The Magistrate's Blog (2005-2012)

This blog has migrated to www.magistratesblog.blogspot.co.uk This blog is anonymous, and Bystander's views are his and his alone. Where his views differ from the letter of the law, he will enforce the letter of the law because that is what he has sworn to do. If you think that you can identify a particular case from one of the posts you are wrong. Enough facts are changed to preserve the truth of the tale but to disguise its exact source.

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Location: Near London, United Kingdom

The blog is written by a retired JP, with over 30 years' experience on the Bench.

Monday, September 13, 2010

Twists And Turns

It's often the simple-looking cases that turn out to conceal an unexpected twist, just like the one we saw last week. Section 5 Public Order Act is one of the commonest charges we see (and on top of those there are many fixed penalty PNDs handed out). It is a summary-only offence and the only available penalty is a modest fine.
Our defendant had pleaded Not Guilty, and when we heard that he was represented by Counsel we realised that he was sufficiently aggrieved to be prepared to lay out a considerable amount of money for his defence; he lives some way away, so his travel costs for what was by now three hearings would come to a tidy sum too.
We sat down for a briefing from the Clerk, and she handed each of us a substantial bundle of legal arguments and decided cases, nicely prepared by Counsel, and foreshadowing an Abuse of Process argument. I can't say too much about the nub of the argument, but we settled down with some coffee to read our bundles. My two colleagues were a mentor and her protégée, so before we started I had to do a quick run through 'Abuse of Process - What's That About Then?' as the new JP was making notes on her mentoring form to record what she had learnt today - we were in no hurry as we had been told that the defendant had been delayed en route.
Twenty minutes later, the Clerk reappeared. "You won't need the bundles, Sir. While you were reading, CPS and Counsel have got their heads together and are going to ask for a bindover". So that gave me a chance to brief my colleagues on Bindovers, allowing the newbie to fill in a bit more of her form, this time about a bit of law that dates back to 1361.
So when our man arrived the CPS offered no evidence, I dismissed the substantive charge, and bound him over to keep the peace for 12 months in the sum of £200. I carefully explained what this meant and emphasised that it is not a conviction. All that was left was to call in the witnesses, thank them for attending, and release them, along with the defendant and his Counsel.
Counsel got his fee, the defendant kept his clean record and my new colleague got some training. The defendant probably got a bill for something over £3,000, but looked happy enough anyway.

(extract from the Guidelines:-)
• The court has the power to bind an individual over to keep the peace.
• The order is designed to prevent future misconduct and requires the individual to promise to pay a specified sum if the terms of the order are breached. Exercise of the power does not depend upon conviction.
• Guidance on the making of binding over orders is set out in part III.31 of the Consolidated Criminal Practice Direction, as amended in March 2007. Key principles include:
(1) before imposing the order, the court must be satisfied beyond reasonable doubt 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. The court should hear evidence and the parties before making any order;
(2) the court should state its reasons for making the order;
(3) the order should identify the specific conduct or activity from which the individual must refrain, the length of the order and the amount of the recognisance;
(4) the length of the order should be proportionate to the harm sought to be avoided and should not generally exceed 12 months;
(5) when fixing the amount of the recognisance, the court should have regard to the individual’s financial resources.