Foreign national offenders - government response to consultation on draft CPS code of practice on adult conditional cautions
In 2012 the Ministry of Justice published a consultation paper inviting comments on the new adult Code of Practice for Conditional Cautions drafted to support changes to the provisions on conditional cautions in the Criminal Justice Act 2003 prompted by the Legal Aid, Sentencing & Punishment of Offenders Act 2012. The consultation period ran from 4th October to 1st November 2012. The government's response has now been published.
BID's submission to the consultation, and the government response pulished by the Ministry of Justice, can be downloaded from the very bottom of the right hand side column on this page. UKBA has now released new guidance 'Conditional cautions with foreign offender conditions', version 1.0, and dated 8th April 2013, available for download here.
BID submitted a response (one of 37 received by the Ministry of Justice), restricting our comments to the provisions for the new foreign offender conditions contained in the ‘Code of practice for Adult Conditional Cautions’. Under this new type of caution, foreign nationals will be asked to agree with their enforced removal from the UK as a condition of accepting an adult conditional caution.
BID’s client group includes foreign national ex-offenders facing deportation action who are held in removal centres, and a smaller number of time-served foreign national prisoners who for various reasons are held in prison under immigration powers at the end of their sentence.
In BID’s view the new foreign national conditional caution provision seeks to harness a means of disposal of offences via the criminal justice system for the purpose of immigration control, in the context of inadequate immigration legal advice within the criminal justice system. The Prison Reform Trust noted separately in their response to the Green Paper that
“A system that used conditional cautions for people already living and working in the UK, on the condition that they left the country would be racially discriminatory and open to challenge under the Equalities Act”[1].
BID’s view at the time was that the overall effect of the use of foreign offender conditions with adult conditional cautions would be to shift responsibility for foreign nationals facing removal to the Home Office at the point they are transferred to immigration removal centres, but without in any way addressing or resolving the underlying immigration issues in individual cases. Writing this note post-April 1st 2013 brings into even sharper focus the potential impact of this provision, now that legal aid is no longer available for general immigration matters, including deportation.
BID’S KEY CONCERNS ABOUT FOREIGN NATIONAL ADULT CONDITIONAL CAUTIONS
The inadequate provision of immigration legal advice in police stations, currently delivered as a 30 minute conversation via telephone with no sight of papers, carries a serious risk of bypass of due process. Now, post-April 1st 2013 when most immigration matters, including deportation, have been taken out of scope of legal aid, foreign national with no current leave to remain but who may otherwise have a strong claim to remain in the UK (e.g. long term UK residents) will be particularly vulnerable to injustice.
- Most foreign nationals who are - on the face of it - suitable for this type of adult conditional caution will be required to agree or disagree with the caution without the benefit of any immigration legal advice at all.
- The apparent removal of CPS oversight of the use of conditional cautions.
- The difficulties inherent in assessing removability from the UK (in immigration law terms) for custody sergeants in police stations.
- The use of foreign national conditions with adult conditional cautions appears to be an attempt to provide the exclusionary provisions found under the Immigration Rules at 320 (7B) but by operating outside the Immigration Rules and outside the protections afforded by appeal provisions relating to deportation (whether court-ordered deportation under Immigration Act (1971) or so-called ‘automatic’ deportation (UK Borders Act 2007)).
- There is no obvious protection for vulnerable individuals. Protection is currently required under PACE when considering cautions for individuals with mental illness or learning disability, but other vulnerable groups should include age-disputed foreign national minors, and foreign national victims of trafficking.
- It is unrealistic to expect victims of trafficking to reveal at the point of arrest that they have been trafficked in such a way that they can be properly excluded from the use of an adult conditional caution with foreign national conditions. By means of a case study we showed that it is typical of our client group not to reveal that they have been trafficked for weeks after arrest.
- Once held in immigration detention pending removal, and able to access immigration legal advice, foreign nationals who have received such a conditional caution may discover they have a strong case to remain in the UK and make the appropriate legal challenge.
[1] Prison Reform Trust, (2011) ‘Response to Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders’, p: 22
SELECTED EXTRACTS FROM THE RESPONSE DOCUMENT: SUBMISSIONS AND GOVERNMENT RESPONSES
Foreign offender conditions
19. Several respondents commented that the places where a foreign offender could be required to report as part of the conditions did not accurately reflect appropriate places. Others commented that the requirement to comply with any lawful instruction from the Secretary of State or an immigration officer was too wide and what this means should be clarified. Another respondent commented that there should be more guidance on offering other types of conditions (reparative, rehabilitative or punitive) alongside the foreign offender conditions.
