Electronic Monitoring in Scotland Working Group Report

Executive Summary

Although there has been considerable geographical variation it its use, electronic monitoring ( EM) has been nationally available in Scotland since 2002, largely as a standalone measure, using radio frequency ( RF) technology to enforce home confinement in the context of various legally specified orders. It has been delivered by a private sector service provider contracted to central government. Within the parameters originally set for it, EM has been delivered to a high standard, but it has not been used strategically to meet judicial, penal and social work goals. Crucially, only in some instances has its use been integrated with other criminal justice interventions. This lack of integration is anomalous when compared with EM use in mainland Europe, where EM is usually embedded in the work of probation services. The Scottish Government's desire for greater integration of EM and support services, both statutory and third sector, aimed at prevention, rehabilitation and desistance, was the starting point for review of and public consultation about EM in 2013. The present Working Group emerged from this review and consultation.

Consideration of the potential of two emerging EM technologies - satellite tracking using the Global Positioning System ( GPS) and trans-dermal alcohol monitoring ( TAM) - also underpinned the review. The Working Group reflected further on this, settling on the view that it is the penal, judicial and social work goals which technology can be used to achieve, rather than the technology itself. It was accepted that while the existing RF-based home confinement still served a useful penal purpose, it had not been used as flexibly or as creatively as it could have been. GPS technology offers new possibilities for monitoring movement-in-general (not just presence in a single place as RF does), as well as the creation and oversight of exclusion and inclusion zones, of variable size, to restrict movement and offer greater degrees of protection to victims of crime than are usually available in existing forms of community supervision. Trans-dermal alcohol monitoring can support and enforce prohibitions on alcohol use rather than monitoring locations and schedules, although it can also be combined with those.

The Working Group sought to envision a new strategy for EM-use in Scotland, utilising existing and new technologies and grounded in the needs, interests and aspirations of various agencies and organisations involved in the criminal justice process, including victims of crime. This envisioning was guided by a review of international research evidence on EM specially commissioned by the Scottish Government, and by the findings of an EU funded comparative research project on EM in which Scotland took part. Because EM (in all its forms) is itself a digital technology, some cues were taken from Scotland's existing ^[1] Digital Strategy for Justice. In deliberating on the just, proportionate and effective use of EM the Working Group drew on the Council of Europe's (2014) "ethical Recommendation" on EM, which is strongly, but not exclusively, grounded in the potential of EM to reduce the inappropriate use of imprisonment. The Working Group similarly emphasised EM's potential as a form of control to support the Scottish Government's desire to reduce the use of short custodial sentences, to strengthen rehabilitative and re-integrative measures and to offer hitherto unavailable forms of protection to victims of crime.

The new strategy, which will continue to be based on a nationally commissioned and contracted monitoring service, requires legislative change. It will make available all three EM technologies - RF, GPS and TAM - to sentencers and criminal justice agencies. There is an expectation of greatly reduced geographical variation in EM's future use. No assumption has been made - as some countries do - about the greater severity and intrusiveness of GPS tracking over RF-home confinement. The appeal of intensive GPS monitoring for high-risk sex offenders is intuitively clear, but not all such individuals may warrant its use: RF-home confinement has already worked effectively in a multi-agency public protection arrangement ( MAPPA) context, and could continue to do so. GPS technology may also be used with lower risk individuals and "voluntary consent" models of GPS tracking have been used (in England and Wales), and are not without merit. For some individuals, including young people, both RF and GPS can have preventative and protective functions which empower them to resist adverse peer pressure.

In summary, the more strategic use of EM envisaged by the Working Group has three aspects:

1. To use EM in more integrated ways, alongside a range of supportive measures, to help prevent and reduce further offending 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

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

The Working Group strongly endorses an individualised rather than a categoric approach to the use of EM, based on a rounded risk-needs assessment, and a clear sense of the goals to which EM may, or may not, contribute. Proportionality is always an important consideration in any EM-intervention but this does not reside in the technology itself; rather, it resides in the intensity and duration of the schedules and requirements it is used to enforce, and the nature of the other supportive measures with which it may, or may not, be combined. Different intensities of EM and variable combinations with other measures can be used at different points on the sentencing tariff, to meet different goals for different individuals. The variety of new "community uses" of EM and specific legal frameworks in which it should in future be used are listed in Recommendations 5 and 7. The Group commends further consideration of the still underused "movement restriction orders" in a youth justice context.

