My Lords, on the face of it the purpose of this amendment, tabled by the noble and learned Lord, Lord Falconer of Thoroton,
is to provide for a pilot of polygraph testing for terrorist offenders in the UK and for a report to be prepared and laid with a recommendation on commencement before the provisions are commenced. I appreciate, however, that the debate has gone a little broader than that, and I will try to respond in my remarks to all the points put to me. I should say at the outset that I am impressed by the note-taking ability of the noble Lord, Lord Paddick, which has obviously not diminished with time. I hope that the notes which he took are consistent with not only what he was told at the meeting, as I am sure they are, but with what I said on the previous group and what I am going to say on this group as well.
Polygraph examinations have been used successfully in the management of sexual offenders by the National Probation Service since 2013, following an initial pilot. Offenders involved in the pilot stated that, although they did not like being tested, for many it helped them modify their behaviour and comply with other licence conditions. While I therefore respectfully agree with the comments of the noble and learned Lords, Lord Woolf and Lord Morris of Aberavon, that we are on a learning curve, we are in fact someway up the curve, if I may put it in those terms. The noble and learned Lord, Lord Woolf, was right to remind us of Clause 35(1), which provides for regulations in this context. The breathalyser is a good example, as put before the Committee by the noble and learned Lord, Lord Morris of Aberavon, of how we must always in the criminal justice field avoid being shy of using technology where it is available. The question is how it is to be used; it is in that context that I come to the questions put to me by the Members of the Committee.
Having put that provision in place for sexual offenders, the independent evaluation of mandatory testing on sexual offenders carried out by the University of Kent produced extremely positive results. As the Committee is aware, we have since rolled out polygraph testing in that context. We must therefore be wary of two things. First, we must be wary of the trap of saying that because something might or might not be used in “The Jeremy Kyle Show”, it should form no part of the criminal justice system. “The Jeremy Kyle Show”, which I think has now stopped, can look out for itself. My concern is to ensure that we have proper provisions for polygraph testing in the criminal justice system.
The second thing we must be careful of, if I may respectfully say so, is not to fall into the trap of thinking that anything which comes from the United States of America is inherently suspect in the criminal justice field. I would gently point out to the noble Baroness, Lady Hamwee, that the American Polygraph Association’s standards are those of an international professional association for polygraph examiners. That association carries out research and provides accredited training for examiners. It also provides mandatory professional development training, which all examiners must complete every two years to maintain their accreditation. Its standards are used by examiners across the world, and the Government want to ensure that those standards are maintained for examinations conducted on terrorist offenders.
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The central point raised in the amendment tabled by the noble and learned Lord, Lord Falconer, is that of the pilot, so I will deal with that first. While a pilot was important for the initial use of polygraph testing with sex offenders, and while we also intend to conduct a pilot for its use with domestic abusers, we have decided not to pilot its use with terrorist offenders, simply because there are insufficient numbers of relevant offenders to carry out a pilot that would produce meaningful results. Therefore, I respectfully disagree with the noble and learned Lord that a pilot prior to commencement would add value. However, we are committed to conducting a robust internal review of testing terrorists after a two-year period, which we anticipate will provide more meaningful results.
Various points put to me by Members of the Committee go beyond the scope of the amendment as drafted but, since they were raised, I hope the Committee will permit me to respond to them. A number of points were raised by the noble and learned Lord, Lord Falconer of Thoroton. First, on how this will operate in practice, he gave an example of a question—“Did you visit a certain location?”—and asked what would happen if there was, or was not, a significant response. If there was a significant response, the person conducting the test would consider whether that merited further investigation. Should he or she so consider, those further investigations would be undertaken. If there was no significant response, that too would be evaluated as part of the overall assessment. Indeed, that was the point that I sought to make in the previous group. This is, to use that phrase again, another tool in the toolbox; it is part of an overall package of evidence, which is assessed.
The second point put by the noble and learned Lord concerned how this would work vis-à-vis another offender; that is, whether the polygraph result would be admissible against another person. I hope that I answered that clearly in the last group by making clear the express prohibition: the results may not be used in criminal proceedings in which the person taking the test is a defendant—and I explained the position with regard to other people. It is important to remember that the question of evidence must be a question for the judge in a particular case unless there is an express statutory prohibition, and I have made clear the limits of the express statutory prohibition. Normally, however, as a matter of principle, things said by an accused outwith the presence of a co-accused would be inadmissible against the co-accused. I stress that admissibility of evidence is not a matter for the Government from the Dispatch Box but a matter for the judiciary in a particular case. I hope that that answers the second point put to me by the noble and learned Lord.
The third point was whether a probation officer would rely only on the polygraph test if it was a tool available to him. Again, this is the tool in the toolbox point: polygraph testing does not replace any existing forms of risk assessment or management. It provides that additional tool, and it provides information that otherwise would not be available. Certainly, I can reassure the noble and learned Lord that there is no evidence from the testing of sexual offenders that
polygraph results are being used as a substitute for other forms of risk assessment and management, which, as I understand it, was the burden of his third question.
I now turn to the points put to me by the noble Lord, Lord Thomas of Gresford. He made a point about the right to silence. This is an important right in English law and applies to somebody who has not been convicted. Somebody on licence here who has been convicted of a terrorist offence does not enjoy a presumption of innocence, not least because he has been convicted. We are therefore not talking about a right to silence at all. We are, in fact, talking of a circumstance in which taking the test is a condition of the licence. It is therefore quite right and proper that a refusal to take the test should be something that may result in a recall. Indeed, in that context, I respond to the point put by the noble Baroness, Lady Hamwee, by saying that, frankly, I am less concerned about retraumatising—to use her word—people convicted of terrorist offences than about making sure that they comply with the licence conditions imposed on them.
The second point put to me by the noble Lord, Lord Thomas of Gresford, was about conspiracy. I think that substantially raises the same issue as the second point of the noble and learned Lord, Lord Falconer, so I hope I have already answered it.
The third point put to me was whether the probation officer would have the ability to decide on a recall to prison. I have two points here. First, as I said in the last group, and as identified by the noble and learned Lord, Lord Morris of Aberavon, the position is that polygraph testing may inform a risk-based recall, but a “failed” polygraph examination will never be solely used to recall someone to prison. It is part of an overall assessment. In that context, I point out to the noble and learned Lord, Lord Falconer of Thoroton, that no doubt that is why his proposed new subsection (3)(d) refers to the number of terrorist offenders recalled to prison on the basis of polygraph test results. We would have to read “on the basis of” in that context to mean one of the factors taken into account, because, as I said, it cannot be solely on the basis of a failed test.
The second part of my answer to the noble Lord, Lord Thomas of Gresford, is that it is not unusual that this is a matter for the probation officer. He will appreciate that statutory and Parole Board procedures are in place for an offender to challenge the recall should they wish to do so.
I am just checking that I have responded to all the points put to me. I believe I have; I will check the Official Report and write to any noble Lords if they have raised points to which I have not expressly responded. I am conscious that this debate has gone a little—or quite a lot—further than the scope of the amendment itself. I hope, having heard my response on the particular point of the pilot and to the noble and learned Lord’s three questions, that the noble and learned Lord, Lord Falconer, will be content to withdraw his amendment.