George Smart, GDL Student, City University. Contact: George.Smart@city.ac.uk
The Judicial Review and Courts Bill aims to modernise and improve court procedure within the criminal justice system and is presently at the report stage within the House of Commons. It proposes digital reforms to the criminal court procedure originally submitted as part of the Prisons and Courts Bill which fell due to the election in May 2017. Concerns have been raised over a lack of testing of the proposed changes in their present form, as well as the potential risks that they pose to vulnerable defendants. This contribution aims to explore two of these proposed changes in more detail, and considers the question of whether the more accessible and efficient court system, purported to be delivered by the bill, will come at a disproportionate cost to the needs of vulnerable defendants.
Automatic Online Conviction and Standard Statutory Penalty (AOCSSP) procedure
Under the proposed AOCSSP procedure all summary and non-imprisonable offences could be automated via an online plea, conviction, and penalty website. This could eliminate the need for a defendant to attend a hearing in person by allowing them to plead guilty and receive an automatic conviction online. This expands the remit of the Single Justice Procedure (SJP) which is currently used to prosecute minor offences, recently including any breaches of lockdown restrictions under the Coronavirus Act 2020. Offences applicable under the AOCSSP process will be set out in secondary legislation, meaning the range of offences could be expanded at a later date. Among the concerns that have been raised in relation to the AOCSSP procedure, two are especially relevant for vulnerable defendants.
Firstly, the new AOCSSP procedure, in contrast to the SJP, does not require the judicial oversight of a magistrate. A magistrate is currently required to evaluate, on a case-by-case basis, whether a case is suitable for conviction under the SJP and to consider mitigating factors submitted by a defendant alongside their plea. The AOCSSP procedure does not facilitate the submission of mitigating factors or any human oversight of the suitability of the conviction. This may well increase the speed of the process but could in turn incentivise those charged with an offence to enter an unsuitable plea with an insufficient understanding of the consequences.
Secondly, the proposed AOCSSP procedure does not include effective screening for those with mental or physical health disabilities. Although the form requires defendants to indicate whether they have a disability, many will have disabilities that may not have been previously identified. The Assisted Digital Service is a proposed solution for defendants who require additional support to navigate the new online procedures. However, this is only accessible after the defendant has received, opened, and understood the letter outlining the initial charge and must be pro-actively engaged with by the defendant. Based on the poor response rates to the SJP (approximately 71% of defendants not responding to the charge letter), this solution is unlikely to remedy the issues that those with mental or physical disabilities will encounter in the new proposed procedure. Currently, there is no data available on the additional needs of those who do not respond. The removal of human oversight compounds this issue, preventing the opportunity for court staff to screen defendants at in-person hearings and increasing the likelihood that the needs of vulnerable defendants will not be met.
The AOCSSP procedure has been deemed appropriate for all defendants aged 18 and over. Whilst it disadvantages all those who may struggle to understand the respective charge and its consequences, it disproportionately impacts those with mental or physical disabilities by complicating the process by which an individual’s particular needs may be identified and considered.
Pleading guilty in writing
Under clause 4 of the bill, the current procedure for pleading guilty by post would be expanded to allow anyone aged 16 and above to plead guilty by post or via an online plea website after being charged and bailed from a police station to appear in a Magistrates Court for a first hearing. It is not clear within the bill why the age requirement for this provision is 2 years below that of the AOCSSP, especially considering that this measure is available for summary only offences. This expansion of the current process presents an obvious risk concerning the protection of the rights of children. As Dr Rebecca Helm explains in her study of children and guilty pleas, ‘Child defendants, with their developmentally immature decision-making systems, require specific tailored protections to avoid systematic wrongful conviction. Importantly, developmental vulnerability means that children are likely to be systematically pleading guilty to crimes that they did not commit in predictable circumstances.’ Facilitating a faster method for submitting a guilty plea from their home will likely exacerbate the existing issue of children pleading guilty to crimes they have not committed. This considered, justification for the reduced age qualification for the measure should be clear and comprehensive, where currently it is non-existent.
The Government has stated that defendants will ‘not be able to access the online procedure for indication of plea or trial venue allocation decision directly’ and that defendants will need to instruct a legal representative to make submissions via the Common Platform. Although in principle this provides a level of protection to vulnerable defendants navigating the procedure, the bill does not provide any guarantees of access to this legal advice. A guarantee of legal advice appears to be an essential requisite for the process to function fairly, even more so considering the provision the bill outlines for triable either way offences where an allocation decision may be made without the need for a hearing.
Conclusion
The hypothesis for these proposed changes is that they will yield a faster, more convenient, and efficient justice system. Although currently untested, the potential risks that these changes pose to vulnerable victims are easy to identify. Vulnerable defendants, specifically children and those with cognitive impairments, and mental and/or physical health conditions require close consideration within any legislation seeking to remove the existing safeguards that mitigate their risk of mistreatment. The current bill does not contain sufficient consideration and the safeguards which are proposed lack a clear guarantee within the primary legislation.
Defending Vulnerability 