Polygraph testing for sex offenders

Since 29th November 2022 a court can impose a positive requirement on a defendant under an SHPO (section 175 of the Police, Crime, Sentencing and Courts Act 2022).

This, says the government, includes a requirement to participate in polygraph testing for sex offenders.

In a recent case the Court of Appeal confirmed that there was no objection in principle to a Polygraph testing requirement, but certain safeguards would need to be observed. The Court rejected challenges to such orders under Articles 6 & 8 of the European Convention on Human Rights.

These safeguards are:

That the court must receive evidence about the suitability and enforceability of such a requirement from the individual or an individual representing the organisation who is specified to supervise.
As with SOPOs, no order should be made by way of SHPO unless necessary to protect the public from sexual harm as set out in the statutory language.
If an order is necessary, then the prohibitions imposed must be effective; if not, the statutory purpose will not be achieved.
Any SHPO prohibitions imposed must be clear and realistic. They must be readily capable of simple compliance and enforcement. It is to be remembered that breach of a prohibition constitutes a criminal offence punishable by imprisonment.
As re-stated by R v NC [2016], none of the SHPO terms must be oppressive and, overall, the terms must be proportionate.
Finally, any SHPO must be tailored to the facts.

There is no one size that fits all factual circumstances.

Scrutiny

It is clear that before imposing polygraph testing for sex offenders there must be the utmost level of scrutiny to ensure it is necessary and proportionate. All of our advocates are trained in this area of law and will ensure that there is an objection to any inappropriate terms being included in such orders.

Contact a specialist in defending sexual offence

We are experience in representing those charged with sexual offences before the Magistrates’ and Crown Courts. You can read about how we prepare a case for Crown Court trial here.

Contact your nearest office for advice prior to any police interview or if charged with an offence.

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