15. Restricted Movement
At the time of writing, a restricted movement requirement can only be imposed by the court as a sanction for breaching the terms of the original Community Payback Order (CPO) and cannot be imposed at first instance. The restricted movement condition is similar to a Restriction of liberty order (RLO) in that it requires the individual to remain at a specific address for up to 12 hours a day and/or to stay away from a specific address for up to 24 hours a day. Compliance with the requirement is monitored electronically by the same company responsible for monitoring compliance with RLOs.
If the individual fails to comply with a restricted movement requirement, the electronic monitoring company will send a report to the responsible officer, not to the court, within 2 working days of the failure occurring. The responsible officer is then required to submit a breach report to the court, providing information on the individual's compliance with the CPO, including the report on non-compliance with the restricted movement requirement provided by the electronic monitoring company.
Given that a restricted movement requirement can only be imposed following breach, failure to comply with the terms of a restricted movement requirement should be considered as a serious breach.
A failure to comply is:
- absence from the restriction address during the time of restriction;
- presence at an address the individual is restricted away from;
- withdrawing consent to electronic monitoring;
- tampering with or damaging the electronic monitoring equipment.
Some absences do not constitute a failure to comply, provided they have been independently confirmed. These include medical or dental appointments, job interviews, attendance at court and police custody.
There are 3 levels of breach which are defined in the RLO/Electronic Monitoring guidance handbook and also in the contract between the Scottish Government and the Electronic Monitoring Service Provider for the provision of the electronic monitoring services in Scotland. These levels of breach, which are listed below, will also apply to restricted movement requirements and failure to comply will lead to a report being forwarded to the responsible officer:
- absence for a significant part of a restriction period;
- tampering with or damaging the electronic monitoring equipment to the extent that replacement is required;
- withdrawal of consent to electronic monitoring;
- physical assault on any of the service provider's staff.
- short absences which have accumulated to a level which requires a report.
- presence at an address restricted away from.
The report provided by the electronic monitoring provider will contain details of the failure to comply and any reasons for the failure provided by the individual. The report will be accompanied by a computer generated report which will be certificated as evidence and which will provide the exact date and time of the failure as identified by the electronic monitoring system.
The report and accompanying evidence provided by the electronic monitoring company should be submitted to the court within 5 working days of being received by the responsible officer.
As with breaches of any requirement, the responsible officer should continue to engage with the individual in relation to any other requirements imposed. The electronic monitoring company will also continue, wherever possible, to monitor compliance with the restricted movement requirement. When submitting the breach report, the responsible officer should provide the court with full information on the individual's performance in respect of the other aspects of the CPO.