Allocation Procedure

Allocation Procedure

1. As from 28th May 2013 committal proceedings (except a committal sentence) were abolished throughout England and Wales and defendants charged with an either way offence are subject to the 'allocation procedure'- see the section on the magistrates' court and plea before venue for further guidance.

The First Hearing

2.At the first hearing the either way charge will be put to the defendant and the defendant will be asked to indicate a plea of guilty or not guilty. If the defendant enters a guilty plea then the Magistrates must decide whether their sentencing powers are sufficient or if the case should be committed to the Crown Court for sentence. If the defendant pleads not guilty or declines to indicate a plea at the Magistrates' court the Court must decide whether to allocate the case to the Magistrates' Court or Crown Court for trial. This is known as the 'allocation process'. Further guidance is available at the section dealing with Plea before venue and allocation.

3. If the court allocates the case to a Magistrates' Court for trial, the defendant can nonetheless require trial in the Crown Court

Preparing for the Allocation procedure

4. Before the Magistrates' Court makes a decision on allocation it will invite the prosecution and the defence to make submissions on the issue. It is therefore important to prepare submissions on allocation prior to the hearing. In determining allocation the Court will have regard to their sentencing powers and any relevant previous convictions and shall have regard to the allocation guideline issued by the Sentencing Council.

5. The Court will apply the Sentencing Councils Allocation Guideline from 1 March 2016 to determine whether cases should be dealt with by a magistrates' court or the Crown Court.  In general, either way offences should be tried summarily unless:

  • the outcome would clearly be a sentence in excess of the court's powers for the offence(s) concerned after taking into account personal mitigation and any potential reduction for a guilty plea; or
  • for reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court. This exception may apply in cases where a very substantial fine is the likely sentence. Other circumstances where this exception will apply are likely to be rare and case specific; the court will rely on the submissions of the parties to identify relevant cases.

6. The court should refer to definitive guidelines (in health and safety cases this will be the Definitive Guideline referred to in detail in the section dealing with the sentencing hearing) to assess the likely sentence for the offence in the light of the facts alleged by the prosecution case, taking into account all aspects of the case including those advanced by the defence, including any personal mitigation to which the defence wish to refer.  .

7. For offences committed after 12th March 2015, the magistrates' court has the power to impose an unlimited fine. That does not mean that serious health and safety cases must be dealt with in the Magistrates' Court. Further guidance is available at the section dealing with Plea before venue and allocation. If the court decides that the offence appears more suitable for trial in the Crown Court the defendant must be sent forthwith to the Crown Court. If the court decides that the case is more suitable for summary trial, it must explain to the defendant (a) that the case appears suitable for summary trial; (b) they can consent to be tried summarily or choose to be tried on indictment; and (c) if they consent to be tried summarily and are convicted, they may be committed to the Crown court for sentence. The defendant must then indicate whether it wishes to be tried in the Magistrates' or the Crown Court.  

The Committal Bundle

8. The introduction of the allocation procedure does not change the requirements on service of initial details of the prosecution case, however as committal proceedings have now been abolished there it is no longer a requirement to serve a committal bundle.

After the First Hearing 

9. If a defendant has pleaded guilty and the Magistrates have determined that their sentencing powers are sufficient then where possible they should proceed to sentence the defendant at the first hearing. If this is not possible a future Magistrates' Court hearing will be fixed for sentence.

10. If a defendant has pleaded guilty and the Magistrates have determined that their sentencing powers are insufficient and committed the case to Crown Court for sentence a Crown Court date for sentence will be identified either by the Magistrates' Court or at a later date by the Crown Court itself. Where a case is committed to the Crown Court for sentence and a solicitor agent is not instructed you should follow the latest guidance on the appointment of a solicitor agent/Legal Advisors Office.

11. If a defendant has pleaded not guilty and the Magistrates have allocated the case to the Magistrates' Court a trial date will be identified and the Court may make directions on matters relating to the trial including the service of additional evidence. After the hearing you should follow the latest guidance for appointing a solicitor agent/Legal Advisors office.

12. If the Magistrates have allocated the case to the Crown Court for trial then the next hearing will be in the Crown Court. Again you should follow the latest guidance for appointing a solicitor agent/Legal Advisors office. The Magistrates will set a timetable for service of the prosecution evidence on the defence and Court before the Plea and Directions Hearing in the Crown Court. Your solicitor agent or Legal Advisers Office (if they are dealing with the case) will advise on the contents of the bundle.

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Updated 2022-03-21