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Home » Professionals » Legal Guidance » S to U » Summary Offences and the Crown Court

Summary offences and the Crown Court (Criminal Justice Act 1988 sections 40 and 41; Crime and Disorder Act 1998 section 51 and Sch.3 para.6)

This Guidance was last updated on 30th November 2007.

Principal

1 By definition, a summary offence is dealt with in the magistrates' court. However, the Crown Court may deal with a summary offence in the following circumstances:

a) On committal for sentence <refer to Sending Indictable Cases to the Crown Court and Committal Proceedings elsewhere in this guidance>

b) When an alternative verdict is returned under the Road Traffic Offenders Act 1988 section 24 <Stones 2001: 7-1661>

c) It may try certain summary offences if Criminal Justice Act 1988 s.40 applies (Archbold 1-17)

d) It may take a guilty plea and sentence for a summary offence if the Criminal Justice Act 1988 s.41 or Crime and Disorder Act 1998 s.51 and Sch.3 para.6 apply (Archbold 1-22, 1-12)

e) The jury may find a defendant guilty of a summary offence listed within section 40 under the provisions of Section 11 of the Domestic Violence, Crime and Victims Act 2004

2 It may dismiss the summary offence if the prosecution offer no evidence under CJA 1988 s.41 or the CDA 1998 s.51

3 When preparing a case for the Crown Court, you will need to consider how to deal with any summary offences.

Which Summary Offences can be Tried in the Crown Court?

4 Under CJA 1988 s.40, few summary offences can be included on the indictment and tried in the Crown Court. They are listed in s40(3):

  • Common assault
  • Assaulting a prison custody officer
  • Assaulting a secure training centre custody officer
  • Taking a vehicle without authority
  • Driving while disqualified
  • Low value criminal damage (technically an either-way offence but normally tried by magistrates)

5 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 (i.e. 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; and

  • the facts or evidence relating to the summary offence were disclosed in the magistrates' committal papers or the prosecution papers served under schedule 3 of the Crime and Disorder Act 1998 (procedure where person sent for trial under section 51).<see also Sending Indictable Only Cases to the Crown Court and Committal Proceedings, elsewhere in this guidance>

Possible s.40 Pitfalls

6 An offence cannot be added to the indictment under s.40 if the case was transferred to the Crown Court under s.53 Criminal Justice Act 1991 (child witness transfers), There must have been a committal for trial or a sending. (T and K, [2001] 1 Cr.App.R446; [2001] Crim.LR 298, Sub nom T and C).

7 A summary offence cannot be added as a count under section 40 if it is only related to another summary offence included under s.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)

8 If the defendant is convicted of a count added to the indictment under section 40, the powers of punishment of the Crown Court will be limited to those, which would have been available to the magistrates' court for that offence. Section 40(2)

Alternative Verdicts and Racially Aggravated Offences

9 Section 6(3) of the Criminal Law Act 1967 provides that where a person is tried on indictment for any offence except treason or murder and the jury find him not guilty of the offence specifically charged in the indictment, the jury may find him guilty of an alternative offence, if the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial.

10 Sections 39 of the Criminal Justice Act 1988. Prior to the Criminal Justice Act 1988, common assault was an indictable offence and was therefore available as an alternative verdict under the test set out in section 6(3) of the Criminal Law Act 1967. However, by virtue of section 39 of the 1988 Act, common assault became a summary only offence and thus was no longer an offence "falling within the jurisdiction of" the Crown Court. The obvious consequence was that it would not be available as an alternative verdict in Crown Court cases.

11 Section 40 of the Criminal Justice Act 1988 was introduced to deal with this gap in the law. It provided that a specific count of common assault (or other offence listed at section 40(3) of the 1988 Act), notwithstanding that it is a summary offence, can be included in an indictment if the conditions in subsections 1(a) and 1(b) are met.

12 Therefore, prior to 31 March 2005, a jury could not convict of common assault (as an alternative to,for example, assault occasioning actual bodily harm) unless a count is added under s.40. (Mearns [1990] Crim.LR 708.

13 Even if a defendant was tried for racially aggravated common assault, a jury could not convict of simple common assault as an alternative (R.v. Brownless [2000] All ER (D) 627. A count must have been added under s.40 (Archbold 4-458)

Section 11 of the Domestic Violence, Crime and Victims Act 2004

14 However on the 31 March 2005, Section 11 of the Domestic Violence, Crime and Victims Act 2004 amended section 6(3) of the Criminal Law Act 1967. This enabled a defendant to be convicted, as an alternative to a count on the indictment, of a summary offence to which section 40 of the Criminal Justice Act 1988 applies. (see offences listed above at para 4).

15 The most likely application of section 11 will be in assault cases. This is because taking a motor vehicle or other conveyance without authority is provided as a statutory alternative to theft and aggravated vehicle taking by virtue of sections 12(4) and 12A(5) of the Theft Act 1968. In addition, criminal damage is classified as an offence triable either way, albeit triable only summarily in the circumstances prescribed by section 22 of the Magistrates Courts' Act 1980, and thus falls within the jurisdiction of the Crown Court (see R v Fennell [2002] 2 Cr.App.R 318, CA).

