Sexual Harm Prevention Orders (‘SHPO’) & Polygraph tests

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

This, says the government, includes a requirement to participate in Polygraph (lie-detector) tests.  

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

These safeguards are: 

• The court must receive evidence about the suitability and enforceability of such a requirement from the individual or an individual representing the organisation who is specified to supervise. 

• As with SOPOs (Sexual Offences Prevention Orders), no order should be made by way of SHPO unless necessary to protect the public from sexual harm as set out in the statutory language. 

• If an order is necessary, then the prohibitions imposed must be effective; if not, the statutory purpose will not be achieved.  

• Any SHPO prohibitions imposed must be clear and realistic. They must also be readily capable of simple compliance and enforcement. It is to be remembered that breach of a prohibition constitutes a criminal offence punishable by imprisonment. 

• As re-stated by R v NC, none of the SHPO terms must be oppressive and, overall, the terms must be proportionate.  

• The SHPO must be tailored to the facts.  

Scrutiny

It is clear that before imposing such an order, there must be the utmost level of scrutiny to ensure it is necessary and proportionate. It is important that the defendant’s legal team are familiar with this area of law in order to object to any inappropriate terms being included. 

How can we help?

We have over 30 years’ experience of criminal defence practice. We ensure we keep up to date with any changes in legislation and case law so that we can give our clients the best possible advice and representation. If you would like to discuss any aspect of your case, please contact Tarsem Salhan on 0121 605 6000 or at tsalhan@salhan.co.uk.