Electronic monitoring in Scotland: analysis of consultation responses

4. Extending the Use of Electronic Monitoring in a Community Setting

Electronic monitoring as part of a Community Payback Order ( CPO)

A key part of the Scottish Government's vision for community justice is to reduce the reliance on ineffective, short-term custodial sentences with a stronger emphasis on robust community sentences.

The Scottish Government proposes to draft legislation to include an electronic monitoring option as part of a CPO. A restricted movement requirement using electronic monitoring can, at present, be applied by the court as a result of a breach of a CPO. If electronic monitoring were a requirement of a CPO then this may no longer be required.

Question 5: Should electronic monitoring be an optional requirement of a CPO when it is initially imposed?

4.1 52 respondents (83%) answered this question. Of these, 46 (88%) agreed that electronic monitoring should be an optional requirement of a CPO when initially imposed; 6 respondents (12%) disagreed. Those disagreeing comprised four individuals, one partnership and one private sector respondent.

Question 5a: Please give reasons for your answer.

4.2 48 respondents (76%) answered this question. Three main reasons emerged for supporting the proposal.

4.3 20 respondents, largely partnerships, third sector and individuals, envisaged benefits of reducing reoffending and supporting rehabilitation, by imposing electronic monitoring at imposition of a CPO, on a case-by-case basis, and within a robust package of support for the individual. The need for clear objectives in each case was identified, with support and supervisory professionals clear on these aims and how to manage risk.

4.4 16 respondents, across a wide range of sectors, provided their view that imposing electronic monitoring in conjunction with a CPO would strengthen the CPO and/or open up its benefits to a wider spectrum of individuals ( e.g. those for whom an alternative may have been custody).

4.5 Eight respondents, half of them partnerships and the remainder from a range of sectors, considered that the proposal made sense in terms of reducing what they perceived as the current inefficient and disjointed system whereby an individual has to receive two different orders, a CPO and a RLO.

4.6 Other significant rationales, each put forward by only a few respondents included:

• Research evidence suggests that the proposal will work effectively.
• Provides courts with an additional option at sentencing.
• Ensures greater involvement of social work in informing the decision to impose electronic monitoring as part of a CPO, enabling them to take on some responsibility for monitoring and compliance, and giving them greater flexibility to manage risk without having to make requests for review/variation to the conditions of the order.

4.7 Although supporting the proposal, three respondents (two from the justice sector) emphasised the need for clear explanation, in each case, of why electronic monitoring is being imposed for longer than 12 months.

4.8 Scottish Courts and Tribunals Service highlighted a potential impact of lengthening the combined order as increasing the number of breaches and applications to amend addresses and curfew times. This, they suggested, would impact on court time and associated staff and accommodation resources.

4.9 Amongst the reasons given by those opposing the proposal were:

• Provides no improvement on the status quo.
• Puts further pressure on criminal justice services.
• Caution over using this option as an alternative to prison or other sanctions which are effective.
• Keeping electronic monitoring as a threat for use if a CPO is breached provides an incentive, which helps compliance.

Electronic monitoring as an alternative to a fine

Fines are largely understood as purely punitive and not aimed at changing a person's attitudes and behaviour. Issues arise where a fine may impose undue hardship on an individual's family, and/or where it is impossible for a court to impose a fine that is proportionate to the seriousness of the offence because it would be beyond the means of the individual to pay it.

The Scottish Government proposes that in this context, a period of electronic monitoring could be an alternative to a fine, constituting a fine on time in the form of a curfew, rather than a fine on income. There would be no expectation of criminal justice social work support for electronic monitoring.

Question 6: Should electronic monitoring be introduced as an alternative to a fine?

4.10 50 respondents (79%) answered this question. Of these, 30 (60%) agreed that electronic monitoring should be introduced as an alternative to a fine; 20 respondents (40%) disagreed. Views were similar across organisations and individuals. Table 4.1 overleaf shows responses by category of respondent.

Table 4.1 Views on whether electronic monitoring should be introduced as an alternative to a fine by category of respondent

Category	Yes	No	Total responding
Partnerships	5	4	9
Third Sector	5	1	6
Justice Bodies	1	0	1
Private Sector	2	1	3
Local Authorities	1	1	2
Social Work Bodies	0	2	2
Health	1	0	1
Other	1	0	1
Total Organisations	16	9	25
Total Individuals	14	11	25
Grand total	30	20	50

Question 6a: Please give reasons for your answer.

4.11 54 respondents (86%) provided commentary, including those who did not answer question 6.

Views supporting electronic monitoring as an alternative to a fine

4.12 The most commonly identified benefit (24 mentions across a range of sectors) of introducing electronic monitoring as an alternative to a fine was that this could be deployed in cases where the offender cannot afford to pay a fine and the offender's wider family may be impacted due to the financial hardship a fine could bring.

