Binding Over Orders

This Guidance was last update on 12^th December 2007.

Principle
Guidance
Procedure
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Principle

The power of both the Crown and Magistrates' Court to bind over is exercised as a measure of swift and effective preventative justice.

Such an order is not a criminal conviction.

Guidance

Crown Court Binding Over

There are four ways that a Crown Court may exercise the power:

Bind over to come up for judgment when called (Archbold 5-118).
Bind over a parent/guardian of a convicted youth to take proper care and exercise proper control (Archbold 5-932).
Any person who or whose case is before the court may be bound over to be of good behaviour (Archbold 5-121a).
Any court making a Conditional Discharge Order a person who consents may give security for the good behaviour of the offender (Archbold 5-113).

Crown Court Legislation

Justice of the Peace Act 1361 (Archbold 5-120).

Justice of the Peace Act 1968 S1 (7 ) (Archbold 5-121).

Use of Crown Court Power to Bind Over

When asking a Crown Court to consider if power to conduct bind over proceedings, the prosecutor should ensure that the making of an order is not a means of overcoming evidential difficulties and is consistent with the assessment of the public interest in each case.

Consequently only in exceptional circumstances will it be appropriate to seek a bind over as an alternative to a criminal prosecution, in cases which, having been reviewed in accordance with the Code for Crown Prosecutors, progress to the Crown Court for trial. See (Archbold 5-121a).

Where a person refuses to be bound over may be dealt with by way of contempt. (Archbold 5-121c).

Power to Bind Over in the Magistrates' Court

Derives from:

Justice of the Peace Act 1361 (Archbold 5-120);
Justice of the Peace Act 1968 S1 (7) (Archbold 5-121);
Inherent Powers of Justice at common law when making power to bind over;
Magistrates' Courts Act 1980 S115.

Instances of Bind Over in the Magistrates' Court

Following the laying of a complaint against an individual under S115 Magistrates' Courts Act 1980.

Following arrest at Common Law where a breach of the peace has been committed or is apprehended.

Against any individual appearing in proceedings where as a party or witness, Justice of the Peace Act 1361.

Following conviction, in addition to any other penalty imposed.

Procedure for Bind Over on Complaint (S115 Magistrates' Court Act) (MCA)

Proceedings are civil by nature. 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.

S53 MCA states that evidence should be heard at all times before making an order. However R v King Lyn Magistrates' Court ex p M [1998] FCR 436 states that if parties admit facts, an order can be made without hearing evidence.

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 S 55(4) MCA.

Upon arrest, the court may remand the defendant (S55 (5) and S115 (2) MCA).

The burden of proof on the complainant is to satisfy the court beyond reasonable doubt that the complaint is true.

If considering a bind over the court must be satisfied in light of the evidence it has heard that there is a real risk of the conduct complaint of reoccurring.

Following Steel and others v UK [1998]; Hashman and Harrup v UK [1999] that a bind over should not be applied for unless there is evidence of past conduct which if repeated is likely to cause a breach of the peace in the future.

A binding over order requires the person to:

enter into a recognisance for a specified sum;
to keep the peace;
for a specified period;
the order can specify person/persons to whom special protection should be made, or can be in general terms.

For power of the magistrates' court to deal with a refusal to be bound over see Archbold 5-121c. However a person under 21 and over 18, who refuses to be bound over by a magistrates court may be detained under S108 of the Powers of Criminal Courts (Sentencing) Act 2000., but there is no power to do so in the case of a person under that age of 18. There is power to order such a person to attend at an attendance centre. (see also Howley v Oxford 1985 81 Cr App Rep 246)

Costs for a Section 115 MCA application may be awarded in favour of the applicant, however they may be made against the complainant if the complaint is dismissed S64 MCA.

Appeal can be by way of:

case stated to Administrative (Divisional) Court if the ordering wrong in law;
to the Crown Court (Magistrates' Court (Appeal from Binding Over Orders) Act 1956).

Procedure for Bind Over Following Arrest for Breach of Peace

The proceedings are civil.

The court must apply the criminal standard of proof.

Under S3 (2)(c) Prosecution of Offences Act 1986 it is the duty of the CPS to take over the conduct of the proceedings where an initial complaint has been made by a Police Force following arrest for Beach of the Peace. NB: Note the CPS does not become the complainant.

Costs are governed by S64 MCA and may follow the event. Costs may therefore be made in favour or against the police. As the CPS is not the complainant, costs cannot be made either against or in favour of the CPS.

Procedure for Binding Over made against any Person Appearing in Proceedings before the Court

Power to act in this manner derives 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.

Procedure

For procedure in the Crown Court see Archbold 5-121b.

Procedure in the Magistrates' Court

The court must be satisfied on admissible evidence that there is a real risk of a breach of the peace occurring unless an order is made.

An order can be made at any stage in the proceedings, but the court must indicate its intention to the person concerned so that representations can be made.

The courts powers to make a Binding Over Order are not reliant on the consent to the order from (the defendant) R v Lincoln Crown Court ex p Jude The Times LR - 30 April 1997.

The defendants agreement to enter into a recognisance cannot be unilaterally imposed, however if the defendant refuses to agree to enter into the recognisance he may be committed to prison for a period not exceeding 6 months or sooner until he or she complies.

Terms of the Order

The court should enquire as to the person's means. The order should require the person to enter into a recognisance for a specified sum to keep the peace and be of good behaviour for a specific period.

Appeal

Any person so ordered may appeal by way of case stated to the Divisional Court if the order is wrong in law or to Crown Court by way of Magistrates' Courts (appeal from Binding Over Orders) Act 1956.

Breach of Binding Over will result in a forfeiture of all or some of the recognisance ordered by the court.

Binding Over as an Alternative to Criminal Proceedings

If 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 he has made a firm and settled decision 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 S115 MCA.

If treated as a S115 MCA complaint (which can be written or usually oral) the court may wish to hear evidence or require some proof of complaint. It is therefore in such circumstances necessary to ensure that some admissible evidence sufficient to prove the complaint is available.

Prosecutors should never invite the court to bind over anybody other than the defendant.

Binding Over Following Conviction

May be imposed in addition to any other penalty.

Breach of Binding Over (Forfeiture of Recognisances)

A recognisance can only be forfeited on complaint (S102 (2) M.C.A. 1980).

Only the court that took the recognisance or is in the same P.S.D. has jurisdiction to order forfeiture.

Proceedings are civil and they require the civil standard of proof.

CPS is responsible for taking over breach proceedings laid by the police or for laying its own breach proceedings when the breach comes to the Service's attention.

It is not responsible for laying complaints in breach proceedings where there has been a breach of a parental bind over.

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