[2025] EWCA Crim 1320

The polygraph requirement

The use of polygraph testing to monitor the risk of serious harm is not new. Section 28 of the Offender Management Act 2007 provides that the Secretary of State may include a polygraph condition in the licence for certain offenders who have been convicted of sexual, terrorist or domestic abuse offences. By section 29, such condition requires the offender to participate in polygraph sessions with a view to monitoring the offender's compliance with the other conditions of his licence or improving the way in which he is managed upon release. Section 30 provides that any evidence of statements made by an offender while participating in a polygraph session or of his physiological reactions during such examination are not admissible in any criminal proceedings against that person.

Equally, paragraph 10ZA of Schedule 1 to the Terrorism Prevention and Investigation Measures Act 2011 provides that an order made under that Act may include a like requirement. Again, the 2011 Act expressly provides that evidence obtained from such examination is not admissible in criminal proceedings against that person.

The Sentencing Act 2020 does not expressly provide for the inclusion of a polygraph requirement in an SHPO. In R v David [2023] EWCA Crim 1561, this court considered requirements in an SHPO that an offender should comply with any instruction by his offender manager or the police requiring him to attend a polygraph or integrity screening, and that he should participate in such test or screening as instructed. The judgment of the court was given by Bryan J, who was also the Single Judge in this appeal. The court did not decide that a requirement for polygraph testing could never be included in a SHPO but that the requirement in that case was neither necessary nor clear, and that it was both disproportionate and oppressive. Bryan J particularly highlighted the failure to comply with section 347A of the Act.

Section 343(1A) provides:

"A sexual harm prevention order may—

prohibit the offender from doing anything described in the order;

require the offender to do anything described in the order."

The distinction matters because section 347A of the Act provides additional safeguards that are only applicable where a SHPO imposes requirements: