Criminal lawBy Anthony Edwards, TV Edwards, London

Indictable-only crimeSs 51 and 52 Crime and Disorder Act 1998 will be brought into effect nationally on the 15 January 2001.

For all cases commencing in court on or after that date which involve an indictable-only offence, the adult magistrates' court is required forthwith to send the case to the Crown Court at the first hearing.

The court will also send any related either-way offence or connected summary only offence which could be joined on the same indictment.

Although there is a duty to send forthwith there is also under s.52(5) a power to adjourn.

Solicitors must be willing to bring this provision to the attention of the courts so that cases which are over-charged are not sent unnecessarily to the Crown Court.

During the pilot phase four out of every ten cases were adjourned to a second hearing (although many of these were because bail was refused under sched 1 pt 1 para 5 Bail Act 1976).If a co-defendant faces only either-way offences, but these will be linked on the same indictment to the indictable-only matter, then they, too, must be sent forthwith to the Crown Court.

They thus lose their separate right to plea before venue proceedings.Youth courts are not included within the new rules but if a youth is jointly charged with an adult then the youth must also be sent forthwith to the Crown Court if it is necessary in the interests of justice.

However, if a child or young person would be made the subject to an order for a separate trial in the Crown Court, following the practice direction (Crown Court: trial of Children & Young Persons) 2000 The Times, 17 February, there seems to be a strong argument that it is in the interests of justice for them to be remitted instead for trial to the youth court.In indictable-only cases magistrates' courts will be able to grant legal aid on submission only of an application and form 5 without supporting financial evidence.

Such evidence can then be forwarded within the following 14 days.

The order will cover both magistrates and Crown Court proceedings.

After the 2 April, 2001 no financial statement will be required in any criminal proceedings.

A major change under the new procedure will be the place at which bail applications are heard.

There is no change in the law as to the number of applications which can be made.

However, in the normal way while the first application was made in the magistrates' court, the second will now be in the Crown Court, thus removing any benefit from an appeal to a Crown Court judge.

It is therefore likely that there will be many more applications to the High Court if a Crown Court judge has refused bail at that second hearing.

Crown Court judges during the pilot period have required that formal written applications for bail be lodged before they will consider bail issues.The procedure in the Crown Court once the case reaches that level is set out in sched 3 Crime & Disorder Act 1998.

Cases will normally be listed within eight days if the defendant is in custody and within about 23 days if on bail.

While the Attorney General has allowed a very long period by regulation for the service of evidence, Crown Court judges will give specific directions on this issue at the first hearing.

The duty to file a defence statement does not arise until the evidence and primary disclosure have been served.

Any attempt by the judiciary to force admissions from the defence before sufficient evidence has been served proving the prosecution case should be strongly resisted.The schedule introduces a procedure should the defence wish to submit that there is no case to answer.

It has many advantages over old style committal proceedings.

In particular it will be possible to obtain the attendance of prosecution witnesses for cross examination if it is in the interest of justice to do so.

In addition, submissions can be made both under ss 76 and 78 Police and Criminal Evidence Act 1984.If the indictable-only matter is not pursued at the Crown Court leaving only either-way or summary offences, it will be necessary for the Crown Court to enter into a plea before venue hearing.

If an indication of guilty plea is made then the court will proceed immediately to sentence.

However, if there is no such indication or a not guilty plea is indicated there will need to be a full mode of trial hearing in relation to either-way offences, with a proper consideration of the mode or trial guidelines.

The defendant has the right to insist on jury trial.

Summary only matters will be returned to the magistrates' court for trial.

The legal aid order will cover all proceedings in the magistrates court.The provisions carry a 182-day custody time limit which does place the defendant at some disadvantage compared with the pre-existing position.

With committal proceedings there is an opportunity at 70 days to place considerable pressure upon the prosecution.

Defence solicitors should continue actively to review the file at the 70-day stage as regular reviews of bail are an inevitable consequence of the Human Rights Act 1998 and the decision of the European Court in Bezicheri v Italy 12 EHRR 210.Until the evidence is served at the Crown Court all solicitors have rights of audience although they are paid within the graduated fee scheme.

These hearings are treated as pre-trial reviews and a fee of 75 inclusive of travel and waiting is payable.

However, if counsel or a solicitor/advocate is instructed then the normal rates for attendance upon the advocate can be obtained.Under the new regime no magistrates' court bill can be delivered unless the proceedings are returned to the magistrates' court.

All the work done in the magistrates' court should be valued at magistrates' court rates and the total then carried forward to the Crown Court bill.

This will have the effect of increasing recovery at the Crown Court level but at the loss of a category 3 fee and some reduction in cash flow.