Government U-turns on racially biased court policy

Three years ago, a controversial policy was introduced under Theresa May’s government. Section 162 of the Policing and Crime Act, suddenly forced defendants to declare their nationality in their first appearance at a criminal court trial.

The legislation, part of the Conservative government’s “hostile environment” regime, received significant backlash. Many claimed that it contributed to the racialisation of the courts.

It was a policy that not only undermined the impartiality of the courts, but was also deeply flawed. It lacked consistency in terms of implementation, and standard practice for dealing with non-compliance, and also fundamentally lacked clarity. Many defendants expressed that the policy had left them feeling both alienated and othered.

Now, the government has U-turned on this policy, which was created with the intention to speed up the deportation of foreign criminals. This backpedal follows a recent study compiled by Commons. This report looked into 500 hearings across 30 national courts. It found that Section 162 had a negative impact on both protection against discrimination, and the perception of fairness in courts.

Section 162

From 13 November 2017, courts across England and Wales, were forced to ask defendants for their nationality, under Section 162 of the Policing and Crime Act. This declaration was mandatory for the first hearing at the Magistrates Court and Crown Court.

Prior to this Act, under the Criminal Procedure Rules 2015, defendants could only be asked their name, address and date of birth. However, Section 162, made non-compliance without a “reasonable excuse” a criminal offence. This offence was punishable with a fine, or up to 51 weeks imprisonment.

Primarily, the function of Section 162, as outlined by the Policing and Crime Bill Explanatory Notes, was to “remove” as many “Foreign National Offenders (“FNOs”) as quickly as possible to their home countries, to protect the public, to reduce costs and to free up spaces in prison”.

Impartiality undermined

The main issue that critics of the policy pointed to, was that the nationality declaration requirement, significantly undermined impartiality within the courts. As a result, it weakened both criminal justice and the rule of law.

Commenting on the issue at the time of the policy’s implementation, Martha Spurrier, the Director of Liberty, said: “Most offences have absolutely nothing to do with immigration, let alone nationality. Bringing border controls into our courtrooms is simply another manifestation of this government fuelling anti-migrant sentiment, division and suspicion”.

This perspective was echoed three years later, in the Commons’ 2020 ‘State of Innocence’ report. In it, the report states: “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 they may not receive a fair trial or may be discriminated against. Justice must not only be done but be seen to be done”.

And, it appears that this is a sentiment felt widely among legal practitioners working within the criminal justice system. Of the 134 legal practitioners surveyed, 96% did not support the policy. Moreover, the majority of them expressed that “inserting the issue” of nationality, from the outset of the criminal process, “polluted the sanctity of fair trial rights” and the “perception of justice”.

The report also found that most legal practitioners described the policy as highly “inappropriate”, and argued that it risked endangering justice by bringing it into “disrepute’’. On top of this, many found that the policy fundamentally eroded justice and more broadly the reputation of British legal system. Additionally, it was found that at least four of the practitioners believed the policy had politicised the courts.

The policy was also found to have an equally negative effect on fairness within the courts. The report stated that 90% of practitioners saw the nationality requirement as having a negative impact on the perception of fairness in the justice system. Further to this, many argued that the policy created an impression that the nationality of the defendant would have “a bearing” on the outcome of proceedings.

In relation to protection against discrimination, 69% of practitioners felt that the policy undermined this. Meanwhile, a total of 35.5%, believed that the declaration requirement impacted defendants’ right to a fair trial.

Commenting on these shocking statistics, Sashy Nathan, Solicitor and co-founder of the Commons, who led the project, said: “Our research shows the nationality requirement is being implemented in a way that is undermining fair trial rights and the perception of fairness in criminal courts. We should all want a justice system that we can be proud of and revising the rules on this issue would be a simple but meaningful step in that direction”.

Reflecting on the report’s findings, back in May, David Lammy, Shadow Justice Secretary, said: “Equality before the law is a fundamental principle of UK democracy that is admired across the world. It is unsurprising that 96% of legal practitioners do not agree with this regressive policy”.

