Allocation, Sending and Committal for Sentence

• Representations as to venue
• Adjournment of sending or allocation
• Maximum magistrates’ court sentence
• Offences requiring particular care
• Errors in procedure
  • Nature of the error
  • Errors not capable of invalidating proceedings
  • Errors capable of invalidating proceedings – but not “bad on their face”
  • Errors capable of invalidating proceedings which are “bad on their face”
  • How to identify the type of error
  • The appropriate remedy
• Further useful provisions

This guidance sets out the prosecution approach in respect of the legal framework for allocating, committing for sentence and sending cases in respect of adults to the Crown Court. This is a complicated area which guidance cannot summarise in its entirety. Instead, this guidance focuses in particular on questions which are likely to arise specifically for prosecutors.

Sections 50 to 52B and Schedule 3 of the Crime and Disorder Act 1998 govern the administrative process, at a first hearing in the magistrates’ court, whereby a defendant charged with an offence triable only on indictment should be sent forthwith to the Crown Court. This includes the circumstances in which linked offences, and defendants, may be sent.

Sections 17A to 26 of the Magistrates’ Court Act 1980 (MCA 1980) governs the process whereby the magistrates’ court must allocate the case of a defendant charged with an offence triable summarily or on indictment for trial in the magistrates’ court or at the Crown Court.

Sections 14 (insufficient powers), 15 (dangerous offenders), 18 (further either way offences when defendant already before Crown Court) and 20 (other offences when committed for sentence on other matters) Sentencing Act 2020 governs the process whereby the magistrates’ court can commit a defendant to the Crown Court to be sentenced there. They also set out when the Crown Court will have the same powers as if the defendant had been convicted on indictment and where it will be limited to the sentencing powers of the magistrates’ court.

Representations as to venue

At the first hearing, the prosecutor should identify whether the offence(s) charged are triable only on indictment, triable either way or summary. The prosecutor should identify those offences which are triable only on indictment and usually (see the following section on adjournments) ask that this offence be sent forthwith to the Crown Court and identify any linked either-way or summary offences to be sent with it.

If an either-way offence is charged and it is either not linked to an indictable-only offence or there is no indictable-only offence charged, then the procedure in section 17A Magistrates’ Court Act 1980 should be followed: the charge, which must be in writing, should be read out to the defendant who should be present. The defendant should be asked, if the case proceeded to trial, whether they would plead guilty or not guilty. If the defendant indicates a guilty plea, that is treated as the entering of a guilty plea. If the defendant indicates a not guilty plea or makes no indication, the court must decide whether the case is more suitable for summary trial or trial on indictment. It is important that the prosecutor assists the court to make this decision with relevant information and by making clear representations as to one or the other.

Adjournment of sending or allocation

The case may be adjourned before being sent to the Crown Court or proceeding to allocation. The prosecution should only seek an adjournment, or not oppose a defence application, where it is clear this is the better step to take rather than proceeding immediately to sending/allocation. This is an exceptional course; usually it is appropriate to allocate or send and to manage the case in the Crown Court; and any adjournment should be for as short a period as is reasonable.

Circumstances where an adjournment may be appropriate include:

• where consent to prosecute e.g. from the Attorney General has not yet been obtained: see the prosecution guidance on Consents to Prosecute
• where an urgent review of the case is required which might realistically render the proceedings unnecessary, namely the review concerns whether or not an indictable-only offence is appropriate at all (for sending) or an indictable offence is appropriate at all (for allocation)
• the police seek a remand under section 128(7) of the Magistrates' Courts Act 1980 – this power to remand to police custody for up to three days, for the purpose of inquiries into other offences, is not available in the Crown Court
• a short adjournment would ensure that linked offenders are all dealt with in the same set of proceedings
• where further material is required for the court to determine bail at the same time e.g. to make an enquiry concerning a bail hostel
• where the defendant and their representative are not present in either-way cases and the procedure in section 17A MCA cannot be followed.

