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 Warrants of Arrest


You are probably reading this because you are freaking out at the thought of a warrant of arrest being issued in your case. This page explains what a bench warrant is.

There are two ways that a person can be asked to attend court for a criminal offence: the police can serve a charge and summons, or the police can arrest a person and then serve a charge. In most motor traffic cases the police serve the accused with a summons to attend court.

In most traffic cases the police will serve a charge and summons, which in the case of jailable offences is usually served personally on the accused. For non-jailable offences it is often served by post. However, if the police can not locate a person to serve them with a charge and summons then the police can apply to the court for a warrant of arrest.  In this situation, the warrant is issued because the police were unable to serve you with a charge and summons. An arrest warrant of this type is issued by the court registrar after receiving evidence from the police about their attempts to locate and serve a summons on the accused.

Alternatively, a warrant of arrest can be issued by the Magistrate after a summons has been served on an accused who does not attend court in answer to the summons. This type of warrant is called a bench warrant and can be issued by the Magistrate in court in any situation where an accused has been served with a summons and there is no appearance at court by or on behalf of the accused.  It is very common for Magistrates to issue bench warrants.

Most people who are served with a court summons for a traffic offence are under no obligation to attend court. On the face of the summons you will see two boxes "You should go to court" and "You must go to court". In 99% of traffic cases the "Should go to court" box is ticked. And it is true - you should go to court. But you don't have to. You commit no offence by ignoring that type of summons. In some cases the accused is charged with an indictable offence, which is more serious, and the "You must go to court" box will be ticked.

When a person who is on summons doesn't appear at court either in person or by legal representative the Magistrate has options. Sometimes the court will hear the case in the absence of the accused, or it can adjourn the case to a later date, or if the court feels that the accused should be required to attend court, then the magistrate can issue a bench warrant. The only way that a magistrate can oblige a person to attend court in person is to issue a warrant of arrest.
While a summons is an invitation to come to court, a bench warrant turns that into an obligation to attend the court.  Once a warrant has been executed (i.e. you have been arrested and bailed) you must attend the court at each date your case is listed. That is the sole difference between having a warrant issued and not having a warrant issued. If turning up at court was something you already planned to do, then nothing has changed. After you are arrested, you will be bailed on your own undertaking to attend court on a specified date. For a bench warrant, the police will not ask you or anyone else to provide a surety.

If you did not freak out when you knew the police might knock on your door to serve you with a charge and summons then there is no need to freak out at the thought that the police might knock on your door to execute a bench warrant. It is almost exactly the same thing - a notice to attend court -  except this time you have to go to the police station with them to sign off on it.

Every year many of my clients have bench warrants issued after they have been charged with traffic offences but didn't attend the court. Sometimes they have intentionally failed to appear at court. Often there are good reasons for doing that. Others spend a lot of time needlessly worrying about an arrest warrant when it unexpectedly occurs. The time to worry was when the criminal charges were being filed and served - not at the thought of a bench warrant which is a trivial formality compared with the laying of charges.  A warrant of arrest has absolutely no adverse impact whatsoever on your court case, or your defence, or your sentence, or your criminal  record, or your life, on your job or your travel - except that it will oblige you to attend a Magistrates Court on a specified date. If you have ever ignored a parking fine or speeding fine long enough for it to become an enforcement warrant, you have already been in a significantly worse situation than anyone who is facing a bench warrant.

The bench warrant authorises the police to arrest you and bring you before the court. In practice the police are likely telephone you and ask you to go to the police station to sign the bail notice. Their other option is to knock on your door and see if you are at home. If you are, they will take you to the police station even if that is not convenient to you.

You are not obliged to present yourself at the police station to have the warrant executed. Your option is to go to the police station at a time convenient to you, or ignore the police and wait for them to find you. If they cannot find you at your last known address, the warrant will be lodged in the police computer system. Then it could be ages before the police locate you, usually when they next intercept you driving a car or when you next commit an offence.

It is becoming increasingly common for the police to include a letter with the charge and summons advising the accused to attend the court or else a bench warrant will be issued. Some police also send intimidating letters to the accused after a bench warrant has been issued.   The purpose of these letters is to scare the accused into attending court so a bench warrant is not required, or to attend the police station quickly so the police don't have to drive over to their house and knock on their door.

Usually the police who contact you to execute the bench warrant will complain to you about your failure to attend court. They will imply that you have stuffed up.  They are whinging because they now have extra work to do that they feel is "unnecessary". They will say "you should have gone to court", because if you had been at court then they would not be knocking on your door trying to find you. They will intimidate you to try to make you come to the police station because they don't want to have to drive over to your place several times trying to catch you at home. Regardless how much they complain, be assured you have done nothing wrong. You need not be in the slightest bit concerned that the police have to spend some time dealing with the court process that they instigated. In most cases it is the police prosecutor at court who has requested the warrant to be issued. Prosecutors know full well that by choosing the warrant option they are giving the informant this extra work.

When the warrant is executed the police need to be able to prove that they have arrested the right person. So they will require ID. Sometimes they might also request fingerprints or photographs. This is so they can prove in court that they arrested the correct person in the event that you still do not turn up at court (failing to turn up to answer bail would then be an offence).

When you sign the bail notice it will state your new court date. You can try to negotiate the timing of the new court date with them so it is on a date that suits you. It needs to be a date that you are able to attend the court.
You should be polite and cooperative, say as little as possible and accompany them to the police station. Your stay at the police station will take about 15 minutes. If you are pleasant about it, the police might offer to drive you home afterwards. If you refuse to sign a bail notice they won't give you bail - you will be taken to court the next time it is open. So you should sign a bail notice.

If you want the warrant executed as soon as possible, you can call the informant (or attend at any police station) and ask for it to be executed that same day. In many cases I have attend the police station with the client on the morning that we have arranged to attend the court and requested the accused be bailed to attend court on the same date.

The downside to getting a bench warrant is usually extremely minimal. The potential up-side is that your case will now be delayed for many months - sometimes years. It is important to recognise that a bench warrant is not issued because you have done anything wrong. It is issued because there is no alternative way for the magistrate to require you to attend the court.

So if you are freaking out about the warrant, then you are far too late. The serious part of your case was the filing and service of the charges. Deciding which method is used to bring you before the court is a relatively trivial part of the court process. Provided you are present in court when the case is next listed no magistrate will care one iota whether a warrant has been issued in your case or whether you appear on summons or on bail.

Related Pages: Court Process




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