In July this year a great deal of publicity was given to Scottish Prison Service statistics obtained under freedom of information legislation, which demonstrate that over the past three years around 20% of all prisoners released on Home Detention Curfew (HDC) were recalled to custody for breach of licence conditions. This has been presented as evidence that the present Scottish Government is “soft on crime”, and by implication that the perceived failures of the HDC system were exposing the public to agreed risk. Is that, though, the only interpretation that should be drawn from the figures.
The Legal Basis for Home Detention Curfew
With effect from 3rd July 2006, the Management of Offenders (Scotland) Act 2005 introduced a new section 3AA into the Prisoners and Criminal Proceedings (Scotland) Act 1993. The salient parts of the section read –
“(1)Subject to subsections (2) to (5) below, the Scottish Ministers may release on licence under this section (a) a short-term prisoner serving a sentence of imprisonment for a term of three months or more; or (b) a long-term prisoner whose release on having served one-half of his sentence has been recommended by the Parole Board.
(2)The power ... above is not to be exercised before the prisoner has served whichever is the greater of—(a)one quarter of his sentence; and (b)four weeks of his sentence.
(4)In exercising the power conferred by subsection (1) above, the Scottish Ministers must have regard to considerations of—(a) protecting the public at large; (b) preventing re-offending by the prisoner; and (c) securing the successful re-integration of the prisoner into the community.
Subsection (5) creates a number of exceptions where a prisoner may not be released on HDC. At present these are where the prisoner is serving an extended sentence imposed under section 210A of the 1995 Act, the prisoner is subject to a supervised release order made under section 209 of the Ac, the prisoner is subject to a hospital direction or a transfer for treatment direction made under the relevant mental health legislation, the prisoner is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003, or the prisoner is liable to removal from the United Kingdom. The former rule precluding recalled prisoners from re-release on HDC was withdrawn in December 2016.
Prisoners released in terms of the Act may be recalled to custody in certain circumstances. These are found in Section 17A of the 1993 Act, which provides that, where “it appears to Ministers that a prisoner released on licence under s.3AA has failed to comply with any condition included in his licence, or his whereabouts can no longer be monitored remotely at the place for the time being specified in the curfew condition included in the licence, they may revoke the licence and recall the person to prison”. A person whose licence is revoked must, on being returned to prison, be informed of the reasons for the revocation and of his right to make representations in writing with respect to the revocation to the Scottish Ministers. For their part, Ministers must refer the case of any person who makes such representations to the Parole Board, which may, after considering the circumstances, direct, or decline to direct, the Scottish Ministers to cancel the revocation.
Often the prisoner will have left his address, and his whereabouts may be unknown. However, failure to be home by a designated time even on a single occasion by a matter of minutes also constitutes a breach, as in some circumstances, is failure of the monitoring equipment to work satisfactorily. Change of address or permission to vary the curfew times for a specific reason (such as an important family event, or job interview) must be sought in advance, and may be refused. Leaving home during curfew hours, even to go into the back yard or garden to take the dog out or smoke a cigarette, will usually trigger an alert at the monitoring centre and breach action may be instigated.
Only prisoners identified as low risk are eligible for HDC release. The majority of prisoners selected are short term as defined in the 1993 Act, serving less than four years, but HDC is occasionally available to long-term prisoners granted parole. Police may report a suspected breach to the Scottish Prison Service for transmission to the monitoring contractor, but have no power to arrest a suspect for breach alone.
Legal Consequences of a Breach of HDC
In terms of s.17A (6) ‘‘on the revocation under this section of a person’s licence, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large.’’ Thus, where a Home Detention Curfew is breached for any reason, the licence is revoked, and the prisoner, unless already in custody is liable to immediate arrest and return to custody for all the remaining days outstanding of the sentence, until release in terms of the 1993 Act is mandatory. A warrant to apprehend is automatically granted.
Breach of HDC is not an offence in itself. This surprises some people, but arises from the distinction between the “punitive regime” constituted by the sentence imposed as punishment, and the “protective regime” arising from the need for public protection. As Ministers have already, by virtue of Section 3AA (4) above considered various statutory tests directed to public protection at the time release is directed, breach involves non-compliance with the protective regime, the offender’s freedom being curtailed by the terms of the HDC licence.
