Not ‘Very English’ - on the Use of the Polygraph by the Penal System in England and Wales
| Date | 01 June 2021 |
| Published date | 01 June 2021 |
| DOI | 10.1177/0022018320976284 |
| Subject Matter | Articles |
Article
Not ‘Very English’ - on the
Use of the Polygraph by the
Penal System in England
and Wales
Kyriakos N Kotsoglou
Northumbria Law School, UK
Marion Oswald
Northumbria Law School, UK
Abstract
One of the most strikingdevelopments in the penal systemin England and Wales is the increasing
use of the polygraph by probation services. Despite severe criticism from scientific institutions
and academic discourse, the legal order increasingly deploys the long-discredited polygraph in
order to extract adverse statements from released offenders. Our article is structured as fol-
lows: First, we summarise the statutory and regulatory framework for the current use of the
polygraph in the monitoring of sex offenders released on licence,and the proposed expansion of
the polygraph testing regime as set out in the Domestic Abuse Bill and the Counter-Terrorism
and Sentencing Billrespectively. We then review our findings in respect of governingpolicies and
procedures uncovered by our FOI-based research, highlighting the concerning lack of con-
sistency in respect of both practice and procedure. In the subsequent sections we set out the
main arguments deployed by polygraph proponents, and posit our view that none of these
arguments can withstand scrutiny. We conclude by proposing a moratorium on any further use
of the polygraphby the State, in order to thoroughly evaluateits effect on the integrity of the legal
order, human rights and, more generally, the Rationalist aspirations of the penal system. In
addition, and given already existing law, we propose a process of independent oversight and
scrutiny of the use of the polygraph in licence recall decisions and other situations impacting
individual rights, especially police investigations triggered by polygraph test results.
Keywords
Law, polygraph, probation, lie detection, rationalism, human rights, normative integrity, utility,
freedom of information
Corresponding author:
Kyriakos N Kotsoglou, Senior Lecturer in Law (Criminal Evidence), Northumbria Law School, Newcastle upon Tyne NE2 1XA,
UK.
E-mail: kyriakos.kotsoglou@northumbria.ac.uk
The Journal of Criminal Law
2021, Vol. 85(3) 189–208
ªThe Author(s) 2020
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DOI: 10.1177/0022018320976284
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The polygraph—or lie detector, to use its more homely name—
is not new, nor to my mind is it very English
Lord Lloyd of Berwick
Introduction
Managing to separate—in a reliable way—truth from lies has been a dream of mankind since ancient
times. It has shaped mythology, philosophy, literature and fiction. For example, the Greek god Momus
criticised Prometheus, i.e. the creator of humans, for not hanging the latter’s heart on the outside so that
lies can be detected and thoughts can be read.
1
As a result of his criticism, Momus was, so the myth goes,
expelled from the gods. What is more, humans remain to this day opaque, so that others carry on the
struggle to rationalise human understanding in relation to truthful/deceptive behaviour. From Mary
Poppins who uses an Oral Thermometer to detect naughty behaviour to Wonder Woman whose powerful
weapon, i.e. the lasso of truth, can force those bound within it to disclose information, to the polygraph
(the prototype of which was designed by the creator of Wonder Woman),
2
people still feel the need to
look into each others’ soul. The aforementioned Momus’ criticism of Prometheus’ handiwork lies at the
heart of modern developments in the law of England and Wales as regards the use of the polygraph by
police forces and probation services.
It may come as a surprise even to criminal lawyers that the polygraph, alias ‘lie detector’ as it is
commonly known and understood by courts in England and Wales,
3
has been deployed by the penal
system for over a decade in England and Wales. Pursuant to the Offender Management Act 2007, lie-
detector tests are currently in use by Her Majesty’s Prison and Probation Service (hereinafter: HMPPS)
in order to monitor sex offenders released on licence and manage compliance with their licence condi-
tions. The remit of the polygraph test is expected to expand with similar provisions in the 2020 Domestic
Abuse Bill and the Counter-Terrorism and Sentencing Bill respectively. Furthermore, the latter Bill
includes polygraph testing as a method of monitoring compliance with Terrorism Prevention and
Investigation Measures (TPIM) and leaves open the possibility that statements made in the course of
compulsory polygraph testing can be used to secure a TPIM following the end of an offender’s licence, a
consequence that the Independ ent Reviewer of Terrorism Legislation has describ ed as ‘potentially
oppressive’.
4
Now, the question is: How is it even possible for the polygraph to gradually gain traction—again?We
cannot stress enough that ever since the first deployment of the polygraph, appelate courts,
5
scientific
organisations,
6
and last but not least academic discourse have continuously and nearly unanimously criti-
cised, and rejected this method as unscientific. Whatis more, the very research programme in psychology
1. See Plato’s dialogue, Protagoras, 320D–322A.
2. For a concise introduction, see Ken Alder, The Lie Detectors: The History of an American Obsession (Simon & Schuster, New
York 2007) xiii et passim.
3. See, eg, Corbett v (1) The Secretary of State for Justice (2) The National Offender Management Service [2009] EWHC 2671
(Admin), at [8] per LJ Pill.
4. Jonathan Hall QC, Independent Reviewer of Terrorism Legislation, ‘Note on Counter-Terrorism and Sentencing Bill: Sen-
tencing Reforms (2)’, 4 June 2020, para 25.
5. See only Frye v United States, 293 F 1013 (DC Cir 1923).
6. See, eg, National Research Council [USA], Committee to Review the Scientific Evidence on the Polygraph, 2003; see also [US
Congress] Office of Technology Assessment, Scientific Validity of Polygraph Testing: A Research Review and Evaluation, A
Technical Memorandum, OTA-TM-H-15 (1983). The Royal Commission on Criminal Procedure of 1981 had considered the
introduction of the polygraph test into England and Wales. Their conclusion however was that the polygraph’s ‘lack of certainty
from an evidential point of view told against its introduction in this country for the purpose of court proceedings’ (para 4.76).
190 The Journal of Criminal Law 85(3)
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