Policy paper

Polygraph testing measures in the Police, Crime, Sentencing and Courts Bill: Equalities Impact Assessment

Updated 2 August 2023

Policy summary

Section 28 of the Offender Management Act 2007 enables the Secretary of State to impose a polygraph testing licence provision on an eligible offender convicted of specified sexual offences who is released on licence in England and Wales, and on an eligible offender sentenced in Scotland or Northern Ireland who then serves their licence in England and Wales. The current arrangement for testing sexual offenders commenced in January 2013, following a successful pilot of polygraph for sexual offenders.

Polygraph testing is currently included as an additional licence condition for all serious sexual offenders (in the case of indeterminate sentenced prisoners, and some determinate sentence prsioners subject to parole release, at the direction of the Parole Board). In addition, probation officers have the discretion to propose the condition for some less serious offenders, where it is necessary and proportionate to do so. The Domestic Abuse Act and the Counter-Terrorism and Sentencing Act will, once implemented, provide equivalent powers for the Secretary of Staet to impose a polygraph testing licence provision on eligible offenders convicted of an offence related to domestic abuse or terrorism.

Service offences

The Bill will introduce a provision that enables the Secretary of State to add polygraph testing as a licence condition for individuals subject to service law convicted of sexual offences or domestic abuse offences who meet the eligibility criteria.

Service offences are ‘copies’ of all generally applicable English and Welsh offences that apply to members of the armed forces by virtue of section 42 of the Armed Forces Act 2006 (and its predecessors). This provides that a person subject to service law commits an offence if they do an act contrary to the criminal law of England and Wales. Those ‘copy’ offences follow the service route for trial, conviction and sentencing, but the service persons are in general treated in the same way as the underlying English and Welsh offences for the purposes of release under Chapter 6 of Part 12 of the Criminal Justice Act 2003 (via section 237(1B)) or for indeterminate sentenced prisoners under Part 2 of the Crime (Sentences) Act 1997.

This means there is potential for service offenders convicted of sexual or domestic abuse ‘copy’ offences to be managed by probation upon release from custody on licence. The current law does not permit imposition of polygraph conditions on them as part of their licence. By contrast, provisions in the Counter-Terrorism and Sentencing Act allow for use of polygraph testing with those convicted under service law. Polygraph examinations are used to monitor compliance with licence conditions and the information obtained during testing is used by Offender Managers to refine and improve risk management plans. Without this clause, sexual or domestic abuse offenders who are subject to licence but sentenced through channels other than magistrates’ or the Crown Court in England & Wales would be excluded from polygraph examinations despite meeting the eligibility criteria.

This Clause will ensure that the management of those offenders will benefit from the polygraph and will put beyond all doubt who should be made subject to testing. As mentioned, it will also make the testing of sexual and domestic abuse offenders consistent with the legislation that applies to terrorist offenders.

Repatriation

The Bill will introduce a provision that enable the Secretary of State to include a polygraph condition for eligible offenders convicted abroad of sexual or domestic abuse offences, who are repatriated to the UK to serve some or all of their sentence.

Chapter 6 of Part 12 of the Criminal Justice Act 2003 for determinate sentenced prisoner and Part 2 of the Crime (Sentences) Act 1997 for indeterminate sentenced prisoners applies to repatriated offenders via the Repatriation of Prisoners Act 1984 – which provides that once transferred into the UK the sentence is treated as if it is a sentence that was imposed by a UK criminal court. Schedule 1 of the 1984 Act providers for how any post-release licence to be served is calculated. There is no reference in the provisions of the 1984 Act to section 28 of the Offender Management Act 2007, which is the power under which the Secretary of State can impose a licence condition requiring polygraph testing.

This means if sexual or domestic abuse offenders are repatriated to England and Wales to serve any part of their sentence, then released on licence, there is no power to impose a polygraph condition. This provision will correct this to ensure consistency with terrorist offenders and all domestically sentenced offenders.

Expanding the list of eligible sexual offences eligible for polygraph testing

The Bill will update the list of sexual offences eligible for mandatory polygraph testing by creating a new cross-reference to Schedule 3 to the Sexual Offences Act 2003.

This replaces the now-defunct cross-references that set out the list of equivalent eligible sexual offences under Northern Irish and Scottish legislation for offenders convicted in Northern Ireland or Scotland who then serve their licence in England and Wales. Those cross-references were outdated, and the new cross-reference ensures that we can impose mandatory polygraph testing on the most serious sexual offenders within this cohort. Finally, the Bill will also add to the existing list of sexual offences in England and Wales which are eligible for polygraph by including sexual offences listed in Schedule 3 to the Sexual Offences Act 2003. The effect is to extend the list of sexual offences for which polygraph testing conditions can be included in a licence. This will impact offenders sentenced in England and Wales and offenders sentenced in Scotland or Northern Ireland who transfer to England and Wales to serve their sentence. Additional offences now eligible for polygraph include, for example, offences under section 63 of the Criminal Justice and Immigration Act 2008 - possession of extreme pornographic images and abduction with intent to commit rape under section 18 of the Sexual Offences (Scotland) Act 2009.

