Binding over: Difference between revisions
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{{Short description|Legal power of criminal courts in England and Wales}} |
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{{citations missing|article|date=June 2013}} |
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{{Use British English|date=June 2024}} |
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'''Bind over''', '''binding over order''' and '''bind over for sentence''' are legal terms relating to a power exercised by [[magistrates]] in [[England]] and [[Wales]] and in other common law jurisdictions such as [[Hong Kong]]. A person who is bound over can be required to refrain from certain activities for a stipulated period, to be of good behaviour or to comply with other conditions. When binding a person over, the magistrate will usually stipulate a conditional financial penalty or fine to be paid if the person later breaches the binding over order.<ref>http://www.cps.gov.uk/legal/a_to_c/binding_over_orders/</ref> If the person breaches the conditions, he or she can be arrested and brought to court or otherwise compelled to return to court where the magistrate may impose the stipulated financial penalty or otherwise dispose of the case. |
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In the [[law of England and Wales]] and some other [[common law]] jurisdictions, '''binding over''' is an exercise of certain powers by the [[Courts of England and Wales|criminal courts]] used to deal with low-level public order issues.<ref name="CrownProsecution">{{cite web|url=https://www.cps.gov.uk/legal-guidance/binding-over-orders|title=Binding Over Orders|publisher=[[Crown Prosecution Service]]}}</ref> Both [[Magistrates' court (England and Wales)|magistrates' court]]s and the [[Crown Court]] may issue binding-over orders in certain circumstances.<ref name="CrownProsecution"/> |
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Magistrates can bind over a person to be of good behaviour or to keep the [[Queen's peace|peace]], any person, such as a [[defendant]], [[witness]] or [[claimant]].<ref name="34Edw3">{{cite web|url=http://www.legislation.gov.uk/aep/Edw3/34/1|title=Justices of the Peace Act 1361|publisher=[[The National Archives (United Kingdom)|The National Archives]]|accessdate=3 August 2011}}</ref> 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]] will be recorded if the matter is settled via a binding over order because the order is regarded as a [[Civil law (common law)|civil]] matter. |
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==In the United Kingdom== |
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A magistrate has legal power to make orders to prevent a likely [[Breach_of_peace|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, the defendant and witnesses, and if appropriate, may make the order. |
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In a 1988 article in the ''[[Cambridge Law Journal]]'', British legal commentator [[David Feldman (lawyer)|David Feldman]] describes the power to "bind people over to be of good behaviour or to keep the peace" as a useful and common device used in the British [[criminal justice system]],<ref name="Feldman">{{cite journal |first=David |last=Feldman |title=The King's Peace, the Royal Prerogative and Public Order: The Roots and Early Development of Binding over Powers |journal=[[Cambridge Law Journal]]|volume=47 |issue=1|date=March 1988 |pages=103–106 |jstor=4507130|doi=10.1017/S0008197300133744|s2cid=145431316 }} {{closed access}}</ref> and explains the process as follows: |
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{{quote|Magistrates form the view that a person ("the principal"), who might be a person of previously unblemished reputation, is likely to [[Breach of the peace|breach the peace]] or commit criminal offences. They require him to enter into a recognisance, in form of a voluntary covenant or agreement, to [[Peace (law)|keep the peace]], or to be of good behaviour, sometimes in a set sum (say £100) for a set period. If he refuses, he can be imprisoned, regardless of the seriousness or triviality, lawfulness or unlawfulness, of the behaviour that originally brought him to court, perhaps as a [[witness]]. He may also be required to find sureties, other people who are prepared to promise that they will forfeit a sum of money (say £50 each) if their principal fails to behave. If the principal misbehaves, debts to the Crown arise of £100 from the principal and £50 from each surety. The mechanics are therefore rather similar to bail. Binding over operates today in two ways. First, it can be used after conviction for an offence as an [[Alternative sentencing|alternative to sentence]]. The accused enters into a recognisance to keep the peace or be of good behaviour. If he breaches his undertaking, he can be summoned back to court to be sentenced for the original offence. Secondly, it can be used as a preventive measure to deal with people who are before the court but have not been convicted. This latter use provides a flexible way to deal with cases arising out of disputes between neighbours and minor public order problems without the need for a full hearing. It saves time and money.<ref name="Feldman"/>}} |
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Binding over is a precautionary measure to be adopted when there are reasonable grounds to anticipate some present or future danger. It is not a conviction or a punishment. It should not be used for an act which is past and which is not likely to be repeated. It should not be used as an alternative measure for dealing with cases in which the prosecution has insufficient evidence to substantiate a charge. |
