A few months after DJ Neil ‘Dr’ Fox’s acquittal at Westminster Magistrates’ Court of ten counts of historic sexual abuse, the UK Sentencing Council has issued its latest definitive guidance on allocating either way offences. The amended Allocation Guidelines will come into force on 1 March 2016 and will sharply shift the focus of allocation to the Magistrates’ power to try either way offences then subsequently commit them to the Crown Court for sentencing, if required. But how comfortably does this new direction sit with Dr Fox’s acquittal, and, indeed, just how much of a change is it from the current allocation practice?

A brief history of the allocation process

By way of background, the allocation procedure, governed by the Magistrates’ Court Act 1980 (as amended by the Criminal Justice Act 2003), is used for either way offences where the defendant either pleads not guilty or refuses to enter a plea at their first hearing (the plea before venue hearing) at the Magistrates’ Court.

The current allocation process has been in place since 28 May 2013, when the previous two-tier committal proceedings were abolished for either way offences across all Magistrates’ Courts in England and Wales. By removing the requirement for a separate committal hearing, the government at the time promised to deliver ‘swifter justice’. Just how swift and effective this new justice is has subsequently been questioned by the recent Leveson report on the efficiency of criminal proceedings, as explained below.

The current Allocation Guidelines in practice

Defendants who have been charged with an either way offence will ordinarily appear before the Magistrates’ Court first, at a plea before venue hearing. Here, defendants will have the choice of either entering a guilty plea, a not guilty plea, or, alternatively not indicating a plea at this stage of the proceedings. Where the defendant enters a guilty plea, the Magistrates’ Court will proceed to sentencing.

Where the defendant enters a not guilty plea or gives no indication as to their plea, the defendant can then elect whether they want to be tried summarily in the Magistrates’ Court, in front of either a District Judge or a bench of three lay magistrates, or on indictment in the Crown Court, in front of a jury. The defendant’s right to elect trial by jury remains unfettered. However, where the defendant choses to be tried summarily, the prosecution can oppose to his doing so. Under section 19 of the Magistrates’ Court Act 1980 both the defence and the prosecution must be given the opportunity to make representations to court on the matter of venue.

In turn, the Magistrates’ Court has a choice as to whether to accept the defendant’s election for summary trial or whether to decline and send the case to be tried at the Crown Court. The allocation process steps in at this stage.

The allocation process is solely concerned with selecting the appropriate venue for trial. Under the Allocation Guidelines[1] in force until 1 March 2016, the Magistrates’ Court will make its decision taking into account any representations made by prosecution or defence. In doing so, the Magistrates’ Court must also have regard to a number of factors. These are:

  1. a) The nature of the case;
  2. b) Whether the circumstances make the offence one of a serious character;
  3. c) Whether the punishment which a Magistrates’ Court would have the power to impose for the offence would be adequate; and
  4. d) Any other circumstances which appear to the court to make the offence more suitable for it to be tried in one way rather than the other.

The adequacy of the Magistrates’ Court’s sentencing powers, i.e. its ability to hand down up to six months’ imprisonment, is the penultimate criteria on the list. Perhaps somewhat confusingly, the Allocation Guidelines then go onto stating that “In general, either way offences should be tried summarily unless it is likely that the court’s sentencing powers will be insufficient. The court should assess the likely sentence in the light of the facts alleged by the prosecution case, taking into account all aspects of the case including those advanced by the defence.” Therefore, it is little wonder that in practice the adequacy of the Magistrates Court’s sentencing powers has often been quoted and used as the single criteria in deciding allocation.

The findings of the Leveson report

The Rt Hon Sir Brian Leveson’s review of efficiency in criminal proceedings questioned the effectiveness of the current allocation process. The Leveson report, published in early 2015, identified the allocation decision as “absolutely central and pivotal”[2] to the courts’ wider case managements powers.

The Leveson report found that a significant number (between 26 – 34%) of either way offences that had been sent from the Magistrates’ Court to the Crown Court for trial resulted in sentences that fell within the Magistrates’ Court’s sentencing powers. The report identified that cases were passed on by the Magistrates’ Court unnecessarily, due to a difference in understanding and applying the sentencing power test. This misunderstanding was considered by the report to be evidenced through regional anomalies in the percentage of cases sent to be tried at the Crown Court. The report also observed that since the current allocation procedure got first trialled in 2012 the number of either way cases committed to the Crown Court by the Magistrates’ Court has increased – contrarily to the original aim of abolishing committal in favour of allocation.

