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April 2, 2017

Those who plead not guilty are not “gaming the system”

I increasingly experience two different criminal justice systems.  One peopled by IT specialists, the police and their advocates, the CPS, and some tasked with driving efficiency in the courts.  Another peopled by charities with work with offenders, by defence advocates and by publicly silent judges.  The agendas of the two groups are very different and I fear that the rights of the defendant are being undermined as a consequence of the IT crowd dominating.

The IT crowd talk as if the criminal justice system is a process, whose aim is to get all those accused of crimes to plead guilty, and as early as possible. Those who plead not guilty are accused of “gaming the system”. Language is key. The IT crowd frequently slip into talking of victims (in trials), rather than witnesses, and offenders rather than men or women who have been convicted of crimes.  So it’s not surprising that this group view good performance as getting as many people to plead guilty as possible, as early as possible, and then getting them processed as quickly as possible.  At a conference the other day, a delegate referred with disdain to judges being obsessed with achieving a just conviction, rather than with improving the throughput of the system.  Another inferred that a guilty plea was the right plea.

The problem with this approach is that it doesn’t fit the realities of the system, it threatens defendants’ rights, and may end up costing the state more. The IT crowd base their management of the system on the premise that crime is a rational, logical choice, and thus that everyone who commits a crime knows whether they are guilty or not.  In fact, most crime is opportunistic and/or spontaneous. In the case of some crimes (a teenager texting a picture of themselves naked to a friend), people are not even aware they have committed a crime; in others, the accused often can’t remember the crime, so they certainly don’t know whether they are guilty or not.  A young man involved in a drunken fight and accused of assault may have little recollection of the event.  If he asks to see CCTV before pleading guilty or innocent, it is not because he wants to game the system, but because he needs to see what he did, and more importantly what the alleged victim did in the fight.  Another reason why a guilty plea may not be the right plea is that our criminal law is fiendishly complicated – the same incident can be charged in different ways, with very different penalties. And the accused may have a perfectly viable defence.  A defendant cannot judge whether the reason they did something counts as a viable legal defence – they need the considered advice of a lawyer.

In the case of some offences, like speeding, it is often clear whether someone is guilty or not. But such “clear-cut” offences are few and far between. Yet the system is pressuring people to plead guilty “at the earliest opportunity”.  Defendants who do so are promised a more convenient, quicker process and a lower sentence. What’s not to like if you feel the odds are stacked against you?

The flaw in the systemic pressure to plead guilty is that it only benefits some parts of the system, and it certainly doesn’t benefit the individual if they had a viable defence. More guilty pleas tick the CPS performance box, but result in more people serving sentences.  These cost the government a lot, particularly if that sentence is imprisonment. They also create an army of people dogged by criminal records. Many convictions result in a criminal record for life – a huge barrier to employment, housing and education.

The Prisons and Courts Bill threatens to create more pressure on people to plead guilty, whether they are or not. More virtual hearings (on phone/video) will lead to more people pleading without the advice of a lawyer, and the new system for pleading guilty or not guilty online will certainly lead to more (wrong) guilty pleas.  The government assures us that those who inform defendants of their ability to plead online with be given a choice, and that the online plea is only an “indication”. But they also say that those who are inclined to plead in court will have to wait weeks for a court hearing.  And while the police/IT crowd continue to believe that guilty pleas are the “right” pleas, it is inevitable that they will (possibly unwittingly) pressurise defendants to plead guilty online.

The appeal system should provide a check on injustice, but it can’t help you much if you pleaded guilty. A recent case illustrates the problem:

“the claimant appealed for judicial review to re-open his conviction for common assault. The offence had allegedly been committed against a 14-year-old boy, in the care of the defendant as an agency worker in a care home. At his first appearance in court, he intended to enter a not guilty plea on the basis of self-defence. However, he changed this on the first day of his trial. He asserts that his then- solicitor had pressured him into entering a guilty plea; as a result, he was no longer able to find work in the social care sector. Whilst the magistrates’ court can make an order to re-open a conviction when it is in the interests of justice (under s.142 Magistrates’ Courts Act 1980) it can only be exercised where there has been a mistake or a situation akin to a mistake. A subsequent change of heart or regret at entering a guilty plea will not suffice as a mistake and the defendant’s conviction was reinstated”.

It sounds to me as if the care worker had a reasonable legal defence.  But by pleading guilty he ruined his career.  With people indicating their plea online, and fewer consulting lawyers, how much more frequent will such tragedies be?

PS There may be a tiny minority of defendants who understand how to “game the system”. But should we be risking the rights of thousands of ordinary defendants to curtail this tiny handful?