Electronic monitoring in Scotland: consultation on proposals for legislation

Annex D: Legal Background

All forms of electronic monitoring in Scotland have a statutory basis; whether imposed by a court following conviction or as a licence condition following release from prison.

• Under section 245C of the Criminal Procedure (Scotland) Act 1995, electronic monitoring can be imposed by a court in order to remotely monitor compliance with a Restriction of Liberty Order ( RLO);
• Under sections 12AA and 12AB of the Prisoners and Criminal Proceedings (Scotland) Act 1993, electronic monitoring must be imposed for the purposes of remotely monitoring compliance with a curfew condition imposed for the purposes of Home Detention Curfew ( HDC);
• Under section 40 of the Criminal Justice (Scotland) Act 2003, and section 245C of the Criminal Procedure (Scotland) Act 1995, electronic monitoring may be imposed as a licence condition following a prisoner's release from prison under Part 1 of the 1993 Act. An electronic monitoring licence condition is for the purpose of remotely monitoring compliance with licence conditions and the prisoner's whereabouts other than for the purpose of compliance with licence conditions;
• Under sections 227ZI and 245C of the Criminal Procedure (Scotland) Act 1995, electronic monitoring can be imposed by a court in order to remotely monitor compliance with a Restricted Movement Requirement imposed for breach of a Community Payback Order;
• Under sections 234CA and 245C of the Criminal Procedure (Scotland) Act 1995, electronic monitoring can be imposed by a court in order to remotely monitor compliance with a Drug Treatment and Testing Order ( DTTO);
• Under regulation 7 of the Children's Hearings (Scotland) Act 2011 (Movement Restriction Conditions) Regulations 2013 ( SSI 2013/210), electronic monitoring may form part of a movement restriction condition which is imposed as part of a compulsory supervision order made in relation to a child by a Sheriff or a Children's Hearing.

The Scottish Ministers have powers to prescribe the methods of monitoring compliance with RLOs, restricted movement requirements and DTTOs. The Ministers also have a duty to specify the devices which are to be used for electronically monitoring compliance with RLOs, restricted movement requirements, DTTOs, HDC curfew conditions, and electronic monitoring licence conditions. The power to prescribe the methods of monitoring and the duty to specify devices that may be used for electronic monitoring have been exercised in the Restriction of Liberty Order etc. (Scotland) Regulations 2013 ( SSI 2013/6) ("the 2013 Regulations").

Regulation 4 of the 2013 Regulations prescribes the permitted methods of monitoring compliance with a RLO, restricted movement requirement and a DTTO as: the use of radio frequency technology, periodic telephone calls to the offender and random visits to the offender's place of curfew during periods of restriction. If any new methods of monitoring compliance with these orders are to be introduced (such as GPS monitoring or alcohol monitoring), those new methods would require to be added to the 2013 Regulations. This would require further subordinate legislation.

If more substantive changes are to be made to electronic monitoring (such as the extension of electronic monitoring to other forms of sentence or the use of more intrusive methods of electronic monitoring) primary legislation may be required.

Any modification of existing uses of electronic monitoring and any extension of electronic monitoring would still require to be within the legislative competence of the Scottish Ministers. Any policy proposal would require to be compatible with the rights of prisoners under the European Convention on Human Rights ( ECHR), and the law on reserved matters. A modification of the existing electronic monitoring regime could result in additional information being collected about a prisoner. If that is the case, the Scottish Ministers must ensure that the collection, use, retention and destruction of that data complies with the requirements of the Data Protection Act 1998.