In its conclusion, the report recommended[3] that the Allocation Guidelines be updated to encourage the Magistrates’ Court to retain cases where the “combination of lack of complexity and gravity point to the conclusion that summary trial is justified”. The report further recommended that the new Allocation Guidelines emphasise that the Magistrates’ Court has the power to try cases summarily, and then subsequently commit them to the Crown Court for sentencing, if the case required it. The report concluded that the Magistrates’ Court should exercise this power, and retain cases for summary trial, even where they are uncertain about the adequacy of their sentencing power at the outset of the case.

The proceedings against Dr Fox

The recent criminal trial of one-time radio DJ ‘Dr’ Neil Fox was heralded by some commentators in the legal press as the first instance of complex either way offences being tried in the Magistrates’ Court as opposed to the Crown Court, in line with the Leveson report’s recommendations.

Fox was charged with eight counts of indecent assault, contrary to section 14(1) of and Schedule 2 to the Sexual Offence Act 1956 (now repealed), and two counts of sexual assault, contrary to section 3 of the Sexual Offences Act 2003. The case not only raised questions around the weight of victim testimonies and other oral evidence in the context of historic sexual allegations, but also required the law to be applied as it stood in the 1980’s and 1990’s. Fox pleaded not guilty to all ten counts and elected to be tried summarily in the Magistrates’ Court. The prosecution then made representations for the matter to be sent to the Crown Court for trial.

The sentences for the alleged offences could have amounted to up to ten years’ imprisonment on indictment under the relevant Acts, thus clearly having the potential to fall outside the Magistrates’ Court’s sentencing remit. Nevertheless, the Magistrates’ Court decided to accept Fox’s election and keep the trial summary, with the option of committing Fox to the Crown Court for sentencing, if required. In explaining the decision to retain the matter to be tried at the Magistrates’ Court, District Judge Riddle is said to have stated that he had taken into account the considerable stress on Fox’s family and his ability to work.[4]

In December 2015, Fox was found not guilty on all ten counts. In his lengthy written judgement,[5] District Judge Riddle said that whilst the bench was satisfied that the victims told the truth as they remembered it, the bench could not find beyond reasonable doubt that the alleged conduct had amounted to criminal offences at the time. Some of the victims criticised the proceedings, stating that in their opinion a jury would have found Fox guilty.[6]

A successful trial run?

From the alleged victims’ perspective, it would be easy to argue that keeping Fox’s trial in the Magistrates’ Court was a failure, as it resulted in his acquittal. Perhaps, a jury would have been more sympathetic to the victims’ claims, rather than strictly applying the law as it stood at the time; after all, the victims’ accounts were found to be truthful by Senior District Judge Riddle and his two accompanying Justices of the Peace.  However understandable that concern might be from the point of view of the victims, the court did what it should do: it applied the law as it stood at the material time to the evidence in the case.  Indeed the procedural course of the case is somewhat counterintuitive: ordinarily defendants elect for trial in the Crown Court because they perceive a better chance of an acquittal before a jury than before a bench of case-hardened magistrates.

Is it the case then that the Fox trial has demonstrated the Leveson report’s recommendations working well in practice? The Magistrates’ Court appears to have managed the proceedings rather smoothly and in a timelier manner than the Crown Court would have. Achieving an acquittal at the Magistrates Court used less court resources than proceedings in the Crown Court. Had Fox been convicted, he could have certainly been committed to the Crown Court for sentencing.

However, it would be mistaken to think that the Fox trial could and would be replicated across the Magistrates’ Courts of England and Wales. To begin with, a high profile celebrity sex offence trial is in no way comparable to the everyday work of the criminal courts.  It is highly doubtful that District Judge Riddle would have given serious consideration to the defendant’s ability to work and publicity when deciding to keep the case, had it not been for the defendant’s celebrity status. These factors do not in fact feature on the current Allocation Guidelines list of criteria, discussed above.

