DR WS14
Initial steps in criminal proceedings
Advising client on a plea
Client’s decision
The plea is the client’s decision and the solicitor should remind their client that a guilty plea will lead to a
reduced sentence compared to if they plead not guilty and are then convicted
Professional conduct point
If solicitor is told by D that he is guilty but intends to enter a not guilty plea then this will raise
professional conduct issues
might still be able to represent him but there is an overriding duty not to mislead the court Para 1.4
will be limited to cross-examining prosecution witnesses and put the prosecution to proof of their
cases
will be unable to act if a submission of no case to answer is made and does not succeed and client
wishes to enter witness box to give evidence solicitor knows to be false
should advise the client of benefits of entering guilty plea and limitations of his ability to continue
representing the client were he to enter a not guilty plea
Next steps for solicitor
At this stage the defence solicitor should:
obtain funding from the LAA (Legal Aid Agency) to pay for the work he will do on his client’s behalf
(unless paying privately)
obtain details of the prosecution case from the CPS
take a statement from the client
advise the client on the strength of the prosecution evidence and the plea that the client should
enter
in the case of an either way offence, inform the client that his case may be dealt with by either MC or
CCourt
and advise on advantages of either court
make an application for bail where necessary
1
, DR WS14
Allocation of offence to Court
If a defendant is
Charged with an “either way” offence and
Pleads not guilty and
The Magistrates’ Court accepts jurisdiction of the offence.
The Magistrates’ will offer the defendant a choice of whether they wish for their trial to be heard at
the Magistrates’ Court, or the Crown Court.
Classification of offences
Indictable only The most serious form of offence.
offences Must be dealt with by a trial on indictment at a Crown Court (s51(1) CDA 1998).
The Defendant will make an initial appearance before the Magistrates’ court that will
immediately send the case to the Crown Court for trial.
Examples: Murder, rape, robbery.
Either way Can be dealt with by either a summary trial at the Magistrates’ court or a trial on indictment in
offences the Crown Court.
The defendant will have a “plea before venue” hearing at the Magistrates’ court – then
turns into
If the defendant pleads not guilty, the Magistrates’ court may either:
o Refuse jurisdiction (on consideration of the factors below) or
o Accept jurisdiction, but then offer the defendant a choice on whether they want to be
tried by a Jury in the Crown Court, or
If the defendant pleads guilty, the Magistrates’ court will either:
o Sentence the defendant or,
o If they consider their sentencing powers to be inadequate, they will commit the
defendant to the Crown Court for sentence.
Examples: Theft; assault occasioning actual bodily harm; most forms of burglary; low-
value shop lifting if the defendant is an adult and pleads not-guilty.
Summary offences Least serious form of offence.
Must be dealt with in the Magistrates’ court (summary trial).
Examples: Common assault, various road traffic offences.
Accepting jurisdiction of the offence
Procedure Allocation procedure is set out in s19 and s20 of the Magistrates’ Court Act 1980
s.19(2)(a) = the prosecution will inform the courts of facts and D’s previous conviction
The Magistrates shall CONSIDER:
Oral representations made by the prosecution & defence advocates (s19(2)(b)).
Whether the Magistrates’ have adequate sentencing powers to deal with the offence in
question (s19(3)(a)).
o Magistrates may pass a maximum sentence of 6 months imprisonment for a
defendant convicted of an either way offence.
o However they can pass a sentence of up to 12 months if the defendant is convicted
of two or more offences.
o If the overall seriousness of the offence, by reference to the Magistrates’ Court
Sentencing Guidelines, merits a more serious sentence, the magistrate should
commit the defendant to Crown Court for sentence pursuant to s3 of the Powers
of Criminal Courts (Sentencing) Act 2000.
