Legal Aid Cuts, Coercion and Pleading Guilty : A Toxic Cocktail and a Human Rights Hangover

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Criminal procedure and the justice system as a whole are not static leviathans they evolve over time. The effectiveness of a criminal justice system is measured in its ability to reflect the norms and values of the society in which it operates; this makes the system highly reactive to societal shifts. The rise to power of New Labour in 1997 brought with it manifesto promises to ‘reform Crown Prosecution Service to convict more criminals’, and speeches proudly announcing ‘zero tolerance of crime’. Politics has continued to see a shift to a crime control model of criminal justice, fueled by society generally perceiving trends in crime as rising despite its actual fall. During 2010 British Crime Survey showed that 60 per cent of those interviewed thought that crime in the country as a whole had gone up over the last few years. This has caused a push in criminal procedure to secure convictions and as a result the recognition that degree of coercion is an effective way to achieve early guilty pleas, saving time, money and importantly adding to conviction rates.

Undoubtedly, issues such as ‘cracked trials’ caused large delays and unnecessary expenditure within the criminal justice system and could not be allowed to continue to waste the time of an already exceptionally busy system. However, the legislative and procedural answer to these issues has been to encourage early pleas by offering the highest sentence discounts in return. This procedure gives to little time to the procedure system to gather effective evidence; as a result a degree of coercion provides an effective prosecutorial shortcut.

The government reform of legal aid in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, embodies this trend to save money and increase efficiency at the behest of poorest defendants. As a result our toxic cocktail is complete, a combination of a system which exposes the accused to coercive offers, the absence of a concerned and informed legal representative (or presence of an unconcerned legal representative) and the drive of policy goals to achieve high conviction rates, thrusts an isolated individual into a system with which they may have little or no experience and which is under pressure to find them guilty. Though the European Convention on Human Rights Article 6 is never made officially unavailable by these reforms, the risk is that the accused may be persuaded by offers that are to good to refuse out of ever exercising the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Indeed, many may shrug this off as an unwarranted concern, stating that surely only those who are actually guilty will plead guilty and that it is a basic requirement of English and Welsh criminal procedure that any guilty plea must be freely and voluntarily entered into, however this may not always be the case and a failure to acknowledge the risk of those who are innocent pleading guilty due to coercion is unacceptable.

The explicit exchange of reductions in charge for a plea of guilty, makes one alternative (the guilty plea) preferable to the other (trial) by guilty plea incentives. The offer of a sentence discount can be generally highly coercive. The Sentencing Council’s Crown Court Sentencing Survey found during 2011 that where a guilty plea was made, 74 per cent of offenders pleaded guilty either before or at the Plea and Case Management Hearing. The Time Internal Survey carried out in each of the magistrates’ courts in England and Wales records 44% of 23,371 defendants pleaded guilty at first hearing in 2010. The early nature of these pleas points to significant coercive effect that the guilty plea sentence reduction has on accused and defendants.

Now consider the study carried out by Zander and Henderson which concluded, 10% of those who plead guilt in the Crown Court claim to be innocent. In a similar number of cases the Crown Prosecution Service believe there would be reasonable chance of acquittal and that in around half of these cases, 1400 each year, the barrister believes these claims of innocence. These results point towards sentence reduction strongly encouraging the innocent to plead guilty. The accused is coerced out of taking the risk of exercising their article 6 rights, which for an accused who has no access to immediate, reassuring and informed legal advice, appears highly intimidating and intrinsically risky.

It should also be noted that those who depend upon legal aid will be the poorer members of society, a further link may then be established stating that these members of our society are more likely to have lower educational achievement (a factor made all the more possible given the increase in university fees) and as such not be as able to research and understand the role and purpose of a criminal trial as effectively as a legal representative and so the threat of the unknown and even the fear of having to face the procedure of trial alone may only add to the coercion to plead guilty.

Blumberg notes that ‘jury trial is an undesirable alternative, the threat of it … is thus one of the most powerful prosecutorial tools to reduce a defendant’s resistance’. Let us be clear, it is not the freedom of the defendant to rational thought and to the exercise of their rights which sentence reduction in return for a guilty plea removes, in fact it plays on this very rational freedom by tipping the scales of consequential decision making undoubtedly in favor of a guilty plea. Without good legal representation there is little chance of the accused gaining sound legal advice and being able to appreciate the opportunity that article 6 provides. Instead pleading guilty often appears to be the more desirable, easiest, if not safest, option.

Brendan Looby

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