Report finds non-British nationals and ethnic minorities feel they may not receive a fair trial
Not-for-profit law firm Commons says requirement to declare nationality in criminal proceedings is undermining equality before the law
19 May 2020
The not-for-profit criminal law firm Commons this week published new research on how the requirement to declare nationality in criminal proceedings is undermining equality before the law.
The 40-page report can be downloaded here.
It will be of interest to immigration lawyers and it was recommended on Twitter by the Joint Council for the Welfare of Immigrants (JCWI) as being "really important new research … showing the damage done by a little-known element of the Hostile Environment."
The research was funded through a grant made by the Strategic Legal Fund, which is managed by the Immigration Law Practitioners' Association (ILPA).
For the report, Commons collected evidence from 500 hearings across 30 national courts and the views of 130 lawyers.
The report notes that the 'nationality requirement' compels all defendants in criminal proceedings to declare their nationality to the court at the start of their case and it is a separate criminal offence for failure to comply.
Commons finds that the that the policy, which was introduced under the Policing and Crime Act 2017, has "racialised courtrooms across the country" and is "undermining criminal justice and the rule of law."
While the stated purpose of the policy is for the removal of foreign offenders, Commons says that if this was the case, a defendant's nationality only becomes potentially relevant upon their conviction at the end of the case not at the start.
The report's key findings are as follows:
• 96% of the legal practitioners surveyed did not believe in the policy. Many reported that inserting the issue of nationality into the criminal process from the outset has polluted the sanctity of fair trial rights and perceptions of justice.
• 79% of the legal practitioners surveyed have had a client provide the Court with their ethnicity or race instead of or in addition to their nationality. Almost 60% said this happened frequently (once to a few times per week). 35% said it happened every now and again and only 8% said it rarely happened.
• Nationality was also conflated with race and / or ethnicity in 22% of the hearings we observed. This is normally out of confusion "Black Caribbean" and sometimes it is said with an element of pride, "White Anglo-Saxon Protestant".
• Court staff including District Judges, Magistrates and Legal Advisors are reported as embarrassed about asking the question and on occasion find it necessary to apologise for doing so.
• Two thirds of defendants who were not asked for their nationality by the court were observed to be white.
• Defendants reported that they did not understand why the court needed information about their nationality and wondered if it would affect the outcome of their case or their sentence.
• Despite the criminal sanction, there were no prosecutions in 2018 for failure to provide nationality and there remains little clarity as to how such prosecutions would be brought.
Commons is concerned that the policy is having an impact on the perception of fairness in the justice system: "Some defendants, particularly non-British nationals or those from ethnic minority backgrounds, feel that they may not receive a fair trial or may be discriminated against. Justice must not only be done but be seen to be done. Trust in our justice system is crucial for the rule of law."
The report concludes that the policy needs to be urgently reviewed by the Government and if this does not happen, its legality should be scrutinised by the courts.
In response to the report, a Government spokesman told the Guardian: "We are absolutely committed to removing foreign national offenders from the UK and continue to work closely with international governments to increase the number of prisoners deported.
"These changes help identify foreign national offenders earlier, meaning the Home Office can begin deportation action sooner – saving the taxpayer money as a result."