Policy paper

Electronic monitoring in the Police, Crime, Sentencing and Courts Bill: Equalities Impact Assessment

Updated 2 August 2023

1. Policy summary

The Sentencing White Paper 2020 proposed changes to electronic monitoring, where this is imposed to monitor compliance with a curfew requirement within a community order or suspended sentence order, to make it a more flexible measure.

The maximum length of a curfew requirement will be increased from 12 months to 24 months, which will bring it in line with the maximum period for exclusion zone requirements. Longer curfews increase the opportunity for the restrictions and structure imposed to help break habits and limit opportunities to offend, potentially helping to establish positive changes in behaviour including a chance to maintain family ties and remain in work or education while providing additional safeguards. It will continue to remain up to the sentencing court to determine the appropriate length of curfew in each case.

The maximum curfew hours that may be imposed in a day will be increased from 16 hours to 20 hours, however, the current weekly maximum total of 112 hours will be maintained. This change will allow for the curfew order to be directed where it has the potential to make the most impact, by focussing the greater restrictions during leisure time, while supporting rehabilitation by enabling an offender to attend work, training or treatment or fulfil caring responsibilities during non-curfew time.

Currently any changes to curfew, however small, must be approved by the court. Through the Bill, we will give probation officers limited powers to amend electronic monitoring requirements, where the changes do not undermine the weight or purpose of the requirement imposed by the court. Powers are limited to a shift in start and/or end times of the curfew periods (the number of hours imposed may not be changed) and a change to the offender’s curfew address. Giving probation officers the power to adjust curfews in these limited ways will save court and probation resources. There will also be advantages for offenders, for example where work hours are altered or the curfew address needs to be changed quickly.

The purpose of these measures is to increase the potential for a more creative and flexible approach to how curfews are used, to better reflect the punishment intended and better support rehabilitation.

2. Equality duty

Section 149 of the Equality Act 2010 (“the EA”) requires Ministers and the Department, when exercising their functions, to have ‘due regard’ to the need to:

• eliminate discrimination, harassment, victimisation and any other conduct prohibited by the EA;
• advance equality of opportunity between individuals (those who share a relevant protected characteristic and those who do not); and
• foster good relations between individuals (those who share a relevant protected characteristic and those who do not)

The ‘due regard’ duty relates to the nine protected characteristics specified in the EA:

• race (ethnicity)
• sexual orientation
• marriage/civil partnership
• gender (sex)
• religion or belief
• gender reassignment
• disability
• age
• pregnancy/maternity

3. Equalities Data and Affected Groups

Community sentence outcomes – including the use of curfew requirements – are influenced by judicial behaviour and this will determine impacts and volumes and the consequential outcomes by protected characteristics. The table below shows the current distribution by sex, ethnicity and age of those who could be in scope for these measures in the future.

3.1 All adults sentenced to CO or SSO in 2019, excluding reparation orders and referral orders

Source: Sentencing data tool - Criminal justice system statistics quarterly: December 2019

Sex (where known)	Number sentenced	Percentage
Male	94,961	84%
Female	18,470	16%
Total	113,431

Ethnicity (where known)	Number sentenced	Percentage
White	39,546	82%
Black	4,035	8%
Asian	2,591	5%
Mixed	1,389	3%
Chinese and other ethnic groups	620	1%
Total	48,181

Age range (where known)	Number sentenced	Percentage
18-24	23,922	21%
25-29	20,107	17%
30-39	36,681	32%
40-49	21,346	19%
over 50	13,152	11%
Total	115,208

The electronic monitoring (EM) measures that concern curfew propose an increase in the length and flexibility of court-ordered electronically-monitored curfews, and allow probation officers to make limited amendments to curfews without needing to return to court, provided they have the offender’s consent to the change.

The increased length of curfew and more flexibility in how the measure may be applied provides increased opportunities for offenders to serve their sentence in the community, regardless of the particular protected characteristics they have. The increased flexibility in the EM measures may, additionally, be able to support compliance for any offenders subject to EM curfew requirements.

The protected characteristics data we have for EM concerns gender and age and there is nothing to lead us to think that a change that allows for a longer (overall length of monitoring, and longer daily curfew) and more flexible curfew for CO/SSOs would have a disproportionate impact that would be likely to result in a particular disadvantage.

