Plea Before Venue and Allocation — SQE1 FLK2 Criminal Law and Practice

Your client is charged with stealing £3,000 from his employer over six months. The evidence is strong, he accepts he did it, and he asks you a simple question. What difference does it make if I say guilty this morning rather than at trial? Work it through. The bench assess the right sentence at 12 months. Indicate guilty today and he serves 8. Four months, for the timing of one word.

This is Plea Before Venue and Allocation, and it is the hinge of an either-way case. Where it will be tried, who decides, and what the defendant gets for deciding early. Two procedures sit back to back here and candidates run them together. Keep your client in mind. We are coming back for him.

Here is the route. Plea before venue first: what the court must say, and what an indication actually does. Then the guilty road, sentencing powers and committal for sentence. Then the not guilty road, which is allocation. Then advising on venue, and the election. Then sending to the Crown Court. And last, the either-way charges that never go through allocation at all.

Start with what this is for. An either-way offence can be tried in either court. Theft, assault occasioning actual bodily harm, handling stolen goods. Before anyone decides where, the defendant is asked to indicate how he would plead. That is plea before venue. Indicate guilty and there is nothing to try, so venue never arises. Indicate not guilty and the court must decide where the trial happens.

The procedure is s 17A of the Magistrates' Courts Act 1980, inserted by the Criminal Procedure and Investigations Act 1996. The allocation and sending scheme was later reformed by the Criminal Justice Act 2003. It applies to a defendant aged 18 or over charged with an either-way offence. The charge is read, and the court must explain what is about to happen.

Learn that explanation, because it is examined. The court must make sure he understands the nature of the offence. That he may indicate guilty or not guilty. That if he indicates guilty, the court proceeds as if he had pleaded guilty, so he may be sentenced there and then. And the part most often forgotten: that he may still be committed to the Crown Court for sentence if the magistrates' powers turn out to be inadequate.

Now a question. Is his right to elect Crown Court trial part of that explanation? No. It is not mentioned at this stage at all. The right to elect comes later, at allocation, under s 20, and only if the court has first found summary trial suitable. Get the order right and a whole family of questions falls open.

And it must come from him. The court asks the accused how he would plead, not his lawyer, and his consent to summary trial must likewise be given personally. These requirements are mandatory. Put the questions to the solicitor of a man standing quietly in the dock, and the magistrates never acquire jurisdiction to try him summarily. The conviction is a nullity.

There are two statutory departures, and only two. Where a represented defendant's disorderly conduct means the questions are put to his representative instead, under s 17B. And where the court proceeds in a represented defendant's absence, under s 23, if his representative signifies consent and the court is satisfied there is good reason for the absence. An emergency operation with a hospital letter is a paradigm good reason, and it beats losing a month to an adjournment.

One more thing about the indication itself. It is not a formal plea on an indictment. But it is not costless either. Under s 17A(6) the court proceeds as if he had pleaded guilty, and that has consequences.

Suppose your client comes back before sentence with a new solicitor, and an account nobody had taken from him before, one which, if true, denies dishonesty altogether. Can he take the indication back? He can ask.

A magistrates' court keeps a discretion to allow a guilty plea to be withdrawn at any time before it finally disposes of the case by sentence. That account is exactly the material on which the discretion is exercised. But it is an application, not a right. A late or unexplained change of heart may be refused, and it costs credit.

Take the guilty road first. The court must ask one question. Are our sentencing powers enough? Since 18 November 2024 the magistrates can impose 12 months for a single either-way offence, and 12 months in aggregate when dealing with two or more either-way offences together. 6 months remains the maximum for a single summary-only offence.

If the likely sentence fits, the court accepts the plea and sentences him, and that is where the credit arrives. Plead guilty at the first stage of proceedings, which for an either-way offence is the hearing where he is asked to indicate, and the reduction is up to one third. So his 12 months becomes 8.

Two things about that credit. It rewards the plea itself, so denying the offence in interview does not cut it down. And it is applied to the sentence the court has already assessed as appropriate. It is not a device for shrinking an over-large sentence until it fits inside the magistrates' powers.

