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In the law of England and Wales and in other common law jurisdictions such as Hong Kong, binding over, a binding over order, and binding over for sentence are exercises of certain powers by magistrates. A person who is bound over can be required to refrain from certain activities for a stipulated period, to be of good behaviour or to comply with other conditions. When binding a person over, the magistrate will usually stipulate a conditional financial penalty or fine to be paid if the person later breaches the binding over order. If the person breaches the conditions, he or she can be arrested and brought to court or otherwise compelled to return to court where the magistrate may impose the stipulated financial penalty or otherwise dispose of the case.
Magistrates can bind over a person to be of good behaviour or to keep the peace, any person, such as a defendant, witness or claimant. This may happen where the case involves violence or the threat of it. Sometimes the prosecution will drop such a charge if the defendant agrees to be bound over in this way. No conviction will be recorded if the matter is settled via a binding over order because the order is regarded as a civil matter.
A magistrate has legal power to make orders to prevent a likely breach of the peace and, on evidence produced before him, may require a person, on pain of six months’ imprisonment on refusal, to enter into a recognizance and find sureties either to keep the peace or to be of good behaviour. The procedure is called ‘binding over to keep the peace’ and upon complaint by any person, the magistrate may hear the complainant, the defendant and witnesses, and if appropriate, may make the order.
Binding over is a precautionary measure to be adopted when there are reasonable grounds to anticipate some present or future danger. It is not a conviction or a punishment. It should not be used for an act which is past and which is not likely to be repeated. It should not be used as an alternative measure for dealing with cases in which the prosecution has insufficient evidence to substantiate a charge.
Applications to bind a person over may be made in a variety of circumstances: e.g. for minor assaults inside private premises where there are no truly independent witnesses; continuing domestic disputes; or for minor cases where it is obvious that both parties are at fault with no independent evidence to support either party's counter-allegation.
Although a binding over order is not a conviction, such order may be imposed following conviction and sentence for a criminal offence, in addition to any penalty applied. A refusal to accept the terms of the binding over order may be treated as a contempt of court.
- "Justices of the Peace Act 1361". The National Archives. Retrieved 3 August 2011.
- Archbold (December 2007): "Binding Over Following Conviction"