Benching a bench warrant - An evolving perspective

WHAT IS A BENCH WARRANT?

Bench warrants are a common enough feature of the criminal courts. They are orders of the court, issued by a judge, which authorize an individual’s arrest as sanction for some misdeed. Many a Defense Counsel must contend with a client for whom such a warrant has been issued, most often for the failure of that Defendant to attend at court as expected. Bench warrants are useful and appropriate tools as they can compel someone who is delinquent before the court to correct their behavior in a manner that satisfies the court.

Bench warrants can however be quite problematic if you are the delinquent in question.

What then, are you to do, if you discover that there is a bench warrant out for your arrest?

DISCHARGE OF A BENCH WARRANT

As mentioned above, bench warrants are issued as a form of sanction to compel an individual to correct some form of delinquent behavior. One simple and effective means of having such a warrant discharged is therefore to correct the delinquent behavior. For instance, the Defendant who fails to attend at court is best served by appearing before the judge posthaste with a reasonable explanation for his/her absence. If satisfied, the Court will discharge the warrant.

There may be incidences however where attendance at court is not so simple; where a Defendant is not simply evading court, but is for whatever reason, unable to attend. Such a  person would then have an active warrant out for his arrest, whilst unable to come to court to explain himself. The solution there is to engage an Attorney-at-law, and apply, through that attorney, to have the warrant discharged.

NO 'WARRANT-EE', NO PROBLEM?

Here is where the perspective on contending with bench warrants seems to be evolving. The question becomes:

Can the Court hear an application to discharge a bench warrant in the absence of an accused?

This question, which is one of procedural propriety in law, was recently addressed in the Parish Court for Kingston and St. Andrew in the R v N.R. INFORMATION NO. 12631/02, and interestingly enough was answered in the affirmative.

The Defendant had been charged with fraudulent conversion, and had been instructed by the Judge to attend at court and make certain periodic payments to the Complainant, to avoid conviction. The Defendant initially adhered to the Court’s instructions, but later mistakenly believing the matter settled, migrated. As it turned out, there remained a balance to be paid. Her absence was noted by the court, and a bench warrant was issued for her arrest, unbeknownst to her as she lived abroad, finding employment and enrolling her child in school.

A decade later, the Defendant sought to renew her work permit, which required her to provide a ‘clean’ police report. In applying for the report, she was made aware of the active warrant and unsettled charges on record locally. This discovery lead to the preclusion of the Defendant obtaining the work permit, i.e. her only means of remaining in that country. With time counting down to the deportation of herself as well of her child, she engaged the services of this firm, requesting that we apply on her behalf to have the warrant discharged and the charges dropped.

Though initially hesitant to hear an application to discharge a warrant in the absence of the subject of that warrant, the Parish Court accepted UK[1] and Indian[2] authorities, namely R v Jones and Arunkumar N. Chaturvedi. v The State of Maharashtra and Another respectively. The cases suggested that the Court had the discretion to hear such an application, upon consideration of the surrounding facts of each individual case.   A portion of the latter case, which records a judgment from the High Court of Bombay reads:

 “It is noted by this Court that many Writ Petitions are filed in this Court only because the learned Magistrates straight way take a view that warrants cannot be cancelled unless the accused appears before the Court. The view taken by a few of the Magistrates particularly in the city of Bombay, in my opinion, is not correct. It is high time that this Court lets the Magistrate note that the appearance of the applicant/accused is not necessary when application for cancellation of warrant is made.”

The Parish Court discharged the warrant.

It is worth noting that in this case the Defendant had acted in good faith at all relevant times, and was never deliberately delinquent in making any of her payments. Nor did she deliberately avoid court attendance. This good faith, coupled with the significant difficulties posed in returning simply to be present at the hearing of the application, lent themselves to the court’s decision to conduct itself in her absence. Note that it is the Defendants presence at the hearing of an application to discharge the warrant that is being waived, not his/her submission to the warrant if the application fails.

This decision demonstrates the jurisdiction of the Parish Court to enable Defendants to address warrants without actually surrendering to them by applying to discharge them through their attorneys. It is the surrounding facts of each case however, that will suggest how the Court’s discretion should be applied.

DEVELOPING THE LAW

This warrant, which had been sitting on the Court Records for a decade, presented significant problems for the Defendant and her child, and the pre-existing notions about how warrants should be addressed did not lend themselves to any kind of easy solution or simplification of the issues at hand. The Court implied that it had never before entertained an application to discharge a warrant in the absence of the subject of that warrant, yet it allowed itself to be persuaded to do so in this case. This decision is beneficial to the development of our law and rules of practice. It suggests room for the development of the law on an area that is an exceptionally common feature of criminal practice. It suggests an openness to comparative analysis and the application of foreign judgments on domestic soil, and lastly it encourages a discussion on novel ways to contend with this aspect of practice, and to improve on a slow and over-burdened court system.

[1] R v Jones [2002] UKHL

[2] Arunkumar N. Chaturvedi. V The State of Maharashtra and Another WRIT PETITION NO. 4429 OF 2013