The Criminal Procedure (Amendment) Rules 2011

PART 9ALLOCATION AND SENDING FOR TRIAL

Contents of this Part
Section 1: general rules
When this Part applies	rule 9.1
Exercise of magistrates’ court’s powers	rule 9.2
Matters to be specified on sending for trial	rule 9.3
Duty of justices’ legal adviser	rule 9.4
Duty of magistrates’ court officer	rule 9.5
Section 2: sending without allocation for Crown Court trial
Prosecutor’s notice requiring Crown Court trial	rule 9.6
Sending for Crown Court trial	rule 9.7
Section 3: allocation for magistrates’ court or Crown Court trial
Adult defendant: request for plea	rule 9.8
Adult defendant: guilty plea	rule 9.9
Adult defendant: not guilty plea	rule 9.10
Adult defendant: allocation for magistrates’ court trial	rule 9.11
Adult defendant: prosecutor’s application for Crown Court trial	rule 9.12
Young defendant	rule 9.13
Allocation and sending for Crown Court trial	rule 9.14
Section 4: Crown Court initial procedure after sending for trial
Service of prosecution evidence	rule 9.15

SECTION 1: GENERAL RULES

When this Part applies9.1

1

This Part applies to the allocation and sending of cases for trial under—

a

sections 17A to 26 of the Magistrates’ Courts Act 198010; and

b

sections 50A to 52 of the Crime and Disorder Act 199811.

2

Section 2 of this Part applies in a magistrates’ court where the court must, or can, send a defendant to the Crown Court for trial, without allocating the case for trial there.

3

Section 3 of this Part applies in a magistrates’ court where the court must allocate the case to a magistrates’ court or to the Crown Court for trial.

4

Section 4 of this Part applies in the Crown Court, where a defendant is sent for trial there.

[Note. A magistrates’ court’s powers to send a defendant to the Crown Court for trial are contained in section 51 of the Crime and Disorder Act 199812. On the coming into force of Schedule 3 to the Criminal Justice Act 200313—

a

section 51 of the 1998 Act will allow a magistrates’ court to send a wider range of offences for Crown Court trial;

b

section 51A of that Act14, and section 24A of the Magistrates’ Courts Act 198015, will allow the court, in a wider range of circumstances, to send for Crown Court trial a defendant who is under 18 (in the place of committal for trial); and

c

section 19 of the 1980 Act16, as substituted by the 2003 Act, will require the court to allocate to a magistrates’ court or to the Crown Court for trial a case which could be tried in either court (again, in the place of committal for trial).

The exercise of the court’s powers is affected by—

a

the classification of the offence (and the general rule, subject to exceptions, is that an offence classified as triable on indictment exclusively must be sent for Crown Court trial; an offence classified as triable only summarily must be tried in a magistrates’ court; and an offence classified as triable either on indictment or summarily must, when Schedule 3 to the 2003 Act comes into force, be allocated to one or the other court for trial: see in particular sections 50A, 51 and 51A of the 1998 Act17, as added and substituted by the 2003 Act);

b

the defendant’s age (and the general rule, subject to exceptions, is that an offence alleged against a defendant under 18 must be tried in a magistrates’ court sitting as a youth court: see in particular sections 24 and 24A of the 1980 Act18, as added and substituted by the 2003 Act);

c

whether the defendant is awaiting Crown Court trial for another offence;

d

whether another defendant, charged with the same offence, is awaiting Crown Court trial for that offence; and

e

in some cases (destroying or damaging property; aggravated vehicle taking), whether the value involved is more or less than £5,000.

The court’s powers of sending and allocation, including its powers (i) to receive a defendant’s indication of an intention to plead guilty (see rules 9.7, 9.8 and 9.13) and (ii) to give an indication of likely sentence (see rule 9.11), may be exercised by a single justice: see sections 51 and 51A(11) of the 1998 Act, and sections 17E, 18(5) and 24D of the 1980 Act19.]

Exercise of magistrates’ court’s powers9.2

1

This rule applies to the exercise of the powers to which Sections 2 and 3 apply.