16 Although there is the option of including common assault (or other offence to which section 40 of the 1988 Act applies) on the indictment, it may not always be desirable to do so as this can induce a jury to convict of the lesser offence when the right outcome would be conviction of the more serious one, or outright acquittal. The more appropriate position must be that such a verdict should be left available to the trial judge to direct the jury accordingly, if the facts show that such a verdict should be available.

17 Section 11 of the Domestic Violence, Crime and Victims Act 2004 inserts into section 6 of the Criminal Law Act 1967 subsections (3A) and (3B), which state:

"(3A) For the purpose of subsection (3) above an offence falls within the jurisdiction of the court of trial if it an offence to which section 40 of the Criminal Justice Act 1988 applies (power to join in indictment count for common assault etc.) even if a count charging the offence is not included in the indictment.

(3B) A person convicted of an offence by virtue of subsection (3A) may only be dealt with for it in a manner which a magistrates' court could have dealt with him." 

18 There is also a consequential amendment to Section 41 of the Criminal Justice Act 1988, which can be found in paragraph 28 of Schedule 10 to the 2004 Act. In section 41 of the Criminal Justice Act 1988 (power of a Crown Court to deal with a summary offence where a person is committed for either way offence), after subsection (4), the following is inserted:

"(4A) The committal of a person under this section in respect of an offence to which section 40 above applies shall not prevent him being found guilty of that offence under section 6(3) of the Criminal Law Act 1967 (alternative verdicts on trial on indictment); but where he is convicted under that provision of such an offence, the functions of the Crown Court under this section in relation to the offence shall cease." 

19 The new provisions enable an alternative verdict to be returned under section 6(3) of the Criminal Law Act 1967 in respect of all the summary offences listed in subsection (3) of section 40. If an alternative has been returned, the power of the Crown Court in dealing with one of these summary offences is limited in the same way as it is limited where such an offence has been added as a count in the indictment.

19 Although charges of wounding, assault occasioning actual bodily harm and racially aggravated assault occasioning actual bodily harm and racially aggravated common assault would be the most obvious that might lead to consideration of an alternative verdict of common assault, it is also important to consider the relevance of section 11 of the 2004 Act in cases involving sexual offences and harassment with violence.

20 This section does not affect the existing law in relation to criminal damage. If a defendant is tried for racially aggravated criminal damage, a jury can convict of even low-value criminal damage (which is either-way though normally tried summarily) as an alternative. It is not necessary to have a separate count added under s.40 on the indictment (Peter Fennell [2000] 2 Cr.App.R318; [2000] Crim.LR 677).

21 A jury can convict of TWOC as an alternative to theft without a separate count for the lesser offence Theft Act 1968 s.12(4), Archbold 21-141

Other Disposals of Summary Offences in the Crown Court

22 Although only the offences listed in section 40 can be tried in the Crown Court, magistrates can commit or send certain other summary offences to the Crown Court under the Criminal Justice Act 1988 section 41 or the Crime and Disorder Act 1998 section 51. (Section 41 applies where a defendant has been committed for trial on an either-way offence and section 51 where a defendant has been sent for trial on an indictable-only offence.)

23 The purpose of the provisions is to allow a defendant convicted in the Crown Court to plead guilty and be sentenced for related summary matters if they are punishable with imprisonment or disqualification. <see also Sending Indictable Cases to the Crown Court, and Committal Proceedings, elsewhere in this guidance>

Conditions for Sentencing a Summary Offence in the Crown Court

24 Where CJA 1988 s.40 does not apply, the Crown Court can only sentence a summary offence under these provisions if various conditions are met.

25 Accordingly, you must ensure that the summary offence:

  • was charged in the magistrates' court;
  • is punishable with imprisonment or obligatory or discretionary disqualification from driving;
  • arises out of circumstances which appeared to the magistrates' court to be the same as or connected with the either-way or indictable-only offences on which the defendant is sent to the Crown Court or committed for trial ;

and that in the Crown Court:

  • the defendant has been convicted on the indictment;
  • the Crown Court is satisfied that the conditions for dealing with the summary offence are met; and
  • the defendant has pleaded guilty to the summary offence

Possible Pitfalls with Alternative Pleas: Need for Conviction on the Indictment

26 Care is always needed in considering whether a plea to a lesser offence meets the needs of justice and can be accepted. Particular care is necessary when a defendant offers a plea to a summary offence as an alternative to an offence on the indictment (See Attorney General's Guidance on Acceptance of Pleas).

27 Unless there is express statutory provision for a conviction for a summary offence to be recorded, all the conditions mentioned above must be met. In particular there must be a conviction on the indictment. This means that in general a plea of not guilty to dangerous driving but guilty to careless driving is not possible in the Crown Court.(R.v. Peter Fennell [2000] 2 Cr.App.R318' [2000] Crim.LR 677.) For the same reason, a plea of not guilty to causing death by dangerous driving but guilty to careless driving is not possible under the Crime and Disorder Act 1998 Schedule 3 paragraph 6.