Some examples of when it would not normally be necessary to adjourn may include:

• to resolve legal aid questions
• to permit a second bail application, which should be heard by the Crown Court
• to review the case where the outcome of that review will not affect the fact that the Crown Court is the appropriate venue.

Maximum magistrates’ court sentence

The maximum sentence available to a magistrates’ court dealing with a single either-way offence is as follows:

• offences committed prior to 2 May 2022: up to 6 months’ custody and/or an unlimited fine
• offences committed on or after 00.01 am on 2 May 2022, where conviction occurred prior to 30 March 2023: up to 12 months’ custody and/or an unlimited fine (see the Criminal Justice Act 2003 (Commencement No. 33) and Sentencing Act 2020 (Commencement No. 2) Regulations 2022)
• offences committed on or after 00.01 am on 2 May 2022, where conviction occurred on or after 30 March 2023: up to 6 months custody and/or an unlimited fine (see The Sentencing Act 2020 (Magistrates’ Court Sentencing Powers) (Amendment) Regulations 2023).

The power to make these and future regulations – to switch between a maximum sentence of 6 or 12 months’ custody – in respect of either-way offences upon summary conviction is contained in section 13 Judicial Review and Courts Act 2022. Note that the maximum power of sentence of a magistrates’ court in respect of summary-only offences at 6 months’ custody and/or an unlimited fine is unaffected, and that the maximum power of sentence when dealing with 2 or more either-way offences has also remained at 12 months’ custody and/or an unlimited fine. The maximum penalties for offences are unchanged by this provision.

Offences requiring particular care

Criminal damage: see section 22 MCA 1980. Although triable either way, for the purposes of allocation, a charge contrary to section 1 Criminal Damage Act 1971 shall be treated as if it were summary only where the value is less than £5,000, save in cases involving arson or memorials.

Shoplifting: see section 22A MCA 1980. Although triable either way, shoplifting offences contrary to section 1 Theft Act 1968 involving goods of low value (currently no more than £200) are to be treated as summary only for the purposes of allocation subject to the defendant having the right to elect Crown Court trial.

In both cases the 6 month time-limit to lay an information or to charge in section 127 MCA 1980 does not therefore apply when charging criminal damage or theft.

As to allocation and whether the offences are to be treated for this purpose as summary only, the values stated above will be the aggregate value when more than one offence is charged and the criminal damage is part of a series of such offences or the theft is one of several such offences charged on the same occasion.

The following provisions make certain offences triable only on indictment:

• “three strikes” Class A drug trafficking offences: section 313 SA 2020
• “three strikes” dwelling burglary offences: section 314 SA 2020
• dwelling burglaries involving violence or threats of violence: schedule 1, paragraph 28(c) MCA 1980
• minimum mandatory sentences for firearms offences: schedule 6 Firearms Act 1968

Particular care is required in relation to the question of related offences to comply with the CDA 1998 provisions. Some points in particular to note include:

• indictable-only and either-way charges appearing together. In this scenario, the magistrates’ court should send the indictable-only charge for trial: section 51(2)(a) CDA 1998. In accordance with section 50A CDA 1998 any related either-way charge must also be sent for trial and the section 17A MCA 1980 procedure does not apply. If the charges are not related then the section 17A procedure applies.
• two or more either way offences. Any charge to which the defendant has pleaded guilty at the magistrates’ court cannot be sent for trial but may be committed for sentence. If a not guilty plea is indicated and the court declines jurisdiction or the defendant elects Crown Court trial then the charge must be sent for trial pursuant to section 51(2)(b). The court must then consider whether any further either-way offences are related and if so send them for trial as well.
• where there are summary only offences carrying imprisonment or disqualification and they are related to the offence which has been sent for trial under section 51(1) then those offences must also be sent for trial if being dealt with on the same occasion under section 51(3)(b) or if on a subsequent occasion may be sent: section 51(4)(b).

