The Ministry of Justice has published a consultation paper as the National Offender Management Service is proposing to operate a three-year pilot of mandatory polygraph tests to determine if the polygraph can help in the management of sex offenders.

A polygraph is a device that measures changes in breathing, heart activity and sweating, all of which are believed to be related to deception. Evidence from the polygraph would be used to help assess if an offender presents a risk to the public.

The Offender Management Act 2007 enables mandatory polygraph testing for certain sex offenders. This consultation concerns the content of the rules that will regulate mandatory polygraph tests with sex offenders in the UK.

The following text has been taken from the executive summary of the consultation paper:

The National Offender Management Service is proposing to operate a three year pilot of mandatory polygraphy to help in the management of sex offenders. The pilot will take place in a limited area, and will be evaluated as to its effectiveness. Following the pilot a parliamentary decision will be taken as to the future of polygraph testing for sex offenders on a national basis, informed by the outcome of the pilot.

Sections 28-30 of the Offender Management Act 2007 enable the Secretary of State to insert a Polygraph Condition in the licence of certain individuals as specified in the Act, who are being released from prison having served a sentence for a sexual offence.

A Polygraph Condition requires the released person to undertake polygraph tests as specified in the Act, in order to contribute to the safer management of that person in the community.

A polygraph is a device that measures changes in breathing, heart activity and sweating, all of which are believed to be related to deception. The polygraph will be used to monitor whether offenders are engaging in risky behaviour, or behaviour that puts them in breach of their licence conditions. For each offender subject to polygraphy requirements risky behaviours would be identified that might indicate they were about to return to offending. A polygraph test would then be applied at regular intervals, to test the offender’s responses to questions about those behaviours.

Evidence from the polygraph would be used as part of an overall assessment as to the risk an offender presents to the public, or to specific individuals. If an offender failed a polygraph test this on its own would not be used as the basis of proceedings such as breach of licence or recall to prison. However such evidence might prompt further investigations which in turn might provide evidence of breach of the offender’s licence conditions.

The Home Office funded a voluntary pilot of polygraph testing with sex offenders between 2003 and 2006 (Grubin, 2006). The voluntary pilot was an exploratory trial to ascertain whether polygraph testing could assist probation officers in their treatment and supervision of offenders. 347 participants attended for polygraph testing. Outcomes were compared with 180 offenders who were not polygraphed, although caution should be exercised in any comparisons as these offenders were not matched to the polygraph group. Based on their knowledge of a case from probation records and discussions with probation officers, examiners reported that for the polygraphed group new disclosures relevant to treatment and supervision were made in 79% of first examinations and 78% of retests. Nearly 30% of these disclosures took place in the post-test interview that followed the offender having been questioned while attached to the polygraph – in other words, after being challenged with the result of the test. Probation officers of polygraphed offenders reported increasing their assessment of risk more frequently than those of non-polygraphed offenders, who tended to decrease their assessment of risk over time. For cases in which feedback was received, over 90% of probation officers rated the polygraph examination as being somewhat or very helpful.

However, a key limitation of the research was the voluntary nature of the pilot. Because of legislation at the time of the study, offenders were able to opt out of polygraph testing and, on average, only 43% of those eligible volunteered. As such the sample of offenders tested was self-selecting and there could be systematic differences between the group who were managed with polygraph testing and those who chose to opt out, which could have accounted for the results. Therefore robust conclusions cannot be drawn from this study about the efficacy of the polygraph tests. Only a pilot of mandatory testing, combined with thorough research, may indicate whether or not polygraph testing is a useful and effective risk management tool for Offender Managers.

That is why the legislation described above, which will enable this, was introduced. In particular Section 41 of the Act provides that the sections enabling mandatory polygraphy may be enacted in a specified area for a specified time. This is to enable the measures to be piloted and evaluated prior to consideration of wider implementation.

Section 29 (6, 7 and 8) of the Offender Management Act 2007 enable the Secretary of State to set rules regarding the conduct of polygraph sessions. The rules may, in particular

(a) require polygraph operators to be persons who satisfy such requirements as to qualifications, experience and other matters as are specified in the rules;
(b) make provision about the keeping of records of polygraph sessions; and
(c) make provision about the preparation of reports on the results of polygraph sessions.

This consultation concerns the content of the rules that will regulate mandatory polygraphy with sex offenders in the UK.

When responding to the consultation it should be noted that Section 30 of the Offender Management Act 2007 prevents the use of evidence obtained from polygraphy in this context in any criminal proceedings against the subject. It is not necessary therefore for this to be replicated in the rules.

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The Bar Council has published a response to the Criminal Procedure Rule Committee consultation paper on amending and consolidating Magistrates Courts and Youth Courts trial rules:

1. Is it appropriate to combine current Parts 37 and 38 in a single new Part 37 that applies to all trial in magistrates’ courts including youth courts?

Yes. There is obvious benefit in having, so far as possible, a single accessible document reflecting all relevant legislation.

2. Are any of the proposed rules confusing when compared with the legislation they incorporate?

No. There is obvious merit in providing the actual primary legislation reference so that should any dispute arise it will be immediately apparent what provision the rules are intended to reflect. It is suggested that the Committee give consideration to including, either by way of Notes to the Rules or by the insertion of footnotes the relevant legislation.

a) Is it confusing for the proposed rules to allow the possibility of:-  a) A trial starting more than once, for the purposes of those rules? b) A trial starting for the purposes of those rules before it starts for the purposes of a custody time limit or a statutory pre-trial ruling?

