Sobriety orders or Sobriety Ankle Tags

Posted on 28th May 2020

Sentencing power

There has been some coverage in the press of a new sentencing power available to the criminal courts when sentencing people to community orders, to require that they wear a tag to monitor alcohol use. The correct and rather boring term for these tags is the Alcohol Abstinence Monitoring Requirement (AAMR). However, they have become popularly known as ‘sobriety ankle tags’.

The courts can now require that defendants wear one of these tags for a fixed period. The tags allow the courts to monitor the amount of alcohol a convicted person is consuming for a fixed period of time after they are sentenced, up 120 days. Depending on where you sit in the argument, this is either the stuff of ‘Big Brother’ or a long overdue way to monitor alcohol-fuelled offending.

The Legislation is found in section 76 of the Legal Aid, Sentencing and, Punishment of Offenders Act (LASPO) Act 2012. A trial of these ‘sobriety ankle tags’ has taken place in the North of England and in London, which was deemed to be a success. Now the Ministry of Justice proposes to roll out the ‘sobriety ankle tags’ across England and Wales. Does this mean that a convicted person can be sentenced to not drink alcohol as a punishment? Well not exactly, no.

First, it only applies to people who have been convicted of offences where alcohol seems to have played a part in their original offence. The legislation says they can be imposed in cases where:

(a) the consumption of alcohol by the offender is an element of the offence for which the order is to be imposed or an associated offence, or
(b) the court is satisfied that the consumption of alcohol by the offender was a factor that contributed to the commission of that offence or an associated offence.

What are the restrictions on imposing and monitoring a ‘sobriety ankle tag?’

So it can’t be used to punish a sober shoplifter. It can only be used as part of the sentence for offences that fit the above description, in simple language alcohol-related ones.

To impose such an order it seems the court will have to make the ‘sobriety ankle tag’ requirement part of a Community Order or a Suspended Sentence, quite possibly with other orders. They can impose it, at their discretion, on a convicted person fitting the above description, for a period of no more than 120 days.

What this means is that an electronic tag will be fitted to the convicted persons ankle, similar to the device used to monitor compliance with a curfew. However this device is now far more sophisticated. It will sample the sweat of the wearer once every 30 minutes.

The tag will test the sample for alcohol to see if any exists in the sweat of the wearer. This result will be communicated to a monitoring agency. If there are breaches that will then be communicated to the probation service and the court will ultimately be informed of any breaches.

The legislation appears to allow the court to prohibit any alcohol usage at all. Alternatively the legislation allows for the court to exercise some discretion. This would allow for the wearer to be allowed a small amount of alcohol below a prescribed limit in their sweat. It is unclear whether the tag technology is sophisticated enough to detect alcohol usage above a prescribed limit, and this may be a grey area where there are legal arguments to be made by defence solicitors.

It is worth noting that these ‘sobriety ankle tags’ orders will not be made where the subject of such an order is dependent on alcohol or has been made the subject of an Alcohol Treatment Requirement (ATR) as part of the sentencing exercise. The term ‘alcohol dependant’ is not defined in the legislation but the courts may rely on medical opinion about the definition. It may also be abundantly obvious in any event.

Breach of a Community Order that has a ‘sobriety ankle tag’ as a requirement

If an AAMR Order or ‘sobriety ankle tag’ is put in place then there will be repercussions for those who do not comply. A failure to comply would be a breach of the original sentence or Community Order. If there is a breach the Probation Service would bring the case back before the court and the subject of the order can admit or deny the breach. It is said that the technology will recognise such things as hand sanitiser used to conceal alcohol in the sweat of the person subject to the order as well as any attempt to block the device.

Assuming the breach is admitted or proved then the court has the ability to increase the punitive elements of the Community Order or revoke the whole order and resentence to a more onerous sentence.

These orders and the technology that goes with them are a new step forward. They are not designed to deal with alcoholics and street drinkers. They appear to be for those who committed alcohol-fuelled offences. The power does seem to attempt to combine punishment and rehabilitation. How it will be received by professionals, the wider public and those who may be subject to the order, remains to be seen.

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