Binding Over

Overview

The jurisdiction to bind a person to the peace or good behaviour is ancient and was recognised by statute in the 14th century.  The Courts Acts provide that the jurisdiction may be exercised by the judges of the District Court, the Circuit Court and Superior Courts. The jurisdiction is most exercised in the District Court.

Notwithstanding any other legislation where power is conferred on a court on the conviction of a person to bind the offender to keep the peace or be of good behaviour, that power may be exercised without sentencing the offender to a fine or imprisonment.

It is a condition of the court order suspending a custodial sentence in whole or in part imposing a fine or deferring sentence or imposing a restriction on movement order that the person in respect of whom the order shall keep the peace and be of good behaviour.

The power to bind persons to keep the peace may require them to enter bonds personally or with sureties.  The power has been upheld by the courts as consistent with the constitution.  Specifically, it did not breach the guarantee against deprivation of liberty other than in accordance with law.

Binding over is not equivalent to an offence or conviction for an offence.  It is preventative jurisdiction in respect of persons whose behaviour need not necessarily be specifically criminal.

Where No Offence

The person may be bound over to keep the peace notwithstanding that he has not committed an offence.  The jurisdiction may be exercised where a person has breached the peace or otherwise behaved in the way that may cause a breach of the peace, notwithstanding that no criminal offence, even a public order offence has been committed or can be proved.

The jurisdiction was historically exercised by the court in respect of misbehaviour, although not necessarily criminal is likely to be dangerous, the peace and order of the community.

The order is not a punishment but precautionary in nature.  It does impugn a person’s character. It appears that the procedure is not inconsistent with the European Convention on Human Rights protection.

A defendant in respect of whom a charge has been dismissed may nonetheless be bound over.  The judge may make an order of his own initiative without it being specifically requested by the prosecution.

A binding over order may be made where a person has committed contempt of court.

Summons

An order can be made against a defendant who does not appear to answer a summons.  It cannot be made in relation to a person who has not been summoned at all.

A person may be summoned to be bound to the peace or good behaviour.  It must be based on a summons founded on a complaint made pursuant to the Petty Sessions Act rather than a summons issued automatically on request without a complaint.

A summons seeking to bind a person to keep the peace or be of good behaviour directs a person to appear before the court to show cause why he should not be bound with sureties to keep the peace.

A Garda may arrest a person who is committing a breach of the peace while the affray continues or if there are reasonable grounds for apprehending that may be repeated.

Basis

The jurisdiction will generally be exercised where there has been a breach of the peace. It may be exercised even in the absence of a breach of the peace, if the circumstances are of such character that leads to the reasonable probability of the party during an act, that would amount to such misbehaviour or breach of the peace.

The courts have wide discretion and superior courts on judicial review will allow considerable latitude in that discretion.

It may be founded on a summons alleging threatening or abusive language or conduct calculated to cause or breach of the peace. Unreasonable and unnecessary persistence in language and conduct calculated to provoke violence or tumult may be enough.

It appears that the breach must be such as to cause reasonable alarm or apprehension to members of the public.  This should usually be something done or threatened to be done which either harms a person in his presence or harms his property or is likely to cause such harm or put someone in fear of such harm.

The summons may be based on several instances of misconduct. In addition to matters set out in the summons, evidence of the defendant’s general course of conduct and previous convictions may be offered in evidence.

Procedure

Upon any summons or complaint made before a court of summary jurisdiction where the defendant is called to show cause why he should not be bound to keep the peace or be of good behaviour, he is entitled to call witnesses and give evidence.

Where a judge proposes to bind a person over, he should be given a warning and the opportunity to contest the matter, as a matter of constitutional fair procedures.

A person is generally bound over for a period.  The amount of security and the sufficiency of sureties are a matter for the court’s discretion.

The judge may direct that a person be bound be sentenced to prison, for a period if he defaults in compliance with the order.

The right of appeal to the Circuit Court does not apply to an order binding to the peace or good behaviour or both the peace and good behaviour.  However, there is a statutory power to apply in a summary manner to the judge of the Circuit Court for an order to be released from the obligations imposed by the order and the recognisance.

An order binding over may be challenged on judicial review.  The order must state facts on its face necessary to show jurisdiction.  It must accordingly show the threat of future violence or other ground such as to cause a likely breach of the peace.

Estreatment

An order may be breached, and security forfeited by breach of the peace or misbehaviour within the scope of the order.  There must be some actual behaviour rather than suspicion.

A recognizance maybe estreated or called in against the principal or sureties for breach of the peace. Upon breach of condition, the court may order that the recognizance be estreated or a sum of money be forfeited, which has been lodged in lieu of a surety.  The recognizance is to be produced to the court and the judges to endorse a certificate in statutory form.

An application for an order to estreat a recognizance or forfeit monies may be made by the superintendent of an Garda Siochana to a court at which the order directing the recognisance was made.

The procedure for application to estreat is prescribed.  A note in the statutory form must be served on the principal and sureties.  It may be served by ordinary post at least seven days before the application or in such other manner as the court may direct.  The application notice must be lodged at least four days before the hearing.

Enforcement of Estreatment

The court on hearing the application and evidence may estreat the recognisance or forfeit the money lodged.  Where such an order is made, the court shall send by ordinary post to each person concerned, a notice of estreatment of the recognizance or forfeiture.

An order for estreatment may be enforced by distress or committal.  A warrant of distress may be issued to levy the amount due by distress and sale of goods on the person concerned.  If at any time after the issue of the estreat, the superintendent having given seven days notice of the application to the person against whom an application may be made, if it is found impossible to execute the warrant of distress to commit the respondent for a term not exceeding the periods set out in the scale.

If the court estreats a recognizance, a fresh bond may be required.

A person may be found guilty of a breach of the peace in a public place contrary to the Criminal Justice Public Order Act 1994.  Where a breach of the peace does not occur in a public place, it may constitute an offence at common law.

Other Orders

Other orders of a non-criminal nature may be at the subject of other chapters

• Community service orders
• Compensation orders
• Restriction on movement orders

The power to bind over an offender, to keep the peace and be of a good behaviour, dates back to the Middle Ages.  A person may be bound over where he is convicted of an offence involving disorderly behaviour, which may be replicated in the future.  The order may be made in addition to imprisonment.  The defendant may be obliged to put forward sureties who are bound by recognisance to the condition that he keep the peace.

The power binding over is equivalent in some respects to a suspended sentence  Failure to comply with the terms means that the relevant sum of money under the recognisance is forfeited.  Failure to enter the recognizance may be punished by imprisonment.

Modern legislation confirms that a court may require a person to be bound to keep the peace and of good behaviour without imposing a fine or term of imprisonment.  The discretion must be used within constitutional parameters.

There is no right of appeal, but the binding over may be the subject of judicial review. The procedure has been challenged on grounds of constitutionality and upheld, notwithstanding that it incorporates elements of preventive justice.