Hybrid Offence
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A hybrid offence, dual offence, Crown option offence, dual procedure offence, offence triable either way, or wobbler is one of the special class offences in the
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
jurisdictions where the case may be prosecuted either summarily or as
indictment An indictment ( ) is a formal accusation that a person has committed a crime. In jurisdictions that use the concept of felonies, the most serious criminal offence is a felony; jurisdictions that do not use the felonies concept often use that of a ...
. In the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territori ...
, an alternative misdemeanor/felony offense (colloquially known as a wobbler) lists both county jail ( misdemeanor sentence) and state prison (
felony A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law (from the French medieval word "félonie") to describe an offense that resu ...
sentence) as possible punishment, for example,
theft Theft is the act of taking another person's property or services without that person's permission or consent with the intent to deprive the rightful owner of it. The word ''theft'' is also used as a synonym or informal shorthand term for som ...
. Similarly, a wobblette is a crime that can be charged either as a misdemeanor or an infraction, for example, in California, violating
COVID-19 Coronavirus disease 2019 (COVID-19) is a contagious disease caused by a virus, the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). The first known case was identified in Wuhan, China, in December 2019. The disease quickly ...
safety precautions (ranges from a $100 fine to one year in jail).


Canada

The power to choose under which class a hybrid offence will be tried rests with the
crown counsel Crown counsel are lawyers, generally in Common Law jurisdictions, who provide advice to the government and acts as prosecutors in cases. In various jurisdictions their title can vary and they could also be known as the Queen's Advocate, King's Advo ...
. Hybrid offences can either be summary offences (minor crimes) or indictable offences (major crimes). For most indictable offences, a person has the right to
trial by jury A jury trial, or trial by jury, is a legal proceeding in which a jury makes a decision or findings of fact. It is distinguished from a bench trial in which a judge or panel of judges makes all decisions. Jury trials are used in a significan ...
. A hybrid offence is the most common type of charge in Canada. There are three types of charges and each will affect when you can apply for a Record Suspension. Under the
Criminal Records Act The ''Criminal Records Act'' (the ''Act'') is a piece of Canadian legislation intended to provide for the relief of persons who have been convicted of offences and have subsequently rehabilitated themselves. It became law in 1985. The purpose of ...
, Section 2.1, the
Parole Board of Canada The Parole Board of Canada (french: Commission des libérations conditionnelles du Canada; formerly known as the National Parole Board) is the Canadian government agency that is responsible for reviewing and issuing parole and criminal pardons i ...
is the administrative tribunal that has the exclusive authority to make decisions regarding Record Suspensions. A Record Suspension is a formal means to remove the disadvantages associated with having a Criminal Record for people that have been convicted of a criminal offence. In order to apply for a Record Suspension an individual must complete an application that is later reviewed by the Board and a decision to grant, or deny the application is made by an officer. Under Section 7, the Parole Board of Canada also has the ability to revoke granted Record Suspensions if there is a breach in good conduct on the part of the applicant or if a person reoffends and commits an indictable offence and even in some cases a summary offence.


