This guidance post examines section 76 of the Domestic Abuse Act 2021 (“DAA 2021”), which extends the statutory polygraph-on-licence regime in England and Wales to offenders convicted of specified domestic abuse offences. The primary legislative texts are listed in the Sources section below.

Key Points

  • Section 76 of the DAA 2021 amends section 28 of the Offender Management Act 2007 (“OMA 2007”) to bring specified domestic abuse offences within the mandatory polygraph-on-licence regime.[1]
  • The newly covered offences include murder, breach of a restraining order, specified violent offences, controlling or coercive behaviour, and breach of a domestic abuse protection order — provided the offending involved domestic abuse as defined in section 1 of the DAA 2021.[2]
  • The existing statutory protection in OMA 2007 section 30 — barring the use of polygraph statements and physiological reactions in criminal proceedings against the offender — applies equally to the domestic abuse cohort.[3]
  • The regime applies in England and Wales only, to adults (aged 18 or over on release) serving relevant custodial sentences of 12 months or more, or life sentences.[4]
  • Section 76 came into force on 5 July 2021 in relation to specified areas for a specified period.[5]

Background: The Pre-Existing Polygraph Regime

The statutory basis for mandatory polygraph testing of offenders on licence in England and Wales is found in Part 3 of the Offender Management Act 2007, specifically sections 28 to 30.[6] Under this framework, the Secretary of State may include a polygraph condition in the licence of an eligible offender upon release from custody.

Prior to the DAA 2021 amendments, section 28 applied exclusively to persons convicted of “a relevant sexual offence” — defined by reference to Schedule 3 of the Sexual Offences Act 2003 and Part 2 of Schedule 15 to the Criminal Justice Act 2003.[7] For a broader overview of how this regime sits within the legislative landscape, see our UK Legal Framework page.

What Section 76 Does

Section 76 of the DAA 2021 amends OMA 2007 section 28 to extend the polygraph-on-licence power beyond sexual offences to encompass a defined category of domestic abuse offences.[8] The mechanism is as follows:

  • Subsection (2) of section 76 replaces the previous reference to “a relevant sexual offence” in OMA 2007 s.28(2) with a broader reference to “an offence within subsection (3A)”.[9]
  • Subsection (4) inserts a new subsection (3A) into OMA 2007 s.28, which defines the qualifying offences in two categories: (a) a “relevant offence involving domestic abuse” (defined in new subsections (3B) and (3C)), and (b) a “relevant sexual offence” (retaining the existing definition in subsection (4)).[10]

The effect is additive: the pre-existing sexual offence cohort remains within scope, and a new domestic abuse cohort is added alongside it.

Offences Newly Brought into Scope

The new subsection (3B) defines a “relevant offence involving domestic abuse” as either:

  1. An offence listed in subsection (3C) where the offending involved behaviour amounting to domestic abuse within the meaning of section 1 of the DAA 2021;[11] or
  2. An offence under section 39 of the DAA 2021 — breach of a domestic abuse protection order (“DAPO”).[12]

The offences listed in subsection (3C) are:[13]

  • (a) Murder
  • (b) Breach of a restraining order — under section 5 of the Protection from Harassment Act 1997
  • (c) Specified violent offences — those specified in Part 1 of Schedule 15 to the Criminal Justice Act 2003
  • (d) Controlling or coercive behaviour — under section 76 of the Serious Crime Act 2015

The “Domestic Abuse” Qualification

Offences under subsection (3C) only fall within the polygraph regime where the offending behaviour amounted to domestic abuse as defined in DAA 2021 section 1. A conviction for, say, a violent offence listed in CJA 2003 Schedule 15 Part 1 would not automatically engage the polygraph condition unless the offending involved domestic abuse. The exception is breach of a DAPO under DAA 2021 s.39, which is a qualifying offence in its own right without additional proof of domestic abuse behaviour.[14]

