If circumstances justify, a prosecutor may invite the court to consider exercising its power to bind a defendant over as an alternative to prosecution for a criminal offence. The prosecutor should only invite the court to exercise this power once he has made a firm and settled decision to offer no evidence in the criminal proceedings.
In some courts this proposal is treated as an invitation for the court to act of its own motion. In other courts it is treated as a complaint laid under S115 MCA.
If treated as a S115 MCA complaint (which can be written or usually oral) the court may wish to hear evidence or require some proof of complaint. It is therefore in such circumstances necessary to ensure that some admissible evidence sufficient to prove the complaint is available.
Prosecutors should never invite the court to bind over anybody other than the defendant.
Do you think that a bind over would be an appropriate way to deal with £50,000 worth of criminal damage? Probably not.
I had the joy of dealing with an odd case recently. A family left their home to go away on a holiday, they left behind their son who is a teenager. The son has a party one night, and the following night some people went to the same address and have their own party. At the party £50,000 worth of damage was caused to the property as the vast majority of the furniture in the property was smashed up and thrown around.
I represented a number of people accused of criminally damaging the property. The evidence in this case consisted of forensic evidence that established that a number of people were at the address, but unfortunately the Crown Prosecution Service had no evidence that any individual who could be placed at the scene had actually damaged anything - mere presence in this case was not enough to prove the crime.
The Crown Prosecution Service wasted thousands of pounds on this case. They attempted to have this case sent for trial in the Crown Court by initially charging the defendants with burglary and criminal damage. The Crown Prosecution Service accepted after a few weeks that the evidence in their case was weak as it relied upon one witness. That witness was a person who went to the 'party' and said words to the effect that, "I was there but I didn't do anything. I left before anyone damaged anything, and when I got back the place was a mess." The Crown Prosecution Service dropped the case and after several months revived the case with the same weak evidence.
This case got all the way to a trial where two weeks had been set aside for the trial. The Crown Prosecution Service had clearly been concerned about the weakness in their evidence and instructed a barrister with 25 years experience to prosecute their case. Surprise, surprise their main witness who said, "I was there but I didn't do anything. I left before anyone damaged anything, and when I got back the place was a mess," did not turn up to give evidence. It was clear that the witness for the prosecution had not told the truth and that vast sums of money had been wasted preparing and prosecuting this case. Although the started it came grinding to a halt when the prosecution requested a short adjournment to find their witness.
Once the prosecution confirmed that they would not be in a position to locate their witness they asked if all the defendants in the case would like a bind over. Although there was some reluctance to accept bind overs where some defendants denied committing a crime, all defendants saw the logic in accepting a bind over which is not considered to be the same as a criminal conviction, rather than run the risk of a Magistrates Court convicting the defendants on the basis of mere presence at the scene.