Either-way offences in England and Wales are crimes serious enough that Parliament has left the venue open: the case can be tried in the magistrates’ court or at the Crown Court, and which one depends on decisions taken at a set sequence of early hearings. You will be asked to indicate a plea, the magistrates will decide whether they are willing to keep the case, and if they are, you will then choose the venue yourself. Each step changes what you are exposed to, so it helps to know what is coming before you walk into court.
What Counts as an Either-Way Offence
The either-way category exists because many offences cover a wide range of seriousness. Theft is the classic example: taking a chocolate bar and running a long fraud against a vulnerable pensioner are both theft but plainly belong in different courts. Burglary of a non-dwelling such as a warehouse or shed sits in the same bracket, as does assault occasioning actual bodily harm, where injuries can range from bruising to something needing hospital treatment.1Crown Prosecution Service. Offences Against the Person, Incorporating the Charging Standard Handling stolen goods, various drug offences, and criminal damage above £5,000 also fall here.
Two boundaries are worth knowing because they defy the usual pattern. Shoplifting goods worth £200 or less is treated as summary-only for allocation, though the defendant still has the right to elect Crown Court trial. Criminal damage under £5,000 is summary-only outright with no right of election, unless arson is involved.2Crown Prosecution Service. Allocation, Sending and Committal for Sentence
The Plea Before Venue Hearing
Every either-way case involving an adult starts with the procedure in Section 17A of the Magistrates’ Courts Act 1980.3Legislation.gov.uk. Magistrates Courts Act 1980 – Section 17A The clerk reads the charge and asks how you would plead if the case went to trial. Legally, this is not yet a formal plea; the statute is explicit that neither the question nor the answer counts as the taking of a plea. It is an indication, but it has real consequences.
Indicate guilty and the court treats it as a formal guilty plea and moves to sentence. The magistrates then decide whether their own powers are enough or whether the case should go up to the Crown Court for heavier sentencing.
Indicate not guilty, or say nothing at all, and the case moves on to allocation. Silence is treated exactly like a not guilty indication, so there is no tactical penalty in it.3Legislation.gov.uk. Magistrates Courts Act 1980 – Section 17A
The Allocation Decision
Once a not guilty indication is on record, the magistrates must decide whether the case is more suitable for summary trial or for trial on indictment at the Crown Court, under Section 19 of the 1980 Act.4Legislation.gov.uk. Magistrates Courts Act 1980 – Section 19 The central question is whether their sentencing powers would be adequate on conviction.
Magistrates can currently impose a maximum of 12 months’ custody for a single either-way offence, following the doubling of their powers from the previous six-month limit.5GOV.UK. Courts and Tribunals Bill Factsheet If the facts suggest a realistic sentence beyond that, they decline jurisdiction and send the case to the Crown Court.
Both sides make representations, and the prosecutor is expected to argue clearly for one venue or the other.2Crown Prosecution Service. Allocation, Sending and Committal for Sentence The Sentencing Council’s allocation guideline sets the framework: either-way offences should generally be tried summarily unless the likely sentence would clearly exceed the court’s powers after personal mitigation and any guilty plea reduction, or unless the case involves unusual legal or factual complexity.6Sentencing Council. Allocation and Committal for Sentence
Where there are multiple charges from the same circumstances, the magistrates look at their powers against the aggregate sentence across all offences rather than a single charge in isolation.4Legislation.gov.uk. Magistrates Courts Act 1980 – Section 19 Combined seriousness can push a case up even where no individual charge would.
Asking for a Sentence Indication
This is one of the most underused tools in the procedure. If the magistrates decide the case is suitable for summary trial, Section 20(3) allows you to ask the court to indicate whether a custodial or non-custodial sentence would be more likely if you pleaded guilty there and then.7Legislation.gov.uk. Magistrates Courts Act 1980 – Section 20
The court does not have to give one, and no inference should be drawn from a refusal. If it does give one, you can then reconsider your earlier not guilty indication and change it to guilty, and the case proceeds as a summary trial with a guilty plea.
The protection built into this is significant. If you change your plea to guilty after a non-custodial indication, no court, including the Crown Court on any later committal, can pass a custodial sentence for that offence unless the indication itself flagged custody as likely.8Legislation.gov.uk. Magistrates Courts Act 1980 – Section 20A Outside that specific scenario, an indication is not binding on the sentencing court and cannot be used as a ground of appeal.
