Electronic monitoring in Scotland: consultation on proposals for legislation

Part 2: Extending the use of Electronic Monitoring in a Community Setting

A key part of our vision for community justice is to reduce the reliance on ineffective, short-term custodial sentences with a stronger emphasis on robust community sentences. These community sentences will focus on actively addressing the underlying causes of offending behaviour. Electronic monitoring has a role to play here in providing structure and control but will be most effective when combined with supervision.

We propose to draft legislation to include an electronic monitoring option in the following circumstances:

Electronic Monitoring Requirement as part of a Community Payback Order

The current legal framework allows a person subject to a community sentence to have both electronic monitoring and a support package in place. At present, the preferred method of imposing a curfew as part of a more complex community sentence and one which ensures supervision and support for the monitored person is to have two disposals from the court: a Restriction of Liberty Order ( RLO) and a Community Payback Order ( CPO). However, the RLO cannot extend beyond 12 months whereas the CPO can be imposed for up to 3 years. This is a cumbersome situation and one which could be rectified if electronic monitoring could form part of a CPO when the CPO is initially imposed and not as part of a separate court order.

A restricted movement requirement using electronic monitoring can, at present, be applied by the court as a result of a breach of a CPO. If electronic monitoring were a requirement of a CPO then this may no longer be required.

Question 5: Should electronic monitoring be an optional requirement of a CPO when it is initially imposed?

Yes ▢ No ▢

Question 5a: Please give reasons for your answer

As an alternative to a fine

Fines have invariably been understood as a purely punitive - indeed straightforwardly retributive - measure. An element of deterrence may also be intended by the court which imposes them, and they may be experienced as such by the person paying the fine. There is, however, no meaningful sense in which fines can be used to change a person's attitudes and behaviour. A fine is a merely transactional penalty where compliance is simply a matter of pay/don't pay. The utility of this penalty is not disputed, but when applied to low income individuals they have two obvious drawbacks. Firstly, they may impose undue hardship on the individual's family.

Secondly, it may be impossible for the court to impose a fine that is proportionate to the seriousness of the offence because it would be beyond the means of the individual to pay it. In this context a period of electronic monitoring could be an appropriate alternative - a "fine" on time in the form of a curfew, rather than a fine on income.

There would be no expectation of criminal justice social work support for electronic monitoring in this context any more than there routinely is for fines. This would remain a purely punitive use of electronic monitoring.

Question 6: Should electronic monitoring be introduced as an alternative to a fine?

Yes ▢ No ▢

Question 6a: Please give reasons for your answer

Condition of a Sexual Offences Prevention Order

Sexual Offences Prevention Orders ( SOPOs) and Interim SOPOs are intended to regulate or otherwise control, the behaviour of those convicted of a relevant offence.

A SOPO is made only for the purpose of protecting the public or particular members of the public from serious sexual harm (serious sexual harm being any serious physical or psychological harm). An order may prohibit the individual from doing anything specified in it, or positively oblige them to carry out a specified act or course of conduct. The duration of a SOPO cannot be for less than five years .

The SOPO regime could be amended so that compliance with a SOPO can be electronically monitored. Electronic monitoring could be imposed where the court is satisfied that it is necessary for the purpose of protecting the public, or any particular members of the public, from serious sexual harm from the person. As is the case with any requirement for electronic monitoring this would be proportionate, being tailored to the risk and forming part of the individual's risk management plan.

Question 7: Should electronic monitoring be permitted as a condition of a SOPO?

Yes ▢ No ▢

Question 7a: Please give reasons for your answer

As a condition of a Risk of Sexual Harm Order

The Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 introduced Risk of Sexual Harm Orders ( RSHO) as a tool to achieve the goals of protecting children and of proactively targeting those who pose a risk. They are preventative orders which can prohibit an individual from doing anything specified in it, or positively oblige them to carry out a specific act or course of conduct.

There is no minimum age for an individual for whom an RSHO can be sought. The minimum duration of an order is two years.

Question 8: Should electronic monitoring be introduced as a possible condition of a RSHO?

Yes ▢ No ▢

Question 8a: Please give reasons for your answer

As a condition of a Structured Deferred Sentence

The Structured Deferred Sentence ( SDS) is a low-tariff intervention offering the courts the option to provide a short period (usually around 3-6 months) of intensive supervision by criminal justice social work to those who offend. This supervision will take place post-conviction but prior to final sentencing as it is a condition of the court deferring sentence. It is intended for individuals who have offended with underlying problems such as drug or alcohol dependency, mental health issues or learning difficulties and allows for intervention work to be carried out without the imposition of a community sentence.

SDS are designed to provide courts with an alternative to imposing an immediate sentence and this can benefit the individual by providing them with support to help change their behaviour and address their needs and in turn it can potentially lead to a reduced sentence. At the end of the period of intervention, the court retains the discretion to pass sentence in any manner that would have been appropriate at the time of conviction, but with the benefit of information from the supervising officer in relation to the period of deferral.

SDS with electronic monitoring could provide more structure to the intensive supervision for all or part of the deferral period, and may facilitate SDS for higher-tariff individuals.

Question 9: Should electronic monitoring be introduced as a possible condition of a SDS?

Yes ▢ No ▢

Question 9a: Please give reasons for your answer