RECOMMENDATION FOR DEPORTATION FOLLOWING A CRIMINAL CONVICTION About the LCCSA The London Criminal Courts Solicitors Association (LCCSA) represents the interests of specialist criminal lawyers in the London area. Founded in 1948, it now has approximately 1,000 members including Crown prosecutors, defence practitioners, freelance advocates and many honorary members who are circuit judges and district judges. The objectives of the LCCSA are to: - Encourage and maintain the highest standards of advocacy and practice in the criminal courts in and around London; Participate in discussions on developments in the criminal process; Represent and further the interests of the members on any matters which may affect solicitors who practice in the criminal courts; Improve, develop and maintain the education and knowledge of those actively concerned with the criminal courts including those who are in the course of their training. Any questions in relation to this response should be referred to the Association s President Angela Campbell (telephone: 020 7691 8777, email: Angelacampbell@campbellchambers.com), Vice- President Linda Woolley (telephone: 020 7814 1200, email: lwoolley@kingsleynapley.co.uk) or Jim Meyer (telephone: 020 73888333, email: MeyerJ@TuckersSolicitors.com). The Association is content for its response to be released/published. Questions and Answers 1. Do you have any general comments about the powers that are given to the courts to make recommendations for deportation, the way in which they are used by the courts at present, or their effectiveness? (paras. 1-6) a. In the absence of statistical data, it is difficult to assess the way in which the Courts use their powers in relation to recommending deportation, and the Association agrees with the Panel that it would be beneficial for sentencers to have some general information about the number of court recommendations that actually result in an offender being deported. Page 1 of 7 Printed: 01/05/2006
b. Moreover, in terms of measuring effectiveness, it would seem to us essential that data is collected relating to the number of offenders who find themselves liable to such powers, contrasting this to the number of recommendations actually made. 2. Are there any reasons for concern over the differential impact of recommendations for deportation on offenders of particular nationalities, or on offenders belonging to particular ethnic groups? a. The Association believes that without any data on the ethnicity of offenders recommended for deportation and/or their originating countries, it is difficult to enter in to meaningful discussion regarding the fairness or otherwise of the operation of the current system. b. Although no detailed analysis is undertaken by the Panel, Annex A to its paper shows, for example, that in 2003 drug offences were involved in 61 per cent of the cases in which recommendations for deportation were made, and the Panel surmises that recommendations are, therefore, likely to be made in respect of offenders originating from a relatively small number of countries. This may be oversimplifying the issue: - i. Clearly criminal gangs now operate worldwide, often with representatives based in multiple countries, and the Panel recognises the growth in the international dimensions of crime at paragraph 5 of its paper; ii. The routes for contraband, illicit drugs and other criminal enterprise entering the UK inevitably involves multi-jurisdictions, and different nationalities may be involved in each stage of the process. c. The Association believes that a fundamental element of any scheme within the administration of justice in the United Kingdom and, in particular, any decision to deport following a criminal conviction must be seen to be without bias or prejudice. The only way to measure this is to record the ethnicity and nationality of offenders in the ways discussed above. 3. In what circumstances should a court consider releasing into the community a person in relation to whom it has made a recommendation for deportation? (paras 23-24) a. The Association is concerned that where a short custodial sentence is imposed and the offender is due to be released before the deportation decision has been made, (s)he may continue to be detained under the authority of the Home Secretary pending that decision. b. If, as the Association submits, the trigger point for recommending deportation is a custodial sentence of 12 months or more, and taking in to account eligibility for Home Detention Curfew, there will be a period of at least 32 weeks where the offender is in custody. The Page 2 of 7 Printed: 01/05/2006
