A forgotten gem
The court’s power to bind over a defendant is an important one for every advocate to remember. Sadly, this once much beloved means of resolving minor cases now risks falling into undeserved obscurity. The reason for this is unclear. A bind over is not a conviction and, as such, will allow a defendant to retain his good character. Furthermore, it is generally passed when the prosecution offer no evidence allowing for the potential of a defence costs order if the usual conditions apply.
It may be that defence advocates consider it unlikely that the prosecution will accept a bind over as an alternative to a prosecution. However, when a bind over is accepted, the prosecution secure an undertaking from the defendant that he will keep the peace for a proportionate period of time with a sum of money to be forfeit in the event that he does not. Additionally, they avoid the costly business of having a trial for a minor matter and dealing with the myriad of pesky legal arguments good defence counsel will no doubt seek to raise.
One explanation to the bind over’s ‘fall from grace’ may be the imposition of restraining orders on acquittal. Section 5A of the Protection from Harassment Act 1997 allows the court to impose a Restraining Order on acquittal if it is necessary to do so to protect an individual from harassment.
Where minor disputes have led to criminal charges such as common assault or public disorder, the overlap between a bind over and a restraining order is clear; both are available to the court when the prosecution offer no evidence and both impose restrictions on the behaviour of a defendant for a set period of time. Defence advocates regularly offer for their clients to be bound by the conditions of a restraining order if a prosecutor offers no evidence and yet they do not regularly offer bind overs.
Given the choice of a restraining order or a bind over, it is worth considering that a breach of a restraining order is a criminal offence with a 5 year maximum custodial sentence. Conversely, a breach of a bind over is not a criminal offence and would only lead to the forfeiture of the sum of money set within the order.
In short, bind overs are at risk of becoming a forgotten gem which we, defence advocates, must not allow to happen.
Court’s power to bind over
Whilst a defendant can be bound over by a crown court, it is more likely to be appropriate in a summary only matter dealt with in the magistrates’ court.
Both the magistrates’ and crown court have the power to bind over a person to keep the peace arise either on complaint or of the court’s own motion under common-law powers and pursuant to various statutes, most importantly, the Justices of the Peace Act 1361 and section 1(7) of the Justices of the Peace Act 1968 which states as follows:
It is hereby declared that any court of record having a criminal jurisdiction has, as ancillary to that jurisdiction, the power to bind over to be of good behaviour, a person who or whose case is before the court, by requiring him to enter into his own recognisances or to find sureties or both, and committing him to prison if he does not comply.
When is a bind over available?
The Court may bind over an individual of its own motion at any time before the conclusion of criminal proceedings: on withdrawal of the case by the prosecution, on an adjournment, if the prosecution offer no evidence, or upon acquittal of the defendant where a judge considers that the person’s conduct is such that there might be a breach of peace in the future.
The standard which a court must apply is the criminal one: the court must be satisfied so that it is sure that a breach of the peace involving violence has occurred or that there is a real risk of violence in the future it may seek to bind over an individual.
In the event that the court seeks to bind an individual over and the individual refuses to be bound over [which may arise if the bind over is on an acquittal after trial], the court should consider whether there are any other appropriate orders. Alternatively, it can commit the individual into custody [common law power in the crown court / s.115(3) of the Magistrates’ Court Act 1980 in the magistrates’ court] but it must state under which power it does so.
The court is required to fix the period of the recognisance and the sum of money to be forfeited upon any breach. There is no upper limit to the amount but it must be reasonable. A person may, therefore, be bound over in a sum that exceeds the maximum fine which could be exacted for the relevant offence. However, where the court is considering a considerable sum, it should inquire about the individual’s means and circumstance and afford him the opportunity of making representations.
The length of the order should be proportionate to the harm sought to be avoided and should not normally exceed 12 months.
Reference is made to the relevant practice direction: Criminal Practice Direction (Sentencing) J, Paras J.2-18  1 W.L.R. 3154 [See 5-184b Archbold Criminal Proceedings 2015]
Failure to Comply with Conditions of the Order
If a person who has been bound over by the court fails to comply with the conditions of the order, the recognisance can be declared forfeit by way of an order on complaint. However, there is no power to impose a custodial sentence for the offence itself.
It is noted that such proceedings are civil in character and the civil standard of proof is applied although the person concerned should be told the nature of the breach alleged and be given an opportunity to present evidence and call witnesses etc.
When an advocate invites the prosecution to offer no evidence in exchange for the defendant consenting to be bound over, it is worth noting that one of the most helpful resources is the CPS Guidance to Prosecutors on their website.
The Guidance sets out that a prosecutor may ask the court to use it’s power to bind a defendant over as an alternative to a prosecution but he or she should only do so once a firm decision has been made to offer no evidence. Furthermore, a bind over should only be used in the crown court in exceptional circumstances.
The benefits of a bind over to a defendant of good character facing a minor offence are obvious. The benefits to the prosecution is an alternative to a costly prosecution which provides some assurance that the behaviour which led to the defendant appearing in court is not repeated. As a result, defence advocates have a duty to consider requesting a bind over when the circumstances allow and make persuasive representations to that effect when it would benefit their lay clients.
Due to the fact that bind overs are not sought often, both prosecutors and judges are likely to require some assistance with their benefits and limitations particularly in the magistrates’ court.
Ultimately, when your client leaves court with his good character intact and an order to keep the peace, the hard work will have been well worth it.