Domestic Abuse Bill — House of Lords, 2021-02-08
Topic: Law and Crime
Jonathan Marks (Liberal Democrats, Centre to centre-left): My Lords, opposition to clauses standing part of a Bill usually arises out of outright opposition, and in my case I said at Second Reading that I shared the view of my noble friend Lady Burt that polygraph testing on the present state of the technology has no place in our criminal justice system. The basic response of most lawyers to polygraph testing is to oppose its use in a criminal context precisely because there is no firm evidence of its reliability. We tend to the view, which I am sure the Minister understands, that a system of evaluating evidence whose reliability is not assured and produces essentially binary results—true or false—is inherently inimical to the approach of common-law lawyers used to a carefully balanced system of gathering, testing, and evaluating evidence However, my perception of polygraph testing has now become somewhat more nuanced. A major contributor to a shift in my view was an excellent teach-in organised by the Ministry of Justice last Thursday, very well presented by Heather Sutton, senior policy adviser on polygraphs and sexual offending, and Professor Don Grubin, emeritus professor of forensic psychiatry at Newcastle University. They gave a number of noble Lords a comprehensive outline of the way in which polygraph testing is used in the management of offenders subject to recall from licence under existing legislation. For my part, I have no experience of the use of polygraph testing, and no expertise on the subject. Opposition to its use as part of this Bill was canvassed in another place by my honourable friend Daisy Cooper MP. The Parliamentary Under-Secretary of State for Justice, Alex Chalk MP, provided a detailed and helpful response to a number of questions which she raised. As a result of his answers and what we were told on Thursday, I accept that there may be some force—subject to a number of questions—to the argument that there is a legitimate place for the use of polygraph testing in necessary cases, where its purpose is to avoid serious harm I add one particular proviso, among others, that evidence of polygraph testing must never be relied on as part of the evidence in a criminal case until its reliability is far more conclusively established than it is now. However, as I understood it, we were assured last Thursday—I would be grateful for confirmation of this from the Dispatch Box—that no decisions on recalls from licence can be taken as a result of a test indicating deception. If the result of a test implies that an offender is lying about a breach of a licence condition or about further offences, for example, investigators will ask the police to look further to see what the truth is before taking any positive action. There is therefore no recall, as I understand it, on the basis of a failed test, which will lead only to recall if the police find other evidence establishing that a breach has occurred However, I have some concerns about cases where an offender makes a disclosure in a polygraph test confessing to behaviour that is a dangerous breach and might therefore be recalled. It is important in such cases that the veracity or genuineness of the disclosure and its voluntariness can be thoroughly tested before any recall can take place. Our understanding was that such a disclosure would be followed generally by a hearing before a recall was confirmed, but again I seek confirmation of that This is genuinely a probing amendment. It is for that reason that our stand part opposition is coupled with Amendment 191, through which I advocate regulations to prevent Clause 69 being brought into force before such a scheme is piloted. I note that the Government propose to pilot these provisions before rolling them out. However, we ask that regulations bringing Clause 69 into force are not made permanent before Parliament has had an opportunity to consider a report from the Government on that pilot and has agreed to regulations being made permanent under that clause I appreciate that polygraph testing is used already in the case of high-risk sexual offenders to manage compliance with licence conditions and that it is included in the Counter-Terrorism and Sentencing Bill for monitoring terrorist offenders released on licence. As I understand Clause 69 of this Bill, testing will be imposed on adult high-risk offenders who are convicted of serious offences involving domestic abuse, including coercive or controlling behaviour in the domestic context, breaches of restraining orders and of a domestic abuse protection order, who have been sentenced to at least 12 months’ imprisonment. I understand that its application will be limited to offenders released on licence and to monitoring their compliance with licence conditions. However, I understand that it is also proposed to include on a discretionary basis offenders for whom concerns about the risk of reoffending would justify mandatory testing to manage risks posed by the offender to the community I pose a number of questions to the Minister in connection with that and other issues. Is there a cast-iron guarantee that the results of polygraph testing carried out under the clause could not be used to secure convictions for a criminal offence? To what extent could an offender be recalled from licence on the basis of a polygraph test in which he made disclosure of a breach of condition of his licence? What would be the procedure for such a recall? What is the effect of a breach of polygraph licensing conditions to be? Could evidence of such a breach be itself based on a failed polygraph test? What are the Government’s proposals for piloting in respect of polygraph tests in connection with monitoring compliance with licensing conditions in domestic abuse cases? Will there be a report of any such pilots back to Parliament? Will Parliament have an opportunity to consider the question of polygraph testing before the regulations make it permanent?