England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		2nd October 2009

1. LORD JUSTICE PILL: By this application for judicial review Raymond John Corbett, the claimant, seeks to quash one of 13 conditions imposed when he was released on licence under section 33(2) of the Criminal Justice Act 1991 ("the 1991 Act").
2. The claimant, who is 60 years old, was convicted of two offences of rape and two offences of indecent assault at the Crown Court in Worcester. On 2nd May 2003 he was sentenced by His Honour Judge Mott to a series of terms of imprisonment, to run concurrently, the total sentence being one of 9 years, which was that imposed for the rape offences.
3. The claimant became eligible for parole on 31st October 2007. He twice withdrew his application for parole. On 29th April 2009 he was released on licence at his non-parole release date. The licence will expire on 30th January 2010, by which date the claimant will have served three-quarters of his sentence (section 37(1) of the 1991 Act). The sentence of 9 years expires on 1st May 2012.
4. A prisoner's licence may be revoked and the prisoner recalled to prison by the Secretary of State if recommended to do so by the Parole Board (section 39(1) of the 1991 Act), and without a recommendation from the Parole Board where it appears to the Secretary of State that it is expedient in the public interest to recall the prisoner before such a recommendation is practicable (section 39(2)). That gives a practical importance to the conditions imposed on release from custody.
5. The conditions provide that the claimant will be under the supervision of a probation officer or a social worker of a local authority social services department. He is required to comply with the conditions of the licence. It is stated in the notice confirming the licence that the objectives of the supervision are:

(a) to protect the public;

(b) to prevent re-offending; and

(c) to help the claimant resettle successfully into the community.

6. The conditions imposed, amongst other things, are a requirement to keep in touch with the supervising officer, to reside permanently at an address approved by the officer and to undertake only such work as is approved by the officer. The claimant was required to reside permanently at Braley House Approved Premises in Worcester and not to enter defined parts of Malvern in the County of Worcester; he was required not to visit any household where children under 16 years of age are present, unless agreed by the supervising officer and Children's Services; and not to have unsupervised contact with children under the age of 18 without such approval.
7. It is Condition xiii to which objection is taken:

"To comply with any instructions given by your supervising officer requiring you to attend for a polygraph session, to participate in polygraph sessions and examinations as instructed by or under the authority of your supervising officer and to comply with any instructions given to you during a polygraph session by the person conducting the polygraph session..."

8. The object of the polygraph procedure is lie detection. A polygraph condition may be included in a licence in the circumstances specified in section 28(1) of the Offender Management Act 2007 ("the 2007 Act"). The Secretary of State may include a polygraph condition in the licence of a person serving a relevant custodial sentence in respect of a relevant sexual offence if released on licence by the Secretary of State and is not aged under 18 on the day on which he is released. For the purposes of the section, rape is a relevant sexual offence, and the sentence, being a sentence of imprisonment of 12 months or more, is a relevant custodial sentence.
9. Section 29(1) of the 2007 Act provides:

"For the purposes of section 28, a polygraph condition is a condition which requires the released person—

(a) to participate in polygraph sessions conducted with a view to—

(i) monitoring his compliance with the other conditions of his licence; or

(ii)improving the way in which he is managed during his release on licence;

(b) to participate in those polygraph sessions at such times as may be specified in instructions given by an appropriate officer; and

(c) while participating in a polygraph session, to comply with instructions given to him by the person conducting the session ('the polygraph operator')."

10. Sections 29(2) and (3) define polygraph sessions and polygraph examinations and section 29(6) empowers the Secretary of State to make rules relating to the conduct of polygraph sessions.
11. The Polygraph Rules 2009 (SI 2009/619) came into force on 8th April 2009. The rules make provision for the qualifications and independence of polygraph operators (rules 3 and 4), for the requirements of polygraph sessions (rules 5 and 6), for polygraph supervisors (rule 7), and for 6-monthly reports by the polygraph provider to the Secretary of State.
12. Section 30 of the 2007 Act provides:

"(1)Evidence of any matter mentioned in subsection (2) may not be used in any proceedings against a released person for an offence.

(2) The matters so excluded are—

(a) any statement made by the released person while participating in a polygraph session; and

(b) any physiological reactions of the released person while being questioned in the course of a polygraph examination.

(3) In this section 'polygraph examination' and 'polygraph session' have the same meaning as in section 29."

That, of course, provides a degree of protection to the person subject to the condition.

