England and Wales High Court (Administrative Court) Decisions

1. LORD JUSTICE McCOWAN: This is an application for judicial review brought pursuant to the leave of the Mr Justice Dyson. The Applicant seeks to challenge a decision of Mr Recorder Davies sitting at Middlesex Crown Court, whereby he ordered that the Applicant be bound over in the sum of £250 for a year to be of good behaviour.

2. The Crown Prosecution Service has not appeared, having written to say that the matter is of no interest to them and so they do not intend to appear, but the Recorder has, however, put a note before the Court.

3. The Applicant had been charged with assault occasioning actual bodily harm. His defence was self-defence. The jury acquitted him. The Recorder then proposed, despite protest from his counsel, to bind him over. The Recorder said that a defendant who has been acquitted can nonetheless be bound over to be of good behaviour. Curiously, the cases which the Recorder relied on do not appear to be cases where the man had been acquitted.

4. The Applicant, not surprisingly, took it ill that having been acquitted, the judge was proposing to do this. He did not want to be bound over. However, his consent was needed if he was going to be bound over. The judge made it clear to him, in stark terms, that if he did not consent to being bound over he was going into custody. When he was asked whether he was prepared to consent to be bound over, he said "I have no choice". This angered the Recorder who told him not to say, "I have no choice".

5. Nothing further was said about whether he was prepared to consent, and his counsel, Mr Davis, argues that the Recorder should have gone further and should have asked him again whether he was prepared to consent. He submits that we should quash the binding over because his client never consented to it. It is true he did not say in terms that he consented, but the words "I have no choice" in common sense meant "I do not want to be bound over but you leave me with no real alternative but to consent, so I have to consent". I would hold, therefore, that counsel's first point fails.

6. It is not, however, his primary submission. It is that the Applicant should not have been bound over at all. He submits cogently that this was not a case of a defendant acquitted on a technicality where a judge might, very understandably, think to himself, well, I know the jury have been obliged to acquit him, but it was quite obvious he had actually done it and he is a violent man who might be a danger to the public and therefore I will bind him over. As I have already said, his defence was self-defence, not a technicality at all.

7. We have seen from the transcript that he was acquitted in the face of a very adverse summing-up from the Recorder. An example of this is how the Recorder characterised a tape recording of the man being interviewed by the police. His counsel says, that he, counsel, asked that the tape be played to the jury believing that it showed the Applicant behaving in a moderate manner. The Recorder, however, said to the jury:

8. There was more of that sort in the summing-up.

9. In the note which the Recorder sent to this Court he indicated his view as follows:

10. It seems to me very unlikely that the jury can have been of the same mind having regard to their verdict. It was very unfortunate, in those circumstances, that the Recorder, immediately after that verdict, talked in terms of binding him over to be of good behaviour because of what he had seen and heard of the man in the witness-box and the dock, when the jury had seen the same.

11. It was bound to leave the Applicant with a sense of grievance. Unfortunately, it did not end there. The Recorder indicated that he was also influenced by what he had seen in the pre-sentence report in another case, in which it came to light that the Applicant had been convicted of assault occasioning actual bodily harm. When this was mentioned to counsel he said that that conviction was under appeal, leave having been given to appeal. The Recorder said it was extant until quashed and therefore he would have regard to it. It is right to say, moreover, that that appeal failed.

12. What is quite unclear to me is why the Recorder was in possession of this report. It was not a report made for this case, but for a completely different case. Counsel did not know this, he did not have it, and the Recorder did not take steps to see that counsel was supplied with a copy. I fear that was particularly necessary in this case, because the report did not only contain a mention of the man's conviction in the other case, but it also pointed out that the Defendant's act was out of character. It had good things to say about him, and the Recorder really should have seen that this information had found its way into the hands of his counsel.

13. Counsel has drawn our attention to the case of Percy v Director of Public Prosecutions (1953) 3 All ER 124. In particular, a passage at page 133B where

14. Mr Justice Collins said this:

15. Counsel argues that if a judge is going to require a man to be bound over in circumstances where he has been acquitted, it is particularly important that he should be satisfied beyond a reasonable doubt that the man poses a potential threat to other persons and that he is a man of violence. Counsel says, compare that with what the Recorder has written in his note to the Court:

16. Counsel says, with force, that that is not good enough, he should have been satisfied beyond a reasonable doubt, I sympathise with that view. It certainly was necessary, in this case, where there were the various features that I have mentioned which fill me with anxiety. I am driven to the view that the Recorder should not have done what was done in this case as it was bound to leave the Applicant with a feeling that he had not had justice in that court.

17. For my part, therefore, I would quash the order.

18. MR JUSTICE COLLINS: I agree. I would only add that I would underline what my Lord has said about the practice of binding over following an acquittal, where there has been, as there was here, an acquittal on the merits.

19. It is exceedingly rare that it would be appropriate to bind over the defendant who had been acquitted, and this was not a case where it was appropriate. I too would quash this decision.

20. MR DAVIES: My Lords, if your Lordships would then grant an order of certiorari to quash the decision of the Recorder. I would also ask for costs. This is not a legally aided Applicant, and I think the appropriate order I should seek is one against central funds.

21. LORD JUSTICE McCOWAN: Yes, very well.

22. MR DAVIES: Thank you, my Lords.