A Scottish Government Working Party Report on electronic monitoring in 2016 revealed a concerning lack of understanding of the system by some persons subject to monitoring;
“There appeared to be a lack of basic knowledge amongst monitored persons about the 'rules' of electronic monitoring. It was thought that this lack of knowledge often left monitored persons' and their families unsure about contacting G4S or the issuing authorities to ask for advice in case they were perceived to be asking 'stupid' or 'phishing' questions. It was noted that this reluctance to communicate openly with G4S or the issuing authority may, in turn, lead to unnecessary breach of the monitored person's order.”
What is clear from the widely publicised case of James Wright, convicted of murder committed in 2017 whilst unlawfully at large after revocation of his HDC licence, and not arrested after some five months, and from other cases reported in recent press reports, is that not all warrants result in the early arrest of offenders. This may raise issues both in respect of police practice and in respect of risk assessment, and it is to the latter that I turn first.
Is the HDC system failing?
The FOI figures reveal that in the three years from 2015/16 to 2017/18, a total of 4264 prisoners were released subject to HDC licence conditions, and 763 licences were breached; over the whole period that means licences were breached in 17.9% of all cases, although the percentage for the most recent year was the highest at 20.1%.
This certainly suggests that the assessment process required by Section 3AA (4) above could benefit from being made more robust. Any offender released on HDC licence should have a fixed address suitable for release, in respect of which there are no obvious ongoing concerns. A number of prisoners are refused release on HDC due to concerns over the person with whom they propose to reside, or over the proximity to complainers and other witnesses.
It does of course go without saying that in every case where release on HDC is granted, a judge has determined that there is no alternative to a custodial sentence. In many cases the offender will have failed to comply with previous non-custodial disposals. While the offenders will rarely have been convicted of the most heinous of offences, they will inevitably be perceived as, at the very least, a serious public nuisance from whom law-abiding citizens deserve respite. It is thus not wholly surprising that a proportion of such offenders struggle with the obligations of a home curfew. However, we must not lose sight of the fact that within this offender group, in most years well over 80% of offenders do comply with the obligations imposed.
The orders must run for between 14 days and six months; in practice most will run for around three months or thereby. The average annual cost of keeping a prisoner in custody is £35,325 so over three years the saving to the public purse in respect of the 3501 prisoners released on HDC who would otherwise be kept in custody, and who avoid breach proceedings would appear to be of the order of 875 “prisoner years”, or £30.91 million.
According to the Scottish Parliament’s Financial Memorandum on the Management of Offenders (Scotland) Bill the annual cost per person of electronic monitoring is £2310; to monitor 875 persons for twelve months over three years would equate to £2.02 million – a net saving of over £28 million. While recognising that breaches of HDC cannot be condoned, perhaps some perspective should be retained; how many of the persons breaching the orders should have remained in custody? At present the figures publicised do not indicate the proportion who reoffended subject to HDC and the offences with which they were charged. There is therefore no strong published evidence of a pressing need for more incarceration for public protection.
Thus, any improvement in the risk assessment process that ensures only those who present an objectively low risk of serious reoffending and have genuine prospects of rehabilitation, will result in more persons being kept in custody and will thus have a significant impact upon public finances. Spending more time and money on pre-release investigation would be welcome; during my time on the Parole Board many years ago I was struck on occasions by the limited risk assessment undertaken in the very early days of HDC, and trust that processes have become more sophisticated in the last decade.
I cannot, of course, ignore the fact that persons released on HDC do on occasions reoffend, and as stated above in once case the offender committed murder (although it might be noted that had he been apprehended immediately and served his time he would in all probability still have been at large on the date of the offence). Extreme cases, horrendous though they are, cannot in themselves be the basis for wholesale changes in the law. I have observed earlier that is not yet clear, pending full inquiries by both the Scottish Prison Service and Police Scotland, how Mr Wright managed to evade apprehension for as long as he did, so further comment at this stage would clearly be premature. Given that many breaches are committed by failure to be home at a designated time, it is far from clear how many persons released on HDC from short-term sentences objectively present a risk to the public.
