Electronic Monitoring in Scotland Working Group Report

Future Uses of Electronic Monitoring

Since its introduction in Scotland, EM has been used at fairly limited points in the Scottish criminal justice system and in a tactical rather than strategic manner.

As mentioned previously, current legislation allows for the purpose of monitoring compliance with a:

• restriction of liberty order ( RLO)
• restricted movement requirement (imposed as a sanction for breaching a community payback order ( CPO))
• release licence (such as for prisoners on home detention curfew ( HDC) or licence conditions such as those recommended by the Parole Board)
• curfew condition in a Drug Treatment and Testing order ( DTTO)
• movement restriction condition within a compulsory supervision requirement

Criminal Justice Social Work ( CJSW) complete risk and needs assessments on all individuals who have offended. The Level of Service & Case Management Inventory ( LS/CMI) was introduced in Scotland from October 2010, and is the common method of risk assessment within CJSW and SPS. It is compliant with the principles of the FRAME document ( Framework for Risk Assessment, Management and Evaluation) - a model of best practice for managing individuals which is promoted by the Risk Management Authority and endorsed by the Scottish Government. In responding to and communicating risk, this is expressed in terms of the nature, seriousness, pattern and likelihood of offending, and the risk of serious harm and imminence, including assessing the risk to individuals or vulnerable groups and how serious the harm to a future victim might be. In addition, other specialist risk assessment tools are used for particular categories of offences such as sexual offending and domestic abuse.

The introduction of new technology increases the opportunity to extend the use of electronic monitoring to different points in the Scottish Criminal Justice System, both within a community setting and within the custodial estate. In recognising these opportunities it's important to note that EM will not be suitable for every individual and that EM should only be used where it has been risk assessed as appropriate.

With this in mind the Expert Working Group recommends that the use of electronic monitoring is extended to include:

Recommendation 5: In the community:

• Community re-integration following prison
• As an alternative to remand and support to pre-trial conditions
• As an alternative to short prison sentences
• Voluntary schemes for persistent offenders and those on the cusp of serious and organised crime
• Better support young people as part of an alternative to secure care or as part of a step-down process from secure care
• As an alternative option to fines
• As a condition of a Sexual Offences Prevention Order
• As a condition of a Risk of Sexual Harm Order
• As a condition of a Structured Deferred Sentence.

Recommendation 6: Within the custodial estate:

EM offers the opportunity to utilise technology to enhance public confidence in those individuals who are progressing through the prison system and provide additional options for prison managers to test those prisoners who remain on the margins of acceptable risk. This may increase the number of prisoners who progress to less secure conditions and provide them with the confidence to live successfully with the flexibility of an individual monitored plan.

EM may be utilised on some occasions for work placement, home leave, future female community custody units and community access from closed establishments. This may also include options for Throughcare Support Officers to help prisoners transition back to the community prior to release to attend community based appointments and as a support to a desistance model.

In coming to these recommendations the Working Group consulted widely with stakeholders, considered the international evidence base and international practice.

The rationale for recommending each new use is set out below:

In the community

Community reintegration following prison

There is widespread stakeholder support for the use of electronic monitoring to support community re-integration following prison.

HDC and parole licence enables prisoners who are nearing the end of their sentence, are considered low risk to public safety and meet statutory criteria to serve the last portion of their sentence in the community. EM is also available as a condition of a non-parole licence. As mentioned above, for long term prisoners, people convicted of a sexual offence and short-term extended sentence prisoners, their release on licence is supported by statutory throughcare delivered by CJSW and the Third Sector. Take up of support for short term prisoners is on a voluntary basis and is provided by CJSW, Throughcare Support Officers and as mentoring by the Third Sector.

Increasing the number of individuals released on licence with EM, and ensuring support is available to them, presents a unique opportunity to aid prisoner reintegration while maintaining an element of control.

In addition, there may be opportunities for EM to support prisoner reintegration prior to an individual being released. For example, EM could be used to enable an individual to attend a housing appointment to secure accommodation or to register with a GP prior to their liberation date.

