Lie Detectors to make an appearance?

Polygraph-simpson

Introduction

Lie detector (polygraph) test have historically been inadmissible in Court (so even if someone take one, a jury is not allowed to hear the results). This is primarily because there are doubts about their reliability.

On 20th November 2013 Shuan Wright, the Police and Crime Commissioner for South Yorkshire, announced that they will be used in limited circumstances.

 

When will they be used?

They will be offered to offenders and potential offenders on a ‘voluntary basis’. It will be used as ‘a risk assessment and investigative tool for known sex offenders … as part of probation or bail conditions‘.

 

How much will it cost?

According to the Guardian, Mr Wright will spend £35,000 on the equipment and sending two police officers to be trained on using it to Texas (it’s a hard life).

 

Is this legal?

ss29-31 Offender Management Act 2007 provides for polygraph tests to be used as part of determining licence conditions for someone who is released from prison.

This was upheld (during a pilot scheme) as being lawful (in the sense of not being a breach of Art 8 ECHR) by the High Court in the case of C v MoJ [2009] EWHC 2671 (Admin)). It is probably not surprising as it was voluntary and the challenge doesn’t fit particularly well into Art 8.

If there was a situation where release from prison would be conditional on taking a polygraph test, then this would be a different matter (and the courts would probably not allow that).

As for bail conditions? Under s3 Bail Act 1976, the Court may impose  ‘such requirements as appear to the court to be necessary to‘ prevent him committing any offence on bail. This would be wide enough to cover the imposition of a polygraph test, but it would then be made a mandatory requirement which would involve different considerations.

My gut reaction is that there is a very good chance that this would be unlawful (under Art 5 ECHR), but time may tell.

The press release from the Commissioner indicates that he thinks it will be used for pre-charge bail in cases such as child pornography offences where there are often long periods of time before a charging decision is made. Again, I imagine that this would be challenged and be found unlawful.

 

But no harm really done, even if they don’t work?

That’s the question. Wikipedia has a good overview of how polygraphs work and how reliable they are.

The problem is that if they are unreliable, then why use them? It may get some questions right, but there are Type 1 and Type 2 errors. It will mean that people are wrongly labelled a greater risk than they actually are, which will impact on their liberty. More significantly (for the Commissioner) is that people who ‘pass’ a polygraph when they shouldn’t may not be identified as the risk that they are.

Whilst it is said that it will just be one part of a tool to get an overall view, the risk (as I see it) is that these tests will be administered by two officers who have been picked as ‘specialists’ in this area and have been sent to America to be trained in this. In light of that, there is a real danger that they will place too much reliance on the results.

 

Conclusion

This may just be a gimmick, but if I was in South Yorkshire I would be unhappy about my crime Commissioner spending money on pseudo-science.

The blanket ban on polygraph testing did not just mean that prosecutors were barred from using tests that implicated defendants, but the accused could not use tests that appeared to clear them. Currently, there are plenty of people in prison who state that they are victims of a miscarriage of justice who have passed a polygraph test. If a crime Commissioner is allowed to use them, why can’t they?

 

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About Dan Bunting

I'm a lawyer who works for myself. Legal geek, maths freak, general dullard and jack of all trades. Here’s a few views on law and occasional musings on life. Usual caveats about not relying on anything I say etc applies.

4 thoughts on “Lie Detectors to make an appearance?

  1. duncanheenan

    On the whole I am against the use of polygraphs, but I may be persuaded if they were applied to everyone giving evidence, including the police. Recent publicity would seem to indicate that the police are well capable of lying when it suits them. I have seen cases where police evidence clearly contained lies.

    Reply
  2. Pingback: Lie Detectors to make an appearance in the UK |...

  3. Patrick

    I agree that a certain amount of equality should be applied to all in a case, but we have a case where Social Services have constructed a theory of none-accidental injury to a grandchild by her parents, although the child-minder has less than satisfactory explanations regarding an accident that occurred in her care at the same time. This is in Family Court, rather than Criminal Court (the Police are on the fence). We’re paying for a polygraph, regardless of whether the Justice system wholly accepts the validity, on the basis that it is another piece of information that cannot be totally ignored.

    The reference to licence conditions refers to research that sex offenders were found to be more likely to tell the truth if they thought that they might be discredited by such a test. This is being brought in to Probation in 2014, who are currently recruiting staff to undertake the training (some 400 hours with rigorous exams) to be accredited to conduct the tests.

    This is to establish innocence, not guilt. One would have though that the simple act of being prepared to undergo and finance such an exercise would have some impact on the assessments of the ‘professionals’. Regardless of their assertions that the results are not admissible in a Court of Law I believe that the intent that we have will have some effect.

    Reply
  4. duncanheenan

    One of the findings of polygraph testing is that they don’t work at all well on genuine psychopaths, who have no conscience or fear to set the bio markers going, upon which polygraphs work. If Polygraph tests were to be relied on in Court, it would increase the chances of genuine psychopaths being found innocent, whatever was the truth.

    Reply

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