The confusion arises from the commentary and not what is proposed to be included in the rules!

3. Is it desirable to provide for a court to express ‘an initial view about sentence’ to guide the officer who prepares the pre-sentence report?

Rule 37.3(4) (a):  Yes. It is desirable to provide for a court to be able to indicate to the officer any matter it would like the report to specifically address. For example, a person’s financial state or details of involvement of other agencies with a particular defendant (eg. social services).

4. Might ‘an initial view’ raise an expectation of sentence that it would be unfair to disappoint?

Rule 37.3(4) (b):  Yes. However this is more likely to be as a result of     
how the ‘initial view’ is expressed in court rather than how the rule is itself framed. There is therefore no objection to the rule itself but rather how the  rule will be implemented. The problem is generally avoided in the Crown  Court either by the judge making it clear that although the court is considering ‘all options’ it is very likely that the outcome will be one of custody. It may be appropriate to issue guidance or a set form of words to avoid inappropriate expectation arising from the initial view. For example:- “this is a case where we think all options should be considered”. 
 
In the Crown Court where some sort of indication by one judge has been given which has given rise to a legitimate expectation as to sentence and which is not shared by another judge the obvious solution is to refer sentence back to the original judge. Because of the lay bench system in the Magistrates’ Court this is not an option. It is therefore important that this proposed rule is not seen as obligatory and that any expectation can be tempered by certain set caveats.

5. Is it desirable for the proposed rules to include rule 37.9 (evidence of a witness in person)?

Yes. It is helpful to have the procedure for live witnesses giving evidence set down in this rule.

6. If so, is it desirable to allow for examination-in-chief to be conducted in part by asking the witness to adopt his or her written statement?

No. Rule 37.9(3)(b)(i) is not supported. The rule is unnecessary. If a witness needs to refresh his or her memory from their witness statement there is a procedure for facilitating this. To permit a Prosecutor to simply invite a witness to adopt parts of their witness statement undermines the purpose of having a witness give evidence in person. It is not just about what they say but how they say it. More importantly, in Magistrates’ Court the Bench do not have copies of the the statements. It therefore means that any issue as to the accuracy or fairness of what is adopted or summarised by the Prosecutor will not be in the hands of the court.
     
7. Is it both lawful and desirable to incorporate in the proposed rules provision about the composition of the court?

Yes. Having details of the relevant composition is desirable. It does not conflict with any statutory provision.

8. Is it desirable explicitly to provide for lay justices to be assisted by a justices’ legal adviser?

Yes. Supported on the grounds that it is the first attempt to set down the function and duties of the legal adviser.

9. Is it desirable explicitly to provide for administrative staff to undertake the functions listed in proposed rule 37.16?

No. This is unnecessary.

10. For the reasons given in relation to each, is it right to omit current rules 37.5; 37.7; 37.8; 38.1(2) and (3) and 38.2?

Rule 37.5: Yes.
Rule 37.7: Yes.
Rule 37.8: Yes.
Rule 38.1(2): Yes.
Rule 38.1(3): Yes (subject to Schedule 3 CJA 2003 coming into force)
Rule 38.2: Yes (assuming that revision of the rules re commencing proceedings are introduced)

11. Would it be helpful to include a rule that allowed the court in some circumstances to deliberate on a number of cases before announcing its decisions?

No. Such an approach does not sit comfortably with the fundamental principle of trying cases ‘on the evidence’. The risk is undue influence and lack of attention to individual cases.

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The Law Society has published the results of an online survey held to obtain views from practitioners on the Litigators Graduated Fee Scheme:

Our recent online survey found that seventy five per cent of respondents are encountering problems with the new Litigator Graduated Fee Scheme.

The new payment scheme was introduced by the Legal Services Commission (LSC) in January 2008 for work undertaken by solicitors in the Crown Court. The aim of the scheme was to bring payment structures in line with the Advocates Graduated Fee Scheme and to produce savings of Ł11m each year.

Our survey of 137 solicitors has highlighted a number of problems with the scheme. These include:

• A large number of problems where incorrect PPE counts have been submitted to the LSC via the Crown Court CREST system but there is no process for ensuring that every page is properly counted. The LSC still appears to be bound by the data, even when it is shown to be incorrect.
• Solicitors are experiencing a significant reduction in fees when there is a lot of unused material to consider.
• Payments for electronic evidence, such as video surveillance and mobile phone recordings, are insufficient to cover the work involved in considering it.
• The LSC appears to be unable to overturn incorrect offence codes even when evidence of the correct offence class is provided by the solicitor.
• Practitioners report that the ‘wrapping up' of S.51 work in the magistrates ' court fee is leaving much of this work effectively unpaid.
• Practitioners also report that the fixed fees for committals are insufficient to cover the work involved and as a result, practitioners are finding it difficult to undertake necessary work in the case.

Following the first six months of operation, the LSC is undertaking an initial review of the scheme. The results of the Law Society's survey have been fed into the Commission's review.

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