2

The general rule is that the court must exercise its powers at a hearing in public, but it may exercise any power it has to—

a

withhold information from the public; or

b

order a hearing in private.

3

The general rule is that the court must exercise its powers in the defendant’s presence, but it may exercise the powers to which the following rules apply in the defendant’s absence on the conditions specified—

a

where rule 9.8 (adult defendant: request for plea), rule 9.9 (adult defendant: guilty plea) or rule 9.13 (young defendant) applies, if—

i

the defendant is represented, and

ii

the defendant’s disorderly conduct makes his or her presence in the courtroom impracticable;

b

where rule 9.10 (adult defendant: not guilty plea) or rule 9.11 (adult defendant: allocation for magistrates’ court trial) applies, if—

i

the defendant is represented and waives the right to be present, or

ii

the defendant’s disorderly conduct makes his or her presence in the courtroom impracticable.

4

The court may exercise its power to adjourn—

a

if either party asks; or

b

on its own initiative.

5

Where the court on the same occasion deals with more than one offence alleged against the same defendant, it must deal with them in the following sequence—

a

any to which rule 9.6 applies (prosecutor’s notice requiring Crown Court trial);

b

any to which rule 9.7 applies (sending for Crown Court trial, without allocation there), in this sequence—

i

any the court must send for trial, then

ii

any the court can send for trial; and

c

any to which rule 9.14 applies (allocation for Crown Court trial).

[Note. See sections 50A, 51, 51A and 52 of the Crime and Disorder Act 199820 and sections 17A, 17B, 17C, 18, 23, 24A, 24B and 24C of the Magistrates’ Courts Act 198021.

Under sections 57A to 57E of the 1998 Act22, the court may require a defendant to attend by live link a hearing to which this Part applies.

Where a defendant waives the right to be present then the court may nonetheless require his or her attendance by summons or warrant: see section 26 of the 1980 Act23.

Under section 52A of the 1998 Act24, reporting restrictions apply to the proceedings to which Sections 2 and 3 apply.

Part 2 contains rules allowing a representative to act on a defendant’s behalf for the purposes of these Rules.

Part 3 contains rules about the court’s powers of case management.]

Matters to be specified on sending for trial9.3

1

Where the court sends a defendant to the Crown Court for trial, it must specify—

a

each offence to be tried;

b

in respect of each, the power exercised to send it; and

c

the Crown Court centre at which the trial will take place.

2

In a case in which the prosecutor serves a notice to which rule 9.6(1)(a) applies (notice requiring Crown Court trial in a case of serious or complex fraud), the court must specify the Crown Court centre identified by that notice.

3

In any other case, in deciding the Crown Court centre at which the trial will take place, the court must take into account—

a

the convenience of the parties and witnesses;

b

how soon a suitable courtroom will be available; and

c

the directions on the allocation of Crown Court business contained in the Practice Direction.

[Note. See sections 51 and, when it comes into force, 51D of the Crime and Disorder Act 199825.]

Duty of justices’ legal adviser9.4

1

This rule applies—

a

only in a magistrates’ court; and

b

unless the court—

i

includes a District Judge (Magistrates’ Courts), and

ii

otherwise directs.

2

On the court’s behalf, a justices’ legal adviser may—

a

read the allegation of the offence to the defendant;

b

give any explanation and ask any question required by the rules in this Part;

c

make any announcement required by the rules in this Part, other than an announcement of—

i

the court’s decisions about allocation and sending,

ii

any indication by the court of likely sentence, or

iii

sentence.

3

A justices’ legal adviser must—

a

assist an unrepresented defendant;

b

give the court such advice as is required to enable it to exercise its powers;

c

if required, attend the members of the court outside the courtroom to give such advice, but inform the parties of any advice so given.

[Note. For the functions of a justices’ legal adviser, see sections 28 and 29 of the Courts Act 200326.]

