Prison population and penal reform: working towards sustainability
Section 4: Electronic monitoring
Electronic monitoring (EM) plays an important role within the criminal justice system, to help support rehabilitation and reduce reoffending.
The Scottish Government is committed to developing the electronic monitoring service, including exploring the use of new technologies such as GPS. Within the current legislative framework, electronic monitoring can be used in a wide range of circumstances including as part of a community order such as a CPO, as a condition of bail, or as part of a licence, for example, for home detention curfew (HDC), a scheme which allows certain prisoners to be released from custody early under strict conditions.
The use of GPS technology offers a number of potential benefits over radio frequency (RF) monitoring – in particular, the ability to monitor a range of geographical conditions and gather rich compliance data. Building on recent developments such as the introduction of GPS with HDC, and the move to use EM with bail, we have identified a number of areas for potential legislative change that could be made via primary legislation and help set the enabling conditions for further EM development.
More information on the use of EM in Scotland
EM in Scotland currently primarily uses radio frequency technology to monitor an individual's compliance with conditions attached to certain court orders and forms of licence. Principally, those conditions relate to a curfew confining a monitored person to a specified place for up to 12 hours a day, or their remaining away from a specified place for 24 hours a day. Radio frequency monitoring performs an effective role in managing curfews. In recent years technological advances such as GPS (global positioning systems) have provided different capabilities, such as the ability to set much wider “exclusion zones” - areas that an individual is required not to enter as a condition of their licence. The use of GPS devices to monitor compliance with exclusion zone conditions has been adopted for use in some home detention curfew licences.
EM, when used in conjunction with support from community justice services, can help to address a person’s needs and offending behaviours, and support them to comply with any court requirements, while maintaining their connections to family, employment or education - factors that are known to support a reduction in the likelihood of reoffending.
Although radio frequency technology is a robust and effective form of monitoring for the uses where it is currently deployed, it is clear that there are a range of new technologies which could be used to expand the functionality of EM in Scotland, and which may widen the opportunities to manage people in the community. GPS provides a distinct capability to RF monitoring -including broader monitoring of exclusion zones and, in some circumstances, avoiding the need to place equipment at a victim-linked address.
In order to support these developments, some important adjustments may be needed to develop the legislative context around use of EM. In any potential reform in these areas, it is important to consider the views of, and impact on, key stakeholders including victims’ groups, Crown Office and Procurator Fiscal Service (COPFS), Police Scotland, judiciary, justice social work, third sector partners, and private sector EM providers.
Electronic Monitoring of Bail – mechanism for court consideration
Electronic monitoring relies on the maintenance of accurate information on the monitored person, including prompt updates where circumstances have changed. Currently, in most cases in order to amend details of a bail order once granted, a hearing must be convened, and this must be either initiated by COPFS, or initiated by the individual monitored (often through their defence representative).
One potential way to improve the efficiency and effectiveness of EM bail would be to introduce a formal mechanism to enable bail cases with an EM requirement to be brought back before the court where issues arise that may require judicial consideration, but where there is no suspicion of criminality. This could include, for example, situations where a monitored address is subsequently found to be unsuitable or where practical barriers (such as loss of tenancy) could undermine the efficacy of the EM requirement.
This mechanism could create a clearer framework for responding proportionately to operational difficulties, thereby supporting adherence to bail conditions while maintaining judicial oversight and appropriate safeguards. Reporting of certain cases could be direct to court, in order to facilitate a hearing to consider change of order (and/or address), without Police Scotland necessarily dealing with the case as compliance failure. Related to that, consideration could also be given to whether certain of these changes always need a court hearing or could be dealt with more administratively in court chambers. This would support longer-term system improvement around bail more generally and consistency of practice across areas, while potentially providing better use of court time, as well as providing greater reassurance to the public and victims of crime that EM bail is operating optimally.
Exclusion zone conditions monitored by GPS devices
Under the current legislative framework, when a person breaches a GPS exclusion zone, the police in certain circumstances may have limited powers to intervene unless they suspect an arrestable offence has been committed; there is an immediate threat to life or property; or currently, in the case of HDC, if the individual has already been recalled to custody.
Legislating to strengthen the police role in this area, including considering creating a power of arrest for breaching the order or licence relating specifically to the exclusion zone in certain cases (potentially if there are identifiable victims at risk) could bring clarity and accountability, and facilitate a swift operational response. It may also increase confidence in the use of GPS technology to effectively monitor compliance with these conditions and potentially prevent crime and protect victims, where its application might otherwise be limited by concerns about the absence of effective enforcement powers. Such a reform would also have the benefit of incentivising compliance and providing reassurance to victims of crime, decision-makers, and the public.
Questions in this Section
This section seeks your views on proposed amendments to electronic monitoring arrangements in Scotland.
You may find it useful to read section four of the consultation paperor refer to the paper while responding.