28 However, a conviction of a summary offence included on the indictment under s.40 allows guilty pleas to be recorded to other summary offences. For example, a defendant can be acquitted of the either-way offence of dangerous driving, convicted of driving while disqualified on the indictment and then enter a guilty plea to no insurance; (R.v. Bird, [1995] Crim.LR 745).

29 Different considerations apply where there is specific statutory provision for a jury to return a verdict on a summary offence, for example under the Road Traffic Offenders Act 1988, or the Crime and Disorder Act 1998 provisions on certain racially aggravated offences [refer to Driving Offences incorporating the Charging Standard para 14.1, elsewhere in this Guidance and Archbold 4-456]

Available Disposals of the Summary Offence

30 If the defendant pleads guilty to the summary offence, the Crown Court will proceed to sentence but its sentencing powers will be those of the magistrates' court.

31 If the defendant does not plead guilty, the prosecution may offer no evidence and the Crown Court will then dismiss the summary offence.

32 If the prosecution wish to pursue the summary offence to which the defendant does not plead guilty, it must be tried subsequently in the magistrates' court.

Choosing between use of s.40 and s.41/s.51

33 A summary offence may come within the terms of the section 40 and section 41 or s.51 and Sch.3 paragraph 6

34 For example, a defendant is charged with aggravated burglary and taking without consent the vehicle used in the burglary. The offence of taking the vehicle without consent could be sent to the Crown Court under section 51 and then added to the indictment under section 40. If an either-way offence of burglary was involved, section 41 and 40 would apply in the same way.

What Happens to the Summary Offence in the Magistrates' Court?

35 The answer depends on whether the summary offence can go to the Crown Court.

Summary offences which can go to the Crown Court

36 The purpose of the Criminal Justice Act 1988 section 41 and the Crime and Disorder Act 1998 section 51 is that all relevant summary offences should also go to the Crown Court when a defendant is committed or sent for trial.

37 Where a summary offence is committed or sent to the Crown Court, it is treated as adjourned sine die in the magistrates' court pending the outcome of the Crown Court case, ss. 41(1) and 51(9).In these circumstances, you will need to mark the file clearly, so that it will be referred to you as soon as the Crown Court case is completed.

38 If the Crown Court does not deal with it (by trial under CJA 1988 s.40 or sentence or dismissal under CJA 1988 s.41 and CDA 1998 s.51 Sch.3), a decision must be made to discontinue or re-institute proceedings in the magistrates' court. If the offence was taken into account in the sentence for the Crown Court case, you should normally not proceed with the summary matters, (see R v Little, Independent Law Reports 15th August 1988

Summary Offences which cannot go to the Crown Court

39 If the summary offences are unrelated to the offences being committed or sent to the Crown Court and you intend to proceed with the summary offences regardless of the outcome, you should request that the summary offences are dealt with first.

40 If the defence objected to such a course and the court upholds the submission, it is unlikely that any delay will be held to be the fault of the prosecution(R.v. West London Stipendiary Magistrate ex parte Anderson (1984) 80 Cr.App.R.143)

Effect of Appeals to the Court of Appeal: Section 41 and CDA 1998 Sch 3 para.6

41 If the Court of Appeal sets aside a conviction for an indictable offence, the conviction for any related summary offence is automatically set aside. This seems to be so, even if another indictable offence linked to the same summary offence of which the defendant was convicted has not been set aside on appeal.

42 The Court of Appeal may direct that no further proceedings be taken in respect of the summary charge.

Procedure

Section 40

43 Where there are charges, which will be added to the draft bill of indictment under section 40, these should be:

  • prepared as counts on the indictment;
  • clearly marked that they are not subject to committal; and
  • incorporated and served with the committal package on the defence and court.

44 The <Crown Court Case Preparation Package (CCCPP)> makes provision for section 40 offences and includes standard letters to the court and the defence referring to offences that will be added to the indictment under section 40.

45 The CCCPP also makes provision for standard paragraphs in the instructions to counsel. These paragraphs draw attention to the offences that are added to the indictment under section 40.

46 Precedents for the summary offences, which may be added to the indictment under section 40, can be found in the <Indictment Precedents Manual>.

Schedules of Offences

47 When committing or sending a summary offence, the magistrates' court must specify to which one or more of the indictable offences the summary offence is linked: section 41(2), 51(8).

48 If you intend to seek the committal of summary offences under CJA 1988 section 41, you will need to prepare a schedule listing the summary offences. The CCCPP provides forms for the preparation of the schedule (CCCPP 18 and CCCPP19).Under section 41 the committal papers or depositions need not contain evidence relating to the summary offence.

49 When prosecution papers are served under the Crime & Disorder Act 1988 s.51 Schedule 3, a similar schedule of summary offences should be prepared to assist the court

50 The CCCPP also make provision for:

  • standard letters to the defence and the court drawing attention to the offences to be committed under section 41.
  • standard paragraphs in the brief to counsel drawing attention to the offences committed under section 41.

51 Section 41(3) provides that the decision of the magistrates' court to commit a summary offence under section 41 shall not be subject to appeal or liable to be questioned in any court. However, it would be open to the defence to seek to argue that the conditions of section 41 are not met.