The Committee consisted of the following Members:
Chairs: † Steve McCabe, Mr Laurence Robertson
Bacon, Gareth (Orpington) (Con)
† Butler, Rob (Aylesbury) (Con)
† Cadbury, Ruth (Brentford and Isleworth) (Lab)
† Charalambous, Bambos (Enfield, Southgate) (Lab)
† Cherry, Joanna (Edinburgh South West) (SNP)
† Cunningham, Alex (Stockton North) (Lab)
† Dines, Miss Sarah (Derbyshire Dales) (Con)
Everitt, Ben (Milton Keynes North) (Con)
MacAskill, Kenny (East Lothian) (SNP)
† McGinn, Conor (St Helens North) (Lab)
Mak, Alan (Havant) (Con)
† Marson, Julie (Hertford and Stortford) (Con)
† O'Brien, Neil (Harborough) (Con)
† Owatemi, Taiwo (Coventry North West) (Lab)
† Philp, Chris (Parliamentary Under-Secretary of State for Justice)
† Pursglove, Tom (Corby) (Con)
† Trott, Laura (Sevenoaks) (Con)
Kevin Maddison, John-Paul Flaherty, Committee Clerks
† attended the Committee
Peter Dawson, Director, Prison Reform Trust
Les Allamby, Chief Commissioner, Northern Ireland Human Rights Commission
Dr Hannah Russell, Director of Legal, Research and Investigations, and Advice to Government, Northern Ireland Human Rights Commission
Michael P. Clancy OBE, Director, Law Reform, Law Society of Scotland
Professor Donald Grubin, Newcastle University
Public Bill Committee
Thursday 25 June 2020
[Steve McCabe in the Chair]
Counter-Terrorism and Sentencing Bill
The Committee deliberated in private.
Examination of Witness
Peter Dawson gave evidence.
Have we got you, Mr Dawson?
Peter Dawson: Yes, good afternoon.
Good afternoon. The Minister will put the first question to you.
Peter Dawson: Thank you very much for the opportunity to give evidence. The answer, of course, is yes, and I will try to explain why I can say yes with such conviction. Three of my colleagues and a number of close personal friends were present at Fishmongers’ Hall. Had I left my office five minutes earlier that afternoon, I would have been present myself. I have seen the devastation that that crime unleashed on some very close friends, so, absolutely, personal protection is the first priority. Our concern with the Bill, which I am sure we will get the chance to explore, is that aspects of it may not be justified by public protection, and indeed some aspects may undermine it.
Peter Dawson: It is the only way to be certain for that length of time, but it is not always certain when that length of time comes to an end. This is the dilemma that faces the criminal justice system in every case. Of course, it is brought to the public’s attention by events of this sort, and such events excite particularly strong emotions. Terrorism is a very difficult thing to understand, but a lot of criminal motivations are difficult to understand and to predict, so we have systems that seek to balance the difficulty of that prediction with the rights of the person who has been accused and their right to a future life when they have served their punishment.
The problem with denying all hope of release on a conditional basis by a judgment about whether the person can be released safely or not is that it denies hope and affects the whole of the prison sentence. You will be aware that I spent a good part of my career as a prison governor, and the way in which people can be encouraged and assisted to engage in work that may change their behaviour in the future is if there is something in it for them. The parole process is not just about the judgment at the end of the custodial period; it is about the whole of the sentence from the very first day and doing work that may make a difference and may make the public safer when that person eventually leaves prison. It is a dilemma, but I do not think that the public are best served by saying that we will postpone the moment at which risk arrives without taking the opportunity to reduce that risk. The possibility of parole is essential to the process that reduces risk.
You mentioned trying to make people safer upon release. What sort of activity is most effective during the prison sentence, whether release comes early or not? What are the most effective interventions that lower risk when they prisoners are released, whenever that release occurs?
Peter Dawson: The most important thing about understanding rehabilitation is that it happens in a community. You must always have one eye on what life is going to be like when that person comes out and what it is about life after release to cause them not to commit crime. That is true for terrorist crimes as well as for all other sorts of crime. There is nothing secret about this: people need somewhere to live, a way to earn their living, and a reason to live in a law-abiding way. Very often, that reason comes from family and from exactly the same things that cause all the rest of us to live the way we do. That means having people who care about you and have an interest in your future, and having a feeling yourself that you have a stake in a future that is law abiding.
You cannot coerce people into rehabilitation. There has been lots of discussion about particular programmes and courses that may assist in that, and across the picture of offending behaviour there are some programmes that have some effect, but we clearly need to be realistic about the impact of those programmes, whether in relation to terrorism or anything else.
First, a successful programme must be built on a research base and a theory of change that makes sense, and that research base is relatively small. Secondly, the programme then has to be delivered according to its manual. The third thing is that the environment in which it is delivered and in which the person lives has to support the aims of the course, and programmes should be audited. That third aspect is really important in this. The aims of the course are to give a person a stake in their society to encourage lawful behaviour, so the authority must be legitimate. The people must go into an environment that treats them fairly and which they feel is fair.
The difficulty with providing no incentive or reward for engagement in that change is that that appears to be unfair. If you add to the difficulties, which are real and difficult for the Prison Service to deal with, a bias against people who have committed offences like this, the danger is that someone can go through a programme and appear to have made progress and then go back into a sentence lasting many years, during which they do not feel treated fairly. None of these programmes cure; some of them have some impact on some people.
Order. I have to interrupt there, Mr Dawson, because I am conscious of the time.
Peter Dawson: Yes. There is evidence that the Committee may want to look at on this. There has been a movement for about a decade called the Transition to Adulthood Alliance, which has looked very hard at evidence of maturation in young people—the physiological evidence.
There does now seem to be general acceptance that for most young people the process of maturing certainly does not conclude before the mid-20s. There is a consensus, really, that if you are interested in dealing with people according to their maturity, you should look at the age of at least 25. It is even more marked, of course, for children under the age of 18.
Tragically, many of the people who are committing offences of this nature are very young. That does not take away from the fact that they are young and very immature—very susceptible to being led astray and very likely to change dramatically from the moment they commit the offence to their mid-to-late 20s, when that maturation has happened. The risk—
Peter Dawson: The Bill should have a different sentencing framework for children and for young adults. At the moment, the law defines a young adult as someone aged between 18 and 20. It is not for this Bill to do, but at some point that should change to between 18 and 24. At least taking account of the detention in a young offender institution provisions would allow some recognition of the fact that young adults are different from more mature people.
Peter Dawson: I would simply leave the extended sentence provision as it is and have a discretionary release element in the sentence of particular concern. We know that parole works well. Of course there are cases where people go on to offend, but that is rare and the Parole Board has a very good record of success in relation to people who do not commit serious crime in future. We have an institution that works. Let us take advantage of it because of the impact it has on the management of the sentence and the likely future behaviour of the person.
Peter Dawson: There needs to be a discretionary release element in all extended sentences with no exclusion for terrorist offences and no exclusion for the new sentence. The new sentence needs to be designed in a way that includes a discretionary release element. It is for Parliament to decide where that falls; I would say that the obvious thing to do would be to have the discretionary release at the halfway point and a possible release on licence at the two-thirds point, although I understand that Parliament may want to reflect the perilous nature of the offences with a different division of the sentence.
