Guilty Plea Decisions: Moving Beyond the Autonomy Myth
| Published date | 01 January 2022 |
| Author | Rebecca K. Helm,Roxanna Dehaghani,Daniel Newman |
| Date | 01 January 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12676 |
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Modern Law Review
DOI:10.1111/1468-2230.12676
Guilty Plea Decisions:Moving Beyond the Autonomy
Myth
RebeccaK. Helm,Roxanna Dehaghani
and Daniel Newman∗
When a defendant pleads guilty to a criminal charge against them their conviction may be
justied on the basis of autonomy rather than accuracy. In this context,autonomy can make
the dierence between a legitimate conviction and the breach of fundamental rights.How-
ever,autonomy inthiscontextis notclearlydened. Thisarticle argues, basedonphilosophical
conceptions of autonomy and empirical realities, that true autonomy is an ideal rather than a
practical reality. It considers the level of autonomy necessary to legitimise a criminal convic-
tion via plea, and suggests that current conceptions of autonomy are inadequate since they rely
on a formalistic autonomy ‘myth’, presuming autonomy in the absence of threats. An analysis
drawing on original empirical data from two studies demonstrates how autonomy may be be-
ing depleted to unacceptable levels in the current system.The article concludes by presenting
reform proposals.
Keywords: Guiltypleas, cr iminal procedure, human rights, autonomy, vulnerability, empirical
law
INTRODUCTION
When a defendant in the criminal justice system decides to plead guilty this
constitutes a waiver of their right to a full trial under Article 6 of the Euro-
pean Convention on Human Rights (ECHR).The prosecution is no longer
required to prove that they are guilty beyond reasonable doubt, and their sta-
tus automatically changes to that of a convicted person.It is not required that
a guilty plea be shown to be an accurate admission of guilt,or even reliable
evidence of guilt.As Jeremy Horder states in Ashworth’s Principles of Criminal
Law: ‘A guilty plea may simply be accepted more or less at face value,as proof
beyond a reasonable doubt of the allegation in question … A guilty plea is not
automatically subject to vigorous testing for its veracity,in the way that a plea
of not guilty is tested.’1
∗Senior Lecturer in Law, University of Exeter Law School and Senior Lecturers in Law, Cardi Uni-
versity School of Law and Politics,respectively. This researchis funded in par t bya UKRI Fellowship
awarded to the rst author [MR/T02027X/1] and in part by a British Academy grant to the sec-
ond and third authors [SRG\170958]. The authors are grateful to Martha Fineman,Richard Nobles,
Julian Roberts, LeanneSmith, Richard Moorhead, andthetwo anonymous reviewersfor theircom-
ments on previous drafts of this article,and to all those who participated in our empirical research.
The full research data supporting this publication are available on request from the rst author.
1J.Horder, Ashworth’s Principles of Criminal Law (Oxford:OUP,9
th ed, 2019) 11.
© 2021The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(1) MLR 133–163
Thisis an open access ar ticle under the terms of the CreativeCommons Attr ibution License,which permits use,distr ibution and reproduction
in any medium, providedtheoriginalworkis properly cited.
Guilty Plea Decisions
Because a guilty plea does not need to be tested in the way that a plea of not
guilty does, guilty pleas have important benets for the criminal justice system.
When a defendant pleads guilty, it can reduce the impact of crime upon victims,
it saves victims and witnesses from having to testify and it saves public time
and money on investigations and trials.2In fact, if all defendants in England
and Wales wanted to go to trial rather than plead guilty,the criminal justice
system would be in danger of collapse due to the time and expense involved
in trials.3However,this lack of testing for veracity also means that convictions
via guilty plea cannot necessarily be justied in the same way as convictions
via trial, which are typically justied on the basis of being both accurate and
obtained in a fair and rights-compliant way.4Having sucient justication for
convicting a defendant is vital from a rights-based perspective,since convictions
involve signicant curtailment of fundamental rights guaranteed by the ECHR,
including the right to liberty and the r ight to respect for private life.Such r ights
cannot be curtailed purely to attain benets for the criminal justice system.
Reliance on guilty pleas to achieve criminal convictions despite the absence
of meaningful enquiry into their veracity can potentially be justied in one
of two ways:rst, if only guilty people are likely to plead guilty and thus the
guilty plea can be accepted as a reliable indication of guilt absent additional
enquiryin individualcases, or, second, if convictionsarisingfrom guiltyplea
are justied on a basis other than the guilt of the defendant,for example on
the basis of defendant autonomy.Guilty pleas have traditionally been viewed as
reliable indications of guilt,in part because they are seen as admissions made
against one’s own interest.However, the presence of incentives to plead guilty
mean thataguiltypleamaynotalways, or eventypically,beanadmissionmade
against one’s own interest.Research suggests that both guilty and innocent de-
fendants do plead guilty, and legal systems often either explicitly or implicitly
acknowledge that this is the case.5In England and Wales,data provides sup-
port for the contention that people who are factually innocent, or at least who
may not be legally guilty,are pleading guilty.Of the 128 cases referred to the
Court of Appeal by the Criminal Cases Review Commission as potential mis-
carriages of justice (for review of conviction only or of conviction and sen-
tence) from 2012–18,approximately 50 cases involved defendants who initially
2 SentencingCouncil, Reduction in Sentence for a Guilty Plea Denitive Guideline (2017),
4 at https://www.sentencingcouncil.org.uk/overarching-guides/crown-court/item/
reduction-in-sentence-for-a-guilty-plea-rst-hearing-on-or-after-1-june-2017/#B.%20Key%
20principles (last accessed 28 June 2021).
3RvDavid Caley and others [2012] EWCA Crim 2821 at [6].
4I. Dennis, The Law of Evidence (London: Sweet andMaxwell, 6th ed, 2017) ch 2.Use of guilty
pleas can be seen as part of a trend away from a ‘rights-bearing’ defendant in the criminal trial,
see R. Gimson, ‘Themutable defendant: frompenitent torights-bear ing andbeyond’(2019)40
Legal Studies 113.
5In the United States this is explicitly acknowledged by what is known as an Alfordplea through
which an individual can plead guilty while maintaining a protestation of innocence.See C.
Shipley, ‘The Alfordplea: Anecessarybut unpredictabletool forthecriminaldefendant’ (1986)
72 Iowa Law Review 1063. Note that this is not the case in all jurisdictions;for example Canada
require an accused to admit all elements of an oence to plead guilty,although this is not thought
to stop the innocent pleading guilty,see J. Brockman,‘An oer you can’t refuse:Pleading guilty
when innocent’ (2010)56Criminal Law Quarterly 2010.
134 © 2021The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(1) MLR 133–163
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