Errors in procedure

It is of critical importance that charges are properly drafted and the correct procedure is followed. While the relationship between the magistrates’ court and the Crown Court is governed by a complicated battery of statutory provisions which have been supplemented and amended over many years, the prosecution must not make basic procedural errors: Gould [2021] EWCA Crim 446 (which primarily deals with the Crown Court’s use of section 66 of the Courts Act 2003).

More recently, the case of R v Butt and Jenkins [2023] EWCA Crim 1131 considered in detail the issue of errors made in the transfer of proceedings from the magistrates’ court to the Crown Court (i.e. sending for trial or committing for sentence), and sets out guidance which prosecutors will find helpful.

In those cases where an error concerning committal for sentence, allocation or sending is identified, the following approach for prosecutors is proposed. First, identify the nature of the error. Second, identify the appropriate remedy.

Nature of the error

It may assist to distinguish between errors which Parliament did not intend to render proceedings invalid and errors which Parliament did intend to render proceedings invalid (this latter category comprises errors which are “obviously bad on the face of it” and those which are not). Prosecutors should assist the court in identifying the true nature of the error on the face of the court record.

Errors not capable of invalidating proceedings

Some errors, although they should be avoided and learning taken from them, should not prevent a court from proceeding. The interests of justice and in particular whether either the prosecution or the defence may suffer prejudice on account of the procedural failure should be considered, but proceedings are not automatically invalidated: see Ashton, Draz and O’Reilly[2006] EWCA Crim 794. An example of this is a typographical or other non-material error in a charge to which a defendant pleads guilty and is then committed for sentence.

Errors capable of invalidating proceedings – but not “bad on their face”

Other errors however do invalidate proceedings. Examples of this are where an offence triable either way has been allocated to the Crown Court without the procedure in section 17A Magistrates’ Court Act 1980 having been followed (see paragraph 103 of Gould), or where Attorney General’s consent is required to prosecute but has not been obtained: Lalchan [2022] EWCA Crim 736.

Although these errors may invalidate proceedings, they are not “bad on their face”. An either way offence may be allocated to the Crown Court and that is not bad on its face, even if the section 17A procedure has not been followed. A case may be allocated or sent to the Crown Court and that is not “bad on its face” even if Attorney General’s consent has not been obtained. The magistrates’ court decision is therefore in order “on its face”, despite an error having occurred capable of invalidating proceedings.

Errors capable of invalidating proceedings which are “bad on their face”

Other errors which are capable of invalidating proceedings are obviously bad on their face, such as a stand-alone summary offence sent to the Crown Court, or an indictable-only offence committed for sentence. These errors are self-evidently bad on their face.

How to identify the type of error

In order to identify the nature of the error, prosecutors should look to the sending sheet (or Court Extract) to consider what power the Magistrates’ Court used or purported to use. However, whilst the sending sheet (or Court Extract) is presumed to be an accurate record it is not a conclusive record and administrative errors can occur in the “resulting” process.

An example of this is when the sending sheet (or Court Extract) records that offences have been sent for trial in respect of a defendant who, according to the advocates’ notes and BCM form, has pleaded guilty or indicated a guilty plea.

Prosecutors should encourage the court to look beyond the sending sheet (or Court Extract) in order to establish whether or not an error occurred. The BCM form is a valuable piece of evidence alongside the advocates’ note of the earlier hearing. It may be that the error which has in fact occurred is only in the way the court has recorded what actually happened (and what actually happened was not in error). See R v Butt and Jenkins [2023] EWCA Crim 1131.

“…if the Crown Court concludes that there was a “resulting error” and is satisfied that the magistrates made a correct order despite the terms of the Court Extract, then it may proceed to deal with the case. This applies where the magistrates committed for sentence, but the record shows that they sent for trial.”

Such a “resulting error” would no longer require rectification by the Divisional Court, as was suggested in the case of R v Clark [2023] EWCA Crim 309. This was considered further in R v Butt and Jenkins [2023] EWCA Crim 1131, which determined that Clark had been wrongly decided.

