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What is the Difference Between a Summary and an Indictable Offence in the UK?

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Are you wondering what the terms summary offence, indictable offence, and either way offence mean in the UK? Perhaps you have been given notice of an indictment hearing and you would like to understand what this means for your case. Or maybe you have been charged with an either way offence, and you are trying to understand what your options are and what the choice of court could mean for your case.

This article explores the difference between summary, indictable, and either way offences under the criminal law of England and Wales. Slightly different rules apply for Scotland and Northern Ireland. It also gives examples of summary offences and indictable offences. You should walk away with a clear understanding of what these terms mean, and their relevance to your case.

What is a summary offence in England and Wales?

A summary only offence is an offence that is usually tried in the Magistrates’ Court. There is an exception to this rule when a person is tried for a summary only offence for which they could receive a prison sentence or disqualification from driving, which is linked to an indictable only offence. In these circumstances, both cases may be heard in the Crown Court.

Summary offences also have a role to play in sentencing youth offenders under the age of 18. Children and young people will be tried summarily unless specific circumstances apply, which mean they should be tried in the Crown Court. These include if:

  • they have been charged with homicide, a violent or sexual offence for which an adult could receive a 10-year sentence or more, or a firearms offence; or
  • they are being tried alongside a person over the age of 17, and it is in the interests of justice that their cases should be heard together.

Examples of summary offences

Examples of summary only offences include:

What is an indictable offence in England and Wales?

Indictable only offences can only be heard in the Crown Court. These are the most serious types of offences.

If you are charged with a criminal offence, you will first appear in the Magistrates’ Court. After that, if you are charged with an indictable offence, it will be ‘sent’ or ‘escalated’ to the Crown Court.

The law governing this process is set out at Section 51 of the Crime and Disorder Act 1988.

The Magistrate will ask you if you intend to plead guilty in the Crown Court. The procedure then depends on your plea. If you indicate that you will plead guilty, the next step is that you will have to confirm your plea to the Crown Court. The Crown Court can then proceed to consider what sentence to give to you. If you tell the Magistrates’ Court that you intend to plead not guilty, or if you elect to remain silent, the Crown Court will list the case for a case management hearing. This is a hearing that determines the next steps in your case.

When Parliament passes a new criminal law, the statute will usually make it clear whether the offence is indictable only. For example, the offence of corporate manslaughter is set out at Section 5(a) of the Corporate Manslaughter and Homicide Act 2007. Section 6 makes it clear that this offence is indictable only, as it states that a person charged with this offence is liable to conviction on indictment.

For common law offences such as murder and manslaughter, there is no statute to which to refer. However, a criminal defence solicitor will be able to advise you whether the offence that you have been accused of is indictable only. In general, indictable offences tend to be offences that can result in a custodial sentence, because the Crown Court has greater sentencing powers than the Magistrates’ Court.

Examples of indictable offences

Indictable offences include:

Is theft an indictable offence?

Theft is not an indictable offence. Theft is an either way offence. This means that if you are charged with theft, you will have the option to elect whether your case is heard in the Magistrates’ Court or the Crown Court. The exception to this is low value shoplifting, which is a summary only offence.

Is assault an indictable offence?

Common assault is not an indictable offence; it is a summary only offence. This means that it must be brought in the Magistrates’ Court. In addition, the charge of common assault must be laid within 6 months of the incident from which the charge arises.

Assault occasioning actual bodily harm, which is set out at Section 47 of the Offences Against the Person Act 1861, is an either way offence. Meanwhile, the more serious offences of assault occasioning grievous bodily harm under Section 20 of the Offences Against the Person Act 1861, and grievous bodily harm with intent under Section 18 of the Offences Against the Person Act 1861, are indictable only offences.

Is robbery an indictable offence?

Robbery, which is set out at Section 8(1) of the Theft Act 1968 Act, is an indictable only offence. This means that it can only be tried in the Crown Court. By contrast, burglary, which is set out at Section 9 of the Theft Act 1968, is an either way offence unless it involves violence or the threat of violence or the intention to commit an indictable offence, in which case it is triable only on indictment. This set out at Section 28 of Schedule 1 of the Theft Act 1968.

What is an either way offence in England and Wales?

An either way offence is an offence which, depending on the circumstances, may be heard either in the Magistrates’ Court or in the Crown Court. The decision is made in part by the Magistrate and in part by you, the defendant.

It works like this:

  • Firstly, the court must decide whether it feels that its sentencing powers are adequate to give the defendant an appropriate sentence if they are convicted. Magistrates’ Courts can only order imprisonment for up to 6 months for each offence that a person stands accused of, and for no more than a total of 12 months for a combination of more than one offence. They can also order community sentences, bans, and fines.
  • Secondly, the court must consider whether there are any unusual legal, procedural, or factual complexities to the case that would make it unsuitable to be heard in the Magistrates’ Court. For example, if experts need to be called and cross-examined, this suggests that the matter should be heard in the Crown Court.

If the court decides that, on the facts of the case, either it is too complex for the Magistrates’ Court, or it goes beyond the sentencing powers of the Magistrates’ Court, they must send the case to be heard in the Crown Court. Where neither of these factors apply, the choice then lies with the defendant, who must elect whether their case is heard in the Crown Court or in the Magistrates’ Court.

Should you elect for a trial by jury?

If you are a defendant charged with an either way offence, deciding which court your case is heard in is a matter of considerable strategic significance to your case. This is something that you should discuss with your criminal defence solicitor.

There are several factors to take into consideration. The judges in Crown Courts are legal professionals, whereas many cases in Magistrates’ Courts are heard by Magistrates, who are volunteers that are not actually legally trained. This means that lawyers will often advise that legally complex cases are better off heard in the Crown Court.

Another important, and difficult call you will have to make is whether you feel that a jury of ordinary men and women will make a fairer decision on your case than a Magistrate would. This depends a great deal on your perception of whether a jury would be sympathetic towards you, and the case that you intend to put forward. Whilst you could face a harsher sentence in the Crown Court, the conviction rate in the Magistrates’ Court is much higher than the Crown Court. This suggests that juries are more prone to doubt whether to convict a defendant, compared with the District Judges and Magistrates who preside in Magistrates’ courts, who are more likely to doubt the credibility of the defendant’s case.

Where to get further help

If you have been charged with an offence, contact a criminal defence solicitor today. At Stuart Miller Solicitors, our experienced team is ready to advise you whether you are facing a summary only, either way, or indictable offence. Obtaining the best possible outcome for our clients is of utmost important to us, so, if you think we can help, please contact us today for a free, no obligation consultation.


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