Neutral Citation Number: [1998] EWHC Admin 41
Case No. CO 1107/97
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

Royal Courts of Justice
Strand
London WC2

Date: Tuesday, 20th January 1998

B e f o r e:

LORD JUSTICE SIMON BROWN

‑and‑

MR JUSTICE MANCE

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REGINA

and

CLERKENWELL MAGISTRATES' COURT

EX PARTE IVAN HOOPER

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(Computer‑aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
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MR L DANIEL (instructed by Winstanley‑Burgess, London EC1V 2QA) appeared on behalf of the Applicant.

MR I BURNETT (instructed by The Treasury Solicitors) appeared on behalf of the Respondent.
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J U D G M E N T

MR JUSTICE MANCE: The Applicant seeks judicial review in respect of a decision of Mr Johnson, Stipendiary Magistrate of the Clerkenwell Magistrates Court, on 3rd January 1997, binding the Applicant over to keep the peace and be of good behaviour under, as is now common ground, the Justices of the Peace Act 1361.
     The background is that, on 25th October 1996, the Applicant was charged with assault occasioning actual bodily harm in respect of one Alexander Beggs.  The case was listed for 20th September 1996 when the Applicant did not appear and it was adjourned to 3rd January 1997.  On 3rd January 1997, the Applicant appeared and was represented by a solicitor, Miss Joanna Toloczko, a partner in Winstanley‑Burgess under the Duty Solicitor's Scheme.
At that stage, in addition to the original charge of assault occasioning actual bodily harm, the Applicant faced a charge of failing to appear on 20th December in respect of which he pleaded unsuccessfully not guilty and was, in the event, fined £25 with one day in prison in default.
     On the charge of assault occasioning actual bodily harm, the Magistrate then indicated that he would accept jurisdiction, but the Applicant elected trial on indictment and the magistrate adjourned that charge until 31st January for a committal hearing with the alleged victim in attendance. 
     The magistrate then went on to consider bail.  It is common ground that he imposed as a condition that the Applicant should not contact the alleged victim.  The court record, of which there are in other respects two inconsistent versions, does at least show bail as granted on that sole condition.  However, it appears that the magistrate's mention of this condition elicited the fact that the Applicant and the alleged victim lived in the same block of flats and that the magistrate, as a result, raised the question whether the Applicant would consider residing in a bail hostel, with a view to imposing a possible further condition of bail.  It is common ground that the Applicant reacted adversely to this suggestion.
     At this point, matters begin to become more obscure. On the affidavit evidence of Miss Toloczko and the magistrate, it appeared that there might be a difference as to the precise nature and extent of the Applicant's adverse reaction and as to the magistrate's motivation in his response to that reaction.  In the event, however, this particular aspect of the Applicant's challenge to the binding over order has not been pursued.  I think I can summarise the position by saying that the Applicant's adverse reaction took the form of a disturbance or disruptive behaviour in the face of the court, which led the magistrate reasonably to conclude that there existed a future risk of a breach of the peace.
 