Maybe we should move on. I call Joanna Cherry.
Peter Dawson: There are two aspects in particular. One I have spoken about: the absence of a process for some of the people affected. There is probably nothing more to say on that.
The second is probably rather more controversial because it is about the length of sentences. The Government, in explaining the Bill and justifying a 14-year minimum, say that that gives time for work to be done with the offender during the sentence. That is much longer than is needed for that work to be done. The difficulty with very long sentences, across the board, is that they destroy what is known in the trade as protective factors—they destroy the things that are most likely to help someone out of crime in the future.
Relationships are an obvious example. For somebody who is convicted in their late teens or early 20s and who is not released until their mid to late 30s, the opportunity to build a life that is worth living, in which they can contribute to or play a part in society, has very often been destroyed. All of the things that the rest of us do during that period in our lives have not happened and may not happen once that person is released. It is a disgruntling process. Long sentences are justified for the most serious crime, but the longer we make them, the more harm we do and the more difficult it is for the person to live the rest of their life in the way that we all do.
Peter Dawson: It is essential. We know that there is no evidence of any deterrent effect with long sentences—they are not protecting in that way; they only have a protective impact by taking that particular person off the street for that length of time—but people are going to be released, and that is when the risk arises, so I would say rehabilitation is absolutely essential for public protection. You cannot trade off one against the other. If you remove incentive—if you destroy all the things that keep somebody interested in a life without crime—then you are just delaying risk for when the moment for release comes.
Peter Dawson: Well, I draw on it heavily. Once somebody is in prison, you have this enormous acreage of time to fill. People struggle to adjust to prison. People often have a tremendous sense of grievance in the early years of a long sentence, and very often a sense of grief as well, and very often remorse. There is a sort of teachable moment when someone may change their behaviour, but that [Inaudible] if there is nothing after that moment.
People are completely subject to the authority of the system. They are very sensitive to whether the system plays fair by them. If the system invests in their rehabilitation, but then does not follow through, and all they have ahead of them is time that serves no purpose, which is simply time to fill, then grievance grows. Once somebody has a legitimate grievance in prison, the chance of them engaging with anything more constructive reduces dramatically. In terms of managing difficult people in prison who can be very dangerous, this is a dangerous problem.
The other thing I would say, and I say this as someone who governed prisons and had responsibility for the safety of everybody in the prison—staff, prisoners and visitors—is that crime happens in prisons too. Prisoners without hope and prisoners with a sense of grievance are dangerous to the other prisoners and the staff around them as well. We have seen the homicide rate in prisons rise in recent years and at the same time the number of people serving very long sentences or sentences with no release has also risen.
Order. We are going to move on now, to Mr Butler.
Mr Dawson, in evidence this morning, the Independent Reviewer of Terrorism Legislation said that many terrorist offenders often come from a stable family background. Does that not undermine the typical view that we have of rehabilitation—that having a job, a home and a family are necessary to prevent reoffending? In fact, are terrorism and terrorism offences not driven by ideology? The rules are different.
Peter Dawson: I think I would say the reverse, actually. As a parent, I think stable homes with good parents sometimes have very difficult teenagers and people grow up in a very chaotic way, often—
Peter Dawson: But I think it is the case. I do not think a stable home protects someone from the ideology, but for someone coming out of prison, particularly after a long sentence, a stable home and relationships with people who have kept faith with you and who have belief in your future are absolutely the things that help someone as a mature person. This goes back to the issue of maturity. For a 35-year-old, those relationships are completely different from the relationships that they would have experienced when they were 18. I just think that that continuity, and the willingness of people to continue to provide hope for a future, is absolutely crucial to rehabilitation. It is not a protection against ideology in a teenager, but it is a protective factor for rehabilitation.
Peter Dawson: Yes, there were. I worked in local prisons and in a female prison. Local prisons of course do hold terrorist offenders. They hold them in the early stages of their sentence, when they are often at their most—well, “disruptive” may not be the word, but when they are coming to terms with what has happened to them.
Peter Dawson: I am not sure that I would seek to draw any conclusions. People often behave differently as prisoners. I do not underestimate at all the difficulty of making a risk assessment based on the way someone has behaved in prison, compared with how they might behave in the community. It is not an easy thing and not a certain science. But what I would say is that if you want people to behave in a civilised, law-abiding way when they leave prison, the way you treat them in prison is absolutely critical. You must provide a model that people can follow and that they see as fair. If we do not do that, the chances of change are radically diminished.
Thank you. I call Ruth Cadbury.
“risks further alienating them and giving them grounds for grievance against the authorities”.
You are in effect saying that the Bill should include measures to ensure that effective deradicalisation programmes are provided. What would they look like?
Peter Dawson: The Prison Service runs two programmes at the moment. I said earlier that the evidence base for those was small, because it is innovative work, but they are clearly worth while. The most valuable work that is done in prisons in terms of changing people’s attitudes and behaviours is the day-to-day example that is set around them—the supporting of their growing up and giving them reasons that make life worth living that are nothing to do with their ideology. It is an incessant process, a slow process and an uncertain process, but it is about the impact of everybody in prison on that individual.
What people whose lives have changed dramatically would say is this—I can think of someone I know who committed two murders and who would tell this story. Very often, a particular individual, in the course of a sentence, makes a connection and is able to help that person to grow up and see a different future for themselves. The faith that that key person shows will often drive change in behaviour more than any particular programme.
I have said it before, but the one thing that I am absolutely clear about is that I have never seen anybody coerced into rehabilitation. The particular theory that academics talk mostly about now is called desistance theory. It is about what causes people to change their route in life. That rests very heavily on the idea that somebody has to be able to see a better life for themselves in the future. The academic work tends to support that but, I think, so does all our experience. So I would say that we should not look to prison for magic solutions; we should look for the extreme skill among staff of all sorts, and volunteers in prisons too, in establishing relationships that slowly change the way that somebody thinks about their future. When prisoners go out, however, those promises have to be met. That is why we are saying that rehabilitation is what happens after prison, as much as what happens during it.
Peter Dawson: I do not think there is anything that I would like to see in the Bill. The question that I hope the Committee will ask is what we do not yet know about the circumstances of the cases that have prompted the Bill. Both the Fishmongers’ Hall attack and the attack in Streatham have been subject to serious case reviews. I certainly have not seen those reviews published.
In both cases, it seems to me that there are questions to ask about whether the existing framework of law would have been adequate had different decisions been taken. That is not to point a finger of blame but simply to say, if we have an existing structure that was not used to best effect, that we should think hard before changing the structure and changing it in a way that raises some of the problems that I have described.
Let us go to Sarah Dines. I am conscious of time.
Peter Dawson: On the first point, it protects the public for those two years or those four years. It does not protect the public on the day the person comes out. I accept the point you make, but if the risk is raised when the person comes out, that seems to be no consolation for the public; certainly it is no consolation for a member of the public who suffers at the end of those four years but has been protected during them.
On the second point, I just have to reverse it. There is no evidence for a deterrent impact. I have never met any prisoner who committed a serious crime who, at the moment of committing it, made a calculation about whether they would spend five, 10 or 14 years in prison. There is no evidence from anywhere in the world that I have ever seen that says that threatening people with longer sentences deters them from committing crime.