4.13 Six respondents across four different sectors considered the proposal would bring the benefit of enabling behaviour change, over the purely punitive focus of a fine.

4.14 A few respondents considered electronic monitoring preferable to a fine where the individual is so wealthy that a monetary penalty has little meaning (4 mentions); and to avoid the resourcing which fines enforcement requires (4 mentions).

4.15 Other benefits of electronic monitoring as an alternative to a fine were highlighted each by three or fewer respondents:

• Avoids possibility of custody for fine default.
• Good for cases where paying a fine would impact negatively on women and children.
• Provides the court with greater flexibility in sentencing.
• Enables a sentence to be proportionate to the seriousness of the offence in cases of financial hardship.

Views opposing electronic monitoring as an alternative to a fine

4.16 The most common view (7 mentions across several sectors) was that electronic monitoring and fines are two different forms of sanction, serving different purposes, one rehabilitative and the other punitive, and therefore they cannot be considered as interchangeable.

4.17 Six respondents across a range of sectors suggested that instead of introducing electronic monitoring as an alternative to a fine, other sanctions could be of more benefit, such as those requiring pay back of some form, or of educational value.

4.18 Other reasons to oppose the proposal were mentioned, each by four respondents:

• Do not want to create a two-tier system whereby those who can afford it receive a monetary penalty, and those less well-off have their liberty restricted.
• The proposal will result in a loss of revenue from fines income; additional costs will result from the administration of electronic monitoring.
• Electronic monitoring is not suitable as a stand-alone option and would require a framework of support which is inconsistent with the purpose of an alternative to a fine.

4.19 A few other respondents commented on the proposal. There was a shared view that this option could be useful in exceptional cases but should not be introduced as routine. A few individual respondents expressed concern that electronic monitoring instead of a fine should not be viewed as an easier option; and if breached should not lead to a higher tariff response than would have been the case for fine default.

4.20 The Scottish Courts and Tribunal Service cautioned that there would be time implications resulting from the need for courts to obtain reports as to the suitability of electronic monitoring (and therefore adjournment of cases); and additional court time required to explain the conditions of, and consequences of not complying with an order; along with additional resources required to deal with applications for variance and any breach of orders.

Electronic monitoring as a condition of a Sexual Offences Prevention Order ( SOPO)

A SOPO is made for the purpose of protecting the public or particular members of the public from serious sexual harm. An order may prohibit the individual from doing anything specified in it, or positively oblige them to carry out a specified act or course of conduct. The duration of a SOPO cannot be for less than five years.

The SOPO regime could be amended so that compliance with a SOPO can be electronically monitored.

Question 7: Should electronic monitoring be permitted as a condition of a SOPO?

4.21 52 respondents (83%) answered this question. Of these, 50 respondents (96%) agreed that electronic monitoring should be permitted as a condition of a SOPO. Two respondents (a local authority and a partnership) disagreed.

Question 7a: Please give reasons for your answer.

4.22 48 respondents (76%) provided reasons to support their answer. A recurring view was that permitting electronic monitoring as part of a SOPO would be beneficial in strengthening SOPOs and adding value in the following ways:

• Providing the public and victims with more confidence.
• Increasing the chances of offenders complying with their SOPO.
• Re-enforcing the conditions of the SOPO.
• Enhancing the management of risk, enabling better management of location of offender ( e.g. enabling the establishment of boundary zones; times when school children will be entering/exiting school or on transport).

4.23 Other benefits identified by four or fewer respondents were:

• Increases the flexibility of the SOPO as an option.
• Efficient and cost-effective approach to monitoring offenders on SOPOs.
• There are examples of electronic monitoring being successfully permitted as a condition of SOPOs elsewhere.

4.24 Many respondents, from a wide range of sectors, qualified their support for this proposal, emphasising the need for robust risk assessment prior to permitting electronic monitoring as a condition of a SOPO. A few respondents, including three from the third sector, considered that there should be no automatic assumption that electronic monitoring would be permitted, but assessments for appropriateness should be undertaken, case by case.

4.25 Five respondents, across different sectors, emphasised their view that suitable support packages should be in place to underpin electronic monitoring. Four respondents, three of them partnerships, suggested that the duration of electronic monitoring should be regularly reviewed, and adjusted according to risk.

4.26 The local authority disagreeing with the proposal did so over concern that appropriate supervision and support needs of the offender may not be met, and indicated that if these were addressed, then they would support the proposal.

4.27 It was not clear why the partnership opposed the proposal.

Electronic monitoring as a condition of a Risk of Sexual Harm Order ( RSHO)

The Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 introduced the RSHO as a tool to achieve the goals of protecting children and of proactively targeting those who pose a risk. They are preventative orders which can prohibit an individual from doing anything specified in it, or positively oblige them to carry out a specific act or course of conduct.

