Power of arrest and enforcement of warrants
(Amended October 2010)
Note: [s134, 236, 364, 366]
Where possible the powers of arrest provided by sections 134, 236, 364 and 366 should be employed in preference to the provisions of sections 288, 290, 291, 312, 333 or 363, which deal with the consequences of contempt of court and which are intended to be used on a contingency basis. This is because applications for arrest warrants under sections 134, 236, 364 and 366 may be heard by a district judge or registrar after the private or public examination, whilst application under the general powers relating to contempt of court require a lengthier procedure involving an application to court, personal service on the alleged contemnor, and a hearing before a judge (see Part 3).
The provisions relating to the enforcement of orders of the court and warrants for the arrest of a person or for the seizure of property, or search of premises are contained in the rules Part 7 Chapter 4.
Note: [IR86 Part 7 Ch4 as amended by the Insolvency (Amendment) Rules 2010]
(Amended November 2011)
Where a company officer (or person falling within section 133(1)(c)), partner or bankrupt fails to attend for his public examination this is a contempt of court, but also gives rise to a separate power to issue an arrest warrant at that hearing providing the proper procedures detailed in Chapter 14 as regards service and certification of service etc. have been strictly complied with. A registrar or district judge may issue such a warrant immediately on the examinee’s failure to attend, without referring the matter to a judge, and the official receiver should draw the court’s attention to its power to issue a warrant. See paragraph 13.70.
Notes: [s134(2)(a) or 364(2)(e) and r7.22 as amended by the Insolvency (Amendment) Rules 2010] [Form PEWA( pre 6 April 2010 petition cases)] [County Court Civil Forms N288 (Order to produce prisoner) and N40A (Warrant of Arrest) – for post 6 April 2010 petition cases only]. No formal application or report by the official receiver may be necessary. If the court requires any additional information this may be provided verbally by the official receiver on his undertaking to file in court a report setting out such information as soon as possible. Where it is anticipated that the examinee is unlikely to attend and that the court may issue a warrant at the hearing, a draft warrant should be taken to court (in the High Court this will be dealt with by the registrar, in order that it may be passed forthwith to the relevant officer of the court for execution).
(Amended October 2010)
The court can also order the seizure of any property or records in the possession of the examinee and the official receiver should in appropriate cases consider requesting the court to make such an order where he urgently requires the property or records. In such cases the court should be asked to order that the property or records concerned be delivered to the official receiver or otherwise dealt with in accordance with the official receiver’s wishes.
Notes: [s134(2)(b) or 364(1)(b)] [Form PEWA(pre 6 April 2010 petition cases)]
If the court does not exercise its discretion to issue a warrant immediately, a formal written application with a supporting report has to be made. The application may be made without notice and heard by a registrar or district judge. Unless the court otherwise directs, the hearing of an application must be in open court. The official receiver may provide a report setting out the circumstances in which the application is made rather than a witness statement.
Notes: [r7.5A] [r7.6A] [r7.9 as amended by the Insolvency (Amendment) Rules 2010]
(Amended October 2010)
Warrants issued under section 134(2) or section 364 (including those issued for non-attendance at a public examination) are issued under general powers of arrest and They will not make reference to a specific maximum period of imprisonment as required in cases of contempt of court (see Part 3).
Pre 6 April 2010 petition cases:
Prior to 6 April 2010 the Insolvency Rules prescribed the forms to be used for arrest warrants. For non-attendance at a public examination form PEWA is to be used and is available on document production. The forms also allow for records etc. to be seized under the terms of the warrant. If this is not required, that option should be deleted from the form. Release of the arrested person will require an order of the court which issued the warrant.
Post 6 April 2010 petition cases:
For post 6 April 2010 petition cases ,warrants issued under amended rule 7.22 allow for delivery of the arrested person directly to the court. Only in the event that the court is not ready and able to deal with the arrested person must he/she be given into the custody of the governor of the prison named in the warrant (or where that prison is not able to accommodate the arrested person, the governor of such other prison with appropriate facilities. In addition, the prescribed warrant forms have been removed from the Rules and form PEWA is no longer available for post 6 April 2010 petition cases. Until such time that new warrant forms are devised by the Ministry of Justice, official receivers should obtain the necessary forms from the court and adapt these as appropriate. Alternatively, the court may be happy to accept a warrant drafted by the official receiver using the wording of the old form PEWA
Amendments to rule 7.19 provide that an arrest warrant issued by the High Court may be discharged in any county court having insolvency jurisdiction where the arrested person has been brought before the county court and given a satisfactory undertaking to the court to comply with the obligations that apply to that person under the Act or the Rules.
