The first hearing is the defendant's initial appearance before the magistrates' court after being charged with an offence. It is sometimes called the "first appearance" or "initial hearing." This is a critical stage because important decisions are made here that affect the rest of the case: will the defendant get bail? Where will the case be tried? Does the defendant need a representation order? You need to understand this process inside out.
At the first hearing, the court must deal with several key issues: the defendant's identity, the charges, the question of bail, and whether the defendant qualifies for legal aid. The case will also begin its journey through the criminal justice system, which depends entirely on how the offence is classified. Getting the classification wrong can send a case down the wrong procedural path, causing delays and potentially unfairness.
All criminal offences fall into one of three categories: summary offences, either-way offences, or indictable-only offences. The category determines which court has jurisdiction to try the case and what procedures apply. This classification is fundamental to criminal procedure. Before you can advise a client on what will happen at their first hearing, you need to know how their offence is classified.
Section 1 provides that a magistrates' court shall have jurisdiction to try all summary offences and all offences which are triable either-way. Section 6 sets out the procedure for determining the mode of trial for either-way offences. Offences that are triable only on indictment are dealt with under the Criminal Justice Act 1988.
Summary offences are the least serious category of criminal offence. They can only be tried in the magistrates' court. There is no right to a jury trial for a summary offence. These offences are typically minor motoring offences, low-level public order offences, and minor assaults. The magistrates' court has exclusive jurisdiction, meaning the Crown Court cannot try them.
For a single summary offence, the maximum sentence the magistrates can impose is 6 months' imprisonment (or 12 months for two or more either-way offences where they are dealt with together). They can also impose fines up to the statutory maximum, which is currently level 5 on the standard scale (unlimited fine for either-way offences). These limits are important because they help explain why some offences are classified as summary rather than either-way.
Think of summary offences as the "everyday" minor crimes. They are dealt with quickly and simply in the magistrates' court. No jury, no Crown Court, just magistrates (or a district judge). If the offence sounds minor and carries a short maximum sentence, it is probably summary.
Either-way offences are medium-level offences that can be tried either in the magistrates' court or in the Crown Court. The choice of venue depends on several factors, including the seriousness of the offence, the complexity of the case, and the defendant's election. At the first hearing, the court will go through the "plea before venue" procedure, where the defendant is asked to indicate their plea. If they plead guilty, the court will decide whether it can deal with the case itself or should send it to the Crown Court for sentence.
If the defendant pleads not guilty, the court must decide whether the case should stay in the magistrates' court or be sent to the Crown Court. This is called the "allocation" or "mode of trial" decision. The court considers the seriousness of the offence, whether the sentencing powers of the magistrates' court are sufficient, and any other relevant circumstances. The defendant also has the right to elect Crown Court trial.
Getting the classification right is crucial. If the prosecution charge an either-way offence as summary, the magistrates' sentencing powers will be limited to the summary maximum. If they charge it as either-way, the full range of sentencing powers is available. The classification also affects the defendant's right to a jury trial and the applicable procedural rules.
Indictable-only offences are the most serious criminal offences. They can ONLY be tried in the Crown Court before a judge and jury. The magistrates' court has no power to try them. At the first hearing, the magistrates' court performs a purely administrative function: it sends the case to the Crown Court and deals with the question of bail. The magistrates do not enter a plea or consider the evidence.
For indictable-only offences, the magistrates must send the case to the Crown Court under s.51 of the Crime and Disorder Act 1998. There is no allocation decision because the venue is fixed - it must be the Crown Court. The magistrates deal with bail and legal aid, and then the case is transferred. The defendant will first appear at the Crown Court for a plea and trial preparation hearing (PTPH).
| Feature | Summary | Either-Way | Indictable-Only |
|---|---|---|---|
| Court | Magistrates' only | Magistrates' or Crown Court | Crown Court only |
| Jury trial | No | Yes (if sent to Crown Court) | Yes |
| Maximum sentence | 6 months (12 for 2+ offences) | Up to Crown Court maximum | No limit |
| Mode of trial decision | None - always magistrates | Plea before venue + allocation | None - always Crown Court |
| Defendant election | No | Yes - can elect Crown Court | No |
| Seriousness | Minor | Medium | Serious |
| Example | Common assault, speeding | Theft, burglary, ABH | Murder, rape, robbery |
A representation order is a court order that grants a defendant free legal representation through the Legal Aid scheme. It pays for a solicitor and, if necessary, a barrister to represent the defendant in court. Without a representation order, the defendant would have to pay privately, which many cannot afford. As a defence solicitor, understanding when and how to get a representation order for your client is a core skill.
To get a representation order, the defendant must pass two tests. First, the "interests of justice" test - this looks at whether it is in the interests of justice for the defendant to have legal representation. Second, the "means test" - this looks at whether the defendant can afford to pay for their own representation. Both tests must be satisfied. If the interests of justice test is failed, it does not matter how little money the defendant has.
Under Schedule 1 to LASPO 2012, legal aid is granted in the interests of justice if any of the following apply: the defendant faces a prison sentence or loss of livelihood, they cannot understand the proceedings or cross-examine witnesses, they need to trace and interview witnesses, or it involves a point of law. The test is designed to ensure that people who genuinely need legal help can get it, especially when the consequences of conviction are serious.
