By Dr Arianna Andreangeli, Senior Lecturer in Competition Law, Edinburgh Law School, University of Edinburgh

Remote monitoring is a phenomenon we are very familiar with. In a way, we are all being monitored remotely, whether via public or private CCTV systems. However, some individuals are subject to individual monitoring by way of judicial or administrative decisions. Offenders, for instance, can be subjected, in specific cases and upon their consent, to electronic tagging, often together with other restrictive measures such as night curfew, instead of imprisonment. Individuals seeking asylum can also be tagged in certain circumstances - for instance, after their application for refugee status is turned down and before repatriation.

“Sobriety tagging”, or, transdermal alcohol monitoring, recently made the headlines in Scotland when Justice Secretary Hamza Yousaf MSP announced it could be made available as part of sentencing conditions in lieu of imprisonment. This decision was made possible by the enactment of the Management of Offenders (Scotland) Act 2019, which empowers the courts to use remote monitoring as a means of more effectively controlling offenders. “Sobriety tags” are water-resistant appliances placed on the ankle, and are designed to test sweat at regular intervals to check whether an individual has consumed alcohol. This information is then sent to a monitoring body—in Scotland’s case, G4S, to which a contract was recently awarded—and accessed by the probation authorities to ensure that offenders are observing the conditions of their sentencing.

It could be argued that sobriety tagging should be welcomed, if cautiously, because it allows offenders to spend their sentences out of prison, and keeps them connected to their families and community. Monitoring alcohol consumption in a problem drinker could also be seen as a way of boosting the chances of their recovery. A pilot study on the use of remote transdermal monitoring as an aid to rehabilitation at the University of Glasgow in 2010-2011, reported encouraging results: monitored individuals had greater chances of reducing their alcohol consumption, reintegration in their community and a lower chance of reoffending (Goodall et al. 2012).

However, like all forms of monitoring, sobriety tagging raises significant legal issues. Though it could be argued that sobriety tagging is unlikely to amount to a “restriction of liberty” that infringes the individual’s right to liberty – as enshrined in Article 5 of the European Convention on Human Rights (ECHR) and protected by Section 1 of the Human Rights Act 1998 – there is no doubt that it constitutes an intensive interference with the individual’s right to private life, enshrined in Article 8 of the ECHR. This is because the sobriety tags collect medical information, which is a particularly sensitive kind of information, and transmit this back to a monitoring body that makes the information available to the probation authorities.

This interference is clearly justified as a means of preventing crime and disorder and is prescribed by law that is sufficiently clear and accessible. However, the question remains as to whether sufficiently strong safeguards accompany it, especially when it comes to the processes by which the monitoring measure is imposed and executed. That an individual must consent to this form of monitoring by a judicial decision is clearly a strong safeguard. Yet, one cannot help but wonder whether the involvement of private contractors in the monitoring process is compatible with principles of clarity, legal certainty and proportionality, when it comes to the way in which the individual’s fundamental rights are interfered with.

The role of the private sector in the context of the remote surveillance of individuals in the criminal justice system has been widely criticised. A parliamentary report, published in 2014, highlighted the dependence of the UK Government on only a few contractors for electronic monitoring of offenders. We must ask ourselves: are these firms “too big to fail”, and are they held sufficiently accountable in respect of their observance of the rules governing data privacy? These questions are likely to be even more pertinent in the case of sobriety tagging, given the very sensitive nature of the information collected.

Finally, from a legal perspective, it is important to ask what evidentiary value the monitoring report collected by the contractors will have if an individual reoffends while wearing an ankle monitor. Will the Procurator Fiscal be able to access the reports? This is a very important question, because committing an offence while inebriated is an “aggravating circumstance” in Scotland. The records from a transdermal monitor concern bodily fluids, which exist independent of the will of an individual and are therefore not covered by the right not to incriminate one-self. In this sense, if a report detailing alcohol consumption is disclosed in the course of investigation or trial, the individual and their counsel should, at a minimum, be given the same access to it to prepare a defence.

The use of transdermal alcohol monitoring in the context of the criminal justice system should be carefully thought through. Many questions remain open, ranging from the need to comply with important privacy safeguards, to the provision of strong governance frameworks for the supervision of contractors and their adherence to standards of confidentiality and efficacy. Finally, there is a need for clarity on the future status of monitoring reports – particularly for the purpose of recall and of trial for offences committed while under remote surveillance.

References

Goodall et al., “Reducing the harmful effects of alcohol misuse: the ethics of sobriety testing in criminal justice”, (2012) 38(11) J of Med Ethics

All SHAAP Blogposts are published with the permission of the author. The views expressed are solely the author's own and do not necessarily represent the views of Scottish Health Action on Alcohol Problems.