Hostile Environment Creeps Into Criminal Courts

Defendants now required to state nationality: Anyone who has witnessed criminal proceedings will be familiar with seeing the defendant asked to stand and confirm their identity: name, date of birth and address. It’s clear why this is necessary – the court needs to identify them and verify that the person in the dock is the person who should be in the dock. However, last year an additional question – which had not been necessary in hundreds of years of criminal justice – was asked.

By virtue of section 162 of the Policing and Crime Act 2017, as amended by The Criminal Procedure (Amendment No. 4) Rules 2017, defendants in England and Wales are now required to provide the court with their nationality. Failure to provide this information, or providing incomplete or inaccurate information, without a ‘reasonable excuse’ is punishable with up to 51 weeks imprisonment, a fine or both.

At first blush this seems an innocuous additional way in which to identify the defendant. However, the government’s stated purpose for a nationality requirement policy is to ‘remove as many Foreign National Offenders as quickly as possible’ (see here). As there is currently little political objectivity on foreign alleged criminals, this policy passed through Parliament without much scrutiny or criticism.

Recent scandals such as the treatment of Windrush migrants have begun shedding light on the encroachment of immigration enforcement into various areas of public services, causing wider concern of how the system is operating. Recent legislation has required employers, landlords, doctors and teachers to conduct immigration checks, and the new requirement continues this expansive reach of immigration control outside of immigration arenas by requiring magistrates’ and judges to take on the task of border guards.

 Nationality information must be provided to any court, during any stage of the proceedings, regardless of whether immigration status has a bearing on the substantive offence or issues of bail. The disclosure of this information is required under threat of imprisonment for non-compliance, despite whether the individual is ever convicted of a criminal offence, and despite whether the substantive offence results in a term of imprisonment or even carries with it a term of imprisonment. It is also retained regardless of whether the defendant is acquitted, or the proceedings are discontinued and becomes publicly available as a consequence of having been said in open court.

Read more: Audrey Cherryl Mogan, ‘The Justice Gap’,

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