Describe the process by which it is decided where a trial will take place. [18 marks]

by smasha123 (student)

Describe the process by which it is decided where a trial will take place. [18]

The purpose of a pre-trial procedure is to allow the Magistrates Court to decide where a trial will take place. The most important factors which influence this decision are the seriousness of D’s crime and his plea.
The seriousness of a crime can be assessed by considering the type of offence with which D is charged. A summary offence is triable only in the Magistrates Court in the presence of either three lay magistrates and a legal advisor, or one district judge. Crimes such as common assault and common battery would be categorised as summary offences which carry a maximum of a 6 month custodial sentence or maximum fine of £5,000 (or £20,000 for a business).
An indictable offence is one which can only be tried in the Crown Court and includes offences such as rape, manslaughter and robbery. A Crown Court judge can impose up to the statutory maximum for any offence, or impose an unlimited sentence at his discretion for common law offences. For example, the maximum sentence for statutory theft is 7 years under the Theft Act 1968.
A triable either way offence can be tried in either the Magistrates Court or the Crown Court, depending on the circumstances and the seriousness of the offence with which D is charged. Examples of this type of offence include theft, ABH and criminal damage, and the ultimate sentence depends largely on the gravity of the crime.
An early administrative hearing is a pre-cursor to a trial and allows the Magistrates Court to quickly deal with pre-trial issues and avoid adjournments. It is usually heard by one magistrate and a legal advisor who deal with issues such as bail conditions, medical reports, remand, pre-sentence pleas and legal aid.
Under the Magistrates Court Act 1980, a plea before venue will occur for triable either way offences. At this stage in the process, D enters a plea before the Magistrates Court to decide which court the case will be heard in. If D pleads guilty he has no choice regarding where the case is heard. If the Magistrates Court decide it doesn’t have jurisdiction to hear the case, D will be held in remand or granted bail pending a hearing at the Crown Court. However, if the Magistrates Court have sufficient powers to sentence D they retain jurisdiction and will deal with the case. Pleading guilty at the earliest possible stage can reduce D’s ultimate sentence by up to 40%. If D does not enter a plea or pleads not guilty he will be subject to a mode of trial hearing.
A mode of trial hearing occurs when D pleads not guilty and means he may have some control over which court hears the case, unless there is a committal to the Crown Court for sentencing. Under s.19 Magistrates Court Act 1980, the Magistrates Court can accept jurisdiction if their powers of sentencing are sufficient in proportion to D’s offence. When a Magistrates Court decides whether to accept jurisdiction, they will take into account things such as the nature of the case, the seriousness of the offence, whether their sentencing powers are sufficient, and under the Criminal Justice Act 2003 they can consider D’s previous convictions. D can refuse a summary trial at the Magistrates Court and instead opt for a trial by jury in the Crown Court instead. The Magistrates Court may completely refuse to accept jurisdiction if D’s charge is gang related or derives from a breach of peace. Furthermore, if the Director of Public Prosecutions or the Attorney General wishes to have the case tried in the Crown Court, D has no choice but to adhere.
Whilst increasingly uncommon, a mode of trial hearing becomes ineffective if D pursues a cracked trial, whereby D changes his plea ‘at the doors of the court’

Tim has been charged with criminal damage to the value of £10,000 at a children’s playground. Discuss what Tim would want to consider in deciding which court his case will be heard in. [12]

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Tim has been charged with criminal damage to the value of £10,000 at a children’s playground. Discuss what Tim would want to consider in deciding which court his case will be heard in. [12]

Tim potentially has a choice of which court he wants his case to be heard at because criminal damage is a triable either way offence. As long as Tim pleads not guilty, he will attend a mode of trial hearing. If the Magistrates Court decide to retain their jurisdiction, Tim can decide to accept this and attend a summary trial at the Magistrates Court, or he can refuse and opt for a trial by jury at the Crown Court. If Tim pleads guilty, he will have to abide by the decision of the Magistrates Court and have no choice over the venue in which his case is heard. The Magistrates Court will have to decide whether their powers are sufficient to sentence Tim, in which case they retain their jurisdiction; or if not, they would send Tim to the Crown Court for sentencing.
Which court Tim is sentenced in will affect the punishment he receives after conviction. The Magistrates Court are more likely to convict Tim, but at the Crown Court if he has good justification for his actions, the jury may be more sympathetic than a lay magistrate. However, whilst Tim is more likely to be convicted at the Magistrates Court, they are less likely to give him a custodial sentence. This is because their powers are quite limited – they can only sentence Tim to 6 months custody and a £5000 fine. Taking into consideration the gravity of Tim’s situation, the amount of damage that he caused and the aggravating factor in that Tim committed it in a public area, choosing the Magistrates Court to hear his case is likely to be the better option. This is because £10,000 worth of damage is more likely to result in a custodial sentence if heard in the Crown Court, whereas in the Magistrates Court he will only be fined for a proportion of the damage.
In a Magistrates Court there would be either 3 lay magistrates and a legal advisor, or one district judge. In comparison, in the Crown Court there is much better legal representation since a fully qualified judge decides all matters of law, interpretation and what would be Tim’s ultimate sentence. In a jury there are 12 lay people who decide on matters of fact and so this could work in Tim’s favour as they may argue his case better than in the Magistrates Court. However, this can be expensive (if Tim is convicted he may have to pay part of the cost of his trial) and time consuming (some Crown Court trials can take up to 18 months), and it could also lead to a more severe sentence. This is because the Crown Court have unlimited powers unless there is a maximum in the statute, which would be 10 years in Tim’s case for criminal damage.
To conclude, Tim should opt for the Magistrates Court to hear his case over the Crown Court because whilst he has less legal representation and is more likely to be convicted, the Magistrates Court powers would give him a much more lenient sentence for the nature of his crime in comparison to what the Crown Court could sentence him to.

Sasha Groves