The home assessment visit, undertaken by CJSW before a person is released on HDC ensures that the proposed accommodation is suitable, that specific risk factors have been assessed and that family members are content to have the individual under curfew at that address. This home assessment visit also provides a unique opportunity to engage with the prisoners family members prior to the individual's release.

As an alternative to remand and as a support to pre-trial conditions

Research has suggested that electronic monitoring with bail could help achieve a number of different outcomes such as reduce the use of remand, reduced bail non-compliance, reduced offending and reduced costs. Recent Scottish Prison Service statistics show a reduction of 2% in the average prison population between 2013-14 and 2014-15. While this decrease was driven by a fall of 3% in the sentenced population, the remand population increased by 3%.

There are a number of reasons for opposing bail which are set out in the Criminal Proceedings etc. (Reform) (Scotland) Act 2007. These are:

• Any substantial risk that the person might if granted bail-

(i)abscond; or

(ii)fail to appear at a diet of the court as required;

• Any substantial risk of the person committing further offences if granted bail;
• Any substantial risk that the person might if granted bail-

(i)interfere with witnesses; or

(ii)otherwise obstruct the course of justice,

in relation to himself or any other person;

• Any other substantial factor which appears to the court to justify keeping the person in custody.
• Where there is a charge of a serious offence (violence/sexual/drug trafficking) with a previous conviction for the same/similar offence, bail is only to be granted in exceptional circumstances (Section 23D of the Criminal Procedure (Scotland) Act 1995).

It's important to note that the use of EM to support bail as an alternative to remand would not be appropriate in every case. EM should only be used as an alternative to remand where it has been risk assessed as appropriate. Where this is the case, there is widespread stakeholder support for its introduction. Indeed, in 2011, the Cabinet Secretary for Justice appointed an independent Commission on Women Offenders whose remit was 'to consider the evidence on how to improve outcomes for women in the criminal justice system; to make recommendations for practical measures in this Parliament to reduce their reoffending and reverse the recent increase in the female prisoner population.

Specifically in relation to EM, the commission recommended that: 'The Scottish Government examines further the potential of using electronic monitoring as a condition of bail, taking into account the findings of the pilot conducted in 2008.

Introducing electronic monitoring as a condition of bail brings with it an element of 'reduced risk' in managing those on bail. It should be acknowledged that pre-trial EM can legitimately be standalone, although, in some circumstances Third Sector bail support has been proven to assist individuals to comply.

Existing RF technology can effectively be used in a pre-trial setting to curfew an individual to an address where that is appropriate. In addition, the introduction of GPS technology and the opportunity to set geographical exclusion zones may also be seen as helpful to protect witnesses and alleged victims at the pre-trail stage.

The Working Group deliberated electronic monitoring with bail for those who do not pose a risk to public safety and considered the following four options:

• Non-compliance of bail related offences. Standard bail is widely used across courts with the number of bail orders made relatively static over the last 5 years. Courts can already apply special conditions and the compliance rate is high. However, 18% of bail orders imposed are returned to court for bail-related offences (bail related offences include breach of bail conditions and failure to appear in court). The percentage of those sentenced to custody for bail related offences is approximately 25% (in 2014-15, this equated to 2,130). According to the statistics available, EM for bail related offences, of a non-violent nature, could reduce the number of individuals in custody, realising benefits for desistance, impact on families and reducing costs. In this way, resources could be better targeted to preventing and reducing further offending.

• Supervised bail is an additional condition whereby those who would otherwise be put on remand are released on bail on the condition that they meet with a bail supervisor a specified number of times a week, with the aim of supporting the individual to comply with bail conditions and reduce remand numbers. An evaluation of supervised bail was conducted in 2012. This evaluation concluded that while supervised bail cannot guarantee compliance, it is a useful tool for encouraging and supporting compliance in a way not possible with standard bail conditions. Electronic monitoring with supervised bail could potentially increase the number of individuals considered for support pre-trial. It is recognised that complementary work would be required to encourage the use of bail supervision.