3.2 Gender

Data for community orders and suspended sentence orders as imposed by gender, shows that 84% are for males and 16% for females. Corresponding electronic monitoring data by gender for community sentences is not available. However, published data for 2019/20 show that for the total of electronic monitoring imposed 89% were male and 11% were female. ^{[footnote 1]}

3.3 Ethnicity

Data for community orders and suspended sentence orders as imposed by ethnicity shows that 82% of subjects were white, the second largest group is black at 8%, Asian 5%, mixed 3% and Chinese and other ethnic groups 1%. Corresponding electronic monitoring data by ethnicity for community sentences is not available. ^{[footnote 2]}

3.4 Age

Data for community orders and suspended sentence orders as imposed by age, show the largest proportion to be in the 30-39 age range at 32%, followed by 18-24 year olds at 21%, 40-49 years comprise 19%, 25-29 17% and over 50 11%. Corresponding electronic monitoring data by age for community sentences is not available. However, published data for 2019/20 show that for the total of electronic monitoring imposed 31% were aged 21-29 and 29% aged 30-39.^{[footnote 3]}

The changes to electronic monitoring will apply equally to the protected characteristics of gender, ethnicity and age.

3.5 Disability

We are not able to identify by this protected characteristic those affected by this policy as we do not have the data available. In so far as these EM measures extend to disabled offenders, we believe that the policy is proportionate, having regard to its aim. It would not be reasonable to make an adjustment for disabled offenders so that they are out of scope of the proposals, but it remains important to make reasonable adjustments for disabled offenders to ensure appropriate support is given.

3.6 Religion or Belief

At the end of September 2017, 48% of the prison population self-reported to be of a Christian faith, a decrease of 10 percentage points since June 2002. ^{[footnote 4]} The proportion of Muslim prisoners increased over the same period by 7 percentage points to 15%. However, we are not able to identify by this protected characteristic those affected by this policy.

3.7 Marriage/Civil Partnership

We are not able to identify by this protected characteristic the cohort of offenders affected by this policy as we do not have the data available.

3.8 Sexual Orientation

In 2019, 97.3% of prisoners in England and Wales who declared a sexual orientation reported that they were heterosexual^{[footnote 5]}, slightly higher than that of the UK general population in which 94.6% identified as heterosexual in 2018.^{[footnote 6]} However, we are not able to identify by this protected characteristic those affected by this policy.

3.9 Pregnancy/Maternity

We are not able to identify by this protected characteristic those affected by this policy as we do not have the data available. We will continue to ensure the provision of Mother and Baby Units in prisons, and support within community settings.

3.10 Victims

We are not able to identify by protected characteristics the victims of the specific cohort of offenders affected by this change as we do not have the data available. The changes we are making will affect victims in that they may feel protected for longer from the risks presented by the offender which has caused a curfew requirement to be imposed and they may be more likely to consider that the punishment better reflects the harm they have suffered. This could also increase the confidence of victims and the public in the administration of justice.

4. Equality considerations

4.1 Direct discrimination

We believe that the Electronic Monitoring measures that are included in the Police, Crime, Sentencing and Courts and Bill are not directly discriminatory within the meaning of the EA as they apply equally to all offenders. We do not consider that the proposals would result in people being treated less favourably because of a protected characteristic.

4.2 Indirect discrimination

Indirect discrimination occurs when a policy applies equally to all individuals but would put those with a protected characteristic at a particular disadvantage compared to those who do not. Our initial assessment is that these changes are not likely to be indirectly discriminatory within the meaning of the EA since individuals with protected characteristics are not likely to be put at a particular disadvantage from changes to the Electronic Monitoring measures.

This policy may result in more curfew requirements for those on CO and SSOs who may have previously received short custodial sentences. As is the case more generally across England and Wales, there is overrepresentation of certain people in the criminal justice system with protected characteristics. Groups overrepresented in the prison population are as follows^{[footnote 7]}:

• those who are male
• those aged between 18 and 39
• those with a disability
• those with a Black or Black British ethnicity, or from a mixed ethnic group
• those who are Muslim

4.3 Fostering Good Relations

Our assessment is that these changes are unlikely to impact on fostering good relations between groups with different protected characteristics.

4.4 Monitoring of impacts

The equality duty is an ongoing duty. We will draw on any data that could provide evidence on the impact of these changes to inform any future review of how the policy works for all affected offenders, including those with protected characteristics who are currently overrepresented in affected groups.

1. HM Prison and Probation Service Offender Equalities Annual Report 2019/20 ↩

2. Criminal justice system statistics quarterly: December 2019 ↩

3. HM Prison and Probation Service Offender Equalities Annual Report 2019/20 ↩

4. Prison Statistics, England and Wales, 6 December 2017 ↩

5. HM Prison and Probation Service Offender Equalities Annual Report 2018/19 ↩

6. Office for National Statistics - Sexual orientation, UK: 2018 ↩

7. See Prison Population December 2017, Offender Management statistics quarterly: July to September 2017. For those serving a life sentence or a sentence of imprisonment for public protection, males are slightly overrepresented with respect to the total prison population (96.77% of life and IPP prisoners as opposed to 95.36% of the total prison population, see ibid. tables 1.1 and 1.9a.) Information about other protected characteristics is not available for this subset of prisoners. ↩