Choosing Magistrates’ Court or Crown Court
If the magistrates accept jurisdiction and you have not changed your plea after any indication, you are given a choice. Under Section 20(9) you are asked whether you consent to summary trial or wish to be tried on indictment at the Crown Court.7Legislation.gov.uk. Magistrates Courts Act 1980 – Section 20 This is the election.
Before you decide, the court must warn you of something specific: if you choose summary trial and are convicted, the magistrates keep the power to send you to the Crown Court for sentence if they later conclude the offence was too serious for their limits.7Legislation.gov.uk. Magistrates Courts Act 1980 – Section 20 Choosing the magistrates’ court, in other words, does not cap your sentence at 12 months.
What the Choice Actually Involves
Summary trial is quicker. Cases move faster through the magistrates’ list, legal costs are typically lower, and proceedings are less formal. Guilt is decided by a bench of magistrates or a single district judge rather than twelve jurors, and experienced practitioners often observe that magistrates who hear criminal cases day after day can be harder to persuade than members of the public seeing the facts for the first time.
Crown Court trial puts guilt to a jury. Acquittal rates there tend to be somewhat higher. The trade-offs are real, though: cases take longer to reach trial, the process is more stressful, and if convicted, the judge has the full statutory maximum for the offence available, not the magistrates’ 12-month ceiling.
Once you elect Crown Court trial, the case is sent up under the sending provisions and cannot be reversed unilaterally later.
Being Sent to the Crown Court for Sentence
The scenario the warning refers to is committal for sentence. Under Section 14 of the Sentencing Act 2020, if the magistrates try an either-way offence summarily and convict you but then conclude the offence, alone or with associated offences, was so serious that the Crown Court should deal with it, they can commit you there for sentence.9Legislation.gov.uk. Sentencing Act 2020 – Section 14
The Crown Court then sentences as though you had been convicted on indictment, with the full range for the offence in play. The power exists because evidence at trial sometimes paints a far more serious picture than the allocation hearing suggested. You can be committed in custody or on bail. It does not happen in most cases, but when it does, a defendant who assumed the 12-month limit was the worst outcome finds otherwise.
How the Timing of a Guilty Plea Affects Sentence
The Sentencing Council’s guideline on reduction in sentence for a guilty plea feeds directly into these decisions, because when you plead determines how much credit you get. The maximum discount is a third off the sentence, and only a guilty plea at the first stage of proceedings earns it. For either-way offences, the first stage runs up to and including the allocation hearing.10UK Parliament. Reduction in Sentence for a Guilty Plea Guideline
Plead guilty after that and the reduction is capped at a fifth. The gap between a third and a fifth can amount to months in custody, so anyone weighing their options at plea before venue needs to understand what waiting will cost. Indicating not guilty, going through allocation, and then changing your mind already puts the top discount out of reach.
Legal Aid and the Cost of Defence
Venue has direct financial consequences. In the magistrates’ court, criminal legal aid is means-tested. A defendant with an adjusted annual income of £12,475 or less qualifies for funded representation. Between £12,475 and £22,325 you may qualify depending on a fuller assessment of disposable income, and above £22,325 you will not receive magistrates’ court legal aid unless the full means test shows disposable income below £3,398.11GOV.UK. Criminal Legal Aid – Means Testing
Cases sent or committed to the Crown Court for trial automatically pass the interests of justice test.11GOV.UK. Criminal Legal Aid – Means Testing Legal aid representation is available, but it is not free for everyone. Defendants whose annual disposable income exceeds £3,398 but falls below £37,500 must make income contributions, set at 90% of disposable income, for up to six months while the case is ongoing. Universal Credit, Income Support, income-based Jobseeker’s Allowance, State Pension Guarantee Credit, and income-related Employment and Support Allowance passport you through the means test at no cost.
If you are acquitted at the Crown Court, income contributions you made are refunded. That refund does not apply on conviction, and those found guilty may face additional capital contribution orders covering some or all of the defence costs.
Appealing a Magistrates’ Court Conviction
A defendant convicted in the magistrates’ court has a right of appeal to the Crown Court. The appeal must normally be filed within 15 working days of sentencing.12GOV.UK. Appeal a Magistrates Court Decision – When to Appeal to the Crown Court The case is reheard, with both sides putting their evidence again. It is a real safety net for anyone who chose summary trial and believes the outcome was wrong, but the Crown Court can also increase the sentence on appeal, so the decision to appeal is not risk-free.