The Scottish experience of tagging as an option for sentencing over the past five years and how it might develop

On 1 May 2002 the Justice Minister, Jim Wallace, announced that restriction of liberty orders, compliance with which is supported by electronic tagging of offenders, would be brought into immediate effect and be available as a sentencing option to all of Scotland’s High, sheriff and stipendiary courts. The Minister stated he was confident that tagging would prevent convicted criminals from re-offending, limiting the opportunity for repeat offences and offering stability to those trying to break the lifestyle which may have contributed to the crime in the first place. In reply the Scottish Conservative Justice spokesman, James Douglas-Hamilton said: “Although it certainly has an important role to play in our justice system, electronic tagging should not be viewed as a panacea in the fight against crime.”

Electronic monitoring of offenders was first developed in the US in the 1970s. By the mid-1990s, the use of electronic monitoring had developed in Europe. It was introduced in Britain in 1989 with a pilot project in England. The available equipment proved unreliable at that time. In 1995 a second pilot project involving the use of curfew orders began. This resulted in the extensive subsequent use of electronic monitoring in England and Wales for a wide variety of circumstances.

Tagging, officially known as restriction of liberty orders (RLOs), was introduced to Scottish courts in 1998. The three year scheme in Hamilton, Aberdeen and Peterhead was responsible for supervising 418 offenders, 90% of whom completed their orders.

What is tagging?

Tagging works by way of a transmitter and a home monitoring receiver unit (HMRU) installed in the offender’s home. The transmitter is a tag, the size and shape of a large digital watch. The transmitter is waterproof and shock resistant and if tampered with sends an instant signal to a central computer system which alerts investigation. The tag is invariably fitted to the offender’s ankle. The monitoring unit is plugged into the mains and sends a constant signal via a telephone line. The HMRU receives a signal from the tag when the offender is within range and will alert monitoring staff if the offender leaves or enters the place of restriction during the restriction period.

In Scotland, the electronic monitoring service which monitors compliance with RLOs is contracted out to the private sector. Reliance Monitoring Services, based in East Kilbride – a trading division of Reliance Secure Task Management – was awarded the contract to monitor the compliance of all offenders subjected to tagging throughout Scotland. They monitor offenders’ compliance and ensure they adhere to the restrictions of their particular curfew order, providing not only the hardware and software, but also the staff to install the equipment, follow up any violation, and report alleged breaches to the courts.

Scotland is unique in Europe in having legislation which facilitates the restriction of an offender’s movement both to a particular place and from a particular place. It is also possible to run both of these orders in conjunction with each other. The RLO will require the offender to stay in a particular place for up to 12 hours or to stay away from a particular place or places for up to 24 hours a day. Offender consent is required. The courts may impose an RLO for any period up to a maximum of 12 months, though the average length of RLO to date is just under six months.

With regard to “from a place” restrictions, all cases have involved an element of domestic violence and have been extremely successful, the main factor being that the offender knows that he or she will be immediately detected if they approach the place of restriction. There is also scope to restrict people from places such as pubs/clubs, shops, sporting venues.

Outside the periods of restriction, the offender is free to go where he chooses (though he wears the tag at all times). The RLO does not permit the court to track the movements of an offender, merely to restrict the movements.

RLOs are highly flexible. While the majority of restriction times are given in 10-12 hour periods, RLOs can accommodate alternative restriction times, for example the offender being restricted at different times at the weekend to other days in the week. Also, more and more offenders are being given daytime restrictions for offences such as shoplifting.

Where does the law go now?

The legislation providing for RLOs is contained in section 245A of the Criminal Procedure (Scotland) Act 1995 as inserted by section 5 of the Crime and Punishment (Scotland) Act 1997. This legislation also provides the use of electronic monitoring equipment to monitor offenders’ compliance with the terms of any order imposed.

From 27 June 2003 we have legislation (Criminal Justice (Scotland) Act 2003, Part 6) which:

  • (a) makes RLOs a “direct alternative” to custody (as with community service, this would apparently restrict availability to where a custodial disposal would otherwise be imposed, subject to the separate powers in (c) below);
  • (b) allows the transfer of RLOs between jurisdictions in Scotland;
  • (c) allows electronic monitoring to be made as a condition of a probation order or drug treatment and testing order.

Some might argue that electronic tagging is simply the new ball and chain. Wearing an unobtrusive tag is not the punishment, nor is having monitoring equipment installed in the home of the offender. The real punishment is contained exclusively within the restriction order itself. In the event of a breach of the order the court may:

  • (1) impose a fine not exceeding level 3 on the standard scale, and permit the order to continue unchanged;
  • (2) vary the length of the order; or
  • (3) revoke the order and sentence the offender for the original offence as if no RLO had ever been made.

How well does it work?

Some offenders find the restriction of their liberty, even in the community, as severe a penalty as custody itself. “End-of-Order” questionnaires (completed by the offenders themselves, partners and family members) reveal:

  • (a) a reduction in drug and drink consumption (11%);
  • (b) improved relationships with partners, children and family (25%);
  • (c) a feeling of more discipline and order in their lives (19%);
  • (d) that they are no longer getting into trouble (10%).

While 47% of offenders state that the RLO was “better than prison”, almost two-thirds complained that their freedom was restricted and that they had to be in by a certain time.