Comparison: Pre-2021 and Post-2021 Scope

Offences within the polygraph-on-licence regime: before and after section 76
Category Pre-DAA 2021 (OMA 2007 s.28 original) Post-DAA 2021 (OMA 2007 s.28 as amended)
Relevant sexual offences (SOA 2003 Sch 3; CJA 2003 Sch 15 Pt 2) In scope[15] Remains in scope — now within s.28(3A)(b)[16]
Murder (where domestic abuse involved) Not in scope In scope — s.28(3C)(a)[17]
Breach of restraining order — PHA 1997 s.5 (where domestic abuse involved) Not in scope In scope — s.28(3C)(b)[18]
Specified violent offences — CJA 2003 Sch 15 Pt 1 (where domestic abuse involved) Not in scope In scope — s.28(3C)(c)[19]
Controlling or coercive behaviour — SCA 2015 s.76 (where domestic abuse involved) Not in scope In scope — s.28(3C)(d)[20]
Breach of domestic abuse protection order — DAA 2021 s.39 Not in scope (DAPO regime did not exist) In scope — s.28(3B)(b)[21]

Sentence Threshold and Eligibility

Section 76 also makes a minor technical amendment to the sentence-threshold wording. The original OMA 2007 s.28(3)(a) referred to a relevant custodial sentence “for a term of twelve months or more”. DAA 2021 s.76(3) substitutes this with “that is not for a term of less than twelve months”.[22] In practice, the effect is the same — a fixed-term sentence of at least 12 months — but the revised phrasing aligns more precisely with legislative drafting conventions.

To summarise the eligibility criteria under OMA 2007 s.28 as amended, an offender must:

  1. Be serving a relevant custodial sentence — either a life sentence or a fixed-term sentence of 12 months or more;[23]
  2. Have been convicted of an offence within new subsection (3A) — i.e., either a relevant domestic abuse offence or a relevant sexual offence;[24]
  3. Be released on licence by the Secretary of State; and
  4. Be aged 18 or over on the date of release.[25]

Statutory Protection: OMA 2007 Section 30

One of the most significant features of the statutory polygraph regime is the safeguard contained in OMA 2007 section 30. This provision was enacted as part of the original 2007 Act and applies to all offenders subject to a polygraph licence condition — including, following the DAA 2021 amendment, those in the domestic abuse cohort.

Inadmissibility in Criminal Proceedings

Section 30 provides that evidence of any statement made by the released person while participating in a polygraph session, and any physiological reactions recorded during a polygraph examination, may not be used in any criminal proceedings against that person.[26]

The protection is framed in absolute terms: the bar applies to “any proceedings … for an offence”.[27] The two categories of excluded evidence are:

  • Any statement made by the released person while participating in a polygraph session; and
  • Any physiological reactions of the released person while being questioned in the course of a polygraph examination.[28]

This protection carries over to the domestic abuse cohort by operation of the existing statutory framework: section 30 cross-refers to the definitions of “polygraph examination” and “polygraph session” in section 29, not to any particular offence category.[29] There was no need for the DAA 2021 to amend section 30; its protections apply automatically to any offender subject to a licence condition under the amended section 28.

Operational Framework: Section 29

OMA 2007 section 29 sets out the practical requirements of a polygraph condition. It requires the released person to participate in polygraph sessions conducted for two stated purposes: monitoring compliance with other licence conditions, and improving the management of the offender during the licence period.[30]

Key operational provisions include:

  • Polygraph examinations must use equipment approved by the Secretary of State;[31]
  • “Appropriate officers” — probation service officers — must follow guidance issued by the Secretary of State;[32]
  • The Secretary of State may make rules, via statutory instrument subject to the negative procedure, governing session conduct, operator qualifications, record-keeping, and reporting.[33]

These provisions apply identically to the domestic abuse cohort. The regime is administered by HMPPS (His Majesty’s Prison and Probation Service), which has statutory responsibility for the management of offenders on licence in England and Wales. Examiners and commissioners seeking further information on professional standards may wish to consult the BPS Standards of Practice.

Geographic Extent and Commencement

Section 76 has effect in England and Wales only, consistent with the geographic extent of the OMA 2007 polygraph provisions.[34] Scotland and Northern Ireland have separate legislative arrangements for offender management and are not affected by this provision.

