Amendment 104 will remove the power of arrest in section 12(3A), which was voted on at stage 2. That provision enables a constable to arrest an individual if they have reasonable grounds to suspect that that individual has contravened the requirement to wear and refrain from damaging the electronic tag. The implication is that that arrest may be effected without a warrant.
The police already have powers to arrest an individual who is suspected of having committed an offence, but a breach of the electronic monitoring requirements by an individual who is serving a community sentence or subject to licence conditions is not an offence in itself. The power of arrest would not therefore apply when an individual cut off their tag. The unlawfully at large offence that we created at stage 2 would, of course, enable the police to arrest an individual if they had cut off their tag and failed to return to custody following recall. People who are unlawfully at large can be arrested without a warrant.
It is not clear from the powers of arrest in section 12(3A) what a constable is to do with an individual who is suspected of having breached an electronic monitoring requirement. An individual on licence is liable to be returned to prison only if the licence is revoked. Therefore, a constable who arrests an individual only on suspicion that they may have breached their licence could not return that individual to prison. An individual who is serving a community sentence is liable to be brought before the court only if the breach procedures for that community sentence have been invoked. A constable who arrests an individual only on suspicion that they have breached their community sentence could not return that individual to prison or take them to court. There are existing powers for the police, the Scottish ministers and the courts to deal with an individual if they have breached the terms of the licence or community sentence. People on licence can be recalled to prison and people who are serving a community sentence can be fined or sentenced afresh—even to imprisonment, of course.
A further point to note is that Mr Kerr’s amendment 105 also uses the word “offender”. At stage 2, the Justice Committee took great pains to ensure that that word was omitted from the bill, as we have confirmed in relation to previous amendments this afternoon.
It is clear that the power of arrest in section 12(3A) is unnecessary and that the creation of a specific statutory power of arrest is a departure from the use of a general power of arrest if an offence has been committed, as agreed by the Parliament in 2016. Police Scotland has also expressed its concerns to us about the limitations on how that power could be used. The creation of a power to arrest an individual without a warrant in the absence of a criminal offence being suspected or committed and without a duty on the individual to return to prison would be confusing and could even potentially represent a breach of article 5 of the European convention on human rights.
Amendments 105 and 130 would create the offence of cutting off a tag. My first reason for urging members to reject amendment 105 is because a near-identical form of the amendment was rejected at stage 2, and my arguments against that amendment continue to apply. Indeed, the only change to the earlier amendment is the provision of a limited form of statutory defence.
Secondly, the new unlawfully at large offence ensures that those who cut off their tag and abscond will be committing an offence. Making one specific part of the same course of behaviour a further offence is therefore not necessary.
Thirdly, the proposed offence of cutting off a tag carries a maximum sentence of 12 months’ imprisonment. There would be a presumption against imprisonment for the new offence. Under the proposal, the individual may therefore be more likely to receive a fine.
Fourthly, there are already sanctions for those who cut off an electronic tag or otherwise breach the conditions of a licence or community sentence. The individual can be recalled to prison or, indeed, returned to court, to face further punishment for the breach.
Fifthly, the creation of an offence of cutting off a tag could result in an individual who is serving a community sentence being fined for breaching the community sentence and for cutting off their tag. That would mean two separate financial punishments being imposed on an individual for the same course of conduct. In contrast, the unlawfully at large offence would not apply to community sentences, thereby avoiding the risk of double punishment.
The defence that amendment 105 provides would not protect an individual whose tag is damaged accidentally or removed forcefully by a third party. A defence of reasonable excuse would be required to ensure that an individual was not convicted of an offence for conduct over which they had no control. The proposed offence would elevate the electronic monitoring requirement above all other conditions in the licence or community sentence, even if those other conditions were more important in protecting the public. For example, an individual who stayed in the house and cut off the tag would be committing an offence, whereas an individual who breached a condition not to go near a primary school would not.
Amendment 130, in the name of Daniel Johnson, is similar in nature to amendment 105, so the same arguments apply. Although the defence that is proposed in amendment 130 is framed differently, it attracts the same criticism as the defence for which amendment 105 provides. An individual who accidentally damaged their tag, or whose tag was forcefully removed against their will, would not be afforded a defence under that amendment.
An additional difficulty with amendment 130 is that there is no specific punishment for the offence. While amendment 105 specifies the maximum punishment on summary conviction for the cutting off of a tag, there is no punishment specified at all in amendment 130. It is not clear whether the offence that would be created by amendment 105 could be tried only summarily or in solemn proceedings as well. I urge members to vote to reject those two amendments.
Margaret Mitchell’s amendment 146 is broadly similar to the amendment that she lodged at stage 2, which was rejected. The reasons for rejecting the amendment remain the same. The only change to the wording is the addition of qualifying language that states that, when there is a suspected breach, the designated person
“must notify such bodies mentioned in subsection (3) as they consider appropriate.”
The amendment would place an obligation on the designated person—currently, G4S—to report every suspected breach of a community sentence or licence condition to the police, as there are currently no other bodies specified in subsection (3).
The breach would also require to be reported whether or not the designated person considered that it should be addressed by the police. The duty to report a suspected breach would apply irrespective of whether the individual required to be recalled to prison under the terms of their licence or whether any enforcement action was to be taken. For example, an individual who is five minutes late for their home detention curfew would require to be reported to the police, even though the police would not act on that information unless the individual had been recalled, which in most instances one would suspect would not be the case.
The drafting of amendment 146 means that the provision would apply where the individual was suspected of having breached a section 3 disposal or a section 7 licence condition. There is no reference to an electronic monitoring requirement, so it would capture any breach of a disposal or licence listed in sections 3 or 7, even where no electronic monitoring requirement was imposed.
Finally, the obligation to inform is also confusing, as it specifies two different timescales for compliance. The first is “Immediately” after the suspicion arises and the second is
“or as soon as is reasonably practicable”.
For all those reasons, I ask members to reject amendment 146.
I move amendment 104.