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September 9, 2019

Why on earth should the innocent plead guilty?

It can be hard for someone who has never been charged to understand how someone could admit guilt for a crime of which they are innocent. But it is easier than you think.

I recently noticed how few people seemed to plead either innocent or guilty to crimes of which they were accused (in 3/4 of all criminal cases in the magistrates’ courts there is no plea). This is particular so when the charge notice is sent out by post and defendants are supposed to plead guilty or not guilty online. If they do plead to such “minor” crimes, most people plead guilty. There are huge incentives to do so.

It is impossible to see the online single justice procedure in action – it is not open to public view – but I was shown how it worked at a court reform open day.  One of the initial web pages asked if you wanted to plead guilty or not guilty (say to not having a TV licence) and offered a discount off the fine of up to 30% if you pleaded guilty. If you do plead guilty you can finish the “court process” in minutes. If you plead not guilty, you have to go to court in person to plead your case. So many magistrates’ courts have closed that it may be a four hour round trip to reach the nearest one. You will get no legal aid in such cases so will have to represent yourself. No CAB or law centre will be able to help you prepare your case since they don’t deal with criminal cases. No wonder so many of those who do plead to such cases plead guilty.

The pressure to plead guilty is there at every level of the system – for minor and major crimes. And 72% of charges in the magistrates’ court attract guilty peas. Perhaps the strongest incentive to plead guilty is the discount on sentence, which is greater the earlier someone admits guilt. This discount can affect the length of the sentence but also its nature. For an offence which might attract a short prison sentence, a guilty plea can change this into a community sentence.

Dr Rebecca Helm, Exeter University, has studied the incentives to plead guilty in England and Wales – focusing mainly on more serious crimes. Her work suggests that the incentives are so strong that the innocent do plead guilty. She asked criminal lawyers about this. They of course should never pressurise anyone to plead guilty, but no advocate can prevent a defendant pleading guilty if they choose to.

One circumstance where defendants may want to plead guilty is if they are in prison on remand and would be likely to be released immediately on conviction. People who are homeless, who are foreign nationals and/or those accused of domestic abuse are sometimes remanded for offences which are unlikely to get custodial sentences, or at least sentences longer than they have served on remand. Such defendants face Hobson’s Choice – waiting many more weeks in prison for a trial at which they may be released whatever the outcome (with time on remand deemed time served if convicted) or plead guilty and get out of prison much sooner. 83% of lawyers Rebecca surveyed said “they had experience advising clients who could get out of jail by pleading guilty but would have to remain in jail awaiting trial if they pleaded not guilty”.

“People who have no fixed abode rarely get bail – the court will take the view that they are unlikely to come back to court on bail. So, if they plead not guilty their case is adjourned for a trial and they are remanded to prison. Frequently the sentence they would serve if they pleaded guilty is less than the time they spend on remand” (lawyer quoted in Dr Helm’s research).

“This issue tends to arise out of DV [domestic violence] cases where prosecutors are sensitised by the fear of bad publicity to ask for remands in custody out of fear that they are going to be `that prosecutor’ who agreed a bail package only to have the defendant seriously harm or kill a complainant. The problem is that the offences committed are rarely serious enough to merit immediate custodial sentences but the courts remand defendants until trial with the outcome being that their livelihoods are destroyed before the matter comes to trial” (lawyer).

If someone guilty pleads guilty it is clearly more cost efficient and saves victims from the trauma of giving evidence. But in some cases it is not clear whether someone is guilty – they may offer a defence which needs to be tested in court. The risk of our current system is that defendants who had nothing to do with the crime, or who have a good defence, are faced with huge advantages to pleading guilty.

Lawyers themselves say that the innocent do plead guity. 90% of the legal professionals surveyed by Dr Helm said that they do think that some defendants plead guilty just because it is quicker and easier than going to trial. And, of those, 61% said that some innocent people plead guilty for those reasons. Some respondents cited the cost of going to trial as an incentive to plead guilty. They are right. The “innocence tax” means it can be much more expensive who someone who is not eligible for legal aid, but wants to be represented, to go to trial in the magistrates’ court than to plead guilty and pay the fine.

How can the criminal justice system be fair if the pressure to plead guilty is so strong? Maybe the very low rate of people pleading at all reflects a feeling among defendants that the odds are stacked against them – so there is no point engaging. We desperately need more research and strategic litigation on this issue. Rebecca and I are going to try to fill the gap, but if anyone wants to help, do get in touch.