Electronic monitoring in Scotland: consultation on proposals for legislation

Part 1: Exploiting the opportunities afforded by new technologies

We accept the view put forward by the Working Group that the technology, in itself, should not dictate how and in which circumstances electronic monitoring should be used.

Scotland presently uses radio frequency technology in a standalone mode mainly as a method of monitoring compliance with a court order following conviction or monitoring compliance with a condition of release from prison. This technology is an effective way to monitor an individual's presence at a place for up to 12 hours a day, or their remaining away from a place for 24 hours a day. There is still a place for the use of radio frequency technology in standalone mode or used with an integrated package of support, but in keeping with the proposed new strategy for electronic monitoring in Scotland, we also see a role for the introduction of new technologies to operate alongside the existing technology.

We recognise that any introduction of such technologies must be done in a manner which respects the goal-oriented approach, together with matters of data protection and public protection.

We also recognise that the introduction of new technologies will require significant investment in both awareness and potentially the training of professionals in its application. Full practice guidance will be developed to support any new introduction.

There may also be a requirement to update relevant national standards and guidance, such as for criminal justice social work and the Scottish Prison Service.

Global Positioning Systems Technology

We propose to legislate for the introduction of Global Positioning Systems ( GPS) technology in Scotland in support of both current and new uses of electronic monitoring.

GPS technology enables the monitoring of movement over a wide area rather than the monitoring of presence at a single location. GPS technology allows for larger or more sophisticated exclusion zones, tailored, if necessary, from a house, to specific street patterns, to a neighbourhood, to a whole city. GPS also allows more than one exclusion zone to be set. Using GPS technology to set exclusion zones can help create safe spaces for victims of crime.

GPS also allows for the setting of inclusion zones of varied shapes and size. Using GPS technology to set an inclusion zone limits a monitored person's movements to remaining within a defined geographical area, setting up an external perimeter in which, for a specified period of time, they are contained. GPS can be tracked

real-time if 24/7 monitoring is required or retrospective tracking if less immediate deterrence is required.

GPS technology can be combined with a requirement for an overnight curfew (or shorter period), to ensure that a person wearing a tracker is obliged to return home to charge it. While the public image of GPS tracking is literally one of "anytime-everywhere" monitoring of movement, usually in real time, this may not be the best - and certainly not the only - way to help manage individuals in the community.

We do not intend to introduce blanket approaches to particular types of offences nor restrict the use of technologies to low or high impact crimes.

Question 1: Do you agree that we should introduce legislation to permit the use of GPS technology for electronic monitoring?

Yes ▢ No ▢

Question 1a: Please give reasons for your answer

Question 1b: Who do you consider should determine which technology ( RF or GPS) should be used in each case?

The Judiciary ▢ Scottish Prison Service ▢

Criminal Justice Social Work ▢ Other (please specify below) ▢

Question 1c: What factors do you think should be taken into consideration when deciding which technology should be used?

Buffer zones

GPS exclusion zones can include a buffer zone, an area that is set just outside an exclusion zone to which entry generates an early alert to possible boundary encroachment. As the buffer zone is set outside an exclusion zone, by entering this area the individual is not technically breaching their order conditions, but it does allow for the possibility of those monitoring the individual to take action to prevent them from encroaching on the exclusion zone. This may be of particular benefit where the exclusion zone relates to the victim of the crime.

Question 2: What response, if any, should there be to an infringement of a buffer zone?

Crime type

We do not propose to restrict or mandate the use of GPS for any particular crime type.

Decisions on the use of GPS must be based on an appropriate risk assessment to ensure public protection, consideration of victim safety and take into account both an individually tailored approach and support to the monitored person's desistance.

Keeping a Goal-Oriented Approach in Mind

We intend to introduce GPS technology to different points in the justice system in Scotland, both within a community setting and within the custodial estate.

Electronic monitoring can be used at different levels of intensity. It is never the technology which is proportionate to the offence itself but the rigour and duration of the schedules which are used to support and enforce it. In keeping with the accepted broader strategy, the use of technologies must always be within a goal-oriented approach.

Domestic Abuse

We are considering how GPS technology can offer victims more choice and support their safety in the community.