Duty of magistrates’ court officer9.5

1

The magistrates’ court officer must—

a

serve notice of a sending for Crown Court trial on—

i

the Crown Court officer, and

ii

the parties;

b

in that notice record—

i

the matters specified by the court under rule 9.3 (matters to be specified on sending for trial),

ii

any indication of intended guilty plea given by the defendant under rule 9.7 (sending for Crown Court trial),

iii

any decision by the defendant to decline magistrates’ court trial under rule 9.11 (adult defendant: allocation to magistrates’ court for trial), and

iv

the date on which any custody time limit will expire;

c

record any indication of likely sentence to which rule 9.11 applies; and

d

give the court such other assistance as it requires.

2

The magistrates’ court officer must include with the notice served on the Crown Court officer—

a

the initial details of the prosecution case served by the prosecutor under rule 21.2;

b

a record of any—

i

listing or case management direction affecting the Crown Court,

ii

direction about reporting restrictions,

iii

decision about bail, for the purposes of section 5 of the Bail Act 197627,

iv

recognizance given by a surety, or

v

representation order; and

c

if relevant, any available details of any—

i

interpreter,

ii

intermediary, or

iii

other supporting adult, where the defendant is assisted by such a person.

[Note. See sections 51 and, when it comes into force, 51D of the Crime and Disorder Act 199828; and, when it comes into force, section 20A of the Magistrates’ Courts Act 198029.]

SECTION 2: SENDING WITHOUT ALLOCATION FOR CROWN COURT TRIAL

Prosecutor’s notice requiring Crown Court trial9.6

1

This rule applies where a prosecutor with power to do so requires a magistrates’ court to send for trial in the Crown Court—

a

a case of serious or complex fraud; or

b

a case which will involve a child witness.

2

The prosecutor must serve written notice of that requirement—

a

on the magistrates’ court officer and on the defendant; and

b

before trial in a magistrates’ court begins under Part 37 (Trial and sentence in a magistrates’ court).

3

The notice must identify—

a

the power on which the prosecutor relies; and

b

the Crown Court centre at which the prosecutor wants the trial to take place.

4

The prosecutor—

a

must, when choosing a Crown Court centre, take into account the matters listed in rule 9.3(3) (court deciding to which Crown Court centre to send a case); and

b

may change the centre identified before the case is sent for trial.

[Note. This rule applies only in a case for which the amendments made by Schedule 3 to the Criminal Justice Act 2003 have come into force: see rule 2.1 (When the Rules apply).

Under section 51B of the Crime and Disorder Act 199830, the Director of Public Prosecutions, the Director of the Serious Fraud Office, the Director of Revenue and Customs Prosecutions or a Secretary of State may require the court to send a case for trial in the Crown Court if, in that prosecutor’s opinion, the evidence of the offence charged—

a

is sufficient for the person charged to be put on trial for the offence; and

b

reveals a case of fraud of such seriousness or complexity that it is appropriate that the management of the case should without delay be taken over by the Crown Court.

Under section 51C of the Crime and Disorder Act 199831, the Director of Public Prosecutions may require the court to send for trial in the Crown Court a case involving one of certain specified violent or sexual offences if, in the Director’s opinion—

a

the evidence of the offence would be sufficient for the person charged to be put on trial for that offence;

b

a child would be called as a witness at the trial; and

c

for the purpose of avoiding any prejudice to the welfare of the child, the case should be taken over and proceeded with without delay by the Crown Court.

‘Child’ for these purposes is defined by section 51C(7) of the 1998 Act.

The Practice Direction sets out forms of notice for use in connection with this rule.]

Sending for Crown Court trial9.7

1

This rule applies where a magistrates’ court must, or can, send a defendant to the Crown Court for trial without allocating the case for trial there.

2

The court must read the allegation of the offence to the defendant.

3

The court must explain, in terms the defendant can understand (with help, if necessary)—

a

the allegation, unless it is self-explanatory;

b

that the offence is one for which the court, as appropriate—

i

must send the defendant to the Crown Court for trial, or

ii

can send the defendant to the Crown Court for trial because the offence is related to one already sent for trial there;

c

that the court is about to ask whether the defendant intends to plead guilty;

d

that if the answer is ‘yes’, then the Crown Court will arrange a hearing to take the defendant’s plea; and

e

that reporting restrictions apply, which the defendant may ask the court to vary or remove.

