Statute Law Repeals - Law Commission - Ministry of Justice

2.46 Having examined the totality of legislation in this field (including provisions in the
Justices of the Peace Act 1968 62 and the Magistrates’ Courts Act 1980) 63 we
concluded provisionally in our consultation paper that the 1361 Act powers had
been duplicated and were no longer of practical utility. Repeal of the whole of the
1361 Act would also have necessitated partial repeal within the 1956 Act. 64
2.47 In the consultation process we received firm advice from more than one source
that the 1361 Act powers should not be repealed. 65 It was put to us that neither
the 1968 Act nor the 1980 Act contain sufficient power to bind over an individual
who is brought before the court following arrest for breach of the peace but who
has yet to be charged with an offence. The argument is that the individual is a
person who neither has a case before the court nor is the respondent to a formal
complaint. The gap is filled by the 1361 Act. The Justices’ Clerks Society say
specifically that before repealing the 1361 Act there should be a more wideranging
review of the power to bind over. The purpose of binding over orders is to
prevent future breaches of the peace, and enabling legislation needs to be
comprehensive.
2.48 These issues were taken up in a different way by the National Bench Chairmen’s
Forum (NBCF) who put to us the point that binding over is a highly effective
mechanism which can be used to prevent the escalation of disputes within
communities. It is exercisable as an “inherent power” rather than one exercisable
only on specific application. The NBCF is concerned that the law governing
binding over is less than clear and that, if the underpinning 1361 Act were
repealed, the more modern powers remaining may not be sufficient. The Forum
likewise feels that a more wide-ranging review of the law should be put in place
before the existing law is pruned out.
2.49 In the context of law reform the Law Commission has previously indicated that
the law on binding over “is complex and, in a number of respects, uncertain”, 66
and subsequently recommended that the powers in the 1361 Act and at common
law be abolished without replacement. 67 Government did not accede to the
recommendation. Exercise of binding over powers today is informed by a
Practice Direction. 68
2.50 In the light of the submissions made to the Commission it would be unwise to
suggest that the 1361 Act has been superseded or rendered obsolete. We
conclude, pending further review by government, that the 1361 Act should not be
repealed as part of the statute law repeals process.
62 1968 (c.69), s 1(7).
63 1980 (c.43), s 115.
64
More particularly, in section 1(1), the words “, under the Justices of the Peace Act 1361, or
otherwise,”.
65 The principal respondents were the Justices’ Clerks Society and the National Bench
Chairmen’s Forum (representing the lay judiciary).
66
Law Commission Working Paper Criminal Law Binding Over: The Issues (1987) No. 103 at
para 2.3.
67 Law Commission Report Binding Over (1994) Law Com No. 222 at paras 7.1, 7.4.
68
See Practice Direction (Amendment No 15 to the Consolidated Criminal Practice Direction)
[2007] 1 WLR 1790.
114