Internationally there has been wide spread interest in the use of GPS tracking in the context of responses to domestic abuse, particularly at the pre-trial stage. The goal in this instance is to keep the alleged perpetrator and the victim apart from each other. This is done by tracking the former and placing an exclusion around the latter, and in some instances giving the victim a mobile alarm which alerts them, the police or electronic monitoring service provider if the perpetrator comes within proximity of the victim (accidentally or deliberately).

Devising a model of electronic monitoring in a domestic abuse context is complex and can be contentious, but there is evidence from the U.S. that suggests some victims, though not all have found it useful. The Working Group is clear that GPS tracking is not in itself a full solution to the risks posed by domestic abuse perpetrators (alleged or sentenced); let alone a means of changing attitudes or behaviour. It can, however, add a level of control in situations where none (or little) existed before.

Voluntary GPS schemes for people who offend persistently

We propose to bring forward legislative proposals for GPS technology to provide for voluntary schemes for people who have a persistent history of offending.

Voluntary GPS schemes have been on-going in other jurisdictions for some time and can provide some individuals with an additional motivation/incentive to change their reoffending habit. Voluntary agreement to being tagged allows the persistent offender to demonstrate their desire to desist to their family and friends. In addition to providing a deterrent to reoffending, it can play a role in creating a more structured lifestyle for some persistent offenders giving the individual a chance to find stable housing, seek employment and foster positive relationships. Essentially it can provide opportunities where individuals can pursue, with the appropriate support in place, factors which the evidence tells us are vital to breaking out from the cycle of reoffending.

We see potential value in a voluntary scheme being undertaken in Scotland, subject to stringent arrangements for its usage:

• there must be clear criteria for such a scheme being offered;

• this would not be as part of a surveillance programme of an individual;

• as with all other forms of electronic monitoring, there must be the written consent of the monitored person, including relating to the use of their data;

• there will be strict rules in place governing the collection, use, retention and destruction of any data associated with an individual's movements;

• the use of such a scheme must be in conjunction with a wider support package being offered, with a view to aiding desistance to prevent and reduce further offending;

• due to its voluntary nature, there will be no breach of such a scheme but any infringements would be discussed as part of the support package; and

• such a scheme would be for a specified time period for each individual.

Voluntary schemes could be offered to those who have fully completed their sentence, whether community or custodial, or those subject to another community sentence to provide additional motivation/incentive.

Question 3: Do you agree that we should introduce legislation to permit a voluntary GPS scheme?

Yes ▢ No ▢

Question 3a: If you answered yes, who should be eligible, how would this operate and who should manage the scheme?

Alcohol Monitoring Technologies

The use of alcohol as a factor in offending in Scotland is well documented, with the Working Group considering the use of Transdermal Alcohol Monitoring. This is where ankle bracelets are used to detect the presence of alcohol when it is sweated out through the skin (transdermally).

In addition, technology also exists to allow individuals to have their alcohol consumption monitored with the use of a breathalyser (which can be incorporated into a monitoring unit). Such testing could be scheduled and/or random.

The Working Group recognised that evidence showed that to be effective, any use of alcohol monitoring requires being set within a legal framework. This will be required for both voluntary schemes and statutory orders.

We welcome the conclusion of the Working Group and believe that further research and practical exercises are required before decisions can be taken as to how to introduce alcohol monitoring technologies in Scotland. To enable such research and exercises to take place, enabling provisions must be introduced in legislation.

We intend to take forward a demonstration project to determine how alcohol monitoring might be used effectively and at which points within the Scottish Justice setting.

This project will consider:

• At which points in the scottish criminal justice system, alcohol monitoring technology could be used;
• What support to a monitored person on such technology would look like, if this were to be different from support for radio frequency or GPS technologies;
• Which organisation(s) would be best placed to offer support;
• Matters of compliance and the management of such;
• How breaches would be handled in a voluntary scheme; and
• The involvement of health organisations in supporting the monitored person.

To allow for the above to take place and recognising the view put forward by the Working Group, we will put in place enabling legislation to allow for the demonstration project.

Question 4: Should alcohol monitoring be permitted as part of an electronic monitoring programme?

Yes ▢ No ▢

Question 4a: Please give reasons for your answer

Question 4b: If you answered yes to Question 4 in what circumstances do you think alcohol monitoring would be appropriate?