Conviction by Consent? Vulnerability, Autonomy and Conviction by Guilty Plea

Date01 April 2019
Published date01 April 2019
AuthorRebecca K Helm
DOI10.1177/0022018318822223
Subject MatterArticles
CLJ822223 161..172 Article
The Journal of Criminal Law
2019, Vol. 83(2) 161–172
Conviction by Consent?
ª The Author(s) 2019
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DOI: 10.1177/0022018318822223
Conviction by Guilty Plea
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Rebecca K Helm
University of Exeter Law School, UK
Abstract
A criminal conviction resulting from a guilty plea rather than a full trial is typically justified on
the basis that the defendant had the ability to go to trial but instead chose to admit guilt in
exchange for a small sentence reduction. In other words, the conviction, and associated waiver
of rights, occurred by consent. In this article, I challenge that notion by drawing on psycho-legal
research on vulnerability and consent and research on guilty pleas in the USA. I suggest that
while plea procedure in England and Wales appears less coercive than the practice of ‘plea
bargaining’ in the United States, aspects of the system are highly problematic and are likely to
be leading to non-consensual guilty pleas, through which innocent defendants are pleading
guilty.
Keywords
Guilty pleas, criminal procedure, consent, vulnerability
Introduction
While extensive research has examined the problem of wrongful conviction in the US ‘plea bargaining’
system, guilty pleas in England and Wales have not received the same consideration. This is despite
research dating back to the 1970s showing that ‘false’ guilty pleas (guilty pleas from defendants who are
factually innocent) are likely to be occurring.1 More recently, where guilty pleas and associated sentence
reductions have been considered, they have largely escaped criticism, with researchers concluding
sentence reductions are modest and reasonable.2 Thus even though it is known that innocent defendants
1. J Baldwin and M McConville, Negotiated Justice: Pressures to Plead Guilty (Martin Robertson, 1977); J Baldwin and M
McConville, ‘Plea bargaining and plea negotiation in England’ (1978) 13 Law & Society Review 287; A Ashworth and M
Redmayne, The Criminal Process (4th edn Oxford University Press: Oxford, 2010) 310–20.
2. See N Vamos, ‘Please Don’t Call it “Plea Bargaining”’ (2009) 9 Criminal Law Review 617; JV Roberts and B Bradford,
‘Sentence Reductions for a Guilty Plea in England and Wales’ (2015) 12(2) Journal of Empirical Legal Studies 187.
Corresponding author:
Rebecca K Helm, University of Exeter Law School, Amory Building, Rennes Drive, Exeter EX4 4RJ, UK.
E-mail: r.k.helm@exeter.ac.uk

