Corbett v Secretary of State for Justice & Anor

A polygraph condition imposed on release on licence is lawful where authorised by statute and justified as part of supervision and rehabilitation. Its interference with private life may be proportionate having regard to the seriousness of the offending and the offender’s subsequent conduct and attitudes. A pilot scheme confined to selected geographical areas is not, without more, discriminatory under Article 14 where the distinction has an objective and reasonable justification connected with testing the scheme’s effectiveness.

The claimant sought judicial review of a condition imposed on his release on licence under section 33(2) of the Criminal Justice Act 1991. The condition required him to attend and participate in polygraph sessions. He had been convicted of serious sexual offences and released within a statutory pilot scheme established under the Offender Management Act 2007.

He accepted that the statutory scheme was Convention-compliant in general, but argued that applying the condition to him disproportionately interfered with his Article 8 rights. He also argued that limiting the pilot to particular police areas breached Article 14. The central issues were whether the condition was justified and proportionate in his circumstances, and whether the geographical scope of the pilot made its imposition unlawful.

1. Application refused. The condition was lawfully imposed under the statutory polygraph scheme and was not disproportionate.
2. Applying the questions identified by Lord Bingham in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 386, the court accepted that polygraph testing engaged Article 8. The interference was nevertheless justified in the interests of public safety and the prevention of crime. It formed part of a comprehensive arrangement for supervising and rehabilitating an offender convicted of very serious sexual offences.
3. The assessment was properly fact-sensitive. The seriousness of the original offending, the claimant’s subsequent denial of it after earlier admissions, his poor engagement with treatment, and concerns about his unwillingness to disclose relevant information supported the conclusion that the condition assisted risk management. The fact that the polygraph evidence could not itself establish a breach or automatically cause recall did not make the condition disproportionate.
4. The court expressed no doubt, on the material before it, about the Convention-lawfulness of the Offender Management Act 2007 and regulations made under it. The statutory scheme was not itself challenged.
5. The geographical limitation of the pilot did not render the condition unlawful. Magee v United Kingdom [2001] 31 EHRR 35 explained that regional legislative differences may have an objective and reasonable basis. The court noted that different considerations might arise where offenders with similar characteristics were treated differently within a single jurisdiction, but that issue did not require determination. Conducting a pilot in selected areas to test the value of a supervision method was objectively justified and proportionate.
6. The respondents were awarded their costs, not to be enforced without an order of the court. Permission to appeal was not certified as raising a matter of general public importance.