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Making defendants give their nationality “undermines criminal justice”

Making defendants give their nationality “undermines criminal justice”

The requirement for criminal defendants to give their nationality in court is corrupting the justice system and gives the impression of bias against ethnic minorities, a new report has found. Commons, a non-profit criminal defence firm, says that the rule — authorised by section 162 of the Policing and Crime Act 2017 — is detested by criminal lawyers and judges and should be reviewed immediately with a view to abolition.

The report bills itself as the first examination of the effects of the “nationality requirement” since it was introduced in 2017. The headline findings:

  • A startling 96% of the 134 criminal lawyers surveyed opposed the policy.
  • Around 60% of lawyers reported clients regularly being confused by the requirement, giving their ethnicity instead of or as well as their nationality.
  • Two thirds of cases where the nationality requirement is overlooked involve white defendants.
  • There were zero prosecutions for failing to provide nationality in 2018.

One court is reportedly engaged in a sort of civil disobedience, refusing to ask the nationality question in open court at all “because of their objection to the policy”.

The practice also leads to a general mockery of the court process, with defendants giving their nationality as “Shepherd” or “Martian”. The troubled ex-footballer, Paul Gascoigne, reportedly answered “White Anglo-Saxon Protestant”.

The reports concludes that “the policy is undermining criminal justice and the rule of law” and affecting the “perception of fairness in the justice system”. It calls for the nationality requirement to be urgently reviewed by the government, or challenged in the courts.

CJ McKinney is Free Movement's editor. He's here to make sure that the website is on top of everything that happens in the world of immigration law, whether by writing articles, commissioning them out or considering pitches. CJ is an adviser on legal and policy matters to the Migration Observatory at Oxford University, and keeps up with the wider legal world as a contributor to Legal Cheek. Twitter: @mckinneytweets.