Legal Opinion: Are innocent people being kept in detention?
Defendants who have been acquitted, discharged or bailed are being kept imprisoned wrongly for hours while immigration checks are carried out, says John Cooper
In the wake of fierce criticism of the Home Office for its supposed inability to police illegal immigration in the United Kingdom, it appears that the private contractors responsible for the detention of defendants before criminal courts have been instructed to keep in custody defendants whom a judge has ordered to be released. They are kept in court cells until the prison where they were last held has confirmed, along with other details, their immigration status.
The impact of this measure is that innocent people are being kept imprisoned for hours whilst checks are carried out by prisons, and these checks are not undertaken until a judge orders release.
Whether the Home Office instruction is that all prisoners, regardless of their name, should be detained for immigration checks, or just those with foreign-sounding names, is unclear. But the catalyst for this initiative seems to be the bad publicity the Home Office has received over its difficulties in tracking down illegal immigrants. The use of the criminal courts to detain people is a way to bring them up to speed.
The statistics provided by Croydon Crown Court, for instance, considered to be average for most crown courts, reveal that defendants who have been acquitted, discharged or bailed continue to be held in custody for up to five hours. On average, they are detained for an hour.
It seems that the Home Office directive has now become part of the operating instructions for private companies who are responsible for the detention of defendants in crown courts. Breach of these instructions can have serious consequences for the company. In short, it appears that no prisoner is to be released by a contractor without them first having obtained faxed confirmation of the defendant's status from the prison in which he or she was last produced.
This, in my view, is unlawful detention and is no different to a police officer snatching an innocent person off the street and locking them up for upwards of an hour for no apparent reason. There has to be reasonable suspicion of an offence and the only basis for suspicion here seems to be a person's name. Detaining anyone against the law for whatever period of time is wrong and should not be tolerated, but in my opinion this behaviour is exacerbated in the context of defendants before the criminal courts, who are often vulnerable, disadvantaged or just too happy at the prospect of being released to complain. This does not make it right or acceptable.
The Home Office defend their position by saying that they have the power to detain under the Immigration Act 1971, but appear at present unable to cite the section that they rely on.
Evidence suggests that contractors, conscious that they are unlawfully holding defendants, make constant telephone calls to a prison, demanding to be provided with the necessary information. When barristers ask when their acquitted client is to be released, they are given a vague answer. When they telephone the prison, the call is terminated. The only recourse is to place the matter before a judge.
The issue is becoming serious. Senior judges have expressed considerable concern over the escalation of the procedure and are doing all in their power to ensure that people are not improperly deprived of their liberty. But they fight an uphill battle, as a belligerent Prison Service, combined with an embattled Home Office, seems to ignore or, at the very least, to misunderstand the law.