Electronic monitoring in Scotland: analysis of consultation responses

3. Exploiting the Opportunities Afforded by New Technologies

Background

Scotland presently uses radio frequency technology in a standalone mode mainly as a method of monitoring compliance with a court order following conviction or monitoring compliance with a condition of release from prison. The Scottish Government envisages a role for the introduction of new technologies to operate alongside the existing technology.

GPS technology enables monitoring of movement over a wide area rather than one single location. It allows for larger or more sophisticated exclusion zones of varied shapes and sizes, and for more than one exclusion zone to be set. It can be tracked real-time if 24/7 monitoring is required, or retrospectively if less immediate deterrence is required.

The Scottish Government does not intend to introduce blanket approaches to particular types of offences nor restrict the use of technologies to low or high impact crime.

Question 1: Do you agree that we should introduce legislation to permit the use of GPS technology for electronic monitoring?

3.1 56 respondents (89%) answered this question, with all agreeing that the Scottish Government should introduce legislation to permit the use of GPS technology for electronic monitoring.

Question 1a: Please give reasons for your answer

3.2 55 respondents (87%) answered this question. The most frequently identified reason for introducing legislation to permit the use of GPS technology for electronic monitoring, was to improve victim and public safety. All responses are summarised below:

• GPS technology will provide better protection for victims and the public. Risk management and public safety will both improve. (22 mentions)
• Offers greater flexibility and opportunity to tailor monitoring to individual circumstances; provides for creative and individualised approaches. (18 mentions)
• Better management of offenders; pro-active approach to management; greater opportunities to change behaviour and reduce re-offending in the future. (15 mentions)
• Improved monitoring data; more accurate data. (14 mentions)
• Provides a credible alternative to custody; could contribute to reducing the prison population. (13 mentions)
• Effective use of resources. (3 mentions)

3.3 Whilst all of those providing a view were in favour of introducing legislation to permit the use of GPS technology for electronic monitoring, many qualified their view by stating that any expansion of this technology should be used proportionately and appropriately, in particular circumstances, and within the context of a wider package of support.

Question 1b: Who do you consider should determine which technology (radio frequency ( RF) or GPS) should be used in each case? Judiciary? Scottish Prison Service? Criminal Justice Social Work? Other?

3.4 56 respondents (89%) answered this question. The most common choices were for the judiciary to determine which technology should be used in each case; or for some other option. Table 3.1 shows that in each of these cases 23 respondents selected these choices over others. All three of the justice bodies who answered the question considered that the judiciary should determine technology. Other respondent sectors were more evenly divided in opinion across the different options.

Table 3.1: Summary of views on who should determine which technology should be used in each case

Response	No. of respondents	% of all respondents*
Judiciary	23	41
Criminal Justice Social Work	7	12
Scottish Prison Service	3	5
Other	23	41
Total respondents	56	100

*Percentages may not total 100% exactly due to rounding.

3.5 One justice body expressed their view that as GPS has the potential to limit freedom of movement beyond that currently experienced as part of a RLO, then such a restriction on individual freedom, together with assessment of the risk giving rise to it, other responses to it, and the proportionality of that resulting response, should only be made by a judge possessed of all relevant information and should not be viewed as an administrative act.

3.6 A few respondents from different sectors commented that if the view is taken that it is for the judiciary to determine which form of technology should be used for each electronic monitoring order made, then judicial training on the available technologies will be required. One justice body suggested that should the reasons for choosing one particular form of technology over another require to be formally recorded in court minutes/orders and specified in court, then additional court time and IT costs to the Scottish Courts and Tribunals Service will result.

3.7 Around half of those who selected "other" considered that the decision on technology should be taken jointly between several agencies; or made by the judiciary, but based on reports from criminal justice social workers and others:

"Justice works best in collaboration. While the decision should sit with the judiciary in terms of any sentencing/bail decisions, and the SPS in relation to its use of HDC, relevant input from core partners should be central to the decision making process" (Community Justice Glasgow).

3.8 A few respondents provided the view that the body responsible for determining which technology to use will depend on the circumstances. For example, the judiciary will make this decision if imposing the order as part of an alternative to custody, or the Parole Board will decide this if used as part of a mandatory release from prison under licence.

3.9 Two individuals considered that the police should determine which technology should be used in each case as they would be impacted by any abuse of the system deployed.

3.10 Amongst those who identified criminal justice social workers as most appropriate for determining whether RF or GPS should be used, some argued that this decision will require detailed assessments and knowledge of the individual, which criminal justice social workers will have at hand. One individual considered that as criminal justice social workers will have to manage whichever regime is decided, then they should be responsible for the initial decision on technology.