Schedule 3 to the Sexual Offences Act is also the specified list of sexual offences for which notification requirements must be imposed. This will create consistency across the various ways in which sex offenders are supervised, and ensure that the most serious offenders are closely managed in the community.

Equality duty

Section 149 of the Equality Act 2010 (“the Act”) requires Ministers and the Department, when exercising their functions, to have ‘due regard’ to the need to:

1. Eliminate unlawful discrimination, harassment, victimisation and any other conduct prohibited by the Act; 2. Advance equality of opportunity between different groups (those who share a relevant protected characteristic and those who do not); and 3. Foster good relations between different groups (those who share a relevant protected characteristic and those who do not).

Paying ‘due regard’ needs to be proportionately considered against the nine “protected characteristics” under the Equality Act 2010 – namely ethnicity, sex, disability, sexual orientation, religion and belief, age, marriage and civil partnership, gender reassignment, pregnancy and maternity.

Sources of information

• Operational data drawn from probation case management systems
• Polygraph Policy Framework
• Polygraph Policy Framework Equality Analysis

Availability of data

The equality impacts of mandatory polygraph testing have been considered previously when the mandatory polygraph implementation project was being introduced for sex offenders. When looking at data for those eligible for polygraph testing we know that:

• Polygraph testing helps to protect the public from harm. To date, the National Probation Service has carried out over 5,000 tests on sexual offenders and two-thirds of those tests have resulted in significant disclosures which enable Offender Managers to refine and improve risk management plans.
• We are able to analyse the data for sexual and domestic abuse offenders eligible for polygraph testing for the following characteristics: age, disability, marriange and civil partnership, race, religion and belief, sex, and sexual orientation.
• For other protected characteristics (gender reassignment and pregnancy and maternity) probation caseload data is not suitable for analysis or publication at this stage.
  • It should be noted that the data available to HMPPS on the prevalence of protected characteristics across the probation caseload has previously been incomplete. The absence of this data has limited our ability to quantify the complete potential impact of the reforms on some protected characteristics.
  • As part of wider reforms to probation to implement the new Unified Model from June 2021 onwards, we are taking steps to obtain improved data where possible and to ensure that more comprehensive information will be available in future.
• For domestic abuse perpetrators, the majority of those who would be eligible for polygraph testing are white males aged between 30 -39.
• For sexual offenders, elderly white males are disproportionately represented amongst those eligible for polygraph.

Number of affected people on probation:

When looking at the caseload data on 30 June 2019, fewer than 50 additional people on probation would be eligible for polygraph testing when including supplementary offences under Schedule 3. We expect that less than 20 people on probation will be impacted by creating an express provision to polygraph test service offenders or repatriated prisoners.

Protected characteristics

The impact on equalities legislation of the introduction of mandatory polygraph testing has been considered previously when the mandatory polygraph implementation project was being introduced for sexual offenders. We do not expect that polygraph clauses in this Bill will directly discriminate on any offender with protected characteristics. Polygraph testing licence conditions will only be applied where sexual or domestic abuse offenders meet the eligibility criteria and the risk of the offender is such that it is deemed necessary and proportionate to impose the test. Testing will not be applied in relation to any of the protected characteristics. Below, we have considered the impact on offenders that fall into the protected characteristic groups and put in place mitigation plans for any disproportionate impact:

Age

The polygraph test will only be applied to sexual or domestic abuse offenders who are aged 18 years and over who are assessed as posing a high risk of harm and re-offending. There is no upper age limit on eligibility for a polygraph test and there are no known adverse impacts of the polygraph on older people on probation. It is known that as sex offenders get older, their risk tends to decrease. The National Probation Service is required to regularly assess risk levels for all offenders. If the risk of sex or domestic abuse offender who is subject to mandatory testing reduces sufficiently, then they may no longer be subject to the test. Data shows that the majority of those who would be impacted by the Bill are older white males. This is partially explained by the fact that they are overrepresented in these offence types. Eligibility for polygraph examinations is dependent on sentence type, sentence length, offence type and assessed risk and, therefore, we do not expect any direct discrimination to this cohort of offenders.

Disability

For people on probation with physical or neurodiverse needs, or those with mental health conditions, polygraph testing will be considered on a case by case basis.

For people on probation with neurodiverse needs, some may not be suitable for polygraph testing. Someone with memory impairment, including but not limited to, people with dementia, would not be appropriate for testing. People on probation with learning disabilities can be tested, but with some caution. If the Offender Manager is unsure they can discuss it with the Polygraph Examiners, who have access to expert advice from the Polygraph School provider, and/or advice can be sought on a case by case basis from the HMPPS Sex Offender Team.