Which brings the second road. Change the facts. A man indicates guilty to burglary of a dwelling. A planned night-time raid on an occupied house, jewellery and a car taken, three previous convictions for the same thing. Applying the guideline the bench put the right sentence, before any credit, at about three years. Sentence him, or send him somewhere? Neither of those, quite.

They commit him to the Crown Court for sentence, under s 14 of the Sentencing Act 2020. Not sent for trial, because he has admitted it and there is nothing to try. Committed for sentence. And his indication travels with him. He is sentenced in the Crown Court on that plea, and keeps the credit for indicating at the first stage. Which is why making it was still worth doing.

Now the not guilty road, which is allocation. Under ss 19 and 20 of the 1980 Act the court decides whether the offence should be tried summarily or sent to the Crown Court. The prosecution outlines the facts. Not a full opening, a summary: the key facts, the defendant's record, the number of witnesses, any expert evidence. The defence makes representations too.

Section 19 tells the court what to weigh. The nature of the case and the seriousness of the offence, which means culpability and harm. Whether the circumstances make it more suitable for one mode of trial than the other. Whether its own sentencing powers are adequate for the likely sentence. And any other relevant circumstances, which is where complexity and expert evidence come in.

If the court finds summary trial suitable, then and only then the defendant is told he may elect trial at the Crown Court. Section 20. Even where the magistrates are content to keep it, he can insist on a jury, and the case is sent. And once he elects, that is that. It cannot be sent back down for trial. Tell him so before he decides.

One complication where two adults are jointly charged. If one of them elects Crown Court trial, the joint charge travels together. The other is sent up with him, so that a single jury tries the joint allegation. Consenting to summary trial does not save him once his co-defendant has elected.

So how do you advise him? Magistrates first. It is faster, cases are listed sooner. Less formal, which matters to a frightened client. Cheaper, with usually no barrister needed. Simpler procedure, fewer pre-trial directions. And magistrates may be more lenient with a first-time offender.

Crown Court the other way. A jury. Greater sentencing powers if he is convicted, which cuts against him. More experienced judges for complex cases. A fuller disclosure process and a fuller range of evidence rules, so the prosecution can be challenged more thoroughly. Longer wait, higher cost, more formality.

And then the factor that decides most real cases. Does this turn on credibility? If the defence is I did not do it, and it comes down to whose account is believed, a jury is less predictable, which can work in his favour. Magistrates hear these cases every day and may tend to believe police evidence. That is a practical judgement, and it is his decision, not yours. Explain it without jargon.

Criminal damage has a rule of its own. Say the court cannot tell whether the value involved is more or less than £5,000. Section 22 then requires it to explain the position, and to ask whether he consents to summary trial.

Consent, and he is tried summarily with the reduced maximum for low-value criminal damage. Three months' custody, or a £2,500 fine. And he cannot be committed to the Crown Court for a greater sentence. Refuse, and it is dealt with as an ordinary either-way offence. A genuine tactical choice: the chance of a jury, traded for a hard cap on sentence.

When the case does go up, it is sent under s 51(2)(b) of the Crime and Disorder Act 1998, whether because the court declined summary trial or because he elected. There is no committal hearing any more. Nobody asks whether there is a case to answer. The court simply sends: the charge, any written statements and exhibits, his record, and the representations made.

The Crown Court then lists a plea and trial preparation hearing, and it should be listed within 28 days of sending. That is where the formal plea is entered. Guilty, and the court may move to sentence. Not guilty, and it sets the timetable: disclosure, defence statement, trial date.

Indictable-only offences never touch any of this. Murder, robbery, rape. Under s 51 of the 1998 Act they go straight up. The magistrates make no assessment of the evidence at all. They send the documents, bail him or remand him in custody, and he appears at the Crown Court.

