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Criminal Justice Bill


Criminal Justice Bill
Schedule 3 — Allocation of cases triable either way, and sending cases to the Crown Court etc
Part 1 — Principal amendments

    185

 

Schedule 3

Section 39

 

Allocation of cases triable either way, and sending cases to the Crown Court

etc

Part 1

Principal amendments

5

Magistrates’ Courts Act 1980 (c. 43)

  1        The Magistrates’ Courts Act 1980 is amended as follows.

  2       (1)      Section 17A (initial indication as to plea) is amended as follows.

          (2)      For paragraph (b) of subsection (4) there is substituted—

                    “(b)                      he may (unless section 17D(2) below were to apply) be

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committed to the Crown Court under section 3 or (if

applicable) 3A of the Powers of Criminal Courts (Sentencing)

Act 2000 if the court is of such opinion as is mentioned in

subsection (2) of the applicable section.”

          (3)      After subsection (9) there is inserted—

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              “(10)                If in respect of the offence the court receives a notice under section

51B or 51C of the Crime and Disorder Act 1998 (which relate to

serious or complex fraud cases and to certain cases involving

children respectively), the preceding provisions of this section and

the provisions of section 17B below shall not apply, and the court

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shall proceed in relation to the offence in accordance with section 51

or, as the case may be, section 51A of that Act.”

  3        After section 17C there is inserted—

       “17D            Maximum penalty under section 17A(6) or 17B(2)(c) for certain

offences

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              (1)             If—

                    (a)                   the offence is a scheduled offence (as defined in section 22(1)

below);

                    (b)                   the court proceeds in relation to the offence in accordance

with section 17A(6) or 17B(2)(c) above; and

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                    (c)                   the court convicts the accused of the offence,

                              the court shall consider whether, having regard to any

representations made by him or by the prosecutor, the value

involved (as defined in section 22(10) below) appears to the court to

exceed the relevant sum (as specified for the purposes of section 22

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below).

              (2)             If it appears to the court clear that the value involved does not exceed

the relevant sum, or it appears to the court for any reason not clear

whether the value involved does or does not exceed the relevant

sum—

40

                    (a)                   subject to subsection (4) below, the court shall not have

power to impose on the accused in respect of the offence a

sentence in excess of the limits mentioned in section 33(1)(a)

below; and

 

 

Criminal Justice Bill
Schedule 3 — Allocation of cases triable either way, and sending cases to the Crown Court etc
Part 1 — Principal amendments

    186

 

                    (b)                   sections 3 and 4 of the Powers of Criminal Courts

(Sentencing) Act 2000 shall not apply as regards that offence.

              (3)             Subsections (9) to (12) of section 22 below shall apply for the

purposes of this section as they apply for the purposes of that section

(reading the reference to subsection (1) in section 22(9) as a reference

5

to subsection (1) of this section).

              (4)             Subsection (2)(a) above does not apply to an offence under section

12A of the Theft Act 1968 (aggravated vehicle-taking).

       17E            Functions under sections 17A to 17D capable of exercise by single

justice

10

              (1)             The functions of a magistrates’ court under sections 17A to 17D

above may be discharged by a single justice.

              (2)             Subsection (1) above shall not be taken as authorising—

                    (a)                   the summary trial of an information (otherwise than in

accordance with section 17A(6) or 17B(2)(c) above); or

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                    (b)                   the imposition of a sentence,

                              by a magistrates’ court composed of fewer than two justices.”

  4        In section 18 (initial procedure on information against adult for offence

triable either way), for subsection (5) there is substituted—

              “(5)                The functions of a magistrates’ court under sections 19 to 23 below

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may be discharged by a single justice, but this subsection shall not be

taken as authorising—

                    (a)                   the summary trial of an information (otherwise than in

accordance with section 20(7) below); or

                    (b)                   the imposition of a sentence,

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                              by a magistrates’ court composed of fewer than two justices.”

  5        For section 19 (court to begin by considering which mode of trial appears

more suitable) there is substituted—

       “19            Decision as to allocation

              (1)             The court shall decide whether the offence appears to it more

30

suitable for summary trial or for trial on indictment.