The commencement note records that section 76 came into force on 5 July 2021 “in relation to specified areas for the specified period”.[35]

Timeline

2007

The Offender Management Act 2007 receives Royal Assent. Sections 28–30 create the statutory polygraph-on-licence regime for relevant sexual offences in England and Wales.[36]

29 April 2021

The Domestic Abuse Act 2021 receives Royal Assent. Section 76 provides for the extension of mandatory polygraph testing to domestic abuse perpetrators on licence.[37]

5 July 2021

Section 76 comes into force in relation to specified areas for the specified period.[38]

Glossary

DAA 2021
Domestic Abuse Act 2021. A statute of the Parliament of the United Kingdom addressing the recognition, prevention, and management of domestic abuse.
OMA 2007
Offender Management Act 2007. The primary statute establishing the polygraph-on-licence regime for offenders in England and Wales.
HMPPS
His Majesty’s Prison and Probation Service. The executive agency of the Ministry of Justice responsible for the management of prisons and the supervision of offenders on licence in England and Wales.
DAPO
Domestic Abuse Protection Order. A civil order introduced by the DAA 2021 to protect victims of domestic abuse; breach of a DAPO is a criminal offence under DAA 2021 s.39.
Polygraph condition
A condition attached to an offender’s licence requiring participation in polygraph sessions, imposed under OMA 2007 s.28.
Relevant custodial sentence
As defined in OMA 2007 s.28(3): a life sentence or a fixed-term sentence of 12 months or more.
Relevant sexual offence
An offence specified in Schedule 3 to the Sexual Offences Act 2003 or Part 2 of Schedule 15 to the Criminal Justice Act 2003, as defined in OMA 2007 s.28(4).
Relevant offence involving domestic abuse
An offence listed in OMA 2007 s.28(3C) where the conduct amounted to domestic abuse under DAA 2021 s.1, or breach of a DAPO under DAA 2021 s.39. Defined in OMA 2007 s.28(3B) as inserted by DAA 2021 s.76.
CJA 2003
Criminal Justice Act 2003. A wide-ranging criminal justice statute; Schedule 15 Part 1 lists specified violent offences and Part 2 lists specified sexual offences.
PHA 1997
Protection from Harassment Act 1997. Section 5 of the Act creates the offence of breach of a restraining order.
SCA 2015
Serious Crime Act 2015. Section 76 of the Act creates the offence of controlling or coercive behaviour in an intimate or family relationship.
SOA 2003
Sexual Offences Act 2003. Schedule 3 lists offences that are “relevant sexual offences” for the purposes of various statutory provisions, including the polygraph regime.
Negative procedure (statutory instrument)
A form of parliamentary procedure for secondary legislation. An instrument laid before Parliament under the negative procedure becomes law unless either House passes a resolution to annul it within a specified period.
PCSOT
Post-Conviction Sex Offender Testing. A programme of polygraph examinations administered to convicted sex offenders, typically as a condition of community supervision or licence.
BPS
British Polygraph Society. An unincorporated UK membership body for polygraph professionals, founded in 2017.

Sources

  1. Domestic Abuse Act 2021, section 76. legislation.gov.uk. https://www.legislation.gov.uk/ukpga/2021/17/section/76
  2. Offender Management Act 2007, section 28 (as amended by DAA 2021 s.76). legislation.gov.uk. https://www.legislation.gov.uk/ukpga/2007/21/section/28
  3. Offender Management Act 2007, section 29. legislation.gov.uk. https://www.legislation.gov.uk/ukpga/2007/21/section/29
  4. Offender Management Act 2007, section 30. legislation.gov.uk. https://www.legislation.gov.uk/ukpga/2007/21/section/30

This post is for general information purposes only and does not constitute legal advice. It summarises statutory provisions as at the date of publication. For advice on specific cases or operational procedures, consult a qualified legal practitioner or the relevant statutory body (HMPPS). The British Polygraph Society has no role in the statutory polygraph regime administered by HMPPS.

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