Which leaves the case that catches people. What happens to an either-way charge that sits alongside an indictable-only one? Section 50A of the 1998 Act fixes the order in which the court takes its questions. The duty to send comes first, and allocation arises only for whatever is left over.

So the power is in s 51 itself. Section 51(1) sends the indictable-only offence. Section 51(3) requires the court to send with it any related either-way offence he is charged with. Robbery, and dangerous driving in the getaway car: the driving arises from the same incident, so it is related, and it travels with the robbery. No allocation. Nobody ever asks whether it might have been suitable for summary trial.

A related summary offence can go too, but only if it is punishable with imprisonment or carries disqualification. An unrelated summary charge stays where it is. The whole point is to stop related charges being split between two courts.

Last piece. The magistrates accept jurisdiction, and then the prosecution discover the defendant has fifteen previous convictions nobody mentioned. Can the bench change their minds? Not on their own motion, no.

Section 25 of the 1980 Act lets an allocation decision be revisited, and three conditions matter. The application must be made by the prosecution. It must be made before the summary trial begins, and before any other application or issue in that trial is dealt with. And the court may grant it only if satisfied that the sentence a magistrates' court would have power to impose would be inadequate. A far worse record than the court was told about is exactly what the section is for.

A word on how SQE1 tests this. You will not be asked to recall a case name or a section number. You get a scenario, five answers, and one instruction: pick the best. And this topic has almost no case law in it. It runs on statute, so the sections are the pegs.

If you keep only three. Section 17A of the 1980 Act, for what the court must explain and what an indication does. Sections 19 and 20, for who decides venue and when the right to elect arrives. And s 51(3) with s 50A, for the either-way charge that is sent without ever being allocated.

Five traps. One: committing for sentence is not sending for trial. After a guilty indication the defendant goes up under s 14 of the Sentencing Act 2020 to be sentenced, not to be tried. If an answer says sent for trial after an admission, it is wrong.

Two: the right to elect is not part of the plea before venue explanation. It arrives at allocation, under s 20, and only after the court has found summary trial suitable.

Three: there is no right to withdraw an indication. The court has a discretion, exercised before it disposes of the case, and it may refuse. Four: election is final. Once he chooses a jury the case cannot come back down for trial.

And five: the magistrates cannot reopen allocation of their own motion. Section 25 is the prosecution's application, made before the summary trial begins, and granted only if the sentence the magistrates could impose would be inadequate.

Quick check. A man appears before the magistrates charged with robbery of a shop, which is indictable only, and with having an offensive weapon in a public place, which is either way. The weapon is the knife the robbery was committed with. He indicates not guilty to both. His solicitor asks the bench to keep the weapon charge for summary trial, calling it a simple matter.

How should the magistrates deal with the weapon charge? Three candidate answers. One: it must be sent to the Crown Court with the robbery, without any allocation decision. Two: it must go through the allocation procedure, so venue is decided on the usual factors. Three: it must be the subject of a separate election by the man, independently of the robbery. Pause here if you want a moment.

The answer is one. Robbery is indictable only, so he must be sent for it under s 51(1). Section 51(3) requires the court to send with it any related either-way offence. The weapon charge arises out of the very facts of the robbery, so it is related and it travels.

Why the others fail. Option two forgets s 50A: allocation is reached only for an either-way offence that does not have to be sent, and this one does. Option three offers a right that has not arisen. Election belongs to a defendant whose case the court has found suitable for summary trial, and this one must be sent.

Five things to take away. One: your client's four months. Credit of up to one third at the first stage of proceedings, applied to the sentence the court has already assessed. Two: a guilty indication makes the court proceed as if he had pleaded guilty, and taking it back is an application, not a right.

Three: if the powers are not enough, he is committed for sentence under s 14 of the Sentencing Act 2020, and his credit goes with him. Four: allocation is s 19, election is s 20, it arrives only after the court finds summary trial suitable, and it is final. Five: an either-way charge related to an indictable-only one is sent under s 51(3), and never allocated at all.

That is Plea Before Venue and Allocation. Next time, Case Management and Disclosure.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.