Pleading Guilty: Why Vulnerability Matters
| DOI | http://doi.org/10.1111/1468-2230.12374 |
| Published date | 01 November 2018 |
| Date | 01 November 2018 |
bs_bs_banner
THE
MODERN LAW REVIEW
Volume 81 November 2018 No. 6
Pleading Guilty: Why Vulnerability Matters
Jill Peay and Elaine Player∗
This article examines the Sentencing Council’s recent definitive guideline on what reductions
in sentence can be offered for a guilty plea. We argue that its emphasis on facilitating early
guilty pleas represents more than just an incentive to those intending to plead guilty and poses
significant risks for defendants with vulnerabilities. The article questions whether the guideline
can amount to an inducement to plead guilty which places uneven burdens on defendants and
fails to pay due regard to the duties owed by public authorities under the Equality Act 2010.
In so doing it asks questions about the integrity of the criminal justice process and argues that
issues of cost-efficiency and the constructed interests of victims may have outweighed both the
rights of those with vulnerabilities and the objectives of the legislative framework designed to
protect them. The issues raised are universally relevant to any system that favours defendants
who offer guilty pleas.
‘At present something of the order of 75 per cent of all Crown Court cases
result in pleas of guilty; if in all those cases the defendants were out of defiance
or otherwise to insist on each detail of the case being proved to the hilt the
administration of criminal justice would be in danger of collapse’, Lord Justice
Hughes in RvDavid Caley and others.1
INTRODUCTION
The Sentencing Council’s 2017 definitive guideline Reduction in Sentence for a
Guilty Plea is designed to ensure that defendants who intend to plead guilty
do so as early in the court process as possible.2In publishing this definitive
∗Professor of Law, LSE and Professor of Criminology and Criminal Justice, Kings College, London
respectively. We are grateful for comments both from Andrew Ashworth and Julian Roberts, and
from the two anonymous MLR reviewers. Unless otherwise stated, all URLs were last accessed
20 October 2017.
1RvDavid Caley and others [2012] EWCA Crim 2821 at [6] per Lord Justice Hughes.
2 Sentencing Council, Reduction in Sentence for a Guilty Plea. Definitive Guideline (2017),
4 at http://www.sentencingcouncil.org.uk/wp-content/uploads/Reduction-in-Sentence-for-
Guilty-plea-Definitive-Guide_FINAL_WEB.pdf. The definitive guideline came into force on
1 June 2017.
C2018 The Author.The Moder n Law Review C2018 The Modern Law Review Limited. (2018) 81(6) MLR 929–957
Published by JohnWiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 101 Station Landing, Medford, MA 02155, USA
Why Vulnerability Matters
guideline the Council has, following consultation, revised its draft guideline.3
Neither document has, in our view, dealt adequately with the important con-
sequences of this emphasis on early plea for those with vulnerabilities.4These
vulnerabilities vary, but include those with learning difficulties, autism, men-
tal illness or personality disorder, and also arise from issues relating to gender
and/or black and minority ethnic (BAME) status. What they have in common
is that they may all make individuals more susceptible to the incentive to offer
an early plea of guilty to the offence or offences charged. This is not a new
problem, but is inherent in any system that promotes guilty pleas. However, the
renewed pressure to tender guilty pleas at the earliest opportunity exacerbates
the risks of injustice faced by vulnerable defendants.
The term ‘vulnerability’ used here relates both to individual differences and
to how those differences can interact with the criminal justice system’s emphasis
on obtaining early guilty pleas. That the system benefits from guilty pleas is
clear. It is clear in the Court of Appeal’s views in RvDavid Caley and others5
(Caley and others). It is clear in the Sentencing Council’s consultation and draft
guideline, and in the definitive guideline. And it is clear in Lord Justice Colman
Treacy’s letter to the Criminal Law Review.6Whilst the effective running of
the criminal justice system relies on guilty pleas, the Council’s emphasis on
securing early pleas has consequences over and above those associated with
pleading guilty per se.
A system which relies so heavily on guilty pleas raises a number of important
questions about why people choose to do this and waive their r ight to put
the prosecution to proof. In effect, they are self-criminalising, an issue rarely
acknowledged in the academic literature on the processes of criminalisation.7
Of particular concern is whether some groups are disproportionately vulner-
able to the incentive to plead guilty and, as a consequence, are more likely to
enter a guilty plea inappropriately. This is not a new concer n. Andrew Ash-
worth, in 1998, observed that ‘the pressures to plead guilty are at present too
great and the effect on innocent defendants (especially those from certain racial
minorities) unacceptable’.8Prior to that Roger Hood had noted that part of
the overrepresentation of black males in the prison system derived from their
greater tendency to plead not guilty: such defendants would, on conviction,
thereby forgo the sentence discount for a guilty plea, potentially creating indi-
rect discrimination against this ethnic minority group.9Indeed, Michael Tonry
3 Sentencing Council, Reduction in Sentence for a Guilty Plea Guideline. Consultation (2016)
at https://www.sentencingcouncil.org.uk/wp-content/uploads/Reduction-in-sentence-for-a-
guilty-plea-consultation-paper-web.pdf.
4 Vulnerability is not an unproblematic concept: see N. Urquiza-Haas, ‘Vulnerability Discourses
and Drug Mule Work:Legal Approaches in Sentencing and NonProsecution/Non-Punishment’
(2017) 3 The Howard Journal of Criminal Justice 309.
5n1above.
6 ‘Letter to the Editor’ (2016) Criminal Law Review 489.
7 N. Lacey, ‘Historicising Cr iminalisation: Conceptual and Empirical Issues’ (2009) 72 MLR 936.
8A.Ashworth,The Criminal Process: An Evaluative Study (Oxford: OUP, 2nd ed, 1998) 296.
9 R. Hood, Race and Sentencing (Oxford: OUP, 1992). Hood’s figures show that approximately
13% of black male overrepresentation in the prison system arose from the fact that many more
black than white defendants pleaded not guilty.
930 C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited.
(2018) 81(6) MLR 929–957
To continue reading
Request your trial