Notes: [7.19 as amended by the Insolvency (Amendment) Rules 2010] [r7.22 as amended by the Insolvency (Amendment) Rules 2010] [Form PEWA – for pre 6 April 2010 petition cases only] [Form WARPD – for pre 6 April 2010 petition cases only] [County Court Civil Forms N288 (Order to produce prisoner) and N40A (Warrant of Arrest) – for post 6 April 2010 petition cases only].
See Part 8 below for the procedure to be followed if it is believed a person is about to abscond in order to avoid attending his public examination.
(Amended October 2010)
Warrants issued under section 236 or section 366 (inquiry into the dealings etc. of the company or bankrupt) in pre 6 April 2010 petition cases, are similarly dealt with, and are both on Form PEWA with no reference to a maximum period of imprisonment.
See paragraph 13.70 above, for further information regarding the forms to be used for post 6 April 2010 petition cases.
Notes: [r7.23 as amended by the Insolvency (Amendment) Rules 2010] [Form PEWA – for pre 6 April 2010 petition cases only]
(Amended October 2010)
An application to court for an arrest warrant for contempt of court, which will normally be for non-compliance with an earlier order of the court, should be supported by a witness statement setting out fully the facts of the matter (see Parts 3 & 4). In addition, formal notice of the application to commit, in the format illustrated in Annex 4, must be given simultaneously to the person concerned. The notice should be served personally on the individual concerned, although where this is not possible (e.g. due to deliberate avoidance) an order for service by an alternative method can be sought under CPR98 rule 6.15. Where the warrant is issued for contempt of court, the provisions of the Contempt of Court Act 1981 apply, and the maximum period of imprisonment, which may be up to two years, must be specified on the warrant. Applications for warrants should where possible be made under the general powers of arrest provisions rather than those for contempt of court (see paragraph 13.67). Any application to commit for contempt of court may only be dealt with by a judge, and not by a registrar/district judge, and must be heard in open court (see Part 3).
Notes: [r7.2 and 7.3 as amended by the Insolvency (Amendment) Rules 2010), Form GENAPP, CPR r6.15] [Forms 7.15 and 7.17 – pre 6 April 2010 petition cases only] [r12.11 or r12A.17 for post 6 April 2010 petition cases]
(Amended October 2010)
When a warrant has been issued it should in the first instance be left with the relevant officer of the court for execution, but in case of difficulty or urgency, the warrant may be placed by the court in the hands of the Police within the jurisdiction of the court for execution. County court warrants will not be executed by the Metropolitan Police. The latter will, however, make all necessary inquiries leading up to the arrest of the person concerned. The actual arrest must made by a local constable or court officer. Where the person subject to the warrant is known to be within the jurisdiction of some other county court, the warrant may be transferred to that court for execution.
Notes: [r7.21 as amended by the Insolvency (Amendment) Rules 2010] [r7.24 as amended by the Insolvency (Amendment) Rules 2010] [Intranet form WOHCJ – for pre 6 April 2010 petition cases only (for post 6 April 2010 petition cases the appropriate form should be obtained from the court where required)]
Upon the issue of a warrant by the court, the High Court tipstaff or in a county court the district judge or a bailiff, should contact the official receiver to obtain particulars of the person or property subject to the warrant, although local practice may vary. If the official receiver is not contacted promptly he should take steps to ensure that the tipstaff or bailiff has the necessary information to enable the warrant to be executed. The information given to the arresting officer concerning the subject of a warrant should, where possible, include the full name and the last known address (or addresses) of the person, his age, height and any distinctive physical features or defects. If the official receiver has the national insurance number of the individual, this should also be provided. The official receiver must ensure that information provided by him in this respect is accurate, so as to avoid any possibility of wrongful arrest or seizure of property which is not subject to the court order. Accordingly, he should not rely entirely on information provided by third parties. Where there are no assets in the estate the official receiver may incur a debit balance to meet the reasonable and necessary expenses of executing the warrant.
