Emohare v Thames Magistrates Court

A binding over order after acquittal is exceptional. The court must be satisfied beyond reasonable doubt that a breach of the peace involving violence, an imminent threat of violence, or a real future risk of violence exists. The order must comply with the applicable practice direction and identify the conduct to be restrained.

After an acquittal, a defendant’s costs should normally be paid from central funds unless a narrowly drawn positive reason justifies refusal. The reason must not suggest that the acquitted defendant was guilty of uncharged or unproved criminal conduct. Disagreeable behaviour, or conduct which may have prompted suspicion, is insufficient where the facts remain consistent with innocence.

The claimant was acquitted by magistrates of assaulting a police constable under section 89(1) of the Police Act 1996. The magistrates nevertheless bound him over to keep the peace for two years, finding that his aggressive conduct amounted to a breach of the peace.

The magistrates also refused a defendant’s costs order under section 16 of the Prosecution of Offences Act 1985, reasoning that the claimant had brought the prosecution upon himself and might have been convicted of an offence under section 4 of the Public Order Act 1986. The Administrative Court considered the case stated out of time, while refusing the renewed judicial review application.

1. Disposition. The renewed judicial review application was refused, but the court extended time and entertained the appeal by case stated. Both questions were answered against the magistrates. The binding over order and the refusal of a defendant’s costs order were quashed. The claimant was awarded his costs of the hearing and of the proceedings before the magistrates from central funds.
2. Binding over. A binding over to keep the peace is generally warranted only where there is evidence of likely personal danger to others involving violence or the threat of violence. Following R v Middlesex Crown Court ex p Khan (1997) 161 JP 240, an order following an acquittal is exceedingly rare and requires proof beyond reasonable doubt that the acquitted person poses a potential threat to others and is a person of violence. The Consolidated Criminal Practice Direction, para III.31, required the magistrates to identify violence, an imminent threat, or a real risk of future violence, and to specify the conduct restrained.
3. The magistrates’ findings established only aggressive demeanour, objection to a search, and the possibility that the contact with the officer was an involuntary reaction to pain. Those findings could not support the conclusion that the claimant was a violent person who posed a threat. The practice-direction breaches and the magistrates’ failure to apply the governing principles independently invalidated the order.
4. Costs. Under section 16 of the Prosecution of Offences Act 1985 and the Practice Direction (Costs: Criminal Proceedings), a defendant’s costs order should normally be made after an acquittal unless there is a positive reason for refusing it. The exceptions must be narrowly drawn because of the presumption of innocence. Refusing costs because the claimant had brought the prosecution upon himself, or because he might have committed an uncharged public-order offence, improperly conveyed an opinion of guilt and was contrary to article 6 principles, including those stated in Minelli v Switzerland 5 EHRR 554.

1. Stratford Magistrates’ Court. The claimant was acquitted of assaulting a police constable, but was bound over to keep the peace and refused a defendant’s costs order.
2. High Court (Administrative Court). The court refused renewed judicial review permission but extended time for and allowed the case stated appeal, quashing both orders.