Mode of Trial
Criminal Practice > Mode of Trial
What Is Mode of Trial?
Candidates often misclassify offences as either-way when they should be treating them as summary only, causing them to apply the wrong procedural route — a frequent trap in SQE1. Understanding mode of trial is closely linked to bail decisions and pre-trial procedure rules.
The procedure involves a plea before venue hearing, followed (if the defendant pleads not guilty) by an allocation decision. The Magistrates' Court decides whether the case is suitable for summary trial, and if so, the defendant can still elect Crown Court trial.
Key Principles for SQE1
Summary Offences
Tried only in the Magistrates' Court. Examples include common assault, most driving offences, and minor criminal damage (under £5,000).
Indictable-Only Offences
Must be tried in the Crown Court. Examples include murder, manslaughter, robbery, and rape. The Magistrates' Court sends these directly to the Crown Court under s.51 Crime and Disorder Act 1998.
Either-Way Offences
Can be tried in either court. Examples include theft, burglary, ABH (s.47 Offences Against the Person Act 1861), and fraud.
Plea Before Venue
Under s.17A Magistrates' Courts Act 1980, the defendant is asked to indicate their plea. If they indicate a guilty plea, the case remains in the Magistrates' Court for sentencing (though it can be committed to the Crown Court for sentencing if the magistrates' powers are insufficient).
Allocation Procedure
Under s.19 MCA 1980, if the defendant indicates a not guilty plea (or gives no indication), the court considers whether the case is suitable for summary trial. It considers the nature and seriousness of the offence, its sentencing powers, and the allocation guideline issued by the Sentencing Council.
Defendant's Election
Even if the Magistrates' Court accepts jurisdiction, the defendant has the right to elect trial on indictment (jury trial in the Crown Court).
If the Magistrates' Court decides the case is not suitable for summary trial, it must send the case to the Crown Court — the defendant has no choice in this scenario.
Linked Either-Way and Summary Offences
Where an either-way offence is sent to the Crown Court, related summary offences may also be sent under certain conditions.
Exam tip
A common trap in mode of trial questions is forgetting the defendant's right to elect Crown Court trial for either-way offences — even when the magistrates accept jurisdiction. Pay attention to the distinction between the magistrates declining jurisdiction (case must go to Crown Court) and the defendant electing Crown Court trial. Know the key examples of each offence classification.
How This Appears in SQE1 Questions
SQE1 questions present an offence and ask you to identify the classification and the correct procedure. The key trap is forgetting the defendant's right to elect Crown Court trial for either-way offences — even when the magistrates accept jurisdiction. Questions also test the plea before venue procedure and whether a guilty indication keeps the case in the Magistrates' Court. Watch for the distinction between the magistrates declining jurisdiction (case must go to Crown Court) and the defendant electing Crown Court trial. This is one of the most commonly tested areas in SQE1.
Quick Example Scenario
A defendant is charged with theft (an either-way offence) of goods worth £3,000. At the plea before venue hearing, the defendant indicates a not guilty plea. The magistrates consider the allocation guideline and decide the case is suitable for summary trial. What happens next?
Because theft is an either-way offence and the magistrates have accepted jurisdiction, the defendant must be given the choice: accept summary trial or elect trial on indictment in the Crown Court. If the defendant elects Crown Court trial, the case is sent there regardless of the magistrates' view on suitability.
