1.Following consideration of the Compulsory Electronic Monitoring Licence Condition (Amendment) Order 2021 by the Committee at its meeting on 27 October 2021, the Committee requested that the Ministry of Justice submit a memorandum on the following points:
1. In relation to article 1(3)(a), explain—
(a) when “the period before this Order comes into force” is intended to begin; and
(b) whether it is intended that the condition of being required to reside on licence within one of the six specified areas must be fulfilled for the whole of that period or whether the intention is that the condition is satisfied so long as the requirement applied immediately before commencement.
2. Explain what power is relied on to make the Order apply retrospectively to persons who fall within article 1(3)(a).
3. Explain what proportionality assessment was carried out in relation to the impact on the Article 7 rights of persons who fall within article 1(3)(a) of extending the list of specified areas, and thereby potentially extending the duration of the electronic monitoring condition as described in paragraph 6.4 of the Explanatory Memorandum.
2.The Department is grateful for the Committee’s consideration of this instrument and responds as set out below.
3.In relation to the first point: Article 1(3)(a) is intended to apply only to those persons who were required to have an electronic monitoring (“EM”) condition included in their licence in accordance with the terms of the Compulsory Electronic Monitoring Licence Condition Order 2021 S.I. 2021/330 (“the Earlier Order”) and only to the extent they were required to have that EM condition included in their licence immediately before commencement of the present Order.
4.Under the Earlier Order if, with the consent of their probation officer, a person changed address and moved out of one of the six specified areas then the compulsory EM condition was no longer required to be included in their licence. But if the person changed address and moved within one of the six specified areas the compulsory EM condition remained. The effect of the present Order is to add additional specified areas. In addition it provides through article 1(3)(a) that if immediately before the present Order came into force a person was subject to a mandatory EM condition because they resided in one of the six specified areas then, after the present Order came into force, changes address and moves to one of the new areas listed in the present Order then an EM condition remains compulsory, in the same way as if that person had moved within one of the original six specified areas.
5.Accordingly, as regards paragraph (a) of the first point, the intended scope of “the period before this Order comes into force” is the period between the date the Earlier Order came into force and the date the present Order came into force.
6.As regards paragraph (b) of the first point, that period is only relevant insofar as the person is required to have an EM condition included in their licence immediately before commencement of the present Order; in particular, that immediately before commencement they are required to reside on licence in one of the six specified areas.
7.We acknowledge that on the face of it article 1(3)(a) appears to apply to any person released on licence at any period before the present Order comes into force who has been required to reside on licence within one of the six specified areas for any period of time. However, the present Order has to be read with the instrument it is amending, the Earlier Order. The effect is that that the scope of persons who by virtue of article 1(3)(a) will, as a matter of law, be required to have the EM condition included in their licence, will only be those subject to the Earlier Order, and only to the extent that they were required to have that condition in their licence immediately before the date the present Order came into force and whom now reside in an area specified in the present Order.
8.In relation to the second point: We do not consider the Order applies retrospectively, as it does not change whether a person released from prison before it comes into force is required to have an EM condition compulsorily included in their licence or the terms pursuant to which, up to the date the present Order comes into force, that condition will remain in their licence. That is to be determined by the unamended parts of the Earlier Order.
9.For those persons required by the Earlier Order to have the EM condition included in their licence immediately before the present Order came into force, the present Order prospectively changes the terms pursuant to which such EM condition will remain in their licence. It does this chiefly by expanding the number of specified areas the person may be required to reside on licence and still have the EM condition included.
10.In relation to the third point: We do not consider Article 7 ECHR is engaged by the present Order or the Earlier Order. Licence conditions have no punitive function but rather are imposed to protect the public or to promote rehabilitation. The changes to the circumstances of when the compulsory licence condition may be imposed is more appropriately cast as a change to the execution of the penalty, or the administration of the sentence. The penalty is the custodial sentence set by the court and licence conditions are tools used by the Secretary of State for the management of offenders on licence in the community as part of the administration of the sentence. As a licence condition is an execution or enforcement component of the sentence which has been handed down by the court, they are not an additional or new penalty being imposed retrospectively for the purposes of Article 7. There is an established body of case-law to that effect: Uttley v UK (Application No. 3694/03), Csoszanski v Sweden (Application No. 22318/02), M v Germany (Application No. 19359/04), Hogben v United Kingdom (Application No. 11653/85, 3 March 1986); Del Rio Prada v Spain (Application No. 42750/09, 21 October 2013), Abedin v the United Kingdom (Application No. 54026/16).
11.Further, the maximum duration the EM condition may be included in a licence in accordance with the (amended) Earlier Order remains unchanged by the present Order.
12.If the Committee requires any further explanation or clarification the Department would be pleased to assist further.