Association can see no reason why the Home Secretary's decision cannot be made within this period. c. The Home Secretary s decision should be subjected to custody time limits similar to those applied in criminal proceedings, and an automatic timetable imposed. A failure by the Home Secretary to observe such limits should result in the automatic release of the offender. 4. Although the Bail Act itself does not apply in these cases, bearing in mind the risk of absconding or committing further offences, what criteria, over and above those for bail decisions generally, does the court need to consider? (paras 23-24) a. It is difficult to catalogue considerations that relate to these issues over and above those that relate to bail in general criminal proceedings. b. The length of time being taken for the Home Secretary to make a decision will have to be weighed objectively against the complexities of the offender s particular circumstances and, if necessary, a report by the probation service could be prepared shortly before any release date addressing the level of risk of harm to the public and the likelihood of re-offending. A presumption in favour of release may exist where the risk is thought to be low, i.e. where there are no significant current indicators of a risk of harm. 5. The Panel takes the view that sentencers should not use the power to bind over for judgment in cases involving foreign nationals where, following conviction, the court would be minded to consider whether or not to make a recommendation for deportation. Do you agree? (paras 27-28) a. The Association agrees with the panel that sentencers should not use the power to bind over for judgment in such cases, and it can see no sound argument for distinguishing the courts so that only Crown Court judges can act in such a manner. b. Although many may view deportation as more than simply an ancillary issue but a punishment in itself, the Association believes that the current system is the fairest way of administering justice to offenders: - i. Sentencers must first determine the sentence which is appropriate for the offence committed, and only then go on to consider the issue of deportation; ii. The Association believes that a recommendation for deportation should form no part of the punishment of the offender: - Page 3 of 7 Printed: 01/05/2006
1. Defendants should have some degree of certainty of the consequences of their actions, and an offender who is a British Citizen should face the same punishment as a foreign national convicted by a British Court; 2. The fact that a recommendation for deportation has been made by a judge should not mitigate the actual sentence imposed for the criminal offending; 3. The primary purpose in making a recommendation should be the protection of British citizens and/or society. 6. The Panel s view is that the key question in considering whether to make a recommendation is whether the offence is serious enough to merit deportation. Do you agree? (paras 29-44) a. The Association agrees with the Panel that the key question is whether the offence is so serious as to merit such a course of action. b. Magistrates and judges have been trained for many years that the correct approach to sentencing an offender is to begin with an assessment of the seriousness of the offences. A sentencer will take in to account all factors which make a particular offence more or less serious, and will ultimately assess the risk of harm to the public and the likelihood of reoffending. Key indicators will include: - i. An analysis of the offence itself, taking in to account, for example, statutory aggravating factors, such as racial or religious aggravation, whether the offence forms part of a pattern of offending and whether the offence represents an escalation in the offender s behaviour; ii. An analysis of the offender, taking into account, for example, the existence of previous convictions, and any recognition of the impact and consequences on any victim and society as a whole. c. The Association believes that although a proper consideration is whether the offender s continuing presence in this country may be a detriment to society, there is a danger that when applying such a test one sentencer s view may differ considerably from another. It is the Association s view that such an approach will inevitably lead to arbitrariness and unfairness in the application of the decision. In any event, it believes that such a consideration will form part of the sentencer s general assessment of the seriousness of the offence, and that when the sentencer undertakes this process (s)he will determine the ceiling above which the sentence imposed should never rise. This ceiling should also determine whether a recommendation is made. Page 4 of 7 Printed: 01/05/2006
7. What makes an offence serious enough for a recommendation for deportation to be considered? Should it be determined by the type of offence, the nature of the sentence given or a balance between the two? If by the nature of the sentence, what type of sentence should be the trigger? (paras 29-44) a. The Association believes that the ceiling described in 6.c above should also be seen as the trigger for a recommendation for deportation. b. The type of offence will necessarily form part of the assessment of its seriousness during the sentencing process. However, if the type alone is to be the determinative factor, the Association agrees with the Panel s analysis that this would not allow for a wide range of offending behaviour, and offenders could well be recommended for deportation for a fairly minor first offence where the assessment of risk and re-offending is low. c. The Association s view is that an offence is serious enough for a recommendation for deportation if a sentence of imprisonment is imposed. 