I’ve heard some stupid ideas in my time. The proposed “sentence escalator” is a classic, providing that “any person convicted of the same criminal offence on more than one occasion must receive a longer custodial sentence for the second or subsequent offence than his longest previous sentence for the same offence” – regardless of the facts of that subsequent offence.
The creation of a specific offence of stalking – which is identical to the existing offence of harassment and carries the same maximum sentence, only it adds an extra element making it harder to prove – was another. But naturally when it comes to legal folly, you can’t beat a bit of everyone’s favourite professional twit – arise, Philip Davies MP.
Today he has been in the House of Commons supporting the Foreign National Offenders Bill, the brainchild of those dildos-in-arms Peter Bone and Philip Hollobone. This short Private Members’ Bill, referred to by Hollobone in Parliament today – I kid you not – as “the “Send Them All Back Bill”, aims to “make provision to exclude from the UK foreign nationals found guilty of a criminal offence committed in the UK.”
And boy, it does.
Its purpose may be to satisfy Tory backbench lust for being tough on foreign crims. Its effect would be to provide for the automatic deportation of someone who took their child out of school to go on holiday.
It is, without a doubt, one of the stupidest, crassest legislative proposals I’ve ever seen. Its draftsmanship appears to be the work of a particularly poorly-educated dormouse typing in elasticated mittens. The Bill provides for automatic deportation for anyone convicted of a “qualifying offence”. Or, to be more accurate, a “qualfying” offence. As the Bill manages to mis-spell the word “qualifying”. What is a qualifying (or qualfying) offence, you ask? Something pretty bad, presumably? Violence? Sex? People smuggling?
Well yes, those would all be caught. But then those types of cases are likely to already be caught by section 32 of the of the UK Borders Act 2007, which provides for an order for automatic deportation where a sentence of imprisonment of 12 months or more is imposed upon conviction for an offence. Section 3(6) of the Immigration Act 1971 also gives a court a general power to recommend deportation in other cases (although in practice it is rarely used).
No, in Bone, Davies and Hollobone’s Bill, a “qualifying offence” is, per section 1(4):
“any offence for which a term of imprisonment may be imposed by a court of law.”
The key word here is “may”. The test isn’t whether prison is in fact the sentence in a particular case. It is whether the offence is imprisonable in theory. The question is: “Does Parliament allow a court to impose a prison sentence for this offence, even if no court in their right mind ever would?” If the answer is Yes, you’re out, Mr Foreign, with your funny accent and weird trousers.
Out of interest, here are some imprisonable offences, the commission of which would, if this Bill ever became law, see a non-British citizen, who had never been in trouble before, deported:
- Taking your daughter out of school to go on holiday (section 444(1A) of the Education Act 1996)
- Kissing your wife in a public toilet (s.71 of the Sexual Offences Act 2003)
- Bringing a can of beer onto a coach on the way to a football match (section 1(3) of the Sporting Events (Control of Alcohol etc.) Act 1985)
- Taking that can of beer into the football stadium (section 2(1) of the Sporting Events (Control of Alcohol etc.) Act 1985)
- Writing “I love you” in chalk on a pavement (section 1 of the Criminal Damage Act 1971)
- Travelling on a railway without buying a £1.80 ticket (section 5(3) of the Regulation of Railways Act 1889)
- Making an offensive joke on Twitter (Section 127(1) of the Communications Act 2003)
- Standing in the street holding up a placard reading: “Philip Davies MP is a flipping ninny” (section 4A Public Order Act 1986)
Now a number of Mr Davies’ supporters have taken issue with some of these examples on Twitter – these would never sensibly be prosecuted, they cry. So no problem arises. I agree – it would be madness to prosecute in the above circumstances. But it does happen. I see it every day. The “public interest” test is not always applied properly by the prosecuting authorities. A chippy police officer will issue a fixed penalty notice, the recipient will refuse to accept it, and before you know it there’s a magistrates’ court issuing a summons. And if such a thing did happen, if one of those examples was the subject of a prosecution, and a conviction, the court presently has a measure of discretion as to how to deal with it.
The court could order a small fine. Or impose a conditional or absolute discharge – which is in effect no penalty – to reflect how minor they consider the offence to be.
But if it has been charged under legislation which gives the court a discretion to imprison, the poor defendant would, in Bone and Davies’ world, be kicked out of the UK. The Home Secretary would have no choice but to make that order. And that is intentional. The purpose of the Bill is to deprive the authorities of any discretion when dealing with trivial cases.
That is why it is so very stupid. And so very Philip Davies.