Now that I am retired having been many years a magistrate with a long awareness of the declining freedoms enjoyed by the ordinary citizen and a corresponding fear of the big brother state`s ever increasing encroachment on civil liberties I hope that my personal observations within these general parameters will be of interest to those with an open mind. Having been blogging with this title for many years against the rules of the Ministry of Justice my new found freedom should allow me to be less inhibited in these observations.




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Thursday, 23 January 2014

BIND OVER



As is often the way an inquiry from a friend about a subject that s/he assumes that one knows intimately often demonstrates that even so called experts or professionals like yours truly have a gap in their knowledge. And so it was recently when my old friend Jean telephoned to tell me her son had been bound over for one year in the sum of £100 at the local magistrates` court. After brief preliminaries I made what I hoped was a good excuse and promised to call her back later that day.

It had reminded me of a friend`s case when I was a student. The brief details were that he was in a flat share at university and had been assaulted when an argument over bill sharing had got out of hand. His pride had been injured more than anything else and on the advice of a law student friend had taken out a prosecution against the aggressor. At court he made his case as did his now former flat mate with no other witnesses called. The chairman told him that unless he withdrew the allegation both of them would be bound over. He withdrew the allegation.

In my years on the bench I have not been party to a bind over decision. I have not received any information on such a disposal except that which I sourced myself. It is not in the Guidelines. So reading in the North Devon Journal of a man accused of assault and theft being bound over I thought it might be of interest to colleagues to read the CPS legal guidance.   The Wikipedia entry copied below although not sourced seems fairly comprehensive and is a helpful narrative.

Magistrates can bind over to be of good behaviour or to keep the peace, any person such as a defendant, witness or complainant. This may happen where the case involves violence or the threat of it. Sometimes the prosecution will drop such a charge if the defendant agrees to be bound over in this way. No conviction is recorded if the matter is dealt with like this because such an order is regarded as a civil matter.

A magistrate has power to take measures to prevent a likely breach of the peace and, on evidence produced before him, may require a person, on pain of six months’ imprisonment on refusal, to enter into a recognizance and find sureties either to keep the peace or to be of good behaviour. The procedure is called ‘binding over to keep the peace’ and upon complaint by any person the magistrate may hear the complainant and the defendant and their witnesses, and if he deems fit may make the order.

Binding over is a precautionary measure, to be adopted when there is reasonable ground to anticipate some present or future danger. It is not a conviction or a punishment. It should not be applied for in respect of an act which is past and which is not likely to be repeated and should not be considered to be an alternative measure in those cases where the prosecution have insufficient evidence to substantiate a charge.
Applications to bind a person over may be made in a variety of circumstances e.g. minor assaults inside private premises where there are no truly independent witnesses, continuing domestic disputes, minor cases where it is obvious that both parties are at fault with no other evidence to support either party in their counter-allegations, etc..

The recent  case reported in the North Devon Journal above seems to be a practical example of this disposal although an older case is more explicit.  It is surprising that Google search produced cases in which West Country magistrates are quoted in both examples. 

7 comments:

  1. It is in my copy of guidelines

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    1. Thank you Unknown. It would be helpful to know on which page........

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    2. It is covered in the pronouncements card either printed or in the Guidelines app on a tablet

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    3. Actually it is very well explained in the Adult Court Bench Book at page 64. Incidentally, Wikipedia misleads in saying that someone may be bound over “to be of good behaviour”. A decision of the ECtHR in 2000 held that phrase to be insufficiently precise to qualify as a “restriction … prescribed by law”. Since then, my understanding is that purpose of a bind over is solely “to keep the peace”, and the conduct to be refrained from should be particularised in the order.

      Bind overs were common in the old days. Frequently, when a trial for a case of low-level mayhem was about to commence, the parties would ask for a few minutes for discussion. Then, as often as not, when they came back into court, we would be informed that with the court’s assent the defendant would agree to a bind over, in return for which the Crown would offer no evidence. Deal done!

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  2. I did one the other day - no-one else on the Bench had and I've never heard of one being undertaken before in my time on the bench. I also did one of only a handful of Drink Banning Orders ever made in our area - no-one in court had been involved in one it transpired.

    Binding over is arguably much more useful than DBO's!

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  3. I used to do them quite often when I was first appointed 20 years ago but not seen one in a long time. There has been a High court decision in the past couple of days after several people were arrested at the time of the Royal Wedding of William and Catherine. They were arrested to prevent a breach of the peace (several 'republican' marches/meetings were planned for the day) and kept in custody for several hours.

    Once the wedding was over they were released as any threat of a breach of the peace was over. The High Court found this was a lawful detention in the circumstances.

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