In cases of this sort, where an ideology that all of us struggle to understand is concerned, it seems to me that looking to deterrence as a tool for protecting the public is not rational; there is no evidence to support it. Of course, there is the risk that a punishment that appears—I hesitate to say “excessive”—out of kilter with the punishment for other offences creates a sense of grievance, creates martyrs and acts as a recruiting sergeant for people who might otherwise not think in that way.
We can squeeze in one last question, if you are quick, Mr Cunningham.
“The expansion of SOPCs and the expansion of the number of offences able to be identified as having a ‘terrorist connection’ will need careful monitoring for their impact on prison security and on people from minority faith and ethnic communities”.
How can we improve the Bill to achieve that careful monitoring?
Peter Dawson: It may not be something that the Bill can achieve, but I think it is reasonable to ask the Government, after the Bill becomes law, to provide a report on what the impact has been. I entirely take the point that the nature of terrorism at the moment means that certain communities are likely to be more heavily represented, but the point is that all criminal justice agencies need to go beyond that to guard against the unconscious bias that will otherwise creep in.
This is not about Parliament’s intention and it is not about the equality assessment. It is about the behaviour of people on the ground who are not properly aware, when faced with someone from the Muslim faith, that, overwhelmingly, prisoners from the Muslim faith have not committed offences connected with terrorism and would not dream of doing so. Most prisoners see their religion as something that provides structure and help in their life, not something that motivates them to perform criminal acts. None of that is well understood generally, and I am not sure that it is always well understood in prisons. So that unconscious bias—that unwitting prejudice—risks disadvantaging people in all sorts of different ways, from the way complaints are handled to their privilege level in the prison—
Order. Mr Dawson, I am afraid I will have to call you to a halt as we have run out of time. Thank you very much for your evidence to the Committee.
Examination of Witnesses
Les Allamby and Dr Hannah Russell gave evidence.
We move to our next session, which is evidence from the Northern Ireland Human Rights Commission, with Les Allamby, the chief commissioner, and Dr Hannah Russell, the director of legal research and investigations and advice to government. Have we got you with us?
Dr Russell: I am here, and I can see that Les is here but is currently muted.
We had better try to address that. This time we will switch sides and start with Conor Burns.
Dr Russell: If you do not mind me starting and, if we manage to get Les unmuted, I will let him take over. Apologies for the difficulties with the remote working of this. I think Les is now unmuted.
Les Allamby: I think I may be. Can you hear me?
Les Allamby: Apologies for my technological illiteracy. Yes, Conor, we have real concerns in relation to human rights in three areas among others. The first is the retrospective nature of many of the provisions in terms of both sentencing and release. As the Committee will know, some apply to individuals who have committed offences and not yet been sentenced, but some in particular apply to those who are already sentenced and are serving a term of imprisonment. Particularly for Northern Ireland, the change of the automatic release point of relevant terrorism sentences to two thirds and then referral to the Parole Board is being extended to Northern Ireland—it has already happened elsewhere—and the addition of polygraph testing conditions to the licence of a person who has committed a relevant terrorist offence are two of the retrospective measures for those who have been sentenced.
The second area is the extension of a number of provisions to those who are under 18, in terms of both sentencing and licensing arrangements. We have some experience, both historical and contemporary, in Northern Ireland of the impact that adults have on children and young people. It has been mentioned by the UN Committee against Torture and our own paramilitarism commission has looked at this. It is very clear that the evidence is, frankly, that 15, 16 and 17-year-olds are not leading grown men in paramilitary activity or the control of communities in Northern Ireland; it is the reverse that is true. Therefore—I will return to the rehabilitation aspects that Peter Dawson touched on—while these are serious offences that apply to under-18s and there is a very limited discretion in terms of mandatory approaches, we think that applying these provisions to children and young people raises human rights issues, particularly in terms of the UN convention on the rights of the child and a number of provisions in general comments made by the convention committee.
Our third concern is about polygraph testing. I am a great believer in evidence-based policy making. As far as I can see, there is a paucity of evidence about just how accurate polygraph testing is. Although I recognise that polygraph testing will be used only in very specific circumstances, and not for new offences and coming before the courts, and although it has been used in the case of sex offenders before, it still seems to me that, as the Independent Reviewer of Terror Legislation has suggested, there needs to be at least piloting and some evidence of its veracity.
Otherwise, it seems to me that there are two implications. Either someone who is innocent is presumed to be guilty of something without requiring any other salient evidence, which risks a miscarriage of justice and a sense of grievance, or the reverse: someone who is a danger passes the test and we fall into the risk of complacency setting in. Somebody’s licence can be revoked as a result of a polygraph test, and they could therefore be returned to prison. Also, as far as I can see—again, this was noted by Jonathan Hall—there is the possibility in the Bill of a terrorism prevention and investigation measure being applied as a result of a polygraph test. There are some significant outcomes to that. Again, applying that retrospectively also comes into play.
Finally, the purpose of the Bill is clearly laudable: to protect the public and to curtail terror. However, the Prison Reform Trust’s recent research noted the significant increase in the number of people serving very long sentences in prison, not just for offences related to terror. When you take into account the reduction in the opportunities for rehabilitation as a result of the provisions in the Bill—particularly the incentives for rehabilitation—it seems to me that that could lead to a greater risk both inside prison, in terms of overcrowding, mental health issues, suicide risks and radicalisation opportunities, as well as outside prison.
Keeping people in for longer with less prospect of rehabilitation really seems to me to be a blunt instrument to protect the public. We would do better to try offer and recognise rehabilitation pathways, alongside discerning those who are determined not to change their outlook on life and dealing with those individuals accordingly. Those are our concerns. We would be happy to put in a written submission on some of the wider issues around TPIMs, and so on.
Already in Northern Ireland there is common parlance in use around internment for what might be seen as measures in place for existing terrorist and paramilitary prisoners. Is there a concern on your part, first, that what is proposed might interfere with the settlement in the Good Friday agreement, particularly around licensing, and, secondly, that rather perversely it may be used by those engaged in terrorism as a further opportunity, as you say, to groom young people and present themselves as the wronged party?
Les Allamby: Yes, Conor, I do think that there is a risk here. The number of offenders in Northern Ireland who are likely to be affected by moving to a two-thirds sentence is relatively small, but almost all of them, if not all of them—I do not have the figures in front of me, but it is certainly the vast majority—are people who will have been involved in what I might call Northern Irish-based terror activity.
Therefore, we have a small number of loyalists and dissident republicans in prison, some of whom have breached their licence conditions under the Good Friday agreement and have gone back into prison to serve the rest of their sentence, and others who have committed more contemporary crimes, often more around dissident republicanism or euphemistically “ordinary decent crime”, as it used to be called during the troubles, and people might be surprised to learn that we used to have ordinary decent criminals, and others.
In my view, what that means is that if you say to dissident republicans, possibly, and loyalists that they were going to spend x time in prison and it is now going to be y time, you will create the conditions for a sense of grievance and cause célèbres, of which we have seen plenty of examples. So, that is the downside of doing this, against—
Order. I am sorry to interrupt you, but we really have to press on at this stage. Minister.