4

In the following sequence, the court must then—

a

ask whether the defendant intends to plead guilty;

b

invite the prosecutor to—

i

identify the court’s power to send the defendant to the Crown Court for trial for the offence, and

ii

make representations about any ancillary matters, including bail and directions for the management of the case in the Crown Court;

c

invite the defendant to make representations about—

i

the court’s power to send the defendant to the Crown Court, and

ii

any ancillary matters; and

d

exercise its powers to—

i

send the defendant to the Crown Court for trial, and

ii

give any ancillary directions.

[Note. See section 51 and, when they come into force, sections 51A and 51E of the Crime and Disorder Act 199832; and, when it comes into force, section 24A of the Magistrates’ Courts Act 198033.

For the circumstances in which a magistrates’ court may (and in some cases must) commit a defendant who is under 18 to the Crown Court for sentence after that defendant has indicated a guilty plea, see sections 3B, 4A and 6 of the Powers of Criminal Courts (Sentencing) Act 200034.

See also Part 16 (Reporting, etc. restrictions).]

SECTION 3: ALLOCATION FOR MAGISTRATES’ COURT OR CROWN COURT TRIAL

[Note. The rules in this Section apply only in a case for which the amendments made by Schedule 3 to the Criminal Justice Act 2003 have come into force: see rule 2.1 (When the Rules apply).]

Adult defendant: request for plea9.8

1

This rule applies where—

a

the defendant is 18 or over; and

b

the court must decide whether a case is more suitable for trial in a magistrates’ court or in the Crown Court.

2

The court must read the allegation of the offence to the defendant.

3

The court must explain, in terms the defendant can understand (with help, if necessary)—

a

the allegation, unless it is self-explanatory;

b

that the offence is one which can be tried in a magistrates’ court or in the Crown Court;

c

that the court is about to ask whether the defendant intends to plead guilty;

d

that if the answer is ‘yes’, then the court must treat that as a guilty plea and must sentence the defendant, or commit the defendant to the Crown Court for sentence;

e

that if the defendant does not answer, or the answer is ‘no’, then—

i

the court must decide whether to allocate the case to a magistrates’ court or to the Crown Court for trial,

ii

the value involved may require the court to order trial in a magistrates’ court (where the offence is one to which section 22 of the Magistrates’ Courts Act 198035 applies), and

iii

if the court allocates the case to a magistrates’ court for trial, the defendant can nonetheless require trial in the Crown Court (unless the offence is one to which section 22 of the Magistrates’ Courts Act 1980 applies and the value involved requires magistrates’ court trial); and

f

that reporting restrictions apply, which the defendant may ask the court to vary or remove.

4

The court must then ask whether the defendant intends to plead guilty.

[Note. See section 17A of the Magistrates’ Courts Act 198036.

For the circumstances in which a magistrates’ court may (and in some cases must) commit a defendant to the Crown Court for sentence after that defendant has indicated an intention to plead guilty where this rule applies, see sections 4 and 6 of the Powers of Criminal Courts (Sentencing) Act 200037.

See also Part 16 (Reporting, etc. restrictions).]

Adult defendant: guilty plea9.9

1

This rule applies where—

a

rule 9.8 applies; and

b

the defendant indicates an intention to plead guilty.

2

The court must exercise its power to deal with the case—

a

as if the defendant had just pleaded guilty to an offence that can be tried only in a magistrates’ court; and

b

in accordance with rule 37.10 (procedure if the court convicts).

[Note. See section 17A of the Magistrates’ Courts Act 1980.]

Adult defendant: not guilty plea9.10

1

This rule applies where—

a

rule 9.8 applies; and

b

the defendant—

i

indicates an intention to plead not guilty, or

ii

gives no indication of intended plea.