• Police liberation on undertakings are used by the police routinely to release people from police stations when they have been charged, arrested and liberated to appear at a specified court on a specified date and time. This is an alternative to keeping a person in custody to appear at court the next lawful day. When released, subject to an undertaking, a person may be subject to "standard conditions" which means that they must be of good behaviour and attend court on the specified date. It is also possible for the undertaking to include "special conditions" for the purpose of ensuring that the standard conditions are observed. The introduction of electronic monitoring, as a condition of a bail undertaking, could strengthen the protection arrangements for victims and witnesses. EM with police undertakings could potentially increase the number of individuals considered for support pre-trial, subject to proportionality, robust risk assessment and consideration of the 2007 Act provisions.

• Investigative Liberation. The Criminal Justice (Scotland) Act 2016 introduced Investigative Liberation. This allows the police to arrest a person for a crime punishable by imprisonment, interview them and release them for further enquiries, such as waiting for forensic evidence . The introduction of electronic monitoring with investigative liberation could strengthen the protection arrangements for victims and witnesses. As with bail undertakings, electronic monitoring with Investigative Liberation would require being justified and proportionate.

It is worth noting that it would require primary legislation to introduce the option of electronic monitoring with bail.

As an alternative to short prison sentences

The Working Group was clear that EM can contribute towards the Scottish Government's vision:

• in which prison (and in particular short-term sentences) are used less frequently, recognising where prison remains absolutely necessary for public safety
• where there is a stronger emphasis on robust community sentences focused on actively addressing the underlying causes of offending behaviour leading to the prevention and reduction of further offending
• where public safety and the protection of victims of crime is prioritised.

The current daily prison population in Scotland is approximately 8,000 which reflects one of the highest incarceration rates in Western Europe at 146 per 100,000 of the population. This is more than twice as high as some of our Nordic neighbours despite their similar experiences of declining crime rates and at a time when reconviction rates are at a 17-year low and recorded crime is at its lowest level in 42 years it ought to be possible to seriously rethink the way that Scotland uses custody.

The Scottish Government has made clear its commitment to tackle this by: announcing the innovative new model for the female custodial estate; consulting on strengthening the current presumption against short sentences; and investing a further £1.5 million annually in community justice services for women. In addition, the community justice budget with around £100 million funding each year to Community Justice Authorities working with a range of organisations and partners to help to deliver community sentences, support the rehabilitation of individuals and reduce re-offending.

There is a particular commitment to reduce the use of short prison sentences which are not effective at preventing further offending. ^[6] Statistics published in March 2016 show that individuals released from a custodial sentence of 6 months or less are reconvicted more than twice as often as those given a Community Payback Order and that 61% of individuals imprisoned for 3 months or less are re-convicted within a year. The evidence indicates that imprisonment may in fact increase long-term offending by weakening social bonds and decreasing job stability.

As discussed earlier in this report, if used as part of a goal-orientated approach tailored to individual circumstances, EM can enable individuals to remain in the community, with their families, while preserving accommodation and/or employment - the very things that evidence shows support desistance from offending. If combined with wider support, EM can aid longer term desistance, reducing further offending and the impact that has on communities. It is the view of the Working Group that when using EM as an alternative to a short custodial sentence, this should always be combined with supervision.

Importantly, EM also gives sentencers an option to impose an element of control, be this as a direct punishment by curfewing an individual to an address for up to 12 hours per day or to protect a victim by setting an exclusion zone or 'away from' around a particular address for 24 hours per day. The introduction of GPS will expand these opportunities further.

Combining a tailored approach to EM, within a wider package of support and with set restrictions provides a robust community sentence and alternative to short prison sentences.