You will be aware that when Parliament passed the Terrorist Offenders (Restriction of Early Release) Act 2020 in February, Northern Ireland was excluded because we were concerned about issues of retrospection, owing to the differences in sentencing structure in Northern Ireland compared with the rest of the United Kingdom. Having taken very detailed and extensive further legal advice, the Government now take the view that the measures in the TORER Act can safely be applied to Northern Ireland without engaging in issues of retrospectivity, and the Bill seeks to do that. Is that a conclusion with which you concur?
Les Allamby: Clearly, I have not seen your detailed legal advice, so I do not know, and I would have to reflect on whatever legal advice you received; we have not taken legal advice on the issue ourselves.
The one thing I would say is that, as you know, there will need to be a legislative consent motion on a number of the sentencing provisions and, off the top of my head, I suspect that this provision might be one of them. I know from discussions with the relevant Minister in Northern Ireland, who is publicly opposed to terror etc., that there are some very real practical concerns about extending this Act to Northern Ireland and some potentially unintended consequences.
So I think my answer to the question is this: listen very closely to your counterparts in the Department of Justice in Northern Ireland, and to the Justice Minister in Northern Ireland, as to whether this change is advantageous to the circumstances of Northern Ireland. Frankly, I cannot speak for either the Minister or officials, but I would take very careful cognisance of what they have to say to your own civil service colleagues.
My final question relates to polygraphs. You mentioned the importance of evidence, and later this afternoon we are seeing a professor who is an expert in this area, as far as evidence is concerned. Would you agree that where polygraphs are used just to provide a bit more background information and perhaps prompt further investigation, rather than being used to have a biting and binding consequence, there can be some value in that, as part of a holistic assessment to work out where more work needs to be done? Nobody is suggesting that it would lead to a direct, binding consequence. Does that give you any assurance?
Les Allamby: It gives me, I have to say, a rather limited measure of reassurance. I say that because it seems to me that if that is the case, then frankly that ought to be written into the Bill. It ought to be clear that the outcome of a polygraph test on its own should not have any adverse impact.
If you are going to introduce polygraph tests, you really should pilot them. I will quickly give you an example. It may seem a slightly odd analogy, but I used to sit on the Social Security Advisory Committee, and I remember being told many years ago by the Department for Work and Pensions that it was looking at voice recognition, as a way of starting to tell whether somebody might be telling the truth or not. Great play was made about that approach as a possible way forward in fraud detection, etc. It unravelled as the evidence became clearer that there were significant flaws in using that technology for making assumptions about whether individuals were telling the truth.
I cannot draw any objective scientific comparison between voice recognition and polygraphs, but it is a cautionary tale of rushing into using technology without piloting it and really considering what other safeguards you should have before using it.
Les Allamby: Yes, certainly. One concern is the relative absence of safeguards around extending it beyond two years. I think there ought to be additional judicial safeguards. There ought to be a test, if you are going to extend beyond two years, as to whether there is a compelling basis for doing so.
I have concerns that the loosening of the test from the balance of probabilities to reasonable suspicion. I note that we have slalomed, going back to control orders, as to what the required burden of proof is. I note the issues David Anderson raised. I also noted that the European convention on human rights memorandum issued by the Department suggested that things had changed between 2015 and 2020, but I am unsure whether that change is sufficiently compelling to reduce the test from balance of probabilities to reasonable suspicion.
TPIMs are used in a very small number of cases. They are oppressive. None the less, they are utilised on a sparing basis. But you need additional safeguards, if you will extend them beyond two years. Two years is a significant period of time in someone’s life to restrict their freedom of movement and their liberty, to the extent that TPIMs currently do, bearing in mind some of the additional provisions that will now be contained in TPIMs.
“New subsection (5) establishes that statements or physiological reactions of the offender in polygraph sessions cannot be used as evidence in proceedings for an offence against the released person.”
Does that provide you with the comfort you were seeking?
Les Allamby: Yet again, it provides me with a very limited measure of reassurance. It is absolutely right that you should not be able to take someone back to court to suggest a new offence has been committed on the basis of the polygraph, so that provides a measure of reassurance.
But I am mindful that if, for example, you are released on licence and you fail a polygraph test, it can be used to revoke your licence and place you back in prison. That is a pretty severe consequence for technology that has not been piloted. The reassurance is welcome in those terms, but you have to understand where else the ramifications of—
Minister, do you have a supplementary question you want to put to that?
Les Allamby: I think that is helpful—I would like to see any of those kinds of intentions in the Bill—but I come back to my fundamental point, which is that, as far as I understand it, the polygraph test is still untried in terms of its complete veracity, and we are using technology that has not been piloted in those circumstances. Frankly, if we are going to move to polygraph tests in those circumstances, I would much prefer them to be piloted, so we could then make a genuinely informed decision about their value before we start to take decisions that may have significant consequences.
Les Allamby: Conor, I honestly do not know; I have not had discussions with either the PSNI or Garda Síochána on those arrangements. I certainly do not detect from PSNI a great deal of desire to see those kinds of arrangements in place, which I certainly do not think will be enhanced, but I cannot comment meaningfully on that.
One thing that I would say is that the much more significant issue for us in terms of cross-border co-operation—it is outwith your Committee—is reaching effective security and justice arrangements when we leave the European Union at the end of December. Northern Ireland’s land border with another member state creates a full range of issues that I think are slightly different for the rest of the UK. I have not detected in public discourse anything to suggest that, but “I don’t know” is a shorter and more succinct answer.
Dr Russell: Nothing in particular. To drive home the point about under-18s, I draw your attention to the UN convention on the rights of the child, in which a number of provisions, particularly in article 40, set out the need to treat children differently and to see the impacts that the criminal justice system can have on children who enter it as different to the impacts on adults. In the context of Northern Ireland, as it has already been raised, there are specific concerns around the recruitment of children by paramilitaries here. There are particular sensitivities around that, which need to be taken into account in the Bill.
Thank you. Does anyone have any more questions? No. In that case, I thank both our witnesses very much. Mr McGinn, I think I called you Conor Burns at the start, thereby inexplicably confusing you with the distinguished former Trade Minister, the right hon. Member for Bournemouth West (Conor Burns). I think the best and safest thing I can do is apologise to you both.
Examination of witness
Michael P. Clancy OBE gave evidence.
Michael Clancy is the director of law reform at the Law Society of Scotland. Good afternoon, Mr Clancy.
Michael Clancy: Good afternoon, Chair; good afternoon everyone.
Michael Clancy: Thank you, Mr Philp. To answer about projecting what the effect of legislation will be on protecting the public and making people safer is quite difficult, because for me, as an individual, it would certainly be speculation to say that the Bill would protect people. Legislation has limited effect in terms of it being passed; it really has to be brought into effect and made to work through enforcement for the real impact to be felt. That is part of the issue about whether or not people would be protected by the Bill. It may be some time before we can turn around and do adequate research on the implementation of the measures in order to assume that people have, since its enactment, been better protected than they were before. It is difficult for me to comment on that.
That having been said, I know that sociologists and criminologists have been looking at this kind of things. In one article I picked up latterly, entitled “Does Terrorism Dominate Citizens’ Hearts or Minds? The Relationship between Fear of Terrorism and Trust in Government” by Ramon van der Does. He came to the conclusion that
“Despite its well-known effects on public health, safety, and finances, we still know little about how fear of terrorism can be mitigated.”
