The requirement to state one’s nationality at the first stage of criminal court proceedings was introduced by Section 162 of the Policing and Crime Act 2017 as part of the Conservative’s “hostile environment” regime. The aim was to speed up the removal of foreign criminals. The effect was to racialise the court.
Unique in its legislative requirement, lawyers, inter-governmental mandate-holders, and civil society all recognise that such a question is contrary to international human rights law and principles for fair trials.
The UK Government finally removed this arbitrary requirement “with immediate effect” following substantial evidence that the question is neither fair nor effective in The State of Innocence Report, as well as the Criminal Procedure Rule Committee’s finding that the Government policy breached privacy law.
THE POLICING AND CRIME ACT 2017
Section 159 of the Policing and Crime Act 2017 makes it an offence not to state your nationality at the police station. Section 160 makes it an offence if you subsequently fail to produce documents proving your nationality. Section 162 – the focus of this article – now also requires defendants to state their name, address, date of birth, and nationality at their firstcriminal court appearance.
The Government stated in its Policing and Crime Bill that the requirement to confirm nationality before a court sought to advance the “deport first, appeal later” powers. The rationale for this is that a Foreign National Offender (FNO) can be deported and only exercise their right to appeal from outside the UK, thereby enabling “more rapid deportation” (page 34). In essence, the Government sought to identify the “Foreign” aspects of FNO before the “Offender” aspect. The perverse effect of this is the insertion of bias into the courtroom which enhances the likelihood of the “Offender” aspect being approved. This is problematic when 90% of cases are dealt with by Magistrates who receive no legal training, and when there has been found to be an inherent problem of discrimination within the criminal justice system already. The Government further asserted in the Bill that the new statutory requirement would be “an added incentive for suspected foreign nationals to comply” with criminal procedures (page 35). To the contrary, it caused defendants, particularly non-British nationals or those from Black, Asian and Minority Ethnic (BAME) backgrounds, to feel they may be discriminated against and lose trust in the system (State of Innocence Report, page 21).
CRIMINAL PROCEDURE PRACTICE AND PERSPECTIVES
It is common criminal procedure to provide one’s nationality during the investigation. This is a policing stage of the criminal process. In typical Criminal Procedure Laws and codes there sits a clause which reads “When the defendant is interrogated for the first time, he shall be asked for…”, or similar. Such information will typically include one’s name, address, date and place of birth, nationality and citizenship, occupation and employment, education, financial and family situations, proof of personal identification, etc. See, for example, Croatia (Article 272), Mongolia (Article 202), Kazakhstan (Article 212), and Montenegro (Article 100). This is likely to be the reason sections 159 and 160 of the Policing and Crime Act 2017 were not also revoked; such a question at the policing stage is considered to be in line with international criminal procedures and human rights principles.
It is common also for the court to ask the defendant to confirm “general information about himself” at his first court appearance. This will likely include name, address, age, citizenship, etc. – that information recorded in the interrogation. It does not, however, require the defendant to state or recite such information before the court, unless an assessment is being made for his bail, in which case nationality is an indicator of risk. While I have not sought a thorough examination of the criminal procedure in all jurisdictions, I could identify no Criminal Procedure Codes or Laws elsewhere in which there exists a statutory requirement substantially similar to that in Section 162. Courts are seen to, in practice, ask personal information of a defendant, but rarely is it found to be required by the legislature. And for good reason.
The Special Rapporteur on Minorities emphasises that “international law protects persons in contact with the criminal justice system who belong to national minorities…[and] prohibits discrimination in the administration of justice and creates positive obligations to ensure [such]” (page 4 of report). The Special Rapporteur on the Human Rights of Migrants in his 2018 report referred to the importance of “Firewall protections”. He emphasised the need for “a strict and real separation between immigration enforcement and public services”, including the police and judicial system, and the idea that personal data should not be shared between immigration authorities and said public services to ensure that all persons under its jurisdiction can access justice without discrimination (paras 33 and 34). While referring to irregular migrants, a clear parallel can be drawn here; the role of deportation and access to justice should be strictly separate to ensure a fair trial.
The statutory requirement to provide such personal information in the UK is therefore exceptional and contrary to the principles of international human rights law. The requirement to state nationality is problematic in itself with its potential to impact the fairness of proceedings. Worrying also is the tacit control that the Government is seen to have over the criminal justice system and the gateway it opens to legislating for further and more invasive personal information during criminal proceedings.
