[Important note:] This article was substantively written on the 2nd May 2017. On the 8th May the bail review changes were announced by the Victorian Government. As predicted, they are not good. Once a substantive policy has been released to the public and the Coghlan Review is released I will look over it. I thought that while this is ‘old news’ it is not necessarily ‘fake news’ – the points are still valid. Watch this space.
It is a tragic irony that criminal lawyers are unable to effectively communicate the seismic changes required to fix the criminal justice system. This is no criticism of the advocates but merely an observation based on reality. We are in the midst of the nadir of a savage law and order cycle and criminal lawyers (and our organisations and institutes) are faced with a very difficult task. Namely, how do you convince a population and its politicians, in the grips of a punitive law and order cycle, that the path we are going down is wholly wrong, wholly unsafe and most unwise?
Criminal lawyers are duty bound to sell this unsellable message. Recognising this reality reveals that there is a limit to how much we can achieve in such a punitive law and order cycle. So maybe we should aim for things that are achievable in the current political climate.
There are three no-spin (potentially) bipartisan changes that would actually modernise the bail system without tipping the scales. These are: (1) remove the ‘show cause’ provisions, (2) one accused one easily accessible file and (3) treatment beginning from time of arrest. These three suggestions would help to streamline the criminal justice system, modernise the question of bail, save money and remand the people who need to be remanded. Stepping away from the reactionary politics its clear we don’t just need a review of the bail system but the political will to make smart changes.
Currently, I fear what will happen is just a ‘tinkering around the edges’ of the Bail Act couched in the lazy politics and emotive language of being ‘tough’ or ‘weak’ on crime. Continual tinkering with a piece of legislation from 1977 with law and order policy motived by political considerations does not protect the community, it is unwise, costly and unjust. Smart justice is the best justice.
The poisoned optics of a bail review
At the moment there is a criminal justice review by commissioned by the Andrews Government in the wake of the Bourke Street tragedy. Justice Coghlan spearheads that review. As I have previously stated the review of the Bail Act 1977 (Vic) is long overdue. Many commentators and expert reviews have long highlighted the changes required to have an efficient bail law system. The political will to champion those changes has been lacking, with taking the ‘tough guy’ approach being the easy way out. Without prejudging the recommendations of His Honour, I feel that the review will be rehashing well-worn territory as we have already looked at bail review in 2007.
The core trouble with the Coghlan review is that it will be invariably poisoned by reactionary politics. To be clear, I expect that in reality no enlightened changes will occur despite Justice Coghlan delivering what will invariably be a thorough and precise series of just recommendations. And in the wake of such an emotive tragedy how can there be such a change? The political reality is just too stark at the moment. How can you sell the idea to the Victorian population that we should abolish ‘show cause’ provisions? How can you say to the Victorian people that bail justices are simply a filter who overwhelmingly, almost always deny bail when the police ask for it? How can you convey the idea that rehabilitation and helping alleged offenders will reduce the crime rate and protect society? These are the unsellable messages. My argument is that you cannot achieve the hard nosed and enlightened changes required to remedy a broken system when reviews such as this are announced in a reactionary and emotive setting.
It is my feeling that wholesale change is required but there is simply not the political will to drive that sweeping change. It may be pessimistic (and a broken status quo should never be accepted) but criminal lawyers should focus on achievable goals. Thus I focus on the reality and focus on changes that would be highly effective but not wholly controversial. Aiming small and missing small would not deprive politicians of their ‘tough on crime’ rhetoric that they feel they need to get elected. It would allow prosecutors to fully prosecute their case and defence lawyers to answer it with counter facts. Most importantly it would allow judicial decision makers to make an informed decision. Most importantly, it would save lives. But before I discuss the suggestions, let’s focus on some home truths.
This is the reality that no politician will talk about, no judicial officer will admit and no paper will print on the record. That is that crime is wholly unpredictable. You cannot, no matter your expertise, predict the outcome of the future. Mr. Gargousulas was granted bail by a bail justice for driving offences. There were no (or little) indicia of risk that would leave a frontline decision maker to conclude he would commit such a heinous series of crimes. Making a decision regarding sentencing or bail is like playing a deadly game of pass the parcel. You try your best and make the best decisions you can on the day but if you play the game long enough inevitably something will explode.
And yet no Magistrate or Judge wants to be the person who releases the next terror suspect or the next significant criminal out on bail. The reality is that crime is unpredictable and hindsight is a wonderful thing that the people on the ground cannot possess. All we can do as criminal lawyers is have access to as much information as we possibly can to assist the court in makingan informed, impartial decision based on the law.
I feel a lot of empathy for the bail justices and especially the bail justice who granted bail for Mr. Gargousulas. They have been unfairly pilloried for a job that is almost always unthankful and based entirely on a sense of civic duty. Bail justices feel that they have been unfairly blamed for making that fateful bail decision. As a practitioner, I am surprised whenever a bail justice actually grants bail. What is more it is a hard job to do in a system that is so thoroughly antiquated, overwhelmed and broken. So why can’t we focus on getting as much information to the independent decision maker (the judiciary) as efficiently as possible?