EM is a versatile form of control which can be imposed either as punishment or to support rehabilitative purposes. The use of EM as a standalone punishment should remain a legitimate sentencing option. However, in its various forms EM should now become integrated with measures with a proven track record of preventing and reducing further offending which assist individuals to desist from crime. Some research evidence shows that EM has a crime reduction effect in itself, for the duration of the monitoring period, but that if longer term desistance is required it must be combined with measures which help individuals to change their behaviour. In individual cases, EM should be used, by judicial and penal authorities, in a goal-oriented and person-centred way, tailored to achieve specific purposes, including the protection of victims of crime.

Against the background of a persistently high remand population, the new EM strategy should reconsider the use of monitoring at the pre-trial stage, using both RF and GPS technology as appropriate. Exclusion and inclusion zones enabled by the latter offer new possibilities for meeting the goals of bail. Whilst standalone use of EM at the pre-trial stage is wholly legitimate, experience suggests that bail support would be required in some instances to assist with compliance. The Working Group suggests that both forms of EM be considered for non-compliance with bail related offences, supervised bail, bail undertakings and investigative liberation.

EM is already available to penal as well as judicial authorities in Scotland, in the form of Home Detention Curfew ( HDC) and Parole licence. This should continue, with all forms of EM available - RF, GPS and TAM - according to a risk-needs assessment. In addition EM could in future be utilised within the prison estate, to test those prisoners on the margins of acceptable risk, in order to facilitate work placement, home leave, female community custody units and community access from closed establishments. Given perennial public anxiety about all forms of prisoner release, the use of EM in this context could be an important means of increasing public confidence.

Compliance with and enforcement of monitoring requirements must vary both according to the nature of the violation and the purpose of the order. Where rehabilitative goals are being pursued, the response to a violation of an EM requirement must take account of the progress made towards those wider goals. A two tier approach for responding to violations, standardised and intensive, reflecting the above distinction, will be made available to sheriffs. Overall, evidence suggests that monitored people and their families can find the experience onerous but still to be preferred to imprisonment. Some evidence acknowledges that stand-alone EM can create undue stress and strain for co-residents which more integrated approaches may be able to reduce. As in other areas of community supervision, the "user voice" - in this instance, both monitored individuals and co-residents - can be an important source of insight into what makes a judicial or penal requirement legitimate and feasible to complete. Creative, evidence-based ways of incentivising compliance should be developed.

The implementation of the new EM strategy must build on the work begun in the Working Group to increase knowledge and capacity of how EM could and should be used. This has included the creation of a cross-sector champion's group whose members have developed a deeper understanding of EM's potential, although this does not preclude the need for additional training across all relevant agencies. CJSW Standards and IT systems have been revised to facilitate the potential of EM to contribute to the goals of supervision. More fundamentally, a communication strategy has been devised and agreed by all partners to better engage stakeholders in debate about future uses of EM, and to promote a common understanding of the goals that can be achieved with it. The Working Group seeks to change how EM has traditionally been considered and used in Scotland: this task must continue beyond the life of the Working Group itself. This report is not the "final word" on the future of EM in Scotland, and beyond its specific proposals and Recommendations, it also aspires to stimulate further thinking among key stakeholders - especially sentencers, police, prison service, criminal justice social workers, youth justice social workers, third sector, victim advocacy organisations - as to how good practice with EM can be taken forward. In response to both this report and the Ministerial recommendations which will follow from it, the Working Group recommends that, each stakeholder group should be encouraged to develop formal "statement of intent" regarding EMs future use.

The EM in Scotland Working Group commends this report to Scottish Ministers and urges that early action be taken against the recommendations in a manner which is both ambitious and inclusive of all partners required to move the agenda forward at pace.