Hybrid offence

A hybrid offence, dual offence, Crown option offence, dual procedure offence, or wobbler is one of the special class offences in the common law jurisdictions where the case may be prosecuted either summarily or as indictment. In the United States, an alternative misdemeanor/felony offense (colloquially known as a wobbler) lists both county jail (misdemeanor sentence) and state prison (felony sentence) as possible punishment.

Canada

The power to choose under which class a hybrid offence will be tried rests with the crown counsel. Hybrid offences can either be summary offences (minor crimes) or indictable offences (major crimes).^[1] For most indictable offences, a person has the right to trial by jury.

England and Wales

In relation to England and Wales, the expression "offence triable either way" means an offence, other than an offence triable on indictment only by virtue of Part V of the Criminal Justice Act 1988, which, if committed by an adult, is triable either on indictment or summarily; and the term "triable either way", in its application to offences, is to be construed accordingly. In this definition, references to the ways in which an offence is triable are to be construed without regard to the effect, if any, of section 22 of the Magistrates' Courts Act 1980 on the mode of trial in a particular case.^[2]

In English criminal law a hybrid offence is called a "triable-either-way offence" and can be heard at either the Magistrates' Court or Crown Court. The decision as to which court will hear the case is determined at a Mode of Trial hearing.

The magistrates decide if the case is suitable to be heard in the Magistrates' Court. If they decide that the case is either too serious or too complex, they can send the case to the Crown Court in which case the defendant has no say in the matter. If the magistrates decide that the case is suitable to be heard by the magistrates then the defendant is asked for consent to do so. The defendant can then either consent to be tried by the magistrates or opt for trial by jury at the Crown Court provided that they have pleaded not guilty. If they have pleaded guilty then they have no say in the matter - thus there is no way for a defendant to agree to plead guilty in exchange for having a case dealt with by magistrates.

If the defendant is tried summarily in the Magistrates' Court and is convicted, there may still be a committal to the Crown Court for sentencing if the magistrates think that their sentencing powers are inadequate.

History

The expression "hybrid offence" was applicable to an offence triable either on indictment or summarily. It was applicable to offences to which section 18 of the Magistrates' Courts Act 1952 applied.^[3]

See sections 14(c) and 64 of the Criminal Law Act 1977.

Scotland

In Scots law, all common law offences other than those within the exclusive jurisdiction of the High Court of Justiciary (i.e. murder, treason, rape and breach of duty by magistrates)^[4] can be tried either summarily in the justice of the peace courts or Sheriff Courts, or on indictment in the High Court of Justiciary or Sheriff Court. For statutory offences, the statute will provide whether the offence is triable summarily, on indictment, or both.

The choice of forum is a matter for the Lord Advocate and procurator fiscal, and is determined in a process known as marking.

United States

In U.S. states in which these offenses occur, the prosecuting attorney has discretion in deciding which category to charge the defendant. Prosecutors may strategically file such offenses as felonies, agreeing to refile the charge as a misdemeanor should the defendant consent to a guilty plea.

After hearing evidence at a preliminary hearing, the judge or magistrate has discretion to reduce a felony wobbler to a misdemeanor charge; the opposite is not permitted.

In juvenile court, after a minor is declared to be delinquent following a bench trial or open plea, the judge may classify a wobbler felony as a misdemeanor instead.

California

In California, one example of a wobbler offense is grand theft (PC487).^[5] In this case, the judge has the power to reduce a felony charge of this type to a misdemeanor during various stages of the proceeding, including the preliminary hearing all the way until after a defendant completes probation.^[6]

References

1. "Offence classification - summary conviction or indictable?". Retrieved 2008-11-07.
2. The Interpretation Act 1978, section 5 and Schedule 1 (in the heading "construction of certain expressions relating to offences"), as amended by section 170 of, and paragraph 59 of Schedule 15 to, the Criminal Justice Act 1988, and by section 154 of, and paragraph 169 of Schedule 7 to, the Magistrates' Courts Act 1980.
3. Aldridge, Trevor M. The Criminal Law Act 1977. Butterworths. 1978. ISBN 0-406-55211-8. paragraph 195 at page 40.
4. Criminal Procedure (Scotland) Act 1995, section 3
5. "California Penal Code, Section 484-502.9". Retrieved 2010-06-12.
6. "Misdemeanors, What is a Wobbler?". Retrieved 2010-06-12.