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November 11, 2016

No conviction is trivial – the flaw in online guilty pleas

Very few people in this country understand the implications of a criminal conviction until they have one. Some don’t understand the implications till years later when their twenty year old criminal record comes back to haunt them.  A criminal record can be a barrier to a myriad of jobs, to college courses and to going on holiday in the States.  But the extent of the barrier depends on the actual crime, the number of crimes on your record, and what job you are applying for.  The system is fiendishly complicated.

Anyone accepting a guilty plea online should be informed of all the possible effects of having a criminal record, otherwise it will not be fair.  And this information should not be in a footnote or in a optional link – its too important and too life-changing. Unfortunately, spelling out the real life implications of having a criminal record (which would have to be done through some kind of personalisable survey) will probably put most users off pleading guilty.

I’m not against online processes in principle, but see huge problems in introducing a simple online system onto a complex criminal justice system, and with a population that has little understanding of the law. Does the average person understand whether they have a viable legal defence to the crime they are accused of ie whether they should plead guilty or not guilty?  The evidence suggests not.  Transform Justice did research on unrepresented defendants.

Prosecutors were concerned that unrepresented defendants often did not understand what they were charged with, and “there are more not guilty pleas, definitely because people don’t understand the difference between a defence and mitigation. They might accept the conduct… but plead not guilty because they had a good reason to do it. But this is not a reason to plead not guilty” (prosecutor). The opposite also occurs, with one prosecutor suggesting that sometimes unrepresented defendants do not realise the strength of their case and “are bullied by the clerks and bench into pleading guilty.”

So far, the nearest equivalent to online pleas is the system of prosecuting fare evasion. People who do not have a ticket on the bus or tube are often given an opportunity to pay a fine on the spot. But if they refuse to pay this, or if they are not offered this, they are prosecuted for fare evasion. All those prosecuted are encouraged to enter pleas by post/online, and many who plead guilty have no idea what they have let themselves in for, either in terms of criminal record, or costs.  These cases are heard in their absence in the magistrates’ court by a single magistrate sitting in private. The fines can be enormous as this case illustrates.

Mr Rowland got on his usual bus to work and found he had left his wallet at home, so couldn’t pay the £1.50 fare then. The bus driver allowed him on since he knew him.  Unfortunately a bus inspector got on, and refused to accept the story. When Mr Rowland, a financial consultant, got his summons he got the impression that the fine would be £225.  He pleaded guilty (by post), just to save hassle but, after the case was heard in his absence, he received a request for £756.50. The sum was made up of a £500 fine, the original ticket price, costs of £225 and a “victim surcharge” of £30.  The court said failure to pay within 14 days would result in a warrant being issued for his arrest, and the fine increasing by a further 50 per cent.  Mr Rowland said “I was in shock. The whole thing is a Kafka-esque nightmare”.  But he appealed the conviction, and eventually TfL dropped the case.

If a highly educated man can misunderstand the implications of pleading guilty to fare evasion (of which he was in fact innocent), what about everyone else faced with the webpage saying are you guilty or not? The government’s proposals for an online process say telephone help would be available, but it would also be crucial to spell out all implications of pleading guilty on the website itself, because many are busy (like Mr Rowland), and/or think they understand, when they don’t.  And to correct mistakes, or misunderstandings, there needs to be a clear, easy, free appeal process.