The purpose of clause 26 is to provide for defendants to choose to have mode of trial dealt with in writing outside court and without being present. It will allow the court to hold fewer pre-trial hearings and to deploy its time more effectively and proportionately. As the Committee no doubt knows, mode of trial is the procedure for offences classified as triable either way when there is a decision to be made as to whether the case is more suitable for a magistrates court hearing or a Crown court hearing.
As part of the mode of trial procedure, the defence and prosecution have the chance to make representations to court concerning, for example, previous convictions. The defendant may have the right to ask whether a custodial sentence would be likely if he pleaded guilty. After such communication, the magistrates court makes a decision about whether summary trial at the magistrates court or Crown court trial is more suitable. If the magistrates reject jurisdiction, the defendant is sent to the Crown court for trial and their consent is not required. If the court decides that summary trial is more suitable, the defendant is asked to choose whether they wish to elect for trial at the Crown court.
Clause 26 makes it possible for all these interactions with the court to be conducted in writing if the defendant so chooses. As such, it plays an important role in allowing the criminal court to streamline case management procedure. It also amends the provision dealing with police bail after arrest. The date, time and place at which a defendant is remanded to attend court is to be that fixed by the court officer. This gives the court the flexibility to allow the defendant a reasonable opportunity to engage in the written procedure.
I turn to clauses 27, 28 and 29. Clause 27 would enable magistrates courts to decide mode of trial for either way offences in the absence of an adult defendant. It is needed to allow the courts to continue to progress cases when defendants have failed to appear. When mode of trial is to be decided in the defendant’s absence, he or she is deemed to have indicated a not guilty plea and the court then proceeds to allocate the case for summary or Crown court trial as appropriate. If the court allocates the case for summary trial, the defendant retains the right to elect for Crown court trial up to the start of that trial.
Clause 27 provides a safeguard in that the court can proceed to decide mode of trial in absence only if it is also satisfied that all the relevant documents have been given to the defendant and that he or she has been made aware of the date of the mode of trial hearing. Moreover, the court does not have to allocate the case in the defendant’s absence in accordance with this provision, but may choose to adjourn.
Under existing law, theft from a shop of goods worth less than £200—known as low-value shoplifting—is triable only summarily unless the defendant exercises the right to elect for trial in the Crown court. Clause 28 gives defendants in such cases the choice of exercising that right in writing without attending court.
Clause 29 enables indictable offences to be sent to the Crown court without a hearing and the defendant to be notified in writing that this has been done. A so-called sending hearing in the magistrates court—sending to the Crown court—would be superfluous in either way cases that are allocated for Crown court trial pursuant to clause 26 when the defendant has engaged online. Such a hearing would also be superfluous in any indictment-only case, which has to be sent to the Crown court for trial regardless of the defendant’s consent.
Clause 29 also provides that the circumstances when joined cases or co-defendants are to be sent to the Crown court along with the main offence are to be dealt with by criminal procedure rules, which may also include provision for related summary-only offences to be sent to the Crown court.