13. In section 41 of the 2007 Act the provisions of the Act already mentioned come into force on days appointed by the Secretary of State by statutory instrument. The section provides in subsection (2) that different provisions may be made under the section for different purposes and for different areas. The Offender Management Act 2007 (Commencement No 3) Order 2009 (SI 2009/32) brought into force the relevant provisions of the Act for a period beginning on 19th January 2009 and ending of 31st March 2012, but only in nine police areas in the East and West Midlands. These areas include West Mercia, which includes Worcester, where the claimant is required by the conditions of his licence to reside.
14. A guide for offender managers was, on 1st October 2008, issued by the Secretary of State under the heading "Mandatory Polygraphy for Sex Offenders Pilots". The appropriate officer administering polygraph sessions must by virtue of section 29(5) of the 2007 Act have regard to any guidance issued by the Secretary of State. The guide refers to the history of polygraph testing in more than one jurisdiction and the consequences of testing. It stated:

"The examiner interprets the chart and indicates whether he or she believes that the interviewee is being truthful or deceptive. If the examinee is considered to be truthful, then they are deemed to have 'passed' the test. If they are considered to be deceptive, then they are deemed to have 'failed' the test. Tests can also be deemed to be 'inconclusive' — where the examiner cannot judge whether the examinee appears to be being truthful or deceptive."

15. The limitations of the test are considered in the guidance. It is stated:

"... the result of a polygraph test (either a pass or fail) cannot, in isolation, be used as a basis for decisions on the management of sex offenders. For example, sex offenders could not be deemed to have certainly breached their licence conditions, or be recalled to custody because they fail a polygraph test."

The guide continues:

"However, there is some evidence that polygraph testing can elicit 'disclosures' from sex offenders. If an offender 'fails' a test (and is therefore deemed to be deceptive) he or she can be challenged about the subject of the test. This subsequent challenge can lead the offender to disclose information which was previously unknown. Thus a polygraph test designed to facilitate more effective treatment and management of sex offenders would typically comprise of a series of questions formulated for the offender based on their known behaviours which have been identified as risky. Alternatively the polygraph test can be used in order to monitor whether the offender is complying with other licence conditions. The offender can be tested regularly (for example, on a 6-monthly basis) on whether they have been engaging in these behaviours. Any disclosure by the offender of risky behaviour should be dealt with through a variety of means, such as supervision, MAPPA, or, in cases where the potential for a further crime is indicated, through report to the police."

16. The history of voluntary polygraph testing is considered. It is stated:

"Only a pilot of mandatory testing combined with thorough research, such as we are now undertaking, will confirm whether polygraph testing is a useful and effective risk management tool for offender managers."

17. The rights of the offender under Article 8 of the European Convention on Human Rights ("the Convention") are considered:

"It is argued that mandatory polygraph testing of offenders will not interfere with this right [the Article 8 right] because the pilot will be in accordance with the law, and in the interests of public safety. Within the restrictions of the pilot polygraph testing will be concerned only with behaviour that might indicate individuals are being placed at risk of the subject. This is clearly a matter of public safety, and areas of an offender's public life beyond this are outside the scope of the pilot."

18. The guide concludes:

"Based on the outcome of the mandatory pilots, a recommendation will be made to Parliament as to the future of mandatory polygraphy. You are therefore taking part in an important trial of this technology that will possibly have an impact on the management of sex offenders, and the prevention of future victimisation, for years to come."

19. Promoting the mandatory testing pilot in the House of Commons, the Parliamentary Under-Secretary of State to the Home Office, as quoted by both counsel on this application, stated that it was testing:

"... whether the polygraph test is efficacious and whether the use of evidence collected genuinely facilitates effective offender management without disproportionately affecting the rights of those tested... We want to establish whether information from the polygraph will provide offender managers with an additional risk management tool that is useful in its own right."

20. On behalf of the claimant, Mr Traversi does not contend that the 2007 Act, or the regulations made under it, are incompatible with the Convention. His submission is that in the particular case of this complainant, the imposition of the condition violates Article 8 of the Convention. It is, he submitted, a disproportionate interference with the claimant's right to respect for his private life, and a disproportionate measure not justified by the public interest. Mr Traversi submits that the intrusion is a major one and that the testing of honesty it provides is not entirely reliable. The failure of a polygraph test would not of itself result in recall to prison. It may lead, as the guidance demonstrates, to inquiries establishing that other conditions of the licence have been breached, and thereby result in a recall.
21. Since the claim is based on the particular circumstances of the claimant, it is necessary to consider, in relation to the relevance of the condition, information about him. When imposing the 9-year sentence of imprisonment, Judge Mott stated:

"In your case, Raymond Corbett, many right-thinking people might consider that no sentence was long enough for somebody who did what you did to your daughter at such a tender age. It almost beggars belief. I take into account to the extent that I think I can the passage of years and the fact that you are much older now than you were then and have not, it appears, re-offended since.

