Does accessing mobile data of rape victims threaten their right to privacy?
Last month the Justice Secretary David Gauke announced that the GPS tag pilot would be rolled out nationwide this summer. While this announcement should have a significant impact on sentencing, its greatest impact may be felt much earlier in proceedings. If the police are able to monitor the real time location of any accused person, we may see a real drop in the number of those remanded in custody.
GPS tagging works by tracking the location of a suspect or prisoner via an ankle tag, in the same manner that food delivery or taxi apps show users where their pizza or taxi is at. This allows the police and probation service to monitor a wearer’s movement in real time, either to track their movement over time, or to be instantly alerted if they go to a specific location. As the Ministry of Justice press release put it:
If a tagged domestic abuser or stalker enters a banned area or a gang member is found somewhere they should not be, this new capability will issue an automatic alert and their whereabouts will be known”.
The Ministry of Justice claims that GPS can be used to:
The impact on sentencing options is clear, community and suspended sentences will be able to contain prescriptive conditions regarding curfews or attendance at rehabilitation or treatment activities with a similar degree of enforceability as custodial (prison) sentences. Equally, where an offender needs to be kept clear of certain locations or addresses, either for their protection or the protection of others, this too can be enforced without the need for custody.
While constant tracking is an obvious intrusion into a person’s private life, it is a lesser intrusion than imprisonment. As an alternative to custodial sentences, GPS tracking is to be welcomed. However, courts are risk averse and constant monitoring provides cheap certainty over behaviour. The potential for overuse is a real threat. GPS monitoring is arguably the greatest limitation possible, short of the total restriction of imprisonment. There is accordingly a fine line to be drawn: while the courts should be encouraged to use this new technology to prevent custody, it must not become a standard term.
Recent comments from the Ministry of Justice suggest that they are minded to use these new abilities. Last month’s symbolic announcement from the Secretary of State that “prison simply isn’t working” was only the latest in a string of statements that show the Ministry of Justice has undergone a fundamental shift in its attitude towards prison. The last year has seen:
How these changes will affect those convicted of minor crimes in the short term is unclear, and it may depend on how prepared lawyers are to push for community sentences. Until new sentencing guidance is issued, legal practitioners will need to be armed with information and ready to assist magistrates and benches on sentencing options and whether the custody threshold has been reached. Likewise, if and when sentencing guidance is issued, it will be more important than ever for those on the threshold of prison to seek advice on whether they can avoid it.
While the impact of the above could be profound, GPS technology could have an even greater effect on defendants prior to sentence. Hidden in the announcements about custody, the Ministry for Justice also announced that GPS will be available for defendants bailed by the court.
For many who find themselves subject to charges for the first time, the idea that they can be sent to prison before they have a chance to prove their innocence comes as a nasty shock. This is nonetheless an option open to the court where it is necessary for the purpose of ensuring a person surrenders to custody, does not commit another offence on bail, cannot interfere with witnesses or otherwise obstruct the course of justice, and/or for their own protection. Where the court fears that an accused person will do any of the things listed above, it can impose conditional bail to avoid remanding them to custody. However, courts are often concerned with how such conditions will be enforced, and government statistics show that ever increasing numbers of accused persons are losing this argument.
Last year, more than one in three people appearing at the crown court were remanded to custody before their trial, or any finding of guilt or innocence. Of this group, 30% did not receive an immediate prison sentence after trial. The impact of even a short time in prison can have wide-reaching reverberations. As the Ministry of Justice admitted last year, the social, financial and familial effects of even a few days inside – in terms of loss of employment or reputation and the impact on children - can be devastating.
GPS will allow for prescriptive bail conditions to be enforced at little cost to the police and probation services. As with sentencing, this should allow courts to keep people out of prison. Where concerns arise around non-contact, exclusion areas can be enforced, by the minute, 24 hours a day; where concerns focus on a defendant absconding, GPS will allow them to be tracked up until the moment they enter the court room. Even where the concern is around further offending, creative conditions could demonstrate a commitment to avoid situations where an opportunity will arise – for instance requiring a defendant to be home during the evening (if this is when offending regularly occurs) or to attend an alcohol monitoring programme (if this has previously been a trigger). Indeed, if GPS is well received by the court, there may only be a very limited number of situations where creative conditions would be insufficient to facilitate bail.
Given the recent trend towards increasing use of custody before conviction, the reaction of the courts to these new possibilities is even less clear than with sentence. Judges and magistrates will understandably want reassurance that new technology can work, and practitioners will need to stay abreast of Ministry of Justice publications on GPS effectiveness. Those subject to investigation may also want to take advice at a very early stage as bail hearings can happen prior to first hearing.
As with any new announcement, particularly one based on technology, the full effect of these changes in practice will only be clear over time. However for those awaiting trial or sentence, the effect could be immediate.
Should you have any questions about the issues covered in this blog, please contact a member of our Criminal Law team.
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