Sureties and the trouble with the decision in Assange

On the 8th October 2012 the Chief Magistrate, Senior District Judge Howard Riddle, ordered 9 sureties to pay a total of £93,500 into court as a result of the failure of Julian Assange to surrender to the court as per the conditions of his bail. The decision of the Chief Magistrate so to do is, in my view, highly questionable.

What is the purpose of a surety? In short, a surety (or in this case sureties) is placed under an obligation to ensure that an accused person in criminal or extradition proceedings attends at court. If they fail in that duty then they risk having to pay a sum of money (the amount of which they have agreed prior to the grant of bail) into court. If the court granting bail considers that sureties are required, it follows that, without them, the court is fearful that there is a substantial risk of the accused person failing to appear at court. It is not, for example, the job of a surety to ensure that an accused person does not commit any offences whilst on bail or indeed interfere with any of the prosecuting authority's witnesses. Section 8(2) of the Bail Act 1976 details the sort of considerations that a court should have regard to when considering whether a proposed surety is suitable. Unsurprisingly, these include the character of the person proposed, the financial resources of that person and, importantly, the relationship between the surety and the accused. After all, the surety is supposed to be able to ensure that the accused attends court when required. Accordingly, a court should ask itself whether or not the proposed person/persons are going to be able to exert any degree of control over the accused in order to get him or her to attend court. If there is no relationship, or no close relationship, between the accused and the proposed surety, what is the point of accepting them? If the accused does not care one way or the other whether this person loses their money, the exercise is a pointless one (save that it might heighten the chances of the Government making some money out of the process).

Now it of course has to be right that the starting point, if an accused fails to attend court when required, is that the sureties must forfeit their 'pledged amount'. Otherwise, what is the point of the system? The court does, however, have a discretion to order that the sureties pay less than the sum they pledged or indeed pay nothing at all. Section 120(3) of the Magistrates' Court Act 1980 is drafted in clear terms:

"The court which declares the recognisance to be forfeited may, instead of adjudging any person to pay the whole sum in which he is bound, adjudge him to pay part only of the sum or remit the sum."

Thus in the present case, the Judge had three options open to him- (i) order payment of the whole sum, (ii) order part payment or (iii) remit the entire sum. The Judge here went for option (ii) which is interesting for reasons which I shall return to later. It will be noted, however, that even the order for part payment still required a very considerable amount of money to be paid into court.

It is also beyond doubt that the lack of any culpability, on behalf of the sureties, for the accused's failure to appear, is not of itself a reason not to require forfeiture of the relevant amounts- see for example Choudhry v Birmingham Crown Court (2008) 172 JP 33. However, as Lord Justice Parker observed in R v Reading Crown Court ex parte Bello [1992] 3 All ER 353, at 363,

"The failure of the accused to surrender when required triggers the power to forfeit but the court, before deciding what should be done, must enquire into the question of fault. If it is satisfied that the surety was blameless throughout it would then be proper to remit the whole of the amount of the recognisance and in exceptional circumstances this would...be the only proper course."

Were the circumstances in the case of  Mr Assange exceptional? Surely, the answer must be yes. Unusually, although it appears to be happening more often than it used to, the District Judge gave written reasons for his ruling which can be viewed on the judicial website-

http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/sureties-julian-assange-08102012.pdf
 
Accordingly, it is possible to clearly follow the rational of the Judge, so far as it exists, for his decision. We can ignore the lengthy procedural history of the case (which for the purposes of this post is of little relevance) and jump straight to page 6 where the Judge summarises the arguments of Counsel and the Sureties. He says this:

 

"Mr Blaxland helpfully made the following points before withdrawing. The court has wide discretion. This is a unique and genuinely wholly exceptional case. Mr Assange has not absconded – he has sought asylum with a country with diplomatic relations with this country. The sureties had been surprised by the length of time these proceedings had taken to resolve.

