In the context of bail, ‘security’ and ‘surety’ are distinct terms with different meanings and relate to financial conditions that can be offered through a bail application in criminal proceedings.
Security: this is an actual payment of money into court of an agreed sum. The money is paid by a specified individual and generally has to be paid and deposited with the court before the person subject to bail can be released on bail. If the person subject to bail fails to comply with their bail condition that they must attend court, the security can be forfeited in full or part.
Surety: a legal promise given by an individual to the court to pay a specified sum of money if the accused person fails to attend court to answer bail. The surety is typically a family member or friend and agrees to assume financial liability in a particular sum of money. If the accused breaches bail, the surety may be required to pay the specified amount or forfeit the security provided.
Before deciding if you are going to stand surety or security for someone applying for bail, you should satisfy yourself that you know the person well and are satisfied that they will attend court. You should also understand the financial risks to you if they fail to attend court.
How much money should we offer?
The answer to the question depends on the financial circumstances of the individual willing to offer a surety or security. The sum of money needs to be significant for the individual offering, thereby demonstrating to the court that they are prepared to take the risk of losing a substantial sum because they are sure the accused person will attend court if granted bail.
Should we offer a security, surety or both?
The honest answer is it depends. It depends on the charges, the individual themselves and how much money is available. A general rule of thumb is that the more serious the allegation the individual faces, the more money will be needed. In some cases, a combination of a security and surety can be offered.
A security – payment of money into court – is generally lower in amount than the surety that is offered.
Can I offer up the equity in my home as surety?
If the equity is in property that is the main residence of the person offering the surety, the court are very unlikely to accept this. If however, the property is a second home, commercial property or perhaps some land, then the court will consider this but you may need to give evidence to the Judge to confirm you understand what it means to offer the equity.
Legal disclaimer: Articles are intended as an introduction to the topic and do not constitute legal advice. The information contained herein is accurate at the date of publication but please note that the law is ever changing and evolving. If you require advice in relation to any matter raised in this article please contact a member of the team.