Management of Offenders Bill proposes more electronic monitoring and less disclosure of past convictions

A person wearing an electronic tag on their ankle - Image credit: Hannah Graham

The Management of Offenders (Scotland) Bill, which was introduced to Scottish Parliament last month, has three objectives: more electronic monitoring of offenders (and more strategic uses of it), reduced disclosure times for past criminal convictions and more modern fit-for-purpose parole board processes.

The bill paves the way for GPS tagging and tracking to be introduced in Scotland, allowing authorities to monitor a person’s whereabouts and set ‘exclusion zones’ restricting them away from certain places for set times.

An exclusion zone might be set around a victim’s home and workplace, for example, or tailored around a place linked with an individual’s risk of reoffending.

Research by myself and my fellow Stirling University criminologist Gill McIvor shows there is moderate consensus among Scottish criminal justice practitioners supporting the introduction of GPS location monitoring, alongside the existing tagging and home curfew-based option.

The bill also allows for the introduction of alcohol and drug monitoring technology, such as tags which can detect alcohol consumption through sweat on a person’s skin.

A person will have to give their consent to being tagged and monitored.

Electronic monitoring (EM) numbers are expected to rise in Scotland under these proposals as they introduce the option of EM as a requirement within more types of orders and licences.

The bill also seeks to let Scottish prisons use EM as a condition of temporary release from prison.

Notably, the bill will enable the judiciary to impose a restricted movement requirement within a community payback order (CPO).

This is significant because CPOs are one of the most common community sentences in Scotland, with 19,000 CPOs imposed last year, opening up potential use of EM to more people than it’s currently used with.

In 2017, just over three thousand electronically monitored community sentences, called restriction of liberty orders, were imposed, with an average length of three to four months.

These new proposals may lead to criminal justice social workers doing more suitability assessments to inform authorities decisions about whether to use it with an individual or not, as well as supervising more people who are tagged.

International research evidence demonstrates that integration of EM with supervision and support is positive, where used proportionately and to promote rehabilitation.

However, people with a tagging requirement on a CPO might potentially be electronically monitored for longer than if given a standalone EM sentence.

It’s fair to say these electronic monitoring proposals have been a while in the making.

Recommendations for more strategic uses of EM featured in the Angiolini report on women offenders in 2012, Scottish Government consultations in 2013 and 2017, a Scottish Government-funded GPS tagging technology trial in 2016, and our two major research reports in 2015 and 2016.

The Management of Offenders Bill reflects several of the recommendations made by the electronic monitoring expert working group, a diverse experienced group which was anything but a rubber stamp brigade.

Cabinet Secretary for Justice Michael Matheson accepted their recommendations in full, and this bill seems to illustrate his commitment to seek more ambitious and strategic uses of EM.

EM is not just a priority for the SNP and Matheson. In recent years, there’s been moderate consensus across Scottish political parties about more and better uses of electronic monitoring.

Justice spokespeople for Scottish Labour, the Scottish Lib Dems and the Scottish Greens have called for or broadly supported this, alongside queries about details, costs and timing.

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The Scottish Conservatives have voiced cautious support for more use of EM, underlining public protection as a rationale for GPS tracking and wanting strict uses of home detention, but they tend to decry its use where the person would otherwise be in prison, as they have done with other measures in community justice.

The bill also proposes changes to the Rehabilitation of Offenders Act (1974) to reduce disclosure time periods for many (but not all) types of past convictions, meaning swifter recognition of rehabilitation.

An estimated one in three men and one in 10 women in Scotland has at least one criminal conviction and disclosure can substantially affect prospects of getting a job, education or volunteering.

In leaving crime and the criminal justice system behind, it is fundamentally important for people with past convictions to have real prospects of making a living legally and being recognised as someone other than an ‘offender’ – to have a bank account, get insurance and pay taxes, just like other citizens.

Research clearly shows that employment is one of the most strongly correlated predictors of reduced reoffending.

But some of these things are made harder by having past convictions, and the lingering stigma and stereotypes that ‘sticky labels’ and ‘stale records’ can bring.

Reducing disclosure times is a principled and pragmatic way to try to reduce barriers to reintegration.

The bill will introduce a limited time period for disclosure of convictions given a prison sentence of between 30 and 48 months, meaning that they could become ‘spent convictions’ after a set time.

Currently, they always have to be disclosed.

These proposals will continue to allow employers to be told about convictions that are recent and relevant, and rules about higher level system of disclosures needed for specific categories of work, such as working with vulnerable people, are not affected by this bill.

In 2016-2017, Disclosure Scotland received the highest number of applications ever – totalling 1.92 million applications in one year.

Reduced time periods will likely result in less disclosures.

In Scotland, crime is at a 43 year low, and the number of people convicted is falling, meaning fewer people are entering our criminal justice system.

Yet new figures show the average length of custodial sentence handed down by the Scottish judiciary has increased by 26 per cent over the last decade.

This trend of longer prison sentences has serious knock-on effects: it feeds a stubbornly high Scottish prison population, and the length of prison sentence determines how long afterwards individuals have to disclose their convictions and whether they can become spent convictions or not.

The bill’s plan to extend the prospect of becoming a spent conviction to people serving prison sentences up to 48 months is pragmatic in light of this trend.

What to keep an eye on if the Management of Offenders (Scotland) Bill passes

If the Management of Offenders (Scotland) Bill is passed by the Scottish Parliament, a few things will warrant being watched closely, including potential issues in practice that policymakers cannot easily influence.

Chief among them will be how and where the judiciary and other authorities use or do not use expanded electronic monitoring options.

In 2017, sheriffs in Glasgow imposed electronic monitoring community sentences at a rate 339 per cent higher than Edinburgh sheriffs. Potential issues of postcode lottery justice linger.

Privatisation is likely to continue to be a contentious issue as any marked increase in electronic monitoring may mean more public funds being awarded to private companies subcontracted to provide those services.

In countries with exemplary leading uses of electronic monitoring, such as the Netherlands, Sweden, Norway and Denmark, electronic monitoring is not privatised but done by public services.

Something we don’t yet have enough information and evidence about in Scotland is the extent to which more electronic monitoring might be clearly associated with less use of imprisonment, as the Scottish Government hopes, or whether electronic monitoring will increasingly be added to orders and licences, while rates of imprisonment stay high.

Proportionality in sentencing remains paramount and more available information and research on this is needed.

It will be interesting to see how the framing of electronic monitoring as an alternative to imprisonment in these proposals relates to the Scottish Government’s plan to increase the presumption against short prison sentences, as well as their plans to keep improving community justice.

The extent to which electronic monitoring will feature in future development of the Scottish Government’s digital justice strategy will also be of note.

The Management of Offenders (Scotland) Bill grants Scottish ministers expanded decision-making powers to make changes to electronic monitoring in the future.

If and how this is used will be of keen interest.

Proposed changes to past conviction disclosure times cannot easily mitigate the ‘Google effect’ and lingering stigma, where colleagues may still find out about a person’s past convictions.

While recent efforts to boost offender employability by charities like Recruit with Conviction raising employer awareness are commendable, there’s still more that needs to be done – collaboratively and creatively.

In future, alongside disclosure reforms, it may be opportune to engage with employers beleaguered by looming collateral consequences of Brexit, especially if patterns of migration change and employers encounter major difficulties in finding workers.

Offender employability and employment may also be better championed in Scotland as a legitimate matter of corporate social responsibility – working with returning citizens to change their lives and life chances.

Dr Hannah Graham is a lecturer in criminology in the Scottish Centre for Crime and Justice Research at the University of Stirling. Twitter: @DrHannahGraham