Exclusion Zones as a Component of an alternative to a short prison sentence

The sophisticated spatial restrictions that GPS tracking enables could make an important contribution to the use of EM as an alternative to short custodial sentences. As noted above, short custodial sentences contribute nothing to rehabilitation whilst disrupting community ties and social bonds. In some cases however, the imposition of short custodial sentences can at least offer short-term respite for victims, and this is felt by some to have intrinsic value irrespective of whether or not longer term problems are addressed. There is no easy solution to the question of respite, but the use of GPS monitored exclusion and inclusion zones potentially offers a solution when used as an alternative form of boundary to a prison wall. Whilst such zones are not as incapacitative as if an individual is imprisoned, they offer a degree of spatial restriction in a way that would not otherwise be enforceable. The safety, wellbeing and protection of victims is an important consideration, and the reassurance and respite to victims that exclusion or inclusion zones are deemed to offer would be in part determined by police response.

Voluntary schemes for persistent offenders

Voluntary GPS schemes have been on-going in England and Wales since 2010. While the process of how these voluntary GPS schemes are delivered varies slightly between police forces it generally operates along the original structure piloted by Hertfordshire police force:

• The GPS scheme is delivered through the Integrated Offender Management Scheme (IoM), a partnership approach to offender management which includes both Police and the Probation Services
• Voluntary GPS is offered to individuals often as they are leaving custody, but may also be used with other types of IoM clients. Volunteers are identified as those being at a stage of wanting to change their behaviour
• Those who accept the offer are tagged and sign a contract indicating they agree for the GPS data to be collected, stored and even used as evidence against them by police
• The management of the scheme is carried out by local police forces and is usually passively monitored. Police officers will generally check the GPS data retrospectively roughly once a day
• There is no breach mechanism for participants; the pilot mainly aims to gather 'intelligence' on volunteers.

In its discussions the Working Group noted the innovative use of GPS technology but raised concerns over the purpose of the pilots in England and Wales, as they seemed overly focused on the surveillance of individuals, rather than in promoting desistance or rehabilitation. Nonetheless, the group recognised the clear potential in offering GPS equipment to individuals on a voluntary basis, particularly alongside wider support packages. For instance it could be used to provide supplementary information on individuals to enhance social work interventions or as a protective measure for individuals on the cusp of organised crime to prevent them from becoming further involved in criminal activities.

It was clear that further discussion on the use of voluntary EM was required before specific applications for voluntary GPS schemes could be fully outlined.

As an alternative to secure care or as part of a step-down process from secure care

"Considering the use of Movement Restriction Condition's ( MRC's), one form of EM, there are varying drivers that link generally to the aims of EM including; reducing recidivism, increasing individual accountability and protecting the public" ( ^[7] Nellis 2014).

Scottish Government Guidance on the use of MRCs in the Children's Hearing System was published in 2014. The Centre for Youth and Criminal Justice ( CYCJ) paper " Movement Restrictions Conditions in Youth Justice" written by David Orr and published in December 2013 provides further information on the use of MRCs in youth justice, that paper is due to be updated later this year.

The youth justice strategy Preventing Offending: Getting it Right for Children and Young People sets out priorities for 2015 to 2020. Priority themes are: advancing the whole system approach, improving life chances and developing capacity and improvement. Within the strategy, there is a focus on community alternatives to secure care and custody. The strategy aims to provide robust alternatives to secure care and custody (including remand) using options such as MRCs, whilst being cognisant of the need to ensure public safety. High quality assessments and risk assessments are undertaken to support this.

The Advancing Whole System Approach Working Group has prioritised looking at this area of work over the next year. This will include the Centre for Youth and Criminal Justice publishing further research on the use of MRCs, promoting their use through events within local authorities, Children's Hearing Panel Members and Children's Reporters and through a national conference on high risk early next year (Simpson 2016 awaiting publication).

Partnership working will remain integral to the delivery of this strategy. Increasing the use of MRCs and of electronic monitoring will help achieve the strategy priorities.

As an alternative option to fines

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: 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 RF EM could be an appropriate alternative - a "fine" on time, rather than a fine on income. It would be akin to a Restriction of Liberty Order, but would not necessarily be an alternative to custody, in the same way that fines sometimes are, sometimes not. EM in this form can also have adverse social and emotional consequence for other family members, but it does not have collateral financial consequences. Compliance, for the offender, is similarly binary: presence/absence instead of pay/don't pay. There would be no expectation of social work support for EM in this context, any more than there routinely is for fines; this would remain a purely punitive use of EM.

