R v Central Criminal Court, ex parte Boulding

QUEEN'S BENCH DIVISION

[1984] 1 QB 813, [1984] 1 All ER 766, [1984] 2 WLR 321, 79 Cr App Rep 100, 5 Cr App R (S) 433, 148 JP 174

HEARING-DATES: 12 DECEMBER 1983

12 December 1983

CATCHWORDS:
Crown Court -- Binding over -- Powers of court -- Terms of order -- Opportunity to make representations against order -- Severity of order --
Court binding over convicted defendant for two years on terms that he entered into recognisance in substantial sum -- Court not giving
defendant's counsel opportunity to make representations against order -- Whether natural justice requiring court to give defendant or his
counsel opportunity to make representations against order -- Whether order invalid as being in terrorem.



HEADNOTE:
The applicant, who held strong views on the manufacture of furs, was convicted by a magistrates' court of using insulting words and behaviour
outside the premises of a fur-manufacturing company. The magistrates fined the applicant £10 and ordered him to pay the costs of the
hearing. The applicant appealed against the conviction to the Crown Court, which, on rehearing the case, convicted the applicant and, in
addition to upholding the magistrates' fine of £10 and the order for costs, imposed an order binding over the applicant for two years to keep the
peace and be of good behaviour on terms that he entered into a recognisance in the sum of £500 with the alternative of three months'
imprisonment. The order was imposed with the applicant's consent but without any enquiry into his means and without giving his counsel an
opportunity to make representations against it. The applicant applied for an order of certiorari to quash the binding-over order on the ground
that it was made in excess of the court's jurisdiction, was unduly harsh and oppressive, and was contrary to the rules of natural justice
because the applicant's counsel had not been given an opportunity to make representations before the order was imposed.

Held -- Where the Crown Court intended to impose a binding-over order on a convicted defendant requiring him to enter into a recognisance in
a substantial sum, natural justice required the court to give the defendant or his legal representative an opportunity to make representations
against the imposition of such an order, and also required the court to inquire into the defendant's means before imposing such an order. That
was so irrespective of the seriousness of the defendant's conduct and the possibility of repetition of the conduct. Furthermore, a binding-over
order ought not to be in such terms that it acted in terrorem of the defendant by, for example, effectively inhibiting his right to free speech
within the law. Since the Crown Court had not given the applicant's counsel an opportunity to make representations and had not inquired into
the applicant's means before imposing the binding-over order, the court had acted in breach of the rules of natural justice and certiorari would
be ordered to quash the order (see p 769 d to j, post).
Dictum of Lord Widgery CJ in R v Woking Justices, ex p Gossage [1973] 2 All ER at 623 considered.

NOTES:
For recognisances to keep the peace, see 11 Halsbury's Laws (4th edn) paras 521--522.

CASES-REF-TO:

R v Woking Justices, ex p Gossage [1973] 2 All ER 621, [1973] QB 448, [1973] 2 WLR 529, DC.
Sheldon v Bromfield Justices [1964] 2 All ER 131, [1964] 2 QB 573, [1964] 2 WLR 1066, DC.ct021Cases also cited
Lansbury v Riley [1914] 3 KB 229, [1911--13] All ER Rep 1059, DC.
Metropolitan Properties Co (FGC) Ltd v Lannon [1968] 3 All ER 304, [1969] 1 QB 577, CA.
R v Crown Court at St Albans, ex p Cinnamond [1981] 1 All ER 802, [1981] QB 480, DC.
R v Sharp, R v Johnson [1957] 1 All ER 577, [1957] 1 QB 522, CCA.
Veater v G [1981] 2 All ER 304, [1981] 1 WLR 567, DC.

INTRODUCTION:
Application for judicial review

Stephen Boulding applied, with leave of Mann J granted on 3 May 1983, for an order of certiorari to bring up and quash the order made by his
Honour Judge Buzzard and two magistrates at the Central Criminal Court on 19 January 1983 binding the applicant over for two years to keep
the peace in the sum of £500. The facts are set out in the judgment of Watkins LJ.

COUNSEL:
Ann Wallace for the applicant.

John Laws for the respondent.

