On 8 October, Westminster Magistrates' Court Chief Magistrate, Howard Riddle, gave his decision that under section 120(3) Magistrates' Court Act 1980, sureties in the highly publicised case of Julian Assange should forfeit a significant amount of money but not their total recognizances - pledged so that Mr Assange could be released on bail - because "they failed in their basic duty, to ensure his surrender. They must have understood the risk and the concerns of the courts."

Bail is granted in criminal or extradition proceedings, in the Magistrates' or Crown Court, under the Bail Act 1976. Section 4(1) provides a "General right to bail of accused persons" with exceptions detailed in Schedule 1 to the Act.  Bail can be refused to defendants, accused or convicted of offences punishable with imprisonment, under paragraph 2(a) "if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would fail to surrender to custody."  It is for the prosecution to satisfy the Court of the existence of such "substantial grounds" in each particular case.

If the prosecution objects to bail, the Court can grant bail with conditions. One such condition can be a surety or sureties, in whatever sum of money (recognizance) the Court deems appropriate. A surety effectively guarantees the defendant will not flee and agrees to forfeit the amount of the recognizance if they do.

Should the defendant fail to surrender to custody, sureties will be given the opportunity to submit why they should not be required to forfeit all or some of the money.  The only route of challenge to the Court's decision is by way of judicial review.

The High Court has made very clear that the starting point is that the recognizance should be forfeited: the onus is firmly on the surety to persuade the Court otherwise:  “[T]he surety has seriously entered into a serious obligation and ought to pay the amount which he or she has promised unless there are circumstances in the case, relating either to means or to culpability, which make it fair and just to pay a smaller sum” per Lord Widgery CJ in  R. v. Horseferry Road Stipendiary Magistrate, ex p. Pearson [1976] 1 W.L.R. 511, DC.

Additionally in  R. v. Maidstone Crown Court, ex p. Lever and Connell [1996] 1 Cr.App.R 524  Butler-Sloss LJ said “It is for the surety to establish to the satisfaction of the trial court that there are grounds upon which the court may remit from forfeiture part or, wholly exceptionally, the whole recognizance. ...........  The court may, in the exercise of a wide discretion, decide it would be fair and just to estreat some or all of the recognizance”.

Senior District Judge Riddle exercised this "wide discretion" when he did not require the Assange sureties to forfeit the total amounts of their recognizances.

The Assange case highlights the "serious obligation" which individuals accept when they agree to be sureties. Understandably, potential sureties are under considerable pressure to agree extremely quickly, so that the defendant can be released on bail at the earliest opportunity.  Perhaps the wise, although very difficult, course of action would be to pause and take independent legal advice before entering into such a serious and possibly life changing commitment.