Question 1c: What factors do you think should be taken into consideration when deciding which technology should be used?

3.11 52 respondents (83%) answered this question. There was general agreement that factors should be considered on a case-by-case basis, and based on a comprehensive assessment process, as with any other decision in the criminal justice system.

3.12 The factor highlighted in responses more frequently than any other was consideration of safety for the general public, the victim, and the offender. 39 respondents across a wide range of sectors identified this consideration as crucial, with a few focusing on the needs of the victim, in particular, to feel safe and content that justice is being done.

3.13 Other key factors which respondents considered should be taken into account when deciding on which technology should be used were:

• Personal circumstances of the individual ( e.g. mental health; social history; any drug/alcohol addictions; home life; secure accommodation; social support structures; previous compliance; nature of lifestyle). (17 mentions)
• Nature of the offence (sexual offences and cases of domestic abuse were highlighted as requiring particular consideration). (16 mentions)
• Practical issues (reliability; prevalence of "blind spots"; cost; functionality; comfort of wear). (11 mentions)
• Proportionality (avoiding overuse or "up-tariffing"; ensuring proportionality of processing relating to the technology used for monitoring). (11 mentions)
• Availability of suitable supporting package of measures. (9 mentions)
• Overall aims of the monitoring ( e.g. punitive; deterrence). (7 mentions)
• Potential for behaviour modification. (6 mentions)
• Level and nature of monitoring required, its complexity and whether there are partner resources for implementing this. (6 mentions)
• Impact on the individual ( e.g. so they can still attend education/work). (4 mentions)

Buffer zones

GPS exclusion zones can offer a buffer zone, an area that is set just outside an exclusion zone to which entry generates an early alert to possible boundary encroachment. As the buffer zone is set outside an exclusion zone, by entering this area the individual is not technically breaching their order conditions.

Question 2: What response, if any, should there be to an infringement of a buffer zone?

3.14 51 respondents (81%) answered this question.

3.15 Several of the partnerships were amongst the eight respondents who emphasised the need for clear guidance and protocol to be established to ensure that all parties (offenders, victims, justice bodies) know what to expect in the event of entry to the buffer zone, and to ensure prompt and consistent response to this across Scotland:

"These responses should always be anticipated, determined and stated prior to the commencement of the monitoring, so that the order is not undermined by inconsistent or pragmatic /erratic responses" (Scottish Association of Social Workers).

3.16 Five respondents, including three partnerships, considered that even if a decision is taken for no formal action, there must be some explicit response to the buffer zone entry:

"If an infringement of the buffer zone is not perceived as having a consequence then it would lack purpose and weight as a tool for reducing offending and public protection" (East Ayrshire Health and Social Care Partnership).

3.17 The prevailing view across a wide range of sectors was that the individual circumstances of the infringement will dictate what response is most appropriate and proportionate. Key determining factors which were raised repeatedly were:

• Risk to public and victim safety.
• Intent/reason for infringement.
• Frequency of infringement.

3.18 Examples were provided of infringements which respondents considered may not require a robust response, such as entering a buffer area to travel to work, go to a doctor's appointment, or parents crossing into a buffer area in response to a childcare issue. An example of an infringement requiring a potentially punitive response was identified as one in which an offender deliberately attempts to intimidate their victim.

3.19 Some respondents suggested what should happen in the event of intentional, unnecessary infringements. Third sector respondents emphasised the need for supportive responses to infringements, in which rehabilitation of the offender is central, whilst taking cognisance of public safety.

3.20 Private companies responded from an operational perspective, outlining prompt procedural responses involving contacting the offender, alerting them to the record of their infringement and providing any warnings or other action required.

3.21 Many individual respondents envisaged more punitive responses to infringements of buffer zones. These ranged from escalating warning systems leading to court or prison for repeated infringements, to immediate loss of freedom.

3.22 Contrasting views emerged from a few individuals and one partnership, who considered that, as entering a buffer zone is not actually a breach of an order, and as there may be genuine reasons for entering the zone, there should be light touch response, or even no point to having a buffer zone.

Voluntary GPS schemes for people who offend persistently

Voluntary GPS schemes have been on-going in other jurisdictions for some time and can provide some individuals with an additional motivation/incentive to change their reoffending habit.