              (2)             Before making a decision under this section, the court—

                    (a)                   shall give the prosecution an opportunity to inform the court

of the accused’s previous convictions (if any); and

                    (b)                   shall give the prosecution and the accused an opportunity to

35

make representations as to whether summary trial or trial on

indictment would be more suitable.

              (3)             In making a decision under this section, the court shall consider—

                    (a)                   whether the sentence which a magistrates’ court would have

power to impose for the offence would be adequate; and

40

                    (b)                   any representations made by the prosecution or the accused

under subsection (2)(b) above,

 

 

Criminal Justice Bill
Schedule 3 — Allocation of cases triable either way, and sending cases to the Crown Court etc
Part 1 — Principal amendments

    187

 

                              and shall have regard to any allocation guidelines (or revised

allocation guidelines) issued as definitive guidelines under section

152 of the Criminal Justice Act 2003.

              (4)             Where—

                    (a)                   the accused is charged with two or more offences; and

5

                    (b)                   it appears to the court that the charges for the offences could

be joined in the same indictment or that the offences arise out

of the same or connected circumstances,

                              subsection (3)(a) above shall have effect as if references to the

sentence which a magistrates’ court would have power to impose for

10

the offence were a reference to the maximum aggregate sentence

which a magistrates’ court would have power to impose for all of the

offences taken together.

              (5)             In this section any reference to a previous conviction is a reference

to—

15

                    (a)                   a previous conviction by a court in the United Kingdom, or

                    (b)                   a previous finding of guilt in—

                           (i)                          any proceedings under the Army Act 1955, the Air

Force Act 1955 or the Naval Discipline Act 1957

(whether before a court-martial or any other court or

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person authorised under any of those Acts to award a

punishment in respect of any offence), or

                           (ii)                         any proceedings before a Standing Civilian Court.

              (6)             If, in respect of the offence, the court receives a notice under section

51B or 51C of the Crime and Disorder Act 1998 (which relate to

25

serious or complex fraud cases and to certain cases involving

children respectively), the preceding provisions of this section and

sections 20, 20A and 21 below shall not apply, and the court shall

proceed in relation to the offence in accordance with section 51(1) of

that Act.”

30

  6        For section 20 (procedure where summary trial appears more suitable) there

is substituted—

       “20            Procedure where summary trial appears more suitable

              (1)             If the court decides under section 19 above that the offence appears

to it more suitable for summary trial, the following provisions of this

35

section shall apply (unless they are excluded by section 23 below).

              (2)             The court shall explain to the accused in ordinary language—

                    (a)                   that it appears to the court more suitable for him to be tried

summarily for the offence;

                    (b)                   that he can either consent to be so tried or, if he wishes, be

40

tried on indictment; and

                    (c)                   in the case of a specified offence (within the meaning of

section 206 of the Criminal Justice Act 2003), that if he is tried

summarily and is convicted by the court, he may be

committed for sentence to the Crown Court under section 3A

45

of the Powers of Criminal Courts (Sentencing) Act 2000 if the

committing court is of such opinion as is mentioned in

subsection (2) of that section.

 

 

Criminal Justice Bill
Schedule 3 — Allocation of cases triable either way, and sending cases to the Crown Court etc
Part 1 — Principal amendments

    188

 

              (3)             The accused may then request an indication (“an indication of

sentence”) of whether a custodial sentence or non-custodial sentence

would be more likely to be imposed if he were to be tried summarily

for the offence and to plead guilty.

              (4)             If the accused requests an indication of sentence, the court may, but

5

need not, give such an indication.

              (5)             If the accused requests and the court gives an indication of sentence,

the court shall ask the accused whether he wishes, on the basis of the

indication, to reconsider the indication of plea which was given, or is

taken to have been given, under section 17A or 17B above.

10

              (6)             If the accused indicates that he wishes to reconsider the indication

under section 17A or 17B above, the court shall ask the accused

whether (if the offence were to proceed to trial) he would plead

guilty or not guilty.

              (7)             If the accused indicates that he would plead guilty the court shall

15

proceed as if—

                    (a)                   the proceedings constituted from that time the summary trial

of the information; and

                    (b)                   section 9(1) above were complied with and he pleaded guilty

under it.

