A ‘nationality requirement’ compelling defendants to declare their nationality to the court at the start of their case – part of Theresa May’s hostile environment – was ‘racialising’ courts across the country and undermining the rule of law. As a result of the Policing and Crime Act 2017, defendants in England and Wales are now required to provide the court with their nationality and, if they do not comply without ‘reasonable excuse’, face up to 51 weeks’ imprisonment. The stated purpose of policy, which applies to defendants whether they are convicted or not, was to ‘remove as many Foreign National Offenders as quickly as possible’.

According to research by the criminal defence firm Commons Legal, the vast majority of lawyers working in the criminal justice system (96%) objected to the policy. ‘Immigration enforcement should not be outsourced to the criminal courts,’ one lawyer told Commons. According to Commons, many lawyers and court workers felt that ‘inserting the issue of nationality’ into the criminal process had ‘polluted the sanctity of fair trial rights and perceptions of justice’. You can read the report here.

‘These findings are yet another blow to the integrity of our criminal justice system which is according to some in crisis and “at breaking point”,’ said Commons. ‘The unintended consequences of this policy are far reaching and it must be reviewed. The United Kingdom has one of the most historic and valued legal systems in the world, built up on principles of fairness over centuries. Equality before the law should be at the heart of this and at the heart of our shared national identity.’

Nearly eight out of 10 practitioners (79%) had clients who provided the court with their ethnicity or race rather then nationality and almost six out of 10 said this happened frequently (once to a few times per week). The research drew on interviews with 134 lawyers and practitioners and volunteer court observers who witnessed 527 criminal hearings across 33 different magistrates’ courts.

The information is stored on the court’s system for six years and on the court’s official register indefinitely. ‘We know that the information is automatically shared with the police case management system,’ the report says. ‘It can also be shared with the Border and Immigration Agency and other government departments.’

According one London lawyer, court staff in one court refused to ask the question ‘as a result of their objection to the policy’. ‘It embarrasses judges and court staff and assists neither prosecution nor defence,’ a Crown Prosecution Service barrister told researchers. ‘The sense of discomfort and fear generated by it for non-British nationals is palpable,’ another barrister said.

‘If they are from an ethnic minority background, and British, there is often a feeling that the legitimacy of their identity is being doubted or questioned. If they are not British, the impact is worse and proceedings already feel prejudiced… If the defendant is British and White, they often reassert their identity by stating they are White British when asked for their nationality.’
A barrister quoted in The State of Innocence