As a condition of a Sexual Offences Prevention Order ( SOPO)

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. 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.

Electronic Monitoring could be included within a SOPO, 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, serious sexual harm being any serious physical or psychological harm.

The order must be tailored to the purported risk and must not be oppressive or disproportionate. It must also be capable of being policed effectively and will form part of that individual's Risk Management Plan.

As a condition of a Risk of Sexual Harm Order ( RSHO)

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.

The Chief Constable can apply for a RSHO where it appears that the person has on at least 2 occasions done any of the following acts:

• engaged in sexual activity involving a child or in the presence of a child
• causing or inciting a child to watch a person engaging in sexual activity or to look at a moving or still image that is sexual
• giving a child anything that relates to sexual activity or contains a reference to such activity
• communicating with a child when a part of the communication is sexual.

There is no minimum age for an individual for whom an RSHO can be sought. The minimum duration of an order is 2 years.

Where a person has a previous conviction for crimes of a sexual nature, a Sexual Offence Prevention Order ( SOPO) should be considered rather than an RSHO.

Conditions that might be considered include

• Restrictions based around contact with children
• Restrictions relating to entering areas where children might be present
• Restrictions on employment or volunteer work which would include contact with children.

EM could provide an ability to monitor compliance with these conditions.

Structured Deferred Sentence ( SDS)

The Structured Deferred Sentence is a low-tariff intervention offering the courts the option to provide a short period (usually around 3-6 months) of intensive supervision by CJSW to those who offend post-conviction but prior to final sentencing. 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.

Structured Deferred Sentences are designed to provide courts with a less invasive sentencing option which benefits the individual by providing them with support to help change their behaviour and address their needs, and in turn 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 EM could provide more structure to the intensive supervision for all or part of the deferral period, and may facilitate SDS for higher-tariff individuals.

Within the prison estate

EM offers the opportunity to enhance public confidence in the management of those individuals who are progressing through the prison system.

For those prisoners who are on the margins of acceptable risk, introducing the use of EM within the prison estate may provide additional options for prison managers to test those individuals while maintaining public safety. This approach has the potential to increase the number of prisoners who progress to less secure conditions and provide them with the confidence to live successfully, supporting rehabilitation and the eventual integration back into the community.

Domestic abuse and violence against women

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, by tracking the former and placing an exclusion around the latter, and in some instances giving the victim a mobile alarm which alerts her and the police if he comes within proximity of her (accidentally or deliberately). No perfect or uncontentious model of EM use in a domestic abuse context has yet been devised, but there is evidence from the U.S. that suggests some victims, though not all, have found it a useful, effective intervention at the pre-trial stage. 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 less) existed before, both in relation to bail and investigative liberation and its use should not therefore be ruled out, where victims understand and are willing to accept and consent to this arrangement.

Using GPS tracking and exclusion and inclusion zones to keep the victim and perpetrator apart at the sentencing stage would be possible with the general enabling legislation that the Working Group envisages.

The 2015 SCCJR research highlighted that there was a need to address the current knowledge gap in Scotland and for independent research to be commissioned with victims of crime, people with convictions and families.

The use of GPS technology could offer victims more choices and support their safety, especially those who wish to stay in their own homes, if delivered appropriately. The developments in EM must recognise, as a priority, the needs and vulnerabilities of partners and children experiencing domestic abuse.

Effectively challenging domestic abuse requires adequate skills and resources in the judicial, statutory and third sectors, and the response may need to be different at different stages in the criminal justice process. In the context of more general work to devise evidence based strategies for dealing with domestic abuse, and on the specific basis of the U.S. research the Working Group is not adverse to further consideration being given to the use of GPS but we recognise that it can only be pursued if victims and their representatives are fully engaged in the process.