THE STATE OF INNOCENCE REPORT AND ITS FINDINGS
The Report, produced in May by the non-profit law firm Commons, – a report I volunteered towards – revealed that the requirement to ask a defendant their nationality in the first court appearance was unfair, unfounded, and unattractive. Judges, lawyers, and NGO’s such as Liberty, Public Defender Service, and Free Movement campaigned and advocated for its removal, arguing it “brings border controls into our courtrooms.” The requirement speaks to the failure of the Government to separate politics from the legal process.
As stated in pages 10 and 19 of the report, 96% of legal practitioners did not support the policy and 90% felt it had real and negative impacts on the perception of fairness and impartiality of the criminal justice system. I observed first-hand the embarrassment of court staff when asking this question, as well as the confusion of the defendants upon being asked. Indeed, the embarrassment is understandable given the court’s role to decide on law and not on border control. As is the confusion when our primary association of “nationality” is that of equality and diversity forms that subsequently ask one’s ethnicity or race; these being aspects which the 22% of the defendants observed conflated with the answer to the question (page 13 of the report). The fact that a defendant is liable under Section 86A(3) of the Courts Act 2003 for a fine or almost one-year imprisonment for failure to comply perpetuates this problem. This undermined criminal justice and the rule of law and damaged public faith in the legal system, particularly of minorities.
Additionally, the report found the requirement to be ineffective; it was neither consistently enforced, nor was the punishment ever issued on the occasions when it was and the defendant refused to cooperate. In fact, only 46% of defendants were asked this question verbally in court, others were asked it administratively, and some courts routinely refused to ask the question as a result of their objection to the policy (page 9 of the report). A Freedom of Information request response also showed that there were no prosecutions under this provision in its first year of implementation, demonstrating that not only are the courts reluctant to enforce the rule, but neither are the police or Crown Prosecution Service (page 11 of the report).
PRIVACY BREACH: THE GOVERNMENT U-TURN
On 4 August 2020 it was announced that the Government had “been forced into a U-turn over defendants being required to state their nationality at their first appearance before criminal courts.” HM Courts and Tribunals Service ordered magistrates to stop asking this question with immediate effect via an email to all courts.
This reversal followed a decision by the Criminal Procedure Rule Committee that the collection of such information in fact breached the Data Protection Act 2018; the collection of such personal information was neither necessary nor justified at such an early stage in criminal proceedings. Under Article 8 of the Data Protection Act, the collection or processing of information is only lawful if “necessary for the performance of a task carried out in the public interest or in the exercise of the controller’s official authority.” In addition to this, Article 10 discusses the need for appropriate safeguards for the rights and freedoms of data subjects when it comes to criminal convictions. To the contrary, it is not necessary for the public interest as, first, the public interest includes fairness of proceedings and second, the public interest in deporting foreign offenders is satisfied by obtaining nationality following conviction. In fact, the clause could have the opposite of its intended effect by leading to lengthier and more costly appeals. Moreover, identifying nationality at such an early stage can only perpetuate the problem of differential treatment in the criminal process identified by the Lammy Review produced the very same year as this legal requirement was introduced – a problem echoed by the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance at the conclusion of her Mission to the United Kingdom of Great Britain and Northern Ireland in 2018 – and therefore fails to safeguard the privacy and equality rights of criminal defendants.
The question of nationality can be asked at a later stage in proceedings – following conviction – thereby satisfying both the Government interest in enabling deportation as well as the public trust in a fair criminal process.
CONCLUSION
While this is certainly a welcome response to the pressure mounted on ministers, as well as a necessary one to the finding for illegality, the very fact that “such an objectional practice” operated in the first place without adequate consultation or impact assessment is seriously concerning (Commons co-founder Sashy Nathan). The Government should take stock of the lessons-learned here and ensure it takes the appropriate steps before it interferes with the criminal justice system in the future. The Government should also direct its policies to implementing the recommendations of the Lammy Report and Special Rapporteur as opposed to those which run contrary to its positive human rights obligations.
Maria is an LLM Human Rights graduate from Central European University in Budapest, Hungary. She is a volunteer for multiple human rights-focused organisations, a locum support worker and an aspiring barrister.