For a defendant who wishes to plead guilty, the place of trial on an either-way matter may be critical in determining the sentence to be imposed.

It is as important a reason for the early identification of a proper guilty plea as the provisions of s.48 Criminal Justice and Public Order Act 1994.In almost every such case the defence will seek to have the matter tried in the magistrates' court.

It is then far less likely to result in a period of imprisonment.

The national mode of trial guidelines, first issued in 1990, have proved an invaluable source of assistance to defence solicitors in dealing with cases summarily.A new edition has now been issued, and the changes take into account in particular the provisions of the Criminal Justice Act 1991.

As a magistrates' court has all the sentencing powers of a Crown Court except in relation to a term of imprisonment, it is s.1(2) of the Criminal Justice Act 1991 that is the key provision.This provides that a court shall not pass a custodial sentence unless the offence (or the offence and associated offences) is so serious that only such a sentence would be justified or, where the offence is a viole nt or sexual offence, that only such a sentence would be adequate to protect the public from serious harm from the offender.The basis on which a person can be committed for sentence to the Crown Court under the provisions of s.

38 of the Magistrates Court Act 1980 was also amended so that no longer was reference made to the personal circumstances or history of a defendant, but rather to the seriousness of the case.These provisions have led to two critical amendments to the mode of trial guidelines.No longer is it provided that the defendant's antecedents and personal mitigating circumstances are irrelevant for the purposes of deciding mode of trial.

Under the provisions of s.29 of the 1991 Act a person's antecedent history may aggravate the matter in question whilst personal mitigating circumstances may result in the seriousness of the allegation being reduced so that the matter remains within the jurisdiction of the magistrates' court.Important guidance is then given in relation to the way that a magistrates' court should use its powers to commit for sentence under s.38 of the 1980 Act.

It is made clear that it is only if information emerges during the course of a hearing which leads a court to conclude that the offence comes within s.1 of the 1991 Act that a committal is called for.Solicitors will therefore wish to ensure that all relevant issues, now including all personal issues, are placed before the court at the time that the mode of trial decision is made, so that they are not faced with an unexpected committal for sentence because of matters arising during the hearing.As with the previous guidance the presumption is that cases shall be tried summarily unless there are both present listed circumstances relevant to the particular offence, and the sentencing powers of the magistrates' court are insufficient.If the listed factors are absent, the case should be tried summarily without further consideration.

The wording can be strictly interpreted.

If any factor is present, thought may then have to be given to the appropriate possible penalty.

The guide confirms that jurisdiction can certainly be accepted in cases involving loss up to £10,000, and allows for an increase in the number of cases involving possession of drugs that may be heard in the magistrates' court.The guidance now provides: 'The purpose of these guidelines is to help magistrates decide whether or not to commit "either-way" offences for trial in the Crown Court.

Their object is to provide guidance not direction.

They are not intended to impinge upon a magistrate's duty to consider each case individually and on its own particular facts.These guidelines apply to all defendants aged 18 and above'.-- General mode of trial considerationsS.19 of the Magistrates' Court Act 1980 requires magistrates to have regard to the following matters in deciding whether an offence is more suitable for summary trial or trial on indictment.1.

The nature of the case.2.

Whether the circumstances make the offence one of a serious character.3.

Whether the punishment which a magistrates' court would have power to inflict for it would be adequate.4.

Any other circumstances which appear to the court to make it more suitable for the offence to be tried in one way rather than the other.5.

Any representations made by the prosecution or the defence.Certain general observations can be made:(a) The court should never make its decision on the grounds of convenience or expedition.(b) The court should assume for the purpose of deciding mode of trial that the prosec ution version of the facts is correct.(c) The fact that the offences are alleged to be specimens is a relevant consideration; the fact that the defendant will be asking for other offences to be taken into consideration, if convicted, is not.(d) Where cases involve complex questions of fact or difficult questions of law, including difficult issues of disclosure of sensitive material, the court should consider committal for trial.(e) Where two or more defendants are jointly charged with an offence, each has an individual right to elect his mode of trial.

(This follows the decision in R v Brentwood Justices ex p.

Nicholls.)(f) In general, except where otherwise stated, either-way offences should be tried summarily unless the court considers that the particular case has one or more of the features set out in the following pages, and that its sentencing powers are insufficient.(g) The court should also consider its power to commit an offender for sentence, under s.

38 of the Magistrates' Courts Act 1980, as amended by s.25 of the Criminal Justice Act 1991, if information emerges during the course of the hearing which leads them to conclude that the offence is so serious, or the offender such a risk to the public, that their powers to sentence him are inadequate.

