Data Insight: Deciding to have a Crown Court jury trial for a theft offence: Consequences, and relationships with ethnicity

This Data Insight investigates the consequences of a defendant electing to have a Crown Court trial, as compared to having their case heard in the magistrates’ courts, after pleading not guilty to an either-way theft offence. Either-way offences are offences that can be tried in the magistrates’ courts or in the Crown Court. The Data Insight also examines this decision in relation to ethnicity.

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The analysis is based on either-way theft offences initiated (charged or summonsed) between 1 January 2018 and 31 December 2020 for which the defendant pleaded not-guilty in the magistrates’ courts. It compares cases where the defendant decided on a Crown Court trial to those where the defendant elected for the case to remain in the magistrates’ courts. To ensure valid comparisons, the analysis excludes cases where the magistrates decided that the case was sufficiently serious to be sent to the Crown Court (4% of not-guilty pleas for an either-way theft offence).

Background

Either-way offences are offences that can be tried in the magistrates’ courts or in the Crown Court. Cases start in the magistrates’ courts. If a defendant pleads not guilty to an either-way offence, the magistrates can decide that the case is too serious for them to deal with and send the case to the Crown Court for trial. If the magistrates decide that they can hear the case, the defendant then has the choice of remaining in the magistrates’ courts for trial or having a jury trial at the Crown Court instead. If a defendant is found guilty in the magistrates’ courts on an either-way offence, the case can be sentenced by the magistrates’ courts or sent to the Crown Court for sentencing.

Ministry of Justice (MoJ) statistics indicate that defendants from minority ethnic backgrounds, particularly Black defendants, are more likely to elect for a jury trial at the Crown Court compared to White defendants (MoJ, 2021). The Lammy Review suggests that this may be due to defendants from minority ethnic backgrounds feeling they will not receive a fair hearing from magistrates (Lammy, 2017).

Hedderman and Moxon (1992) found through interviews that the most common reason defendants and solicitors opted for a Crown Court trial was that they felt there would be a better chance of acquittal. Figures from the Crown Prosecution Service (2022), for cases prosecuted in 2021 to 2022, indicate that where cases go to an actual trial hearing:

• 71% result in a conviction when heard in the magistrates’ courts
• 56% result in a conviction when heard in the Crown Court.

However, if the defendant is convicted, having the case heard at the Crown Court could potentially lead to a harsher sentence (Hedderman and Moxon, 1992).

This Data Insight, which focuses on either-way theft offences, investigates the relationship between ethnicity and electing for a Crown Court trial. It also compares the outcomes of cases where the defendant elects for a Crown Court trial to those where the case is heard in the magistrates’ courts.

What we found

• Black defendants are significantly more likely to elect to have their case heard in the Crown Court
• There is a higher proportion of convictions for cases that elect to be heard in the Crown Court
• Sentences are more severe and more likely to result in immediate custody for cases which elect to go to the Crown Court
• The average length of sentences for immediate custody is longer for cases electing to be heard in the Crown Court.

Why this matters

The above findings indicate that defendants who plead not guilty in the magistrates’ courts and elect to have their case sent to the Crown Court are:

• more likely to receive a conviction
• more likely to receive a more severe, and longer sentence

compared to if they had chosen for their case to remain in the magistrates’ courts for determination of guilt or innocence. The findings control for offence seriousness to the extent that the analysis is restricted to either-way theft cases where the magistrates do not consider the case to be of sufficient seriousness or complexity to send it to the Crown Court for trial.  However, the analysis does have the limitation that it does not control for differences in offence types within the either-way theft offence category.

More and longer prison sentences contribute to prison numbers and we currently have a prison population crisis highlighted by the Chief Inspector of Prisons (HMIP, 2023). Black defendants are more likely than White defendants to elect for their case to be sent to the Crown Court. This may be a factor in contributing to more severe sentences for Black defendants.

Crown Prosecution Service figures indicate that for cases that go to a trial hearing, the conviction rate is higher for the magistrates’ courts than the Crown Court (CPS, 2022). However, if defendants elect for their case to go to the Crown Court, and then subsequently change their plea to guilty, they will not benefit from this apparently lower conviction rate.

In addition, it is important to consider what the higher conviction rate in the magistrates’ courts represents. Defendants and defence solicitors are likely to think that magistrates are 'on the side of the police’ (Hedderman and Moxon, 1992). However, another explanation could be that cases with more solid prosecution evidence are filtered out before they reach a Crown Court trial because the defendant changes their plea to guilty.

Magistrates may be hearing a greater proportion of cases with more solid prosecution evidence, because there has not been time for the defendant to change their plea before it is heard in the magistrates’ courts. In other words, the difference may at least in part be due to differences in the weight of evidence, rather than something intrinsic to magistrates or their decision making. It is not possible to verify this using the data that was used for this analysis, but this is a topic worthy of further investigation.