Defendants will have to disclose their nationality at their first appearance before magistrates in England and Wales from next week under powers that human rights groups say will undermine the right to a fair trial.
The changes to criminal cases are being introduced as part of the government’s drive to deport more foreign criminals. Failure to disclose the information could result in a prison sentence of up to a year.
Civil liberties organisations have likened the changes to bringing “border controls into our courtrooms”. Some magistrates are also understood to be anxious that requiring defendants to reveal their nationality at the opening of the case could be prejudicial and damage the defendant’s trust in the impartiality of the criminal justice system. It has been argued that revealing it at the end of a trial would be less discriminatory.
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? The point of the criminal courts is to convict and sanction the guilty, not to act as an arm of the UK Border Agency.”
Martha Spurrier, the director of Liberty, said: “The government is well aware – thanks to David Lammy’s recent report – that racial bias is a serious problem at every level of our criminal justice system. Forcing defendants to reveal where they come from in court can only worsen that discrimination and lead to unfair trials.
“Most offences have absolutely nothing to do with immigration, let alone nationality. Bringing border controls into our courtrooms is simply another manifestation of this government fuelling anti-migrant sentiment, division and suspicion.”
Magistrates have been sent details of the new regulation introduced under section 162 of the Policing and Crime Act 2017. Requiring disclosure at the first court appearance was not in the bill but brought in through criminal procedure rules not debated by MPs.
The notice from HM Courts and Tribunals Service states: “In the magistrates court, the requirement must be imposed at the first hearing in the case where the defendant is present. The magistrates court may also impose this requirement at any subsequent hearing where, for example, the defendant did not appear at the first hearing.”
Defendants are also obliged to give their name and date of birth. The rule comes into effect on 13 November.
Meanwhile, the Migrants’ Rights Network, represented by Liberty, has launched a legal challenge to a data-sharing agreement between the Home Office, the Department of Health and the NHS, which it is claimed violates patient confidentiality by passing on information about the nationality of those seeking medical treatment.
Fizza Qureshi, the director of MRN, said: “We are gravely concerned that immigration enforcement is creeping into our public services, especially the NHS. And therefore, it is important to challenge this data-sharing agreement, which violates patient confidentiality and discriminates against those who are non-British.
“Health professionals should not have to be forced to act as immigration officers, or to have to breach patient confidentiality. We want the NHS to live up to its founding principles, to be a place of help and support for those who need it regardless of their immigration status.”
The claim is being funded through the website, Crowdjustice.
Lara ten Caten, a lawyer for Liberty, said: “We are proud to be representing Migrants’ Rights Network in their challenge to this toxic data-sharing arrangement. It undermines every principle our health service is built on – it is discriminatory, shows contempt for patient confidentiality and privacy, and is putting lives at risk.
“This case is an important step forward in the fight to dismantle this government’s ‘hostile environment’ regime, which has seen the tentacles of immigration enforcement reach into our schools and hospitals, turned trusted public servants into border guards and spread racial profiling, suspicion and fear into every corner of society.”
A government spokesperson said: “Under these changes, courts will be required to ascertain details of defendants’ nationality when they attend at the very beginning of a case.
“Where an individual is identified as a foreign national offender, this will allow the Home Office to begin consideration of deportation action as quickly as possible.
“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.”