Thus, an error “bad on its face” may in fact not, upon inquiry, prevent the court from proceeding if the court is satisfied the error is simply a resulting error.

Further, in the absence of any evidence of a failure, the presumption will be that the court complied with its obligations, including those under section 17A. This "clear presumption of regularity" was confirmed by the Divisional Court in R (Westminster City Council) v Crown Court at Southwark and others; R (Owadally and another) v Westminster Magistrates' Court [2017] EWHC 1092 (Admin); [2017] 2 Cr App R 18 at [56(i)].

Note that when a defendant is sent to the Crown Court for matters which include an indictable offence, but in fact is tried on an indictment alleging only either way offences, the lack of s.17A procedure in respect of those either way offences does not invalidate the proceedings: R v. Gul[2012] EWCA Crim 1761[2013] 1 Cr App R 4.

The appropriate remedy

Having addressed resulting errors, it may assist to return to the three categories of error identified above: errors not intended to invalidate proceedings, errors capable of invalidating proceedings but not bad on their face and errors capable of invalidating proceedings which are bad on their face.

Errors not intended to invalidate proceedings may be remedied by other means or may need no remedy at all, for instance, an error in the particulars of the charge which does not amount to a material averment, provided there is agreement about the detail and scope of the offences being dealt with. This should not happen, but occasionally does, when insufficient care has been paid to charges to which the defendant then pleads guilty, and upon committal for sentence an error as to the date, location or other non-material averments is spotted. What is important is that the judge is clear that there is agreement between the parties as to the basis of sentence, following oral submissions or where necessary a written basis for sentence or other record of how the prosecution puts its case.

Errors which invalidate proceedings but which are not bad on their face render the magistrates’ court functus officio: paragraph 80(i) of Gould. Thus the magistrates’ court is functus officio where the section 17A procedure has not been followed or Attorney General’s consent has not been obtained.

Errors which are bad on their face have never left the magistrates’ court. It is not functus officio (see paragraph 96 of Gould) and therefore the Crown Court has no jurisdiction. The Crown Court cannot therefore deal with, for instance, the summary only offence which the magistrates’ court has purported to send without any apparent power under section 51 CDA 1998 to do so.

The distinction is important to the remedy. Where errors that are capable of invalidating proceedings, but are not bad on their face, the Magistrates’ Court is functus officio after it has been sent. Where the magistrates’ court is functus officio it cannot re-open proceedings under section 142 Magistrates’ Court Act 1980. Nor can a Crown Court judge re-open proceedings using section 66 Courts Act 2000. Instead, either fresh proceedings need to be brought in the magistrates’ court, or the Crown Court judge needs to exercise the powers of a District Judge (under section 66 Courts Act 2003) to deal with a new information and begin proceedings afresh (as opposed to attempting to re-open the original proceedings).

If, however the magistrates’ court is not functus officio, because of an error bad on its face such that the case never left the magistrates’ court, then the magistrates’ court itself can be invited to re-open the case under section 142 Magistrates’ Court Act 1980, or the Crown Court judge exercising the powers of a District Judge may do so.

To be clear: these are the two key remedies for errors which invalidate proceedings but they are not required when the error is a resulting error or one that does not invalidate proceedings (see above).

There is no procedure by which the Crown Court can purport to “remit” the case to the magistrates’ court to rectify an error, nor “quash” an order for committal, sending or allocation made in error. Clarity is essential as to whether the magistrates’ court is functus officio or not, because there is a difference between laying a new information and proceeding afresh or asking the magistrates’ court to re-open a case.

In deciding which option to pursue (return to the magistrates’ court or ask the judge to proceed under section 66), prosecutors should consider the guidance given in Gould. It is the magistrates’ court which is best placed to follow the appropriate procedure and record the correct use of its powers: paragraphs 89, 91 and 93 of Gould. Only if one of the following two situations apply, see paragraph 92 of Gould, should the Crown Court judge be invited to exercise their section 66 powers to rectify an error in sending, allocation or committal. This is whether they are being asked to re-open a case which never left the magistrates’ court or starting proceedings afresh.

