Zombie forensics: the use of the polygraph and the integrity of the criminal justice system in England and Wales
| Published date | 01 January 2021 |
| Date | 01 January 2021 |
| DOI | 10.1177/1365712720983929 |
| Subject Matter | Articles |
Article
Zombie forensics: the use
of the polygraph and the
integrity of the criminal
justice system in England
and Wales
Kyriakos N. Kotsoglou
Northumbria University, School of Law, UK
Abstract
The criminal justice system of England and Wales increasingly deploys the polygraph to
extract information from released offenders. Although there is little judicial authority
regarding the admissibility of polygraph evidence, we should not misinterpret silence as legal
uncertainty. The paper will, first, show that the central claim for the understanding of the
polygraph—i.e. the presupposition that the polygraph indicates deception—is inextricably
linked to an obsolete paradigm in psychology (Introspection). Secondly, I will turn to first
principles in the law of evidence, especially the general ban on opinion evidence and the
requirement for scientific validity. The requirement that expert evidence has a sufficiently
reliable scientific basis explains why polygraph evidence cannot be adduced at the criminal
process. Thirdly, I will draw attention to the use of polygraph tests in the context of pro-
bation, pursuant to the Offender Management Act 2007. With the use of the polygraph, the
criminal justice system does not only infringe the released offender’s human rights, but also
fails to protect the public. The combination of inadmissibility of the polygraph in the criminal
process and its use from probation services creates thus a major contradiction which is
detrimental to the integrity of the legal order.
Keywords
arbitrariness, integrity, law of evidence, opinion rule, polygraph, probation, zombie forensics
In the long run, the greatest danger of expertism is not conscious fraud or charlatanism but rather a tacit
conspiracy between expert and audience to accept that which would not stand careful scrutiny because such
acceptance is mutually beneficial. (Risinger et al., 1989)
Corresponding author:
Kyriakos N. Kotsoglou, Northumbria University, School of Law, Newcastle upon Tyne NE1 8ST, UK.
E-mail: kyriakos.kotsoglou@northumbria.ac.uk
The International Journalof
Evidence & Proof
2021, Vol. 25(1) 16–35
ªThe Author(s) 2020
Article reuse guidelines:
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DOI: 10.1177/1365712720983929
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Introduction
Lie-detector ante portas
In a masterpiece of world literature Mary Poppins—upon her return to the Banks family—immediately
goes on to enquire how the children have been behaving during her absence. Her pipeline to the
children’s soul is an oral ‘Thermometer’ which informs her reliably that Michael has been ‘Careless,
Thoughtless and Untidy’ (Travers, 2008: 156). Adults and, arguably, children find this amusing, as they
can tell the difference between fiction and science, i.e. between reality and literature. Or can they?
Recent developments regarding the proliferation of pseudo-scientific methods in the criminal
justice system are blurring the lines between informed decision-making pr ocesses and fact-finding
dystopia/science fiction, i.e. between reliable technical devices on the one hand and non-theoretical
understanding of human traits and normative concepts such as truthfulness and deception on the other
hand. More specifically, the notorious polygraph test is enjoying an unmistakable resurgence of usage.
In England and Wales lie-detector tests are currently in use by Her Majesty’s Prison and Probation
Service (hereinafter: HMPPS) to monitor sex offenders on parole and manage their level of compli-
ance. Sections 28–30 of the Offender Management Act 2007 enable a ‘polygraph condition’ to be
inserted in the release licence of released sexual offenders.
1
This is not a negligible development,
given the fact that nowadays sexual offenders amount to ca. one fifth of the prison population and one
tenth of offenders under probation supervision (see Stacey, 2019: 5 ). What is more, there are real
stakes in the use of the polygraph test. Individuals who have been found in breach of their licence
conditions may be recalled and return to prison at the instigation of their offender manager (for an
overview see HPPS, 2019). The remit of the polygraph test is expected to expand with provisions in the
Domestic Abuse Bill
2
and the Counter-terrorism and Sentencing Bill (see Ministry of Justice, 2020a)
respectively. Finally, the pilot scheme ‘Choices and Consequences’ (C2) run by Hertfordshire Con-
stabulary ‘aims to steer prolific, acquisitive criminals away from a life of crime’ by offering a
‘voluntary lie detector test’ (see Hertfordshire Constabulary, 2019). At the same time the EU has
already funded and employed at several airports securitysystems whose main objective is to secure the
external borders of member states with technologies that are ‘ranging from biometric verification [to]
automated deception detection’.
3
Zombie forensics
The examples listed above show that it has become increasingly difficult to ignore the possibility
that the major shift in our approach to crime detection and risk-management signals a feature, not
a bug in the system. There can be no doubt that the polygraph test is ante portas—again. Now,
the question is: Why is the polygraph increasingly gaining traction? What makes it so appealing
that legal systems jettison fundamental evidential principles or, most importantly, one of their
core tenets, i.e. rationality, by forcing subjects to undergo polygraph tests? I cannot stress enough
that ever since the first deployment of the polygraph criminal courts,
4
scientific institutions,
5
1. The relevant offences are specified in Part 2 of Schedule 15 to the Criminal Justice Act 2003. In April 2009, the National
Offender Management Service (NOMS), as it then was, and more specifically the Offender Management and Public Protection
Group (OMPPG), began piloting mandatory polygraph testing for sexual offenders in nine probation trusts in the East and West
Midlands Regions. See Gannon et al. (2012). As I will show later in this paper, it is not random that this study (conveniently)
focuses on the utility of the polygraph, not the validity thereof.
2. See the government’s policy paper (Home Office, 2020).
3. Such are the so-called ‘Intelligent Portable Control Systems’ (iBorderCtrl, 2019).
4. See only Frye vUnited States, 293 F. 1013 (D.C. Cir. 1923).
5. See e.g. NRC Committee to Review the Scientific Evidence on the Polygraph (National Research Council, 2003); see also
Office of Technology Assessment (1983). The Royal Commission on Criminal Procedure 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
Kotsoglou 17
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