Electronic monitoring in Scotland: analysis of consultation responses

5. Alternative to Remand and Support to Pre-Trial Conditions

Electronic monitoring as an alternative to remand

Using electronic monitoring as an alternative to remand opens up opportunities to reduce the use of remand and support more people in the community pre-trial, without losing sight of the need to ensure public safety. This could be used on a stand-alone basis or part of a bail supervision order.

An electronic monitoring bail condition would be intended to be used as an alternative to remand, i.e. where an individual would not normally have received bail without electronic monitoring. It is not intended to apply an electronic monitoring bail condition to those who would not have received bail in any case.

Question 10: Should electronic monitoring be introduced as an alternative to remand?

5.1 53 respondents (84%) answered this question. Of these, 47 respondents (89%) agreed that electronic monitoring should be introduced as an alternative to remand; six respondents (11%), all individuals, disagreed.

Question 10a: Please give reasons for your answer.

5.2 58 respondents (92%) provided commentary in response to this question (five more than responded to question 10).

Perceived benefits of electronic monitoring as an alternative to remand

5.3 The perceived benefit identified most frequently (24 mentions, with every respondent sector represented) was that this would avoid what was viewed as the detrimental impact of custody on those not yet convicted:

"Remand is harmful to an unconvicted person's economic and social currency, and will introduce them to a prison culture which is also seen as detrimental in terms of potential progression" (Scottish Association of Social Workers).

5.4 Custody was viewed as impacting negatively not only on the individual, but on their wider networks of family, employment and social functioning.

5.5 Another perceived benefit emerging across a range of sectors (15 mentions), was that the proposal would help to ease the prison population, by providing another credible option to remand, and ensuring judicial confidence in imposing this.

5.6 Three respondents (from health, third sector and an individual) explicitly mentioned the potential of this proposal to enable more women to avoid custody on remand, commenting that women are disproportionately represented amongst the remand population.

5.7 Ten respondents from five different sectors identified a potential increase in cost-effectiveness as a result of electronic monitoring as an alternative to remand, due to a reduction in costs of prison and costs of police intervention required in relation to bail supervision. However, one justice body highlighted that the proposal would lead to additional court costs in terms of additional time needed, for example in obtaining reports and dealing with breaches.

5.8 Seven respondents across four different sectors considered that electronic monitoring as an alternative to remand provided the opportunity for individuals to demonstrate compliance, and begin their rehabilitation journey, leading to reduced risk of re-offending in future.

Qualified support

5.9 A recurring view amongst many of those expressing support for the proposal was that electronic monitoring in this context should be applied only after robust risk assessment, involving not only the individual, but those they live with, and also the likely impact of using this alternative on victims:

"…it is essential to obtain the victim's prior consent and to make sure as far as possible that the victim understands the capacities and limitations of the technology. While EM offers a community based alternative to short custodial sentences, which is likely to reduce offending, it should also be recognised that prison sentences offer victims of crime a sense of security and respite not available in other forms of intervention" (Victim Support Scotland).

5.10 Seven respondents, largely third sector and partnerships, emphasised the need for an appropriate framework of regulation to support the proposal. In particular, there needed to be a clear protocol for handling breaches, and limits on time spent being electronically monitored ( e.g. if a case is delayed).

5.11 Four respondents (individuals and third sector) urged that use of electronic monitoring should be proportionate to the alleged offence, with a few suggesting that compliance should result in a sentencing discount, as appropriate.

5.12 Two respondents (individual and a third sector) considered that electronic monitoring should be applied only where an individual has given informed consent, with their rights and options explained to them.

Concerns and challenges

5.13 A local authority identified "systemic issues" which could impact on the efficiency of introducing electronic monitoring as an alternative to remand, such as the need for the court to assess the home situation; the need for information to be given to supervisory staff; and so on, all of which could lead to initial delays. It was suggested that a short period on remand may be necessary to sort out accommodation issues, prior to electronic monitoring.

5.14 Amongst those opposing the proposal, some individuals expressed concern that the risks were too high in terms of potential for further offending and intimidation of witnesses. A third sector respondent commented that electronic monitoring will not prevent perpetrators attempting non-physical contact, via telephone, email, social media, text messages, using family or acquaintances to harass and intimidate women or engineering "chance" encounters with women and children outside monitored areas.

Question 10b: If you answered yes to Question 10, when would you consider this appropriate?

5.15 45 respondents (71%) answered this question. Overarching views were that any decision on using electronic monitoring should be based on robust assessment of risk and the individual circumstances of the person and the context.

5.16 The criterion identified most frequently for decision-making on electronic monitoring was nature of offence (18 mentions, largely partnerships and individuals). Recurring views were for use as an alternative to remand where the alleged offence is low tariff; a first offence; non-violent; and would not be likely to result in custody if the individual is subsequently convicted.

