New Council of Europe recommendations on electronic monitoring and the role of the Confederation on European Probation (CEP)

This blog has kindly been provided by Mike Nellis, Professor Emeritus at Strathclyde Law School’s Centre for Law, Crime and Justice and Dr Dominik Lehner Head of Penal Services, Justice and Security Department, Basel. Dr Lehner introduced the use of electronic monitoring in Switzerland in 2000 and he and Professor Nellis, an academic expert on electronic monitoring, were nominated to advise the CoE’s Council for Penological Cooperation (PC-CP) by the CEP (the European Probation Organisation).

European cooperation in the field of enforcement of penal sentences aims to improve justice, to execute sanctions effectively and to reduce the incidence of offending, all with full respect for the human rights and dignity of offenders. Within Europe the electronic monitoring of offenders has always been a somewhat contentious sanction, more so than probation, drug treatment or community service.  Recently, the Council of Europe formally adopted 40 rules of recommended practice in electronic monitoring, which will hopefully provide useful guideline for its future development in its 47 member states, and possibly outside Europe as well.

The roots of this initiative lay with the Confederation of European Probation (CEP) which has played an important and active role in respect of electronic monitoring in Europe, organising a series of sponsored conferences on the subject since 2002 – the ninth will take place this year. The Conferences have kept track of the ongoing development of electronic monitoring in different countries, upgrades and changes in technology, and has tried to give special attention to quality standards and to the unique ethical issues it raises.

Delegates to the conferences soon recognised the necessity of European guidelines on electronic monitoring to ensure that it expressed, rather than challenged or contradicted, the core values associated with probation services, notably rehabilitation and reintegration. The Council of Europe also began to encompass principles relating to electronic monitoring. Its Recommendation (92) 16 on community sanctions and measures came close to saying what was needed, but still neglected some aspects of what “quality” might mean in electronic monitoring. Even the most recent iteration of the European Probation Rules remained very basic in its understanding of how electronic monitoring should be practised, and perhaps unduly confident that two simple rules, one on rehabilitation and the other on proportionality, could constrain it:

57. When electronic monitoring is used as part of supervision, it shall be combined with interventions designed to bring about rehabilitation and to support desistance.

58. The level of technological surveillance shall not be greater than is required in an individual case, taking into consideration the seriousness of the offence committed and the risks posed to community safety.’ (Council of Europe 2010)

In 2010, the CEP suggested to the Council of Europe that something more comprehensive and definitive was needed. The Committee on Crime Problems (CDPC) entrusted a sub-committee, the Council for Penological Cooperation (PC-CP), with the task of designing a Recommendation on EM. Mr. Andre Vallotton was the chair of the Council, Ms. Ilina Taneva its secretary. The CEP recommended itself as consultant experts to the PC-CP (naming ourselves) and the work took place over several meetings, mostly in Strasbourg, one in Paris, one in Glasgow, in the period between 2011 and 2013. The Recommendation was formally adopted by the Committee of Ministers on 19 February 2014.

Crucially, the Recommendation recognizes that other agencies apart from probation manage electronic monitoring – prisons and police do so too – but the core concerns of the existing Probation Rules about rehabilitation and proportionality, are infused throughout it, however with additional rules and different accentuation arising from the distinctive nature of electronic monitoring. The first major issue was to identify the various ways in which it was used in Europe.  As the following list shows it is clearly a very versatile measure, capable of insertion at many  points in  the penal process, although no one national jurisdiction uses all the forms:

• during the pre-trial phase of criminal proceedings;
• as a condition for suspending or of executing a prison sentence;
• as a stand-alone means of supervising the execution of a criminal sanction or measure in the community;
• in combination with other probation interventions;
• as a pre-release measure for those in prison;
• in the framework of conditional release from prison;
• as an intensive guidance and supervision measure for certain types of offenders after release from prison;
• as a means of monitoring the internal movements of imprisoned offenders and/or the perimeters of open prisons;
• as a means for protecting specific crime victims from individual suspects or offenders

The CD-CP mandated the committee not to look at the use of “inmate tracking systems” in prisons (which monitor the movements of prisoners within institutions, and can also create electronic perimeters around open prisons). These are in any case little used in Europe at present. The CD-CP also discouraged specific examination of electronic monitoring with juvenile offenders (also rare, but increasing) because youth justice is the preserve of another committee; nonetheless, some of the observations made in the new Recommendation would hold good with younger age groups, if agencies are minded to use them.

In order to gather up-to-date information on the use of electronic monitoring in member states the PC-CP sent out a questionnaire – adapted from the one used by CEP to gather information from its members for each of its recent conferences. A new question was added about data protection, because this seems to be an area to which insufficient thought has been given, despite the new human rights challenges posed by GPS tracking systems.

Given the variety of electronic monitoring schemes throughout Europe and the different ways of dealing with questions concerning the restriction and deprivation of freedom, with intrusion into privacy, and with the significance (or otherwise) of the offender’s consent to being supervised in the community, creating a Recommendation on electronic monitoring that would have relevance and credibility across all 47 countries was inevitably difficult. Some of the resulting rules might arguably have been more stringent, but account was taken of established local practices, and sensible concessions made. This was particularly true on the question of consent, which is more complex in respect electronic monitoring than many realise: even when formal consent is not legally required it is in the very nature of electronic monitoring technology that the offender’s active co-operation with it is required –  eg. agreeing to charge it regularly – if the monitoring arrangements are to work. To take another example: some recipients of the Recommendation may have hoped for stronger opposition to the use of private sector organisations in the service delivery of electronic monitoring, but a principled stand on this was not within the committee’s remit.  It is the intention of the Recommendation to persuade, not to instruct. The unifying element is an insistence that the use of something as potentially intrusive as electronic monitoring is fully regulated by law and permits judicial review of all key decisions.

Recommendation (2014) 4 is timely. Over the years many understandable fears have been expressed by European probation services, and civil libertarians more generally, in relation to the surveillance implications of tagging and tracking technologies. European experience to date has shown that EM can indeed be a useful form of offender supervision, within a framework in which other programmes may also be applied. The key question is; is this how it will remain in the future? The Recommendation addresses all competent public agencies, associations, private companies and persons involved with the execution of electronic monitoring, as well as national authorities, and all must be drawn into a debate about best practice, and into an understanding of what must be done to ensure that the worst does not come to the worst, as it so easily could with this technology.

Further information

The Council of Europe Recommendation on electronic monitoring can be found here.

A Commentary on the Recommendation can be found here.

More Council of Europe recommendations on prisons and Community Sanctions and Measures can be found here.

More about the authors

Mike Nellis is an Emeritus Professor in Criminal Justice at Strathclyde Law School’s Centre for Law, Crime and Justice, having previously been Professor of Criminal and Community Justice in the Glasgow School of Social Work, University of Strathclyde to 2010. He has written extensively on the changing nature of the probation service, the promotion of community penalties, the significance of electronic monitoring, including recently: Electronically Monitored Punishment: International and Critical Perspectives (2012), published by Random House, which looks at the development of electronic monitoring around the world.