20

              (8)             Subsection (9) below applies where—

                    (a)                   the court does not give an indication of sentence (whether

because the accused does not request one or because the court

does not agree to give one);

                    (b)                   the accused either—

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                           (i)                          does not indicate, in accordance with subsection (5)

above, that he wishes; or

                           (ii)                         indicates, in accordance with subsection (5) above,

that he does not wish,

                                          to reconsider the indication of plea under section 17A or 17B

30

above; or

                    (c)                   the accused does not indicate, in accordance with subsection

(6) above, that he would plead guilty.

              (9)             The court shall ask the accused whether he consents to be tried

summarily or wishes to be tried on indictment and—

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                    (a)                   if he consents to be tried summarily, shall proceed to the

summary trial of the information; and

                    (b)                   if he does not so consent, shall proceed in relation to the

offence in accordance with section 51(1) of the Crime and

Disorder Act 1998.

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       20A            Procedure where summary trial appears more suitable: supplementary

              (1)             Where the case is dealt with in accordance with section 20(7) above,

no court (whether a magistrates’ court or not) may impose a

custodial sentence for the offence unless such a sentence was

indicated in the indication of sentence referred to in section 20 above.

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Criminal Justice Bill
Schedule 3 — Allocation of cases triable either way, and sending cases to the Crown Court etc
Part 1 — Principal amendments

    189

 

              (2)             Subsection (1) above is subject to sections 3A(4), 4(8) and 5(3) of the

Powers of Criminal Courts (Sentencing) Act 2000.

              (3)             Except as provided in subsection (1) above—

                    (a)                   an indication of sentence shall not be binding on any court

(whether a magistrates’ court or not); and

5

                    (b)                   no sentence may be challenged or be the subject of appeal in

any court on the ground that it is not consistent with an

indication of sentence.

              (4)             Subject to section 20(7) above, the following shall not for any purpose

be taken to constitute the taking of a plea—

10

                    (a)                   asking the accused under section 20 above whether (if the

offence were to proceed to trial) he would plead guilty or not

guilty; or

                    (b)                   an indication by the accused under that section of how he

would plead.

15

              (5)             Where the court gives an indication of sentence under section 20

above, it shall cause each such indication to be entered in the register.

              (6)             In this section and in section 20 above, references to a custodial

sentence are to a custodial sentence within the meaning of section 76

of the Powers of Criminal Courts (Sentencing) Act 2000, and

20

references to a non-custodial sentence shall be construed

accordingly.”

  7        For section 21 (procedure where trial on indictment appears more suitable)

there is substituted—

       “21            Procedure where trial on indictment appears more suitable

25

If the court decides under section 19 above that the offence appears

to it more suitable for trial on indictment, the court shall tell the

accused that the court has decided that it is more suitable for him to

be tried on indictment, and shall proceed in relation to the offence in

accordance with section 51(1) of the Crime and Disorder Act 1998.”

30

  8       (1)      Section 23 (power of court, with consent of legally represented accused, to

proceed in his absence) is amended as follows.

          (2)      In subsection (4)—

              (a)             for the words preceding paragraph (a) there is substituted “If the

court decides under section 19 above that the offence appears to it

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more suitable for trial on indictment then—”,

              (b)             in paragraph (b), for the words from “to inquire” to the end there is

substituted “in relation to the offence in accordance with section

51(1) of the Crime and Disorder Act 1998.”.

          (3)      For subsection (5) there is substituted—

40

              “(5)                If the court decides under section 19 above that the offence appears

to it more suitable for trial on indictment, section 21 above shall not

apply and the court shall proceed in relation to the offence in

accordance with section 51(1) of the Crime and Disorder Act 1998.”

 

 

Criminal Justice Bill
Schedule 3 — Allocation of cases triable either way, and sending cases to the Crown Court etc
Part 1 — Principal amendments

    190

 

  9       (1)      Section 24 (summary trial of information against child or young persons for

indictable offence), as amended by section 40 of this Act, is amended as

follows.

          (2)      For subsection (1) there is substituted—

              “(1)                Where a person under the age of 18 years appears or is brought

5

before a magistrates’ court on an information charging him with an

indictable offence he shall, subject to sections 51 and 51A of the

Crime and Disorder Act 1998 and to sections 24A and 24B below, be

tried summarily.”

          (3)      Subsections (1A), (1B) and (2) are omitted.