Where a person against whom a warrant has been issued surrenders to the official receiver without the warrant being executed, the official receiver must ensure that application is made immediately for the warrant to be suspended or discharged. Dependent on local court practice, this may include a staff member accompanying the person to court to make the application, or could require the official receiver to file a report at the court or by the delivery of a letter to court. Without exception, the official receiver should not leave the matter to be dealt with by the person subject to the warrant, and should take whatever steps necessary to ensure that the warrant is suspended or discharged. The person may be interviewed before he leaves for the court, but the official receiver must ensure that the person leaves with sufficient time to attend the court and have his application to suspend/discharge the warrant dealt with on that same day.
(Amended October 2010)
Although generally the question of warrants issued for non-attendance at a public examination is not considered incompatible with the provisions of the Human Rights Act 1998, some courts have expressed concern regarding ‘open ended’ warrants where the subject could be detained in prison for an indefinite period. To avoid these difficulties in pre 6 April 2010 petition cases, the warrants on form PEWA prepared by the official receiver should ask that the subject be delivered immediately to the court rather than to a prison once they have been arrested. The amendments made to rule 7.22 by the IAR address the concerns of the courts in relation to human rights and in post 6 April 2010 petition cases the rule provides for delivery of the arrested person directly to the court, see paragraph 13.70. Once the director/bankrupt is delivered to the court, the public examination will be re-instated and the director/bankrupt will either give undertakings to the court to co-operate and provide information or will surrender to the public examination and give the information under oath. The individual will then be released and the warrant discharged. If the individual refuses to give the required undertaking or answer questions on oath, the District Judge has the power to make an immediate referral to a Judge for committal for contempt.
This does not prevent the official receiver from ever applying for a warrant requiring committal to prison if he deems it appropriate. In such cases, the official receiver must immediately ensure the court is notified of the arrest and apply for orders appointing a time and place to proceed with the examination, (with leave to dispense with notice and for the production from prison of the person concerned at the very earliest opportunity). When a person has been arrested and delivered to prison, the terms of the arrest warrant have been fulfilled. If the court cannot arrange for the restored public examination to be heard within 48 hours, the person should be produced to the court in private for consideration of his being released against suitable undertakings. The court may require that the arrested person be interviewed before being released from prison. In such circumstances, because of the time required to arrange and conduct an interview in prison (see paragraph 13.77) it may be necessary for the arrested person to remain in custody for more than 48 hours.
Notes: [r7.22 as amended by the Insolvency (Amendment) Rules 2010] [Form PEWA]
As with public examinations where the arrest is under a warrant issued under section 236 or 366 (private examination) the official receiver should ask for the individual to be brought before the court immediately for examination rather than be committed to prison. In practice this may not always be possible, in which case the official receiver should apply to the court for an early hearing of the private examination (see also Chapter 23 - Private examinations) and for the respondent to be brought from prison at the relevant time or earlier if the court is willing to consider releasing the respondent against suitable undertakings. It is essential that such matters are dealt with urgently.
Notes: [s236, 366, r7.23 as amended by the Insolvency (Amendment) Rules 2010] [form PEWA] [form WARPD]
If it is necessary to interview an examinee who is in prison, the official receiver should contact the prison to make arrangements, which should then be confirmed by letter addressed to the prison governor. The letter should be delivered by hand if the interview is to take place urgently. If a member of the official receiver’s staff attends rather than the official receiver himself (as will usually be the case) a written authority from the official receiver to his member of staff to carry out the interview should be produced to prison staff (see also Chapter 11- Interviews and statements).
If a person who has been arrested applies for release from custody it will be necessary to consider whether the application should be opposed or whether the court should at least be asked to require a bond to be given to ensure his future attendance.
Notes: [Form WARPD or Form 7.18 (applies to pre 6 April 2010 petition cases only)]
Where appropriate, the official receiver should consider applying to restore any public or private examination to an early fixed date. Once the examinee appears for public or private examination the warrant must be discharged, (whether or not the examination is fully effective or closed) because the purpose of the warrant i.e. the arrest of the respondent has been fulfilled. If, the examination has to be adjourned because of the individual’s failure to give undertakings to the satisfaction of the court, the official receiver should, in court, make clear to the examinee the implications of his conduct. A new arrest warrant may be issued and that the court record will show that the possible consequence of continued default had been fully drawn to the individual’s attention. The official receiver should then seek the directions of the court on the matter.
