19:16, May 17 136 0 theguardian.com

2020-05-17 19:16:04
Making defendants state nationality is 'racialising' UK courts – report

The impartiality of the criminal justice system is being undermined by the requirement that defendants declare their nationality at the start of proceedings, a report into the legislation has said.

A critical study of the Policing and Crime Act 2017 found 96% of surveyed lawyers did not support the regulations and 90% felt it had a negative impact on perceptions of fairness in the justice system.

Introduced by Theresa May as part of her “hostile environment” policy to deport more foreign criminals, section 162 of the act makes it a criminal offence, punishable by up to 51 weeks in prison, not to provide the court with details of nationality or give inaccurate information on first appearance.

The study compiled by Commons, a not-for-profit London law firm specialising in defence work, was funded by charitable trusts through the Strategic Legal Fund. It examined more than 500 cases across England and suggested the law was creating “racialised courtrooms”.

David Lammy, the shadow justice secrerary, whose own report three years ago highlighted racial bias in the criminal justice system, said the latest study exposed the regressive nature of the legislation.

“The policy is undermining criminal justice and the rule of law,” the report states. “The question is sometimes not asked when it is mandatory to do so and asked when it is non-mandatory … [It] is often not understood by defendants … A significant proportion believe they are being asked for their race or ethnicity – some have even been known to give their religion.

“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.”

The report calls for an urgent review of the law. Stating nationality only on conviction would be less discriminatory, it suggests. The study found:

96% of legal practitioners surveyed did not believe in the policy.

79% of lawyers surveyed had a client state their ethnicity or race instead of or in addition to their nationality.

Two-thirds of defendants not asked for their nationality were white.

90% of practitioners felt the nationality requirement had a negative impact on perceptions of fairness in the justice system.

Some felt the question created a sense of otherness and alienation among defendants.

Despite the criminal sanction, there were no prosecutions in 2018 for failure to provide nationality.

Sashy Nathan, the Commons solicitor who oversaw 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.”

Commenting on the survey, Lammy 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.

“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.”

A government spokesman said: “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.”

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