Electronic monitoring in Scotland: consultation on proposals for legislation

Introduction

Our vision for a safer, fairer and more inclusive nation sees us moving towards a society where those who have been victims of crime can feel safer and more reassured and those with a history of offending can be supported to be active and responsible contributors to our communities as fellow citizens.

That vision reflects the values of a modern and progressive nation:

• where we prevent and reduce further offending by addressing its underlying causes;
  
• where we safely and effectively manage and support those who have committed offences to help them reintegrate into the community and realise their potential for the benefits of all; and
  
• where the protection of victims of crime and public safety is prioritised.

We believe that electronic monitoring has a role to play in supporting this vision. From continuing to offer a method of control over an individual's movements and expanding this offer, to implementing new uses to support both reintegration and rehabilitation to prevent and reduce further offending.

While there will always be a need for prison sentences in some instances, evidence shows that community sentences and community justice alternatives have an important role in helping to change the behaviour of those who offend. Like prison, electronic monitoring is not suitable for everyone, but set within a wider package of care it can be used effectively as part of a credible community sentence which is effective at reducing reoffending in the longer term.

With the above in mind and the introduction of the new model for community justice from 1 April 2017, the time is now right to take a more ambitious approach to how we use the opportunities afforded to us by electronic monitoring. We believe that this approach, which has been directly informed by the work of the Electronic Monitoring Expert Working Group, will further the aims of improving outcomes for individuals and communities across Scotland who have been impacted by crime and offending.

This consultation paper sets out the legislative proposals which we propose to take forward to both enable the new uses of electronic monitoring and introduce new technologies to make the most out of what international evidence suggests.

While legislation is necessary, a great deal will be taken forward in raising awareness, encouraging use and developing new approaches. This will involve a range of individuals and organisations working together in partnership, including people who have been victims of crime and people with a history of offending.

Use of electronic monitoring

Electronic monitoring was first piloted in Scotland in 1998, before being rolled-out nationally in 2002 as a Restriction of Liberty Order which is imposed only by Courts. Since 2002, as confidence in the use of the technology increased, an understanding has developed as to how electronic monitoring could be used more widely. It is now used to monitor a number of different community disposals as well as being included as a licence condition on release from prison. Electronic monitoring is versatile and has grown organically to become a well-established feature of the criminal justice system in Scotland.

Current legislation now allows for electronic monitoring in Scotland to be used for the following purposes:

• As part of a Restriction of Liberty Order ( RLO);
• As a licence condition for the purposes of Home Detention Curfew ( HDC);
• As a licence condition imposed following early release from prison;
• As part of a Restricted Movement Requirement ( RMR) imposed for breach of a Community Payback Order ( CPO);
• As a condition of a Drug Treatment and Testing Order ( DTTO); and
• As a Movement Restriction Condition ( MRC) for young people imposed by a Children's Hearing.

Scotland currently only uses radio frequency ( RF) technology to monitor around 1,000 people each day. Radio frequency has proven to be an effective technology to monitor when an individual enters or leaves a specific address, either as part of a curfew or - far less frequently - where an exclusion zone has been set up to protect a victim, be that an individual or a business. An electronic tag is usually worn around the ankle and communicates with a home monitoring unit via a radio frequency signal. The information that the tag sends to the home monitoring unit provides information about a person's movements within an agreed location. A more detailed description of the electronic monitoring technology currently used in Scotland can be found at Annex B.

The current legal basis for electronic monitoring

Further information on the legal basis for electronic monitoring in Scotland is provided at Annex D. The changes proposed in this consultation would require both primary legislation and subordinate legislation. Where subordinate legislation under existing powers would be required to implement the changes proposed, it is likely that some amendment to those existing powers would also need to be made.

Costs of electronic monitoring in Scotland

The annual cost of electronic monitoring in Scotland in 2015/16 was £2.6m. This figure included both the installation and monitoring costs. In the same year the average caseload was typically around 853. This meant that on a daily basis the average cost per person monitored was about £8.43 per day. To date in the year 2016/17 the average caseload number is about 1000.

Informing a New Strategy for Electronic Monitoring in Scotland

Following a Scottish Government consultation in 2013 the Electronic Monitoring Expert Working Group was established to consider how electronic monitoring could be better used within the criminal justice system in Scotland. The Working Group's aim was to align electronic monitoring with existing efforts to aid desistance, support integration, protect victims, support public protection and help reduce further offending.

In the summer of 2016, the Working Group delivered a report to the Cabinet Secretary for Justice setting out recommendations on how the use of electronic monitoring as a tool should be taken forward in Scotland. The report contained eight recommendations.

Both the report and its recommendations were informed by international evidence, partner and stakeholder engagement at both national and local level along with the knowledge and expertise of the group members.

The focus of the report is the potential to extend the use of electronic monitoring to different points in the criminal justice system and within the prison estate. To ensure that electronic monitoring is used most effectively the Working Group's recommendations focussed on the need for it to be used as part of a goal-oriented and person-centred approach, tailored to the individual. Where longer term desistence is the ultimate goal, electronic monitoring should be set within a wider package of support provided by statutory bodies with third sector involvement.

The Working Group concluded that they wished to see a more extensive, more consistent and more strategic use of electronic monitoring in Scotland. The Working Group did not see electronic monitoring as more important than the existing array of community interventions, but it did believe that a better and more integrated use across the criminal justice system could enhance those interventions. We believe that the discretion to use electronic monitoring, within frameworks established and promoted by the Scottish Government, will rest with professionals involved in practice and sentencing. However, there should be much less geographical variation in its use than exists at present, whilst recognising that such variation is not unique to electronic monitoring and has complex causes in local criminal justice cultures.

The more strategic use envisaged by the Working Group has three aspects:

1. To use electronic monitoring in more integrated ways, alongside a range of supportive measures, to help prevent and reduce further reoffending and promote desistance among people with convictions;

2. To enhance the protection and security of victims of crime in ways that other community interventions are unable to do; and

3. By offering a greater degree of control in the community, to make the use of electronic monitoring more appealing to sheriffs as an alternative to custody, in particular short-term sentences and remand.

The Working Group recommendations (full list attached at Annex C), focus on:

1. Technology;

2. Future service delivery;

3. A goal-oriented and person-centred approach;

4. Compliance;

5. Future uses of electronic monitoring: in the community;

6. Future uses of electronic monitoring: within the Custodial Estate;

7. Legislative change; and

8. Encouraging ownership of electronic monitoring.

The Cabinet Secretary for Justice has accepted both the strategy put forward by the Working Group in their report and the recommendations.