Restriction of Liberty Orders

Legislation: s245A-245J of the Criminal Procedure (Scotland) Act 1995

The Restriction of Liberty Order etc. (Scotland) Regulations 2013

A Restriction of Liberty Order (“ROLO”) is commonly-known as a “tag”.

Where a person is convicted of an offence punishable by imprisonment, the court can impose a ROLO as an alternative. The exception, as ever, is an offence “the sentence for which is fixed by law” (e.g. murder). ROLOs can only be made by the High Court of Justiciary, Sheriff Appeal Court and Sheriff Court (so not the Justice of the Peace Court).

A ROLO restricts the convicted person’s movements “to such extent as the court thinks fit”. This can mean either requiring them to be somewhere at a certain time, or not being somewhere at a certain time. Most commonly, they are used to keep people in a particular address at night (effectively, a curfew).

A ROLO tends to involve a private company (such as G4S or Serco) installing a remote monitoring box in the place where the person is to stay, and the convicted person wearing an electronic tag. The monitoring box will alert the company as soon as it does not detect the presence of the tag within the address. The monitoring box has an attached phone, which the company can call to check whether the convicted person is present to answer.

A ROLO can last for up to twelve months. It cannot confine the convicted person to a certain place (or places) for more than twelve hours a day.

A ROLO can only be made once a court is satisfied that the order can be properly monitored. Additionally, it can only be made unless the convicted person agrees to comply with it after its requirements, consequences for failing to comply and possibility for review are explained to them “in ordinary language”.

If the ROLO is to keep the convicted person in a specified place (or places) at certain times, the court must obtain and consider a written report from a local authority officer about the suitability of the place (or places) in question, including “the attitude of persons likely to be affected by the enforced presence there of the offender”. The court can also hear evidence from the officer who prepared the report if necessary.

In practice, a “ROLO Assessment” is usually ordered when sentence is deferred for the preparation of a social work report. The local authority officer will go to the address in question and speak with the householder to see whether they are willing to have the convicted person reside there, and whether they will agree to the installation of monitoring equipment in their home. If they refuse, then the convicted person must either offer an alternative address or accept that a ROLO cannot be made as an alternative to imprisonment.

Breach of ROLO

If it appears that the convicted person has breached their ROLO, then they can be brought back to court by citation or arrest. If the breach is denied, then a “breach proof” will be fixed. According to s245F(2A) of the 1995 Act, the evidence of a single witness is sufficient to prove a breach.

There is usually an automatic statement generated by the monitoring equipment that specifies the precise times and dates where it is said that the breach(es) occurred. Due to the nature of electronic monitoring and recording, breach reports can contain allegations that the convicted person was in breach of their ROLO for a matter of seconds.

If it is proved “to the satisfaction of [the] court that the offender has failed without reasonable excuse to comply with any of the requirements in the order”, it can either impose a fine of up to Level 3 on the standard scale (£1,000), vary the ROLO (e.g. by extending its duration) or revoke it. If the ROLO is revoked after breach, the court can re-sentence the convicted person in any way that would have been competent at the time the ROLO was made, but at the same time it must have regard to the amount of time for which they were subject to the ROLO.

Variation of ROLO

The court has the power to vary the requirements of the ROLO, on application either by the convicted person or the person responsible for monitoring compliance. For example, a convicted person might apply to have the ROLO requirements suspended for a period of time, or the hours of restriction varied if they obtain employment which requires them to work hours that would conflict with the ROLO.

A requirement may not be varied (other than deleting it) on application by anyone other than the convicted person, unless the convicted person has been cited to appear and agrees to it.

If the convicted person intends to move address, the court must satisfy itself that the proposed new address is suitable, using the process described above. An application to vary a ROLO can therefore take several weeks while the appropriate information is obtained.