The Scottish Government sees potential value in a voluntary scheme being undertaken in Scotland, subject to stringent arrangements for its use:

• there must be clear criteria for such a scheme being offered;
• this would not be part of a surveillance programme of an individual;
• there must be written consent of the monitored person, including relating to the use of their data;
• there will be strict rules in place governing the collection, use, retention and destruction of any data associated with the individual's movements;
• the use of such a scheme must be in conjunction with a wider support package being offered, with a view to aiding desistance to prevent and reduce further offending;
• due to its voluntary nature, there will be no breach of such a scheme, but any infringements would be discussed as part of the support package;
• such a scheme would be for a specified time period for each individual.

Question 3: Do you agree that we should introduce legislation to permit a voluntary GPS scheme?

3.23 50 respondents (79%) answered this question. Of these, 72% (36 respondents) agreed that legislation should be introduced to permit a voluntary GPS scheme; 28% (14 respondents) disagreed. There was a similar pattern of response across organisations and individual respondents. Table 3.2 below shows responses by category of respondent.

Table 3.2 Views on whether legislation should be introduced to permit a voluntary GPS scheme by category of respondent

Category	Yes legislation	No legislation	Total responding
Partnerships	6	3	9
Third Sector	5	1	6
Justice Bodies	1	0	1
Private Sector	3	0	3
Local Authorities	1	1	2
Social Work Bodies	1	1	2
Health	1	0	1
Other	1	0	1
Total Organisations	19	6	25
Total Individuals	17	8	25
Grand total	36	14	50

Question 3a: If you answered yes, who should be eligible, how would this operate and who should manage the scheme?

3.24 41 respondents (65%) answered this question.

Who should be eligible?

3.25 A wide range of views on eligibility emerged from responses. Many respondents supported case-by-case assessment of suitability for voluntary participation, based on assessments of circumstances of each situation. In particular, several respondents suggested that social work identification of those showing genuine desire to desist from their previous behaviours, should form the basis of eligibility.

3.26 Several respondents, from a range of organisations, advocated a risk-based assessment, with most considering voluntary electronic monitoring appropriate for low-risk offenders, who have committed low tariff offences. In contrast, a few individual respondents envisaged voluntary participation in cases where there is a high risk of re-offending and where previous disposals have not been effective.

3.27 A few respondents focused on procedural stages, and considered that those at pre-trial stage should be eligible for a voluntary scheme, as an alternative to remand; or those released from custody, and not subject to statutory licence, but wishing to access additional support to desist from re-offending.

3.28 A few individuals considered that a voluntary scheme could be suitable in cases of domestic abuse and sex offending; a third sector respondent envisaged those involved in cases of substance misuse, domestic abuse, mental health related offences, and sex offences being eligible, where any mandatory supervision period has ended but there remains a level of risk to the public.

How would this operate?

3.29 The key messages emerging from responses were for the scheme to operate in the following way:

• There should be no coercion or inducements to participate.
• Strict controls should be in place to prevent abuse, including robust monitoring.
• Participation should be within the context of a wider framework of support measures to help prevent re-offending.
• Voluntary participation should be time-limited.
• Operation of the scheme should be evidence-based, underpinned by previous lessons and demonstration schemes.

Who should manage the scheme?

3.30 The most common view was for a voluntary scheme to be managed by local statutory bodies with additional support from third sector organisations according to the requirements of each case.

3.31 A few respondents identified independent monitoring of the scheme as important, but clearly linked to the supporting framework in place.

3.32 A few of the individual respondents envisaged the scheme being managed by the Scottish Prison Service, Police Scotland, or the local Criminal Justice Social Work Department.

Concerns

3.33 Although the question focused on those agreeing that legislation should be introduced to permit a voluntary GPS scheme, a few respondents expressed concerns regarding the proposal. These focused around:

• Use of a voluntary scheme in cases of domestic abuse.
• The perceived lack of any real victim protection where there are technically no "breaches" and no sanctions for non-compliance.
• Availability of supporting structures.
• Funding.
• Lack of robust evidence of effectiveness.
• Attitudes of offenders and victims towards a voluntary scheme.
• Potential impact on court resources if a court, when sentencing, has to consider an offender's previous involvement in a voluntary GPS scheme.

Alcohol monitoring technologies

Technology exists to enable individuals to have their alcohol consumption monitored using, for example, a breathalyser incorporated into a monitoring unit, or an ankle bracelet which can detect the presence of alcohol when sweated out through the skin.

The Scottish Government proposes to take forward a demonstration project to determine how alcohol monitoring might be used effectively and at which points within the Scottish justice system. This will require enabling provisions to be introduced into legislation.

Question 4: Should alcohol monitoring be permitted as part of an electronic monitoring programme?