162
The Journal of Criminal Law 83(2)
are likely to be pleading guilty, the choice to do so is still seen as largely rational, autonomous and
consensual.3 However, psycho-legal research and a more thorough examination of the literature on the
US system suggest that this conclusion is at least partially incorrect. It overlooks the context in which
guilty pleas are being made, in which vulnerable defendants can face incentives to plead (in addition to
relatively minor sentence length reductions) that call into question the voluntariness of plea decisions
and undermine their consensual nature. These incentives mean that some defendants are left with no
practical choice but to plead guilty and undermine the status of conviction by guilty plea as consensual.
Convictions that occur as the result of plea and not trial have been referred to as ‘convictions by
consent’.4 This is because the defendant being found guilty without the protections of a full criminal trial
is justified by the fact that this was the result of the defendant’s own choice—they could have contested
their guilt at trial but chose instead to admit guilt. The soundness of convictions that occur in this way is
dependent on the reasons why the defendant decided to plead guilty. Traditionally, plea decisions have
been seen as the defendant being able to freely admit to something that (s)he has done, save the system
time and money and receive a reduced sentence in recognition of this.5 However, increasingly research
suggests that in the right conditions plea decisions are not always or even typically consensual admis-
sions of guilt, but are rather tactical decisions based on forecasting the probability of conviction at trial
and the likely outcomes of trial, and evaluating potential discounts in exchange for pleading guilty.6 This
is particularly true since defendants can often be fairly sure of the sentencing outcome should they plead
guilty, through a Goodyear hearing in which a defendant can ask a judge for an advance indication of
sentence based on a plea of guilty.7
As plea decisions are recognised as tactical decisions rather than just admissions of guilt, research
into how these decisions are made and whether they are truly autonomous and consensual is, it is
suggested, vital to the integrity of a criminal justice system.8 Rather than relying on such research, plea
systems typically presume that defendants are rational and autonomous agents despite increasing rec-
ognition that this is not the reality.9 In fact, many defendants are likely to be vulnerable, subject to
external pressures and in need of protection from the justice system. In the context of guilty pleas,
defendants require protection from coercive deals and external pressures that may lead them to plead
guilty for the wrong reasons, particularly when innocent. However, such protection has not been pro-
vided despite empirical research demonstrating external pressures faced by defendants.10 In fact, rather
than providing protections for defendants, criminal justice systems, including the system in England and
Wales, are increasingly adding to pressures that may lead defendants to plead guilty—for example, by
allowing a guilty plea to make the difference between a community and custodial sentence or allowing a
guilty plea to result in immediate release from custody where contesting guilt would result in a longer
period on remand. These incentives are based on the premise that even where pressures are placed on the
defendant, their decision to plead guilty is still consensual.
3. Ibid.
4. J Baldwin and M McConville, ‘Conviction by Consent: A Study of Plea Bargaining and Inducements to Plead Guilty in
England’ (1978) 7(3) Anglo-American Law Review 271.
5. See SC Thaman, ‘Plea-Bargaining, Negotiating Confessions and Consensual Resolution of Criminal Cases’ (2007) 11(3)
Electronic Journal of Comparative Law (accessed 28 December 2018).
6. S Bibas, ‘Plea Bargaining Outside the Shadow of Trial’ (2004) 117 Harvard Law Review 2464
7. R v Goodyear [2005] 3 All ER 117.
8. A defendant who enters a plea non-voluntarily or non-consensually cannot be said to have had a fair trial, and as stated by Lord
Steyn in Brown, ‘if the defendant had not received the substance of a fair trial, the administration of justice had entirely failed’.
R v Brown [2003] 1 AC 681 at 708.
9. In fact, this is part of a wider phenomenon in the criminal justice system where defendant rights are being balanced against
community interests, expediency and other utilitarian-based concerns, see L Hoyano, ‘What is Balanced on the Scales of
Justice? In Search of the Essence of the Right to a Fair Trial’ (2014) 1 Criminal Law Review 4.
10. See Baldwin and McConville (n 1).

Helm
163
In this article, I highlight vulnerabilities of defendants when considering whether to plead guilty in
England and Wales and explore how these vulnerabilities can interact with current procedure to under-
mine the autonomy and consent of defendants facing plea decisions, and ultimately to lead innocent
defendants to plead guilty. I begin by examining the notion of vulnerability as a foundation for evaluat-
ing infrastructure in the criminal justice system and draw on research from psychology to analyse
vulnerability’s connection to psycho-legal concepts of consent, autonomy and voluntariness. I then
relate these concepts to the regulations surrounding guilty pleas, highlighting the delicate relationship
between guilty pleas, the presumption of innocence and access to justice. I then briefly explore the US
‘plea bargaining’ system to illustrate how plea procedure can undermine defendant choice and lead to
innocent defendants pleading guilty. This context is used to analyse the current plea system in England
and Wales.
I consider situations in which the autonomy of defendants may be undermined when making plea
decisions, meaning that decisions to plead guilty may not truly be voluntary or consensual. First,
defendants may feel forced to plead guilty where this provides an immediate way to get out of custody,
they have an urgent need to get out of custody, and they will remain remanded in custody if they want to
exercise their right to a full trial. Second, defendants may feel forced to plead guilty where a guilty plea
will likely make the difference between a custodial sentence and a community sentence and they cannot
afford economically or socially to risk a custodial sentence. Finally, defendants, particularly those who
cannot afford to take time away from work or child-care, may feel forced to plead guilty since this is
likely to provide a significantly quicker and cheaper resolution than contesting guilt at trial.11 While
mindful of the utilitarian benefits that are gained through processing criminal cases efficiently, quickly
and without the need for a full trial, I argue that legal infrastructure needs to recognise the vulnerability
of potential defendants and provide additional protection to ensure guilty pleas are being entered for the
right reasons. I suggest...

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