When preparing a representation order application, focus on the specific criteria that apply to your client. If they face a custodial sentence, that alone satisfies the test. If not, look at the complexity of the case and whether they need help cross-examining witnesses.
The means test assesses whether the defendant is financially eligible for legal aid. Under LASPO 2012, the test considers the defendant's gross income and whether they pass an income threshold. If the defendant's disposable income (income after tax and certain allowances) is below a set threshold, they will qualify for free representation. If their income is above the threshold, they may still get legal aid but may have to pay a contribution.
The exact income thresholds change periodically, but the general principle is that defendants on benefits or low incomes will usually pass the means test. Defendants with higher incomes may need to make a financial contribution towards their legal costs. The means test is administered through the Legal Aid Agency and is usually completed online or on a paper form (the CRM7 form). The court cannot make a representation order unless it is satisfied that the means test has been passed.
Some defendants automatically pass the means test because they receive certain qualifying benefits, such as Universal Credit, Income Support, or Jobseeker's Allowance. This is called "passported" eligibility. If your client receives a qualifying benefit, you only need to show proof of the benefit award to satisfy the means test - no further financial assessment is needed.
The hearing begins with the court clerk reading out the charge(s) to the defendant. The defendant is asked whether they understand the charge. If they do not understand (for example, if English is not their first language or they have a learning difficulty), an interpreter or appropriate adult should be arranged. The charge must be clear and contain sufficient detail for the defendant to know what they are accused of.
If the offence is either-way, the court will ask the defendant to indicate their plea. This is called "plea before venue." If the defendant pleads guilty, the court decides whether it has sufficient sentencing powers to deal with the case or should commit the defendant to the Crown Court for sentence. If the defendant pleads not guilty, the court goes on to consider allocation - whether the case should be tried in the magistrates' court or sent to the Crown Court.
If the offence is indictable-only, the magistrates have no choice but to send the case to the Crown Court under s.51 CDA 1998. The defendant does not enter a plea at this stage. The magistrates deal with bail and legal aid, then the case is sent to the Crown Court. The defendant will appear at the Crown Court for a plea and trial preparation hearing (PTPH) at a later date.
If the offence is summary, the defendant is asked to enter their plea immediately. If they plead guilty, the court can proceed to sentence (either straight away or adjourn for reports). If they plead not guilty, the case is listed for trial in the magistrates' court. There is no allocation decision because the magistrates' court is the only court that can try the case.
At every first hearing, the court must consider bail (as discussed in the bail topic) and whether the defendant needs a representation order. These are separate but equally important issues. The defendant may be legally advised and represented at the first hearing under the "duty solicitor" scheme even before a representation order is formally granted.
Before the first hearing, you should meet with your client, preferably at the police station or court. You need to: take instructions on the circumstances of the offence, explain the charges and potential penalties, advise on whether to apply for bail, discuss the plea, and complete the representation order application if appropriate. Good preparation is essential. The first hearing happens quickly and you need to be ready to advise your client on the spot.
One of your most important jobs is advising your client on whether to plead guilty or not guilty. This requires a careful assessment of the evidence. If the evidence is overwhelming and the client accepts they did it, a guilty plea at the earliest opportunity can result in a significant reduction in sentence (up to one-third). If there is a realistic defence, you should advise the client to plead not guilty. You must not pressure your client either way - the decision is theirs.
For either-way offences, you need to advise your client on whether to elect Crown Court trial or accept trial in the magistrates' court. Factors to consider include: the likely sentence if convicted (if it exceeds the magistrates' powers, the Crown Court may be more appropriate), the complexity of the case, whether the defendant wants a jury trial, and the relative advantages of each venue (such as speed and procedure). This is a significant decision and your client needs clear, practical advice.
If your client is in custody, you will need to make a bail application at the first hearing. This means presenting arguments to the court about why your client should be released. You should address any Schedule 1 exceptions the prosecution might raise and suggest suitable conditions if necessary. A well-prepared bail application, with evidence of your client's ties to the community and sureties if available, gives your client the best chance of being released.
Defendants under 18 are dealt with in the youth court, not the adult magistrates' court. The youth court has different procedures and sentencing powers. Children and young people are entitled to legal aid without a means test if the interests of justice test is satisfied. An appropriate adult must be present during police interviews and at court for child defendants.
If your client has a mental health condition or learning disability that affects their ability to participate in the proceedings, you should raise this with the court. The court may need to consider whether the defendant is fit to plead and whether a medical report is required. Under the Criminal Procedure (Insanity) Act 1964, the court has powers to deal with defendants who are unfit to stand trial through hospital orders and other disposals.
A defendant who does not have a solicitor can still represent themselves. The court has a duty to ensure a fair trial, so the magistrates should explain the procedure clearly and ensure the defendant understands what is happening. However, self-representation is generally not advisable, especially for more serious offences. The duty solicitor scheme exists precisely to help unrepresented defendants at the first hearing.
Every magistrates' court has a duty solicitor available during court hours. The duty solicitor provides free, immediate legal advice to unrepresented defendants. They can represent the defendant at the first hearing even without a prior representation order. This is a vital safety net that ensures everyone has access to legal advice when they first appear in court.