This amendment means that committal for sentence is no longer determined by reference to the character or antecedents of the defendant.Where reference is made in these guidelines to property or damage of 'high value' it means a figure equal to at least twice the amount of the limit (currently £5000), imposed by statute on a magistrates' court when making a compensation order.-- Drugs1.

Class A(a) Supply; possession with intent to supply.These cases should be committed for trial.(b) Possession.These cases should be committed for trial unless the amount is consistent only with personal use.2.

Class B(a) Supply; possession with intent to supply.These cases should be committed for trial unless there is only small scale supply for no payment.(b) These cases should be committed for trial when the quantity is substantial and not consistent only with personal use.-- Other casesIn all other cases the list of relevant factors is preceded on every occasion by a box stating: 'Cases should be tried summarily unless the court considers that one or more of the following features is present in the case and that its sentencing powers are insufficient.

Magistrates should take account of their powers under s.

25 of the Criminal Justice Act 1991 to commit.' Note: See para (g) above.-- BurglaryDwelling House1.

Entry in the daytime when the occupier (or another) is present.2.

Entry at night of a house which is normally occupied, whether or not the occupier (or another) is present.3.

The offence is alleged to be one of a series of similar offences.4.

When soiling, ransacking, damage or vandalism occurs.5.

The offence has professional hallmarks.6.

The unrecovered property is of high value.Attention is drawn to para 28(c) of the Magistrates' Courts Act 1980, by which offences of burglary in a dwelling cannot be tried summarily if any person in the dwelling was subjected to violence or the threat of violence.Non-Dwellings1.

Entry of a pharmacy or doctor's surgery.2.

Fear is caused, or violence is done to anyone lawfully on the premises (eg nightwatchman, security guard).3.

The offence has professional hallmarks.4.

Vandalism on a substantial scale.5.

The unrecovered property is of high value.-- Theft and fraud1.

Breach of trust by a perso n in a position of substantial authority, or in whom a high degree of trust is placed.2.

Theft or fraud which has been committed or disguised in a sophisticated manner.3.

Theft or fraud committed by an organised gang.4.

The victim is particularly vulnerable to theft or fraud, eg the elderly or infirm.5.

The unrecovered property is of high value.-- Handling1.

Dishonest handling of stolen property by a receiver who has commissioned the theft.2.

The offence has professional hallmarks.3.

The property is of high value.-- Social security frauds1.

Organised fraud on a large scale.2.

The frauds are substantial and carried out over a long period of time.-- Violence(Ss.20 and 47 of the Offences Against the Person Act 1861)1.

The use of a weapon of a kind likely to cause serious injury.2.

A weapon is used and serious injury is caused.3.

More than minor injury is caused by kicking, head butting or similar forms of assault.4.

Serious violence is caused to those whose work has to be done in contact with the public or who are likely to face violence in the course of their work.5.

Violence to vulnerable people, eg the elderly and infirm.6.

The offence has clear racial motivation.The same considerations apply to cases of domestic violence.-- Public Order Act offencesViolent disorderThese cases should generally be committed for trial.Affray1.

Organised violence or use of weapons.2.

Significant injury or substantial damage.3.

The offence has clear racial motivation.4.

An attack upon police officers, prison officers, ambulance men, firemen and the like.-- Violence to and neglect of children1.

Substantial injury.2.

Repeated violence or serious neglect, even if the physical harm is slight.3.

Sadistic violence, eg deliberate burning or scalding.-- Indecent assault1.

Substantial disparity in age between victim and defendant, and the assault is more then trivial.2.

Violence or threats of violence.3.

Relationship of trust or responsibility between defendant and victim.4.

Several similar offences, and the assaults are more than trivial.5.

The victim is particularly vulnerable.6.

Serious nature of the assault.-- Unlawful sexual intercourse1.

Wide disparity of age.2.

Breach of position of trust.3.

The victim is particularly vulnerable.Unlawful sexual intercourse with a girl under 13 is triable only on indictment.-- Dangerous driving1.

Alcohol or drugs contributing to dangerousness.2.

Grossly excessive speed.3.

Racing.4.

Prolonged course of dangerous driving.5.

Degree of injury or damage sustained.6.

Other related offences.-- Criminal damage1.

Deliberate fire-raising.2.

Committed by a group.3.

Damage of a high value4.

The offence has clear racial motivation.Offences set out in sched 2 to the Magistrates Courts Act 1980 (which includes offences of criminal damage which do not amount to arson) must be tried summarily if the value of the property damaged or destroyed is £5000 or less.