R v Lincoln Crown Court, ex parte Jude (David Andrew)
| Jurisdiction | England & Wales |
| Judgment Date | 17 April 1997 |
| Date | 17 April 1997 |
| Court | Queen's Bench Division |
Queen's Bench Divisional Court
Before Lord Justice Auld and Mr Justice Brian Smedley
Criminal procedure - binding over order - consent not a prerequisite
When a court intended to make a binding over order against a person in circumstances which required that he be given an opportunity to make representations about it, the court was not also required to seek that person's consent before making the order.
The Queen's Bench Divisional Court so held in a reserved judgment when considering an application for judicial review of the order of Judge Benson at Lincoln Crown Court binding the applicant over in the sum of £500. The application was granted on a different ground.
The applicant had appeared before the judge on a charge of affray to which he had pleaded not guilty. Owing to the unavailability of certain prosecution witnesses the trial could not take place.
The judge ordered the indictment to lie on the file, and indicated that he proposed to bind over the applicant to keep the peace.
He gave the applicant's counsel an opportunity to make submissions on the applicant's behalf but did not seek the applicant's consent to the order.
The applicant sought judicial review of the order on the ground, inter alia, that the judge's order required the applicant's consent, and he did not give it.
Mr Richard Clayton for the applicant; the respondent did not appear and was not represented.
LORD JUSTICE AULD said that in making binding over orders, the courts had appeared, until the case of R v South Molton Justices, Ex parte AnkersonWLR([1989[ 1 WLR 40) to confine the role of consent to that of relieving the court of the obligation to hear and determine the information or complaint before it and/or of its obligation, which existed only in certain circumstances, to provide the person concerned with an opportunity to make representations against it.
However, in Ankerson, the Divisional Court had held, seemingly as a generality, that consent was one of several cumulative pre-requisites of a binding over order.
His Lordship set out the circumstances of that case and quoted from the judgments of Mr Justice McCowan and Lord Justice Taylor, both of which stated in terms that the consent of the defendant to a bindover order must be obtained.
His Lordship said that neither the Justices of the Peace Act of 1361 nor of 1968, from which the power to make a binding...
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Lau Wai Wo v Hksar
...apparent dispute between Lord Lane CJ in Veater v. G and Others [1981] 1 WLR 567 and Auld LJ in R v. Lincoln Crown Court, Ex parte Jude [1998] 1 WLR 24. In Veater Lord Lane had said that if an individual was to be bound over, his consent to the binding over was essential. He said "... the e......
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Hksar v Chow Ka Hey
...was a risk of a breach of the peace unless action was taken to prevent it." 5. In the case of R v Crown Court at Lincoln, ex.p. Jude [1997] 3 All ER 737, the criterion of the material required for a binding-over order to be made was "... there is evidence which reasonably makes the court fe......
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Hksar v Zhang Bing Xiao Yuan, Robin
...he replied in terms that he 'had no choice' in the matter that did not amount to consent. (f) R. v. Lincoln Crown Court, Ex parte Jude [1998] 1 WLR 24. Auld LJ (at page 30) says this " ... it is difficult to identify any logical basis for effectively removing the courts' power ... to 'requi......
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Hksar v Lau Wai Wo
...order was then set aside. 8. In 1997, the Divisional Court in England, in the case of R. v. Lincoln Crown Court, Ex parte Jude [1998] 1 WLR 24, held that the power to bind over under section 1(7) of the Justices of the Peace Act 1968 did not depend on the consent or conviction of the person......
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European Court of Human Rights
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