QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE MANCE
|CLERKENWELL MAGISTRATES' COURT|
|EX PARTE IVAN HOOPER|
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MR I BURNETT (instructed by The Treasury Solicitors) appeared on behalf of the Respondent.
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"One asks oneself why in justice is it necessary to warn what the consequence will be if the conduct committed in the face of the court is clear enough to indicate that a binding-over is appropriate, and proper. I do not find it possible to say that natural justice requires the magistrate to go through what must be a hollow formula of telling the parties what he has in mind and asking them if they have anything more to say about it."
"The applicant was convicted by justices of using insulting words or behaviour whereby a breach of the peace might be occasioned. He appealed against conviction and sentence to the Central Criminal Court which dismissed the appeals and, without inquiring into his means or affording him any opportunity to make representations, ordered him to be bound over to keep the peace and be of good behaviour for two years in the sum of £500, with the alternative of three months' imprisonment."
That led to an application for judicial review to quash the order which was granted, and as the headnote continued:
"... although there was no general obligation upon a court to afford a defendant an opportunity to be heard prior to binding him over, it was a breach of the rules of natural justice, unless the recognisance was of a trivial sum for a court to bind a person over without inquiring into his means and giving him an opportunity to make representations as to the size of the recognisance."
"I appreciate, of course, that Lord Widgery CJ firmly declined to acknowledge that a failure by a court to give a defendant an opportunity to be heard prior to the making of a binding over order constituted a breach of the rule of natural justice. But I do not regard him as having said that there are no circumstances in which a part of a binding over order can be said to be so severe that the court is bound in justice, before imposing that part of the order on a defendant, to give him the opportunity to make representations about that part.
The present case is a very good example, so it seems to me, of a case in which a defendant's means and other personal circumstances should have been inquired into and representations allowed in respect of them. Without such an inquiry and further assistance from him, or his counsel, I cannot see how the court could alight upon a proper, just and suitable sum of recognisance. The question is therefore not whether there was a failure to act with due caution and to be sensitive to the need to allow the applicant to be heard but whether that failure amounts to a breach of the rules of natural justice. In my judgment it does. It is one thing to impose a small or trivial sum of money as a recognisance without inquiring and so on; it is quite another to impose, without inquiring into the means of a defendant, a relatively large sum. To impose such a sum might work a very great injustice upon a defendant, no matter how serious the conduct which has brought about his conviction and the possibility of his repeating that conduct in the future. A binding over must not be in such terms as effectively to inhibit a convicted person from exercising his right to free speech within the law. In other words it must not appear to be in terrorem."
The Court then went into the information about the means of the Applicant and went on:
"If those facts had been known to the court below, I question very seriously whether it would have imposed so high a figure as £500 as the recognisance that the appellant was called upon to enter into.
In my judgment, although a court may say, without giving a defendant the opportunity to be heard upon the matter: "We intend to bind you over". What it may not do, unless it is going to impose as a recognisance a trivial sum, is to impose a sum which is markedly larger than that in comparative terms without looking at the means of the defendant and giving him, or his counsel or solicitor, an opportunity of making representations.
In that respect, I think the rules of natural justice do demand that the court conducts itself as I have indicated. Since the court here did not do that, I would allow this application and quash the order."
"must ensure that the Court is informed of all relevant decisions and legislative provisions of which he is aware whether the effect is favourable or unfavourable towards the contention for which he argues and must bring any procedural irregularity to the attention to the Court during the hearing and not reserve such matter to be raised on appeal;"
That is of course right, but it assumes that the advocate appreciates that what happens does amount to a procedural irregularity and understands at the time the nature of the point. Here Miss Toloczko does not appear to have had the confidence of whatever belief she had that something was not quite right, she did not raise the matter, and I do not think that the Applicant should suffer from any failure, if there was any on her part, to react as another advocate, perhaps more familiar with this area of the law and practice, might have done.
Mr Burnett has not suggested on behalf of the Respondent that they do.