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The right to know you are accused of a crime

Penelope Gibbs
19 Aug 2019

Everyone charged with a criminal offence has the right to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him (Article 6 of the European Convention on Human Rights)

ECHR is usually referred to in relation to serious trials. But I think it is being contravened every day in relation to volume crime. The police are hardly involved in the prosecution of minor crimes – TV licensing prosecutes the non payment of the TV licence, and the rail companies prosecute fare evasion. These are now hidden crimes. Those accused seldom come to court and most cases are decided “on the papers” by a single magistrate in a closed court. People accused of these summary offences are sent the charge papers in the post, and asked to plead guilty or not guilty either on a paper form or online. Those who plead guilty are fined – they get a discount for pleading guilty and a further discount if they have powerful mitigating circumstances. Those who plead not guilty are called to the magistrates’ court for trial, and those who don’t plead at all get the worst of all worlds. They are found guilty but don’t get any discount for pleading guilty, and get no opportunity to put forward mitigation.

Over 80% of those accused of summary offences do not plead at all whether online or on a paper form. I suppose the government would say they were informed (ECHR) but how can the courts service be sure that anyone receives post? Some post is lost by the post office, some is delivered to blocks of flats and houses of multiple occupation and lost, some post is stolen, some post is not opened by people with mental health problems and many people have literacy or language issues and cannot understand the post they receive. Some people lead chaotic lives and lose their letters. So we have worked out that over 80% of those who receive charges in the post under the single justice procedure do not plead guilty or not guilty. Some are undoubtedly in denial, and/or think if they ignore the letter they may “get away with it”, but I would’ve thought the majority of people were not “informed properly” in a language they understood.

Why is this a problem? For a start it looks as if people’s human rights may be being violated. But in addition we are creating an unfair system. If people do not get the charge in the post, they will be convicted and fined without even knowing they were prosecuted. If they don’t pay the fine, they can be arrested and charged for not paying the fine. The kind of people who get caught in this spiral are the most excluded in society – people with learning difficulties and mental health problems, homeless people and those who cannot read English. Altogether no-one pleads guilty or not guilty to three quarters of all criminal offences, up from 55% in 2015. This seems mostly due to the advent of the single justice procedure.

What do we do? This level of non-engagement threatens the rule of law and trust in the justice system. Encouraging people to plead online appears to slightly improve response rates, but not enough. Lets pause the drive to take criminal cases out of open physical courts and halt expansion of the single justice procedure until we know more. HMCTS may be pleased by the “success” of the online process, but if only a tiny minority of those charged get online, the success is pretty limited. The risk is that by pushing a broken system online we ignore its inherent faults.