Hearings: first appearances

Every case in the justice system start in the Magistrates’ Court. Once a case has been charged it will be sent to the Magistrate’s Court for a first appearance. These hearings usually occur very shortly after a case has been charged. Note that where a defendant is in custody, their case must be bought before a Magistrate to order their further detention once they have been charged.

The first appearance hearing is to determine two issues: whether the defendant wants to indicate a plea of guilty or not guilty and where the case will eventually be heard. The second of these questions is known as allocation.

If your client indicates a not guilty plea at the Magistrates’ Court then the bench will go on to consider allocation. If the client indicates a guilty plea then the Magistrates may proceed to sentence the defendant straight away, if they consider that their sentencing powers are adequate.

In order to address the Court on allocation you will need to know whether the offence you are dealing with is summary only, indictable only or either way. Summary only offences can only be heard in the Magistrates’ Court. Either way cases can be heard in either the Magistrates’ Court or the Crown Court. Indictable only offences can only be heard in the Crown Court. If your case is either summary only or indictable only then the issue of allocation is moot – because the law determines where the case has to be heard.

Assuming you are dealing with an either way offence then the Magistrates will have to determine whether they can accept jurisdiction – in other words, can they hear the case or should it be sent to the Crown Court. This will depend on whether they consider their sentencing powers to be adequate.

Magistrates can sentence defendants to six months for a single either way offence. They can sentence to a total of 12 months for more than one either way offence. Therefore, if the Magistrates consider there to be a risk of a sentence of 12 months being imposed for a single offence, then the case will have to be sent to the Crown Court.

In the event that the Magistrates accept jurisdiction, the defendant will  be asked whether he wishes to exercise their right to be tried in the Crown Court. If they do, then the case will be sent to the Crown Court. If the defendant is happy to be tried by the Magistrates, then the hearing will stay in the Magistrates Court and directions will be set to assist in the preparation of the trial. This will involve completing a case management form, which will allow the Court to consider important matters about the preparation of the case. These include: the time estimate, how many witnesses will be required and whether or not any additional steps need to be taken prior to the trial date to help the case run smoothly. 

An example of a case management form can be found here.

The allocation process is governed by section 19 of the Magistrates’ Court Act:

Section 19 Magistrates Court Act 1980

Decision as to allocation

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

(b) any representations made by the prosecution or the accused under subsection (2)(b) above,

and shall have regard to any allocation guidelines (or revised allocation guidelines) issued as definitive guidelines under section 170 of the Criminal Justice Act 2003.

(4) Where—

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

(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 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.

Section 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 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 tried on indictment; and

(c) that if he is tried summarily and is convicted by the court, he may be committed for sentence to the Crown Court under section 14 or (if applicable) 15 of the Sentencing Code if the court is of such opinion as is mentioned in subsection (1)(b) of the applicable section.

In specific circumstances, the Court may send the case to the Crown Court under an alternative procedure. This is contained in section 50A of the 1998 Crime and Disorder Act. This applies where

  • Notice has been given in serious or complex fraud cases by the Director of Public Prosecutions.
  • In cases involving children where notice has been given under section 52 of the Crime and Disorder Act 1998;
  • Where there is an either way offence related to an offence triable only in indictment or where the offences is covered by a notice under section 51B or C of the CDA 1998.  
  • Where there is an either way offence related to an offence triable only on indictment in respect of which there is another defendant being sent to the Crown Court.

Section 51 of the 1998 Crime and Disorder Act

Section 51 is used where the defendant is charged with an indictable only offence. The section states:

(1) Where an adult appears or is brought before a magistrates’ court (“the court”) charged with an offence and any of the conditions mentioned in subsection (2) below is satisfied, the court shall send him forthwith to the Crown Court for trial for the offence.

(2) Those conditions are—

(a) that the offence is an offence triable only on indictment other than one in respect of which notice has been given under section 51B or 51C below;

This means that where a defendant is before the Court for an indictable only offence, he will be sent straight to the Crown Court for trial. The issue of allocation will not arise in these cases.

Practical approaches to the first appearance

Although some of the law around first appearances can seem very complex, in practice the hearings are often quite straight forward. Here are some practical steps you can follow to prepare for a first appearance:

  1. Request the initial details of the prosecution case. This is a bundle of material which the prosecution are obliged to serve in advance of the first appearance in order to allow you to perform your role properly. This material is usually obtained by emailing the Crown Prosecution Service.
  2. Research the offence your client is charged with. Consider the strength of the evidence.
  3. Attend on your client and take instructions. Explain what the Court is here to consider. Explain how it will make its decision.
  4. Advise on credit for a guilty plea. Advise on issues related to allocation.
  5. Attend Court and inform them whether you are ready to proceed. If there is to be a not guilty plea, then complete the case management form. Consider your clients instructions and whether any witnesses can be agreed.
  6. Address the Court on allocation and make an application for bail as necessary.

Once the hearing is over you will need to write to your client to explain the outcome, including any  new Court dates.

You may also need to consider how the case will be funded. You may need to apply for a representation order, meaning that your client’s case will be funded by legal aid.