PANEL: WATKINS LJ AND TAYLOR J

JUDGMENTBY-1: WATKINS LJ

JUDGMENT-1:
WATKINS LJ. Stephen Boulding is a bus driver employed by London Transport. He is a married man of 34 years of age. He moves for judicial
review of an order of binding over imposed on him at the Central Criminal Court.
The circumstances which brought him to that situation were that at the Mansion House, before the City magistrates, he was convicted of
using insulting words and behaviour contrary to s 35(13) of the City of London Police Act 1839, as amended. He was thereupon fined the sum
of £10 and ordered to pay the costs of the hearing. From that conviction he appealed to the Crown Court. On 19 January 1983 he faced his
Honour Judge Buzzard and two magistrates, who conducted (as is usual on an appeal from magistrates) a rehearing of the case.
The applicant is a man with very strong views about the manufacture of furs. He makes those views plain to those who are engaged in that
commercial enterprise. On 16 July 1982 he was doing that when police officers felt it necessary to take him into custody.
The evidence which the police officers gave to the magistrates and subsequently to the Central Criminal Court can be summarised in this
way. The applicant went to the premises of the Hudson's Bay fur company and shouted at persons employed there: 'Murderers fur trade
out.' He made threats. He stated that their trade was 'evil', and that they should not be in the fur trade. As a result of that manifestation of
his views, a large crowd assembled, most of whom were engaged in the fur trade and who had become very angry at what he was
saying. They jeered at him. Some raised their fists. He was asked to be quiet by the police officers. He refused and said: 'You've got no right
you're the bastard who'll end up in court.'
When the applicant was in the police car, being taken to the police station, he became very excited and said to the police officers: 'We have
only just started, sunshine there's 20 more like me.' They told him to calm down, but his only response to that was: 'You're as bad as those
murderers: you support them.'
In giving evidence on his own behalf, he admitted that he had used the word 'murderers' to two employees of the Hudson's Bay company. He
admitted that he used a megaphone in order to make his views more widely known.
He was again convicted at the Central Criminal Court where the judge took a rather more severe view than the magistrates at the Mansion
House of his conduct. He and the magistrates sitting with him not only kept in being the fine imposed by the City magistrates and the order for
costs made below, but ordered him to pay the costs of the appeal and in addition, without inviting any comment whatsoever beforehand from
counsel who was, on that occasion, appearing for the applicant, they bound him over for two years to keep the peace and be of good
behaviour, and ordered him to enter into a recognisance in the sum of £500, with the alternative of three months' imprisonment.
The applicant, on being asked to do so, consented to being bound over. Whether he consented to that in respect of all those terms, or
merely to being bound over, the material before us does not reveal. But I am prepared to assume that he was fully appraised of the terms
before he gave his consent. At all events, he signed the necessary recognisance after being bound over and before leaving the court.
The grounds in support of the motion for judicial review relate exclusively to the binding-over order. They are contained in a document the
contents of which I summarise as follows. It is contended that the binding-over order was in excess of the court's jurisdiction. Alternatively it
was unduly harsh and oppressive. It was in any event, it is said, an abuse of the process of the court and, therefore, an invalid order. It is
further said that the rules of natural justice were not obeyed, seeing that it was made without providing an opportunity for representations to
be made against the imposition of it on the applicant's behalf. Finally, it is contended by counsel for the applicant that there was an
appearance of bias in the manner in which the order was imposed.
Counsel for the applicant derives support for that last contention from words used by the judge when he said:

'Democracy is a delicate plant which has flowered with difficulty at different times and places in the history of mankind. Civilisation can exist
without democracy and has done for most of recorded history, but it cannot exist without the rule of law. Some minorities believe that they
have a divine right to use lawful and unlawful means to impose what they believe is right. In that respect they are no different from the
adherents of Hitler. We are here to see that the law is obeyed whatever the motives of those who disobey it.'

It is convenient, I think, to dispose of that contention by expressing my view of it at this stage. The judge may have been wiser and spoken a
little more temperately if he had avoided any reference to Hitler. But that apart, I can see nothing whatsoever objectionable in what he said. I
cannot think that any right-thinking person, sitting in court, listening to the judge, could sensibly have come to the conclusion that he was in
any way biased against the applicant.
At the heart, as I see it, of the motion to review the decision to bind over the applicant, is this. It is wrong, so it is submitted, for the court
to bind over a person, albeit he is a convicted person, without first of all giving him an opportunity to make representations about the intention
of the court to make such an order. Furthermore, it is wrong for no opportunity to be given to a defendant, or to the person representing him,
to make submissions as to the size of the recognisance which the court is minded to cause the defendant to enter into. This is in relation not
only to the size of the recognisance in financial terms, but also to the length of the term of imprisonment declared.
In this connection we have been referred to what was said by Lord Widgery CJ in R v Woking Justices, ex p Gossage [1973] 2 All ER 621,
[1973] QB 448. That was a case in which an applicant was bound over to keep the peace for 24 months in his own recognisance of £100. It is
unnecessary to say anything about the facts. I turn immediately to the concluding observations of Lord Widgery CJ ( [1973] 2 All ER 621 at
623, [1973] QB 448 at 451):

'I think from the extracts from Lord Parker CJ's judgment [in Sheldon v Bromfield Justices[1964] 2 All ER 131 at 133, 134, [1964] 2 QB 573 at
577, 578] that I have read, Lord Parker CJ would have taken the same view but, be that as it may, it seems to me to be putting it far too high
in the case of an acquitted defendant to say that it is a breach of the rules of natural justice not to give him an indication of the prospective
binding-over before the binding-over is imposed. That is not to say that it would not be wise, and indeed courteous in these cases for justices
to give such a warning there certainly would be absolutely no harm in a case like the present if the justices, returning to court, had announced
they were going to acquit, but had immediately said ''We are however contemplating a binding-over what have you got to say?'' I think it would
be at least courteous and perhaps wise that that should be done, but I am unable to elevate the principle to the height at which it can be said
that a failure to give such a warning is a breach of the rules of natural justice.'

It must be noted that Lord Widgery CJ was there referring to a situation in which it was proposed to bind over an acquitted defendant. Counsel
for the respondent, for whose valuable submissions I wish to express gratitude, contends that, in the case of a convicted defendant, the
observations of Lord Widgery CJ would have very much greater force and thus bind this court.
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 rules 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 on 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 defendant 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 on a defendant, no matter how serious the conduct which has brought about his conviction is regarded and the possibility of his
repeating that conduct in the future. A binding over must not be in such terms contemplated 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.
This court has been given information which the court below had not, namely information about the means of the applicant. He was, and very
likely still is, a bus driver. At that time, he earned £140 gross per week. His wife was working, earning £130 gross per week, but she either has
or is soon to give up work because of pregnancy. They had between them £400 in savings. 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 applicant was called on to enter
into.
In my judgment, although a court may say, without giving a defendant the opportunity to be heard on 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 for 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.

JUDGMENTBY-2: TAYLOR J

JUDGMENT-2:
TAYLOR J. I agree.

DISPOSITION:
Application granted. Binding-over order quashed.

SOLICITORS:
Mackenzie Patten & Co, Southall (for the applicant); Treasury Solicitor.