Policy paper

Parole and licence conditions: Police, Crime, Sentencing and Courts Act 2022 factsheet

Updated 20 August 2022

I endorse the use of polygraph testing…on high risk sex offenders… There have been a significant number of cases where information gained through [it] has led to children and vulnerable people being safeguarded. DCI Jude Holmes, Public Protection & Serious Crime

1. What are we going to do?

1.1 Mandatory polygraph testing

We will update and extend the list of sex offences eligible for polygraph.

We will impose polygraph testing on eligible domestic abuse or sexual offenders sentenced in military courts or repatriated to England and Wales.

1.2 Parole

We will introduce a new power to enable the Parole Board to set aside decisions if they are fundamentally flawed, or where significant new information comes to light after a hearing or decision.

We are also creating a more straightforward framework for the setting and varying of licence conditions, and making some minor technical amendments.

2. How are we going to do it?

2.1 Mandatory polygraph testing

Polygraph tests have been successfully used in the management of sexual offenders since January 2013 in the National Probation Service. Provisions in the Domestic Abuse Act will enable the Secretary of State to impose polygraph testing on high risk Domestic Abuse perpetrators.

Provisions in this Act will update and expand the list of sex offences that are eligible for polygraph because previous lists are now outdated. We will also enable the Secretary of State to impose mandatory polygraph testing on eligible domestic abuse or sexual offenders who are sentenced in military courts (service offenders) or those repatriated to the UK to serve their sentence. This ensures consistency with terrorist offenders.

2.2 Parole

Rather than create the new powers in the Act itself, the provisions empower the Secretary of State to amend the Parole Board Rules in order to create the powers to set aside decisions in secondary legislation. This approach was preferable because it will allow them to be more easily amended in the future should the need arise, though always fully scrutinised by Parliament. The Rules, once amended, will specify how and when the new powers will be used. However, the tests that the Board must apply to exercise those powers is set out in the Act.

Changes to the provisions for licence conditions will clarify the Parole Board is only responsible for setting or varying licence conditions where it directs initial release or, for some prisoners, release after recall and not where release occurs automatically or at the discretion of the Secretary of State. This will be clearer and more straightforward to operate than the current system where responsibility for licence conditions is tied to the sentence rather than which body affects the release.

We are also making a number of minor technical amendments to the legislation around parole and release, most notably to remove the entitlement to an annual parole review where a prisoner has another conflicting sentence that prevents their release, or where they have 13 months or less to serve following a previous decision.

3. Background

3.1 Mandatory polygraph testing

Polygraph tests have been successfully used in the management of sexual offenders since January 2013 in the National Probation Service (NPS). Initially, this was as a successful pilot and later a national programme. Examinations are carried out by experienced qualified Probation Officers who have been trained as accredited examiners to the standards set by the American Polygraph Association and who are experienced in managing high risk offenders.

Polygraph works by measuring the physiological changes (e.g. heart rate, blood pressure, sweat) when the individual being tested is asked questions. Changes to the individual’s normal rates can indicate that the subject is attempting to be deceptive.

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.

The results of a test cannot be used in criminal proceedings against the released person, nor can someone be recalled to prison for failing a test. A failed test can, however, be used to add additional licence conditions to support offender management and if disclosures during a test suggest an offender’s risk has escalated, they can be recalled. Information from a failed polygraph examination may be passed onto the police who may investigate further. If a further offence has been committed, the offender may then be charged and recalled.

3.2 Parole

The ability to re-open and re-take parole decisions if they are fundamentally flawed or if new information comes to light has previously been possible but complex. This measure will clarify this position by putting it on a clear legislative footing.

The measure, once delivered via an amendment to the Parole Board Rules, will complement the existing reconsideration mechanism by broadening the circumstances where the Secretary of State can take action prior to release in response to the very rare occasions where a parole decision is seriously flawed. They will be available even once a decision has become final after 21-days, and where new information comes to light which was not available to the Parole Board’s panel at the time of the original hearing.

The current system for setting and varying licence conditions is complex and confusing for practitioners to apply correctly and the statutory provisions on responsibility for setting licence conditions are inconsistent across different determinate sentence types.

For instance, currently the Parole Board is always responsible for setting conditions for Extended Determinate Sentences (EDS) and Sentences for Offender of Particular Concern (SOPC). There is no power for the Secretary of State to set or vary conditions and so even where parole is refused and the offenders are released automatically at the end of the custodial term, the conditions must still be set by the Parole Board.

Once enacted, these provisions will mean that, regardless of sentence type, where the Parole Board directs the initial release then they will be responsible for setting and varying the licence conditions. And where a prisoner is released executively or automatically at the end of their custodial term by the Secretary of State, with no Parole Board direction, responsibility for the licence will fall to HMPPS.

4. Frequently Asked Questions

4.1 Who will mandatory polygraph testing apply to?

This Act will extend current provision to ensure eligible domestic abuse or sexual offenders who are sentenced in military courts (service offenders) or those repatriated to England & Wales to serve their sentence are tested.

Testing will be imposed on those offenders:

• aged 18 years and over
• assessed as very high or high risk of serious harm using nationally accredited risk assessment tools
• sentenced to a term of custody of 12 months or more and released on licence

4.2 Why are you extending the list of sex offences eligible for polygraph?

The list of offences previously used to test offenders was outdated. In the case of testing offenders from Northern Ireland or Scotland, the law had been repealed and the list of offences had not been updated since. 2008 We are now making a more up-to-date reference to Schedule 3 of the Sexual Offences Act. Eligibility criteria will ensure that only offenders who are sentenced to a custodial sentence of 12 months or more and are assessed as very high or high risk of serious harm will be eligible for polygraph.

4.3 Is the polygraph examination reliable?

The American Polygraph Association carried out a meta-analysis of the various polygraph techniques used by polygraph examiners in 2011. Of the tests under consideration, 89% were accurate in terms of reliability and 11% were inconclusive.

4.4 How will Offender Mangers use polygraph examinations alongside existing risk assessment?

Polygraph testing does not replace any existing forms of risk assessment or management. It provides an additional tool for offender managers, providing them with information that they would not otherwise have. There is no evidence from the testing of sexual offenders that the polygraph is used as a substitute for other forms of management.

4.5 How well has mandatory polygraph testing worked with sexual offenders in the National Probation Service?

Between August 2015 - November 2019, NPS has carried out 5,228 examinations on 2,249 sexual offenders using single issue tests. 1,449 test have resulted in significant disclosures leading to better risk management plans or the offender being returned to custody if they disclose breaches of othe licence conditions or information that means they can no longer be safely managed in the community.

4.6 Why does the Parole Board need new powers?

The reconsideration mechanism, introduced in 2019, has been a valuable tool in allowing the Parole Board to look again at decisions which appear to be irrational or procedurally unfair. But there was only so much that could be achieved in secondary legislation.

Ensuring the public is properly protected is our primary consideration. That means we cannot allow parole decisions to stand if, for example, new evidence comes to light that suggests a prisoner is more dangerous than the Parole Board assessed them to be. These new powers will enable swift action to be taken administratively without the need to resort to Judicial Review as is currently required.

4.7 What is wrong with the current provisions for setting and varying licence conditions?

There is no reason for the existing provisions to apply a different approach to licence conditions depending on the type of sentence.

Our goal is to create greater consistency across different sentence types and to have a system which is easier to operate and less complex. These measures, which will apply to all determinate sentence types, will apply a clear and consistent approach based on who is responsible for effecting the release of the prisoner.

Setting and varying licence conditions for indeterminate sentence prisoners will remain entirely the remit of the Parole Board.