Absence and the boundary between trial routing and sentence

Absence is stage-specific

The general Part 9 rule is that the defendant is present. Current exceptions are not a general power to obtain a plea or election whenever a solicitor attends. First identify the exact hearing stage, then its legal power and conditions. A properly directed live-link appearance is different from proceeding without the defendant; it still requires lawful arrangements and effective participation. CrimPR r 9.2 and applicable live-link provisions.

Read r 9.2 with MCA ss 17A–17B, 23 and 23A. In particular, the shorter description of represented waiver in the procedural rule does not delete s 23's good-reason condition. The client supplies the relevant consent; the representative communicates it. Neither counsel's convenience nor a vague statement that the client “probably agrees” is equivalent to informed instructions. Record both the consent and the court's reason.

Section 23 also changes the mechanics. Consent to the hearing taking place in absence is not consent to summary trial. For uncertain-value damage, s 23(3) uses the representative's separately signified summary-trial consent to select the special summary route; without it, ordinary allocation follows. If ordinary allocation favours summary trial, s 23(4) disapplies s 20 and asks whether summary-trial consent has been or is signified by the representative: consent means the summary route, and absence of consent means sending. Do not transplant the ordinary in-person s 20 indication sequence into that statutory absence branch. If allocation favours indictment, s 23(5) supplies sending. The hospital example therefore requires instructions about more than simply not attending. MCA s 23(3)–(5). CrimPR r 9.2; MCA ss 17A–17B and 23–23A.

Worked contrast — hospital admission. Daniel, an adult facing an ordinary either-way charge, is in hospital. His solicitor is present with instructions consenting to absence. If the court is still at the initial plea-before-venue stage, those facts do not satisfy the disorderly-conduct exception: it cannot simply take an ordinary s 17A plea in his absence because hospitalisation is understandable. If a valid initial indication has already occurred and the court is now at allocation, it can consider proceeding under s 23 where the represented consent and good-reason requirements are satisfied. It should examine whether Daniel can give effective instructions on the decisions remaining. A lawful live-link solution or an adjournment may be required for the initial stage.

A defendant's failure to attend is not itself a guilty plea, a jury election or consent to a different court. Non-attendance may justify an attendance-enforcement step where its own conditions are met. It does not create a missing power to conduct a particular stage. The separate rules for a summary trial in absence and for sentencing must be analysed at their own stages; do not use them to bypass the initial plea-before-venue requirements.

Reform boundary. The Judicial Review and Courts Act 2022 contains separate provisions changing written plea and absence procedure. The commencement material examined through SI 2026/716 (Commencement No. 7), together with the operative procedural rules, does not establish commencement of the relevant ss 6–10 reforms as at 5 September 2026. They must not displace the current distinctions above. That is separate from s 11, which is already operative and is addressed below. Do not assume that all criminal-procedure provisions of the 2022 Act commenced together. JRCA 2022 ss 6–11 and 51; SI 2026/716.

Sending, committal and remittal answer different questions

Committal for sentenceGlossary termCommittal for sentence follows conviction. Under Sentencing Act 2020 s 14, the magistrates may commit an adult convicted of an either-way offence where the offence, alone or with associated offences, is sufficiently serious that the Crown Court should have the wider power to deal with the offender. Other provisions address dangerousness, qualifying related offences and additional offences. Identify the actual provision; not every committal gives the Crown Court unrestricted indictment-level powers. The full exercise of those powers belongs to the sentencing chapter. Sentencing Act 2020 ss 14–15, 18 and 20–23; CrimPR rr 9.15 and 28.13.

There is no ordinary rule that a lawful summary allocation makes later committal impossible unless a new fact has emerged. The relevant statutory conditions govern. Nor is committal a reason to undo a conviction and conduct a second trial. Remember the important special limits: the s 22 damage route does not permit ordinary committal on that charge, and a binding s 20A non-custodial indication cannot be evaded merely by changing the sentencing court: the express committal exceptions explained in section 4 must actually apply.

Worked example. After a valid summary conviction for an ordinary either-way offence, a pre-sentence report and the full circumstances demonstrate seriousness justifying s 14 committal. The magistrates record the conviction and commit for sentence. The Crown Court does not ask a jury to determine that guilt again. Compare a decision before trial under s 25: that is a change of trial route before conviction and leads to sending, not committal for sentence.

Remittal for trial moves a suitable case back from the Crown Court to the magistrates' court under Senior Courts Act 1981 s 46ZA. The Crown Court cannot use it to send an adult indictable-only offence for summary trial. For an either-way offence, the defendant must appear or consent to the exercise in absence; for an adult, consent to the remittal itself is also required. Those are two distinct consent questions. The court takes account of related offences and allocation guidelines. A person's original Crown Court election does not entitle a court to return the case later without the consent now required. SCA 1981 s 46ZA(1)–(5); CrimPR r 9.16.