      Further, on that basis, the magistrate determined to bind over the Applicant.  At this point, the most regrettable discrepancy in the court's records becomes of possible significance.  According to one version, dated 9th July 1997, the Applicant was bound over in his own recognisance to keep the peace and be of good behaviour for 28 days in the sum of £50 and subject to one surety in the sum of £250.  According to another, dated 9th April 1997, he was bound over to keep the peace and be of good behaviour in his own recognisance of £50 with one surety of £250 or 28 days' imprisonment.
     Although it is in fact the 9th April version that Miss Toloczko produces, it is to be noted that, throughout her three affidavits, she refers to the magistrate's order as having been to bind over the applicant on his own recognisance of £50 and subject to a surety of £250 for 28 days.  She never mentions the alternative period of imprisonment.  On the other hand, the inference from her most recent third affidavit is, that after the conclusion of the hearing before the magistrate, the applicant was held in custody.  One would have thought that the only basis for that would have been because there was some alternative of imprisonment pending provision of the recognisance and the suitable surety required.
     We have now been shown further court documents, including original notes made on the charge sheet for that day and, for my part, I think it is fair to say that they do  not, one way or the other, greatly clarify the position.  It is a requirement of any binding over order that it should be for a period, and the notes on the charge sheet read as follows, "to 31/1/97", then there is a reference to the condition of bail not to "contact victim".  Then, in summary, they go on, "Bound over, own recognisance £50 plus one surety £250".  There is then an obscure annotation or dash, after which follows "28 days".  That leaves it unclear whether 28 days is intended as an alternative, in which case the period of the bind‑over could at best be gathered from the period to which bail was being granted, or whether the 28 days was the period of the intended bind‑over, in which case there was no period of imprisonment in substitute.
     Another record, apparently made by the clerk, appears, after referring to an independent surety in the sum of £250, to state "for 28 days".  At least that seems the probable interpretation of barely legible writing but it is also possible that it might be a distorted "or", so the position is obscure.  I will revert to that in a moment.
     The evidence of Miss Toloczko is that the Applicant attended court on 3rd January 1998 with a friend, who told her, after the hearing, that he could and would act as surety, but it appears that this was not attended to straightaway.  It was only later that afternoon, after she had ceased to be involved ‑ it appears in the absence of the Applicant who was either in the cells or elsewhere by this stage ‑ that the surety did return, present himself and was  brought before the magistrate.  In Clerkenwell, (under rule 86(1)(b) of the Magistrates' Court Rules 1981) it is the practice of the magistrate himself to take recognisances. We have now the Stipendiary Magistrate's notes which show that the proposed surety was a Mr Fitzgerald, who explained he had shares in LEB and was willing to ensure that the Applicant kept the peace for the next 28 days. He also explained that he had an additional £2,000 worth of securities and £150 in the Halifax Building Society.  It also appears from the notes that the Magistrate took the view that this was not satisfactory unless some of the sureties were sold so that cash was available.  That on the face of it, seems quite a stringent attitude, although, of course, it is difficult to assess in the absence of direct evidence precisely what went on.
     The result of the encounter is noted as "the surety might come back".  It seems, therefore, that probably the question of realisable cash rather than some other personal aspect of unsuitability was the key question.  So far as appears, the surety did not ever return and the Applicant remained in custody until 16th January or a little later.
     He was then released and went to Winstanley Burgess to complain about the binding over order and its consequences.
     His conditional bail was continued on 31st January and he was eventually tried and convicted on the assault charge on 30th April 1997 when he was given a conditional discharge.  Whether this took account of the period he had  spent in custody, consequent on the binding over order, is not a point which is addressed in the material before us but one would assume, on the face of it, that they were regarded as separate matters.
     As I have said, this whole account leaves it uncertain whether the order for 28 days' imprisonment in default of compliance with the terms of the binding over, by providing a suitable surety, was, indeed, part of the Magistrate's order on 3rd January.  If it was not, then on what basis was the Applicant kept in prison, both before the interview of the surety and after?  It is, as I have said, difficult to resolve the position.  However, as it does not make any difference to the result, this case can be addressed on the assumption that an order for 28 days' imprisonment was indeed an alternative part of the magistrate's original order.  The contrary possibility really arose from the submissions before us, it was not one that was addressed by the Applicant in his original complaint, and it is not one on which the magistrate has had the opportunity of commenting.  It, or at least the resulting imprisonment, would also represent a far more serious irregularity, than that actually complained of.  It is therefore right to approach the case on the presumption or at least assumption, that the alternative of 28 days' imprisonment was part of the original order.
     On that basis, in acting as he did, it is, as I have said, now common ground that the Magistrate was proceeding  under the Justices of the Peace Act 1361 and not under section 115(1) of the Magistrates' Court Act 1980.
     It is not suggested by Mr Daniel, for the Applicant, that the Magistrate had no power under that Act or common law to impose a binding over order without consent, to require a surety or to impose a sentence of imprisonment in lieu.  What is suggested is that there was a breach of natural justice or procedural irregularity in the way in which the Magistrate dealt with the matter, without investigating further, or giving specific opportunity to the Applicant or his legal representative to make representations about the terms of any binding over order.
     There is authority that where a disturbance occurs in the face of the court, justifying a binding over order, there is no need for a magistrate invariably to draw attention to what has occurred or to give an opportunity for representations to be made about the conduct itself.  That appears, for example, from the case of R v North London Metropolitan Magistrate ex parte Haywood (1973) 3 All ER, where Lord Widgery at page 53 D said:
"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." 
     Natural justice has been said in this context to constitute a flexible concept which must adapt to the  particular circumstances, especially in the case of a represented defendant.  In another case cited in the skeleton of Mr Burnett, who appeared for the Respondent,
R v Woking Justices ex parte Gossage (1973) 1 QB 448, Lord Widgery made that point and said that it would not invariably be required of a magistrates bench that they give notice of a proposal to bind‑over, although it might well be wise and indeed courteous for such a warning to be given. That was in the context of a defendant who had been before the court and acquitted on the matters which gave rise to the magistrate's decision to bind over.
     However, the terms of any particular binding over order may give rise to different considerations and this is especially so where, as in the present case, they require not only a personal recognisance in the sum of £50, but a surety ‑‑ a suitable surety by implication ‑‑ in the sum of £250 as a condition, in effect, of avoiding imprisonment for 28 days.  In this connection, I find of assistance the decision and observations in the further and more recent case of R v Central Criminal Court ex parte Boulding (1984)
1 QB 813.  The headnote says:
"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." 
That conclusion is explained in the judgment of Lord Justice Watkins at page 820, with reference to the case of Woking Justices ex parte Gossage as follows:
"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." 
     That was a case concerning the size of the recognisance demanded from the person bound over himself.  The position where a requirement of a surety is imposed is still clearer.  A person who is ordered to be bound over in his own recognisance is not subject to any further inquiry to establish his suitability or ability to produce the sum in question if it is ever required.  A surety is however subject to a process of approval laid down in Rule 86 of the Magistrates Courts Rules 1981, and if he fails to satisfy the person inquiring into his suitability, that is a matter outside the control of the person ordered to be bound over and, indeed, it is a matter about which he would not necessarily know until afterwards, but yet it is a matter which could have drastic consequences for the person bound over, particularly, if as here, it results in his serving a period of imprisonment imposed as an alternative to his  satisfying the binding over order.  Therefore, it seems to me, it is a matter pre‑eminently requiring care on the part of a magistrates court lest, in effect, the magistrates impose a binding order which amounts to an automatic sentence of imprisonment without appreciating what they are doing.
     It is common ground here that the Magistrate did not expressly invite or give opportunity for any submissions or, indeed, any discussion between Miss Toloczko and the Applicant about the proposed terms of binding over before he imposed it.  He simply made the binding over order.  He says now, on affidavit, that he would nevertheless have been prepared to listen to anything that Miss Toloczko wished to say.  That may well be, but Miss Toloczko's account on affidavit shows that she was effectively presented with a fait accompli of a nature which, despite her undoubted experience, she had not come across before and which left her in her words "rather taken aback".  The jurisdiction exercised is not one which it is immediately easy to trace or grasp, especially in all its implications, as the submissions in the hearing before us have amply demonstrated.
     Mr Barnett referred us to the Law Society's and Bar's Codes of Conduct section 7.1(c) and paragraph 610(c) respectively, which provide that advocates when conducting proceedings at court:
"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.
     In the event, the best Miss Toloczko was able to do was to speak outside court to the friend, Mr Fitzgerald, who, after the hearing, then apparently confirmed to her that he could act as surety and would return, as he did.  She also went to speak to the Applicant in the cells.  Some days later, Winstanley Burgess learned of Mr Fitzgerald's rejection as surety.  There may have been avenues of appeal open at that stage, both against the binding over order and against the rejection of Mr Fitzgerald as a surety; but, again, those do not appear to have occurred to anyone and, again, it does not seem to me that they present any obstacle to the Applicant who was certainly unaware of them.
Mr Burnett has not suggested on behalf of the Respondent that they do. 
     What Mr Burnett has submitted is that it cannot be shown that it would have made any difference if the Magistrate had given to the Applicant and Miss Toloczko an opportunity to make representations.  However, it seems to me certainly not beyond the bounds of possibility, that if a proper opportunity had been given to Miss Toloczko to consider and address the matter after brief discussion between herself, the Applicant and the friend the stringency of the proposed order ‑ particularly in the alternative which I am assuming it had of 28 days' imprisonment ‑ would have been one of the points on which she would have focused; the risk and consequences of a suitable surety not being found and, in particular, of the friend at court,
Mr Fitzgerald, not being regarded as suitable might well also have been highlighted.
     Mr Burnett did not seek to controvert that.  The Magistrate might, in such circumstances, have been persuaded to a different result.  This is all, of course, speculative, but speculation though it may be, the reason why it is speculation is that the Magistrate failed, in my judgment, to give the Applicant or, on his behalf, Miss Toloczko proper time or a proper opportunity to address the terms of the proposed bind over order, particularly so far as they involved a requirement that the Applicant produce a surety in the sum of £250.  I am quite unable to accept that any irregularity was de minimis as Mr Burnett at one point suggested. It seems to me, that the procedural error which  occurred means that the bind‑over order imposed was, together with its alternative, as I am assuming, of 28 days imprisonment, was irregular.  The question remaining is what relief this Court can and should in the circumstances grant.  The Applicant has, of course, long since served the alternative period of imprisonment imposed.  Mr Daniel, on behalf of the Applicant, does not therefore pursue his application for certiorari.  What he seeks is a declaration that the binding over order was irregular and, in my judgment, to that extent, this application for judicial review succeeds.
 
