Monitoring in criminal proceedings
Section 1 – Requirement when disposing of case
13.Section 1 provides the overarching arrangements under which a criminal court can, when disposing of a case, require an individual to submit to electronic monitoring.
14.Section 1(1) provides that the court may, when disposing of a case, require the person whose case is being disposed of to submit to monitoring by means of an approved device. A description of the relevant disposals that can be monitored is contained in section 3(2) and a definition of approved device is contained in section 8(1).
15.Section 1(3) provides that a requirement made under this section is to be monitored by a person designated by the court in terms of section 11(1)(a). It also sets out that the person subject to the monitoring requirement is bound by the obligations described in sections 12(2) and (3) whilst being electronically monitored.
16.Section 1(4) provides that electronic monitoring is for the dual purpose of ascertaining whether or not the monitored person is, firstly, complying with the specific requirements of the disposal which are to be electronically monitored, and secondly, fulfilling the obligations placed on the individual under section 12(2) and (3).
17.Section 1(5) provides that the court must explain to a person who is being made subject to an electronic monitoring requirement the purpose of the electronic monitoring as defined at subsection 1(4) above (i.e. to ascertain whether or not they are complying with the specific requirements of the underlying disposal and fulfilling the section 12 obligations placed on the individual). Section 1(5) also provides that the person must be warned of the consequences of failing to fulfil the section 12 obligations.
18.Section 1(6) provides that the electronic monitoring requirement is to be stated in an order of the court, and that the form of that order is to be prescribed by Act of Adjournal.
19.Section 1(7) provides that it is for the court to specify the particular aspects of the disposal that are to be monitored when disposing of the case.
Section 2 – Particular rules regarding disposals
20.Section 2(1) provides that if a person’s agreement is necessary before they can become subject to any of the disposals listed in section 3(2), then it is also necessary that they agree to become subject to an electronic monitoring requirement before it can be made.
21.Section 2(2) provides that an electronic monitoring requirement lasts for as long as a person is subject to the related disposal. It further provides that a court may vary or revoke an electronic monitoring requirement when the related disposal is being varied or revoked.
Section 3 - List of the relevant disposals
22.Section 3 contains a list of the relevant disposals in relation to which a court may additionally require a person to be subject to electronic monitoring. The list covers the making, altering, varying and renewing of the various disposals. These disposals are—
a supervised release order made under section 209(1) of the Criminal Procedure (Scotland) Act 1995 (‘the 1995 Act’);
a restriction of liberty order made under section 245A of the 1995 Act;
a movement restriction forming part of a drug treatment and testing order made under section 234C(1) of the 1995 Act;
a restricted movement requirement forming part of a community payback order made under section 227A(2)(j) of the 1995 Act;
a sexual offences prevention order made under section 104(1)(b) (as read with section 104(2) and (3)) of the Sexual Offences Act 2003; and
a sexual harm prevention order made under section 11 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.
Section 4 - More about the list of disposals
23.Section 4(1) provides that the Scottish Ministers may by regulations modify the list of relevant disposals so as to add, alter or remove an entry. It also provides that the Scottish Ministers may limit an entry to the list of relevant disposals so as to specify a certain aspect of what a court can do. This would enable Ministers to add a specific court order to the list in section 3 but limit that entry to a specified aspect of the court order. The modifications that can be made to the list are however limited by the provisions of subsections (2) and (3).
24.Section 4(2) provides that an entry included in the list of relevant disposals may relate to anything at any stage in criminal proceedings which may be made or imposed by the court on a person or to which a person can otherwise be made subject by a court. Section 4(2) also provides that an entry in section 3(2) cannot be something under which a person is to be detained in custody – for example, a sentence of imprisonment could not be added to the list in section 3(2).
25.Section 4(3) provides that an entry in the list of relevant disposals can only relate to the monitoring of a person’s whereabouts (including being at or not being at a particular place) or a person’s consumption, taking, or ingestion of alcohol, drugs or other substances.
26.Section 4(4) provides that any entry in section 3(2) is to be regarded as a disposal for the purposes of Part 1 regardless of whether or not it is a final disposal.