20. Some respondents questioned the guidance on who was eligible for these conditions. Some respondents commented that they should not be given to an offender who claimed to be aged under 18 but his or her age was disputed by UKBA (a ‘disputed minor’). Another respondent commented that the blanket prohibition at paragraph 2.20 preventing the conditions being offered to those who make an asylum or human rights claim to remain in the UK, was too wide and unnecessarily excluded those who no longer had an outstanding claim, for example where that claim was withdrawn or determined.
21. Some respondents referred to the need to make sure there are sufficiently robust processes in place to identify victims of human trafficking and ensure they are not conditionally cautioned, particularly as they may not always identify themselves as victims to the police.
22. A few respondents commented that the time limits to complete the foreign offender conditions set out at paragraph 2.30 should not be different to the other types of conditional caution and that there was no justification for these being different. Others commented that the period the foreign offender could be excluded from the UK should not be longer than that set out in the Immigration Rules.
23. A theme to the responses on the foreign offender conditions was the immigration status of the offender. Some commented that paragraph 3.6 which sets out what the police must explain to the offender of the effect of the conditional caution, should include a requirement to explain the consequences of the conditional caution on the foreign offender’s immigration status. Others commented that it is not appropriate for the police to make decisions about a foreign offender’s immigration status.
24. There were some comments regarding a foreign offender’s non-compliance with the conditions. Some commented that it was not appropriate to prosecute a foreign offender who did not comply with the conditions due to a subsequent asylum or human rights claim. Others commented that the Code should be clear that foreign offenders can withdraw from conditions as well as not comply with them.
25. Some respondents stated that only the CPS should be authorised to offer FNOs conditions, the police should not have the power to do so.
26. Others commented that the form the offender is required to sign as setting out conditions and the implications of accepting a conditional caution should be translated into a language the foreign offender can understand.
27. Some respondents commented on the provision of legal advice on the immigration matter. Some commented that the foreign offender should receive legal aid for the immigration advice as well as the criminal matter. It was also commented that the Code should be clear that before administering the conditional caution the police should ensure that the foreign offender has had the opportunity to receive legal advice on the immigration matter as well as the criminal matter.
Government response
**TRAFFICKING
36. The comments set out at paragraph 21 in relation to identifying victims of trafficking is also outside the scope of the Code of Practice. The Government agrees that this is an important consideration, however, there are existing processes in place to address this which focus on the criminal justice system more widely rather than a particular issue for conditional cautions. There are however, sufficient safeguards with conditional cautions to protect such people. If an individual claims to be a victim of trafficking, or it becomes apparent that an individual is such a victim after the conditional caution has been administered, there is provision to withdraw the conditional caution and consider how best to proceed with the matter.
**TRANSLATION OF RELEVANT DOCUMENTS
37. The responses set out at paragraph 25 and 27 are also considered to be outside the scope of this consultation. The power for the police to offer conditional cautions without authorisation from the CPS is now set out in primary legislation following the amendments made by 2012 Act. In relation to paragraph 26, there is no requirement to provide a translated copy of the form to the foreign offender. The Government considers that the Code of Practice provides sufficient safeguards by making clear that the police should ensure that the foreign offender has the conditions and implications of the conditional caution explained to him or her in a language he or she can understand prior to accepting the caution and conditions and signing the form.
Foreign offender conditions
40. Paragraph 2.18 of the draft Code which gives details of the foreign offender conditions has been amended to clarify where an offender can be required to report to as part of the conditions, and that the lawful instruction given by a Secretary of State or an Immigration Officer are to effect a person’s removal from the United Kingdom.
41. One response commented that there should be guidance on the use of other types of conditions alongside the foreign offender conditions. The Code of Practice is clear that the foreign offender conditions should take priority when considering a conditional caution for a foreign offender. Any additional guidance on the operational use of other types of conditions will be set out in the DPP guidance on Adult Conditional Cautions
**AGE DISPUTED MINORS
42. In relation to the responses on eligibility of the foreign offender, it is not considered necessary to specifically exclude disputed minors from the foreign offender conditions. The Government considers there are sufficient safeguards in dealing with such offenders as the conditions cannot be imposed on a foreign offender; the foreign offender must consent to the conditions to depart from the UK and not return for a period.
**USE OF FOREIGN NATIONAL OFFENDER CAUTIONS WHERE ASYLUM OR HUMAN RIGHTS CLAIM INVOLVED
43. The blanket exclusion to offer a conditional caution with foreign offender conditions to foreign offenders who make an asylum or human rights claim to remain in the UK has been amended. The Government is clear that no-one will be removed from the UK where it would be in breach of our international obligations and conditional cautions will not be used to remove foreign offenders whose asylum or human rights claim is ongoing. However, where for example that claim has been voluntarily withdrawn by the offender, or has been revoked, or refused and all appeals against that refusal finally determined, then consideration may be given to whether the foreign offender conditions may be appropriate. Paragraph 2.20 of the Code has been amended to reflect this. As with all types of conditional cautions, the conditions cannot be imposed on the foreign offender. The offender must still admit to the offence and consent to the conditional caution, including the condition to depart from the UK.
