My Lords, this is not the only Bill currently in your Lordships’ House that seeks to extend the use of polygraphs. I am not surprised that lawyers and what I have learned in another Bill to call operational partners have different starting points in their attitudes and expectations of polygraphs. My position is similar to that of my noble friend.
Given that we have more than one Bill proposing to introduce polygraph conditions, is this indicative of a policy change on the part of the Government, with wider use of polygraphs—perhaps wider than just these two Bills? If so, what consultation and evaluation has there been? I appreciate that it is intended that there will be a pilot of the use under this Bill, which my noble friend seeks to be absolutely sure about in Amendment 191.
Last week, during Committee on the Counter-Terrorism and Sentencing Bill, I asked about consultation with the probation service with regard to the balance between periods of custody and licence—a different point. I have now received a letter from the Advocate-General for Scotland, for which I am grateful, which, inter alia, said:
“The Probation Service is not normally consulted in respect of the creation of new custodial sentences or their licence periods.”
It is, of course, the licence period in which I am interested.
I have a similar question about consultation on the use of polygraphs during the licence period. The provisions preclude evidential use. As I understand it—the Minister will correct me if I am wrong—their purpose is to discourage reoffending. I have said before that I would prefer to put effort into training probation officers in spotting small signs of what is the truth, what is editing the facts and what are porkies.
The Home Office fact sheet published in conjunction with the Bill refers to eligibility criteria as if there are criteria beyond what is in the Offender Management Act and the Bill. Another question is whether there are additional criteria. It also refers to high-risk
perpetrators. Does that mean more than the custodial sentence, as provided by the Act? Does it mean more than repeat offences? Can the Minister say something about the assessment tools in arriving at the conclusion that someone is high risk?
The Home Office factsheet refers to risk as a test. The briefing last week to which my noble friend referred was very interesting and informative, and clearly those involved with the current use of polygraphs on sex offenders are enthusiastic—one would have expected that. But we were told that, in the US, historically there has been some inappropriate or, one could say, dodgy use. I was interested that the accreditation was to standards set by the American Polygraph Association. Given that our legal systems are not identical, has the Minister any comment on that?
I had understood that it was not possible actually to fail a test, because the examinations are used to point probation officers to an offender’s possible actions and behaviours, but that term is also used in the fact sheet, where it refers to “sanctions for failing”. One step available is the imposition of additional licence conditions. My noble friend mentioned DAPOs, or domestic abuse prevention orders. Can a polygraph test be used to prompt an investigation as to whether a DAPO or, indeed, a domestic abuse prevention notice, has been complied with before custody? Can a court dealing with a DAPO require a polygraph?
I suppose that one could summarise our attitude to Clause 69 as positive but remaining to be completely convinced—so possibly somewhere between yes and no.
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