Deportation instead of jail, not after it? Bad idea
In a comment on a recent post here, a good question has been raised:
One thing I don't understand about our treatment of foreign criminals is why we we don't deport them, if that's what we're going to do, straight away. What's the point of cluttering up our already overcrowded prisons with people we want to see the backs of?
And the cost?
Wouldn't it be cheaper to send them to some public school for a decade or two?
This seems to me to raise a number of interesting issues that merit a new and separate post. I have offered a number of suggestions as to why this superficially attractive proposal may in fact be a bad idea. (Charles Clarke has been hinting at this possibility in the last day or two.)
There seem to me to be several possible objections.
First, in many cases immediate deportation of a foreigner to his own country following his conviction for a serious criminal offence would amount to letting him off scot free — in contrast to a British national who had committed an identical offence and who would have to spend years in prison, a kind of discrimination in favour of (some) foreigners which would give the Sun and the Daily Mail an attack of the vapours, and the BNP a significant boost. Many would feel that a person who has committed a serious crime in this country ought to be punished for it, although admittedly the basis for that feeling needs to be analysed and debated.
Second, in other cases deportation is a massive penalty, involving disruption of a person's life and the lives of his or her family, especially if they have been living in the UK peacably for years but for a single offence. It would involve serious injustice to impose this on a foreign national not because he genuinely poses a threat to anyone after release from a prison sentence but in order to save the taxpayer money and to relieve the pressure on our jails (for which other and fairer remedies are available if we cared to adopt them).
Third, it would encourage the idea that the assumption, or default position, should be that all foreigners sentenced to a year or more in jail should almost automatically be deported, either at the beginning or the end of their sentences, unless there are specific reasons for not doing so. This indefensible proposition has been boosted by David Blunkett's regulation as home secretary that all such prisoners must automatically be 'considered for deportation' before being released. (The home office's failure to obey this rule is of course the cause of Mr Clarke's current discomfiture.) Because deportation is potentially such a traumatic penalty, there should be no automatic assumption that in the absence of reasons to the contrary, all foreign prisoners serving a year or more should be deported, either at the beginning or the end of their sentences. Once a person — even a foreigner! — has served his sentence and been assessed to be safe for release as posing no likely further threat to society, he or she ought not to be further penalised by being deported, provided he or she was legally in the country to begin with. Deportation needs to be justified by specific and provable evidence in each case. Even foreigners have rights!
Fourth, in many cases it may be almost impossible to establish the nationality status of a prisoner — one of the reasons for non-compliance with the Blunkett diktat.
Fifth, there is a right of appeal against deportation on grounds (such as incompatibility with the person's right to family life under the HRA and the ECHR) which do not apply to appeals against a prison sentence: semi-automatic deportation orders in lieu of (or in addition to) imprisonment would open up a whole raft of appeals which could swamp the immigration appeals system.
Sixth, there are many countries to which it is impossible under the HRA and the ECHR to deport anyone because of the likelihood that the deportee, on arrival, will be tortured, killed or otherwise subjected to cruel and inhuman treatment. It would seem manifestly unjust to deport one foreigner convicted of an offence to his country of origin without having to serve a jail sentence, while another foreigner from a neighbouring country, who had been convicted of an identical offence but who could not be deported because his country practises torture, would have to serve his sentence in a British jail. (This is a variant of the first objection.)
And seventh: There would be little point in deporting to their countries of origin offenders coming from other EU countries, since under EU law there would be nothing to stop them coming straight back. It would seem anomalous and discriminatory to impose the same penalty on EU and non-EU nationals when its practical effect would be so diametrically different.
But your alternative money-saving proposal — send them to a British public school for a few years — has great attractions. Evelyn Waugh noted in Decline and Fall that anyone who has been to an English public boarding school will feel quite at home in prison. If corporal punishment in schools could be re-legalised at the same time, the solution you propose would be made even more seductive.
Others may well either take a different view — or suggest yet more objections to the proposal (immediate deportation, not doing one's bird at a public school).
Update (4 May 06): The Home Secretary's statement yesterday, proposing a new regime under which all foreigners convicted of imprisonable offences would automatically be deported unless they produced cogent reasons why they should not be, raises a host of questions which demand answers before any such draconian project could be accepted. Some of these questions are considered above. Others are usefully discussed at:
Both are strongly recommended.
I don't believe that it will prove possible for the government to reconcile this project with Britain's obligations under the European Convention of Human Rights or the British Human Rights Act which incorporates it in our domestic law. I hope and believe that our courts would declare it incompatible with both those legal instruments, both binding on UK ministers, on the grounds that it would be discriminatory and disproportionate. Any attempt to deprive foreigners subject to virtually automatic deportation of their rights of appeal and, if necessary, judicial review, ought to be strongly resisted by all decent people.
Once again it looks as if the blogosphere is leading the national media in analysing and pointing out the issues raised by ministers' latest flawed and knee-jerk proposals.
Paris, 4 May 2006