That might go some way to edging to an answer to the Minister’s question. Every Bill is good in parts, and has good parts, parts that can be improved by amendment during its passage and parts that, in some instances, should not be legislated at all. So, as you can tell from the Law Society of Scotland’s memorandum on the Bill, we take very much that kind of view.
Michael Clancy: I certainly agree that, for those who are convicted of serious terrorist offences, keeping them in prison for a longer time means that they are not at liberty to commit other terrorist offences. Whether that actually means that they have no influence on others in the commission of terrorist offences—either those they meet in prison who are on their way towards release, or those with whom they can communicate outside prison while they are serving their sentence—is another matter.
Michael Clancy: I have great respect for the Law Society of England and Wales’s positions most of the time. As you will have seen from our memorandum of comments, we have reservations about the use of polygraphs. In particular, we think that there is an issue about the reliability of polygraphs. They have been used in England and Wales, but they have not been used in Scotland. One point that I would like to pick up on is that the adaptation of Scottish criminal procedure through the Bill to provide for polygraphs is something we would have liked to see further consultation on, with greater explanation of how this would work before it is fully imported into the legal system in Scotland. I know that considerable advances have been made in neuroscientific technologies, such as the use of polygraphs, but in many instances in the United States—I draw your attention to the Supreme Court case of US v. Scheffer in 1998—there were considerable concerns about the reliability of polygraphs. That concern has persisted since that time, to such an extent that we have to be quite careful about citing American jurisdictions, because some of them do not allow for any—
Michael Clancy: Of course, the Parole Board for Scotland is not referred to much in the Bill—only in a couple of instances. We would need to take a further look at exactly how the implications of the Bill work for the Parole Board for Scotland, which has its own particular arrangements. I will therefore pass on that question as to its effects on the Parole Board for England and Wales.
Michael Clancy: As you will have seen from other evidence that has been submitted, the aspect of children and young persons is quite significant for Scotland. I refer in particular to paragraphs 21 to 27 of the submission by Jonathan Hall, the Independent Reviewer of Terrorism Legislation, which clearly discuss the effects on children and young people in Scotland. He says:
“The proposed application of the serious terrorism sentence to offenders aged 18 to 21 in Scotland raises starkly the question of whether there is a bright line between offenders above and below…18. This is because the Scottish Sentencing Council is currently consulting on its third draft guideline, ‘Sentencing Young People’ and proposes that special sentencing principles should apply to offenders up to the age of 25.”
For all who are interested in the Bill, it would be helpful to know the extent to which the Government have been able to consult with the Scottish Sentencing Council about the provisions affecting children and young people in Scotland, particularly as they are carrying out the current review.
Michael Clancy: Yes, I believe so.
Michael Clancy: I found Mr Hall’s analysis of the issue of orders for lifelong restriction very compelling. As he points out, this is a unique type of sentence, imposed
“for serious violent offences if certain risk criteria are met”—
“where the offender would otherwise seriously endanger the lives, or physical or psychological wellbeing, of members of the public at large.”
Therefore, I think we should view Mr Hall’s evidence carefully. He points out in his note:
“An Order for Lifelong Restriction is an indeterminate sentence comprising a stated period of detention or imprisonment (called a punishment part) during which the offender cannot be considered for release, followed by the continued incarceration of the offender unless and until the Parole Board for Scotland is satisfied that the offender no longer”
carries such a risk. That implies a paradox: the 14-year sentence plus the extended sentence might be a shorter period in prison than one under an order for lifelong restriction, so we have to be careful about weighing Jonathan Hall’s evidence against the provisions in the Bill. I hope that answers your question.
Michael Clancy: Yes. Well, I do not pretend to know the mind of Scottish Ministers as to why they have not introduced polygraphs in Scotland. I suspect that they think the jury is out on that question, because of the variable opinions about the value of polygraphs.
“responsibility, organisation, funding, monitoring and training”.
Can you elaborate on that?
Michael Clancy: It would be a significant step, because there has been no prior consultation to discuss the appropriateness of the use of polygraphs, how that would be implemented and whose responsibility it would be to arrange for polygraphs to be used in Scotland. Those are the kinds of issues that need to be explored quite carefully. It would also be important to know how they will be resourced. We are going to enter into a period of extraordinary public expenditure difficulty in the next few months and years, so introducing something that would be a significant expense in terms of their usage, the training of the operators and such, would be something one would want to look at very carefully.
Michael Clancy: Before I answer that, could I add a small coda to the provisions about polygraphs? Under clause 33, a new section is inserted into the Prisoners and Criminal Proceedings (Scotland) Act 1993, which provides that
“Scottish Ministers may…specify a polygraph condition”.
The emphasis of that discretion in the Bill is an acknowledgement that this matter would be within the devolved competence of Scottish Ministers to be talking about and implementing legislation for. It would therefore be a question to ask Scottish Ministers, as to what their views are about the implementation of polygraphs in Scotland.
Going back to the standard of proof—
Michael Clancy: Again, we set out some views in our memorandum. Moving from a position where it was on the balance of probabilities to a reasonable suspicion is a significant drop. It is even a drop from reasonable belief, which was a prior standard used in the old control orders that preceded TPIMs. We take that as being something that is problematic. It certainly indicates a lower standard, but that is about as far as I would put it at the moment. It is within the range of civil contemplation. We have got to be cautious about what we actually mean by reasonable suspicion. The balance of probabilities means satisfaction on the evidence that the occurrence is more likely than not. Reasonable suspicion is simply, “Have I got any basis for thinking that this is the case?”
Order. I think we are going to move on to Sarah Dines.
“What is needed is to tackle the basic causes of these terrorist incidents”.
There are two parts to the first question: what do you say are the basic causes of crime, and why are the proposals that are being put forward not good enough? Secondly, what alternatives should be put forward? What are the causes, and what would you do, in rejecting these proposals?
Michael Clancy: These are very big questions. Explaining the causes of crime might just be a little bit beyond my competence in the time I am allowed to talk for. But, clearly, when we are dealing with a cohort that is inclined to terrorist offences, the issue is the achievement of some political or social aim through the use of violence, rather than through any democratic change, and that is roundly to be condemned by anyone who has any sense of democratic responsibility.
I do not for a moment underestimate the extent to which those who engage in such terrorist offences may have motivations that most other people would find difficult to understand. With any type of instance when terrorism has occurred, sometimes we can just think to ourselves, “How could someone do this to other people?” But I cannot reach into the psychology of terrorist offenders to be able to answer your question completely.
In our analysis of terrorist prevention and investigation measures, we have taken a view on the components of that—for example, the removal of the two-year limit on the length of time that a TPIM can be imposed, so it is now available under the terms of the Bill for indefinite renewal and no subsequent judicial review. We think that removing judicial review is a significant departure, and making the provision of the TPIM unlimited can be problematic. That probably engages certain provisions of the European convention on human rights. For example, in terms of the lack of a judicial review, there is no independent oversight of that. We would suggest that, given the small number of TPIMs there have been in the past, if that is going to be replicated, having some form of judicial review may allow for a contemplation about the extent to which article 8—the right to a private life—might be impacted by the provision of the TPIM as it is currently anticipated to be.
