The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill, which received another bashing in the House of Lords this week, is not a particularly friendly piece of legislation if you happen to be a non-UK citizen. As well as removing all immigration matters from the scope of legal aid – the only two exceptions being asylum and detention cases – it provides for a new exception to the Rehabilitation of Offenders Act, so that for specified immigration and nationality purposes, including applications for leave to enter or remain in the UK, British citizenship applications, and action to deport or remove someone from the UK, the concept of a ‘spent’ conviction will, quite simply, not apply. Alongside this, it introduces new types of conditional cautions for foreign national offenders that could result in long-term UK residents agreeing to removal from the country under threat of prosecution.

Unlike the more straightforwardly inequitable provisions on immigration legal aid and ‘no rehabilitation for certain immigration and nationality purposes’, clause 126, which introduces the new conditions to be attached to cautions for foreign national offenders, seems at first sight to be relatively benign. In essence, the clause provides for foreign nationals who are deemed to have no leave to enter or remain in the UK – so, for instance, illegal entrants and overstayers – to agree to their removal from the UK and, potentially, their exclusion for a specified period of time, instead of being prosecuted for the offence they are accused of. According to Crown Prosecution Service guidance, any summary only offence, and a number of triable either way offences may be disposed of by means of a conditional caution, so the range of offences such cautions could be applied to is broad.

Due process
To give just one example, the implementation of these cautions could mean that foreign nationals accused of document offences are diverted from prosecution and possibly imprisonment by agreeing to return to their country of origin, an approach that was trialled during a joint Ministry of Justice, UK Border Agency and CPS pilot for a six-month period in 2010-11 (although a freedom of information request by BID has subsequently revealed that the numbers identified as suitable to be offered the caution were low, and the numbers agreeing to removal even lower). Given that these offenders pose no risk to the public, and taking into account the substantial cost – both financially, to the taxpayer, and personally, to the foreign national concerned – of imprisoning someone who may well be removed or deported anyway, this seems, perhaps, an entirely sensible piece of legislation.

Closer scrutiny, however, reveals a raft of problems with the provision, and a very significant risk that due process will be bypassed. We are particularly concerned that foreign nationals deemed suitable for and offered these cautions will be unable to access adequate immigration advice, which, given the nature of the disposal, is essential. Criminal defence solicitors, of course, are not qualified to provide immigration advice, and although such advice can be accessed in police stations via the immigration advice line, this is delivered as a 30-minute conversation with no sight of papers. It is, moreover, often issued with the caveat that a local legal adviser should be sought for more detailed advice.

Since cautions, of course, are intended as a swift and efficient means of disposing of lower level offences, it is questionable, however, how readily an individual’s need for detailed immigration advice will be accommodated. The government’s legal aid cuts also mean that even if the opportunity to get in-depth advice is afforded, from April 2013, such advice will be almost impossible to access for those who are unable to pay.

There is, therefore, a very real danger that many foreign nationals who are judged to meet the criteria for these cautions will accept them without having a full understanding of the consequences of doing this, in order to avoid prosecution. Perhaps even more worryingly, there is also a risk that the lack of ready access to immigration advice, alongside the threat of prosecution, may result in cautions being accepted by foreign nationals who do, in fact, have a strong claim to remain in the UK – for instance, those who have been resident in the UK for a significant period of time, and have an Article 8 human rights claim to remain as a result of their connections here. As such, they may agree to their removal from the UK and exclusion for a specified period of time (the legislation gives no indication of the timescales that will operate for exclusion) without fully exploring their right to remain, and when prosecution of the offence may not have resulted in deportation.

PACE
These worries are only compounded by the Bill’s removal, under clause 125, of the need for CPS authorisation for conditional cautions, meaning that these cautions could be imposed on the authority of a custody sergeant alone. There is also a lack of obvious protection from these provisions for vulnerable adults. Though the Police and Criminal Evidence Act (PACE) 1984 codes clearly state that custody officers should call an appropriate adult to support the detainee if there is any doubt about his or her mental state or capacity, there is, as the National Appropriate Adult Network has highlighted, wide variability in the identification of mental vulnerability across police forces – this is likely to be even more problematic in relation to foreign nationals, who may speak little or no English – as well as in the provision of appropriate adult services. It is, moreover, not clear what protection would be afforded other vulnerable groups, including age-disputed foreign national minors, and victims of trafficking.

Finally, we have concerns about assessments of removability at the time a person is considered for a conditional caution. For a removal or deportation from the UK to take place, the individual concerned needs to be in possession of some form of travel or identity document acceptable to the receiving country, and removals to the country in question must not be suspended. In addition, where there are outstanding court hearings relating to immigration issues or family law issues, removal from the UK is not possible. It is, however, not clear at what point the removability of a foreign national judged suitable for this type of caution will be examined in the police station. Those who accept cautions will, presumably, be sent to a removal centre, where it may well transpire on the basis of an inadequate assessment that they are not actually removable within a reasonable period of time, creating a risk of unlawful detention and subsequent litigation.

Though flickers of a more progressive criminal justice policy are evident in LASPO – for instance, in the entirely sensible proposals to limit the use of remand, and to abolish the deeply unjust indeterminate sentence for public protection  – this has not yet, unfortunately, been extended to foreign national offenders. A more sophisticated approach is urgently needed; a solid starting point would be the removal of clause 126 and, indeed, the other discriminatory provisions we have highlighted, from the Bill.

This article is written with Dr Adeline Trude of Bail for Immigration Detainees