Defendants no longer required to state nationality at the start of criminal cases

9 February 2021 by Samuel March

On 8 February 2020, small but significant changes were made to the Part 3 (Case Management) of the Criminal Procedure Rules and Practice Directions 2020 (“CrimPR”).  These changes remove the requirement that defendants in criminal trials provide their nationality to the court at preliminary hearings. The question is now to be asked only where a court passes an immediate or suspended custodial sentence.

BACKGROUND

The CrimPR are rules pertaining to procedure in the criminal courts of England and Wales, namely the Magistrates’ Court, the Crown Court, the Court of Appeal and, in extradition appeal cases, the High Court. CrimPR Part 3 contains rules about case management. This includes rules about pre-trial court hearings, such as the hearings where defendants are asked whether they are going to plead guilty or not guilty and when courts give directions to make sure that everyone prepares properly.

Prior to this week, rule 3.16 (Pre-trial hearings in a Magistrates’ Court: general rules) contained the following provision:

(5) The court―

(a) at the first hearing in the case must require a defendant who is present to provide, in writing or orally, his or her name, date of birth and nationality; and

(b) at any subsequent hearing may require such a defendant to provide that information by those means.

A similar provision was to be found in rule 3.22 (Pre-trial hearings in the Crown Court: general rules):

(5) The court―

(a) at the first hearing in the Crown Court must require a defendant who is present―

(i) to provide, in writing or orally, his or her name, date of birth and nationality, or

(ii) to confirm that information by those means, where the information was given to the magistrates’ court which sent the defendant for trial; and

(b) at any subsequent hearing may require such a defendant to provide or confirm that information by those means.

At the time of writing, this is the form of words that still appears on legislation.gov.uk. Section 86A of the Courts Act 2003 as amended by s.162 of the Policing and Crime Act 2017, require criminal courts to require a defendant to state their name, date of birth and nationality at a stage or stages of proceedings specified by the CrimPR.

In short, the effect of these provisions was to impose a mandatory requirement on criminal courts to have defendants state their nationality at first appearance hearings in the Magistrates’ Court and at the first hearing of a given case in the Crown Court.

Refusal by the defendant to comply could attract criminal sanctions. Section 86A(5) of the Courts Act 2003 (as amended) provides that a person commits a criminal offence if, without reasonable excuse, they fail to comply with such a requirement.

In July, 2020, the Rule Committee received a paper suggesting that this practice, as required by the CrimPR, was incompatible with the data protection principles prescribed by the Data Protection Act 2018. It suggested that the collection of a defendant’s nationality under section 86A could not lawfully take place unless and until that defendant had been convicted and had received such a sentence as would render a foreign national offender susceptible to deportation under immigration law. The Committee accepted that suggestion.

THE NEW RULES

The offending provisions have been rephrased in new rules, which took effect this week. Although the new rules were not at time of writing reflected on the legislation.gov.uk website, the updated versions can be downloaded part by part on the relevant gov.uk page. Rule 3.16 now reads

(5) The court―

(a) at the first hearing in the case must require a defendant who is present to provide, in writing or orally, his or her name and date of birth; and

(b) at any subsequent hearing may require such a defendant to provide that information by those means.

Similarly, rule 3.22 now reads

(5) The court―

(a) at the first hearing in the Crown Court must require a defendant who is present―

(i) to provide, in writing or orally, his or her name and date of birth, or

(ii) to confirm that information by those means, where the information was given to the magistrates’ court which sent the defendant for trial; and

(b) at any subsequent hearing may require such a defendant to provide or confirm that information by those means.

The provisions are nearly identical, but the ‘nationality’ requirement has been removed, meaning that defendants are now only required to provide their name and date of birth. The amendments were made by virtue of Rules 6(d) and 6(e) of The Criminal Procedure (Amendment) Rules 2021.

Consequent amendments were also made to Part 24 (Trial and sentence in a magistrates’ court) and Part 25 (Trial and sentence in the Crown Court) by Rules 12(c) and 13(c) of The Criminal Procedure (Amendment) Rules 2021 respectively. These add statutory requirements to those already applied by custody staff and ensure that the defendant be required to provide his or her nationality only where the court passes a sentence of immediate imprisonment or detention or orders a suspended sentence of imprisonment.

COMMENTARY

The old provisions had been the subject of considerable criticism, as the requirement for defendants to declare their nationality prior to trial was arguably prejudicial. ‘The State of Innocence’ report by Commons in 2020 argued that the old policy was undermining criminal justice and the rule of law and having a negative impact on the perception of fairness in the justice system. The report highlighted a number of concerning statistics in relation to the old provisions:

• 96% of the legal practitioners surveyed did not believe in the policy;
• 90% of practitioners surveyed felt that the nationality requirement has a negative impact on the perception of fairness in the justice system;
• 79% of the legal practitioners surveyed had had a client provide the Court with their ethnicity or race instead of or in addition to their nationality (with almost 60% saying that this happened frequently);
• 69% of practitioners surveyed felt that the nationality requirement had a negative impact on protection against discrimination; and
• 35.5% of practitioners surveyed felt that the requirement had an impact on the right to a fair trial.

Court staff including District Judges, Magistrates and Legal Advisors self-reported as being embarrassed about asking the question and that on occasion they felt it necessary to apologise for doing so.

Unsurprisingly then, campaigners such as Commons Legal have welcomed the move, calling it “one positive step towards a fairer, less racist justice system.” David Lammy MP, Labour’s Shadow Justice Secretary, also took to Twitter yesterday, responding to Commons, to say that

It was always wrong to ask defendants to state their nationality before they had been convicted of any crime. Congratulations to all those who campaigned to end this unfair, unnecessary and discriminatory practice.

The changes themselves have been implemented quietly. The official announcement from the Criminal Procedure Rule Committee simply reads

The first group of changes to the Criminal Procedure Rules made by the Criminal Procedure (Amendment) Rules 2021 came into force on Monday 8 February 2021. The Criminal Procedure Rules and Practice Directions 2020 page now includes those changes.

Samuel March is a pupil at 5 Paper Buildings. He tweets at @Sam_Oscar_March