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September 8, 2021

Swipe right to plead guilty

Does it matter where and how someone pleads guilty or not guilty to a crime? The government is proposing that defendants should have the “option” to plead guilty or non guilty online ie on a computer or mobile phone. They are reviving a proposal first put forward in the 2017 Prisons and Courts Bill and abandoned due to the election that year. (We have published a briefing on this and other criminal justice proposals in this new Judicial Review and Courts Bill).

The online plea proposal assumes that entering a plea is a purely administrative hearing – that people know if they are guilty or not. But, in fact, deciding whether someone is guilty of a crime can be very complicated. Is the charge the right one? Has all the evidence been disclosed? Does the defendant have a viable defence? Is the prosecution in the public interest? Does the defendant understand what credit they would get if they pleaded guilty? What sanction and criminal record might the defendant get if they plead guilty? All these questions may need to be discussed before the defendant enters their plea, preferably with their lawyer but, if unrepresented, with the court staff and judge. The government is proposing that the plea should merely be a tick in an online form, with the box ticked by a lawyer for more serious cases.

We have a number of concerns about online pleas

  • The opportunity to challenge the charge may be lost or delayed. We don’t have a US plea bargaining system, but defence will often seek to get the CPS to change the charge – on the basis of the evidence. Revisions to charges prompt more guilty pleas and make for a more efficient system. But if pleas go online this conversation between defence/defendant and prosecution may never happen. This may leads to court delays and to miscarriages of justice where unrepresented defendants accept an inappropriate charge with a higher tariff.
  • Will unrepresented defendants have any idea what to plead? Transform Justice’s research on unrepresented defendants in the courtroom suggested many don’t understand the nuances. They sometimes plead guilty when they have a viable defence, or not guilty when the evidence against them is overwhelming. In the courtroom they won’t get legal advice but they will get guidance from human beings – the legal advisor, the prosecutor and the bench. Documents published with the bill imply that only those accused of non-imprisonable offences will be able to enter a plea unrepresented, but the bill itself seems to allow unrepresented defendants to plead to any crime online.
  • Children will be allowed to make online pleas, as long as their parent or guardian is aware. But all children who are charged with crimes are vulnerable and recent evidence suggests that they are particularly susceptible to pleading guilty when they are innocent or when they have a viable defence. They need expert legal advice before entering a plea, and their lawyer needs to discuss the case with the YOT and the prosecution. The Youth Court is the best venue for discussion prior to the plea hearing.
  • If pleas are entered online, disabled defendants may suffer discrimination – partly through not being identified, partly through lacking reasonable adjustments. The majority of those charged with criminal offences are not currently screened/assessed for health or mental health conditions. Yet many of defendants will have hidden or unidentified disabilities, which may affect their ability to understand and process legal concepts in the absence of reasonable adjustments. There is no provision in the bill for screening by health practitioners and all the onus for identification of these hidden disabilities is put on lawyers. Great though defence lawyers are, this is unrealistic and unreasonable.
  • The plea hearing is a critical moment in any case and is currently an open hearing, accessible to victims, witnesses, the press and the public. Putting pleas online will close down justice. Reading minimal information about a case online is not the same as sitting in court and hearing about it.

The financial prospects for the Ministry of Justice are grim and online pleas will save millions. But at what cost to justice?

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