This clause is about polygraph conditions. It is an important clause that relates to conditions for offenders released on licence. It is one of a number of measures in the Bill directed at strengthening the effective management of domestic abuse perpetrators. It allows the Secretary of State for Justice to introduce mandatory polygraph examinations as a licence condition for offenders convicted of a relevant domestic abuse-related offence. The relevant offences include murder, specified violent offences and the offence of controlling or coercive behaviour under the Serious Crime Act 2015. Necessarily, this is a new departure to some extent, but it is kept within tight limits, as members of the Committee would expect.
Let me say this by way of context. Polygraph examinations are already successfully used in the management of sexual offenders who are supervised by the National Probation Service. The clause extends the use of testing to include high-risk domestic abuse perpetrators who have been released from custody having served a sentence of 12 months or more and are on licence.
Polygraph testing will be used to monitor an offender’s compliance with other licence conditions, such as those restricting contact with their victim, requiring the offender to notify their probation officer when they form new relationships, and prohibiting entry into an exclusion zone, for example around their victim’s home. It will also be used to monitor dynamic risk factors such as alcohol or substance misuse.
The policy underpinning these provisions does not allow for offenders to be recalled to custody for failing a test. That is important. I think a lot of people would have misgivings if it could have that level of significance. However, the clause enables offenders to be recalled for making disclosures during testing that, when considered with other evidence, suggest that the risk can no longer be managed in the community. In other words—putting it in the vernacular—someone is not going to be banged up for failing a polygraph test. That is very important. However, when considered with other evidence, that can lead to a recall.
The offender can also be recalled to custody if they refuse to take the test or try to trick it in some way, for example by controlling their breathing. Testing can be required as part of the licence conditions imposed on an offender following their release from custody and, in common with other additional licence conditions, can be imposed only where it is deemed necessary and proportionate to the risk posed.
In its report on the draft Bill, the Joint Committee did not object in principle to extending polygraph testing to domestic abuse offenders, but it sought assurance on two issues. First, it sought an absolute assurance that no statements or data derived from a polygraph test could be used in criminal proceedings. The Joint Committee acknowledged:
“This appears to be the effect of the draft Bill”.
I can confirm that that is the case.
The provisions in clause 63 must be viewed alongside the existing provisions relating to polygraph testing in the Offender Management Act 2007. Section 30 of that Act expressly and unequivocally provides that any statement made by an offender during a polygraph session, or any physiological reaction made during such a session, may not be used in criminal proceedings in which that person is a defendant. I hope that will give the Committee some comfort; it certainly gave me some.
Let me be clear, however, that that does not preclude information derived from a polygraph examination from being shared with the police, who may decide to use the information to conduct further inquiries. If, as a result of those further inquiries, the police obtain other evidence that suggests an offence has been committed, that may result in charges being brought against the offender.
The Joint Committee also sought an assurance that polygraph testing will not become a substitute for careful risk analysis. Again, I can assure this Committee that the use of polygraph examinations will not replace any other existing risk assessment tools or measures, such as multi-agency public protection arrangements—MAPPA—but it will add an additional source of information that would not otherwise be available.
The evaluation of the pilot of mandatory polygraph testing for sexual offenders concluded that offender managers found polygraph testing helpful. Offenders who were tested made a higher level of significant disclosures than the comparison group who were not tested. As a result, the pilot was rolled out, and offender managers were able to increase levels of supervision where necessary, inform third parties such as the police and other MAPPA agencies or children’s services, and increase other controls, such as recalls or formal warnings.
Although the use of polygraph examinations is tried and tested in the context of the management of sex offenders, the Government accept that domestic abuse perpetrators represent a different cohort of offender. That is why we are committed to piloting the provisions in clause 63. I respectfully draw the Committee’s attention to the commencement provisions in clause 72, which expressly provides for such piloting.
Let me say a few words in conclusion about that pilot. We intend to run a three-year pilot in the north of England involving some 600 offenders. Half of the cohort will be subject to polygraph testing, while the other half will not be tested and will be the comparison group. The Government will commission an independent body to evaluate the pilot, and only if the results are positive will we roll out testing across England and Wales.
Given the benefits we have seen with the use of polygraph testing in helping us to effectively manage the risk posed by convicted sex offenders, I trust that the Committee will agree that there is merit in piloting the use of the polygraph to establish whether there are similar benefits to be had in managing the ongoing risk posed by serious domestic abuse perpetrators. We owe it to victims to use all effective means available to keep them safe.