Binding Over Orders

Contents

• Introduction
• Relevant law
• Procedure and practice
  • Section 115 MCA 1980
  • Against any person appearing in proceedings before the court
  • As an alternative to criminal proceedings
  • Binding over a parent or guardian
  • Criminal Practice Directions: Sentencing
• Refusal to be bound over
• Breach proceedings
• Appeals
• Good Character directions

Introduction

Binding over orders are a civil disposal available in the Criminal Courts and can, in the right circumstances, provide an effective means of dealing with low-level disorder. In summary, they act as a means of postponing a sentence on conditions. These powers are long standing and have a variety of statutory and common law sources which are set out below. 

Relevant law

The overarching powers derive from:

• Justices of the Peace Act 1361, which gives Courts the power to bind over offenders to keep the peace.
• Section 1(7) of the Justices of the Peace Act 1968, from which 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.
• Section 150 of the PCC(S)A 2000, from which 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. However, this power should be used sparingly.

In the Magistrates Court the following apply:

• Inherent Powers of Justice, which give Magistrates the 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 complaint is made, the Magistrates Court can bind over a person by entering into a recognizance, with or without sureties, to keep the peace or be of good behaviour towards the complainant. 

Procedure and practice

Section 115 MCA 1980

• Although proceedings are civil in nature, the standard of proof is the criminal standard.
• 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 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 or her 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 and so there is no power to award defence costs against the CPS (R v Coventry Magistrates’ Court ex p. CPS [1996] Crim LR 723).
• Costs may, therefore, be made in favour or against the police.

Against any person appearing in proceedings before the court

• 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 [1984] 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.

As an alternative to criminal proceedings

• 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 Section 115 MCA.
• If treated as a Section 115 MCA 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 Casework 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 [1966] Crim.L.R.111). Prosecutors are also reminded of the separate power for Courts to make a restraining order against a person who has been acquitted under section 5A of the Protection from Harassment Act 1997.

Binding over a parent or guardian

• Section 150(1) of the PCC (S) A 2000 provides that where a child or young person aged under 18 is convicted of an offence, the Court may bind over the parent or guardian to take proper care and exercise proper control.
• The Courts should specify the actions that the parent or guardian should take.
• 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, whichever is the shorter.
• In fixing the amount, the Court shall take into account the means of the parent or guardian.
• If the parent or guardian unreasonably refuses to be bound over they can be fined up to £1000. 

Criminal Practice Directions: Sentencing

The practice and procedure in relation to binding over is now regulated by the Criminal Practice Directions VII (Sentencing).

The Directions take into account the judgments of the European Court of Human Rights in Steel v United Kingdom [1998] Crim LR 893 and in Hashman and Harrup v United Kingdom [2000] Crim LR 185. The Directions apply 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 sought to be avoided 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 appropriate evidence to satisfy itself to making the order and to clarify its terms.
• The Court must apply the criminal standard of proof. Where the procedure has been commenced on complaint, the burden of proof rests on the complainant. In all other circumstances, the burden of proof rests upon the prosecution.
• The Court should announce it is satisfied that an order be made before considering the recognizance sum and then invite representations.
• The offenders' financial resources must be taken into account when considering the amount of the recognizance.
• Alternatives to a bind over should be considered, such as continuing with a prosecution, if there is a possibility of a refusal to be bound over. Where there are no appropriate alternatives, the Court may commit the individual to custody.
• Before the Court exercises that power, the individual should be given an opportunity to see a duty solicitor and be represented in proceedings.
• If representation is declined there should be offered a final opportunity to comply and the consequences of failure explained.
• The Criminal Practice Directions: Sentencing can be accessed by visiting.

Refusal to be bound over

• Section 115(3) MCA 1980 provides where there is a refusal of or failure to comply with a bind over order, the Magistrates 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 Section 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 [1981] 1 W.L.R. 567 D.C.). Such offenders may be ordered to attend an attendance centre, under Section 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.

Breach proceedings

• Where a breach of a bind over is proven, the Court has power to order the person to pay the amount of the recognizance.
• However, there is no power to impose a sentence of imprisonment or otherwise for the offence itself.
• The standard of proof is the civil one. (See R v. Marlow JJ ex p. O’Sullivan [1984] QB 381). The Court should be satisfied on the balance of probabilities that the defendant is in breach before making any order for forfeiture of a recognizance. The burden of proof rest on the prosecution.

Appeals

• Divisional Court - ‘By way of case stated’, if the order is wrong in law.
• Crown Court – Under Section 1 Magistrates Courts (Appeals from Binding over Orders) Act 1956, where the appeal will be by way of a re-hearing and must be proved to the satisfaction of the court.(Shaw v Hamilton [1982] 2 All ER 7180. A Court may subsequently vary or revoke an order made on application by a parent or guardian.
• Court of Appeal - Under Section 50(1) of the Criminal Appeal Act 1968, where the bind over has been made by the Crown Court on sentence.

Good Character directions

The burden lies on the prosecution to prove that a binding over order is an impediment to a good character direction. The Court of Appeal in B [2017] EWCA Crim 35, observed that whether a Defendant with an old binding over order against him is entitled to be treated as a person of ‘effective good character’ will depend on all the relevant circumstances. These include the bind over itself and the circumstances in which the Defendant came to be bound over.