Is it acceptable for persons breaching HDC not to be apprehended?
Much of the criticism of the present system in the press has focussed upon a small number of released persons who have evaded capture for their breaches for significant periods. It is reported that fifteen offenders released on HDC have not been apprehended despite being unlawfully at large for over five years. Quite clearly not arresting someone in these circumstances implies failure on the part of the arresting authorities. It cannot be stated with certainty that all these persons are alive and living within the UK, although attempting to leave or re-enter the country with a valid passport should trigger automatic action. What can be said with a degree of certainty is that these offenders have not been apprehended for any further offending, as such an arrest should automatically result in the existence of the warrant being discovered (and use of false particulars should be uncovered if fingerprint and identity checking is undertaken).
There is justifiable public concern at someone being nominally “on the run” for such a long period. While absence of arrest is not unequivocal proof of wholly blameless behaviour, it does suggest an ability to avoid situations where police interest is likely. What is perhaps less recognised in some of the more aggressive reporting is that the absence of proven reoffending over a long period is regarded in a great many circumstances as worthy of some credit.
In respect of criminal appeals the use of a reduced sentence as a remedy for a long delay in determination of an appeal has long been recognised – see for example Gillespie v HM Advocate. It is also commonplace, where a custodial sentence is quashed, for the court to defer consideration of sentence for up to a year, and where the person does not come to the adverse attention of the courts, to replace imprisonment with a lesser sentence. In Robertson, McCourt and others v HM Advocate  the High Court of Justiciary held that a delay of eighteen months in the issuing of an appellate decision interfered with the Article 6 rights of the appellants to have their cases determined within a reasonable time, and once again sentences were reduced to reflect this.
In two unreported cases in March 2011 referred to in Reed and Murdoch’s “Human Rights Law in Scotland” the appellate court declined to grant warrants to apprehend unsuccessful appellants who had been on bail throughout a lengthy appeal process given the short period remaining of the sentence. This, with respect to the critics of the failure to apprehend those who remain at large for over a year, is on all fours with current policy. It was certainly police policy in the fairly recent past that where a non-appearance warrant in summary proceedings had been outstanding for over a year without arrest, the police would no longer take active steps to enforce it, although were the offender to be arrested for a fresh matter the existence of the warrant would be discovered.
A long period of good behaviour can also prevent extradition where the offence is not of the gravest nature. In Republic of South Africa v Headrick the sheriff declined to order extradition on fraud charges where the warrant was issued in May 1996 and extradition proceedings commenced in 2004. A similar view was taken in the more extreme case of Commonwealth of Australia v O’Neill which an extradition request signed in 2008 in respect of an armed robbery in 1979 where the warrant to recall to custody for breach of parole license was issued in 1986. There may also be supervening medical issues, unknown at the outset, that militate against the law taking its course. This was the situation in Lord Advocate for the Government of the USA v SN which related to alleged bomb threats in 2012. By the time the case reached court unchallenged medical evidence showed that the accused now suffered from a plethora of medical issues including dementia.
In conclusion then, there is clearly a strong case for increasing resources that will allow more robust risk assessment before release, and to increase the likelihood of swift apprehension of those unlawfully at large. However, I remain far from convinced that the case for root and branch reform of the HDC scheme has yet been made out.
 The Home Detention Curfew Licence (Amendment) (Scotland) Order 2016
 for further details, see http://www.scotland.police.uk/assets/pdf/151934/184779/electronic-monitoring-offenders-sop, published 25th May 2018
 For a fuller explanation of the distinction, see Stuart (Simon) v HM Advocate 2010 SCCR 498.
 SPS Annual Report and Accounts 2016-17, Appendix 8a
 http://www.parliament.scot/Management%20of%20Offenders%20(Scotland)%20Bill/SPBill27FMS052018.pdf, published 2nd February 2018
 2003 SCCR 82
 2012 SCCR 411,  HCJAC 32
 Shepherd v PF Dornoch, Cairns v HM Advocate referred to at Para 5.187
 Edinburgh Sheriff Court, 27th October 2005
 Edinburgh Sheriff Court, 11th June 2010
 Edinburgh Sheriff Court, 23rd October 2017