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What are triable either way offences?

If you have been charged with an either-way offence, you may be asking yourself what ‘triable either-way’ actually means. Oftentimes, legal jargon can add to the stress of being involved in a criminal trial.

It is natural to want to understand as much as possible about what you are up against so that you can prepare your case accordingly and give appropriate instructions to your criminal defence solicitor. You might wonder how an either-way offence differs from a summary offence or an indictable offence. Perhaps you are asking yourself if you get to choose where the case is held, or if this is a matter for the Magistrate to decide at your first appearance. You might also be wondering whether you should elect for your case to be heard in the Magistrate’s Court or the Crown Court. These are important questions that we set out to explore in this article. If you have further questions, know that there is no substitute for tailored legal advice from a criminal defence solicitor.

What are the three types of offences?

Criminal offences in England and Wales are split into three categories: summary only offences, either-way offences, and indictable only offences. These offence categories determine which court in which a case will be heard.

Summary offences

Summary offences are less serious offences that are usually heard in the Magistrate’s Court. However, a summary offence can be tried in the Crown Court, if:

  • it is linked to an indictable offence; and
  • it could be punishable by a prison sentence or a disqualification from driving.

As a general principle, young offenders under the age of 18 should be tried summarily wherever possible. This means that their case will usually be heard in the Magistrate’s Court. However, young offenders accused of serious offences such as murder or other violent or sexual offences will have to go to the Crown Court. They may also have to go to the Crown Court where they commit an offence with another defendant aged over the age of 17, and it is determined that it is in the interests of justice for their cases to be heard together.

Summary offence examples

Summary offences are usually petty offences. They include:

Either-way offences

An either-way offence, also known as an indictable offence, may be heard either in the Magistrate’s Court or in the Crown Court. The defendant will initially appear in the Magistrate’s Court. Both the defendant, and the Magistrate have the option to request that the case is transferred to the Crown Court.

The Magistrate will consider whether their sentencing powers are adequate to give the defendant a just sentence, if they are convicted. The Magistrate will also assess whether the case has any particular complexities that would render it unsuitable to be heard in the Magistrate’s Court (for example, whether expert witness evidence is required).

If the Magistrate considers they have sufficient powers to hear the case, the decision then lies with the defendant as to whether they want their case to be heard by the Magistrate or in the Crown Court before a jury.

Appearing in the Crown Court can be daunting, and the court’s sentencing powers mean that if you are convicted you may face a heftier sentence. On the other hand, evidence suggests that you are less likely to be convicted if you appear in the Crown Court. A jury of ordinary men and women is more likely to give a defendant the benefit of the doubt, compared with a Magistrate who may be jaded by many years of hearing similar cases.

Either-way offence examples

Either-way offences are crimes that can be more or less serious depending on the circumstances of the offence. For example:

  • Theft, under the Theft Act 1968; the value of the items stolen will be an important determining factor in whether the offence is summary only or indictable.
  • Possession of drugs, under the Misuse of Drugs Act 1971; the quantity of drugs is likely to determine in which court the offence is heard.

Indictable only offences

Indictable only offences must be heard in the Crown Court. The Crown Court has greater sentencing powers than the Magistrate’s Court. An indictment is a formal notice issued by the Crown Prosecution Service (CPS) notifying the defendant of the criminal offence for which they have been accused. Indictable offences are the most serious category of offence. Often the punishment for an indictable only offence is a sentence of imprisonment. However, it could also be a substantial fine.

If you are charged with an indictable offence, you will first appear in the Magistrate’s Court. Once you have given your plea, your case will then be transferred to the Crown Court. If you plead guilty, you will be transferred for sentencing. If you plead not guilty, your case will be transferred for trial.

Indictable only examples

The following are examples of indictable offences:

Who decides in which court an either-way offence case is heard?

Both the Magistrate’s Court and the defendant have a role to play in deciding where the case will be heard. The court will consider whether:

  • it has adequate sentencing powers
  • if the case has issues of complexity that make it more suitable to be heard in the Crown Court

If the Magistrate’s Court concludes that it is capable of hearing the case, the defendant will be asked to elect whether they would prefer the case to be heard by the Magistrate or before a jury in the Crown Court.

What time limits are applicable to either-way offences?

Unlike summary only offences where there is general rule that there is  a time limit of twelve months from the criminal act for the prosecution to commence, there is no specific time limit for either-way offences. In some cases, such as historical sexual offences, a prosecution can be brought many years after the events in question. These types of cases tend to bring with them evidential difficulties, which means they are more likely to be heard in the Crown Court.

What are the maximum sentences used in either-way offences?

The maximum sentence that the Magistrate’s Court can give for a single offence is twelve months imprisonment. The Magistrate’s Court can sentence a person to up to 12 months’ imprisonment in total as a cumulation of more than one sentence for different charges. The Magistrate’s Court can also issue other punitive measures such as bans, fines, and community service orders. In order for the defendant to receive a sentence that is heftier that these maximum sentences, the case must be transferred to the Crown Court.

In statutes containing either-way offences, two different maximum sentences are usually stated. One for if the offence is tried summarily, and another for if the offence is tried on indictment. For example, fraud is an either-way offence. Section 1(3) of the Fraud Act 2006 states that:

A person who is guilty of fraud is liable:

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both);

(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine (or to both).

This means that if the fraud offence is tried in the Magistrate’s Court, the maximum sentence is a term not exceeding 12 months. The maximum fine that can be given in the Magistrate’s Court is £5000, therefore this would be the maximum fine if the offence was tried summarily. By contrast, in the Crown Court, there is no limit on the size of the fine that can be issued, and the defendant could be imprisoned for up to 10 years.

Where to get further help

Either-way offences, particularly if they are heard on indictment in the Crown Court, can result in substantial sentences of imprisonment. Therefore, if you have been charged with an either-way offence, seek the advice of a criminal defence solicitor as soon as possible. At Stuart Miller Solicitors, we are here to help. We can advise you of the pros and cons of your case being heard in the Magistrate’s Court or in the Crown Court. This advice depends on the circumstances of your case, so there is no substitute for a consultation with an experienced solicitor. Contact us for a no obligation consultation today.


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