ITN has successfully applied to the Parole Board for the removal of a licence condition which required our client to attend regular polygraph (commonly known as ‘lie detector’) testing.
Licence conditions are restrictions and requirements which are used to monitor the behaviour of people who have been released from prison ‘on licence’ (i.e. subject to continued supervision from the National Probation Service). Failure to comply with licence conditions can lead to a person being subject to further restrictions or in some cases sent back to prison.
In 2020, the National Probation Service and the Parole Board were granted the power to impose a ‘polygraph licence condition’ on people convicted of terrorist offences. A person is then required to attend regular polygraph tests, at which they are usually asked questions about their behaviour and whether they have breached any other licence conditions they may have.
However, because polygraph testing involves a public authority monitoring and gathering information about an offender’s private life, it can be in breach of an offender’s human right to a private life to impose it unless certain conditions are met. These conditions are:
- That the polygraph testing helps the public body to achieve a legitimate aim, such as public safety or the prevention of crime; and
- That it is necessary and proportionate to impose polygraph testing in order to met that aim, i.e. it will actually work, and is not excessive in relation to the risk posed.
In our client’s case, the nature of his sentence meant that a polygraph testing condition could only be imposed by the Parole Board upon application by Probation. After this application was initially granted, he instructed ITN to assist him in challenging the outcome.
On reviewing the decision, we found that Probation had used the wrong application form when applying to the Parole Board, with the result that our client had not had a proper opportunity to make representations before the application was granted. The opportunity for those affected by a decision to make their views known within the decision-making process is an important aspect of ensuring that the decision reached is lawful. We therefore asked the Parole Board to revoke its previous decision on the basis that our client had not had this opportunity. We were successful, and the Parole Board removed the polygraph condition.
Probation then made a fresh application for polygraph testing. This too was rejected by the Parole Board, after we pointed out that Probation had not undertaken the appropriate risk assessments to show that polygraph testing was necessary and proportionate in our client’s case.
Probation then made a third and final application, this time using the correct form and providing the appropriate risk assessments. On review, the risk assessments did not raise any concerns regarding gaps in the extensive monitoring to which our client was already subject, and in fact noted his excellent behaviour while on licence. We therefore asked the Parole Board to refuse the application on the basis that Probation had still failed to provide any evidence that our client’s risk required such an extensive intrusion into his private life. The Parole Board accepted our arguments, and the third application was refused on the basis that polygraph testing was neither necessary nor proportionate in our client’s case.
This is of course an excellent outcome for our client. However, we are concerned that this case was characterised by multiple procedural failings, and the expenditure of considerable resources by Probation in seeking a licence condition which it was clear was at odds with our client’s human rights and would not aid in protecting the public.
This client was represented by Helen Bates and William Kenyon of ITN Solicitors. ITN’s Civil Liberties and Human Rights department undertakes a wide variety of work on prisoners’ rights and decisions by detaining authorities. If you have an issue you would like to discuss, please contact us here.