2

In the following sequence, the court must then—

a

where the offence is one to which section 22 of the Magistrates’ Courts Act 1980 applies, explain in terms the defendant can understand (with help, if necessary) that—

i

if the court decides that the value involved clearly is less than £5,000, the court must order trial in a magistrates’ court,

ii

if the court decides that it is not clear whether that value is more or less than £5,000, then the court will ask whether the defendant agrees to be tried in a magistrates’ court, and

iii

if the answer to that question is ‘yes’, then the court must order such a trial and if the defendant is convicted then the maximum sentence is limited;

b

invite the prosecutor to—

i

identify any previous convictions of which it can take account, and

ii

make representations about how the court should allocate the case for trial, including representations about the value involved, if relevant;

c

invite the defendant to make such representations;

d

where the offence is one to which section 22 of the Magistrates’ Courts Act 1980 applies—

i

if it is not clear whether the value involved is more or less than £5,000, ask whether the defendant agrees to be tried in a magistrates’ court,

ii

if the defendant’s answer to that question is ‘yes’, or if that value clearly is less than £5,000, order a trial in a magistrates’ court,

iii

if the defendant does not answer that question, or the answer is ‘no’, or if that value clearly is more than £5,000, apply paragraph (2)(e);

e

exercise its power to allocate the case for trial, taking into account—

i

the adequacy of a magistrates’ court’s sentencing powers,

ii

any representations by the parties, and

iii

any allocation guidelines issued by the Sentencing Council.

[Note. See sections 17A, 18, 19, 22 and 24A of the Magistrates’ Courts Act 198038.

Under section 22 of the 1980 Act, some offences, which otherwise could be tried in a magistrates’ court or in the Crown Court, must be tried in a magistrates’ court in the circumstances described in this rule.

The convictions of which the court may take account are those specified by section 19 of the 1980 Act.

The Sentencing Council may issue allocation guidelines under section 122 of the Coroners and Justice Act 200939.]

Adult defendant: allocation for magistrates’ court trial9.11

1

This rule applies where—

a

rule 9.10 applies; and

b

the court allocates the case to a magistrates’ court for trial.

2

The court must explain, in terms the defendant can understand (with help, if necessary) that—

a

the court considers the case more suitable for trial in a magistrates’ court than in the Crown Court;

b

if the defendant is convicted at a magistrates’ court trial, then in some circumstances the court may commit the defendant to the Crown Court for sentence;

c

if the defendant does not agree to a magistrates’ court trial, then the court must send the defendant to the Crown Court for trial; and

d

before deciding whether to accept magistrates’ court trial, the defendant may ask the court for an indication of whether a custodial or non-custodial sentence is more likely in the event of a guilty plea at such a trial, but the court need not give such an indication.

3

If the defendant asks for such an indication of sentence and the court gives such an indication—

a

the court must then ask again whether the defendant intends to plead guilty;

b

if, in answer to that question, the defendant indicates an intention to plead guilty, then the court must exercise its power to deal with the case—

i

as if the defendant had just pleaded guilty to an offence that can be tried only in a magistrates’ court, and

ii

in accordance with rule 37.10 (procedure if the court convicts);

c

if, in answer to that question, the defendant indicates an intention to plead not guilty, or gives no indication of intended plea, in the following sequence the court must then—

i

ask whether the defendant agrees to trial in a magistrates’ court,

ii

if the defendant’s answer to that question is ‘yes’, order such a trial,

iii

if the defendant does not answer that question, or the answer is ‘no’, apply rule 9.14.

4

If the defendant asks for an indication of sentence but the court gives none, or if the defendant does not ask for such an indication, in the following sequence the court must then—

a

ask whether the defendant agrees to trial in a magistrates’ court;

b

if the defendant’s answer to that question is ‘yes’, order such a trial;

c

if the defendant does not answer that question, or the answer is ‘no’, apply rule 9.14.

[Note. See section 20 of the Magistrates’ Courts Act 198040.

For the circumstances in which a magistrates’ court may (and in some cases must) commit a defendant to the Crown Court for sentence after that defendant has been convicted at a magistrates’ court trial, see sections 3, 3A, 3C, and 6 of the Powers of Criminal Courts (Sentencing) Act 200041.

For the circumstances in which an indication of sentence to which this rule applies restricts the sentencing powers of a court, see section 20A of the 1980 Act42.]

