Sami Halpern considers whether the Policing and Crime Bill 2016’s requirement to confirm nationality is a step too far?
If somebody asked you about your thoughts on the Policing and Crime Bill 2016 (“the Bill”), your response might well be along the lines of “you what?” and, if that were the case, you’d probably be in good company.
The Policing and Crime Bill 2016
Very little is known about the Bill, which is silently working its way through the legislative process. Yet it would, if enacted, have a major impact upon policing in this country, both in terms of police powers and accountability, and also criminal justice more generally.
Some of the changes being proposed in the Bill are positive, in that certain groups of vulnerable persons would be better protected.
Young People detained in Police Custody
For example, existing law would be amended so that 17-year olds are treated as children under all circumstances whilst in police custody, and a prohibition would be introduced on police cells being used as a “place of safety” for those under 18 who have committed no crime but who are experiencing mental health problems. Such developments are progressive and would, of course, be welcomed.
It is not, however, all good news. The Bill contains a number of concerning proposals, perhaps none more so than the requirement to confirm nationality.
What exactly is the ‘requirement to confirm nationality’?
The requirement to confirm nationality would confer upon police powers to require suspected foreign nationals to provide their nationality following arrest either by stating it or by producing their nationality document(s) within 72 hours. This duty of disclosure would further extend to defendants engaged in the criminal proceedings. A failure to comply with these requirements, without reasonable excuse, would be a criminal offence, punishable by up to one year’s imprisonment and/or a fine.
Why do we need to confirm nationality?
The powers are needed, say the Government, to help to identify foreign national offenders early in the criminal investigation process, to facilitate immigration checks, and to direct overseas criminal records checks to the right countries. All this, the Government says, is crucial to speeding up the removal process further down the line. These removals will serve to free up prisons, it is said, and, most importantly, better protect the public.
So what’s the big deal?
You may well be thinking, isn’t all of this a good thing?
Whilst the Government’s aims in introducing this legislation – not least the protection of its citizens – would likely receive overwhelming public approval, the way in which any such law would (inevitably) be practically enforced ought to be a cause of great concern, as it may well serve to do more harm than good. Why is this, then?
First, the measure is discriminatory by its very nature. Individuals will be targeted by the police because of how they look, their accent and their skin colour, and people from minority backgrounds will find themselves disproportionality challenged. The measure would impact upon British nationals and foreign nationals alike and may serve to crystallize the perception that there is a culture of unlawful discrimination within the police. Of even greater concern, perhaps, disclosure of nationality in criminal proceedings may well lead to unfair trials.
Police and Community Relationship
Secondly – and, perhaps, more worryingly, for the authorities at least – the measure’s enforcement might lead to a further breakdown in the relationship between police and the communities they serve. Comparisons have been drawn by observers between this measure and the notorious “SUS” law (abolished in 1981 after the Brixton riots) and other more recent stop and search powers, and also Arizona’s anti-immigration law. Effective policing requires a working relationship between police and the communities they operate in, but this relationship is fragile (as demonstrated most recently by the Hillsborough inquest verdict). At best, the proposed measure is likely to undermine the police/community relationship and lead to a breakdown in trust, which may take many years to repair. At worst, however, history tells us that the measure’s enforcement may lead to a backlash by affected groups, and to riots and public disorder.
Finally, the measure puts the police back at the centre of enforcing immigration law, in a way that blurs the lines of the roles and functions of various agencies of the State, and it also has the potential to create an identity card-type system “through the back door” as individuals may be inclined to hold relevant documentation on them (for example, passports) so as not to fall foul of the law.
Overall, the proposed requirement to prove nationality seems to be a dangerous development. It is a discriminatory policy which is likely to damage the relationship between police and the communities they serve. One can only hope that the requirement will not survive the scrutiny it will be subjected to during the next phases of the legislative process.
Olliers Solicitors – Specialist Criminal Solicitors
Written by Sami Halpern. Sami joined Olliers Solicitors in 2015 as a trainee solicitor and currently works within our Magistrates’ Department, undertaking his training to become an accredited police station representative.