Divisional Court
| Date | 01 February 1999 |
| DOI | 10.1177/002201839906300102 |
| Published date | 01 February 1999 |
| Subject Matter | Divisional Court |
Divisional Court
Magistrates' Court's Jurisdiction to Bind Over
DPP
v
Speede;
R v
Liverpool
JJ, ex p
Collins;
R v
Liverpool
JJ, ex p
Santos
[1998] 2 Cr App R 108
The
three
cases
heard
together
and
reported
in [1998] 2 Cr App R 108
raised
the
same
issue,
namely
the
extent
of
the
power
of
the
magistrates'
court
to
make
an
order
binding
over
a
person
to
keep
the
peace
and
to
be of good behaviour;
but
their
origins
were
diverse. In
DPP
v
Speede,
the
prosecutor
appealed by
way
of case
stated
against
the
decision of
the
Crown
Court
which
set aside
the
order
of
the
justices for binding over.
The case of
Santos
and
the
case of
Collins
were
both
applications for
judicial review to
quash
an
order
of
the
justices for
the
issue of a
warrant
of
arrest
of
the
applicant
on
the
ground
of his
non-attendance
at
court
(although
in
both
cases,
there
was,
when
the
defendant's
attendance
had
been
procured,
consideration
of
the
question
of binding over).
The
order
made
in
the
magistrates'
court
binding
Speede
over
to
keep
the
peace was
set
aside by
the
Crown
Court
on
the
ground
that
there
had
been
no
complaint
made
against
him
in
the
magistrates' court, so
that
the
magistrates
had
no
jurisdiction to
make
that
order.
What
had
happened
before his
appearance
in
court
was
that,
on
being
arrested
and
taken
to a police station, he
was
presented
with
aservice charge record
which
alleged
that
his
arrest
was
for a
breach
of
the
peace
contrary
to
the
common
law. A copy of this
document
was
sent
to
the
magistrates' clerk
for
the
purpose
of
the
hearing
against
him.
The Divisional
Court
held
that
that
document
could
be considered to be a
complaint
against
him,
for
the
purpose
of founding jurisdiction to
bind
over. Objection was
taken
that
the
service
charge
record was defective in
two
ways:
(1) it did
not
refer to s 115 of
the
Magistrates' Courts Act 1980,
and
(2) it did
not
make
it sufficiently clear
what
charge
was
made
against
him
in
the
court.
However,
the
Divisional
Court
held
that
these
defects could be
cured
by
s 123 of
the
1980 Act.
The
court
also
held
that
if
the
document
had
been
read
out
in
court
that
would
be
the
equivalent
of
an
oral
complaint
under
r 4 of
the
Magistrates'
Courts
Rules 1981. The
court
therefore
allowed
the
prosecutor's appeal from
the
Crown
Court's
order
setting
aside
the
order
for binding over.
In Ex p
Santos,
the
applicant was
arrested
for
an
alleged
breach
of
the
peace
and
after
detention
overnight
he
was
brouglit
before
the
court,
where
he
declined to be
bound
over.
The
case was
adjourned,
but
when
he
and
his solicitor
attended
on
the
day fixed,
they
found
that
the
case
had
not
been
listed
on
that
day.
On
the
day
on
which
it was listed,
he
failed to
appear
and
the
magistrates
heard
the
case in his absence. On
finding it proved,
they
issued a
warrant,
not
backed
for bail, for his
5
The Journal of Criminal Law
arrest.
When,
after his arrest, he appeared, he was
bound
over. The same
train
of events as occurred in Ex p
Santos
was
repeated
in
the
case of
Ex p
Collins,
save that,
on
his
appearance
after arrest,
the
magistrates
made
no
order
for binding over, as
they
anticipated no
future
breach
of
the
peace. The application for judicial review therefore related to the
earlier
order
for
the
issue of
the
warrant.
Both cases raised
the
question
of
what
procedure
is
open
to the
magistrates'
court
when
the
defendant
fails to appear. In particular,
may
the
magistrates'
court
issue a
warrant
if, in
the
absence of
the
defendant,
they
find
that
a
complaint
under
s 11S(1)
has
been
proved?
In
the
absence of
the
defendant,
the
court
may
elect to
proceed
in
one
of
two
ways,
but
an
election to
proceed
in
one
way
prevents
it proceeding in
accordance
with
the
other
way. The
court
may
decide to
hear
the
case in
the
defendant's absence
or
it
may
substantiate
the
making
of
the
com-
plaint
and
then
issue a
warrant
for
the
defendant's
arrest
(provided
the
conditions set
out
in s 11S(3)
are
satisfied).
If
the
court
chooses to
hear
the
case in his absence,
there
may
come
atime at
which
his
presence
will
become
necessary before proceeding further, for his
consent
may
be
necessary for
entering
into
arecognizance.
When
that
stage is reached,
the
only course
open
to
the
magistrates is to
adjourn,
under
s S4(1) of
the
Magistrates' Courts Act 1980. Provided
adequate
notice
has
been
given to
the
defendant
of
the
adjourned
hearing, a
warrant
for his arrest
may
be issued
if
he fails to
appear
on
that
date.
In
the
cases of
Santos
and
Collins
the
question
before
the
Divisional
Court
was as to
the
power
of
the
magistrates to issue
the
warrant,
in
the
absence of
the
defendant,
on
afinding
that
the
complaint
has
been
proved. The
court
held
that
both
subss (2)
and
(3) of s SS
make
it clear
that
if
the
court
chooses to
hear
the
merits of
the
complaint
in
the
defendant's
absence, it
cannot,
on
finding against
him,
immediately
issue a
warrant
for his arrest. Having
taken
any
step
which
requires his
presence before proceeding further,
the
court
must
adjourn.
(Whether
s 122
would
permit
the
defendant's
'attendance'
to be by
way
of
the
attendance
of a representative is a
question
which
the
court
expressly
left over.) The
court
therefore
held
that, as in
both
the
instant
cases
the
register
showed
that
the
magistrates
had
heard
the
case against
the
absent
defendants, so
that
they
were
debarred from
immediately
issuing
a
warrant
of arrest
(which
they
had
done),
the
warrants
were
quashed.
Defendant's Evidence in Extradition Proceedings
Re
Gross
[1998] 3 All ER
624
Before 1 April 1997,
when
the
Criminal Procedure
and
Investigations
Act 1996 came
into
force,
the
rule in ordinary domestic committal
6
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