Electronic monitoring: an inquiry into its current and future legitimacy 

Roger Grimshaw
Thursday, 26 November 2020

A joint research project between CCJS and the Howard League for Penal Reform is now close to fruition.

Its report, due to be published in the near future, examines the fundamental principles on which the use of electronic monitoring (EM) in criminal justice, now and in the future, should be based.

Electronic monitoring refers to monitoring the location, movement and specific behaviour of persons in the framework of the criminal justice process. Conducted with Anita Dockley, on behalf of The Howard League, the work has been a rewarding collaboration between two organisations committed to objective appraisal of punishment and to promoting public discussion.

A major challenge has been to track down exactly what EM can mean in different contexts and when applied to different people and situations. At its most benign, perhaps, it can be used as a way of establishing the whereabouts of vulnerable people at risk, but it can also underpin strict confinement under house arrest for considerable periods, with significant effects on freedom, on opportunities and on families. We held a seminar for well-informed stakeholders and experts which crystallised these variations and revealed contrasting perspectives.

Whatever the differences in application, the key characteristics of EM in criminal justice are clear. Because its use is intrusive, restricting and confining, EM holds more in common with a prison sentence than a community sentence. As a device is attached to the body, it carries the potential for stigma. There is scarcely any evidence to support its use as a means of preventing reconvictions. Hence legitimate policy thinking should focus on accepting, with all due caution, only those uses that form a necessary equivalent to imprisonment, such as Home Detention Curfew.

In the individual case, there remain questions about who is suitable for EM and under what conditions. Without thorough assessment and consultation, is there not a risk that people with vulnerabilities could be set up to fail? In addition, there are inevitably implications for co-residents and families that should be taken fully into account. The bulk of the evidence points to the importance of providing active and informed support as part of EM measures, rather than relying solely on technology.

More widely the accountability of EM provisions and practice is controversial. The role of private contractors has rightly come under heavy scrutiny. Lack of adequate information about practices and outcomes continues to hinder informed discussion. A clear framework of legal and administrative accountability would help to provide transparent governance and recognize rights to be protected from undue and harmful restriction.

And, equally as important, the new frontiers of enhanced technological control raise issues about the impacts of body-worn devices that monitor and affect all kinds of physiological conditions, or, through interactive geo-mapping, can signal environmental risks of offending in minute detail. 

As has been pointed out, the tougher provisions for curfew and tagging in the White Paper on sentencing reform constitute a substantial increase in the punitive impact of orders that are administered outside the prison walls. 

Indeed, their effect is clearly to extend and transfer the prison to locations inside the community. By imposing physical restrictions outside the conventional prison, these measures challenge any complacency about the merits of punishment in the community. They only serve to confirm the ‘carceral logic’ which identifies the continuities between the walled prison and external physical restrictions. 

The likely effects of the proposals have already been critically assessed, suggesting that failures of compliance will lead inexorably to people being placed in conventional prisons.

Accordingly, it is crucial to arrive at a principled approach to EM, which prevents it being extended and strengthened on a legislative whim, without a full assessment of its operation and outcomes. The project report will present an opportunity to ignite a timely discussion about the fundamentals of justice embodied in technologies that are being promoted without adequate scrutiny.