NEW LEGISLATION TO KEEP TRACK OF OFFENDERS …………
The debate on the Administration of Justice (Electronic Monitoring) Bill, 2011 started in the House of Representatives on Friday December 02, 2011.
The purpose of this Bill is to provide for the introduction of electronic monitoring in Trinidad and Tobago, at different stages of the criminal justice process and as a condition of a Protection Order granted under section 6 of the Domestic Violence Act, Chap 45:56.
The Bill is inconsistent with sections 4 and 5 of the Constitution and therefore, requires a three-fifths majority of votes to be passed.
The full text of the Bill is available in PDF format on this website, you can download it via this link . You may also place your comments directly on this Bill page, which can be accessed here.
The following is a brief explanation of some aspects of the Bill
What is Electronic Monitoring?
Electronic monitoring is a method of monitoring and managing the behavior of offenders outside of prison. It is used both for accountability of the offender, as well as for victim protection. It provides a means of constant monitoring to ensure that an offender is acting in accordance with conditions of his sentence and obeying curfew restrictions.
How is Electronic Monitoring achieved?
Electronic monitoring is usually achieved through the use of a tamper-resistant electronic device attached to the offender’s wrist or ankle. The device transmits an electronic signal, usually through a telephone, indicating whether the offender has moved outside of his confinement area, has visited a restricted area, has consumed alcohol or drugs or has tampered with the device.
- Radio Frequency (RF)
- Global Positioning System (GPS)
- Transdermal Alcohol Monitoring
- Breathalyzer Monitor
- Ignition Interlock
Benefits of Electronic Monitoring
An efficient Electronic Monitoring Program can be a cost-effective and community-friendly program for “low-risk” offenders. It is also useful for punishment of persons who will be particularly vulnerable in prison- such as those with poor health, juveniles, and pregnant women or women with dependent children.
Reduces overcrowding in prisons – Electronic monitoring can be used to decrease the prison population in cases where there is overcrowding. It is an alternative to incarceration for individuals on regular probation, with pretrial status, or nearing the end of a minor drug, alcohol, or misdemeanor sentence. There is also the health consideration of being incarcerated, as prisoners are vulnerable to contracting diseases such as HIV/AIDS and Tuberculosis.
Impact on the family – The imprisonment of the wage earner can have a serious effect on his family. Electronic monitoring allows the offender to continue to support himself and his family thereby reducing the need for dependence on social service agencies.
Cost – As a corrective measure, electronic monitoring is considerably cheaper than imprisonment. Additionally, the offender bears the cost of the use of the device.
Disadvantages of Electronic Monitoring
Legal Issues – There is the concern that the constitutional rights of offenders might be violated since electronic monitoring infringes on an offender's rights to freedom of movement as provided by the Constitution.
Privacy – Electronic monitoring is highly intrusive and is a violation of the right of the individual to respect for his private and family life as enshrined in the Constitution.
Equality under the law -The system may be viewed as being discriminatory against lower income persons who may be unable to afford user fees.
Key features of the proposed legislation
Establishment of the Electronic Monitoring Unit
The Bill provides for the creation of an Electronic Monitoring Unit which will be responsible for:
- ensuring the security of the system for electronic monitoring;
- retrieving and analyzing information from the system for electronic monitoring; and
- reporting any non-compliance with a decision of the Court or competent authority and breaches related to the use of devices.
The legislation also creates the post of Electronic Monitoring Manager.
Employees of the Unit shall be subject to strict confidentiality regarding any information received during the course of their employment. Failure to comply is punishable by a fine of one hundred thousand dollars and imprisonment of two years.
Electronic monitoring imposed by the Court
The legislation empowers the Court may enforce the use of electronic monitoring for an offence committed or instead of a sentence of imprisonment. Electronic monitoring may also be imposed as a condition of an order for bail made under section 12 of the Bail Act or a Protection Order made under Section 5 of the Domestic Violence Act.
The Court cannot impose the use of electronic monitoring in the following instances:
- Offences against the person in cases of:
- Conspiring or soliciting to commit murder
- Shooting or wounding with intent to do grievous bodily harm, unlawful wounding
- Offences involving kidnapping
- Offences of sexual nature such as rape and grievous sexual assault
- Drug trafficking
- Unlawful possession of a firearm or ammunition
Imposition of original sentence in case of breach
The Bill empowers the Court to impose the original sentence which would have been imposed on the offender in cases of non-compliance or breach. It also enables the Court to impose the penalty prescribed for breach of a Protection Order under Domestic Violence Act where applicable.
Payment determined by the Court
The Bill authorizes the Court to impose full or partial payment of fees for the use of the electronic monitoring device. It also empowers the court to exempt the offender from such payment.
Tampering with an Electronic monitoring device
It is an offence for a person or respondent to deliberately tamper or to aid or abet tampering with a device punishable by a fine of one hundred thousand dollars and imprisonment for two (2) years.
Evidence in Court
The Bill provides that information received from the electronic monitoring system to be acceptable as prima facie evidence in proceeding before a court.
Offence of failure to take action
The Bill imposes a fine of one hundred thousand dollars or two years imprisonment for failure to take action by the Electronic Monitoring Manager or police officer if there has been non-compliance, breach of tampering with the device by the offender.
Important issues for consideration
- Legislation will be inconsistent with sections 4 and 5 of the Constitution.
- Severity of the penalties contained within the Act.
- Although offenders will be required to pay a user fee, overall cost of implementing an Electronic Monitoring system may be expensive due to implementation costs
- The effectiveness of the legislation will depend on a robust surveillance system to immediately identify breaches by offenders and swift response by the protective services. Is Trinidad and Tobago equipped with the relevant technical sophistication, infrastructure, equipment and trained persons?
- The Act does not specify the requisite qualifications for the Electronic Monitoring Manager.
- What provisions will be made for an effective trial programme with sufficient data collection and field observation to test the system before its implementation?
- What guidelines will be utilized to determine whether the offender has the financial capability to pay the cost of use of the device?
- Lack of special measures for juvenile offenders.
- Other jurisdictions have reported problems such as faulty technology and equipment sensitivity.
- An offender may still be committed to custody until the report of the Electronic Monitoring Manager is prepared.
- The imposition of the electronic monitoring as punishment is at the discretion of the Court and may not necessarily lead to reduction in use of imprisonment by Judges.