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10 September 2017updated 09 Sep 2021 5:57pm

The end of the courtroom trial – and why we should be worried

People accused of crimes are increasingly being incentivised to simply plead guilty.

By Jago Russell

When people think of justice, it’s often the same images that are conjured up. The wood-paneled courtroom, the judge in wig and gown. A jury sat attentively. Two sides fighting for justice. Grandstanding speeches. The trial is the archetype of criminal justice.

In reality, though, the trial is starting to disappear. People accused of crimes, are increasingly being incentivised to simply plead guilty and to waive their right to a trial. In the US, where a fifth of the world’s prison population reside, a shocking 97 per cent of cases don’t go to trial at all. Instead people are convicted following plea bargains struck with prosecutors.

And it is not only in the US that the trial is disappearing. Fair Trials recently published our own report – The Disappearing Trial – which shows this growing global trend towards encouraging guilty pleas. The world over, trials are increasingly seen as too costly and inefficient. Too often the justice system is seen by policy-makers as a production line. From that perspective, trials just get in the way of processing “outcomes” as quickly and efficiently as possible. Defendants are incentivised to give up their right to a trial and plead guilty to streamline the process.

In the UK, too, this is happening. In the higher courts of England & Wales the vast majority of convictions (about 90 per cent) result from guilty pleas, not trials. There are strong incentives for defendants not to go to trial and to plead guilty as quickly as possible – even before seeing the evidence against them and, in some cases, before getting legal advice.

The obsession with the guilty plea as the silver bullet solution to all ills in the justice system (and, there are many) has come up again in light of the Lammy Review, the independent review of the treatment and outcomes for Black Asian and Minority Ethnic people in the justice system.

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There is much I would agree with in David Lammy’s Review, which asked a number of valid questions about the experience of BAME defendants in the criminal justice system. But there is a whole chapter on “Plea Decisions” which should cause some pause for thought.

Lammy’s conclusion is that one solution to the disproportionate presence of BAME defendants in prisons is for more BAME people to plead guilty. The argument goes that if these defendants pleaded guilty as often as white defendants, they’d be more likely to avoid prison – because you get a reduced sentence (in many cases non-custodial) if you plead guilty.

Why is this a problem? Well, it might be focusing on the wrong question. Who’s to say that black defendants don’t more often have good reason to proceed to trial – for example, because they have been wrongfully or over-zealously arrested or charged by the police, or because their rights have been violated in the process?

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I am not convinced that encouraging BAME defendants to give up their right to trial is the best way to build their trust in the justice system. In the context of widespread discrimination at multiple levels from arrest to charge to sentencing, recognised in Lammy’s Review, it’s no wonder BAME defendants more often choose to plead not guilty to seek their day in court and to challenge the case against them.

Does the UK really want to encourage a system where it is quicker and easier to convict more BAME defendants that enter the criminal justice system? Perhaps a guilty plea (at least on a peron’s first encounter with the police) can keep them out of prison, but criminal convictions still blight lives. In the US, the mass criminalisation facilitated by guilty pleas has decimated entire BAME communities.

I hope that the focus of the much-needed reforms proposed by Lammy is on true diversion from the criminal justice system, rather than on encouraging more and quicker guilty pleas. Guilty pleas definitely have a place in criminal justice systems, but without safeguards, they can and will cause injustice.

Jago Russell is chief executive of Fair Trials