Mr Vaughan Smith then addressed the court. He had been asked by the nine (I think he meant eight) other sureties to speak on their behalf as well as his own. I will attach the full address to this judgment. He started by saying that the sureties "appreciate that the court wants to know what the sureties may have privately or publicly done to encourage Mr Assange to submit to the British police since he entered the Ecuadorian Embassy on 19 June." He referred to the lengthy extradition challenge; the controversial circumstances; attacks by US officials on Mr Assange personally and through Wikileaks. If the sureties publicly urged Mr Assange to abandon the embassy, "it would undermine Mr Assange but we don’t believe it would do anything to extract him from the Ecuadorian Embassy. It would certainly be a very public betrayal and in our view, importantly, it would also betray the public." The sureties visited Mr Assange the day before. They were told that the Ecuadorian Minister of Foreign Affairs had investigated and found that Mr Assange’s fears of persecution by the United States and others were not unreasonable. He had been granted political asylum. He explained the continuing threat to him emanating from the United States. Mr Assange is convinced he faces serious risks in US custody. The securities cannot disregard that risk. They believe the Ecuadorian government is negotiating with the Swedish and British authorities, looking for a solution, and they hope that those discussions will be fruitful. Mr Vaughan Smith then described the huge amount of effort the sureties have provided over an unexpectedly long period. He ended "in this unique, and this quite exceptional case, to comply with what this court seems to expect from us; to all publicly urge Mr Assange to abandon the sanctuary that he has found in the Ecuadorian Embassy, would see us acting against a man whom we and others judge to have understandable fears about his ultimate treatment in the United States if he abandons his asylum. That would render us

mercenary and contemptible individuals of great weakness of character. It cannot be the right thing for us to do."

 

As Counsel indicates, this case was indeed "wholly exceptional". Mr Assange has not absconded in the traditional interpretation of the word. He has not fled the jurisdiction. He is not 'on the run'. He has sought, and more importantly been granted, political asylum. He remains in the United Kingdom under the protection of the Ecuadorian Embassy. Everybody knows that he is there.

 

Mr Vaughn Smith makes the point that, in the circumstances of this case, the sureties felt unable to comply with the expectations of the court- in other words to try and convince him to abandon his asylum, notwithstanding the fact that there remain justifiable fears, so the Ecuadorian Embassy has found, regarding Mr Assange's treatment in the United States.

 

The Judge publicly acknowledges the position the sureties have taken at page 7 of his ruling:

 

"I say immediately that I have real respect for the way that the sureties have conducted themselves in difficult circumstances. I am satisfied that what they have said and written accurately reflects their genuine views. In declining to publicly (or as far as I know privately) urge Mr Assange to surrender himself they have acted against self-interest. They have acted on their beliefs and principles throughout. In what is sometimes considered to be a selfish age, that is admirable."

In fact, he does more than acknowledge. He states that he has "real respect" for the way in which they have conducted themselves and indeed calls them "admirable" whilst also acknowledging that the circumstances in the present case are "difficult" ones.

But then the Judge appears to turn his back on the unique facts of this particular case. Instead he recites the history of the importance of the obligations placed on sureties and the consequences that will follow in the event they fail to fulfil them. This allows him to express his 'public policy' concerns over what would happen if sureties were not obliged to forfeit their pledged sums of money when an accused fails to attend court. He says, at page 8, this:

"There is clearly an important point of public policy involved. If a person accepts the responsibility of a surety, and the defendant fails to surrender as required, then the starting point must be that the surety is forfeited in full. It would be unfortunate if this valuable method of allowing a defendant to remain at liberty were undermined. Courts would have less confidence in the efficacy of sureties. It would be particularly unfortunate if it became established that a defendant who absconded without in any way forewarning his sureties thereby releases them from some or all of their responsibilities. In this case Mr Assange told the sureties that "he did not tell us of his decision because to do so would have placed us in legal difficulty" (see the statement to the court of Mr Vaughan Smith). In short, even if a surety does his best, he remains liable for the full amount, except at the discretion of the court."

With the greatest of respect to the Judge, this public policy argument, in the context of this case, is misconceived. By refusing to forfeit the sums pledged, the Judge was not about to change the law on surety forfeiture. Nor would he have undermined the system. Nor would his decision impact upon the way in which other courts had confidence in the efficacy of sureties. To suggest otherwise is, in my view, nonsense. This case was wholly exceptional.