CrimPR r 9.16 permits specified arrangements with or without a hearing. Absence of the defendant requires the defendant's consent; absence of the prosecutor requires the prescribed opportunity, at least five business days, to make representations. The court specifies the next magistrates' attendance and decides bail, and the court officer transmits the relevant orders, custody information, representation and participation arrangements. For a child, the Crown Court has a duty to consider remittal and explain refusal, subject to the excluded offences; the full youth rule remains in Chapter 13 (Youth Court, Remand, Sentencing, Legal Aid and Welsh Language). Remittal must not leave the learner or client guessing which court now controls the case.

Remittal for sentence is different. Under Sentencing Act 2020 s 25A, the Crown Court may remit an adult for sentence where the adult was convicted by magistrates and committed for sentence, or was convicted in the Crown Court on a guilty plea of an offence other than an indictable-only offence. Related offences and allocation guidelines matter. This is not a general power to send an adult back for sentence after any Crown Court jury conviction, and the statute does not import s 46ZA's adult trial-remittal consent requirement. No new trial follows: guilt has already been established. Section 25A(4) excludes a right of appeal against the remittal order; do not confuse that with an appeal against the eventual sentence. Sentencing Act 2020 s 25A.

These powers were inserted by JRCA 2022 s 11, commenced on 28 April 2022 by s 51(1)(a). They are not awaiting commencement merely because the same Act's separate written-plea and absence reforms are. The actual commencement provision, not an explanatory summary of the Act, establishes the difference. JRCA 2022 ss 11 and 51(1)(a).

A clerical record saying “sent” where the court actually convicted and committed is different from a court exercising a power it never had. Compare the court extract, advocates' notes, plea record and actual order. Seek the appropriate correction or legal remedy; do not assume that every defect means an acquittal or that a general remittal power can retrospectively repair any invalid sending. Complex jurisdictional remedies and appeals should be taken into the appeals chapter with the exact record, rather than inventing an informal transfer. CPS procedural-error guidance; statutory powers above.

Unknown proceedings: identify the reopening route promptly

If proceedings began by summons, requisition or single justice procedure notice and the defendant did not learn of the case until after trial began, the statutory-declaration procedure may apply. Under MCA ss 14 or 16E and CrimPR r 44.2, the declaration should normally be served within 21 days of learning of the case. A late declaration requires an explanation: the court may accept it if it was not reasonable to expect service within the 21-day period. It is not enough to request extra time without explaining why timely service could not reasonably be expected. The trigger is knowledge of the proceedings, not automatically the date of the original offence or conviction.

A valid declaration within time or an allowed extension makes the summons, requisition or single justice notice and subsequent proceedings void, but not the original application or written charge. It is not an acquittal and does not guarantee that the prosecution ends. The rules provide for the case to continue through the appropriate fresh procedure; a single justice case also requires the prescribed response accompanying the declaration. MCA s 142 and CrimPR r 44.3 provide a separate interests-of-justice reopening or variation framework. Neither should be confused with an ordinary appeal against a decision the defendant knew about. MCA ss 14, 16E and 142; CrimPR rr 44.2–44.3.

Worked example — Lewis. Lewis first discovers a conviction when enforcement correspondence reaches him after a move. His solicitor obtains the initiating and service documents, the trial record and evidence of when Lewis first learned of the case. If the statutory conditions are met, the solicitor acts within the 21-day period rather than merely writing that Lewis disagrees with the fine. Lewis is told that successful reopening removes the affected proceedings, not necessarily the underlying charge. If he had known of the trial and simply chose not to attend, the ignorance declaration is not a truthful or appropriate route.

Complete the handover, not just the forum answer

At the end of the first-hearing route, there must be an intelligible record of each charge, each plea or indication, any conviction, the statutory destination, the next date, bail or remand, and the preparation tasks. Chapter 4 (Bail, Remand and Custody Time Limits) determines court bail, remand and custody time limits using the actual procedural status; a court move is not permission to restart a custody clock casually. Chapter 5 (Case Management, PTPH, Indictment and Disclosure) takes the sent or retained case into preparation, prosecution evidence, the indictment where applicable and disclosure. The sentencing chapter takes a conviction or committal with the exact power and any binding indication. Chapter 13 (Youth Court, Remand, Sentencing, Legal Aid and Welsh Language) remains the canonical reference for youth and general funding rules.

Final retrieval task. Reconstruct the opening journey without reading it. Then explain, for the same ordinary adult either-way allegation, what changes when (a) the defendant gives a guilty indication, (b) gives no indication, (c) refuses summary trial after allocation, or (d) is in hospital before the first indication. Add a low-value-damage variant and identify the valuation and consent questions. Feedback: guilt changes the task from trial routing to sentence; silence has stage-specific consequences; hospitalisation is not the disorder exception; and criminal-damage consent is not interchangeable with shoplifting's Crown Court choice. Return to the relevant section before attempting a fresh factual variant. Delayed recall should test those distinctions, not merely the names of the courts.

Commencement. SI 2026/721's principal amendments begin on 5 October 2026 and are not treated here as operative on 5 September 2026.