The Right to Trial by Jury & Withdrawing Consent to Summary Trial

At a time where the concept of “swift, summary justice” is being routinely undermined by the lack of resources in the Criminal Justice System, the advantages of being tried in the Magistrates’ Court for either-way offences are rapidly being outweighed by the disadvantages. In light of this, some Defendants may be reconsidering whether they now want to have a trial by jury. Tony Williams examines the circumstances under which a Defendant may withdraw their consent to summary trial in favour of electing trial by jury at the Crown Court.

Anthony Williams - Summary Trial

The Right to Jury Trial – Either-Way Offences

When a Defendant first appears at a Magistrates’ Court in relation to an either-way offence, under S.20(9)(a) of the Magistrates’ Courts Act 1980, the Court “shall ask the accused whether he consents to be tried summarily or wishes to be tried on indictment and—

(a) if he consents to be tried summarily, shall proceed to the summary trial of the information; and

(b) if he does not so consent, shall proceed in relation to the offence in accordance with section 51(1) of the Crime and Disorder Act 1998”.

This section enshrines in statute a Defendant’s long-held right to be tried by a jury of their peers, unless he consents to be tried by a bench of Magistrates or a District Judge instead. If a Defendant consents to be tried at the Magistrates’ Court for the offence, the Court should proceed under the usual procedure for summary trial. 

Defendants may consent to summary trial for a number of reasons. This may include the promise of speedy summary justice and of having their case dealt with relatively quickly when compared with the wait to have an effective Crown Court trial. However, with the backlog in Magistrates’ Courts only increasing alongside that in the Crown Court, the advantages of waiting for a jury trial may seem far more attractive to patient Defendants.

Defendants may also consent to summary trial in light of the Magistrates’ Court’s relatively limited sentencing powers. Of course, even after trial, a Magistrates’ Court may take the view that their sentencing powers are insufficient and may commit a Defendant to be sentenced at the Crown Court under s.14 of the Sentencing Act 2020 anyway.

Understandably, there is very little scope for a Defendant to change their mind once their choice has been made – but contrary to popular belief, that choice is not set in stone.

Withdrawing Consent to Summary Trial

R v Birmingham Justices, ex parte Hodgson [1985] QB 1131 confirms that a Magistrates’ Court does have discretion to permit the Defendant to withdraw their consent to summary trial, notwithstanding the wording of the Magistrates Court Act 1980.

In exercising their discretion, they must have regard to the “broad justice” of the situation, and they are entitled to take into account:

  1. Whether the Defendant had his rights as to mode of trial fully explained to them;
  2. Whether they understood those rights;
  3. Whether they voluntarily consented to be tried summarily;
  4. Whether there were no unusual, difficult or grave features in the case.

Consent given to be tried summarily when unrepresented, or through a misunderstanding of the law, may be invalid because the Defendant does not appreciate the significance of the choice. The High Court explained its logic as follows:

“If the defendant demonstrates that his original choice was exercised when he did not properly understand the nature and significance of the choice which he was making, then it is as if he had never made that choice and I repeat that Parliament conferred on a defendant the right to make that choice regardless of the justices’ view about which was the more suitable court to deal with the case.” (per McCullough, J at 1144 (pages 111)).

It is not automatic that a Defendant who was unrepresented when they consented to summary trial will have their application granted. Likewise, a Defendant who was represented when consenting to summary trial is not prohibited from applying – although it may be a powerful argument against such an application being granted.

Where material before the Magistrates’ shows that the accused did not properly understand the nature and significance of the choice put to them, the “broad justice” of the situation demands that he be allowed to withdraw consent. Any view the Court may have as to what mode of trial is more appropriate is not a factor which should weigh against or in favour of such an application.


A Defendant is entitled to apply to withdraw consent to summary trial and a Magistrates’ Court has discretion to grant that application, but this would need to be more than a tactical decision. The Court would have to be satisfied that it would be in accordance with the “broad justice” of the situation. 

The main question the Court has to consider is whether the Defendant understood the choice they were making when they consented to summary trial and the significance of that choice. If a Defendant had not fully appreciated the consequences of agreeing to summary trial in the current environment, that could well form an argument that they did not truly understand the choice they were making.

It is of course imperative that any such application is made promptly. Applications to withdraw consent made on the day of trial are significantly less likely to be granted on account of the delay this will cause in general. If a Defendant is concerned that they did not fully understand the choice between Magistrates’ Court trial and jury trial and the consequences of that choice, they would benefit from seeking specialist advice and assistance to make an application as described above.