Common Mistakes Students Make
- Forgetting the defendant's right to elect Crown Court trial for either-way offences — the magistrates' acceptance of jurisdiction does not remove this right
- Confusing the plea before venue procedure with the allocation hearing — plea before venue comes first; allocation only happens if the defendant indicates not guilty
- Misclassifying offences — know the key examples of summary, either-way, and indictable-only offences
- Assuming that a guilty indication at plea before venue always means sentencing in the Magistrates' Court — the magistrates can commit to the Crown Court for sentencing if their powers are insufficient
Quick Summary
Mode of trial classification and procedure determines the trial venue:
- Summary only: Tried in Magistrates' Court only (e.g., common assault, minor criminal damage)
- Indictable only: Tried in Crown Court only (e.g., murder, manslaughter, robbery, rape) — sent under s.51 Crime and Disorder Act 1998
- Either-way: Can be tried in either court (e.g., theft, burglary, ABH, fraud)
- Plea before venue: Defendant asked to indicate plea first — guilty plea may result in Magistrates' Court sentencing
- Allocation: For either-way offences with not guilty plea, magistrates decide suitability using allocation guidelines
- Defendant's right to elect: For either-way offences, once magistrates accept jurisdiction, defendant can elect Crown Court trial
- Magistrates decline jurisdiction: Case must go to Crown Court — no defendant election in this scenario
- Guilty plea to either-way: Case remains in Magistrates' Court unless sent to Crown Court for sentencing
Determining Which Court Will Hear the Case
Want to test this now? Try a few SQE1-style questions below before moving on.
Test Yourself
Test yourself
Quick check questions based on this article.
Question 1
Scenario
A woman is charged with theft of goods valued at £3,500 from a retail store. The offence is triable either way. She has two previous convictions for shoplifting, both dealt with in the magistrates' court. She is employed as a teaching assistant and has strong community ties. At the plea before venue hearing, the woman indicates a not guilty plea. The prosecution submits that the case should be tried in the Crown Court, citing the value of the goods and the woman's previous convictions. The defence submits that the case is suitable for summary trial, noting the straightforward nature of the allegation and the woman's personal circumstances. The magistrates proceed to the allocation hearing and, having considered the Sentencing Council's allocation guidelines, determine that the case is suitable for summary trial. The court then offers the woman the choice of where her case will be tried. The woman's solicitor advises her on the advantages and disadvantages of each venue. The woman is concerned about the potential sentence if convicted. She has no assets of significant value and lives in rented accommodation.
Which of the following correctly states the maximum sentence the magistrates' court can impose if the woman is tried summarily and convicted?
Question 2
Scenario
A solicitor is representing a client who has been charged with an offence of assault occasioning actual bodily harm, which is triable either way. At the plea before venue hearing, the client instructs the solicitor that he wishes to plead not guilty. The solicitor advises the client about the allocation procedure and the choice between the magistrates' court and the Crown Court. The client asks the solicitor which venue would be better. The solicitor is aware that conviction rates in the Crown Court are generally lower for this type of offence, though sentencing powers are greater. The client has one previous conviction for a public order offence, for which he received a fine. The prosecution summary indicates that the complainant suffered a broken cheekbone after being punched once by the client during an argument at a sports ground. The prosecution does not oppose summary trial. The client has no history of failing to comply with court orders. The solicitor considers that the case falls within the magistrates' sentencing powers. The client tells the solicitor that he would prefer a jury trial because he believes a jury would be more sympathetic to his account of events.
What should the solicitor advise the client about the choice of trial venue?
Question 3
Scenario
A woman is charged with an offence of criminal damage contrary to s.1(1) Criminal Damage Act 1971. She is alleged to have scratched the paintwork of her neighbour's car using a key, causing damage valued at £350. The woman denies the offence. She appears before the magistrates' court for the first time. The prosecution states that the offence is an either-way offence. The woman's solicitor asks the court to proceed with the plea before venue procedure. The value of the damage has been confirmed by an independent assessor instructed by the prosecution. The woman has no previous convictions. She states she was at work at the time the damage is alleged to have occurred.
How should the magistrates' court classify this offence for the purposes of allocation?
Practice with full exam-style questions
Related Topics
- Criminal Practice: Complete Topic Guide
- Bail: Presumptions, Grounds for Refusal and Conditions
- Pre-Trial Procedure for SQE1
- Trial Procedure in Criminal Cases for SQE1
Practise Mode of Trial Questions for SQE1
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