Julian Assange has just been granted bail. The conditions appear to be to surrender his passport, live at a known address, report to the police daily, observe a curfew and wear an electronic tag. He must provide £200,000 security, and £40,000 in sureties.
The court operates from a presumption in favour of granting bail.* It may only deny bail if the court has substantial grounds for believing certain specific conditions may occur. In this case the risk is that Mr Assange would “fail to surrender” (i.e. flee). If this test is likely to be satisfied, the job of the defence advocate is to propose conditions that minimise those risks.
For example, the risk of a defendant interfering with witnesses (a ground for refusing bail) can be minimised by specifying that the defendant reside at a location that keeps him far from the witness, and supporting this with curfew and reporting requirements that make it impossible for the defendant to be able to get to the witness. The key to a successful bail application can be putting together the right complement of conditions to allay the court’s fears.
Denying Mr Assange bail at his first appearance appeared to be the right thing to do. Julian Assange has made a big thing of his “nomadic” lifestyle, reportedly constantly moving between hotels, frequently changing his encrypted phones, and declaring that he was living in an undisclosed location. He has no particular ties to this country, and has experience of being on the run. When he was in court he virtually refused to give his address.
Much has been made of the celebrity sureties. This is an overstated element of the case. Bail is not about simply handing money over to the court. Indeed in Scotland it isn’t allowed (h/t @loveandgarbage). The idea behind sureties and security is that they give the defendant and his friends or relatives a stake in not breaching bail conditions. For that to be effective, the amount given has to be money that would represent a real loss to the defendant or person offering the surety. Moreover if it is a surety, it ought to be offered by someone whose connection with the defendant means that he is unlikely to make him lose his money. It’s all about making the defendant bear the risk of breaching bail conditions. When viewed in that light, high-profile sureties by rich celebrities, many of whom don’t actually know Mr Assange, suddenly don’t look like a very good bail condition. There is a vast difference between a multi-millionaire offering a few thousand in surety for a stranger, and someone offering a substantial portion of their life savings for a close family member. Indeed, it might even be viewed as simply “buying” a bit of publicity, with the benefits of being seen as supporting a folk hero outweighing any financial loss if he absconds. It is interesting that of all the sureties offered, only two were made part of the bail conditions.
What appears to have changed this time then is not the offer of relatively meaningless sureties but the imposition of clear and meaningful conditions that actually address the fear of him fleeing.
UPDATE: The Swedes are appealing. the decision. Another hearing is due in the High Court in the next 48 hours.
UPDATE 2: *There is no presumption in favour of bail in a rape case. I’m not sure that that applies in this case given it’s technically an extradition case. Furthermore the CPS took the decision to appeal the granting of bail without consulting Sweden.