Tuesday, April 07, 2009
Send It Up?
Mode of Trial is a decision that every magistrate will be familiar with. Many offences (drink-drive, drunk in the street, common assault and suchlike) can only be dealt with by magistrates and there is no option of a jury trial. Heavyweight crimes such as murder, rape and so on can only be dealt with in the higher court, and nowadays these are swiftly passed upstairs under the so-called 'section 51' procedure that leaves the Crown Court to sort out all the case management issues.
Mode of Trial arises in the large group of offences in the middle, known as 'either-way' which means that they may be tried in either the Mags' or the Crown Court. These include theft, ABH, drug dealing, and many others. The Bench will hear the prosecution version of the facts, and the prosecutor will add his view as to the correct venue, as will the defence (at which point his client might decide to elect jury trial anyway, of which more later). Many decisions almost make themselves. Theft can involve a chocolate bar or a Ferrari and the guideline cut-off for 'high value' of £10,000 gives a steer to the court. All factors have to be considered though, so something like a vulnerable victim, planned action over time, or professional hallmarks may push a case over the line and on its way to the chap in a wig and a purple dressing gown even if the value is relatively modest.
Assuming that the defendant doesn't elect, the bench has to ask itself whether the offence is likely to be worth, on conviction, more than the JPs' maximum sentence. For two either-way offences that maximum is 12 months after trial, or 8 months after credit for a plea. For a single offence it it half that, although it's possible to give the full six months for a plea, the credit being reflected by the fact that the case is not being sent to the Crown Court.
This Times piece points out that a substantial number of cases sent up by magistrates are sentenced within the lower court's powers. Sending the case upstairs causes delay, sometimes stretching to months, and greatly increases costs. Sometimes the CPS ask for a case to go up when there is little or no chance of a sentence in excess of JPs' powers (eg a 2-handed theft from employer valued at £400) and sometimes they invite us to accept a case that we think is far too serious for us, so up it goes. My personal inclination is to accept a case if we can, even if it's borderline. The resident Judge at our local Crown Court is in favour of that, which I find pretty persuasive.