The Sentencing Council has published an Allocation Definitive Guideline which, as of 1 March 2016, applies to all defendants in the magistrates' court regardless of when the offence occurred.

The Guideline states that it is important to ensure that all cases are tried at the appropriate level.

Although a defendant has a right to elect Crown Court trail for an offence which is triable either way, there will be clear discouragement from the court for defendants to do so and there may be implications following conviction in terms of cost. Similarly, if a defendant elects trial but then enters a guilty plea in the Crown Court, credit for that plea will be greatly diminished.

The most significant impact will be if a defendant pleads guilty in the magistrates' court then magistrates will, in accordance with the Guideline, accept jurisdiction unless either of two exceptions apply.

  • 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.

In relation to the first exception, it is important to note that since section 85 of LASPO came into force on 12 March 2015 the magistrates' courts have had unlimited sentencing powers in relation to fines for offences committed after that date.