Mode Of Trial and Crown Court Delays - Should A Defendant Still Bother Electing a Crown Court Trial?

There are three main types of criminal offences in England the Wales:

• Those that are summary only, such as common assault and careless driving, where the maximum sentence is 6 months or below or do not carry a prison sentence.
• More serious offences such as murder, manslaughter and rape are indictable only and must be dealt with at the Crown Court.
• A number of offences at triable either way. That means they can be dealt with either at the Magistrates or Crown Court. Examples include actual bodily harm, s20 Offences Against the Person Act 1861, possession and possession with intent to supply illegal drugs and burglary.

So, if a defendant is charged with an either way offence do they get to choose where they want a case to be tried?

If the Lay Bench or District Judge take the view that jurisdiction can be accepted, then yes, the defendant can choose which Court they want their case to be dealt at. If jurisdiction is declined, no.

The magistrates should conclude that a matter is suitable to be tried summarily unless the sentence that would be imposed would clearly be in excess of the court’s sentencing powers, or the case is one of unusual legal, procedural or factual complexity. In cases with no factual or legal complications, the court may retain jurisdiction even where the likely sentence might exceed its powers. Even if they conclude that the case is suitable for summary trial, the defendant may still elect to be tried by a jury in the Crown Court.

When advising clients, a solicitor will give the pros and cons of each Court. There are shorter wait times for trials in the Magistrates Court, however, since the COVID-19 pandemic, delay in the Crown Court has now been a huge factor in the decision-making progress. Some trials, with clients on bail have been fixed for trial some two or three years from the Plea and Trial Preparation Hearing (PTPH). This is a long wait for defendant and can cause a lot of stress. It can mean being subject to strict bail conditions and a huge length of time waiting for trial.

This delay isn’t just caused by the backlog with COVID but also chronic underinvestment in the court system - this includes the closure of courts and cuts to legal aid and an increase in contested cases.

According to BBC in December 2025 more than 79,600 criminal cases are now caught in the back log. The Ministry of Justice has projected this figure to be 100,000 by 2028.

It should be borne in mind that cases with clients in custody, are given priority over cases where the clients are on bail. Trials involving vulnerable witnesses or youth defendants maybe also be given higher priority and therefore do not result in such lengthy delays.

A custody time limit is also given to those in custody; this is the maximum legal timeframe a defendant can be held in custody awaiting trial. In the crown court these run out approximately 6 months starting from the date the case was sent to the Crown Court. The time limit can be extended but if a Judge finds that the crown have not prepared a case with all due diligence and expedition then there a right to bail, likely with conditions.

What are the courts doing about this now?

The maximum prison sentence a Magistrates Court could give in England and Wales was 6 months for a single either way offence this was then increased to 12 months in November 2024, consecutive sentences could be given but the sentence still could not exceed 12 months.

This was changed in the hope that it would allow more complex cases to be resolved in the Magistrates Court. The government is now pushing forward legislation to rise this limit further between 18 and 24 months. They are also pushing to take away a defendant’s right to elect…

Certain Courts are also putting aside court rooms to deal with non-complex short bail cases to get them dealt with faster

Nightingale Courts were introduced (temporary courts) to deal with the back log, many shut however some are still open now permanently including in Telford and Fleetwood.

With the depressing delay news is it worth electing a Crown Court trial?

The defendant must weigh up the factors to suit them but in essence the following should be borne in mind.

Of course, prosecutors aren’t going to drop cases simply because the trial isn’t listed until 2028/29, however such an argument can be raised in both bail applications and letters of representations.

There has been a small increase in defendants whose case is ‘dropped’ up 2 per cent on the previous year – 3,333 in 2024 to 3,385 in 2025. (Ministry of Justice Criminal Court statistic quarterly) but this could increase again. According to parliament the conviction rate is 54 per cent in the Crown Court compared to 62 per cent in the in Magistrates Court. Factoring in the number of defendants standing trial this is actually a huge difference.

Although there is a current tense debate to restrict or eliminate jury trials for certain offences, electing Crown Court trial, at present, still gives the right to be tried by 12 of your peers choose at random from the electoral role rather than a Lay Bench or Magistrates. The Crown Court also offers better opportunities and certainly more time for robust legal arguments before the trial begins.

If denied bail in the Magistrates Court, the sentence may have been served by the time the trial begins at the Crown Court, however, of course this is a factor that can be raised in a bail application in the Crown Court.

In summary a defendant simply must weigh up the factors being deciding which court to choose. The delay should not be the one deciding factor.