Necessity is the mother of invention – rethinking bail conditions in the age of COVID-19
The COVID-19 pandemic has drastically affected the day-to-day operation of the justice system. A recent example of this is Victoria Police’s decision to suspend bail reporting conditions from Friday 24 April 2020. This means that people currently on bail whose bail conditions require them to regularly report to a police station will no longer need to do so.
It has been reported that the decision to suspend reporting requirements could prevent 40,000 visits to police stations each month. The policy is consistent with other measures currently being put in place to reduce non-essential movement in the community.
Some media outlets have voiced concern that suspending reporting requirements loosens the oversight of people on bail and compromises community safety. However, suspending bail reporting conditions may make life more difficult for people accused of a crime, despite appearances to the contrary.
Under s 4E of the Bail Act 1977 (Vic) (the Act), a bail decision maker must refuse a person accused of an offence bail if the bail decision maker is satisfied that the person poses an unacceptable risk to members of the public; of committing an offence while on bail; of interfering with witnesses or otherwise obstructing the course of justice; or of failing to surrender into custody in accordance with the conditions of their bail.
One way that people applying for bail can reduce risk to an acceptable level and avoid falling foul of s 4E is to agree to bail conditions which restrict their liberty while they are in the community. A hitherto common bail condition is the requirement to report at a local police station, sometimes several times per week. With this bail condition suspended from Friday 24 April, people accused of a crime may find it more difficult to satisfy a bail decision maker that any risk they pose if released on bail is an acceptable one.
The question then becomes how to compensate for the loss of bail reporting conditions to address concerns about community safety and enable people accused of a crime to satisfy bail decision makers that they do not pose an unacceptable risk if released on bail. I believe the answer to this question is technology.
Just as technology has enabled many people to abandon their offices and work from home throughout the COVID-19 pandemic, technology can also help maintain a robust bail regime that limits unnecessary movement in the community. For example, people released on bail could be required to pick up videocalls from police. This is arguably a far more effective way of monitoring people on bail than requiring them to attend a police station for 15 minutes to sign in sometime between 6am and 9pm on particular days of the week. A videocall would better enable the police to ensure that a person on bail is not in an inappropriate environment or in contact with inappropriate people. Technology could also be used to trace the movements of people on bail through a tracking app installed on a mobile phone, feeding back real time location data to the police.
Using technology to implement novel bail conditions will inevitably create some obstacles that will need to be overcome through trial and error. The type of bail monitoring conditions contemplated above could also create disquiet among people applying for bail, who may have justified concerns about incursions into their privacy. However, those people would do well to remember section 4E of the Act. Bail decision makers may find bail conditions that employ technology to be persuasive risk mitigation tools that significantly improve a person’s chances of being granted bail. Any loss of privacy a person experiences due to bail conditions that employ technology would surely pale in comparison to the loss of privacy they experience in a custodial environment.
The COVID-19 pandemic should prompt creative uses of technology to ensure we have a functional bail system during this time. Any changes that are introduced now need not be cast aside once life returns to normal. COVID-19 may prove to be the crisis we need to force a modernisation of bail conditions. The type of conditions currently imposed, such as sureties, curfews, fixed accommodation requirements and non-association clauses, seem more at home in the 19th century than the 21st century. Modern bail conditions that employ already-available technologies ought to supplement existing conditions to provide a safer community and allow more people accused of a crime to remain in the community until their case is heard.