We recognise that not all disabilities are visible. We acknowledge that the following disabilities may affect an individual’s day to day life and, again, an Offender Manager can discuss with Polygraph Examiners and/or seek advice from the HMPPS Sex Offender Team if they are unsure whether to refer someone for polygraph:

• Chronic Fatigue Syndrome (symptoms could be: extreme tiredness, sleep problems, muscle / joint pain, problems thinking, remembering or concentrating
• Epilepsy (possible symptoms: temporary confusion, a staring spell, uncontrollable jerking movements of the arms and legs, loss of consciousness or awareness, fear and anxiety)
• Fibromyalgia (symptoms might include: increased sensitivity to pain, extreme tiredness and fatigue, muscle stiffness, difficulty sleeping, problems with mental processes such as problems with memory and concentration)
• Lupus (possible symptoms: joint pain and stiffness, extreme tiredness that will not go away no matter how much you rest, skin rashes often over the nose and cheeks, weight loss, swollen glands, sensitivity to light, poor circulation in fingers and toes)
• Mental Health (Depression/Anxiety, lack of energy/motivation, low mood, difficulty focusing)

Any sex or domestic abuse offender who is subject to mandatory testing would be seen in a building accessible for people with physical disabilities. Hearing loops can be provided. People on probation with serious mental illness conditions would not be appropriate for polygraph examinations, for example, if someone was acutely psychotic, hypomanic, or had more than mild depression. As in the case of cognitive impairment the Offender Manager would be able to seek the advice of the Polygraph Examiner or the HMPPS Sex Offender Team.

The polygraph condition can be removed from a licence if the individual is never going to be suitable for a polygraph examination.

Gender reassignment

The test is applied to all sex and domestic abuse offenders in the same manner regardless of gender. The polygraph instrument is attached to the offender by a band placed on the upper chest and one on the diaphragm. This may impact on people on probation who identify as a different gender than the one assigned at birth but who have not undergone gender reassignment surgery. Where an individual identifies as a different gender than the one assigned at birth, every effort will be made to ensure either a male or female Polygraph Examiner is available upon request.

Marriage and civil partnership

A polygraph test does not create any negative impacts to individuals subject to polygraph examinations who are married or in civil partnerships. We will continue to keep this under review.

Pregnancy and maternity

This test could, in a very small number of cases, be applied to high risk female sexual or domestic abuse offenders.

There is no evidence that the polygraph instrument poses any threats or risks to pregnant women. It is an instrument that applies a cuff to the upper arm, a band to the upper chest and abdomen (it is not tight or restrictive), a pressure pad on the seat and small clips to the finger. The National Probation Service would comply with any instructions from a GP or Obstetrician in relation to the physical case or any female sex or domestic abuse offender in order to protect the health of the mother and unborn child. Tests would be conducted to fit at times that enabled pregnant women to attend all maternity appointments.

Race

Eligibility for polygraph examinations is dependent on sentence type, sentence length, offence type and assessed risk and, therefore, we do not expect any direct discrimination to this cohort of offenders. We know from that data that elderly, white males are disproportionately represented amongst sex offenders. For domestic abuse perpetrators the majority of those who would be eligible for polygraph testing are white males aged between 30 -39.

If an offender uses English as an alternative language, for example a Foreign National Offender, a translator will be made available to them to allow them to complete the test in their first language.

Religion, belief and non-belief

In some cases, cultural and religious sensitives may impact certain groups (for example, offenders identifying as Muslim) more than others. Although there is much variation in practice among Muslims, some observant Muslim offenders may find polygraph examinations contrary to their religious beliefs because of the close physical contact required with the examiner.

We will make every effort to accommodate the wish of the offender on these grounds but acknowledge that this would not always be possible due to the makeup of the testers and the wide spread geographical locations they cover.

Sex

Although the majority of offenders the clause will affect are male, overall we do not expect a disproportionate impact as again, it brings the cohort in line with the application of the policy to all other offenders, regardless of sex.

Sexual offenders of both sexes are required to discuss their sexual behaviour as part of a licence, regardless of whether or not they are tested by the polygraph. Sexual offenders subject to the polygraph test cannot be recalled to prison is they ‘fail’ the polygraph test. However, if they disclose that they have failed to comply with other conditions in their licence, recall is an option for their Offender Manager. This is no different to an offender who discloses a breach of licence condition in any other circumstances.

Domestic abuse offenders are also required to discuss their behaviour as part of their licence condition. The polygraph does not change this in any way. As with sexual offenders, the subject cannot be recalled for ‘failing’ a test, however, they may be recalled if they disclose information that reveals their risk has increased and they can no longer be safely managed in the community. This replicates what happens to offenders who are not subject to polygraph testing.

Sexual orientation

A sex or domestic abuse offender’s sexual orientation will not be considered in the eligibility criteria when adding a mandatory polygraph licence condition. The test asks questions that relate only to sexual or domestic abuse offending and not to sexual orientation.

If the sex offender has a history of sexually offending against children or adults of the same sex, the polygraph test may ask questions around the individual’s recent behaviour with that demographic. This is not discriminatory to the sexual offender but an issue which is solely related to the protection of the victim.

Polygraph testing is subject to rigorous quality assurance, which includes reports to the Lord Chancellor every 6 months with details on: total number of polygraph session reviews; a summary of each review; details of any divergence from the Polygraph Rules 2009 and any remedial action taken to address such divergence. We will continue to quality assure testing moving forward and will review the imposition of conditions to ensure that they are not unduly impacting, whether consciously or unconsciously any protected characteristic.