The use of electronic tagging in the criminal justice system, which is also a form of digital incarceration, has both good and bad aspects.

It can help in the rehabilitation of offenders, reduce the prison population and avoid remanding an accused person in preventive custody.

However, unlike other conditions that can be imposed by a court or by law, electronic tagging strikes more directly at a person’s right to privacy.

Madam Justice Consuelo Scerri Herrera has again brought the issue to the fore, saying electronic tagging would allow the state to be in a better position to monitor people accused of crimes and who are granted bail.

Draft legislation providing for electronic tagging had been moved in late 2021 but so far not enacted. It did not propose tagging as a condition for pretrial release but only in the case of those guilty of “minor crimes”, prisoners granted parole and inmates on prison leave.

Jurists may argue there is no legal impediment stopping the judiciary from ordering tagging as a condition of bail. In fact, the law allows the court wide discretion in imposing conditions when granting bail.

Looking at it purely from this angle, therefore, the problem could be more of a logistical rather than legal nature. The country does not yet have the administrative structure necessary for such tagging.

Still, beyond that, how will the monitoring or reporting be handled to ensure tagging is used only for the purposes for which it was imposed?

Electronic tagging impinges on one’s right to privacy because one’s movements can be traced continuously.

That is why it is generally reserved for people who are serving a sentence but are either working outside the prison or are on parole and, therefore, subject to be recalled. It may also explain the rationale of the government when drafting the bill that was presented to parliament last September.

So, even if the proper infrastructure is in place, staunch promoters of fundamental human rights will point out that the system could be of use in a very limited number of cases where it may be necessary to restrict the freedom of movement of the person on bail.

More importantly, they fear that tagging could well be requested, and be granted by the judiciary, mainly in an attempt to ease pressure to expedite proceedings.

That may be good for statistical purposes and for image but bad for the promotion and respect of fundamental human rights.

The European Court of Human Rights has emphasised that when a person is in preventive detention pending trial, both the prosecution and the court must do more than just deal with the case “within a reasonable time”. They must display “special diligence” in the conduct of such proceedings.

That means, for example, not putting off a case for trivial or spurious reasons, ensuring committal proceedings proceed more efficiently than in fits and starts and making sure magistrates are not overloaded.

Electronic tagging, unlike preventive custody, risks giving the false impression that the right to personal liberty is being respected.

The infrastructure for electronic tagging may help in some cases but it will not do much to speed up criminal trials. Therefore, a person who is found guilty of an offence after a very long time can always apply for compensation for breach of the right to trial within a reasonable time.

One must be careful how electronic tagging is implemented lest it becomes more of a ‘ball and a chain’ for the criminal justice system.