Binding Over Orders
- Procedure and Practice
The courts powers derive from:
- Justices of the Peace Act 1361 gives courts the power to bind over offenders to keep the peace.
- Under section 1(7) of the Justices of the Peace Act 1968 the court can bind over a person "who or whose case" is before the court. Therefore, following conviction, a bind over can be made in addition to any other penalty imposed.
- Under Section 12(6) of the Powers of Criminal Courts (Sentencing) Act 2000 (PCC(S)A 2000)the court when making an order for a conditional discharge can , if the person consents, allow them to give security for the good behaviour of the offender.
- Under Section 150 of the PCC(S)A 2000 the court can bind over a parent/guardian of a convicted youth to take proper care and exercise proper control.
In addition the Crown Court has specific powers under:
- Section 1 (8)(a) of the PCC(S)A 2000 whereby the Crown Court can bind over an offender to come up for judgment when called upon. This is in effect a means to postponing sentence. Notice must be given to the offender who must consent to the order. It can have a condition attached to it (such as requiring the offender to return to his own country for a period of time) but this power should be used sparingly.
In the magistrates' court additional power is under:
- Inherent Powers of Justice which gives magistrates power to bind over following arrest at Common Law where a breach of the peace has been committed or is apprehended.
- Section 115 Magistrates' Courts Act 1980.(MCA) provides that where a compliant is made the magistrates court can bind over a person by entering into a recognizance, with or with out sureties, to keep the peace or be of good behaviour towards the complainant.
- Proceedings are civil in nature, but the burden of proof is "beyond reasonable doubt".
- Any person, including a Crown Prosecutor can lay a complaint. Where a Crown Prosecutor decides to lay a complaint he should do so on behalf of the Chief Constable.
- No formal complaint is required - the defendant can already be before the court on another charge e.g. assault. Where the defendant has been arrested under common law for breach of the peace any "charge" sheet or similar documentation may be treated as a compliant under Section 115 MCA or if read out treated as an oral complaint under Section 115 MCA.
- There is power to adjourn proceedings. There is no power to remand. However, if the defendant has failed to appear, a warrant can be issued for his arrest -Section 55(4) MCA. Upon arrest the court may remand the defendant -Section 55(5) and Section 115(2) MCA.
- Where a complaint is dismissed an order for costs may be made against the complainant (Section 64 MCA). Although the CPS conducts proceedings it is not the complainant so there is no power to award defence costs against the CPS.
- Costs may therefore be made in favour or against the police.
- The proceedings are "civil".
- The court must apply the criminal standard of proof.
- Although the CPS conduct proceedings the police are the complainant and therefore costs may be made in favour or against the police.
- Power to act in this manner drives from either the 1361 Act or from the courts common law powers.
- Can apply to any person appearing before the court i.e. offender or witness.
- The power may be exercised on application or by the court on its own motion.
- The court can bind over a witness who has given evidence, but this is a "serious step" which should only be taken "where facts are proved by evidence before the court which indicates the likelihood that the peace will not be kept" (R V Swindon Crown Court ex.p. Pawiltar Singh  1 W.L.R. 499, D.C.)
- A person who has given a witness statement in a case where the Crown has offered no evidence is not "a person who or whose case is before the court" and therefore may not be bound over.
- If the circumstances so justify, a prosecutor may invite the court to consider exercising its power to bind a defendant over as an alternative to prosecution for a criminal offence. The Prosecutor should only invite the court to exercise this power once a firm and settled decision has been made to offer no evidence in the criminal proceedings.
- In some courts this proposal is treated as an invitation for the court to act of its own motion. In other courts it is treated as a complaint laid under S115MCA.
- If treated as a S115MCA complaint (which can be written but usually oral) the court may wish to hear evidence or require some proof of complaint. It is therefore necessary to ensure some admissible evidence sufficient to prove the complaint is available.
- Prosecutors should never invite the court to bind over anybody other than the defendant.