8. If you think that the trigger point should be a custodial sentence, should the normal trigger point be a custodial sentence of 12 months or more? If not, why not? (paras 29-44) a. The Association believes that the normal trigger point should be the imposition of a custodial sentence of 12 months or more. 9. Do you agree that there should be a rebuttable presumption of a recommendation for deportation for certain specific offences such as drugs offences, sex offences, homicide, firearms offences, fraud and the trafficking of people? If not, why not? If yes, do you agree with the suggested offences? (paras 29-44) a. The Association does not believe that there should be a rebuttable presumption for deportation for certain offences. The fact is, offences of the type mentioned almost inevitably attract a lengthy custodial sentence, and will therefore reach the trigger point of 12 months imprisonment. If they do not, for example due to circumstances such as those outlined in R v Ariquat, the trigger is not reached and no recommendation / referral for deportation should be made. b. The Association emphasises that recommending deportation should not be seen as a punishment, and respectfully disagrees with the sentiments of the Court in N (Kenya) v Secretary of State for the Home Department 1, set out at paragraph 42 of the consultation document. The overriding principle should be the protection of British citizens and/or society and this consideration will form part of the analysis of the seriousness of the offence (see 6 above). 1 [2004]EWCA (Civ) 1094 Page 5 of 7 Printed: 01/05/2006
10. Do you agree that the assessment of whether or not the detriment resulting from an offender s continued presence in this country is likely to be substantial will depend primarily on the seriousness of the offence? If not, on what other factors does it depend? (paras 29-44) a. The Association agrees that whether or not the detriment resulting from an offender s presence in this country is likely to be substantial will depend on the seriousness of the offence. All of the factors referred to by the Panel at paragraph 44 of their consultation document fall to be decided during the assessment outlined in 6.b above. 11. What factors should the courts take into account when considering whether a recommendation for deportation would be compliant with Article 8? (paras 46-50) a. The Association emphasises the point that recommending deportation should not be viewed as part of the offender s punishment, and that the decision-maker is ultimately the Secretary of State. b. It is for the Secretary of State to decide whether the interference with family life by deportation is necessary, and ultimately (s)he will be accountable to ensure that any derogation from this general right is in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder and crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. c. When exercising this judgment, the Secretary of State should as a matter of course invite submissions on behalf of the offender, specifically addressing: - i. The likelihood of re-offending; and ii. Any harm to innocent persons (for example, the offender s family) were (s)he to be deported. d. Funding arrangements should be guaranteed for the submissions outlined in 11.c above, and the Home Secretary s decision liable to Judicial Review. 12. What weight should be given to the fact that the final decision on whether or not to deport an offender in response to a court recommendation rests with the Home Secretary, who will have access to a much wider range of information relevant to that decision? (paras 46-50) a. Although intelligence and other material not available to the sentencer will make a valuable contribution to the ultimate decision to be taken by the Home Secretary, care must be taken that so far as possible the process is transparent and subject to scrutiny. Page 6 of 7 Printed: 01/05/2006
b. The weight attached to such material will depend on a multitude of issues, including source, veracity and the ability of the offender to challenge any assertions made. 13. Are there any other issues relating to the making of a court recommendation for deportation that have not been raised in this consultation paper and which you think the Panel should consider? a. The Association wishes to make it clear that it is not recommending that all offenders who are sentenced to 12 months or more imprisonment should be deported to their countries of origin. Rather, it is of the opinion that such a decision should form no part of the sentencing process. b. The Association believes that the term recommended for deportation should be substituted with referred for deportation or automatically liable to deportation. The proposals that it is suggesting in effect means that any non-british citizen sentenced to 12 months or more imprisonment will be referred to the Home Secretary for a decision as to his/her future in this country. In these circumstances, there would be no room for discretion on the part of the sentencing tribunal. Page 7 of 7 Printed: 01/05/2006