5.17 Sixteen respondents across a range of sectors referred to risk as central to decisions on using electronic monitoring as an alternative to remand. Some suggested use only in cases were risk of re-offending was low; others considered use where risk could be managed or where there is no other reason for remand, but witnesses and victims may need protection.

5.18 A few respondents focused their response on the reasons for remand and suggested that where remand is deployed due to reasons such as no fixed abode, or to allow for reports to be prepared, then electronic monitoring could usefully be part of an alternative intervention.

5.19 A few respondents considered that individual circumstances such as employment, family life, caring responsibilities, and attitude of individual towards rehabilitation, should all be part of the decision on use of use of this option.

5.20 A few respondents emphasised their view that where an individual would have been bailed anyway, electronic monitoring should not be used.

Police Liberation on Undertakings and Investigative Liberation

It is proposed that legislative provisions will be introduced to provide Police Scotland with the option to restrict an individual's movement whilst they are released on pre-trial conditions via the use of electronic monitoring.

Police Liberation on Undertakings are used by the police routinely to release people from police stations when they have been charged, arrested and liberated to appear at a specified court on a specified date and time.

Investigative Liberation allows the police to arrest a person for a crime punishable by imprisonment, interview them and release them pending further enquiries, such as waiting for forensic evidence.

It is considered that the introduction of electronic monitoring as a condition of a Police Liberation on Undertakings or as a condition of Investigative Liberation, could strengthen the protection arrangements for victims and witnesses.

Question 11: Should electronic monitoring be permitted as a condition of Police Liberation or Investigative Liberation?

5.21 50 respondents (79%) answered this question. Of these, 33 respondents (66%) considered that electronic monitoring should be permitted as a condition of Police Liberation or Investigative Liberation; 17 respondents (34%) disagreed. Table 5.1 shows views by category of respondent.

Table 5.1 Views on whether electronic monitoring should be permitted as a condition of Police Liberation or Investigative Liberation

Category	Yes	No	Total responding
Partnerships	5	4	9
Third Sector	7	0	7
Justice Bodies	1	0	1
Private Sector	3	0	3
Local Authorities	1	1	2
Social Work Bodies	0	2	2
Health	1	0	1
Other	0	1	1
Total Organisations	18	8	26
Total Individuals	15	9	24
Grand total	33	17	50

5.22 Views in favour or against the proposal were largely sector-specific. All third sector, private sector, justice and health respondents who provided a view supported the proposition. Social work and other respondents were against. Individuals, partnerships and local authorities were divided in opinion.

Question 11a: Please give reasons for your answer.

5.23 42 respondents (67%) provided reasons to support their view.

Views in favour of proposal

5.24 The following key reasons in favour of the proposal to permit electronic monitoring as a condition of Police Liberation or Investigative Liberation were provided, each by six or fewer respondents:

• Strengthen protection for witness and victims.
• Reduces use of police custody.
• Prevents the damage done to individuals and their wider networks by spending time in custody.
• Helps to ensure compliance, reduce re-offending, and increases likelihood of appearing in court at the due time.
• Cost-effective.

Concerns over the proposal

5.25 A general theme was that more information is required and regulations developed, prior to further consideration of the proposal. Questions were raised over how assessments of suitability would be undertaken; who would deal with breaches; what would constitute a breach; guidance on when other options such as diversion from prosecution or arrest referral, should take place; cost-benefit analysis; monitoring arrangements; and use of and data security around monitoring data gathered from the process.

5.26 Two prominent concerns were about:

• Civil liberties

Concerns expressed related to issues of informed consent; data protection; privacy; particularly where the individual has not been charged.

• Proportionality

With no specific time limit set for the duration of electronic monitoring, delays in proceedings, holidays, and weekends, could all delay court hearings and lead to monitoring over extended periods, out of proportion to the tariff of the alleged offence.

5.27 Other concerns expressed by only one or two respondents were: "up tariffing" individuals prior to being convicted; there will be no provision of support to underpin the use of electronic monitoring; does not add value to the current options.

Question 11b: If yes, when would you consider this appropriate?

5.28 22 respondents (35%) answered this question. A few respondents, largely third sector, emphasised their view that the proposal is appropriate only where the individual would otherwise be put into police custody.

5.29 Whereas a few respondents considered that electronic monitoring should be permitted as a condition of Police Liberation or Investigative Liberation where they posed no risk to the public, others suggested its use in such circumstances, where the public need to be protected.

5.30 Three respondents (two third sector, one partnership) were of the view that the proposal is appropriate where there is a risk of the individual absconding and/or not adhering to the agreement put in place at liberation.

5.31 An individual and a respondent from the health sector considered the proposal appropriate only in relation to low tariff offences; another individual envisaged this being deployed in cases of domestic abuse or sexual offences.