openJustice

Innocent before proven guilty? How a 2017 policy is bringing race into the courtroom.

New research reveals that a policy that requires defendants to state their nationality in the criminal court is racialising the courtroom and undermining the justice system.

Charlotte Threipland
18 May 2020

A new study, published today by the not-for-profit criminal defence firm Commons, found that a 2017 policy for defendants to declare their nationality in open court is causing misunderstanding amongst defendants, a significant proportion of whom give their race or ethnicity. The policy, which came in under section 162 of the Policing and Crime Act 2017, is also shown to be undermining the perception of fairness in the justice system.

The research (available here) shows that 22% of defendants think they are being asked for their race or ethnicity rather than their nationality. Almost 80% of the lawyers surveyed have had a client provide the Court with their ethnicity and/or race instead of their nationality and almost 60% of those practitioners said this happened at least once a week.

The government’s stated aim of the requirement is to “remove as many Foreign National Offenders as quickly as possible”, but deportation of foreign offenders is only mandatory when a conviction results in a custodial sentence of a year or more.

“There is no purpose in obtaining the nationality details of those who are acquitted as deportation proceedings should not be taken on the back of an acquittal save in the most exceptional circumstances” another lawyer in the study told Commons.

The policy, with which non-compliance is a criminal offence punishable by up to 61 weeks in prison, appears to have been an extension of the controversial ‘hostile environment’ measures that were introduced by David Cameron’s Conservative government from 2010. These measures, introduced largely by the Immigration Acts of 2014 and 2016, were designed to extend the reach of immigration enforcement into other areas such as the NHS, the school system and to private landlords. The nationality requirement extended it to the justice system, which many argue should be beyond the reach of such political motivations. “The point of the criminal courts is to convict and sanction the guilty, not to act as an arm of the UK Border Agency” one barrister remarked.

Javad (not his real name), a client of the firm, described his experience of being asked the question “I thought that the fact that I am Afghan might add to my punishment”. By introducing what is, in effect, a racial or ethnic element at the start of proceedings, the veil of impartiality before the law is undermined, the report concludes.

The research also found that the policy is being rolled out haphazardly across different courts, some courts not adopting the policy at all. It was found that some courts don’t even place importance on the answer given, “If they come out with nonsense e.g. ‘Shepherd’ no one bats an eyelid” a solicitor remarked. In one court, the defendant refused on principle to answer the question. Without knowing, the judge just noted down “British” anyway.

“The perception of justice is vital to the integrity of the rule of law. We are now seeing huge changes to processes in the criminal justice system as we adapt to the post-Covid world - alongside that, we should remedy mistakes of the past” Sashy Nathan, a lawyer and co-founder at Commons told us.

The research is intended to be used as a basis for litigating the legality of the policy by judicial review.

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