He added: “If the purpose is to find out which offenders are foreign nationals, only those who receive a guilty verdict should be asked about their nationality at the end of the trial. It is wrong to ask this question to all defendants when they are legally innocent”.

Lack of consistency

As well significantly undermining impartiality, according to the Commons’ recent report, the policy was not implemented consistently.

Research found that despite the mandatory nature of the declaration, according to court observers, the question of nationality, was rarely asked. In fact, in 46% of cases where the nationality question was mandatory, the question was not posed. In one particular case, the report noted that a barrister had informed a volunteer court observer, that although he was aware of the policy’s introduction, it was a rare occurrence for it to be taken up in court.

It appears that the reason behind this lack of consistency, was often due to the awkwardness surrounding having to ask the nationality question. The report notes a number of responses from barristers and solicitors, who expressed that the question made them feel uncomfortable. Ultimately it was found to “embarrass” both judges and court staff.

It was also highlighted that many believed it was of no assistance to either the prosecution or the defence. In one testimony, a solicitor even said that they had experienced magistrates and district judges audibly expressing their frustration at the question, and making “sarcastic comments”.

From the report, it is apparent that the reason for such widespread embarrassment from having to ask the question, stems from the effect it had on the defendants. One barrister commented that when asked the nationality question: “The sense of discomfort and fear generated by it for non-British nationals [was] palpable”.

That being said, although the question was reportedly rarely asked, when a defendant was asked about their nationality, there was a distinct bias against those from BAME backgrounds and non-British nationals. Moreover, in 67% of the cases where the defendant was not asked about their nationality, the defendants were white.

Absence of clarity

On top of this, the question of nationality in the courtroom has consistently been met with confusion on the part of defendants. According to the practitioner survey results, the majority of defendants confused nationality with ethnicity or race (79%) and 57% of those surveyed said that this happened frequently.

The report also revealed that 79% of defendants supplied information about their ethnicity or race alongside their nationality. Of those surveyed, 66% said that was also a frequent occurrence in the courtroom.

This issue of clarity also extends to the lack of standard practice present when dealing with non-compliance. According to information obtained under a Freedom of Information Act (FoIA), in 2018, there were a total of zero prosecutions for non-compliance. However, the report states that this was not because there were no incidents of non-compliance, but rather because when a defendant did not comply, there was no sanction given.

Worryingly, the report notes that there have been incidents where a nationality has not been supplied by the defendant when asked, and the judge hearing the case has written down British. This is despite the judge not knowing the defendant’s nationality. This of course, could have serious consequences for the defendant if incorrect, as providing incorrect information is a criminal offence.

U-turn on racialisation of courts

Now, the policy has been overturned, but not for all of the reasons stated above. Instead, the U-turn on Section 162, is due to its violation of the Data Protection Act 2018. This follows a decision made by the Criminal Procedure Rule Committee, chaired by lord chief justice Lord Burnett of Maldon.

The new regime will now only require defendants to state their nationality once they have been convicted of a crime, and face prison time and deportation.

According to the Law Gazette, following the decision of the Committee, HM Courts & Tribunals Service contacted magistrates, informing them that they must stop their legal advisers asking defendants to declare their nationality. This change in policy was implemented “with immediate effect”.

Unsurprisingly, this decision has been met with resistance from those within the Conservative Party. Speaking to The Mail on Sunday, Philip Davies, a Conservative backbencher, expressed his disapproval of the policy change, and subsequently, called on Home Secretary Priti Patel to reverse the decision: “As usual, it seems that the criminal justice system thinks the rights of criminals are more important than the rights of law-abiding citizens and victims of crime. That’s what the public and I find so infuriating,” he said.

That being said, elsewhere, the policy change has been welcomed. David Lammy, Shadow Justice Minister, who wrote his own report on racial bias within the justice system in 2017, commented: “Nationality should never influence whether or not an individual is judged innocent or guilty. Labour welcomes this U-turn but it should never have been needed in the first place”.

Meanwhile, Sashy Nathan, co-founder of Commons, agreed and raised issue with the fact that “such an objectionable practice,” was allowed to go unchecked for so long.