Recognizance

In some common law nations, a recognizance is a conditional pledge of money undertaken by a person before a court which, if the person defaults, the person or their sureties will forfeit that sum. It is an obligation of record, entered into before a court or magistrate duly authorized, whereby the party bound acknowledges (recognizes) that they owe a personal debt to the state. A recognizance is subject to a "defeasance"; that is, the obligation will be avoided if person bound does some particular act, such as appearing in court on a particular day, or keeping the peace.[1] In criminal cases the concept is used both as a form of bail when a person has been charged but not tried and also when a person has been found guilty at trial as an incentive not to commit further misconduct. The concept of a recognizance exists in Australia, Canada, Hong Kong, the Republic of Ireland, and the United States. Recognizances were frequently used by courts of quarter sessions, for example they make up more than 70% of surviving records for the Bedfordshire Quarter Sessions records.[2]

Bail

A recognizance is a form of bail, in which an accused is released from pre-trial detention with an incentive to ensure that they will appear before the court to face charges on a certain day in the future. A person may be required to provide sureties, being another person who will guarantee the attendance of the accused and agree to forfeit the amount if they don't. If a person is not required to provide a surety, they are released "on their own recognizance".[3] Release on recognizance is sometimes abbreviated as RoR, OR (own recognizance, particularly in the United States), or PR (personal recognizance).

A recognizance is different from a bail bond in that it is a pledge of money and no upfront payment of a cash deposit is required.[3][4]

Historically recognizances were also used by courts of quarter sessions to require a person to attend court and give evidence.[2]

As an incentive not to commit further misconduct

Where a person has been found guilty at trial, a court may release the defendant on their own recognizance, as an incentive for the person not to commit further offences. In 1733 John Harper was released from Bridewell on his own recognizance.[5] They were used by courts of quarter sessions to keep the peace and for people to be of good behaviour, with the person required to attend the quarter sessions once every year until tensions had cooled.[2]

They continue to be used for this purpose in Australia, with the federal Crimes Act providing that the court can discharge the person with or without sureties, by recognizance or otherwise. The discharge can include conditions such as to be of good behaviour or to pay compensation. A recognizance release order may involve the immediate release of the person into the community or after serving a specified period of time.[6][7][8] For example the New South Wales Court of Criminal Appeal upheld the sentence imposed on John Khoo for insider trading offences that he be imprisoned for 1 year and 11 months, but be released after 14 months on entering a recognisance to be of good behaviour.[9]

References
  1. This article incorporates text from a publication now in the public domain: Chisholm, Hugh, ed. (1911). "Recognizance". Encyclopædia Britannica. Vol. 22 (11th ed.). Cambridge University Press. p. 958.
  2. "Bedfordshire Quarter Sessions Recognisances". Bedford Borough Council. Archived from the original on 24 April 2013.
  3. Devine, F E (1989). "Bail in Australia" (PDF). Australian Institute of Criminology. Retrieved 25 September 2021.
  4. Roulston, R P (1969). "Principles of Bail". Proceedings of the Institute of Criminology (PDF). pp. 18–19.
  5. Stephen, Leslie; Lee, Sidney, eds. (1890). "Harper, John (d.1742)" . Dictionary of National Biography. Vol. 24. London: Smith, Elder & Co.
  6. Crimes Act 1914 (Cth) s 19B Discharge of offenders without proceeding to conviction.
  7. Crimes Act 1914 (Cth) s 20 Conditional release of offenders after conviction.
  8. "Sentencing Commonwealth offenders". Sentencing Bench Book — Crimes Act 1914 (Cth). Judicial Commission of New South Wales. Retrieved 25 September 2021.
  9. Khoo v Regina [2013] NSWCCA 323 (20 December 2013), Court of Criminal Appeal (NSW, Australia)
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