The Allocation Guideline issued by the Sentencing Council (Appendix B): 513
o GENERAL RULE: “In general, either way offences should be tried summarily
(MAGISTRATES) unless… the outcome would clearly be a sentence in excess of the
2
Initial steps in criminal proceedings
Advising client on a plea
Client’s decision
The plea is the client’s decision and the solicitor should remind their client that a guilty plea will lead to a
reduced sentence compared to if they plead not guilty and are then convicted
Professional conduct point
If solicitor is told by D that he is guilty but intends to enter a not guilty plea then this will raise
professional conduct issues
might still be able to represent him but there is an overriding duty not to mislead the court Para 1.4
will be limited to cross-examining prosecution witnesses and put the prosecution to proof of their
cases
will be unable to act if a submission of no case to answer is made and does not succeed and client
wishes to enter witness box to give evidence solicitor knows to be false
should advise the client of benefits of entering guilty plea and limitations of his ability to continue
representing the client were he to enter a not guilty plea
Next steps for solicitor
At this stage the defence solicitor should:
obtain funding from the LAA (Legal Aid Agency) to pay for the work he will do on his client’s behalf
(unless paying privately)
obtain details of the prosecution case from the CPS
take a statement from the client
advise the client on the strength of the prosecution evidence and the plea that the client should
enter
in the case of an either way offence, inform the client that his case may be dealt with by either MC or
CCourt
and advise on advantages of either court
make an application for bail where necessary
1
, DR WS14
Allocation of offence to Court
If a defendant is
Charged with an “either way” offence and
Pleads not guilty and
The Magistrates’ Court accepts jurisdiction of the offence.
The Magistrates’ will offer the defendant a choice of whether they wish for their trial to be heard at
the Magistrates’ Court, or the Crown Court.
Classification of offences
Indictable only The most serious form of offence.
offences Must be dealt with by a trial on indictment at a Crown Court (s51(1) CDA 1998).
The Defendant will make an initial appearance before the Magistrates’ court that will
immediately send the case to the Crown Court for trial.
Examples: Murder, rape, robbery.
Either way Can be dealt with by either a summary trial at the Magistrates’ court or a trial on indictment in
offences the Crown Court.
The defendant will have a “plea before venue” hearing at the Magistrates’ court – then
turns into
If the defendant pleads not guilty, the Magistrates’ court may either:
o Refuse jurisdiction (on consideration of the factors below) or
o Accept jurisdiction, but then offer the defendant a choice on whether they want to be
tried by a Jury in the Crown Court, or
If the defendant pleads guilty, the Magistrates’ court will either:
o Sentence the defendant or,
o If they consider their sentencing powers to be inadequate, they will commit the
defendant to the Crown Court for sentence.
Examples: Theft; assault occasioning actual bodily harm; most forms of burglary; low-
value shop lifting if the defendant is an adult and pleads not-guilty.
Summary offences Least serious form of offence.
Must be dealt with in the Magistrates’ court (summary trial).
Examples: Common assault, various road traffic offences.
Accepting jurisdiction of the offence
Procedure Allocation procedure is set out in s19 and s20 of the Magistrates’ Court Act 1980
s.19(2)(a) = the prosecution will inform the courts of facts and D’s previous conviction
The Magistrates shall CONSIDER:
Oral representations made by the prosecution & defence advocates (s19(2)(b)).
Whether the Magistrates’ have adequate sentencing powers to deal with the offence in
question (s19(3)(a)).
o Magistrates may pass a maximum sentence of 6 months imprisonment for a
defendant convicted of an either way offence.
o However they can pass a sentence of up to 12 months if the defendant is convicted
of two or more offences.
o If the overall seriousness of the offence, by reference to the Magistrates’ Court
Sentencing Guidelines, merits a more serious sentence, the magistrate should
commit the defendant to Crown Court for sentence pursuant to s3 of the Powers
of Criminal Courts (Sentencing) Act 2000.
The Allocation Guideline issued by the Sentencing Council (Appendix B): 513
o GENERAL RULE: “In general, either way offences should be tried summarily
(MAGISTRATES) unless… the outcome would clearly be a sentence in excess of the
2
