Withdrawal of Bench Warrants
- Types of warrant
- Withdrawl of Bench Warrants
- Considering withdrawing a Warrant
- Decision to withdraw a Warrant - factors to consider
- Withdrawal of a magistrates' court Warrant
- Withdrawing a Crown Court Warrant
- Withdrawing a Warrant when the substantive offence proceeds
- Levels of decision-making
- Cross-Border Enforcement
- Backing of Warrants
Types of Warrant
The term bench warrant refers to a warrant issued to compel the attendance of a defendant already on bail, under the Bail Act 1976 section 7, [Archbold 3-37], and the Senior Courts Act 1981 section 81 [Archbold 3-175]. Issue of a warrant under these provisions follows the commission of a separate offence, which will need to be considered separately from the substantive offence.
For certain other warrants, if the prosecutor decides not to proceed with the substantive offence, the warrant will be withdrawn. The most common are:
- a "first instance" warrant (Magistrates' Courts Act 1980 section 1) - Justices can authorise arrest under warrant for a person who is suspected of or has committed a criminal offence. The warrant may or may not be endorsed for bail
- a warrant in proceedings where the defendant has not been on bail (MCA 1980 section 13 )
- a Crown Court warrant where an indictment has been signed but there has been no committal for trial (Senior Courts Act 1981 section 80 (2) [Archbold 3-174])
- a warrant to compel the attendance of witnesses (MCA 1980 section 97A) [Archbold 10-21] and Criminal Procedure (Attendance of Witnesses) Act 1965 section 4 [Archbold 8-13]
- a warrant requiring the defendant to attend for disqualification.
Withdrawl of Bench Warrants
Warrants must never be withdrawn on the grounds of expediency alone. The case reviewer must be able to justify a decision to withdraw a warrant to the court and where appropriate to the victim.
The primary responsibility for reviewing outstanding warrants lies with the police. If the police request that the CPS withdraw a warrant, then we should re-review the case to ascertain whether we withdraw the warrant, the substantive offence or both.
The substantive offence and the bail offence should be reviewed separately.
Considering withdrawing a Warrant
Each case must be reviewed on its own facts and on its own merits, but the presence of the following factors may mean that it is appropriate to consider withdrawing a warrant:
- if there is a change in circumstances and a further review of the substantive offence reveals that the evidential sufficiency or the public interest criteria may no longer be met
- where records show that a warrant has not been executed after 12 months. This will need to involve the careful consideration of the seriousness of the offence(s) involved
- if the police ask the CPS to consider withdrawing the warrant. Representations as to bail are part of the conduct of proceedings for which the CPS is responsible and the police should be discouraged from making their own applications to withdraw warrants
- if the defendant was not on bail when the warrant was issued (e.g. because the case began by summons or first instance warrant), a Bail Act 1976 offence will not have been committed.
Decision to withdraw a Warrant - factors to consider
Where a warrant remains unexecuted and may be withdrawn, the factors to consider will vary from case to case but are likely to include the following:
- the gravity of the offence
- the staleness or otherwise of the offence
- the likely penalty, bearing in mind the delay between offence and sentence
- the strength of the evidence, bearing in mind the passage of time
- the accused's character and antecedents (including bail history)
- the nature of the offence and its impact upon the victim, and the redress available to him or her
- the likelihood of the victim being traced and/or attending court
- efforts the police have made to execute the warrant
- whether the accused has appeared and been sentenced at another court since the warrant was issued (it is not unknown for outstanding warrants to be over looked)
- the sentence imposed on any co-accused
- whether the accused has re-offended (if not, it may indicate that the pattern of offending has ceased) and
- any other applicable public interest factors in the Code that should be borne in mind.
Withdrawl of a magistrates' court Warrant
Reviewing the case
Cases where a warrant has not been executed for 12 months should be reviewed and the following steps taken:
- check with the court that the defendant has not been dealt with on an earlier occasion for the warrant.
Write to the police asking:
- whether there has been any change of circumstances, e.g. witnesses no longer available or willing to give evidence;
- whether there is a realistic prospect of arresting the defendant
- what efforts have been made to execute the warrant and
- what is the police view.
The substantive offence should then be reviewed in accordance with the Full Code Test in the Code for Crown Prosecutors which has two stages:
(i) the evidential stage; followed by
(ii) the public interest stage, bearing in mind that mere lapse of time does not itself mean that either of these stages can no longer be satisfied.
