Source · Select Committees · Human Rights (Joint Committee)
Recommendation 161
161
Rejected
The power to impose electronic monitoring engages Article 8, which requires that any interferences with...
Recommendation
The power to impose electronic monitoring engages Article 8, which requires that any interferences with the right to private and family life are in accordance with the law, in pursuit of a legitimate aim and necessary and proportionate to that aim. Generally, measures imposed by way of an SCPO will be justified on the basis that they can only be imposed where the court is satisfied (on the civil standard of proof–i.e. more likely than not) that the individual “has been involved in serious crime” and the court has reasonable grounds to believe that the order would protect the public. Furthermore, the courts, as public authorities, are obliged under the HRA to act compatibly with human rights, so any conditions that are imposed must not violate human rights, including by interfering with Article 8 disproportionately. The power is clear and adequately prescribed, and in pursuit of the legitimate aim of preventing serious crime. However, the threshold test is whether the electronic monitoring is “appropriate”. In order to comply with Article 8, the test ought to be one of necessity and proportionality.
Government Response Summary
The government rejects the need for a 'necessity and proportionality' test for electronic monitoring, asserting that courts already interpret 'appropriate' conditions in Serious Crime Prevention Orders (SCPOs) compatibly with the ECHR. It states existing safeguards like judicial scrutiny and the ability to seek variation ensure compliance with Convention rights.
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.