‘Non-compliance’: the worm in the bud of new electronic monitoring measures? 

Roger Grimshaw
Thursday, 22 April 2021

The government’s avid enthusiasm for electronic monitoring in criminal justice is clear.

Its use is to be widened in several ways. The House Detention Order, due to be piloted, will introduce a more rigorous curfew regime, targeted at those considered to have failed to respond to community sentences. Offenders convicted of acquisitive offences and released on licence are due to be electronically monitored.

The architects of the proposals believe that the new measures are an appropriately tough response to recalcitrant offenders, yet it is too easy to overlook the history of non-compliance with electronic monitoring. Will the new system be an improvement on the old, capable of managing behavior for the better and avoiding failure of the measures?

Non-compliance can be very simple, for example, being absent during curfew hours or tampering with a tag. Official data for April 2017 to March 2018 show 43 per cent of completed Supervision Order cases saw at least one breach. In the case of Home Detention Curfews, for prisoners released on licence, the proportion was much lower - 20 per cent - but still significant. In an official pilot of the new GPS monitoring technology, 80 per cent of wearers were found to have committed a technical violation, often for not charging their device. Almost a third of cases were revoked ‘for negative reasons such as breach’.

The idea of ‘non-compliance’ has some notional appeal if it suggests that EM subjects are at least able to make tangible reactions to the requirements imposed on them; it is not about perpetually dragging a ball and chain. However, non-compliance can become a formal breach if it threatens to challenge the boundaries of supervision. Everyone needs to appreciate that EM in criminal justice is not simply an information system; it is a control system bringing restrictions, causing disadvantages, and carrying potential penalties for non-compliance.

What is important is that the arrangements can be robustly questioned and tested so that they are tolerable and feasible for the individual and for those who may be living with that person. If probation officers are to be the supervisors, they will have taxing responsibilities for ensuring their charges (as well as co-residents and families) are up to speed with the nuances of their daily regime.

If the new proposals are enacted in law, the ability of probation supervisors to make adjustments to the details of Orders could be a safeguard against non-compliance; but at the same time, it betrays unease with the construction of Order requirements that claim to be appropriate and manageable but may be far from being so. The current data on non-compliance is far from encouraging in these respects. What should be avoided is an indiscriminate expansion of EM which puts as precarious a strain on systems as it does on individuals and families.