Bench Warrant in UK Law

Immunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of the public interest. So checked, the present case provides no justification for protecting absolutely what the solicitor said in the court.

The traditional explanation for not extending the tort to civil proceedings generally is that in a civil case there is no damage: the fair name of the defendant is protected by the trial and judgment of the court. However realistic this view may have been in its own time, it is no longer plausible. It is, however, a matter for consideration whether the restriction upon the availability of the tort in respect of civil proceedings may be justified for other reasons.

It has long been recognised that, quite apart from any statutory jurisdiction (for example under section 33 of the Family Law Act 1986 or section 50 of the Children Act 1989), the Family Division has an inherent jurisdiction to make orders directed to third parties who there is reason to believe may be able to provide information which may lead to the location of a missing child.

The purpose of a bench warrant is to bring the person detained to court and its purpose is effected as soon as he/she appears before the judge. At that moment he may or may not be in contempt of a court order. If he is not in contempt, then in my view there is no power to detain him further. The direction of the court has been complied with and there is nothing before the court to enable the further power of detention to be invoked.

Where a power of arrest or detention has been recognised other than as part of a punitive jurisdiction, it is ancillary to the exercise of another power of the court and is legitimate because it is necessary to the implementation of the order of the Court. The inclusion of a direction to arrest in the usual form of a 'seek and find' order is an illustration of this.

We do not understand why it was felt acceptable, during an ex parte application with its duty of full disclosure, to keep from the Bench that a private prosecution was expected. We would wish to emphasise that the obligation on an applicant for a warrant is the same as that imposed on any person making a "without notice" application to a court, namely one of "full and frank disclosure".

He returned to England without the children, who remained with the grandparents in Algiers. Singer J concluded that the father had deliberately sought to keep the children out of the jurisdiction for reasons unconnected with their welfare and doubted that the children would be returned voluntarily to England. On the father's appeal this court discharged the order and directed the father's release.