What Are Either Way Offences?

If you’ve been charged with a criminal offence, one of the first questions you’ll face is where your case will be heard. In England and Wales, offences fall into three categories:

• Summary offences – less serious charges (e.g. common assault, motoring offences) dealt with only in the Magistrates’ Court.
• Indictable-only offences – the most serious crimes (e.g. murder, rape) that must go to the Crown Court.
• Either way offences – charges that can be heard either in the Magistrates’ Court or the Crown Court, depending on the seriousness of the case.

This blog focuses on either way offences – what they are, how the courts decide where they should be heard, and what it means for a defendant deciding between trial in the Magistrates’ Court or the Crown Court.

Understanding Either Way Offences

Either way offences are criminal charges that can be tried in either the Magistrates’ Court or the Crown Court, and are therefore offences “triable either way.” They occupy a middle ground between less serious summary offences and more serious indictable-only offences.

Examples of Either Way Offences include:

• Theft and handling stolen goods
• Burglary (excluding aggravated burglary)
• Assault occasioning actual bodily harm (ABH)
• Fraud
• Dangerous driving
• Possession of drugs with intent to supply

Because they bridge the gap between the two courts, either way offences can carry serious penalties – fines, driving disqualifications, community orders, and even prison sentences.

How the Court Decides: Plea Before Venue & Mode of Trial

All either way offences begin in the Magistrates’ Court. The procedure is as follows:

1. Plea Before Venue – The defendant is first asked whether they intend to plead guilty or not guilty (Magistrates’ Courts Act 1980, s.19).

• If they plead guilty, the magistrates will sentence the case unless they believe their sentencing powers are insufficient – in which case it will be sent to the Crown Court.
• If they plead not guilty, the court must decide the appropriate venue.

2. Mode of Trial – The magistrates consider:

• The seriousness of the alleged offence.
• Whether their maximum sentencing powers (12 months custody for the most serious offences) are enough.
• The complexity of the evidence or law.
• If the offence is too serious or complex, it will be sent to the Crown Court.
• If magistrates accept jurisdiction, the defendant can still elect to have the case tried before a jury in the Crown Court.

Magistrates’ Court vs Crown Court for Either Way Offences: Advantages and Disadvantages

Magistrates’ Court

Advantages:

• Faster resolution – cases are dealt with more quickly.
• Lower costs – often no need for a barrister.
• Limited sentencing powers – maximum of 12 months’ custody for the most serious offences.
• Automatic right of appeal to the Crown Court.

Disadvantages:

• No jury – decided by three lay magistrates or a District Judge.
• Perceived bias – some defendants feel magistrates favour the prosecution.
• Less suitable for complex legal or evidential cases.

Crown Court

Advantages:

• Trial by jury – many defendants prefer being judged by 12 peers.
• More robust process – better suited for complex cases and expert evidence.
• Experienced judges and barristers handle proceedings.

Disadvantages:

• Greater sentencing powers – the Crown Court can impose significantly harsher penalties.
• Longer delays – trials may take months or years to conclude.
• Higher costs and greater stress – formal procedures and potential publicity can be daunting.
• Limited appeal rights – appeals require permission.

Motoring Offences as Either Way Offences

While most motoring offences are summary only, some serious driving offences are classed as either way, including:

• Dangerous driving
• Causing serious injury by careless or inconsiderate driving
• Causing serious injury by dangerous driving

Should You Elect a Crown Court Trial?

If the Magistrates’ Court accepts jurisdiction, the defendant can choose to have their case heard in the Crown Court. This decision isn’t always easy, so here’s a look at the advantages and disadvantages of each option.

Crown Court Trial

Advantages:

• Trial by jury: Some defendants feel more confident with a jury of 12 peers rather than magistrates.
• Greater legal advocacy: Cases are usually handled by experienced barristers, often with specialist expertise.
• More thorough process: The Crown Court is seen by some as more formal and robust in handling complex evidence.

Disadvantages:

• Harsher sentencing powers: The Crown Court can impose longer prison terms than the Magistrates’ Court.
• Longer wait times: Crown Court proceedings often take months/years to come to trial.
• Higher costs and stress: Legal fees, media attention, and formality can make the process more daunting.

Magistrates’ Court Trial

Advantages:

• Quicker resolution: Cases usually proceed faster than in the Crown Court.
• Lower costs: Shorter trials and less need for barristers make it more affordable.
• Lower sentencing powers: Magistrates can impose a maximum of 12 months’ custody for a single offence (if convicted), which can be a strategic benefit.

Disadvantages:

• No jury trial: The case is decided by either a District Judge or three lay magistrates.
• Limited representation: Defendants may be represented by a solicitor, not a barrister, although solicitors are fully qualified to manage most cases effectively.
• Perceived bias: Some defendants feel magistrates may be more prosecution-leaning, especially in cases of repeat offending.

Key Considerations Before Deciding

The decision on whether to opt for a Crown Court trial or remain in the Magistrates’ Court should be made carefully. Factors to think about include:

• The seriousness and complexity of the case
• The potential sentence if convicted
• The likelihood of acquittal before a jury
• The cost and stress of proceedings
• Getting legal advice

How Old Bailey Solicitors Can Help with Either Way Offences

We specialise in representing individuals who are navigating the criminal justice system for the first time. We can assist you from the moment of arrest or police interview, through to court proceedings and beyond. Our role is to ensure you understand your options, protect your rights, and present the strongest possible case – whether you’re disputing the allegation or looking to minimise the consequences of a guilty plea.

If you require legal representation, contact Old Bailey Solicitors on 0207 8464 999 or at [email protected]