LORD JUSTICE SIMON BROWN: I agree.  The central question raised on this application is whether a magistrate, contemplating the exercise of his powers under the Justice of the Peace Act 1361 to bind over a defendant who has created a disturbance in court, here a bind‑over to secure the defendant's good behaviour for the following 28 days until he was next to appear in court for the substantive hearing of the criminal complaint against him, and contemplating not merely that the defendant should enter into his own recognisance, but also that he should provide a surety to enter into a substantial recognisance too, or else the defendant would go to prison for 28 days, must before making such an order, first give the defendant or his representative an opportunity to be heard upon it.
     The authorities appear to establish that there is no  such requirement upon the Magistrate when considering merely the bind‑over of the defendant (or perhaps, indeed, of some other party) in his own recognisance, provided only that the sum in question is clearly a just and suitable one such as I would unhesitatingly accept was the £50 recognisance here required of the Applicant.  If, however, as in ex parte Bolden (1988) 1 QB 813, the recognisance required may be thought excessive, then such a duty does arise.  A fortiorari, to my mind, a defendant ought not to be put at peril of a prison sentence in default of finding a surety unless he has first been specifically invited to address the Magistrate upon that point.  It may be quite impossible for him to find a surety willing to stand in the required sum. Alternatively, as here, the surety may, for whatever reason, not then be judged suitable and acceptable by the court. True, there exists in section 118 of the Magistrates Court Act 1980 the opportunity to seek a variation of the requirement for a surety.  True too, there exists a right of appeal to the crown court against the original bind‑over order.  Neither, however, to my mind, meets the problem that, pending such further proceedings, the defendant may, as here he did, serve half at least of a term of imprisonment which could never properly have been imposed upon him, save only contingently for a failure to meet a reasonable requirement for a surety.
     Whether, had the Applicant's solicitor been specifically called upon as to the availability and  suitability of a surety and if so in what sum, this order would nevertheless have been made, one cannot be sure. Quite possibly it would have been.  It is however, sufficient for the Applicant's purposes upon this challenge that quite possibly it would not.
     In the result, I would unhesitatingly conclude that the present order should not have been made in the circumstances it was made.  I would, accordingly, let our judgments in the case stand as declaratory relief to that effect.  No further relief is appropriate or indeed sought, save perhaps as to costs, Mr Daniels?
 
MR DANIEL: My Lord, I seek the Applicant's costs and an order for legal aid taxation.
 
LORD JUSTICE SIMON BROWN: It is a legal aid case, Mr Burnett, what do to you say as to costs?
 
MR BURNETT: My Lord, the circumstances in which a magistrate could be ordered to pay the costs in an application of this sort, are limited only if the court considers that his conduct should be stigmatised.  One has in addition the obvious fact that the costs here would be flowing not only within the public service but from one pocket of the Lord Chancellor's‑‑‑‑
 
LORD JUSTICE SIMON BROWN: That is not of itself a good reason, but I entirely accept that. This is not one of those exceptional cases where it could possibly be appropriate to make the order against the Magistrate, but, certainly, there can be legal aid taxation, Mr Daniel, we are grateful for your assistance in the matter, thank you very much.