Section 40(3) of the CJA 1988, may only be included in an indictment in the circumstances permitted by Section 40(1) and (2) of that Act, which is where there has been a sending for trial pursuant to Section 51 or 51A of the CDA 1998: R. v. T. and K.  1 Cr.App.R. 32, CA.
The facts or evidence relating to the summary offence must have been disclosed in the Prosecution papers served in respect of a person sent for trial under Section 51 (below).
A summary offence cannot be added as a count under Section 40 if it is related only to another summary offence included under Section 40. For example, an offence of driving while disqualified cannot be added to an indictment if the only link is with the summary offence of taking a motor vehicle without consent. (R v Callaghan (1992) 94 Cr. App.R.226)
It is not necessary to have a separate count on the indictment for a low value criminal damage that would normally be tried summarily. (R v Fennell (Peter)  WL 544205, 2 Cr. App. R. 318)
If the Defendant is convicted of a count added to the indictment under Section 40, the powers of punishment of the Crown Court are limited to those that would have been available to the Magistrates’ Court for that offence (Section 40(2)).
Magistrates can send certain summary offences (punishable with imprisonment or disqualification) to the Crown Court, where a Defendant is sent for trial on an either-way or indictable-only offence.
The summary-only offence must arise out of circumstances, which appear to the Court, to be the same as or connected with those giving rise to one of the either-way or indictable-only offences being sent for trial.
The purpose of this provision is to allow a Defendant convicted in the Crown Court to plead guilty and be sentenced for related summary matters.
The summary offences will be adjourned without a date in the Magistrates’ Court to await the outcome of proceedings in the Crown Court.
When preparing the indictment, the reviewing lawyer must prepare a schedule listing the summary offences sent under Section 51.
The evidence served under Section 51 need not contain evidence relating to the summary offence.
The Crown Court cannot deal with a summary-only offence if the Defendant:
- Pleads not guilty to it; or
- Is acquitted on all related indictable-only or either-way counts on the indictment.
There is no power for the Crown Court to remit such a summary-only offence 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 deemed in the public interest to proceed, 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.
However, if the Prosecution indicates that they do not intend to proceed with the summary offence the Crown Court can dismiss it.
If the Court of Appeal sets aside a conviction for an indictable offence, the conviction for any related summary offence is automatically set aside (Schedule 3, Paragraph 6(9) of the Crime and Disorder Act 1998) and the Court of Appeal may direct that no further proceedings be taken in respect of the summary charge.