Compliance and Enforcement
EM technologies can be used to encourage compliance with the requirements of an order, and the data generated used to inform and enable enforcement decisions in the event of violations. Violations always require a response but, dependent on the nature of the non-compliance, enforcement need not mean the imposition of more punitive measures.
Supportive Monitoring and Assisted Compliance
Integrated approaches to EM can take two forms. Firstly, EM can be used in ways which are supportive of the broader rehabilitative aims of an order. This is "supportive monitoring". Secondly, because EM can be an onerous and demanding experience for monitored people and their families, support may be needed to assist completion of a period of monitoring. This is "assisted compliance". The two approaches may overlap in practice but are in fact distinct:
"Supporting compliance should not in itself be confused with the support and help necessary to achieve longer-term rehabilitation and desistance. Social work with those who offend should have a larger purpose than enabling compliance with EM" (  Nellis, 2015).
The Working Group was unanimous in its support for effective management of compliance to help the individual and their family, where it is appropriate and safe, to comply with Order requirements. Non-compliance criteria should be seen as an opportunity for the individual to understand their responsibilities and to learn something that could enable progress. While placing trust and holding the monitored person to account for not complying can nudge them towards desistance, the monitored person should be given the kind of support which enables them not just to comply with the order but to change their behaviour for the longer term. Distinguishing and understanding different causes of non-compliance (for example drift in motivation, a lack of confidence, an unanticipated event or crisis, or wilful refusal) can enable a gradated and tailored response.
Supporting individuals to comply with electronic monitoring conditions is critical to preventing and reducing further offending in the longer term. Depending on the risk posed, non-compliance may be seen as an opportunity to work with the individuals, recognising individual life circumstances and preventing every potential non-compliance instance as being regarded as an opportunity for punishment by the higher authority.
Incentives for Compliance
Requiring compliance ought to be more than a demand for obedience and the threat of more severe punishment. If monitored people experience EM as helpful, and consistent with the expectation that they desist from crime, they are more likely to regard it as legitimate. Offering incentives to compliance may reduce frustration and increase commitment to completing an order. The two obvious ways of creating incentives to, and rewarding, compliance with EM as a sentence would be:
- to permit the possibility of early revocation of an EM requirement if compliance in the early and middle stages of it are acceptable
- to make the curfew hours progressively less restrictive towards the end of the order.
For it to work as a motivator for compliance, the possibility of early revocation would need to be known in advance to the individual and be accepted by sentencers, SPS and the Parole Board for Scotland. Making an order or Licence less onerous has the double advantage of creating an incentive/giving a reward and helping the individual adjust gradually to life without the tag/curfew. Indeed, it may be that the latter is a better rationale for graduated restrictions - rather than any incentive or reward - particularly where people are being subject to EM for a long period of time.
There is no direct empirical evidence that EM works better this way simply because it has not been specifically researched, but experiential evidence from a number of jurisdictions suggests it has value. If Scotland was to adopt this approach, this is an area where Scotland could inform the International research by creating a Scottish evidence base.
Similar issues about incentives and rewards apply to the use of EM in the context of HDC and parole licence.
It should be borne in mind that the idea of "early revocation" may be tied to a punitive model of EM use, premised on the idea that it is something which an individual will want to give up as soon as possible. This may be less true if a more rehabilitative model is in operation, where an individual has been encouraged to think of EM as something that helps with self-discipline and desistance, and has experienced it as such. Such a person may be reluctant to give up EM, if they (and their families) feel that it gives them a constant reminder not to offend. Dependency of this kind may never be common with EM, but it has arisen on voluntary GPS schemes in England, and the issue then becomes one of helping people to anticipate and prepare for life without it.
Short, graduated periods of freedom - removing or switching off the ankle bracelet for a few days, allowing people to develop confidence in its absence, then putting it back on - may be the way to do this. It must be recognised that this approach may incur additional cost and will not always be appropriate, subject to risk and other considerations.
Punitive models of EM use deliberately make the regime onerous and compliance difficult. Curfewed individuals, for example, are usually restricted to their accommodation. A more rehabilitative model of EM-use might see such restrictions as gratuitous. A more relaxed regime may help an individual to understand that EM is being used to assist and support their desistance efforts; this too may be an incentive to comply and thereby providing evidence to decision makers of the benefits of the rehabilitative approach.
The Working Group agreed that the future approach to compliance must include an adequate and proportionate response to non-compliance as well as supported compliance building in a degree of flexibility and trust which recognises individual life circumstances as well as preventing all potential non-compliance instances being returned to decision makers.
The Working Group noted that assisted compliance might be best delivered by statutory organisations in partnership with the Third Sector. To support this, common data sharing protocols will need to be in place and will encompass the Scottish Courts and Tribunal Service, SPS, the Parole Board for Scotland, Local Authorities, the EM service provider and the Third Sector.
The current non-compliance criteria for EM have been in place for some time. During the process of review, the Working Group took a number of points into consideration. In particular members were keen to ensure that amendments to the non-compliance criteria would result in a more consistent approach to managing non-compliance, which could be adopted throughout Scotland. The new approach would need to be robust and proportionate enough to provide protection for victims, support public safety as well as give confidence to the Judiciary and Governors.
For RLOs, amendments to the non-compliance criteria would need to be robust enough to be accepted by Sheriffs, particularly those Sheriffs who currently set more robust reporting requirements (approx. 30% of the current caseload is made up of Sheriffs who set more robust reporting requirements).
For HDCs, amendments to the non-compliance criteria would need to be streamlined, flexible, simplified - and for consistency - accepted and utilised by all prison establishments in Scotland. The response to HDC non-compliance has, in the past, lacked consistency. These inconsistencies are being addressed with additional training for HDC Co-ordinators as well as night and weekend duty managers. Simplified and consistent non-compliance criteria will also help address this issue.
Recommendation 4: Compliance
Ensuring that effective structures and criteria are in place to support compliance and manage non-compliance are crucial to contributing to a long term reduction in further offending, while maintaining electronic monitoring as a robust community sentence.
For Court Orders, to strengthen Shrieval confidence in electronic monitoring as a robust disposal, two reporting options for reporting non-compliance should be developed. This two tier approach (standard and intensive) would provide Sheriffs with an option to set more stringent reporting requirements for individuals as necessary while ensuring a more consistent approach to non-compliance reporting throughout Scotland.
For HDC, amendments should be made to streamline the current non-compliance criteria. The streamlined criteria should be accepted and utilised by all prison establishments in Scotland.
Supporting individuals to comply with electronic monitoring conditions is critical to reducing further offending in the longer term. Some instances of non-compliance should be seen as an opportunity to work more closely with the monitored person, recognising individual life circumstances and preventing every potential non-compliance instance being returned to decision makers. How compliance is best supported should be explored as part of the aforementioned demonstration project.
In partnership with individuals, agencies and organisations including the Judiciary, Police Scotland, SPS, the Parole Board for Scotland, Criminal Justice Social Work, Victims, the Third Sector and the service provider, response levels to non-compliance should be defined, agreed and set out in a Response Framework. This Response Framework will also be fundamental in determining how GPS technology should be incorporated into an individual's order or licence conditions.