**TIME LIMITS WITHIN WHICH CONDITIONS SHOULD BE COMPLETED
44. Some respondents commented on the time limits within which the conditions should be completed and the ability to set a condition excluding a foreign offender from the UK for a longer period than which will be set out in the Immigration Rules. The Government considers that there is a justification for a longer time limit to complete the conditions due to, for example, the need to obtain a travel document from a foreign government. The Government also considers that the new provisions in the 2003 Act enables the exclusion period to be set for a period longer than the Immigration Rules if required. Therefore no further changes have been made to the Code of Practice.
45. There were some comments regarding the effect to the foreign offenders immigration status; that paragraph 3.6 of the Code should be amended to make clear the police should explain the effect of the conditional caution on the immigration status and also that the police should not make a decision based on the immigration status of the offender. In addition, several respondents commented on the provision of immigration advice for the foreign offender in addition to criminal legal advice.
**CHANGE TO REQUIRE POLICE OR CPS TO CONFIRM IMMIGRATION STATUS WITH UKBA PRIOR TO MAKING DECISION TO OFFER THIS CONDITIONAL CAUTION
46. In response, paragraph 2.51 of the Code has been amended to make clear that the decision maker (usually the police or the CPS) must consult with UKBA prior to making the decision to offer the conditional caution and that confirmation of the offender’s immigration status should be obtained. In addition, paragraph 3.6 of the Code is clear that the police should explain to the offender the requirements of the conditions and exactly what the offender will be required to do and the Government considers that this is sufficient for the offender to be informed that the condition requires the foreign offender to depart the UK and not return for a period of time. The foreign offender must consent to being given a conditional caution and in doing so the offender is entitled to seek their own legal advice in relation to their immigration status. However, as noted in the Code, in relation to civil legal aid, the offender is not entitled to free and independent legal advice in relation to most non-asylum immigration matters (such as their immigration status).
47. With regard to responses relating to non compliance of the conditions, paragraph 3.21 of the Code has been amended to make it clear that a foreign offender can choose to withdraw from the conditional caution as well as be considered to not comply.
48. Some respondents commented that a foreign offender should not be prosecuted where they do not comply with the condition to depart from the UK due to making an asylum or human rights claim after the conditional caution had been administered. The Government considers that this is a comment on the policy of the foreign offender conditions and this is outside the scope of the consultation. However, the Government considers that there are sufficient safeguards within the conditional caution scheme for dealing with such a scenario; in every case where conditions are not complied with the offender should be given an opportunity to explain his or her reasons for the non compliance. Decisions makers will then decide whether there is a reasonable excuse for the non compliance, and whether the offender should be prosecuted. This is set out clearly in the Code of Practice and is considered to be sufficient safeguards.
Clarification of existing provisions
**VULNERABLE (MENTALLY ILL) OFFENDERS
53. In relation to comments that the Code should make explicit reference to identifying and dealing with mentally vulnerable offenders, the Government considers that this would not be appropriate. Police officers already have existing guidance on identifying and dealing with such offenders and the Code signposts this guidance. This existing and well established guidance should be followed rather than creating separate guidance for conditional cautions.
Mentally vulnerable offenders
57. Comments were generally positive stating that respondents were pleased to see the Code include provision on mental vulnerability. In responding to the consultation, Mencap agreed that conditional cautions are useful and should be available to those with a mental vulnerability but it was important that such offenders have the additional support they need. Some respondents wanted more guidance on dealing with such offenders. The Government considers this would not be appropriate for the reasons set out above at paragraph 53.
Foreign Offender Conditions
59. There were some comments, mainly from Immigration Legal Practitioners that there may be an issue of race and nationality with regard to foreign offenders being removed from UK following a conditional caution. The government is satisfied that it is right to offer conditional cautions for those foreign offenders with no leave to enter or remain in the UK, who admit to committing a criminal offence, agree to accept a conditional caution with the conditions to depart and not return, and where it is not in the public interest to prosecute. We are satisfied that the use of conditional cautions in this manner is fully justified and designed to help the Secretary of State best manage use of the prison estate and expedite the removal from the UK of those who have no right to be here.
60. Eligibility for the conditions effecting departure from and preventing return to the UK is not based on nationality or ethnicity or any protected characteristic of the offender. Rather it is based entirely on immigration status; only offenders who have no legal permission to enter or remain in the UK are eligible for these conditions.
61.UKBA are already required to removal foreign offenders who have no legal basis of stay in the UK. This is usually done during or at the end of a prison sentence so these conditions bring forward the removal and do not have an affect on the offender’s right to be in the UK.
