EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, August 14, 2014

Telling Lies in the U.K.: Rape Defendant Claims Polygraph Results Should be Admissible at U.K. Trial

According to the Western Daily Press,

A man accused of raping a teenage girl has asked for his lie detector test results to be shown to the jury, in what could be a UK legal first. Paul Henry, 48, of Newport, Gwent, has been standing trial at Gloucester Crown Court. Polygraph tests are not currently admissible to court but are used outside court by the probation service The defence team have claimed polygraphs should be admissible.  

So, what's the United Kingdom's position on the admissibility of polygraph evidence, and why might there be some merit to Henry's argument?

According to the London Barrister's Chamber,

The UK regulation of the use of polygraphs varies depending on the context. In the criminal justice system, polygraph tests are not admissible as evidence....

There have been numerous cases throughout the Commonwealth and further afield which have excluded the use of polygraphs in criminal trials. A useful summary of the position can be found in the International Trial Chambers decision 'on the request of the accused to be given the opportunity to be interrogated under application of a polygraph' in the case of The Proseuctor v Mladen Naletilic and Vinko Martnovic [2002]. In their decision the International Trial Chamber rejected the use of a polygraph finding that that the consensus in the scientific community, and in the domestic jurisdictions surveyed, was that polygraph examinations are an unreliable indication of credibility.

Okay, so that seems simple enough. Polygraph evidence is too unreliable to be admissible, meaning that Henry has no claim that the results of his polygraph test should be admissible. Right?

Well, the London Barrister's Chamber also notes that

such tests have been piloted and continued to be used in the UK for the management of sex offenders. Their use for such purposes is regulated by the Polygraph Rules 2009. Under these rules, the Secretary of State can require certain offenders released on licence to undergo polygraph testing to monitor compliance with the terms of a licence and to improve offender management.

Here is the Explanatory Memo to the Polygraph Rules 2009, which do indeed authorize the polygraph testing of certain sex offenders released on license. 

In other words, polygraph results are not reliable enough to be used to prove an alleged sex offender's innocence (or guilt) at a criminal trial, but they are reliable enough to be used to prove a convicted sex offender's noncompliance (or compliance) with his terms of release. Is this fair? Is this the basis for Henry's claim? And will he be successful? We'll have to see.



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