England and Wales

When an enactment in the United Kingdom creates an offence, it generally specifies what penalties apply "on summary conviction" or "on conviction on indictment". In relation to
England and Wales England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
, the first expression refers to a trial in a
magistrates' court A magistrates' court is a lower court where, in several jurisdictions, all criminal proceedings start. Also some civil matters may be dealt with here, such as family proceedings. Courts * Magistrates' court (England and Wales) * Magistrate's Cou ...
without a jury before a district judge or a panel of
magistrates The term magistrate is used in a variety of systems of governments and laws to refer to a civilian officer who administers the law. In ancient Rome, a '' magistratus'' was one of the highest ranking government officers, and possessed both judici ...
, while the latter refers to a trial in the Crown Court by
jury A jury is a sworn body of people (jurors) convened to hear evidence and render an impartial verdict (a finding of fact on a question) officially submitted to them by a court, or to set a penalty or judgment. Juries developed in England du ...
. Some offences allow either mode of trial, and as such the
Interpretation Act 1978 The Interpretation Act 1978 is an Act of the Parliament of the United Kingdom. The Act makes provision for the interpretation of Acts of Parliament, Measures of the General Synod of the Church of England, Measures of the Church Assembly, subor ...
defines the expression "triable either way" to describe an offence which, if committed by an adult, is triable either on indictment or summarily. By contrast a "summary offence" is one that is ''not'' defined as triable on indictment (cannot normally be tried in the Crown Court), whereas "indictable offence" includes an either way offence. In some cases an offence may be triable only summarily because the amount of money at issue is small (section 22 of the
Magistrates' Courts Act 1980 The Magistrates' Courts Act 1980 (c. 43) is an Act of the Parliament of the United Kingdom. It is a consolidation Act.The Public General Acts and General Synod Measures 1980. HMSO. London. . Part IV. Pages ''i'', ''j'' and i. It codifies the pr ...
), or an offence that can normally be tried only summarily may nonetheless be tried on indictment along with other offences that are themselves indictable (Part V of the
Criminal Justice Act 1988 The Criminal Justice Act 1988 (c 33) is an Act of the Parliament of the United Kingdom. Title The title of this Act is: Unduly lenient sentences In England and Wales, the Act granted the Attorney General the power to refer sentences for ...
); these circumstances do not affect whether an offence is described as "summary", "indictable", or "either way". Offences committed by offenders under 18 are usually tried in the
Youth Court A juvenile court, also known as young offender's court or children's court, is a tribunal having special authority to pass judgements for crimes that are committed by children who have not attained the age of majority. In most modern legal s ...
, which has different procedures. When a person is charged with an either-way offence, the decision as to which court will hear the case is determined at a Mode of Trial hearing before a magistrates' court. The court decides if the case is suitable to be heard in a magistrates' court. If they decide that the case is either too serious or too complex, or another offence is being charged which is triable only on indictment, 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 summarily (though likely in a different hearing on a later date) 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. Magistrates' courts have limited powers of sentencing; for example, they may not impose a sentence of imprisonment longer than twelve months. If the defendant is tried summarily in a 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. Thus it is not possible for a defendant to avoid the harsher sentences available in the Crown Court simply by accepting a summary trial.


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 The Magistrates' Courts Act 1952 (15 & 16 Geo 6 & 1 Eliz c 55) was an Act of the Parliament of the United Kingdom which related to magistrates' courts. It was repealed by section 154 of, and Schedule 9 to, the Magistrates' Courts Act 1980. Se ...
applied. 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 The High Court of Justiciary is the supreme criminal court in Scotland. The High Court is both a trial court and a court of appeal. As a trial court, the High Court sits on circuit at Parliament House or in the adjacent former Sheriff Cour ...
(i.e. murder,
treason Treason is the crime of attacking a state authority to which one owes allegiance. This typically includes acts such as participating in a war against one's native country, attempting to overthrow its government, spying on its military, its diplo ...
,
rape Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without their consent. The act may be carried out by physical force, coercion, abuse of authority, or ...
and breach of duty by magistrates) can be tried either summarily in the
justice of the peace court A justice of the peace court is the least authoritative type of criminal court in Scotland. The court operates under summary procedure and deals primarily with less serious criminal offences. History The commission of the peace was originall ...
s 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 His Majesty's Advocate, known as the Lord Advocate ( gd, Morair Tagraidh, sco, Laird Advocat), is the chief legal officer of the Scottish Government and the Crown in Scotland for both civil and criminal matters that fall within the devolved p ...
and procurator fiscal, and is determined in a process known as marking.


United States

In
U.S. state In the United States, a state is a constituent political entity, of which there are 50. Bound together in a political union, each state holds governmental jurisdiction over a separate and defined geographic territory where it shares its sove ...
s 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). 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.


References

{{DEFAULTSORT:Hybrid Offence Criminal law