Does anyone else smell a rat? A new allocation guideline for either-way offences was published earlier this month by the Sentencing Guidelines Council which comes into force on 11 June. Within the guideline it states: ‘It is important to ensure that all cases are tried at the appropriate level. In general, either-way offences should be tried summarily unless it is likely that the court’s sentencing powers will be insufficient [its emphasis].’

The guideline stresses a need to bear in mind all the circumstances of a case in coming to a decision. What is concerning is that the emphasis is on keeping cases down with the explicit reminder within the guideline of the committal for sentence procedure, whereby defendants may be committed to the Crown court for sentence following conviction at a summary trial. What is the need for such guidance in the absence of any compelling evidence that the current allocation procedure is failing?

Since October, in cases where a defendant elects a jury trial but later pleads guilty at the Crown court, legal aid fees have been dramatically cut. This is all part of the drive by the government to rid our Crown courts of the apocryphal shoplifting of penny-sweet-type cases which are supposedly making legal aid lawyers rich and cluttering up the lists. Putting aside the fact that there is a distinct lack of evidence for this alleged ‘abuse’ of the election system, isn’t this new guideline and emphasis simply part of a wider picture focused not on trying cases ‘at the appropriate level’, but in fact on reducing the number of cases in which the court declines jurisdiction and thus reducing the legal aid bill?

In the past six months, two allocation decisions in cases I have been involved with immediately spring to mind as demonstrating a possible shift in policy. A section 20 GBH case in which the complainant was allegedly thrown on to a spiked railing and left impaled on it was found to be ‘suitable for summary trial’ despite a lengthy history of previous convictions for violence. In another case, co-defendants with near-identical, lengthy records for dishonesty spanning decades appeared for professional commercial distraction burglaries in which high-value goods were stolen from private areas of businesses. Both defendants made no indication as to plea and, having heard representations on the nature of the case and previous convictions, the court found the case ‘suitable for summary trial’. Defendant one then entered a guilty plea and, without hesitation, the bench indicated that he would likely be committed for sentence at the conclusion of my client’s trial because the case was ‘clearly far too serious to be sentenced in this court’.

While one must of course be careful with anecdotal evidence, a number of colleagues report similar experiences. Are we to trust that magistrates’ courts will apply the new guideline to ensure either-way cases are judged on their own merits and tried ‘at the appropriate level’? Or is there a political agenda at work? One cannot help but recall the emails to court clerks which were disclosed in the wake of last summer’s riots confirming that, contrary to their denials at the time, there was in effect blanket guidance given to decline jurisdiction. Will there be similar emails encouraging the acceptance of jurisdiction now?

If the government wishes to limit access to jury trial for certain offences then parliament should legislate. It is entirely inappropriate to slash legal aid fees in elected Crown court cases which later crack and then to issue guidance emphasising that either-way cases should ordinarily be dealt with in the magistrates’ court, thus increasing the likelihood of a bench accepting jurisdiction. It places defence lawyers in the invidious situation of having to advise clients on venue where there is a clear potential financial disincentive in advising a client to elect a Crown court trial. The vast majority of lawyers will of course continue to provide an excellent service and advise clients on the merits of their case regardless of financial implications to them, but nevertheless it is unfair and improper for the Ministry of Justice to expect defence lawyers to do their dirty work for them in reducing the Crown court caseload.

Thomas Garner, Solicitor, Lansbury Worthington, London W6