If the reviewer decides that the substantive offence should be discontinued, any Bail Act offence should be reviewed. Failure to surrender to bail granted by a court is a serious offence. It is important that the CPS is not seen to diminish its gravity.
If the reviewer decides that the substantive offence is to continue, the warrant should also continue, unless there are exceptional circumstances.
Procedure when the substantive offence and Warrant are to be withdrawn
The following steps should be taken when both the substantive offence and the warrant are to be withdrawn:
- write to the police notifying them of proposed discontinuance
- request the police to return the warrant to the court and notify CPS when done
- apply to the court for the proceedings to be listed for discontinuance and warrant to be withdrawn (MCA section 125 Archbold 19-341, Blackstone's D1.22)
- hearing in open court and before a bench comprising at least two magistrates or a District Judge
- inform the police the case has been withdrawn and
- write to the victim(s) informing them of the reasons for the decision.
Withdrawing a Crown Court Warrant
Where a decision has been taken by a prosecutor to withdraw a warrant, prosecutors are reminded that there is no formal power to withdraw a warrant in the Crown Court administratively, although some Crown Courts have local arrangements where applications for warrants to be withdrawn can be made in open court.
Provided the Full Code Test for the substantive offence is met on review, the warrant should continue in force with at least an annual review of the position. A more frequent review would be required in a youth or sensitive case.
Withdrawing a Warrant when the substantive offence proceeds
It may sometimes be appropriate to withdraw a warrant even though the substantive offence is to proceed. This may arise in the following circumstances:
- if the defendant is already in custody for another offence, a Home Office Production Order maybe appropriate to secure attendance and for the warrants to be withdrawn
- if the defendant is physically unable to attend court, it may be appropriate to substitute the warrant for a warrant backed for bail and
- if the defendant is wanted on several warrants and one has been executed, it may be possible to put all outstanding matters before one court and withdraw the remaining warrants.
Levels of decision-making
A decision to withdraw a bench warrant should be endorsed by an experienced prosecutor. Where the warrant relates to a charge which must be dealt with by a prosecutor of a suitable grade, the decision to withdraw a bench warrant should be endorsed by that prosecutor.
Cross-border Enforcement
The arrest and return of offenders between England or Wales and Scotland and Northern Ireland is usually dealt with on a cross-border enforcement basis.
This means that a warrant issued in one jurisdiction may be executed without any endorsement or judicial intervention in the other jurisdiction. There are corresponding cross-border powers of arrest by constables from one jurisdiction in another.
The process is regulated by sections 136 - 140 Criminal Justice and Public Order Act 1994. See Stones Justices Manual 1 - 3537.
Backing of Warrants
The backing of warrants is a process for returning accused or convicted persons between England or Wales and the Isle of Man and the Channel Islands.
Section 126 Magistrates Courts Act 1980 (Stones Justices Manual, 1-2209) and section 13 Indictable Offences Act 1848 (Stones Justices Manual, 8-9880) apply to the execution in the Isle of Man and the Channel Islands of warrants issued in England or Wales and vice- versa.
A warrant is issued by a judicial authority in the jurisdiction seeking an offenders return. This is then sent by the police force which obtained the warrant to its counterpart force in the requested jurisdiction. If the latter is satisfied that the offender is likely to be found there, the warrant is endorsed (backed) by judicial authority and the offender arrested. The respective police forces will then make arrangements for the offender to be transferred to the requesting jurisdiction.
There is no requirement to place evidence before the Court showing there is a case against the offender.
The CPS generally has no role in either the outgoing or incoming procedure, although the police will sometimes ask the about the procedure for having a warrant, issued in England or Wales, backed for execution. The police should be advised to contact their counterparts (for which The Police and Constabulary Almanac is invaluable) in the jurisdiction in which the offender is believed to be.
Note:
- Returns between the UK and the Republic of Ireland, which were formerly conducted on the backing of warrants basis, are now conducted under the European Arrest Warrant Scheme and regulated by Parts 1 and 3 of the Extradition Act 2003 (see Guidance on Extradition);
- The system also formerly applied to returns between England/Wales and Scotland and Northern Ireland. However, those arrangements now consist of cross-border enforcement. The warrants do not have to be backed and may be executed by any constable of the country of issue or of the country of execution (see guidance on Cross-Border Enforcement).
