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German photograph at the top of this post courtesy of Bundesarchiv, Bild 101I-030-0780-28 / Kintscher / CC-BY-SA 3.0, CC BY-SA 3.0 deDefendants in court now must declare their nationality. If a Defendant is a citizen of more than one country, s/he must declare all citizenships held.

As of 13 November 2017,

“A person commits an offence if, without reasonable excuse, that person fails to comply with such a requirement, whether by providing false or incomplete information or by providing no information.”

You might wonder, “why now?”

You may also wonder why it matters.

The big deal is this:

Nationality confirmation is asked for both at first appearance (where bail is considered) AND on the day of trial.

I could understand, if, for example, there’s a genuine fear that a dual British / American citizen is going to skip bail and get on the first thing smoking back to Dallas, why it’d be relevant at a Bail hearing. That is a legitimate need.

But what’s the need for the Magistrates to know about the dual or any citizenship at all just before the trial starts?

Here’s how it plays out in court:

Legal adviser, “Please state your full name, date of birth, address and your nationality”.

Defendant, “Mr Elmer Fudd, 217 Wabbit Hole, Barking, BA57 1AA, White English”.

Legal adviser, “No, ‘White English’ is your ethnicity; what passport do you have?”

or, in the Youth Court …

Defendant, “I’m Somalian and Italian”

Legal adviser, “Are you a citizen of Somalia and Italy?”

Defendant, “I don’t know”.

Legal adviser, “Do you have a passport?”

and after further to-ing and fro-ing, it’s established that the young person is a British Citizen only.

Here’s the problem

Magistrates are human beings.

And some human beings believe in stereotypes.

They may not say it out loud, or even admit it to themselves, but are they thinking:

“Oh God, not another Ruritanian cab-driver”

“Oh God, not another Hucksterian fraudster”

“Oh God, not another Texan bar-fight”.

– or even –

How is *s/he* a German, etc. citizen only?

Is anybody else wondering what the pressing need for the Court to know one’s citizenship immediately before the trial commences is?

I’ve found the policy note behind the new declaration of nationality requirement. Regrettably, this note does not address why nationality confirmation is needed. You might even think that the note implies that nationality declarations in court are nothing new.

All I can say about that is that before November 2017, I’d never heard of any Defendant being asked to declare their nationality for the purpose of court proceedings.

Papers, please?

If the Government can’t tell us why they need the courts to ask for nationality information, how can we help but draw the obvious conclusion that this Government’s descending into a “papers, please” mentality – with the real risk of two-tier justice.

This flies in the face of British constitutional principles such as, “Equality before the Law”

Thinking of giving two fingers to the man by direct action?

Guess again. As per the Policing and Crime Act 2017:

A person guilty of [the offence] is liable on summary conviction to either or both of the following—
(a) imprisonment for a term not exceeding 51 weeks (or 6 months if the offence was committed before the commencement of section 281(5) of the Criminal Justice Act 2003), or
(b) a fine.

Parliament, as always, is Supreme and can make or unmake any law as it sees fit.

While we still have the closest thing to an entrenched Bill of Rights we’re ever going to have, the Government’s, “papers, please” approach to Defendants needs to be considered in light of our:

Article 6 right to a fair trial;

Article 8 right to private and family life, home and correspondence; and the

Article 14 prohibition of discrimination.

I see fellow Defence advocate, Greg Foxsmith has also blogged on this topic.

While the most the Criminal defence lawyer community can do is to try to get the UK Supreme Court to issue a “Declaration of Incompatibility” (of the “papers, please” law with the European Convention on Human Rights), a stand does need to be taken.

As Baron Montesquieu once said:

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