3.34 53 respondents (84%) answered this question. Of these, 91% (48 respondents) agreed that alcohol monitoring should be permitted as part of an electronic monitoring programme; 9% (5 respondents) disagreed. There was a similar pattern of response across organisations and individual respondents. Table 3.3 overleaf shows responses by category of respondent.

Table 3.3 Views on whether alcohol monitoring should be permitted as part of an electronic monitoring programme by category of respondent

Category	Yes to alcohol monitoring	No to alcohol monitoring	Total responding
Partnerships	8	2	10
Third Sector	6	0	6
Justice Bodies	3	0	3
Private Sector	2	1	3
Local Authorities	2	0	2
Social Work Bodies	2	0	2
Health	1	0	1
Other	1	0	1
Total Organisations	25	3	28
Total Individuals	23	2	25
Grand total	48	5	53

Question 4a: Please give reasons for your answer.

3.35 56 respondents (89%) answered this question. This included some respondents who had not answered question 4.

3.36 Two key reasons were provided by respondents, across a wide range of sectors, as to why alcohol monitoring should be permitted as part of an electronic monitoring programme:

• There are clear links between alcohol use and offending behaviour (25 mentions).
• Alcohol monitoring has the potential, within a wider package of support, to help offenders build control over their own misuse of alcohol (10 mentions).

3.37 Other benefits identified by three or fewer respondents were:

• This will provide useful information about the offender for those supervising them and for other statutory bodies.
• Adds another option for addressing offending behaviour.
• Is less intrusive than other options such as curfews, and enables the offender to resume positive life choices such as attending leisure classes.
• Contributes to greater confidence in community sentences.

3.38 Many respondents qualified their support for alcohol monitoring being permitted as part of an electronic monitoring programme. A recurring theme was that lessons should be learned from further research and practical projects, before rolling out the scheme. One third sector respondent suggested a "sunset clause" be built into legislation, so that provisions enabling alcohol monitoring can be withdrawn, should the demonstration project show this to be appropriate.

3.39 Another repeated view amongst partnerships and third sector organisations, was for alcohol monitoring to be seen as part of a wider package of support rather than introduced as a stand-alone measure.

3.40 A few respondents emphasised the need to work out the detail of the scheme, particularly in terms of how to define non-compliance; overseeing compliance; implications of breaching; staff training required; and funding. Costs were envisaged associated with training staff; provision of supporting structures; court costs for additional time if alcohol monitoring technologies are used to form part of a court sentence and/or be used to monitor compliance with bail conditions; IT change costs.

3.41 The Information Commissioner's Office ( ICO) highlighted that Section 2 of the Data Protection Act classes physical or mental health as sensitive personal data, and emphasised the need for a thorough and robust data sharing agreement before any data sharing takes place in connection with an individual's alcohol use.

Views of those with concerns over introducing alcohol monitoring as part of electronic monitoring

3.42 Several respondents considered that more development work is required in terms of research, defining objectives, and design of robust and tamper-proof equipment, before the scheme can be rolled out.

3.43 A few partnerships suggested that including alcohol monitoring as part of electronic monitoring could compromise the clear aim of rehabilitating individuals. One private sector respondent argued that alcohol monitoring should remain a distinct programme in its own right, with different commercial arrangements and different commissioning objectives.

3.44 Scottish Women's Aid considered that while alcohol monitoring may be useful for offenders who have specific problems with alcohol, it is not appropriate in cases involving perpetration of domestic abuse. They argued that alcohol abuse is not a driver of perpetration of domestic abuse, and such monitoring is likely to reduce vigilance around the more dangerous behaviours of perpetrators.

Question 4b: If you answered yes to Question 4, in what circumstances do you think alcohol monitoring would be appropriate?

3.45 45 respondents (71%) answered this question. A few third sector respondents commented that more research is required to determine the most appropriate circumstances for alcohol monitoring to take place. Other respondents identified circumstances when they considered alcohol monitoring would be appropriate. The most common responses were:

• Where alcohol has played a clear part in the individual's offending history. (17 mentions)
• Where support and supervision of the individual is in place. (9 mentions)
• Where consumption of alcohol has played a role in specific offences, with these identified as: sexual, violent, domestic abuse and drink driving. (7 mentions)
• At many different stages of the criminal justice system such as pre-court; supervised bail; structured deferred sentence. (7 mentions)
• Specifically, as part of a community sentence. (6 mentions)
• Where an offender has requested this, e.g. for motivational purposes to abstain from alcohol. (5 mentions)