Explanatory note

The Management of Offenders (Scotland) Act 2019 (“the 2019 Act”) makes provision allowing the courts when making certain disposals to require a person to submit to electronic monitoring of their compliance with a condition of their disposal. The Scottish Ministers can do the same for an individual being released from custody on licence. Section 8 of the 2019 Act gives the Scottish Ministers the power by regulations to prescibe “approved devices” which can be used for electronic monitoring. The types of electronic devices which are approved devices are prescribed in the Electronic Monitoring (Approved Devices) (Scotland) Regulations 2020. Section 9 of the 2019 Act gives the Scottish Ministers the power to make provision about how approved devices may be used and how information obtained through that use may be used. These Regulations do that.

Regulation 1 sets out, among other things, what is meant by a “GPS approved device” and a “RF approved device”.

Regulation 2 provides that a GPS approved device may only be used in certain circumstances. Regulation 2(2) sets out the first set of circumstances in which it can be used. It provides that a GPS approved device can be used when (1) the Scottish Ministers require a person to submit to monitoring, (2) the underyling condition to be monitored must be imposed by the Scottish Ministers when the person is released on licence under the Prisoners and Criminal Proceedings (Scotland) Act 1993 (“the 1993 Act”), and (3) the person to be subject to monitoring must specifically have been released on a licence under section 3AA(1) of the 1993 Act (known as an HDC licence). Regulation 2(3) sets out the second set of circumstances in which a GPS approved device can be used. It provides that a GPS approved device can be used when (1) the Scottish Ministers require a person to submit to monitoring, (2) two or more underyling conditions are to be monitored must be imposed by the Scottish Ministers when the person is released on licence under the the 1993 Act”, one of which must be a curfew condition imposed under section 12AA of the 1993 Act, and (3) the conditions must be included in an HDC licence.

Regulation 3 provides that a RF approved device may be used if either of two conditions are met. First, it may be used by the court to require a person to submit to monitoring of a court order, when the person is subject to a disposal included in section 1(1) of the 2019 Act. Or, second, it may be used by the Scottish Ministers to require a person to submit to monitoring of a relevant condition of a sort mentioned in section 7(1) of the 2019 Act.

Regulation 4 sets out that twelve years is the maximum period for which information obtained through the use of a RF or GPS approved device can be retained. It also provides that that information can be shared by, or on behalf of, the Scottish Ministers for a number of purposes. Those purposes are the prevention, investigation, detection or prosecution of crime, informing a court if the monitored person fails to comply with a restriction of liberty order or a local authority officer supervising the monitored person if the monitored person fails to comply with a curfew requirement of a supervised release order, or a restricted movement requirement of a community payback order or a drug treatment and testing order, the consideration by the Parole Board for Scotland of the monitored person’s case referred to it by the Scottish Ministers, the provision by a local authority of certain social work services in respect of the monitored person, and the assessment and management of the risk posed by the monitored person under multi-agency public protection arrangements.