Commons Sense 06 – the State of Innocence?

In July 2016, in her first address as Prime Minister, Theresa May stood on the steps of Downing Street and promised to address racial and social inequalities in Britain. “If you’re Black” she said “you’re treated more harshly by the criminal justice system than if you’re white.” She vowed to make Britain a country that “worked for everyone”.

Shortly afterwards, May extended plans, initially begun by David Cameron’s coalition government, to create a “hostile environment” for illegal immigrants to Britain. As part of that drive, some of the harshest immigration policies in British history were introduced, including the controversial “right to rent” scheme – which was blamed for a wave of discrimination in the housing sector against Black and minority ethnic groups, and whose legality is now being battled out in the Supreme Court. Such policies were also blamed for creating the Windrush scandal.

A lesser-known part of the hostile environment drive came into effect in November 2017, just a few months after Theresa May had lamented racial inequality in the justice system. The clause, which attracted almost no public or Parliamentary attention at the time, made it mandatory for criminal defendants to state their nationality in open court at the start of their case. The stated intention of this law, (breach of which could result in up to 51 weeks in prison) was to remove “foreign national offenders as quickly as possible”. The government had been successfully deporting people for years and, in any case, can only do so when someone is given a custodial sentence of a year or more. It was not clear why this additional requirement, that applied to everyone regardless of guilt or innocence, was necessary.

We had an inkling – from our experience in court and from talking to peers in the criminal justice system – that the nationality requirement was not as innocuous as it might, to some, have appeared. We set out to dive deeper and find out what impact it was having on the criminal justice system. In May 2020 we published our report The State of Innocence which found that – far from making Britain a country that “worked for everyone” – the policy was entrenching racial inequalities by undermining the perception of fairness in the justice system.  

Nationality and race may be distinct concepts but they are intrinsically bound up together. We found that 22% of defendants thought they were being asked for their race or ethnicity rather than their nationality. Almost 80% of the lawyers surveyed had their client provide the Court with their ethnicity and/or race instead of their nationality and almost 60% of those practitioners said this happened at least once a week.

It is impossible to know whether answers given by defendants had an impact on the outcome of their case – i.e. whether there was actual discrimination as a result of the policy – but it is clear that it introduced an element of doubt into the fairness of proceedings, particularly for those from Black and minority ethnic backgrounds. Our client Ravina (not her real name) revealed to us that “the question made me feel uncomfortable. Growing up in the UK I have faced a lot of discrimination in my life and that question just felt like a continuation of that.” Trust in the justice system is key and the nationality requirement eroded that trust further.

Thankfully, our research reached decision makers on the Criminal Procedure Rules. In August 2020, courts were advised to stop asking the nationality question and in February 20201 the Rules were finally changed to abolish the question being asked at the beginning of every case.

This is a good result, however we are only too aware of how much further the British justice system has to go. Few of the Lammy Report recommendations have been implemented and the situation has, according to Lammy, in fact deteriorated.

There is still too much fear of ‘immigrants’ and ‘foreigners’, we need to fight even harder to call out policies that impact on the fairness of the justice system towards Black and minority ethnic groups.