Secondly, the Magistrates’ Court’s bench had an unusual composition reflecting the gravity of the allegations: two lay magistrates were led by Senior District Judge Howard Riddle, who is England and Wales’s Chief Magistrate. Such a bench would be practically impossible to recreate concurrently, across the country and in a series of criminal trials. Thirdly, District Judge Riddle’s 46 pages long judgment is highly unusual and, again, difficult to replicate, for an average Magistrates’ Court decision.

The above factors all point towards a trial of Fox’s gravitas being kept in the Magistrates’ Court being a one-off or, at least, a rare occurrence. Ultimately, the Fox case had presumably taken up more time and resources than an average summary trial would have. This runs counter to the Leveson report’s recommendation that only cases where no complexity or sufficient gravity is present should be kept to be tried at the Magistrates’ Court.

New year, new guidelines

The Sentencing Council has revised its Allocation Guidelines for the first time since the current allocation process’ introduction in 2012. The new Allocation Guidelines will come into force on 1 March 2016.

Under the new Guidelines,[7] either way offences should be tried summarily, unless:

“a) the outcome would clearly be a sentence in excess of the court’s powers for the offence(s) concerned after taking into account personal mitigation and any potential reduction for a guilty plea; or

“b) for reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court. This exception may apply in cases where a very substantial fine is the likely sentence. Other circumstances where this exception will apply are likely to be rare and case specific; the court will rely on the submissions of the parties to identify relevant cases.”

Additionally, “in cases with no factual or legal complications the court should bear in mind its power to commit for sentence after a trial and may retain jurisdiction notwithstanding that the likely sentence might exceed its powers.”

The new Guidelines highlight the importance of warning the defendant that the option of committing the defendant to the Crown Court for sentencing remaining open if both the defendant elects and the Magistrates accept jurisdiction for trial in the Magistrates’ Court.

A reform that could go either way

Beyond the Fox case, the effectiveness of the new Allocation Guidelines is uncertain. It is somewhat questionable, however, how much of a departure they will represent from current Magistrates’ practice. Whilst the focus on the Magistrates’ Court’s power to commit to the Crown Court for sentencing is a welcome development, it tells us nothing new. The extent to which Magistrates’ Courts have already been aware of their existing power to commit following verdict and the exact reasons why they have not used it more often in the past is unclear. Therefore, whether the new Guidelines will change the courts’ practice, and if so, how much, is yet to be seen.

Additionally, the underlying message of the Guidelines remains unchanged: cases where the Magistrates’ Court deems the likely sentence to be clearly in excess of six months’ imprisonment should be sent to the Crown Court for trial. Such an assessment will always carry a degree of subjectivity and may be influenced by reluctance on the Magistrates’ part to try a case which may be perceived as too complex, particularly following the press backlash received by the court in the Fox case. The evidence taken into account by the Magistrates’ Court in carrying out their assessment will remain the same; representations made by the defence and the prosecution to the court. The new Guidelines do not give effect to other Leveson recommendations concerning the accuracy and timeliness of evidence provided by the prosecution at the plea before venue hearing.

Ultimately, a significant number of cases are sent to the Crown Court for trial because defendants elect to be tried by a jury. Whether this is due to a perceived bias against defendants in the Magistrates’ Court or other reasons, the new Guidelines will not interfere with the current free choice to be tried on indictment in the slightest.

[1] https://www.sentencingcouncil.org.uk/wp-content/uploads/Allocation_guideline.pdf

[2] See paragraph 65 at https://www.judiciary.gov.uk/wp-content/uploads/2015/01/review-of-efficiency-in-criminal-proceedings-20151.pdf

[3] Ibid, at paragraphs 77 – 82.

[4] http://www.dailymail.co.uk/news/article-3359520/DJ-Dr-Fox-not-guilty-indecent-sexual-assaults-women-girls.html

[5] https://www.judiciary.gov.uk/wp-content/uploads/2015/12/Neil-Fox-verdict.pdf

[6] http://www.independent.co.uk/news/uk/crime/dr-fox-former-dj-neil-fox-found-not-guilty-on-all-sexual-abuse-charges-a6772911.html

[7] https://www.sentencingcouncil.org.uk/wp-content/uploads/Allocation_Guideline_2015.pdf