- In the Crown Court a bind over should be used as an alternative to criminal prosecution only in exceptional circumstances. The case must be reviewed in accordance with the Code for Crown Prosecutors and applying the Core Quality Standards.
- The use of the power to bind over to keep the peace does not depend on a conviction: it may be used against a person who has been acquitted by a jury (but this should be extremely rare) or on appeal. (see R V Sharp 41 Cr.App.R 86; R V Biffen  Crim.L.R.111)
- Following a youth being found guilty of any offence the court may bind over the patent or guardian to take proper care and exercise proper control.
- The parent or guardian must consent.
- If the youth is under 16 years of age the court must be satisfied that the bind over is required to prevent further offending.
- Where a bind over is not made the court must explain in open court its reasons.
- The amount of recognizance shall not exceed £1000 and the period shall not exceed 3 years or until the youth reaches 18 years (which ever is the shorter).
- If the parent or guardian unreasonably refuses to be bound over they can be fined up to £1000.
The practice and procedure in relation to binding over is now regulated by the Practice Direction (criminal consolidated) 2002,III,31. This direction takes into account the judgments of the European Court of Human Rights in Steel V United Kingdom  Crim.LR893 and in Hashman and Harrup V United Kingdom  Crim LR 185. The Direction applies to orders made under the courts common law powers and all those conferred by statute in both the magistrates and Crown Courts.
The key points are:
- The court must be satisfied that a breach of the peace involving violence or an imminent threat of violence has occurred or that there is a real risk of violence in the future. Such violence may be perpetrated either by the offender or a third party as a result of the offenders conduct.
- Rather than binding over to "keep the peace" in general terms the court should identify the specific conduct or activity from which the individual must refrain.
- The conduct or activities should be written down and served on all relevant parties. Reasons should be given. The length of the order should be proportionate to the harm and generally not exceed 12 months.
- Representations should be heard from the offender and the prosecution about the making of the order and its terms.
- If disputed the parties may call evidence (if not already heard in the proceedings).
- Even if there are admissions and consent the court should still hear representations and if appropriate evidence to satisfy itself to making the order and to clarify its terms.
- The burden of proof is beyond reasonable doubt.
- The court should announce it is satisfied that an order be made before considering the recognisance sum and then invite representations.
- The offenders' means must be taken into account when considering the amount of the recognisance.
- Alternatives to a bind over should be considered if there is a possibility of a refusal to be bound over.
- Opportunity to see a duty solicitor or be otherwise represented should be afforded before committal to custody
- If representation declined there should be offered a final opportunity to comply and the consequences of failure explained.
- S.115 (3) MCA 1980 provides where there is a refusal of or failure to comply with a bind over order the court may commit to custody for a period not exceeding 6 months or until they comply with the order.
- A person over 18 but under 21 who refuses to be bound over by a magistrates' court may be detained under S.108 PCC(S)A 2000 ( Howley V Oxford 81 Cr.App.R 246).
- There is no power to order the detention of an offender under the age of 18 years who refuses to be bound over (Veater V Glennon  1 W.L.R. 567 D.C.). However such offenders may be ordered to attend an attendance centre under S. 60(1)(b) PCC(S) A 2000.
- In the Crown Court, unlike the magistrates' court, there is no specific provision to deal with refusal to be bound over. Therefore it may be dealt with as a contempt.
- Where a breach of a bind over is proved the court has power to order the person to pay the amount of the recognizance.
- But there is no power to impose a sentence of imprisonment or otherwise for the offence itself.
- The standard of proof is the civil one. (Conlan V Oxford  79 Cr. AppR. 157, DC)
- By way of "case stated" to the Divisional Court if the order is wrong in law.
- To the Crown Court under section 1 Magistrates' Courts (Appeals from Binding over Orders)Act 1956.
Archbold 5-177 - 5-184
Stones Justices' Manual 1-1020
Stones Justices' Manual 1-6970
Stones Justices' Manual 3-360