We would also refer to the variation of the relocation measures in the same kind of way, under clause 39. The extension of residence measures, so that any house or residence can be applied under clause 39, is something that we thought was potentially in conflict with article 8. We have already talked about the polygraph measures. I am less worried about the drug testing measures, because drug testing measures are in common currency in the tools that can be employed to make sure that people are not contravening the Misuse of Drugs Act, with the impact that that has on someone’s thinking and what they might want to do in a state where they are under the influence of drugs.
Order. I think I am going to ask you to let me move on, Mr Clancy, because a few other people are indicating that time is moving on. Is there anyone else waiting to come in? No. In that case, I call Laura Trott.
I was pleased to see in your evidence the point that an increased sentence offers an increased opportunity for greater rehabilitation while someone is in prison. Do you have any views on what form that rehabilitation should take?
Michael Clancy: I am not a penologist. Therefore, I would rather leave that to experts in rehabilitation theory than make up some layman’s version of it, if you do not mind.
Minister, I think you wanted to make another point.
Michael Clancy: Of course you can ask me, Minister. That is certainly something I will take back and think about, because I was not aware that that evidence had been given this morning. I should say that this is, of course, a civil law provision, not a criminal law provision, in terms of the standard of proof. Of course we have to take into account the views of the counter-terrorism police experts and weigh them very heavily, but it is a different environment, in one sense, from the environment that the police are used to operating in—namely, beyond reasonable doubt. But I take your point and will give that some further thought.
To give you further reassurance perhaps, the lower burden of proof, reasonable suspicion, is of course not a new burden of proof, because the old control orders, in force from 2005—they were introduced by the then Labour Government—and carrying on until 2012, had the same lower burden of proof, reasonable suspicion. This morning, I asked Jonathan Hall, the independent reviewer, whether he was aware of any problems that occurred during that seven-year period, 2005 to 2012, when that lower burden of proof was in force, and he was unaware of any issues caused by it. Does that give you further reassurance?
Michael Clancy: It does. Of course, set against that is the fact that very few of these orders were in place at that time. I think that, in doing some reading in advance of this session, I saw numbers in the mid-40s—46 orders or something like that. If they are going to be used at that kind of level of exercise, it is clearly going to impact on a smaller group of people. Small does not mean insignificant, in this circumstance, but we will just have to wait and see what the evidence of their use produces.
I have one final point. You mentioned concerns about renewal. Of course, renewal, under these proposals, would take place annually. And you mentioned a few moments ago judicial oversight as a concern. Of course, the subject of the TPIM can at any time bring a legal challenge against the use of the TPIM if they feel that it has become unfair. Does the availability of that mechanism to bring a challenge give you reassurance that the subject of the TPIM does have recourse to the courts, and can be protected by a judge, if he or she feels that that is necessary?
Michael Clancy: Well, of course, yes, it gives me some reassurance. I am glad to hear you make such a clear statement of the interpretation of the Bill. Certainly, the TPIM is reduced for one year, but it is capable of being made indefinite. If one were to take action—as you have suggested someone who is subject to one of these orders might take action—it might be the case that the judge would only be able to quash the TPIM rather than make any variation. That might be a solution that we would mutually accept, but there may be implications from that I suppose.
Michael Clancy: I have no evidence. As I have said, the important thing would be to see how this change to the legislation works and then, in a shortish period of time—between two to five years—think in terms of having some kind of post-legislative review, which would enable us to see whether this legislation had functioned properly and had met the objectives that the Committee has been discussing this afternoon of making people safer and protecting them. Then we can come to a view as to whether or not that change in the standard of proof was the right one.
Michael Clancy: As far as I know. I have not actually seen a statement by Jonathan Hall about the burden of proof, but I am sure that you are leading me to the conclusion that there is one.
Absolutely. Are there any further questions? In that case, Mr Clancy, thank you very much for giving your evidence today.
Michael Clancy: Thank you, Mr Chairman. It has been a pleasure, a rather disembodied pleasure, but a pleasure none the less.
Examination of Witness
Professor Donald Grubin gave evidence.
We now come to our final witness of the day, Professor Donald Grubin of Newcastle University, who has had the benefit of hearing some of the exchanges earlier. Let us begin.
Professor Grubin: I am a professor of forensic psychiatry, so I am a psychiatrist and not a polygraph examiner. I became interested in polygraph testing about 20 years ago in relation to work with offenders. What I found was that polygraph testing was being used very widely in the United States to monitor offenders. The people using it said, “This is fantastic. If they took it away, I would quit.” They would make comments like that, but the academics felt that there was no evidence for it and a lot of what we are hearing today is that it is not reliable. A lot of those issues were repeated. I became interested in that difference. We began to run some studies here in the UK. Gradually over time, a lot of evidence accumulated to show that it was a very effective means of monitoring and managing offenders in the community.
Professor Grubin: The first thing to say is that there is a lot of misunderstanding about polygraph testing. We heard a lot of that earlier today, and I get very frustrated, because those same comments get repeated and repeated. There is also a lot of confusion about polygraph testing—what it is, what it does and how it is used.
In essence, all polygraph testing does is provide additional information—information gain—and it does that in two main ways. One is the test outcome, which people often get tied up in—is somebody lying or telling the truth?—but it is also about disclosures. The two are complementary. What every study ever carried out on polygraph testing has found is that when people are having a polygraph, they make disclosures. All the studies we have done here, and indeed the implementation of polygraph testing here with sex offenders, has found the same thing.
There was a comment that this has not been piloted, but we have now run about 5,000 tests in probation, with mandatory tests on sex offenders. We have tested over 2,000 individuals and the police, with voluntary testing, have tested about 1,000 individuals and run about 2,000 tests. We have a lot of information, and again we find that about 60% to 70% of tests result in new information that was not known before and is important to management.
The other aspect, of course, is test outcome. People always want to know how accurate it is, and we know —we have very good estimates. The best study was a comprehensive review carried out by the National Research Council in the United States about 20 years ago, when it was being raised for security vetting in Government agencies. It looked at all the available evidence and found it was between 80% and 90% accurate. That means it gets it wrong about one in five or one in 10 times, but that is a lot better than we can do.
The main question then is: is that accurate enough for the application you want to put it to? What we are talking about is post-release, post-conviction testing as part of monitoring offenders, and in that capacity it is being used alongside a number of other aspects of offender management. You are not relying on the polygraph either to clear someone or to send them back to prison or anything like that; it is not used in that way. It is just additional information that can be added. If you think about different sorts of results that you might get, if somebody, say, passes a polygraph test—I do not like to use the term pass, but I will for simplicity’s sake—and they do not make any disclosures and there are no other concerns about the individual, that provides reassurance that you are not missing anything; it is an agreement with everything else. If, on the other hand, you get some disclosures, that is something that can be investigated further. If somebody fails the polygraph, so they are thought to be lying, and there are already concerns, again, that reinforces that, but if there are not, the polygraph may be wrong—it may be one of the one in five or one in 10 times we have gotten it wrong—but it may also suggest that you need to look at it a bit closer and investigate further.
There were comments before about how if somebody fails a polygraph they are brought back to prison or brought before the courts. That is just not the policy, and we have heard that in the legislation that just does not happen. It is simply a warning sign that you had better take a closer look. Again, we have a lot of evidence from the testing we have done in this country—as I said, over 7,000 tests have been run—to show that that is in fact how things are working.