The two situations are:

• where it is quite clear that the case should be dealt with by the Crown Court (often serious cases including custody cases, involving offences triable only on indictment or where plainly the case would fall to be allocated for Crown Court trial) OR
• where the exercise which is being contemplated is only designed to tie up loose ends and avoid hearings in the Magistrates' Court which are clearly unnecessary (an example might be rectifying the committal for sentence or allocation of an offence which ought to have been sent, where an administrative sending hearing was lacking)

Section 66 is an efficient and useful power when it is used appropriately. It can and should be used to rectify errors, provided it is used with the guidance in Gould at the forefront of the Judge’s mind, assisted by the prosecutor (and please see below for the use of section 66 in the absence of any error). If the Crown Court Judge is invited to use section 66, the prosecutor should make it clear whether the Judge is being asked to deal with a procedural defect which is obviously bad on its face, or whether proceedings are to start afresh.

The following must also happen (see paragraph 93 of Gould):

• the Judge should explain with reasons exactly what powers are being exercised and why
• this includes whether those powers give rise to an appeal route to the Crown Court or Court of Appeal
• this includes whether those powers involve sentencing as a District Judge or a Judge of the Crown Court
• the exercise of these powers should be recorded in these terms both by the Crown Court and the magistrates’ court
• The Crown Court should not be invited to “quash” any decision of the magistrates’ court: only the Divisional Court can do that. The Crown Court judge does not need to “reconstitute” themselves provided the reasoning and records above are observed. The case is not “remitted” to the magistrates’ court.

It is important to be mindful of the appropriate CTL in these situations. Where the case has not left the magistrates’ court because the purported power was bad on its face, the appropriate CTL for the magistrates’ court continues to apply.

It is also important not to lose sight of the totality of the case, in particular where there are charges which are properly before the Crown Court to proceed on those: if an error has occurred with one charge that does not necessarily render the proceedings as a whole a nullity.

A further instance in which the section 66 procedure might be used outside of those where an error has taken place, is when a defendant is already properly before the Crown Court and the prosecution wishes to add or substitute another offence. If the offence to be substituted is summary-only, this must only happen when the information for offence which it is to replace was laid within the statutory time limit (see Dougall v Crown Prosecution Service [2018] EWHC 1367 (Admin)). This should only usually be necessary where there is some good reason why the charge cannot proceed through the normal route, for instance proximity to trial.

When considering inviting a Judge to use section 66, prosecutors may be assisted by S13 Annex III of the Crown Court Compendium which provides useful, practical guidance on the procedure to be followed in a variety of the most commonly encountered situations.

Further useful provisions

It is not possible to set out in summary the full range of provisions relevant to this area. Further useful provisions for prosecutors to consult include:

• Part 9 of the Criminal Procedure Rules, which governs Allocation and Sending
• the Sentencing Council’s Definitive Guideline on Allocation
• the Better Case Management Revival Handbook, in particular the guidance about effective first hearings through advance service of evidence and defence engagement
• the Children as Suspects and Defendants prosecution guidance, for considerations on venue where a defendant under 18 is jointly charged with an adult, or where a defendant under 18 might or must be tried in the Crown Court
• the Crime and Disorder Act 1998 (Service of Prosecution Case) Regulations 2005, which covers the service of evidence following the sending of the case note that the power to extend the time limit for service of the case can be extended, including after it has expired: Fehily v Governor of Wandsworth Prison [2002] EWHC 1295 (Admin)
• paragraph 6, schedule 3 of the 1998 Act: the procedure for the Crown Court when dealing with a summary only offence
• section 11 Judicial Review and Courts Act 2022: the power of the Crown Court to remit a case for trial, and for sentence
• section 23A Prosecution of Offences Act 1985: the power to discontinue a case up until the point an indictment is “preferred” which means lodged in the ‘Indictment’ section of the Crown Court Digital Case System Jessemey [2021] EWCA Crim 175.