3. Binding over orders

Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

The court has the power to bind an individual over to keep the peace (Justices of the Peace Act 1361, Justices of the Peace Act 1968, s.1(7), Magistrates Courts Act 1980, s.115). The order is designed to prevent future misconduct and requires the individual to promise to pay a specified sum if the terms of the order are breached. Exercise of the power does not depend upon conviction. Guidance on the making of binding over orders is set out in the Criminal Practice Directions VII: Sentencing (external website, link will not work if you are offline).

Key principles include:

  1. before imposing the order, the court must be satisfied so that it is sure that a breach of the peace involving violence or an imminent threat of violence has occurred, or that there is a real risk of violence in the future. The court should hear evidence and the parties before making any order;
  2. the court should state its reasons for making the order;
  3. the order should identify the specific conduct or activity from which the individual must refrain, the length of the order and the amount of the recognisance;
  4. the length of the order should be proportionate to the harm sought to be avoided and should not generally exceed 12 months;
  5. when fixing the amount of the recognisance, the court should have regard to the individual’s financial resources.