When people fail to attend court, it is usually for one of the following reasons:

(i)    They have a reasonable excuse (e.g they have been admitted to hospital);
(ii)   They have forgotten that they have a court hearing;
(iii)  They simply can't be bothered to go to court; or
(iv)  They are in custody having been arrested on suspicion of committing another crime.

People do not, generally speaking, fail to attend court because they have been granted political asylum within an Embassy based on-shore in the United Kingdom. That is most unusual (if not unique). Therefore, a decision not to forfeit the sureties in this case would have had no greater consequences than to acknowledge the exceptional circumstances surrounding this particular case.

As noted above, the Judge did not, however, adopt this course. Nor did he require them to pay the full amount. Instead, he ordered part payment. This path was an interesting one to take. In some instances, it was as a result of a means inquiry. But not all. The Judge observed, at page 11 of his ruling, that

"Having seen and heard from the sureties, I cannot avoid taking some account of their integrity.

I approach this decision on the basis that I should forfeit no more than is necessary, in public policy, to maintain the integrity and confidence of taking sureties so that a person may be released on bail"

This conclusion is, to my mind, extraordinary. First, he accepts that the sureties acted with integrity and indeed commends them, as noted, earlier on in his ruling. Yet he nevertheless orders them to pay substantial sums of money into court for their failures to perform their "basic duty". Furthermore, he goes on to state that his decision so to do is based upon grounds of public policy. As observed earlier, this ground is, it is respectfully submitted, misconceived. Public policy was not going to be affected as a result of refusing to seek forfeiture in the highly unusual circumstances of this case. It is fair to say that the Judge exercised his discretion in favour of the sureties but, in my opinion, he did not do so far enough.


Related Thoughts

Anxious that my post is already long enough, there is one, hypothetical situation, that is worth considering. Imagine that Mr Assange decides to leave the Embassy and voluntarily attends (or, as is more likely given that a warrant has been issued, is arrested and escorted to) court. It will be put to him that he failed to attend court when required to do so. Mr Assange will no doubt respond by saying that, pursuant to s.6 of the Bail Act 1976, he has a reasonable excuse for failing to do so. His excuse would be-

"I was granted political asylum at the Ecuadorian Embassy on the grounds that the government of Ecuador believed that I may become a victim of political persecution, as a result of my dedicated defense of freedom of expression and freedom of press as well as my repudiation of the abuses of power in certain countries, and that these facts suggested that I could at any moment find myself in a situation likely to endanger life, safety or personal integrity."

An impressive response to a charge of absconding one may think. If a court found that Mr Assange did have a reasonable excuse for failing to attend, what would happen to the forfeited sureties? The Judge touched upon the issue at page 5 of his ruling when he said-

"However I was not prepared to adjourn until such time, if any, when Mr Assange appears before the court. It is not the usual practice. The possibility that Mr Assange has a defence of reasonable cause to the allegation of failure to surrender cannot be excluded. The same applies when any defendant apparently absconds. For example it may later be discovered that the defendant had been critically injured, or perhaps kidnapped, or in some other way prevented from attending and prevented from communicating. If that happens, then any security or securities estreated would no doubt be returned."

The provision for returning the estreated amounts was not identified by the Judge. Perhaps it just has to be put down to a matter of common sense or 'discretion'. True enough, if a court found that an accused had a reasonable excuse but refused to return any sums forfeited from a surety, I suspect the matter would end up before the High Court. The references by the Judge to defendants who may be discovered to be ill, have been kidnapped, and so on, is, one may think, unhelpful. In those sorts of cases, one does not discover the reason for the defendant's failure to attend court until such a time as he has been arrested. In this case, the Judge was well aware of the reasons why Mr Assange was not present- he was in the Embassy.

It will be interesting to see what happens if and when Mr Assange does appear back before the Magistrates' Court. One thing is for sure, this tale has not yet concluded.