Source · Select Committees · Human Rights (Joint Committee)
Recommendation 159
159
Rejected
Clause 52 provides the courts with the power to impose electronic monitoring200 as part of...
Conclusion
Clause 52 provides the courts with the power to impose electronic monitoring200 as part of SCPO requirements. Electronic monitoring can be imposed where there are “reasonable grounds to believe that the [overall] order would protect the public” and that this particular requirement is “appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person concerned in serious 200 There is no definition in the Bill. The Ministry of Justice in its Electronic Monitoring Strategy has defined electronic monitoring in England and Wales to include the wearing of ankle tags (curfew tags, GPS tags, alcohol tags) overseen by a “supporting service”. Electronic Monitoring in Criminal Justice System, Ministry of Justice, June 2022, PDF p 6 57 crime.” Electronic monitoring can be imposed for up to twelve months at a time, subject to extension upon application. The Bill does not specify the grounds on which such extensions may be made.
Government Response Summary
The government clarified that electronic monitoring in SCPOs is for compliance, not punishment, and judicial interpretation ensures ECHR compatibility. It emphasized that courts determine appropriateness case-by-case, without committing to specify grounds for extensions, implying existing safeguards are sufficient.
Government Response
Rejected
HM Government
Rejected
It is important to clarify that the imposition of electronic monitoring as part of a Serious Crime Prevention Order (SCPO) is not intended as a standalone punitive measure, rather as a means of monitoring compliance with other conditions of the order. Although the Bill uses the term “appropriate” as the test for imposing requirements such as electronic monitoring, courts are still required to interpret and apply that test in a way that is compatible with the ECHR, as required by the Human Rights Act 1998. Under the Serious Crime Act 2007, SCPOs can include any requirements which the court considers appropriate for the purpose of protecting the public by preventing, restricting, or disrupting involvement in serious crime. It will be for the court to determine whether electronic monitoring is an appropriate condition in each individual case, taking into account all relevant facts. All necessary safeguards, such as judicial scrutiny, a Data Protection Impact Assessment, and the ability of the individual to seek variation or discharge, will ensure that the use of electronic monitoring complies with Convention rights. With regard to Interim SCPOs (ISCPOs), the Bill provides that the High Court may impose an ISCPO where it considers it “just to do so.” This standard enables the court to act swiftly in circumstances where there is a credible risk to the public, but the final SCPO application has not yet been determined. The court will assess the material presented and make an evaluative judgment, rather than applying an evidential test or standard of proof. Introducing a stricter threshold, such as one based solely on necessity, could delay vital interventions and risk allowing serious criminal activity to continue unchecked. The “just to do so” test reflects the urgent, preventive nature of interim orders and aligns with comparable regimes such as interim sexual risk orders and interim slavery and trafficking risk orders. These measures are strictly temporary and subject to review. If an individual considers the imposition of an ISCPO to be unjustified or disproportionate, they may apply for the order to be varied or discharged and have a right of appeal to the Court of Appeal, ensuring an appropriate balance between public protection and individual rights.