Adult defendant: prosecutor’s application for Crown Court trial9.12

1

This rule applies where—

a

rule 9.11 applies;

b

the defendant agrees to trial in a magistrates’ court; but

c

the prosecutor wants the court to exercise its power to send the defendant to the Crown Court for trial instead.

2

The prosecutor must—

a

apply before trial in a magistrates’ court begins under Part 37 (Trial and sentence in a magistrates’ court); and

b

notify—

i

the defendant, and

ii

the magistrates’ court officer.

3

The court must determine an application to which this rule applies before it deals with any other pre-trial application.

[Note. See sections 8A and 25 of the Magistrates’ Courts Act 198043. Under section 25(2B), the court may grant an application to which this rule applies only if it is satisfied that the sentence which a magistrates’ court would have power to impose would be inadequate.]

Young defendant9.13

1

This rule applies where—

a

the defendant is under 18; and

b

the court must decide whether to send the defendant for Crown Court trial instead of ordering trial in a youth court.

2

The court must read the allegation of the offence to the defendant.

3

The court must explain, in terms the defendant can understand (with help, if necessary)—

a

the allegation, unless it is self-explanatory;

b

that the offence is one which can be tried in the Crown Court instead of in a youth court;

c

that the court is about to ask whether the defendant intends to plead guilty;

d

that if the answer is ‘yes’, then the court must treat that as a guilty plea and must sentence the defendant, or commit the defendant to the Crown Court for sentence;

e

that if the defendant does not answer, or the answer is ‘no’, then the court must decide whether to send the defendant for Crown Court trial instead of ordering trial in a youth court; and

f

that reporting restrictions apply, which the defendant may ask the court to vary or remove.

4

The court must then ask whether the defendant intends to plead guilty.

5

If the defendant’s answer to that question is ‘yes’, the court must exercise its power to deal with the case—

a

as if the defendant had just pleaded guilty to an offence that can be tried only in a magistrates’ court; and

b

in accordance with rule 37.10 (procedure if the court convicts).

6

If the defendant does not answer that question, or the answer is ‘no’, in the following sequence the court must then—

a

invite the prosecutor to make representations about whether Crown Court or youth court trial is more appropriate;

b

invite the defendant to make such representations;

c

exercise its power to allocate the case for trial, taking into account—

i

the offence and the circumstances of the offence,

ii

the suitability of a youth court’s sentencing powers,

iii

where the defendant is jointly charged with an adult, whether it is necessary in the interests of justice for them to be tried together in the Crown Court, and

iv

any representations by the parties.

[Note. See section 24A of the Magistrates’ Courts Act 198044.]

Allocation and sending for Crown Court trial9.14

1

This rule applies where—

a

under rule 9.10 or rule 9.13, the court allocates the case to the Crown Court for trial;

b

under rule 9.11, the defendant does not agree to trial in a magistrates’ court; or

c

under rule 9.12, the court grants the prosecutor’s application for Crown Court trial.

2

In the following sequence, the court must—

a

invite the prosecutor to make representations about any ancillary matters, including bail and directions for the management of the case in the Crown Court;

b

invite the defendant to make any such representations; and

c

exercise its powers to—

i

send the defendant to the Crown Court for trial, and

ii

give any ancillary directions.

[Note. See sections 21 and 24A of the Magistrates’ Courts Act 198045 and section 51 of the Crime and Disorder 199846. See also rule 9.3 (matters to be specified on sending for trial).]

SECTION 4: CROWN COURT INITIAL PROCEDURE AFTER SENDING FOR TRIAL

Service of prosecution evidence9.15

1

This rule applies where—

a

a magistrates’ court sends the defendant to the Crown Court for trial; and

b

the prosecutor serves on the defendant copies of the documents containing the evidence on which the prosecution case relies.

2

The prosecutor must at the same time serve copies of those documents on the Crown Court officer.

[Note. See The Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 200547. The time for service of the prosecution evidence is prescribed by regulation 2. It is—

a

not more than 50 days after sending for trial, where the defendant is in custody; and

b

not more than 70 days after sending for trial, where the defendant is on bail.]