Decision makers are operating in an antiquated system based on software that most people wouldn’t even recognise anymore. The courts run on something called ‘Court Link’ and it is a DOS based program. DOS! It is green, yellow and red with a black background. To imprison someone you press the ‘IMP’ button. It is truly the most unruly, user-unfriendly system one could hope for. It also restricts access to information. Court Link cannot open a PDF file or an email. It cannot access CCTV footage or records of interview. When was the last time you punched in a DOS command? This is our criminal justice system. It would be almost comical if the repercussions weren’t so serious. Such an old system means that magistrates, lawyers, police prosecutors etc. have no ability to easily retrieve current or past allegations of criminality, psychiatric reports, bail reports, sentencing decisions etc. How can a decision maker make an informed decision as to risk when relying on a system that cannot provide all salient facts? It’s actually dangerous and outrageously so.
Practical changes that actually work
Here are some suggestions as to how to really tighten up the bail system. It wouldn’t cost a huge amount of money but I would guarantee that it would save lives and reduce people being unjustly remanded. It would also save a decent amount of taxpayer dollars. It would probably make a defence lawyer’s jobs harder, but at least everyone will be operating from easily accessible information.
- Remove the ‘show cause’ provisions: Simplify the Bail Act 1977 by removing all ‘show cause’ provisions and simply have a single question being asked: “is the accused person an unacceptable risk of committing further offences or failing to appear?” This would free up court time to focus on the only question that actually matters. As I have previously stated, the Bail Act is antiquated in and of itself. Highly confusing, clunky and inconsistent, it costs more in court time that any other piece of legislation. This has been a core recommendation for years and something I have previously written about.
- One accused, one file: We should have a central and modern database with an access to an accused persons history and file. Currently, judicial officers simply have to guess what persons a priors actually involve based on a system developed in the early 80s called LEAP. It is often impossible to access all briefs for allegations of the offences that an accused is facing. A surprising amount of decisions made in the courts are ones that are not fully informed of the facts and risks. This leads to distrustful judicial officers, who almost always feel dissatisfied with the lack of information available to them. Defence lawyers nearly always have to conduct an enquiry as to the true nature of the risks and facts when presented with a bail application scenario. Overworked prosecutors almost never have the information they need to prosecute their case. We should level the playing field for all with free ranging access to all pertinent information. Why couldn’t the criminal justice system have access to a collated database that held police summaries, correction reports, psychiatric history, intervention orders and the like? Access could be granted once you begin acting for a particular accused. As a tech-savvy lawyer I recoil in horror at the antiquated system the courts and police have to deal with. I should be able to click on a person’s prior from the last two years and access the amended police summary, the corrections report, the psychiatric reports and the CISP reports. If I want to argue that the CCTV identification evidence is weak, I should be able to say to the Magistrate “let’s take a look at 19:20 on the CCTV footage. You cannot see his face!” All then the Magistrate, prosecutor and myself would have to do is click on the current file, the current allegations and then the CCTV evidence. The Magistrate can then make an informed decision based on the strength of the evidence. It is frankly astounding that this doesn’t occur. Make no mistake, innocent people wait in custody for weeks or months on charges that are ultimately unable to be proved.
- Treatment beginning from the time of arrest: We should have mental health and CISP clinicians available at the time of arrest at every police station. I cannot emphasise this enough, as it would make for a much safer community. Frontline access to drug rehabilitation services and psychiatric intervention would substantially alleviate the risk factors of people committing crimes immediately post-release. This is an idea that I stole in court from Her Honour Magistrate Popovic. It’s a good one and Her Honour should know, she invented CISP. CISP is much cheaper per potential prisoner than remanding them in custody. [Important note:] As of today it seems that there is a promised ‘increase’ in funding for the CISP program. More on this when it comes to light.
These three suggestions would work to streamline the criminal justice system. It would focus the question being asked, namely “what is the risk of bailing this person?” It would provide the information required to adequately answer that question, by having easy access to psychiatric and treatment related information. Lastly, it would enable to the people who need treatment, at first instance, immediate access to that treatment. By streamlining the question and providing the evidence we could bail the people who need to be bailed and address the question of risk more thoroughly, efficiently and accurately.
I believe that actually implementing these ideas would not be a politically unsellable message and would offer real substantive changes in how we conduct justice in this state. It would cost less than building a new prison and would allow the people who need to be bailed to be bailed. It is an example of smart policy and smart justice through justice reinvestment. Why we haven’t done this already is truly beyond me.
I ask that the criminal lawyers, judges, magistrates, barristers, prosecutors, police officers and citizens who read this blog question why we are operating in a system that is so inaccurate, insufficient, unsafe and clunky. Why do we have a system that is based off technology developed in the 1980s? What can we do better and how do we achieve change that is realistic and that will actually work? How can we get the information required to assist the court in making a just and informed decision?
These are the questions that can be easily answered without expending large political capital or a whole lot of money. More accurate, efficient and available information when assessing bail cannot be a bad thing. Treatment for the people who would ordinarily deserve bail should always be at the forefront of our minds. Maybe we should aim for uncontroversial policies that achieve these things?
Just a thought.