Either-way offences are criminal charges in England and Wales that can be tried in either the Magistrates’ Court or the Crown Court, depending on how serious the particular case turns out to be. They sit between summary-only matters, which stay in the Magistrates’ Court, and indictable-only offences, which must go to the Crown Court. Where your case is heard is settled through a set procedure that involves both the magistrates’ assessment and, if they accept the case, your own choice.
What Counts as an Either-Way Offence
Section 17 of the Magistrates’ Courts Act 1980 makes triable-either-way the offences listed in Schedule 1 to that Act.1Legislation.gov.uk. Magistrates Courts Act 1980 – Section 17 The list is long and deliberately covers conduct whose seriousness can swing widely from one case to another. Common examples include:
- Theft, with a Crown Court maximum of seven years’ imprisonment, covering anything from taking a low-value item in a shop to organised dishonesty involving thousands of pounds.2The Crown Prosecution Service. Theft Act Offences
- Burglary, with maximums of ten years for non-dwelling burglary and fourteen years for burglary of a home.
- Assault occasioning actual bodily harm, carrying up to five years’ custody, covering everything from a single punch causing bruising to a sustained attack.3Sentencing Council. Assault Occasioning Actual Bodily Harm
- Section 20 grievous bodily harm, meaning inflicting serious injury with or without a weapon.4Legislation.gov.uk. Magistrates Courts Act 1980 – Schedule 1
- Threats to kill, where seriousness varies with context.4Legislation.gov.uk. Magistrates Courts Act 1980 – Schedule 1
Certain drug offences, fraud, and criminal damage above the relevant value threshold can also fall into this category. The unifying feature is that the facts of the individual case, not the offence label alone, determine how gravely it should be treated.
Indicating Your Plea First
The procedure opens with a step that catches many defendants off guard. Under section 17A of the Magistrates’ Courts Act 1980, an adult charged with an either-way offence must first tell the court whether they would plead guilty or not guilty if the matter went to trial.5Legislation.gov.uk. Magistrates Courts Act 1980 – Section 17A
If you indicate a guilty plea, the allocation procedure is skipped entirely. The magistrates treat the matter as a summary trial and move to sentence, or they commit you to the Crown Court for sentence if they consider their sentencing powers insufficient. You do not get to elect a jury trial. If you indicate a not-guilty plea, the court moves on to allocation. Getting legal advice before this hearing matters, because the plea indication is the single decision that controls whether the rest of the process applies to you at all.
How Magistrates Decide Whether to Keep the Case
Where a not-guilty indication is given, the magistrates must decide whether the case is more suitable for summary trial or for trial on indictment. Section 19 of the Magistrates’ Courts Act 1980 directs them to consider whether the sentence they could impose would be adequate for the offence.6Legislation.gov.uk. Magistrates Courts Act 1980 – Section 19
The Sentencing Council’s Allocation Guideline provides the framework. The general rule is that either-way offences should be tried summarily unless the likely sentence would clearly exceed the court’s powers, or unless the case involves unusual legal, procedural, or factual complexity that makes it unsuitable for the lower court.7Sentencing Council. Allocation and Committal for Sentence The guideline reminds magistrates that they retain the power to commit for sentence after conviction, which allows them to accept jurisdiction even where the eventual sentence might go beyond their own limits.
Both the prosecution and the defence are asked to make representations on venue. Magistrates look at the prosecution’s summary of facts and weigh factors like the value of any property involved, the degree of planning, and the vulnerability of any victim. If they conclude the case is too serious or too complex, they decline jurisdiction and send it to the Crown Court.
Asking the Court for a Sentence Indication
If the magistrates decide the case is suitable for summary trial, an often-overlooked step follows. Under section 20 of the Magistrates’ Courts Act 1980, the court must explain that it considers summary trial appropriate, that you may consent to summary trial or choose Crown Court trial, and that if convicted summarily you could still be committed to the Crown Court for a heavier sentence.8Legislation.gov.uk. Magistrates Courts Act 1980 – Section 20
At this point you can ask the magistrates for an indication of whether they would impose a custodial or non-custodial sentence if you pleaded guilty and they dealt with the case. The court does not have to give one. If it does give a non-custodial indication and you change your plea to guilty on the strength of it, the matter proceeds immediately as a summary trial with a guilty plea.8Legislation.gov.uk. Magistrates Courts Act 1980 – Section 20 If you do not change your plea, or the court declines to give an indication, the process moves on to the election stage. This is a step worth discussing carefully with a solicitor, because accepting a non-custodial indication means giving up the right to a jury.
