Criminal Defence Articles

What is an indictable offence in the UK?

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Have you been accused of an indictable offence? If so, you are probably feeling anxious and uncertain because it is not immediately obvious what this term means. You might well be asking yourself what is an indictable offence, and, importantly, what does it mean for you and your case? Breaking down the legal jargon, this article starts by explaining what an indictable offence is and how to pronounce it before then exploring the difference between summary, indictable, and ‘either way’ offences. Examples of indictable offences are detailed alongside information on where to get more help.


What is an indictable offence in the UK?

Indictable only offences are those that must be tried in the Crown Court. Indictable is pronounced ‘in dai tuh bl’ – the ‘c’ is not pronounced. Sentencing for indictable offences often involves a substantial prison sentence. Therefore, if you have been accused of an indictable offence, you should seek legal advice without delay.

In the criminal justice system, there are two types of courts where criminal trials usually take place, the magistrates’ court, and the Crown Court. In all criminal cases, the defendant must first appear in the magistrates’ court. After that, more serious cases are sent to the Crown Court, and less serious cases remain in the magistrates’ court.

If the case relates to an indictable only offence, it must be sent to the Crown Court immediately by the magistrate. This process is set out in Section 51 of the Crime and Disorder Act 1988. The magistrate will ask the defendant if they intend to plead guilty in the Crown Court. If the defendant indicates that they will plead guilty, they will then have to confirm their plea to the Crown Court. The Crown Court can then proceed to deal with sentencing.

If, on the other hand, the defendant says they intend to plead not guilty, or remains silent, the Crown Court will list the case for a case management hearing. This is a hearing that determines the next steps in the case.

How do you know if an offence is indictable only?

Where the crime is set out in statute, the statute will stipulate whether the offence is indictable only. For example, the offence of rape is set out in the Sexual Offences Act 2003. Section 1(4) of the Act states, ‘A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.’

Where the offence is a common law offence, which means that it has been formed through judgments of the courts over the years rather than being written in a statute, there is, of course, no statute to which to refer. Indictable offences arising from common law include murder and manslaughter. If you are not sure of whether the offence that you have been accused of is indictable only, seek the advice of a criminal defence solicitor.

What is the difference between summary only, indictable only, and ‘either way’ offences?

Summary only offences

A summary only offence is an offence that is usually tried in the magistrates’ court. By contrast, indictable only offences are more serious offences, which must be tried in the Crown Court.

Summary only offences are less serious offences, such as shoplifting, common assault, most motoring offences e.g. driving without insurance, and criminal damage, where the damage is worth less than £5000. In addition, where a Defendant is under the age of 18, they will be tried summarily unless they have been charged with homicide, a violent or sexual offence for which an adult could receive a 10 year sentence or more, 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. If any of these circumstances apply, the person under 18 will be tried on indictment in the Crown Court.

There are exceptions to these rules 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 indictable only offence. In these circumstances, both cases may be heard in the Crown Court.

Either way offences

An either way offence is an offence that can be heard either in the magistrates’ court or in the Crown Court. The magistrate must decide whether to keep the case or send it to the Crown Court. Magistrates can only order imprisonment for up to six months for each offence that a person stands accused of, and no more than a total of 12 months for a combination of more than one offence. Magistrates can also order community sentences, bans, and fines. Therefore, when deciding whether they are able to try an ‘either way’ case summarily, or send it to the Crown Court, the magistrate must decide whether their sentencing powers are adequate in the circumstances. They must also consider whether there are any unusual legal, procedural, or factual complexities.

If a magistrate believes that the defendant is likely to receive a longer prison sentence than they have the power to order, or that the case is complex, they must send the case to be heard in the Crown Court. If the magistrate believes that they have adequate sentencing power to hear the case, they must then give the defendant the choice of whether the case is heard in the Crown Court or the magistrates’ court. If you are facing this difficult decision, speak to a criminal defence solicitor to obtain specialist advice.

Burglary is an example of an either way offence. If the nature of the burglary is less serious – for example, the owners were out at the time – it is more likely to be heard in the magistrates’ court. If violence was used or threatened against members of the household during the burglary, or if the defendant was carrying an offensive weapon, the case must be heard in the Crown Court. Other examples of either way offences are making threats to kill, possession of a knife in a public place, and breach of a restraining order. For these types of offences, whether the case is heard by the magistrate or sent to the Crown Court will depend on how serious the offence was on the facts of the case.

Indictable offences examples

There are many different types of indictable only offences, but among the most common are those listed below.

Is theft an indictable offence?

Theft is an either way offence, which means it might be indictable if the circumstances are serious enough to warrant trial in the Crown Court. If not particularly serious, it will be tried in the magistrates’ court.

Is assault an indictable offence?

Assault is also an either way offence, which means the judge will look into the seriousness of the case to determine whether it should be tried in the magistrates’ court or the Crown Court. If indictable, the case will be sent to the Crown Court.

Other types of indictable offences

Some indictable offences arise under the common law (so there is no statute to tell us they are indictable):

Others are set out in legislation:

  • Infanticide (Section 1 Infanticide Act 1938)
  • Wounding with intent to do grievous bodily harm (Section 18 Offences Against the Person Act 1861)
  • Poisoning (Section 11 Offences Against the Person Act 1861)
  • Death by dangerous driving (Section 1 Road Traffic Act 1988)
  • Rape (Section 1 Sexual Offences Act 2003)
  • Female Genital Mutilation (Female Genital Mutilation Act 2003)
  • Possession of a firearm or imitation firearm with intent to cause fear or violence (Section 16A Firearms Act 1968)

Others still may be a summary or either way offence that can become an indictable offence:

  • Trafficking a Class A drug where you already have two previous convictions for this offence (Section 110 of the Powers of the Criminal Courts (Sentencing) Act 2000)
  • Burglary of a dwelling where violence was used or threatened against anyone in the house (Schedule 1, paragraph 28(c) Magistrates’ Courts Act 1980).
  • Aggravated burglary, which is burglary where the defendant was carrying a firearm or an offensive weapon at the time of the offence (Section 10(2) Theft Act 1968)
  • If you have been charged with an either way offence together with an offence under the Firearms Act 1968, the either way offence automatically becomes indictable only. For example, say you were charged with both driving without insurance (a summary only offence), and possession of a firearm with intent to cause fear of violence (an indictable offence), arising out of the same events, both cases would be heard in the Crown Court. 

As you can probably see from these examples, getting to grips with the criminal procedure rules and understanding whether the offence that you have been charged with is indictable is not always straight-forward. Instructing a trusted solicitor will help you understand the process so that you can focus on your plea, and if you are pleading not guilty, your defence.


Where to get more help
 

If you have been charged with an indictable offence, contact the experts at Stuart Miller Solicitors. Our team of specialist lawyers will be ready to advise you on your options and answer any questions that you have. We will help you to navigate the criminal justice process, allowing you to focus on the things that matter. Call us today to arrange a no-obligation consultation.

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