In the Media

Don't blame the judges

PUBLISHED May 3, 2006

The furore over the deportation of criminals cannot be laid at the door of the judiciary 

Judge-bashing is seen by some as an acceptable, if ill-informed, sport. With that in mind, I hope that, in the middle of the present furore over the deportation of criminals, it is appreciated that this one cannot be laid at the door of the judiciary.

Judges do not deport, they recommend. The Home Secretary deports ? or not, as the case may be. A recommendation from the judge to deport an offender is in addition to any other sentence the judge imposes for an offence and the deportation is expected to take place after the offender has completed his sentence in this country. The recommendation is considered by the Home Secretary and it is his decision whether to act upon it or not. Judges are not told as a matter of course what decision has been made.

There are pre-conditions to a judge making such a recommendation. For a start, the court must be satisfied that the recommendation is appropriate, bearing in mind the nature of the offence, the offender?s record and the risk of the offender committing more crimes if he stays in this country. The judge also must be satisfied that the offender has no right to live here; is aged 17 or over; and has committed an offence punishable with imprisonment. In addition, the he must have been given at least seven day?s written notice of the court?s intention to make such an order.

There are other considerations which may weigh on the judge?s mind. What about the offender?s family? They may be completely innocent. What effect will deporting the offender have on them? It can be a delicate balancing act between protecting the public from further offences being committed and the interests of the offender?s family. A clear consideration is whether the offender?s continued presence in this country is to its detriment. Sometimes this requires a broad approach. For those who feel that the fact that the offender is on social security benefits should mitigate against him, a shock is in store. The appeal courts have already decided that this is not a factor the judge should take into consideration when deciding whether a ?detriment? arises.

Nor should the criminal judge concern himself with the state of the country to which it is proposed to return the offender, in the same way that immigration tribunals do. Dangerous and unstable regimes and suspect political systems are not matters to be judged nor should a judge go so far as to express a view on such. It would be a mistake to rely on ?common knowledge? as ?common knowledge? may be wrong. These are matters within the Home Secretary?s remit.

Some "foreign" offenders have a measure of protection against recommendations for deportation. Commonwealth citizens or those from the Republic of Ireland who were resident in this country on January 1, 1973 and have been ordinarily resident here for the five years immediately preceding the present conviction, not counting any time spent in prison during that period, are exempt from deportation.

EEC nationals who are in the UK exercising their "right of free movement" (which is to say, they are employed or dependants of an employee) under the Treaty of Rome are subject to the requirements of Community Law when it comes to deportation. These require the court to take similar matters into account as are laid out above, although particular emphasis is placed on the possibility of re-offending and the threat to the public together with the need to undertake a full enquiry before making a recommendation.

The rules as to courts making recommendations for deportation have been around for a very long time. Perhaps, then, it is no coincidence that the Sentencing Guidelines Council has just announced that it is looking into the whole question. No doubt it will be considering automatic deportation for certain serious offences such as murder and rape, as well as giving judges the right to deport and not just to recommend. Whether this latter suggestion is feasible or in the public interest is debatable ? and that debate is going on now.