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

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

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.

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?

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

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South Africa’s new dawn: How Jacob Zuma’s misrule was ended

“We are going to look back at the past ten years and think of it as a lost decade.”

On the afternoon of 13 February, as South Africa’s President Jacob Zuma was recalled by his party, the African National Congress (ANC), a popular Johannesburg radio station began receiving calls about a peculiar incident.

A truck had lost its load along the M2 highway and people were scurrying to pick up what they believed to be tiny nuggets of unprocessed gold. The highway became congested as motorists pulled over to join the search. Even for a city that rose from the dust of a gold rush, this was a bizarre scene.

The first radio caller was giddy with excitement, as was the second. The third did what South Africans do best: he made light of an otherwise confusing and anxious day in the young nation’s history. “It’s manna from heaven,” the caller said. “Zuma’s just been recalled and already the roads are paved in gold.” Nine years into the president’s disastrous rule, South Africans had not lost their sense of humour – and were awaiting a new dawn. The police cleared the scene along the M2, no one proclaimed a worthy find and the nation returned to waiting for Zuma’s next move.

Technically, the president did not have to resign as head of state, despite the opposition of the ANC, the proud liberation movement turned ruling party that Zuma led for a decade until December 2017. Realistically, he had no options left.

With an overwhelming majority in parliament, the ANC was ready to table a motion of no confidence the next day. Defiant to the end, these final hours on the eve of Valentine’s Day were Zuma’s last stand.

They called him the “unstoppable tsunami” and with good reason. Zuma damaged South Africa and the ANC in ways only history will fully capture. He wrecked a country struggling to rebuild itself under the shadow of apartheid. Under his rule, the economy stagnated, unemployment rose, poverty grew, violent crime spiked and corruption became endemic.

“South Africa was headed in the wrong direction,” says Mmusi Maimane, leader of the Democratic Alliance, the official opposition, which governs in cities including Johannesburg and Cape Town. “We are going to look back at the past ten years and think of it as a lost decade,” the political analyst Stephen Grootes concludes.

Zuma lurched from one scandal to the next. He was acquitted of rape, avoided almost 800 corruption charges for over a decade and nearly crashed the economy by recklessly firing a respected finance minister. Taxpayers were misled over exorbitant upgrades to his private mansion (a swimming pool was defended as a fire-fighting feature) and his friendship with the controversial Gupta family placed him at the heart of what became known as “state capture”: the looting of state coffers through the corruption of senior government officials.

“State and independent institutions were repurposed for the enrichment and protection of Jacob Zuma,” says political commentator Justice Malala. “He went through the guts of the framework, pulled out the institutions he needed and systematically broke them down or took away their independence.”

The institutions ranged from the tax revenue service to the public broadcaster, from the police to the prosecuting authority, and from the intelligence services to crucial industries such as mining.

Although constitutionally barred from governing beyond 2019, Zuma was widely believed to have engineered a plan to hold on to power (and avoid prosecution) through his ex-wife, Nkosazana Dlamini-Zuma, who was campaigning to take over from him. By December, when the ANC met to pick its next leader, who would go on to become the country’s president in 2019, a mood of despair and hopelessness had set in.

The race was close. In the end, 179 votes out of nearly 5,000 cast separated Dlamini-Zuma from her challenger, Cyril Ramaphosa, a former union leader and businessman who had campaigned on an anti-corruption and pro-growth platform.

Ramaphosa’s victory in mid-December was a turning point. It removed the prospect of Zuma’s continued rule, began an instant shift in political power and sparked a moment of renewed hope. Ramaphosa had his own controversies, but was viewed as largely incorruptible. He had risen through the trade unions, served the ANC and built his wealth in the private sector. 

Following Ramaphosa’s election, the extent of state capture emerged through superb investigative journalism.

Politically driven prosecutions fell away, a hugely unpopular nuclear energy deal with Russia was frozen and, as Zuma was being recalled, police cars arrived outside the home of the Gupta family.

And yet, the president refused to leave the Union Buildings quietly, prompting comparisons with Margaret Thatcher. “He was the worst possible combination of ignorance, selfishness and incompetence that could have been inflicted upon the long-suffering people of South Africa,” read an editorial in the Daily Maverick on 13 February. “Now, stripped to the bare essence of being Zuma, the final image emerges, one of the selfish man who cared only for himself.”

Journalist Richard Poplak concluded: “What is born in chaos dies in chaos.”

 Zuma’s departure allows for the rebuilding to begin. The role played by the media, civil society – which found its voice during the Zuma years – and the judiciary (particularly the constitutional court) is being recognised. New president Ramaphosa delivered an inspiring state of the nation address the day after being sworn in.

“You can survive bad leadership, but what you won’t survive is bad institutions,” Mmusi Maimane told me.

There are no delusions over the epic challenges ahead. Unemployment is at 27 per cent (and is much higher for young, black South Africans) and GDP growth is stranded at 1 per cent. However, there is optimism, too: the “lost decade” is over and the Rainbow Nation’s renewal has finally begun. 

This article first appeared in the 22 February 2018 issue of the New Statesman, Sunni vs Shia