What does it mean to be a ‘surety’ in a bail application?
Since the introduction of tougher bail laws in 2015, bail applications have become increasingly important.
We take a look at the tests courts must apply in making bail decisions, and case studies that illustrate how bail applications work.
Firstly, what is bail?
Bail can be described as an agreement between the court and accused to attend court to answer for a criminal charge. When bail is granted, it means that the person is released on certain conditions.
So, what is a ‘surety’?
A surety is a person that guarantees the defendant will attend his or her court hearing after being granted bail. The surety is required to deposit a security which is forfeited if the accused fails to appear in court.
Who can be a ‘surety’?
A person can be a surety if approved of suitability by a judge, magistrate or justice of the peace. He or she must be of suitable character and have proof of identification. Suitability requires that the person be over 18 years of age, have savings and possessions that are free of debt worth more than the security and be wholly responsible for funding the security.
It is an offence for someone else to help you pay for that security.
If you guarantee security, you will be required to show that you have the means to pay security and that the security belongs to you.
Other factors which may be considered in determining suitability include: past criminal history, relationship with the accused and ability to pay without suffering severe hardship.
‘Surety’ or ‘continuing surety’?
When you enter into a surety undertaking, you will be asked whether you wish to be a surety or continuing surety. A surety will guarantee that the accused will turn up for the next court appearance.
A continuing surety means that you guarantee the person will turn up for every court appearance until the case is finished.
How to withdraw as a ‘surety’?
If you believe the defendant is likely to breach the bail and not turn up to court, you should notify a police officer and apply to the court to be discharged from your obligations as a surety.
The police can arrest the accused and bring them to court if satisfied that the accused is not likely to comply with their bail undertaking.
Your obligations as a surety continue until an order is made by the court that cancels your surety.