Harlow-Hayes, R (on the application of) v Cambridge Crown Court

A court should not rely on consent to a bind-over order unless it has itself established that the person concerned understands the proposed order, its consequences and the opportunity to dispute it and obtain legal advice. The court should ask the relevant questions and give the necessary warnings in open court. Before fixing the recognisance, it should make sufficient enquiry into the person’s means to test any assumptions and allow submissions. Failure to follow these safeguards makes the procedure unfair and justifies quashing the order and remitting the matter for reconsideration.

Following a criminal trial at Cambridge Crown Court, two prosecution witnesses and complainants were bound over to keep the peace on terms including recognisances of £5,000. They challenged the orders by judicial review, contending that their consent had not been informed and that the judge had failed to enquire into their means before fixing the sums.

The Divisional Court considered whether the Crown Court had adopted a fair consent procedure and whether the recognisances had been properly assessed. The court also dealt with a later application concerning the bind-over order made against the defendant in the criminal proceedings.

1. Orders against the claimants. The Divisional Court, unanimously, quashed the bind-over orders. The judge had relied only on an implication from the fact that prosecuting counsel had spoken to the claimants. He did not know what advice or explanation had been given, and had not himself established that they understood their entitlement to dispute the proposed orders.
2. Where a bind-over is to be made by consent, the judge must personally ask the relevant questions, explain the proposed order and its consequences, and give the persons concerned an opportunity to consider whether to dispute it and whether to obtain legal advice. The procedure should ordinarily take place in open court so that there is a reliable transcript. Consent obtained without that informed opportunity is not consent on which the judge may properly act.
3. The claimants were also entitled to an opportunity to make representations about the proposed recognisances. Even if the judge had material concerning their means, he should have made at least some enquiry to test any assumptions before fixing the sums at £5,000.
4. The matter was remitted to the Crown Court. The judge was to decide whether further evidence was needed, whether a bind-over order remained appropriate on the facts found, and whether £5,000 remained the appropriate recognisance in light of any representations about means.
5. On an undertaking to file an appropriate late application and supporting evidence, permission and an extension of time were granted in relation to Mr Norman’s separate bind-over order, which was also quashed and remitted for consideration with the claimants’ orders. The claimants’ costs were ordered to come from central funds under section 16 of the Prosecution of Offences Act; the second interested party received costs only for its own application.

• Cambridge Crown Court: On 16 November 2006, the claimants were bound over to keep the peace on recognisances of £5,000 each.
• High Court (Administrative Court): The Divisional Court quashed the orders and remitted the matters to the Crown Court for reconsideration. A separate order concerning Mr Norman was subsequently quashed on the stated procedural basis.