Choosing Between Summary Trial and Jury Trial
If the magistrates accept jurisdiction and your plea is still not guilty, the choice of venue is yours. You can consent to summary trial in the Magistrates’ Court, or you can elect trial on indictment in the Crown Court before a judge and jury.8Legislation.gov.uk. Magistrates Courts Act 1980 – Section 20 Refuse consent to summary trial and the case is sent to the Crown Court under section 51 of the Crime and Disorder Act 1998.9Legislation.gov.uk. Crime and Disorder Act 1998 – Section 51
Defence lawyers usually weigh several considerations with you. Juries may be more sympathetic to certain defences, evidentiary issues can play differently before twelve members of the public than before experienced magistrates, and the atmosphere of a Crown Court trial is more formal. Against that, the Crown Court can impose substantially heavier sentences on conviction. A defendant who gambles on a jury acquittal and loses may face a sentence well beyond anything the Magistrates’ Court could have passed. That trade-off is real, and most practitioners treat the election as one of the most consequential decisions in the early stages of a case.
Sentencing Powers in Each Court
The gap in sentencing powers is what drives most allocation and election decisions. Since November 2024, magistrates can impose up to twelve months’ custody for a single either-way offence, double the previous six-month limit.10Legislation.gov.uk. Sentencing Act 2020 – Section 22411GOV.UK. Increased Sentencing Powers for Magistrates to Address Prisons Crisis Where a defendant faces multiple connected either-way charges, the aggregate limit is higher, because the court considers its combined powers across the offences together.6Legislation.gov.uk. Magistrates Courts Act 1980 – Section 19
The Crown Court, by contrast, can impose the full statutory maximum for the offence. For theft, that is up to seven years.2The Crown Prosecution Service. Theft Act Offences For ABH, up to five years.3Sentencing Council. Assault Occasioning Actual Bodily Harm Dwelling burglary carries a maximum of fourteen years. These ceilings only bite in the Crown Court; magistrates work within their statutory cap regardless of the offence’s theoretical maximum.
Committal for Sentence After Conviction
Even after conviction in the Magistrates’ Court, the case can move to the Crown Court for sentencing. Under section 14 of the Sentencing Act 2020, if magistrates convict you of an either-way offence and conclude that it is so serious the Crown Court should deal with it, they can commit you in custody or on bail for sentence.12Legislation.gov.uk. Sentencing Act 2020 – Section 14 This may happen because evidence at trial revealed facts more serious than initially presented, or because the defendant’s record makes the offence graver in context.
A separate route applies where a defendant pleads guilty to an either-way offence and is also being sent to the Crown Court for a related matter. The magistrates can commit the guilty-plea offence alongside the related case so that the Crown Court deals with everything together.13Legislation.gov.uk. Sentencing Act 2020 – Committal for Sentence Following Indication of Guilty Plea The Crown Court then has its full sentencing powers available.
What the Venue Costs You
Where your case is heard also affects what you pay and what funding you can access. Criminal legal aid in the Magistrates’ Court is means-tested. If your adjusted annual income is £12,475 or less, representation is funded. Between £12,475 and £22,325, eligibility depends on a full means test of your disposable income; if your disposable income exceeds £3,398, you will not qualify. Anyone receiving Universal Credit, Income Support, or income-based Jobseeker’s Allowance passes the means test automatically.14GOV.UK. Criminal Legal Aid – Means Testing
Crown Court legal aid is means-tested too, but on different thresholds. If your household disposable income is £37,500 or more, you are ineligible. Between £3,398 and £37,500, you may qualify but will be required to contribute 90% of your disposable income for up to six months toward your defence costs. Capital above £30,000 can also trigger a contribution requirement on conviction.14GOV.UK. Criminal Legal Aid – Means Testing
On top of defence costs, a convicted defendant may be ordered to pay prosecution costs. Under section 18 of the Prosecution of Offences Act 1985, the court can order you to pay whatever amount it considers just and reasonable toward the cost of the prosecution, guided by a CPS scale and kept proportionate to any fine or other financial penalty.15The Crown Prosecution Service. Costs Crown Court proceedings cost more to prosecute, so a costs order after a Crown Court conviction will usually be larger. Where a defendant has no means to pay, no order should be made. This financial exposure is another factor worth weighing before electing a jury trial.