There is no minimum age for an individual for whom an RSHO can be sought. The minimum duration of an order is two years.

Question 8: Should electronic monitoring be introduced as a possible condition of a RSHO?

4.28 51 respondents (81%) answered this question. Of these, 47 respondents (92%) agreed that electronic monitoring should be introduced as a possible condition of a RSHO; four respondents (8%) disagreed. Those disagreeing were from the categories: partnerships; third sector; and individuals.

Question 8a: Please give reasons for your answer.

4.29 41 respondents (65%) provided reasons for their answer. Several others simply referred to their response to question 7a).

4.30 The most frequent response provided (13 mentions) was that electronic monitoring enabled better risk management of offenders, for example, by offering the possibilities of setting exclusion zones, aimed at protecting the public from harm.

4.31 Other supporting rationales for electronic monitoring being introduced as a possible condition of a RSHO were provided each by five or fewer respondents:

• For better public protection.
• To expand the range of sanctions possible.
• Will increase public confidence and provide reassurance.
• Will increase likelihood of adherence to conditions of the RSHO.
• In order to gain monitoring information to inform further decisions on risk.

4.32 Many respondents qualified their support for the proposal emphasising the need for:

• Regular reviews in order to ensure proportionality and need for continued electronic monitoring.
• Robust assessment to ensure the sanction is tailored on a case-by-case basis and meets individual needs. This was viewed as particularly important, given the lack of age restriction.
• Statutory support to be in place for the offender and the family of the offender residing with them.

4.33 No clear, substantive reason was stated in opposition to the proposal. One justice body advocated mandatory prison for sex offences against children. An individual called for more institutional programmes to reduce sexual offences in preference to what was proposed. A partnership expressed concern that support may not be available to underpin the electronic monitoring order.

Electronic monitoring as a condition of a Structured Deferred Sentence ( SDS)

The SDS is a low-tariff intervention offering the courts the option to provide a short period (usually around 3 - 6 months) of intensive supervision by criminal justice social work to those who offend. This supervision takes place post-conviction but prior to final sentencing as it is a condition of the court deferring sentence.

SDS with electronic monitoring could provide more structure to the intensive supervision for all or part of the deferral period, and may facilitate SDS for higher-tariff individuals.

Question 9: Should electronic monitoring be introduced as a possible condition of a SDS?

4.34 50 respondents (79%) answered this question. Of these, 37 respondents (74%) agreed that electronic monitoring should be introduced as a possible condition of a SDS; 13 respondents (26%) disagreed. A few individual respondents did not respond as they did not know what " SDS" was. Table 4.2 overleaf shows responses by category of respondent.

4.35 Individual respondents were more supportive of the proposal than organisations, with 80% of the former compared with 70% of the latter, in favour.

Question 9a: Please give reasons for your answer.

Views in favour of electronic monitoring being introduced as a possible condition of a SDS

4.36 Most commonly, respondents considered that electronic monitoring could be usefully introduced as a possible condition of a SDS in the context of a tailored, individualised approach where circumstances suggested that this could be helpful to the individual. A few respondents emphasised that circumstances such as impact on those living with the individual should be part of the consideration of this option; and clear reasons for introducing electronic monitoring should be provided.

4.37 A few respondents identified potential benefits as:

• Generating helpful information for the court to use at time of sentence (5 mentions).
• Providing an alternative option to custody for higher tariff offences (5 mentions).
• Potentially helping desistance from further offences and thereby providing reassurance to the public (5 mentions).

Table 4.2 Views on whether electronic monitoring should be introduced as a possible condition of a SDS

Category	Yes	No	Total responding
Partnerships	6	4	10
Third Sector	6	1	7
Justice Bodies	3	1	4
Private Sector	2	1	3
Local Authorities	1	1	2
Social Work Bodies	1	1	2
Health	1	0	1
Other	1	0	1
Total Organisations	21	9	30
Total Individuals	16	4	20
Grand total	37	13	50

Concerns over electronic monitoring being introduced as a possible condition of a SDS

4.38 The predominant concern, raised across several sectors, was that associating electronic monitoring with SDS risked "up tariffing" SDS. One justice respondent explained their view that SDS is a low tariff intervention, whereas electronic monitoring introduces higher tariff elements of restriction; likewise, a partnership argued that the use of electronic monitoring with a SDS amounted to "tariff creep" with electronic monitoring a disproportionate sanction compared with the low tariff SDS. A few respondents considered that deploying electronic monitoring in this context risked "net widening" and dilution of impact.

4.39 Other concerns each raised by only one or two respondents were:

• Electronic monitoring is too intrusive in this context.
• Inconsistent with the focus on self-help and trust which underpins SDS.
• Would need a supervision package to accompany electronic monitoring.
• Not needed. SDS provides sufficient structure and intervention.
• If there is risk to be managed, then some other sanction which involves statutory supervision should be deployed.