Responding to blackmail if you are not Jeff Bezos
The ‘polygraph condition’ already has a statutory base in the Offender Management Act 2007, but it is presently limited to those who have been convicted of serious sexual offences.
If passed in its current form, the domestic abuse bill would introduce the polygraph condition as a permissible feature of the licence for an offender convicted of a specified domestic abuse offence.
The introduction of polygraph testing to the bill received significant media coverage but it is questionable what impact the scheme will have, aside from its financial cost.
The government’s impact assessment estimates that a three-year pilot of the scheme would cost in the region of £500,000 per year (a total cost across the three-year pilot of £1.5m).
On the basis of that the three-year pilot is expected to involve just 300 offenders, that would make the cost per offender £5,000. Against the background of austerity cuts which have taken the criminal justice system to the brink (if not beyond), these figures are significant.
Therefore, it would not be unreasonable to expect that polygraph testing would have a significant impact.
However, at a stroke, the statutory pre-conditions remove polygraph testing from all but the most serious matters. For the condition to be available, an offender must:
“Relevant custodial sentence” is defined by §28(3) Offender Management Act 2007 and excludes any sentence of less than 12 months.
The scope is further limited by the fact that it is not considered appropriate to polygraph test those with serious mental illness or memory impairments. Disappointingly, those with learning difficulties can (presently) be tested ‘with some caution’.
Even where an offender is eligible for the polygraph condition to be imposed, inherent limitations of polygraph testing were explicitly recognised in Prison Service Instruction 36/2014:
“It is important to note that an examinee can only respond to a question (verbally or physiologically) to the best of his or her knowledge. This is an important issue with using polygraphy or any other tool designed to detect deception or facilitate truth telling."
“The technology is based on the interviewee’s reaction to the question posed. Therefore, it does not assess the objective truth; it only interrogates the participant’s subjective perceptions of what s/he thinks the question is asking.”
The limitations are also reflected in the severely limited use of polygraph tests in the criminal justice system. §30 Offender Management Act 2007 acts as a statutory bar to the use of a failed polygraph test in criminal proceedings.
Similarly, a failed polygraph test cannot (in and of itself) be used as the basis of a recall on licence. Its use is essentially limited to a source of intelligence in assessing the risk of an offender.
It is likely that this will remain the position, but the contradictory explanatory notes are somewhat unhelpful. Paragraph 27 makes it clear that, “the results of a (failed) polygraph examination cannot be used in criminal courts or be the basis of recall”.
But, matters have developed by the time we reach the ‘commentary’ section of the explanatory notes with paragraph 219 containing the assertion: “Any statement made by a person during a polygraph session could, however, be used as the basis for recalling the offender to prison for breach of a licence condition.”
It is respectfully submitted that the former position must be correct and it is in accordance with current operation of the conditions. Combating the pernicious effects of domestic abuse should be a priority.
But this requires a properly funded police force and probation service rather than an extension of the unimpressive polygraph condition. If the government is to expand the panoply of tools available to manage high risk offenders then it should do so with a clear purpose and with a verifiable effect. As it stands, this has all the hallmarks of a white elephant.
This blog was first published in Solicitors Journal, February 2019.
Should you require any further information on the issues raised in this blog please contact our criminal litigation team.
Matthew Hardcastle is an Associate in the criminal litigation team with experience in cases involving general and white collar crime. He has significant experience of advising clients during interviews under caution both following an arrest and during a voluntary attendance. Matthew’s experience includes advising high profile individuals and advising in matters which attract significant media interest.
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