Can I say one last thing? We often present polygraph testing as if it is something that offenders do not like and is being imposed on them. That is true for some, but others actually find it useful. You have to remember that sometimes you catch people telling the truth, and where you have an individual who is being monitored, because a risk is a great cause of concern and there is a suspicion of them all the time, and they can demonstrate that they are actually not doing anything wrong and their risk is static or decreasing, that is very useful for them. We have anecdotal evidence of offenders saying they found that part of the testing helpful, and they like polygraph tests for that reason—because they can prove that they are following the rules.
Professor Grubin: It is fair, except that I would say it is more than a prompt and that it actually uncovers information. You have to remember that a lot of this management relies on self-reports, so it is a way of saying, “We’re asking these questions anyway, only now we want you to tell the truth and we have a way of trying to determine whether you are telling the truth.” The other aspect, of course, which is often overlooked is its deterrence effect. If you know you are going to have a polygraph test, you are going to pay a lot closer attention to your activities, your actions and your behaviour. Again, we have a lot of anecdotal evidence—it is very difficult to prove—that people do modify their behaviour, because they know they are going to have a polygraph test.
I am going to have to move on. Let me just to go to Mr Cunningham.
Otherwise, we will have too much.
Professor Grubin: Nobody is recalled on the basis of a failed polygraph test. That is the important point which people often misunderstand.
Professor Grubin: No. The sex offender work is, in effect, a pilot for this, because even though the risks are different the underlying principles are the same: there are individuals who are a cause for concern and you have time to intervene if you are picking up warning signs. If they are making disclosures that indicate that the risk is increasing, that would be grounds for recalling them to prison, but that is because of something they have told you. If they told you in another setting, if they said it in an interview with a probation officer, they would be recalled on that basis as well. If they simply fail a polygraph test but they do not make any disclosures, nothing happens to them. The questions on which they failed are explored further and to say, “Maybe this is wrong, maybe one in five times it is wrong, but maybe there is something there that we have missed and we have to have a closer look.” That is followed up by further interviewing with the offender. There may be other investigations that are put in place. We have a lot of examples, with the sex offender work, where that has happened. I would say, in a way, that the sex offender work is just a very large pilot for this application.
Professor Grubin: I am not quite clear what you are asking. In terms of the disclosure, this is after they have been released so the tests are not being run in prison, they are being run in the community, so any issues with the Parole Board I do not think are directly relevant to the polygraph testing.
Professor Grubin: There are two aspects: one is mental health and one is young people. I share your concerns regarding young people. It depends on what sort of age we are talking about. Certainly, I have had discussions about what an appropriate age might be. I am very clear that certainly any individual below the age of 16 should not be subject to a polygraph test.
Professor Grubin: You say “subject”—that is probably not the right word. The reasons why you would not want to use it under 16 are, first, we are not sure that brain development means the polygraph will work in the same way as it does with adults. We know there is a big change in brain development around the time of puberty. Around the age of 16, I think things are adult-like enough to mean that polygraph testing will be valid.
Sorry to interrupt you, but colleagues in Scotland are suggesting that you do not have full maturation until the age of 25.
Professor Grubin: It is actually a bit older than that—I have seen 29. It is not a question of full maturation; it is a question of whether the brain has matured enough so that the polygraph works in similar way to how it works with adults. Again, there is a lot of confusion about what a polygraph detects. It does not detect lies; we know that. It detects activity within the autonomic nervous system that reflects cognate processing in response to questions. By the time somebody has reached the age of around 16, that looks similar to an adult’s.
Professor Grubin: That is an issue for training and oversight. There is an important thing for me with polygraph testing. A lot of the criticisms of it are not about polygraph but bad practice and the limitation of polygraph. It is very important that examiners understand issues around mental health and mental illness. If there are problems, they can either adapt their testing to take that into account or not do the test, depending on what the circumstances are.
Professor Grubin: I am not sure that that is something you can legislate for, apart from saying that there needs to be proper training and proper supervision. My concern always is that, being Government, one day somebody will want to save a little bit of money and will say, “We don’t really need this supervision quality control. They can just get on with it.” That is where I think danger lies. Provided that there is proper supervision, I do not know how much further you can legislate.
Professor Grubin: I was a member of a risk management authority for a number of years, so I know how they work and what they look at. When you talk about piloting, are you looking to get disclosures that will have the same levels of accuracy? There is no reason why a Scottish offender should be any different from an English or American one. The polygraph should work in the same way. There is a lot of experience now on how to implement. From my point of view, this is one of the few things where we have been able to scale up from pilot studies to actual implementation and to continue to keep its integrity and keep it working. I do not see why any of that would be any different in Scotland. I appreciate there are resource and training issues, but that would not be a reason not to pilot it. That would be a reason to get the training and implementation issues in place.
Professor Grubin: Yes.
Professor Grubin: They are not under the conscious control of the subject. We know that. Also, you get those responses not just from being deceptive; there is a range of things that can cause that response. In a polygraph test, somebody does not just walk into the room, get hooked up to a polygraph and then get asked questions. It is a fairly lengthy process. It takes at least an hour: typically two or three hours for a polygraph test. Most of that is spent in a pre-test interview where you go through information with the examinee with the aim of making sure that, if he is responding, he is responding because he is being deceptive and not for some other reason. That is where are lot of the training comes from and that is what differentiates a good polygraph examiner from a bad one: the way they have approached the interview and the test means that those responses are seen because of deception. It doesn’t always happen, which is why we get the one in five, one in 10 error rate. What you are looking for is physiological responses associated with deception. They can be associated with other things as well, but the aim of the polygraph test is to try to make sure it is because somebody is being deceptive.
Professor Grubin: It is not valuable at all. You cannot use polygraph testing as a means of testing intentions. The polygraph is looking specifically at behaviours. Your colleague referred to concrete, very narrow questions of the type, “Have you done this?” They can be screening-type questions, or they can be very specific, such as, “Did you rob the bank?”, “Did you shoot the gun?” or whatever. It is not a tool for eliciting intentions or validating responses to those sorts of question.
Professor Grubin: For people with an intellectual disability, you are absolutely right that the accuracy of the test decreases once IQ drops below a certain level. In the sex offender testing, we will typically test down to 60, but we are much more cautious with the test outcome. It is still valuable, because of the disclosure aspect; you still get information and information gain—the point about information gain is the main one I want to leave you with—from the test, even with someone with an intellectual disability.
Again, examiners need to be trained; they need to address their questions in a different way, one that is much more concrete. The test has to be modified. It has to be shorter because of fatigue and issues such as that. So, you are absolutely right that accuracy decreases, but you must remember that nothing hinges on a test outcome alone. If it is a deceptive response and you have no other concerns, you would still look further. You might say, “We have to be more cautious because of IQ.”