10

  10       After section 24 there is inserted—

       “24A            Child or young person to indicate intention as to plea in certain cases

              (1)                             This section applies where—

                    (a)                   a person under the age of 18 years appears or is brought

before a magistrates’ court on an information charging him

15

with an offence other than one falling within section 51A(12)

of the Crime and Disorder Act 1998 (“the 1998 Act”); and

                    (b)                   but for the application of the following provisions of this

section, the court would be required at that stage, by virtue of

section 51(7) or (8) or 51A(3)(b), (4) or (5) of the 1998 Act to

20

determine, in relation to the offence, whether to send the

person to the Crown Court for trial (or to determine any

matter, the effect of which would be to determine whether he

is sent to the Crown Court for trial).

              (2)                             Where this section applies, the court shall, before proceeding to

25

make any such determination as is referred to in subsection (1)(b)

above (the “relevant determination”), follow the procedure set out in

this section.

              (3)             Everything that the court is required to do under the following

provisions of this section must be done with the accused person in

30

court.

              (4)             The court shall cause the charge to be written down, if this has not

already been done, and to be read to the accused.

              (5)             The court shall then explain to the accused in ordinary language that

he may indicate whether (if the offence were to proceed to trial) he

35

would plead guilty or not guilty, and that if he indicates that he

would plead guilty—

                    (a)                   the court must proceed as mentioned in subsection (7) below;

and

                    (b)                   (in cases where the offence is one mentioned in section 91(1)

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or (2) of the Powers of Criminal Courts (Sentencing) Act 2000)

he may be sent to the Crown Court for sentencing under

section 3B or (if applicable) 3C of that Act if the court is of

such opinion as is mentioned in subsection (2) of the

applicable section.

45

              (6)             The court shall then ask the accused whether (if the offence were to

proceed to trial) he would plead guilty or not guilty.

 

 

Criminal Justice Bill
Schedule 3 — Allocation of cases triable either way, and sending cases to the Crown Court etc
Part 1 — Principal amendments

    191

 

              (7)                             If the accused indicates that he would plead guilty, the court shall

proceed as if—

                    (a)                   the proceedings constituted from the beginning the summary

trial of the information; and

                    (b)                   section 9(1) above was complied with and he pleaded guilty

5

under it,

                              and, accordingly, the court shall not (and shall not be required to)

proceed to make the relevant determination or to proceed further

under section 51 or (as the case may be) section 51A of the 1998 Act

in relation to the offence.

10

              (8)                             If the accused indicates that he would plead not guilty, the court

shall proceed to make the relevant determination and this section

shall cease to apply.

              (9)                             If the accused in fact fails to indicate how he would plead, for the

purposes of this section he shall be taken to indicate that he would

15

plead not guilty.

              (10)                            Subject to subsection (7) above, the following shall not for any

purpose be taken to constitute the taking of a plea—

                    (a)                   asking the accused under this section whether (if the offence

were to proceed to trial) he would plead guilty or not guilty;

20

                    (b)                   an indication by the accused under this section of how he

would plead.

       24B            Intention as to plea by child or young person: absence of accused

              (1)             This section shall have effect where—

                    (a)                   a person under the age of 18 years appears or is brought

25

before a magistrates’ court on an information charging him

with an offence other than one falling within section 51A(12)

of the Crime and Disorder Act 1998;

                    (b)                   but for the application of the following provisions of this

section, the court would be required at that stage to make one

30

of the determinations referred to in paragraph (b) of section

24A(1) above (“the relevant determination”);

                    (c)                   the accused is represented by a legal representative;

                    (d)                   the court considers that by reason of the accused’s disorderly

conduct before the court it is not practicable for proceedings

35

under section 24A above to be conducted in his presence; and

                    (e)                   the court considers that it should proceed in the absence of

the accused.

              (2)             In such a case—

                    (a)                   the court shall cause the charge to be written down, if this has

40

not already been done, and to be read to the representative;

                    (b)                   the court shall ask the representative whether (if the offence

were to proceed to trial) the accused would plead guilty or

not guilty;

                    (c)                   if the representative indicates that the accused would plead

45

guilty the court shall proceed as if the proceedings

constituted from the beginning the summary trial of the

 

 

 
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