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The origins of the binding-over power are rooted in (1) the takings of sureties of the peace, which "emerged from the peace-keeping arrangements of [[Anglo-Saxon law]], extended by the use of the [[royal prerogative]] and royal [[writ]]s" and (2) the separate device of sureties of good behaviour, which originated as a type of conditional [[pardon]] given by the king.<ref name="Feldman"/> The statutory authorization for binding-over powers is found in the [[Justices of the Peace Act 1361]] ([[34 Edw. 3]]. c. 1) and [[Justices of the Peace Act 1968]](c. 69).<ref name="CrownProsecution"/> Section 150 of the [[Powers of Criminal Courts (Sentencing) Act 2000]] empowered the criminal courts to "bind over a parent/guardian of a convicted youth to take proper care and exercise proper control" over the youth.<ref name="CrownProsecution"/> |
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Applications to bind a person over may be made in a variety of circumstances: e.g. for minor assaults inside private premises where there are no truly independent witnesses; continuing domestic disputes; or for minor cases where it is obvious that both parties are at fault with no independent evidence to support either party's counter-allegation. |
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==Outside the UK== |
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Binding-over orders are a feature of the [[law of Hong Kong]].<ref>Simon N. M. Young, "Sentencing" in ''Understanding Criminal Justice in Hong Kong'' (eds. Wing Hong Chui & T. Wing Lo: Routledge, 2008), pp. 170-76.</ref> |
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==See also== |
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* [[Anti-social behaviour order]] |
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* [[Peace bond]] |
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* [[Probation]] |
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==Criminal conviction== |
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Although a binding over order is not a conviction, such order may be imposed following conviction and sentence for a criminal offence, in addition to any penalty applied. A refusal to accept the terms of the binding over order may be treated as a [[contempt of court]].<ref>Archbold (December 2007): "Binding Over Following Conviction"</ref> |
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==References== |
==References== |
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{{reflist}} |
{{reflist}} |
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==External links== |
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* {{cite web|url=http://www.cps.gov.uk/legal/a_to_c/binding_over_orders/#a_16|title=Binding Over Orders|date=December 2007|work=[[Archbold Criminal Pleading, Evidence and Practice]]|at='''5''' 120–121|publisher=Cited by the [[Crown Prosecution Service]]|accessdate=2 August 2011}} |
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{{DEFAULTSORT:Binding Over}} |
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Latest revision as of 08:37, 26 June 2024
In the law of England and Wales and some other common law jurisdictions, binding over is an exercise of certain powers by the criminal courts used to deal with low-level public order issues.[1] Both magistrates' courts and the Crown Court may issue binding-over orders in certain circumstances.[1]
In the United Kingdom
[edit]In a 1988 article in the Cambridge Law Journal, British legal commentator David Feldman describes the power to "bind people over to be of good behaviour or to keep the peace" as a useful and common device used in the British criminal justice system,[2] and explains the process as follows:
Magistrates form the view that a person ("the principal"), who might be a person of previously unblemished reputation, is likely to breach the peace or commit criminal offences. They require him to enter into a recognisance, in form of a voluntary covenant or agreement, to keep the peace, or to be of good behaviour, sometimes in a set sum (say £100) for a set period. If he refuses, he can be imprisoned, regardless of the seriousness or triviality, lawfulness or unlawfulness, of the behaviour that originally brought him to court, perhaps as a witness. He may also be required to find sureties, other people who are prepared to promise that they will forfeit a sum of money (say £50 each) if their principal fails to behave. If the principal misbehaves, debts to the Crown arise of £100 from the principal and £50 from each surety. The mechanics are therefore rather similar to bail. Binding over operates today in two ways. First, it can be used after conviction for an offence as an alternative to sentence. The accused enters into a recognisance to keep the peace or be of good behaviour. If he breaches his undertaking, he can be summoned back to court to be sentenced for the original offence. Secondly, it can be used as a preventive measure to deal with people who are before the court but have not been convicted. This latter use provides a flexible way to deal with cases arising out of disputes between neighbours and minor public order problems without the need for a full hearing. It saves time and money.[2]
The origins of the binding-over power are rooted in (1) the takings of sureties of the peace, which "emerged from the peace-keeping arrangements of Anglo-Saxon law, extended by the use of the royal prerogative and royal writs" and (2) the separate device of sureties of good behaviour, which originated as a type of conditional pardon given by the king.[2] The statutory authorization for binding-over powers is found in the Justices of the Peace Act 1361 (34 Edw. 3. c. 1) and Justices of the Peace Act 1968(c. 69).[1] Section 150 of the Powers of Criminal Courts (Sentencing) Act 2000 empowered the criminal courts to "bind over a parent/guardian of a convicted youth to take proper care and exercise proper control" over the youth.[1]
Outside the UK
[edit]Binding-over orders are a feature of the law of Hong Kong.[3]
See also
[edit]References
[edit]- ^ a b c d "Binding Over Orders". Crown Prosecution Service.
- ^ a b c Feldman, David (March 1988). "The King's Peace, the Royal Prerogative and Public Order: The Roots and Early Development of Binding over Powers". Cambridge Law Journal. 47 (1): 103–106. doi:10.1017/S0008197300133744. JSTOR 4507130. S2CID 145431316.
- ^ Simon N. M. Young, "Sentencing" in Understanding Criminal Justice in Hong Kong (eds. Wing Hong Chui & T. Wing Lo: Routledge, 2008), pp. 170-76.