Male offenders constituted 94% of those tagged and females 6%. Twelve per cent were aged 16 to 17, 29% were 18 to 20, almost a third were 21 to 25, 16% were 26 to 30 and 13% were 31 plus.

From 1 May 2002 until 20 October this year inclusive, there have been 920 RLOs made in Scotland. Of these 15 are, or include, restrictions from a place. The High Court has imposed four orders. All of Scotland’s six sheriffdoms have imposed RLOs with more than 85% of all sheriff courts imposing one or more order. The stipendiary magistrates’ court imposed their first RLO on 23 September 2003. There have been 19 orders making electronic monitoring a condition of probation.

There is considerable variation in frequency of use between sheriff courts. The totals suggest a lower takeup, at present, compared with England and Wales. As expected, the Sheriffdom of South Strathclyde has produced the majority of orders with 56.43% of the total share since the start of the nationwide contract in May 2002. This is mainly due to the fact that Hamilton Sheriff Court took part in a three and a half year pilot project. Surprisingly, however, Grampian, Highland and Islands, where there were two identical pilot projects (Aberdeen and Peterhead), have produced only 10.69% of all RLOs. Glasgow and Strathkelvin imposed 5%, Lothian and Borders 4.55% and North Strathclyde 3.55%, whereas Tayside, Central and Fife imposed 19.23% of the total.

Before making an RLO, the court requires to call for an RLO assessment. The court needs relevant information about the places involved and the consent of the person responsible for the place of restriction, such as the tenant, owner etc. If, thereafter, an order is made then:

  • (1) the RLO – the actual fitting of the tag itself – will be activated on the day the order is made by the court;
  • (2) breaches will be reported directly to the court;
  • (3) the offender will be visited every month to review and monitor their progress;
  • (4) offenders will be able to contact a manned 24-hour helpline throughout their order.

All agencies involved in RLOs and electronic monitoring have been issued with information handbooks on the processes and responsibilities involved, from inception to completion.

The completion rate for RLOs in Scotland currently stands at around 85%. Current evaluation of tagging research found that the cost of an RLO was approximately £2,600 for a three month order, £4,250 for a six month order, and £8,000 for a 12 month order. This compares with around £12,000 for a six month prison sentence, and more than £25,000 for a 12 month prison sentence. Furthermore, the cost of electronic monitoring reduces per offender, that is, the more RLOs, the less the cost per order. While some may argue that the cost to the taxpayer and the overcrowding of prisons are irrelevant, patterns of persistent offending which are not broken by periods of incarceration are a highly relevant consideration. The courts require to consider all available sentencing options, including RLOs, in light of the offence and the offender’s personal circumstances.

What does the future hold?

There are many potential applications incorporating the use of tagging. Other areas are currently being considered for tagging. These include:

  • (1) Juvenile tagging. In June the Communities Minister, Margaret Curran, suggested the age limit for the monitoring system could match the age of criminal responsibility, at present in Scotland age eight. As part of the ongoing discussion relating to the Anti-Social Behaviour Bill, contributions were invited to the consultation document “Putting Our Community First”. The consultation period ended on 15 September 2003. We await further developments in this field. On BBC Scotland’s Politics Show the Minister said: “Electronic tagging is a preferable option to secure accommodation and, in some cases, works in the best interests of young people and the children’s panel.” In reply the SNP Justice Spokeswoman, Nicola Sturgeon stated: “We must ensure tagging is not a cheap alternative to solving anti-social behaviour. Children need to change by having their offending addressed and they must have the opportunity to do so instead of all cases resulting in electronic tagging.”
  • (2) Parole Board. The extension of tagging to the Parole Board as a condition of early release on parole or licence seems inevitable – possibly as soon as 2004.
  • (3) Bail orders. Electronic monitoring could be made a condition of bail orders.
  • (4) “Reluctant” witnesses. The Criminal Procedure (Amendment) Scotland Bill, published 8 October 2003, introduces further controversy in the tagging debate. It is proposed that reluctant witnesses, who try to delay important trials, may be electronically tagged to ensure they appear in court when required. This has already attracted substantial criticism.

At the moment there are a few companies around the globe who have the technology that allows people to be tracked via satellite and wireless technology. Tracking is under consideration at present. Serious offenders who have been released from prison could also be tracked if they were said to pose a risk. Some may argue that this is safe management of high risk offenders in the community. The MacLean and Cosgrove reports envisage this technology being used for more serious violent and sexual offenders.

South of the border, Home Office figures show that the number of potentially dangerous offenders monitored in the community increased by 12% in 2003. The worst violent and sex offenders are currently tracked after their release from prison by specialist Multi-Agency Public Protection Arrangements (MAPPA). Police, probation and other agencies (such as housing, health and social services) share information.

In conclusion

Tagging is undoubtedly a punishment. It is now defined by Parliament as a “direct alternative” to custody. It can stand alone or it can be part of a package of disposals including probation and drug treatment and testing orders. Criminal practitioners may request the RLO assessment initially, and thus invite the court to consider the imposition of an RLO.

Tagging has the potential to assist in delivering a wide range of sentencing objectives. It seems that RLOs will play a greater role in the criminal justice system. Tagging is now an additional tool in the fight against crime and is a proven and precise sentence of our Scottish courts.

Joseph Hughes is senior partner, JC Hughes, Solicitors, Glasgow and a director of Turning Point Scotland

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