Electronic monitoring in Scotland: analysis of consultation responses

8. Electronic Monitoring Equipment

Safe return of the monitoring equipment

Any electronic monitoring condition places a requirement on the monitored person not to damage or tamper with the electronic monitoring equipment. By doing so, the monitored person is breaching their order and is at risk of being recalled to custody or returned to court.

In Scotland, there is a provision within the contract for the return of the equipment and for the majority of individuals monitored, this provision is satisfactory. This requires the service provider to make arrangements with the monitored person to uplift the equipment at a time suitable to that person. However, in some instances the electronic monitoring service provider is unable to gain access, for example, when the monitored person lives alone and is returned to custody. There is no legal right for any agency to enter the address without the person's consent.

Question 14: Who should be responsible for the safe return of the monitoring equipment?

8.1 50 respondents (79%) answered this question. Table 8.1 shows views by category of respondent.

Table 8.1 Views on who should be responsible for the safe return of the monitoring equipment

Category	Person being monitored	Monitoring agency	Other suggestion	Total responding
Partnerships	6	5	0	11
Third Sector	1	2	2	5
Justice Bodies	0	2	0	2
Private Sector	3	0	0	3
Local Authorities	0	2	0	2
Social Work Bodies	0	2	0	2
Health	0	0	0	0
Other	0	1	1	2
Total Organisations	10	14	3	27
Total Individuals	13	5	5	23
Grand total	23	19	8	50

8.2 23 respondents (46%) considered that the person being monitored should be responsible for the safe return of the monitoring equipment, albeit taking into consideration especial arrangements for certain circumstances, for example hospital admission, or the person taken into custody. A few respondents suggested that the responsibility for safe return of equipment should be made clear at the start of the period of monitoring, with the person agreeing to this as a condition of being monitored.

8.3 19 respondents (38%) considered that the monitoring agency should be responsible, with the risks associated with securing safe return of equipment reflected in their tender for providing the service.

8.4 The other suggestions comprised: joint responsibility between client and provider agency (4 mentions); joint responsibility between client and their solicitor (1 mention); Scottish Prison Service (1 mention); and the "Working Group" (1 mention). One respondent commented that if the monitoring equipment stores personal data in any capacity, then according to the Data Protection Act 1998, responsibility currently falls to the data controller to ensure appropriate processes are in place to retrieve and protect the equipment.

8.5 Table 8.1 shows that individual respondents were more likely than organisations to place the responsibility for safe return of equipment onto the person being monitored (57% of individuals compared with 37% of organisations who provided a view). Organisations were more likely to consider the monitoring agency held this responsibility (52% of organisations, compared with 22% of individuals).

Question 14a: Should there be sanctions for not doing so?

8.6 49 respondents (78%) answered this question. Table 8.2 overleaf shows views by category of respondent.

8.7 37 (76%) of those providing a view were in favour of sanctions; 12 respondents (24%) were against. There was a difference between the views of individual respondents and organisations, with 92% of individuals compared with 58% of organisations, in favour of sanctions.

Table 8.2 Views on whether there should be sanctions for failure to return monitoring equipment safely

Category	Yes to sanctions	No sanctions	Total responding
Partnerships	5	5	10
Third Sector	2	1	3
Justice Bodies	2	0	2
Private Sector	3	0	3
Local Authorities	1	1	2
Social Work Bodies	1	1	2
Health	0	1	1
Other	0	1	1
Total Organisations	14	10	24
Total Individuals	23	2	25
Grand total	37	12	49

Question 14b: If you answered yes, what do you consider these sanctions to be?

8.8 35 respondents (56%) answered this question. Responses were general rather than specific, with many respondents commenting that sanctions depended on the circumstances of each case; or that tampering with equipment, vandalism or theft, should be dealt with as any other case, under existing legislation. A few respondents suggested a sliding scale of sanctions, starting with an early warning.

8.9 Eight respondents (four individuals; three private companies; and a partnership) envisaged some form of financial penalty for failure to return the monitoring equipment safely. Three (two individuals and one third sector) suggested that the offender be asked to pay costs to replace the equipment. One individual considered that unpaid work would be an appropriate sanction; two individuals suggested extending the electronic monitoring period; one individual suggested excluding the offender from receiving an electronic monitoring order for a set period.

Question 14c: If the sole key holder to a property is not available, should a legal right of access be given to Scottish Ministers (and their agents) to enter a property to recover their equipment?

8.10 50 respondents (79%) answered this question. Table 8.3 shows views by category of respondent.

Table 8.3 Views on whether there should be a legal right of access given to Scottish Ministers (and their agents) to enter a property to recover equipment

Category	Yes - legal right to enter	No legal right to enter	Total responding
Partnerships	8	3	11
Third Sector	3	0	3
Justice Bodies	2	0	2
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	19	6	25
Total Individuals	21	4	25
Grand total	40	10	50

8.11 40 respondents (80%) agreed that if the sole key holder to a property is not available, then there should be a legal right of access given to Scottish Ministers (and their agents) to enter a property to recover their equipment. 10 respondents (20%) disagreed. Individuals and organisations displayed a similar pattern of response on this issue.

Question 14d: If you answered yes, should this access only be via a court warrant?

8.12 40 respondents (63%) answered this question. Of these, 29 (72%) considered that access should only be via a court warrant; 11 (28%) disagreed. Table 8.4 overleaf shows views by category of respondent.

Table 8.4 Views on whether access to a property to recover equipment should only be via a court warrant

Category	Only via court warrant	Need not be only via court warrant	Total responding
Partnerships	6	1	7
Third Sector	2	1	3
Justice Bodies	2	0	2
Private Sector	1	2	3
Local Authorities	1	0	1
Social Work Bodies	1	0	1
Health	1	0	1
Other	1	0	1
Total Organisations	15	4	19
Total Individuals	14	7	21
Grand total	29	11	40

8.13 Organisations expressed stronger support than individuals for access only via a court warrant, with 79% of organisations compared with 67% of individuals in favour.

Question 14e: Please include any further comments below

Views in favour of access only via a court warrant

8.14 Many reasons were provided in favour of access only via a court warrant, each mentioned by three or fewer respondents:

• Provides the legal basis for entering a property.
• Reduces costs of unreturned equipment.
• Is consistent with other situations where permissions are granted for entry, e.g. for energy providers recovering meters.
• Provides reassurance to the public that the judiciary have considered the circumstances prior to permitting this action.
• Acts as an incentive for the safe return of equipment.
• Secures and protects the rights of the individual and agency.
• Ensures the process is clear and transparent.

Views opposed to access only via a court warrant

8.15 A few individuals suggested that legal right to access should be encompassed in the rules of use of electronic monitoring, as a condition of the order, with the individual agreeing to this when agreeing to become monitored.

8.16 A few respondents, from a range of sectors, considered that only those with appropriate training and tools for entering a property should perform this action, with police officers, social workers, housing officers, and representatives of third sector organisations, identified as such.

8.17 One individual suggested that a warrant is unnecessary as this is not required to gain entry to a prisoner's cell.