Forcing People to Cooperate: The ‘Nationality’ Provisions in the Policing and Crime Act 2017

Post by Ana Aliverti. Ana is Associate Professor of Law at the School of Law, University of Warwick. She is conducting a project on immigration and police cooperation in England to explore processes of identification and the exercise of discretion in police custody.

A woman has been brought into custody today, arrested by the police at dusk on suspicion of a driving offence. Her car was stopped, but there is not much information on her custody record about what clues made the driver or the car suspect in the eyes of the officer to make her stop. When she was questioned, she said that she was born in Birmingham, yet her strong accent raised doubts about her provenance. The custody officer conducted further checks and found out that she had overstayed her visa. No criminal charges were pressed against her, but she was detained under immigration powers.

Routinely, police officers on the beat phone the Home Office’s central immigration database desk to find out who they are dealing with. At the police station, all people who are arrested are electronically fingerprinted –or ‘Live scanned’- and their biometric data cross-checked in police and immigration databases. In certain custody suites around the country, duty immigration officers are posted to assist custody staff with identification. As one high ranked officer put it, ‘in the old days if someone said “I’m Mickey Mouse and British” nobody would check further his ID. Now, that won’t do, there is less room for mistakes’ and more attention to lock identities, with more sophisticated technology and institutional cooperation to establish who is who in police custody.

Unlike many other countries, the UK does not have a universal identity card system. Individuals are not obliged to carry proof of identity and the police cannot stop and question people merely for identification purposes. This makes everyday border policing harder especially in metropolitan areas with large transient populations and at a time of intense pressures to increase deportations and reduce public spending, including in the criminal justice system. Despite advances in biometrics technologies and inter-agency and cross-border cooperation, fixing individuals to places is remarkably difficult and remains one of the most unsurmountable challenges of domestic policing in a global age.

Changes in criminal and immigration legislation have intensified the importance of establishing people’s citizenship and immigration status in criminal proceedings. Certain criminal offences –for example, illegal working or illegal entry- can only be committed by foreigners. A conviction for a serious offence has distinct legal repercussions for non-British defendants. Foreign national crime suspects, even EEA citizens, can be deported if they amass a criminal record that turns them into ‘prolific’ or ‘high harm’ criminals. This may include convictions in the UK and abroad. Foreignness can open up alternative avenues to deal with suspects, which are not available for British suspects, including taking no further action or dropping a criminal charge in lieu of administrative removal. If a criminal charge is pursued, it may be relevant for deciding on a bail application and for considering sentencing options.

As developed countries show no sign of loosening their grip on borders controls, the global business of counterfeited ID documents continues to thrive. Some people are left paperless by their ‘agents’ and their home countries are reluctant to issue a passport and take them back. Others are adamant to hide their identity fearing they will be sent back and refuse to cooperate. To bend their stubbornness, the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 created a criminal offence punishable with up to 2 years of imprisonment for failing to comply with a request by the Secretary of State to provide information pursuant to documentation and to pave the way for enforcement action.

Provisions contained in the Policing and Crime Act 2017 introduced a further stick. Sections 159, 160 and 162 require individuals facing criminal proceedings to state their nationality and produce nationality documents, and make non-compliance with those requirements without reasonable excuse, three separate summary criminal offences which are punishable with up to 12-months imprisonment.

Sections 159 and 160 relates specifically to individuals under arrest for a criminal offence ‘if the immigration officer or constable suspects that the individual may not be a British citizen’. The first provision creates a criminal offence for failing to state one’s nationality when required to do so by an immigration or police officer, whether by providing false or incomplete information or by providing no information. The second provision creates the offence of failing without reasonable excuse to produce a ‘nationality document’ within 72 hours after an individual arrested is summoned to do so by an immigration or police officer. Deliberately destroying or disposing of the document, it specifically states, does not constitute a reasonable excuse.      

Section 162 relates to defendants in criminal proceedings. It mandates defendants to provide name, date of birth and nationality if so required by court staff at any stage of the court process, and creates a criminal offence for non-compliance. English criminal courts do not systematically collect information on nationality of defendants and, according to magistrates and judges I interviewed, rightly so because immigration and citizenship should not be a consideration for criminal justice adjudication. While under the Criminal Procedure Rules 2015, defendants could be requested their name, address and date of birth, before the changes introduced by the 2017 Act there was no sanction attached to no compliance and no requirement to provide information on nationality. Sections 159 and 160 establish the inadmissibility of this information as evidence in criminal proceedings against the defendant other than in proceedings for the said failure to comply offences. Yet, information on defendant’s nationality and immigration status is routinely included by probation officers and prosecutors in their submissions to the court and taken into account by magistrates and judges in making decisions on bail and sentencing. Given the currency of this practice, policing the boundaries of self-incrimination will require watchful solicitors and barristers. The court provision will enable law enforcement officers to trace people through the criminal justice system and if needed detain them at the court’s doorsteps.

One of the stated aims of the 2017 Act is to enable the work of ‘the police and other law enforcement agencies’ in the prevention, detection and investigation of crime. The ‘nationality’ provisions seek to identify foreign nationals at the earliest opportunity in the criminal process and to speed up removals (Policing and Crime Bill Fact Sheet, p.10) and forms part of the government’s broader plan to ‘remove as many Foreign National Offenders… as quickly as possible to their home countries, to protect the public, to reduce costs and to free up spaces in prison’ (Policing and Crime Bill Explanatory Notes, p.34). While police and immigration officers have been bestowed with a range of powers to search and seize documents, these provisions appeal to the very subjects of those powers to force them to cooperate with their own identification and thus fill an entrenched enforcement gap.

Human rights organizations, like Liberty, have warned parliamentarians about the potential of the nationality requirement provisions for legitimizing discriminatory practices in policing and the risks of turning court staff into immigration officers. As Baroness Hamwee indicated, ‘The requirement to state nationality is not a casual inquiry’, it can be fraught with racialized assumptions and, following the entry into force of the 2017 Act, it can land people into prison. While her proposed amendment to require ‘reasonable suspicion’ instead of mere suspicion to enquire about people’s nationality failed, her intervention in the debate on the Bill raises broader questions about the social and legal implications of an apparently innocuous inquiry. While the effectiveness of the new provisions to force people to cooperate is doubtful, they highlight how one’s nationality is increasingly consequential for the standards of justice people are afforded, as the Birmingham driver can attest.

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How to cite this blog post (Harvard style)

Aliverti, A. (2017) Forcing People to Cooperate: The ‘Nationality’ Provisions in the Policing and Crime Act 2017. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/11/forcing-people (Accessed [date]).