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August 27, 2021

Computer says yes – you will pay a fine and get a criminal record

Media about the criminal justice system is dominated by trials with judges and barristers in wigs arguing the finer points of law. But the majority of those accused of crimes in England and Wales plead guilty, and most defendants are convicted without ever entering a courtroom.

The single justice procedure (SJP) is the hidden site of most criminal prosecutions in England and Wales. Under this process, those prosecuted for crimes like fare evasion, not having a TV licence and, recently, Covid 19 breaches are encouraged to plead guilty or not guilty online or by filling in a paper form. Then the case is dealt with by a magistrate sitting alone (at home during the pandemic). The JP convicts and sentences “on the papers” or, more usually, without any papers since most people don’t plead and are then assumed to be guilty. Defendants who do not respond to the postal charge are sentenced to pay the maximum fine and costs. These can be very high. Transport for London charges a minimum of £225 in prosecution costs for the crime of not having a £1.50 bus ticket – way more than the Crown Prosecution Service for much more complex prosecutions. The single justice procedure is a closed court with no access for media or public to the “hearing”. No data on SJP prosecutions is published by the Ministry of Justice.

The government wants to expand the use of online pleas and automatic online convictions – the latter being SJP mark 2. In the Judicial Review and Courts Bill (tabled in July, our briefing here) they propose that defendants who plead guilty of fare evasion should go through a complete online criminal court, with no human being involved. Defendants will be sent the charge in the post and have the “option” of having the crime and the punishment entirely dealt with through filling in a computer form, including the payment of the fine. The government says the new process will initially be used for two offences, with others coming on stream through secondary legislation. This signifies a revolution in the criminal justice system – it looks as if most offences currently dealt with via the SJP will move to the automatic online conviction system. I suspect nearly all non-imprisonable summary offences will be transferred from the physical magistrates’ court to the SJP/online conviction process, such that only a third of crimes will have a physical court hearing.

I am all for convenience, speed and saving money, but not at the cost of justice itself. Evidence of how the SJP has gone wrong suggests we will be paying that price many times over if we promote automatic online conviction, which has even fewer safeguards.

  • Under the ECHR, every defendant has a right to a fair and public hearing. This means anyone who pleads online is technically waiving their human rights. The documents published with the new Bill all refer to the online court as an option, not the default. But the introductory page sent to defendants charged under the SJP makes no mention of the option of having the case dealt with in a physical court. All the nudging is towards online.
  • Another legal right is for the defendant to “effectively participate” in any court hearing. This means understanding the charge and being able to give your side of the story. Over 2/3 of defendants charged under the SJP do not respond to the postal charge. This is lack of participation altogether, let alone effective participation. No-one knows quite why the response rate is so low, but it could be because defendants don’t actually receive the charge (send by snail unregistered mail) or because they don’t understand it or because they have mental health issues. In six years of running the SJP, the government has not sought to find out.
  • The process rides roughshod over disability rights. All disabled people have a right to equal access to services. But there are no proper reasonable adjustments in the process. The SJP relies on people being able to identify and describe their own disability, on the defendant declaring that disability in the form (which their disability may prevent them opening/understanding) and on their paying for a phone call to an HMCTS helpline. At no point in the process are they given access to free legal advice.
  • The prosecutor of any crime should be impartial and independent. Under the SJP and the future automatic online conviction process, the prosecutor is also the victim of the crime and thus not independent. The prosecutor also decides the compensation and costs awarded.
  • A principle of our system is that criminal sanctions should be just. This is why courts fines are adjusted according to the means of the defendant. The automatic online process metes out the same fine to everyone who pleads guilty to a particular offence. So the rich will pay the same amount as the poor. The government says poorer defendants will be able to go to court instead but, without legal advice, will a defendant be able to judge whether they would be better off going to court?
  • Justice should be open. At the moment, there is no public information about the automatic online conviction process for motoring offences let alone access to the decision-making process. My colleagues at Appeal had to FOI the key documents defendants receive via the SJP. For automatic online convictions, there is no evidence of how many defendants use the system, what sanctions they receive, exactly what they online process looks like, nor what information is given about criminal records. There is no transparency.

The government is already saving significant sums through using the SJP for most offences. And they estimate that automatic online conviction will actually cost more. So what price justice? The prosecution of Covid 19 offences has shown what happens when legislation is rushed through, prosecution is in the hands of those who don’t understand the law, and the system is not transparent. If automatic online conviction is to become the new default court system, we need many more safeguards than are provided in the Judicial Review and Courts Bill.

 

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