On the other hand, there is no doubt at all that you have made her life a misery over the years, remembering, as she always had, what you did to her at the age of 5, or even 4. I also have to sentence you for two offences, in effect, of groping one of your other daughters, something which was reprehensible enough but nowhere near as serious as the rapes."

22. There is evidence before the court from Ms Polly Rimoncelli, who is an offender manager at the West Mercia Probation Board, South Worcestershire Division. The contents of her evidence are not challenged. She states:

"7. Whilst in prison Mr Corbett admitted to the offences. However, now that he is released he has reverted to denying the offences, saying that he admitted to his actions in the hope of getting parole. He has now told me that one reason for him appealing against the polygraph testing condition is that he denies the offences.

8. As Mr Corbett initially admitted to the offences for which he was imprisoned he was assessed as suitable to undertake the Sex Offenders Treatment Programme ('SOTP') and was enrolled in this course at HMP Stafford. However, although he completed this course, facilitators were of the opinion that his lack of engagement with the course meant that it was not possible to say that his risk to others had reduced as a result.

...

10. In considering whether to recommend the imposition of such a condition in relation to Mr Corbett's licence, I considered with the guidance provided in the Offender Manager Guide to determine whether he was suitable. In my view Mr Corbett meets the statutory criteria... [that is accepted]."

23. Ms Rimoncelli went on to say that she took account of the claimant's individual circumstances to determine whether a polygraph condition was necessary and proportionate. She took account of the seriousness of the original offences, the unreliability of Mr Corbett, first, in initially admitting the offences and now denying them, and her concern that the claimant "will not voluntarily disclose information that might be relevant to his supervision". For example, she states:

"... it is known that he has relationships with women, but the nature of those relationships is not well understood. He will not discuss this... it is known that some of these women have children..."

24. Ms Rimoncelli acknowledges that, applying the statistical analysis which is often before courts (RM2000), the likelihood of re-offending is stated as low. Ms Rimoncelli points out, and it would appear obvious, that the seriousness, if he did offend again, would be very high, having regard to the circumstances of the offences and their including a breach of trust.
25. Ms Polly Rimoncelli's conclusion is at paragraph 13:

"In light of the above I considered that a polygraph condition would assist in monitoring his risk as it is likely to provide further information regarding who he is spending his time with and if there are children present. Mr Corbett is unwilling to take responsibility for his offending. This unwillingness to accept responsibility may indicate that he is unwilling to take responsibility for his licence and may not comply with conditions as a result. A polygraph condition would assist in managing risk in respect of this, as well as making it easier to discuss the offences themselves."

26. There is also a statement from Mr Farmer, head of the Sex Offender Team at the Public Protection Unit of the National Offender Management Service. He describes the rationale for polygraph testing. He summarises the guidance to which I have referred and the justification for the pilot scheme under which the licence was imposed. At the time of writing his statement, which was at the end of May 2009, no conclusions were yet possible as to the impact of the pilot study.
27. Mr Traversi relies on the time which has elapsed since the commission of the offences and the absence, even though the claimant was at liberty between 1983 and 2003, of any further offending. It is submitted that the other conditions imposed provide sufficient supervision and protection for the public.
28. He refers to the questions posed by Lord Bingham of Cornhill in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 386 at paragraph 17:

"(4) If so [that is, if the interference is in accordance with the law, as Mr Traversi accepts the imposition of the condition was] is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?"

What Lord Bingham was, of course, there quoting the relevant parts of Article 8.2 of the Convention.

"(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?"

29. Mr Traversi submits that, asking those questions, the imposition of Condition xiii was not justified and, further, that interference was not proportionate to the legitimate public end sought to be achieved. Mr Traversi also submits that, read with Article 8, there is a breach of Article 14 by reason of the pilot trials, which discriminate between offenders in different parts of the jurisdiction.
30. On behalf of the respondents, Mr Kovats submits that the imposition of the condition is justified on Article 8.2 grounds. He accepts that polygraph testing does engage the operation of Article 8 (S and Marper v United Kingdom, 4th December 2008, Grand Chamber). A pilot study, he submits, does not involve a breach of the Convention; it is justified as making possible an informed judgment on the value of polygraph testing.
31. On the material before the court, the imposition of the condition was, in my judgment, justified on Article 8.2 grounds. I add that, while this point is not taken on behalf of the claimant, and therefore the point not argued, nothing in the material before the court gives me doubts about the lawfulness, in Convention terms, of the 2007 Act and the regulations made under it. The condition was justified as part of a comprehensive arrangement for the supervision and rehabilitation of an offender who had committed very serious sexual offences. I accept that the condition does involve a further intrusion upon the claimant's private life. Given the seriousness of those offences and the evidence available about the subsequent conduct and attitudes of the claimant, it was not, in my judgment, disproportionate to impose the condition.
32. On consideration of the questions posed by Lord Bingham, to which I have referred, I would answer them in the respondent's favour. I add that the rationale for the scheme and the pilot study appears to me to be fairly set out in the guidance note issued by the Secretary of State.
33. As to the geographical variation of the scheme, Mr Kovats relies on the case of Magee v United Kingdom [2001] 31 EHRR 35 at paragraph 50. That was a Northern Ireland case. The reasoning on this issue is set out at paragraph 50. It was noted that Article 14 of the Convention protects against a discriminatory difference in treatment of persons in analogous positions in the exercise of the rights and freedoms recognised by the Convention:

"50... It observes in this connection that in the constituent parts of the United Kingdom there is not always a uniform approach to legislation in particular areas. Whether or not an individual can assert a right derived from legislation may accordingly depend on the geographical reach of the legislation at issue and the individual's location at the time. For the court, insofar as there exists a difference in treatment of detained suspects under the 1988 Order [a Northern Ireland Order] and the legislation of England and Wales on the matters referred to by the applicant, that difference is not to be explained in terms of personal characteristics, such as national origin or association with a national minority, but on the geographical location where the individual is arrested and detained. This permits legislation to take account of regional differences and characteristics of an objective and reasonable nature. In the present case, such a difference does not amount to discriminatory treatment within the meaning of Article 14 of the Convention."

34. That decision, primarily, is an approval by the court of a different approach being taken to the protection granted by the Convention in different jurisdictions which may exist within a Member State. Different considerations may arise if offenders with similar characteristics are treated differently in different parts of a single jurisdiction. The court had in mind characteristics of an objective and reasonable nature.
35. That issue does not, however, arise for determination in this case. In promoting public safety and the prevention of crime, it is not a breach of the Convention, in my judgment, if a pilot study is conducted with a view to testing the value of a method of supervision. In any event, the lawfulness of the pilot study, the basis for which is set out in the regulations, is not challenged. In my judgment the imposition of the condition is lawful. It is not rendered unlawful because an offender in a different part of England would not at present be subject to it.
36. For those reasons, I would refuse this application.
37. MR JUSTICE SIBLER: I agree. I would merely add, in response to the submission that was made that there was a violation of Article 14 of the European Convention on Human Rights, because some people in this country, who are in the pilot zone, are liable to be subjected to the polygraph condition, while others in other parts of the country are not, there would appear to me to be a clear objective justification for that difference in treatment, which is proportionate to the legitimate aim. It was a proportionate decision that there should be pilot areas in order to determine whether or not this system is effective, fair and reasonable.
38. For those reasons, as well as those given by my Lord, this application has to be refused.
39. LORD JUSTICE PILL: Are there any applications?
40. MR KOVATS: My Lord, yes. The defendant seeks his costs of the claim.
41. MR TRAVERSI: My Lord, the claimant is publicly funded in this case.
42. LORD JUSTICE PILL: What order are you seeking, Mr Kovats?
43. MR KOVATS: We are seeking an order for costs subject to section 11 of the Access to Justice Act. This man has now been released from prison. Although he is 60 years old, it is not inconceivable that he will gain employment and come into sufficient funds to pay --
44. LORD JUSTICE PILL: Section 11? I am more familiar with dealing with that in an appeal context. Does that arise at first instance?
45. MR KOVATS: Yes, that is the thing that prevents a claimant who is publicly funded from having to pay costs personally within the scope of the matters that are publicly funded.
46. LORD JUSTICE PILL: Yes, but is there a form of words? I expect the associate will be familiar with it. The form of words you used would not be appropriate to put in an order.
47. MR KOVATS: Well, that is the usual form of words: an order for costs subject to section 11 of the Access to Justice Act 1999.
48. LORD JUSTICE PILL: (Pause). I am told that the practice in this jurisdiction is to make the older order of costs not to be enforced without the permission of the court.
49. MR KOVATS: Well, I have no quarrel with that.
50. LORD JUSTICE PILL: Mr Traversi?
51. MR TRAVERSI: I have no observation on that proposed order.
52. LORD JUSTICE PILL: So the respondents will have their costs, not to be enforced without an order of the court.
53. Does anything else arise?
54. MR TRAVERSI: There is one further matter. With respect, I seek leave to appeal this court.
55. LORD JUSTICE PILL: Do we need to certify?
56. MR TRAVERSI: I believe so, yes.
57. LORD JUSTICE PILL: (Pause). No, we are not able to certify this as a matter of general public importance.