One of the interesting issues thrown up by the Julian Assange case concerns the fate of those of his  supporters who staked their money on him obeying a UK court ruling that he must face trial in Stockholm. These supporters can be divided into two groups: those who deposited money with the court as a bail security – four individuals who collectively paid in £200k; and nine other individuals who agreed to act as sureties on the understanding that they would forfeit a defined amount of money if Assange were to breach his bail conditions – their pledges totalled £140k.

Both types of stake are called “recognisances” -  a solemn promise made to a court to forfeit property if an anticipated event does not happen. In olden days it was not just defendants and their supporters in the context of being granted bail who were required to make them. Recognisances were used by judges in a wide variety of circumstances as a hedge against other types of risk. Judges who were, for example, sceptical as to whether a prosecution would stand up frequently required would-be prosecutors and their potential witnesses to  guarantee that the trial would take place and they would testify. Thankfully for the CPS, which regularly decides to discontinue cases post-charge, modern court practice does not expose it to such a threat.  If enforcement of the promise became an issue because what the court feared might happen actually did, the issue was whether the recognisance should be “estreated”. In modern criminal practice estreatment has, apart from this corner of criminal law, been supplanted by the concept of forfeiture.

To apply this to the Assange saga, once it had become undeniable that he had breached his bail conditions, the unenviable duty of chief magistrate Howard Riddle was to decide whether the recognisances, the deposits and pledges, should be estreated and, if so, whether in full or in part.  In June he ordered that all the securities should be taken so the hapless quartet lost everything. Earlier this week on 8 October 2012, he adopted a more sympathetic view towards the nonet holding that not all their recognisances should be estreated. Only £93k of their £140k.

Lessons for the criminal lawyer

So what lessons can a criminal lawyer learn from this outcome?  If advising someone contemplating acting as a guarantor for a defendant’s bail, subject only to the point below, encourage them to try to be accepted as a surety as opposed to someone who pays a security into a court bank account. Judges may be more reluctant to punish people who have yet to forfeit their money than those who in effect already have.

The only reason why payment of a security may be preferable to a surety is that, as in the Assange case, the identities and sources of wealth of those willing to pay in are usually never mentioned in court. A potential surety is bound to be required to testify in open court and so potentially sacrifice their privacy.

It is a fallacy to believe that the property at risk of estreatment is bound to be lost following the defendant’s disappearance.  Despite a presumption that this will be ordered, a judge has a wide discretion. And he is bound to allow the promisor a hearing in which to try to persuade the court why a lenient order should be made. What seems to have impressed Howard Riddle at the October hearing was that the promisors all bothered to appear before him, that they each sought to show how blameless they were for Julian Assange’s breach and how estreatment would deal a harsh blow to their wealth. Clearly a net overall saving to them of £47k made it a worthwhile day out.