Allocation on a Domestic ABH: Is the Magistrates' Court Really the Softer Option?
Stefan, 34, is charged with assault occasioning actual bodily harm. He accepts that during an argument he pushed his partner, causing a cut above her eye that needed three stitches. Their children, aged 6 and 8, were in the next room and the 8-year-old saw the injury and the aftermath. Stefan has no previous convictions, has written a letter of apology and has attended every court date. The Crown submits that the case is too serious for the magistrates' court because of the domestic context and the child's presence. Stefan wants to plead guilty at the first opportunity and wants to stay in the magistrates' court because he believes the sentence will be lower. The bench indicates that it is willing to accept jurisdiction if invited to do so.
1. Advise Stefan on allocation and on his assumption that the magistrates' court will pass a lower sentence.
Read the worked answer
The allocation decision. ABH is either-way. The bench applies the allocation guideline and considers the nature and gravity of the offence, the likely sentence, and any representations. The aggravating features here are real: a domestic context, an injury requiring three stitches, and a child of 8 witnessing the injury and its aftermath. Those are classic aggravating factors in the domestic abuse guideline and can readily take the case above the magistrates' sentencing powers.
His assumption is wrong. The magistrates' court can impose a maximum of six months' custody for a single either-way offence. But s.3 Powers of Criminal Courts (Sentencing) Act 2000 permits a bench that accepts jurisdiction to commit him for sentence if, after conviction, it considers its powers insufficient. If that happens, the Crown Court may impose any sentence up to the indictable maximum - five years for ABH. Electing summary trial therefore does not cap the sentence.
What he gains and loses. The magistrates' court is faster and the hearing is generally less formal, and credit for a guilty plea at the first opportunity - up to one-third - is the same in either court. But the risk of committal is substantial on these facts, and if he is committed the loss of time is worse than if he had been sent immediately.
Advice. Explain the s.3 risk in terms he can understand, take his instructions in writing on venue, explore a basis of plea (a single push, no weapon, no premeditation, immediate remorse) and do not promise a lower sentence.
2. He pleads guilty in the magistrates' court and the bench commits him for sentence under s.3. What happens next and what can you do?
Read the worked answer
The mechanics. Before committal the bench must give him the opportunity to make representations. Committal is to the Crown Court, which then deals with him under s.5(1) PCC(S)A 2000 as if he had been convicted on indictment: the full range of sentences and ancillary orders is available, including custody, a suspended sentence, a community order, a restraining order, compensation and costs.
There is no appeal against committal. The remedy is an appeal against sentence to the Court of Appeal, with leave, which is a long and uncertain route. In the meantime you can invite the Crown Court to remit the case to the magistrates under s.6 PCC(S)A 2000 if it considers the lower court has sufficient powers; that is unlikely where the bench has already found its powers insufficient, but it is worth raising if the mitigation is strong.
Preparation. Ensure the plea and any basis of plea are recorded precisely. A pre-sentence report should be obtained before a custodial or community sentence unless the court considers it unnecessary (s.156 Criminal Justice Act 2003). Gather character references, evidence of the letter of apology, any work or caring responsibilities, and material on the children's welfare. Check the victim's position on compensation, and be ready to address the domestic abuse guideline and the child-present aggravating factor directly rather than leaving the Crown to do so.
3. What ancillary orders and sentencing factors should you address at the sentencing hearing?
Read the worked answer
Restraining order. Under s.5 Protection from Harassment Act 1997 the court may make a restraining order on conviction to protect a person from harassment, and it can do so without a separate charge. Given the domestic context, the court is likely to make one. Argue for a proportionate, time-limited order rather than an indefinite one, and ensure it is not so wide that it prevents legitimate contact about the children.
Compensation, surcharge and costs. Compensation for the injury is available under s.130 PCC(S)A 2000 and the court must consider it. The victim surcharge is mandatory and prosecution costs are likely to be sought.
If a community order. Unpaid work, an accredited domestic abuse programme, a rehabilitation activity requirement and, if necessary, a curfew with electronic monitoring are the realistic components. Emphasise his lack of previous convictions, his early plea, his employment and his willingness to engage.
If custody. Address the threshold in s.189 CJA 2003 for a suspended sentence, but recognise that the injury, the domestic setting and the child witnessing the aftermath are aggravating factors that may take it above the threshold. Credit for the guilty plea at the first opportunity should be expressly advanced.
Overall. Argue for the lowest appropriate sentence, identify the specific factors that mitigate, and be realistic that a restraining order is very likely.