There is no evidence to suggest it works any differently with people with personality disorders from how it works with anybody else. Again, because of misunder- standings about how polygraph works, people think, “It does not work with psychopathic individuals because they don’t feel anxiety.” First, the test is not based on anxiety. Sometimes when we do talks, and we will have an examiner, we can do demonstrations of polygraph testing. We used to like to get a volunteer from the audience who we can hook up. I try to pick somebody who is also a psychopath, so we can kill two birds with one stone. I know that here we would not be able to do that, but in the audiences I speak to there are often one or two psychiatrists who would fit the bill for a psychopath. There has been some testing of personality disorders and there is no evidence that the test itself is any less valuable. Again, part of the training of the examiner is that they need to know how to interview these individuals, because of the challenges that they may present.
I believe the third group you were thinking about was those with neurodevelopmental disorder or autistic spectrum disorder. Again, the evidence is that the test works just as well with them as with anybody else, but you have to make allowances in the interview, because of the concrete nature of a lot of their thinking, language difficulties and so on. You need to take that into account in terms of the interviewing, but there is no evidence to suggest that the test itself works any differently with them from how it works with anybody else.
Professor Grubin: We do test with interpreters, and they seem to work just as well. Again, it does take training for the examiner to know how to work with an interpreter, and the interpreter needs training as well. Certainly, security services in other countries use it with interpreters quite regularly.
Professor Grubin: There is a range of reasons that people can give either false positives or false negatives. Apologies for not looking at you while I am answering. Sometimes it is because the test hasn’t been set out properly, the examinee hasn’t been prepared properly in the pre-test interview or the questions haven’t been formulated well, and so on.
The examinee may have some other experience that is close enough to the way the question is being asked to cause that sort of response. For example, there was a very good study carried out in Israel. I won’t go through all the details of it, but they were able to debrief afterwards as we were with police officers who were applying for promotion. There were two false positives. The ground troops knew that these two people had been telling the truth, but they were said to be lying. One of them had said that he had previously made an insurance claim in Israel. At that time, the insurance companies in Israel would test people making insurance claims to see if they were honest or not. He said that he was being honest, but he was told that he was lying. He couldn’t get that out of his mind during the test. That causes the cognitive processing we were talking about, and it made him respond in that way.
The other person was more interesting. The experiment itself was about a test that the examinees could cheat on. You would know if they cheated or not. The second police officer said that he cheated when he took the test, but there was something wrong when he took it and the examiners had him do the test a second time. When he did it the second time, he said, “I don’t think I had better cheat again,” so he did it honestly. When he was asked if he had cheated on the test the second time, he said that he was thinking about having cheated the first time, which is why he reacted as he did.
There are other reasons as well, but it is hard to explain without going into the details about how polygraph testing works. Basically, you are comparing the relevant questions that you are interested in with so-called comparison questions. If those comparison questions are not evocative enough to elicit a response when a person is telling the truth to the relevant question, or vice versa, when they are too hot and the person is much more concerned about that question than about the relevant one, you can also get mistakes on the test.
The final reason is that sometimes we just don’t know; it just happens.
Professor Grubin: It is very similar. In sex offender testing, the majority of questions relate to their licence conditions and they are asked specifically about those conditions. You have to remember in a polygraph test and a screening test you get, at most, three relevant questions, so if they have 15 licence conditions you are only going to be able to test three of them. You can ask about all of them during the pre-test interview and, of course, the examinee won’t know which ones he will be asked on the test, which is why you get disclosures.
By and large, they are about licence conditions, and I would think that with this group that is what they would be. The things you would be interested in are undisclosed internet devices, have they been in contact with certain individuals, have they travelled to certain places and those sorts of question. The sex offenders are also asked about fantasies, but I am not sure that you would be particularly interested in that with this group.
Professor Grubin: Either I have either misunderstood you or you have misunderstood me. Were you referring to intellectual disability?
Minister, I think I promised I would come back to you.
Professor Grubin: There are a couple of aspects to the answer to that. First, there is no reason to think it would not work similarly with terrorist offenders. They are people and they respond to polygraph testing like anybody else. It is used with terrorist offenders in other countries, but the problem is that that sort of work is not published. My understanding of it is anecdotal and what people have told me. They certainly find that its use is successful, and they get the same types of response that you would expect from the sex offender work. There is no real difference there. But none of that is published, so it is anecdotal.
One other thing to say from the sex offender work is that we looked at whether, after polygraph tests, there was an increase in actions taken by the probation officers managing those people. You get an increase by a factor of 10, sometimes higher, in actions taken. That does not necessarily mean recall to prison or charging with a new offence, but actions that mean you have an opportunity to reduce risk, which is really what you are looking for here. With any sort of offence where you have time to intervene, polygraph testing provides a good means to get that information to allow you to intervene and reduce risk.
Professor Grubin: I will give you a couple of examples of that, but the first thing to say is that we do not know why it happens. There are various psychological attempts to explain it, but I know that I have been polygraph tested as part of our training and it was all I could do not to confess to the crime that I was meant to have committed. There is a real urge to disclose that I do not really understand, but there are various theories that I am happy to discuss later on.
To give you a couple of examples off the top of my head, one interesting case was a sex offender who was released from prison. Everything was thought to be going well with him. He disclosed that he had a new girlfriend, which was not known to the offender manager. That seems pretty mundane, but when they found this girlfriend it turned out that she was a single mother, that she was a vulnerable woman, and that this man was visiting her and helping her to paint her sitting room. He would do that in his underwear because he did not want to get his clothes painted. Her daughter was present at that time. A lot of that mirrored the way he had offended before, so that one disclosure about having a new girlfriend led to that man being recalled to prison —not based directly on the disclosure, but only indirectly, once the girlfriend was found and interviewed.
Professor Grubin: I am not sure just what you would mean. I can tell you, because I checked these figures before I came, that in the probation testing about 65% of tests resulted in new disclosures in the pre-test. That is information that was important to management but was not known. That might be small bits of information or it might be big bits. After someone fails a test, they are asked to explain why that might be, and about 60% of those tests result in further disclosures to try to explain that. What I cannot say is how many of those were in tests where there were no pre-test disclosures, so it is likely that about two thirds or 70% of tests result in new information.
Wow. Thank you.
Professor Grubin: That does not count something that I think is important but that is always overlooked: the truthful tests with no disclosures that provide reassurance, because decisions can be made on that. In the police world, they do voluntary testing of sex offenders on the register. Someone who is on the register for 15 years and wants to come off it may have been visited once a year for the past five years; there may be no intelligence on him, and an inspector is expected to sign off this person based on that information. If he passes a polygraph test and nothing of concern comes up, that gives them reassurance. Often, though, in those cases we find that bits of information do come up that they should have been aware of, and then they can move forward.
Order. I am going to have to stop you there because we have run out of time. Thank you very much indeed for your evidence, Professor Grubin.
Ordered, That further consideration be now adjourned. —(Tom Pursglove).
Adjourned till Tuesday 30 June at twenty-five minutes past Nine o’clock.
Written evidence reported to the House
CTSB01 Dr Kyriakos N. Kotsoglou, Senior Lecturer in Law (Criminal Evidence), Northumbria University, and Marion Oswald, Vice Chancellor’s Senior Fellow in Law, Northumbria University
CTSB02 Dr Charlotte Heath-Kelly, Reader in International Security, Politics and International Studies, University of Warwick
CTSB03 Dr Rob Faure Walker (As part of SOAS COP for SOAS University of London)
CTSB04 Prison Reform Trust
CTSB05 Law Society of Scotland