In criminal proceedings, often the Defendant will stand and confirm their identity; name, date of birth and address. Evidently, this is necessary to ensure the right person is in the dock. In 2017, by virtue of section 162 of the Policing and Crime Act 2017, regulations do not require Defendants in England and Wales to prove the court with their nationality in addition to other information. If the Defendant fails to do so without ‘reasonable excuse’, they will be punishable with up to 51 weeks imprisonment or fine or both. These changes allowed to speed up deportation of foreign criminals.
Inevitably the question arises – how will this impact the impartial and fair nature that comes with the criminal justice system? Racial bias is a serious problem. It is rising not only in the United Kingdom but also in countries all over the world. Forcing Defendants to reveal where they come from in court will potentially only worsen discrimination and lead to unfair trials.
The function of criminal courts
The criminal courts primarily need to determine if an accused is guilty or not and impose any sanction as it sees fit. The new rule gives the criminal courts power to act as a partner of the UK Border Agency. This should not be the case. Bringing border controls into the criminal courtrooms will likely affect the Defendant’s trust in the court’s fairness.
Penelope Gibbs, the director of Transform Justice and a former magistrate said “What relevance does a Defendant’s nationality have if they are pleading not guilty? Or if they are accused of a crime which is not imprisonable?”. On top of that, will the court disproportionately give a custodial sentence or bail?
In addition to the concerns of the effects to this new rule, there is also very little information available as to how this new law will be implemented. In the event the Defendant fails or refuses to state their nationality – how will the court prove the charge? Will it treat it as contempt of court?
Source: ILPA, October 2018
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