In the case of a person who is in custody other than as a result of a warrant issued in the insolvency proceedings, an application for the production of that person at any public or private examination must be made by letter addressed to Prison Service, Population Management Section, 6th Floor, Cleland House, Page Street, London SW1P 4LN (telephone 020 7217 6657/6582) setting out the facts and grounds for the application and the time, date and place at which the person is to be produced. Any order of the court for public or private examination to be served on the person concerned must be sent to the prison governor with a covering letter requesting that he arrange service. As much notice of the hearing as possible should be given. The expense of bringing the examinee to the court must be charged against the estate. Care should be exercised in bringing reluctant prisoners before the court since the costs may be prohibitive and the outcome unsatisfactory. Non co-operation by a bankrupt prisoner can be dealt with by an application to suspend his discharge. A prisoner with a category "A" security rating will not be produced as such prisoners are considered a maximum security risk. Instead the official receiver should request the prison governor to mark the inmate’s file that notification should be given to the official receiver if it is intended to release that prisoner or if his security rating is downgraded to "B".
(Amended October 2010)
The official receiver may apply to the court for a warrant to seize any property comprised in the bankrupt’s estate, or any books, papers or records relating to the bankrupt’s estate or affairs which are, in the possession or under the control of the bankrupt or any other person who is required to deliver the property, books, papers or records to the official receiver.
Any person executing a warrant under this section may break open any premises where the bankrupt, or material to be seized under the warrant, is or is believed to be and may also break open any receptacle of the bankrupt which contains or is believed to contain anything that may be seized
Note: [r7.21(1), s365(1))]
A warrant issued by the court shall be addressed to any officers of the High Court or county court as the warrant specifies or to any constable. Warrants issued under section 365(1) are addressed to the tipstaff and his assistants in the High Court and in the county court to the district judge and the bailiffs.
Notes: [r7.21(2) as amended by the Insolvency (Amendment) Rules 2010] [Form WARS - for pre 6 April 2010 petition cases only (for post 6 April 2010 petition cases the appropriate form should be obtained from the court where required)]
The court may also issue a warrant for the search of premises not belonging to the bankrupt if it is satisfied that any property comprised in the bankrupt’s estate or any books papers or records relating to the bankrupt’s estate are concealed in those premises.
The search may be carried out by a police officer or a prescribed officer of the court. In the High Court the prescribed officers are the tipstaff and his assistants of the court. In the county court the prescribed officers are the district judge and the bailiffs.
Note: [s365(3), r7.21(2) as amended by the Insolvency (Amendment) Rules 2010]
A warrant issued under section 365(3) shall authorise any person executing it to seize any property of the bankrupt found as a result of the execution of the warrant.
Note: [r7.25(1)], [r7.25(2)]
Any property seized under a warrant issued under section 365(2) or (3) shall be –
a. lodged with, or otherwise dealt with as instructed by, whoever is specified in the warrant as authorised to receive it, or
b. kept by the officer seizing it pending the receipt of written orders from the court as to its disposal, as may be directed by the warrant.
Note: [Form WARS]
Where it is necessary for the official receiver to make formal written application for a warrant to search for and/or recover property belonging to a bankrupt, the application, is made without notice and must be supported by a report from the official receiver or deputy/assistant official receiver dealing with the case. To enable the court to fully consider the matter, the application should, if possible, clearly specify all property, books, papers, records and premises which are subject to the application and the supporting witness statement should set out fully the circumstances in which the application is made. Any warrant issued by the court should direct the person executing it on how to deal with any property seized (see above) and the official receiver should request the court to order that the property be delivered to him or otherwise dealt with in accordance with his instructions.
Reference should also be made to Chapter 19 Part 4 - Court Practice and Procedures.
An arrest warrant does not expire and a person may be arrested on a warrant which was issued over a year previously. A warrant which has been executed or suspended cannot be reactivated. Should such need arise formal application must be made for the issue of another warrant although restoration of a public or private examination is the more likely procedure.