Pleading guilty: why vulnerability matters

TLDR: In this paper, the Sentencing Council's definitive guideline on what reductions in sentence can be offered for a guilty plea is examined and the authors 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.

Abstract: This article examines the recent Sentencing Council’s 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 it raises are universally relevant to any system that favours defendants who offer guilty pleas.

Full text

Jill Peay and Elaine Player
Pleading guilty: why vulnerability matters
Article (Accepted version)
(Refereed)
Original citation:
Peay, Jill and Player, Elaine (2018) Pleading guilty: why vulnerability matters. Modern Law
Review. ISSN 0026-7961 (In Press)
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1
Pleading guilty: why vulnerability matters
Jill Peay and Elaine Player*
Word count
11,956 and 14,659 with footnotes
5/6 key words
Sentencing Council, Guilty Pleas, Vulnerability, Equality Act, Inducement
Abstract
This article examines the recent Sentencing Council’s 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 it raises are universally relevant to any system that favours defendants who
offer guilty pleas.

2
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 R v Caley and others [2012]
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.
2
In publishing this definitive guideline the Council has,
* 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.
1
R v David Caley and others [2012] EWCA Crim 2821 at [6].
2
Sentencing Council, ‘Reduction in Sentence for a Guilty Plea. Definitive Guideline’
(Sentencing Council 2017), 4 at http://www.sentencingcouncil.org.uk/wp-

3
following consultation, revised its draft guideline.
3
Neither document has, in our view,
dealt adequately with the important consequences of this emphasis on early plea for
those with vulnerabilities.
4
These vulnerabilities differ, but include those with learning
difficulties, autism, mental illness or personality disorder, and also arise from issues of
gender and/or black and minority ethnic (BAME) status. What they have in common is
that they may all make these individuals more susceptible to this 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
content/uploads/Reduction-in-Sentence-for-Guilty-plea-Definitive-
Guide_FINAL_WEB.pdf The definitive guideline came into force on 1 June 2017.
3
Sentencing Council, ‘Reduction in Sentence for a Guilty Plea Guideline. Consultation’
(Sentencing Council 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.

4
Court of Appeal's views in R v Caley and others above. 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.
5
Whilst 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 right 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.
6
Of particular concern is
whether some groups are disproportionately vulnerable to the incentive to plead guilty
and, as a consequence, are more likely to enter a guilty plea inappropriately. This is not
a new concern. Andrew Ashworth, 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'.
7
Prior to that Roger Hood had noted that part
of the overrepresentation of black males in the prison system derived from their greater
5
‘Letter to the Editor’ (2016) Criminal Law Review 489.
6
N. Lacey ‘Historicising Criminalisation: Conceptual and Empirical Issues’ (2009) 72 MLR
936.
7
A. Ashworth, The Criminal Process: An Evaluative Study (Oxford: OUP, 2
nd
ed, 1998,
296).

Frequently asked questions

Q1. What are the contributions mentioned in the paper "Pleading guilty: why vulnerability matters" ?

This article examines the recent Sentencing Council ’ s definitive guideline on what reductions in sentence can be offered for a guilty plea. The authors 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. 

Q2. What future works have the authors mentioned in the paper "Pleading guilty: why vulnerability matters" ?

The Equal Treatment Bench Book, n 29 above, rightly cautions, but with respect to witnesses, the possibility that ‘ needs have not been considered or identified ’, 2-15. The Review draws attention to the fact that their unwillingness to admit guilt has repercussions that extend beyond the sentence discount. He calls for a collaborative effort on the part of the Home Office, the Ministry of Justice and the Legal Aid Agency, as well as the Law Society, the Bar Council and the voluntary sector, to experiment with different approaches to explaining legal rights and building trust with BAME communities. How the war on crime transformed American democracy and created a culture of fear ( Oxford: Oxford University Press 2007 ) ; D. perspective, the opportunity to take advantage of a maximally reduced sentence in return for an early plea of guilty can be understood as a process of rational decisionmaking, engaged in voluntarily by individuals acting in their own best interests. 

Q3. What percentage of prosecutions were brought by the TV Licence Enforcement Office?

Whilst women accounted for 27 per cent of all prosecutions in the Magistrates’ court, they represented more than twothirds of cases brought by the TV Licence Enforcement Office, almost a third of prosecutions brought by the DVLA and half of those prosecuted by the Local Authority. 

Q4. What is the key issue on which evidence is insufficient?

But the key issue on which evidence is insufficient is whether defendants would plead guilty in the absence of any incentive by way of a reduction in sentence length. 

Q5. What is the obvious category for public sympathy?

Defendants in front of the criminal courts who are contemplating pleading guilty are not the most obvious category for public sympathy. 

Q6. Why is the mother of dependent children vulnerable?

The mother of dependent children who is advised by her lawyer that the likely sentence if found guilty by the court would be custodial, but that the discount for an early plea of guilty would result in a non-custodial penalty, is vulnerable not because she lacks legal advice but because she is faced with a gamble she cannot afford to lose. 

Q7. What is the purpose of the sentence discount?

But the sentence discount for a guilty plea does not constitute personal mitigation, it is a device to reduce costs and improve the efficiency of the criminal justice system, whilst also relieving victims and witnesses from giving evidence at trial. 

Q8. What are the pressing concerns in relation to the treatment of vulnerable defendants?

One of the most pressing concerns in relation to the treatment of vulnerable defendants relates to those with attention deficit hyperactivity disorder (ADHD) and personality disorders. 

Q9. How many prosecutions against men have increased in the last 10 years?

And whilst the numbers of prosecutions against men fell by 34 per cent over the same period, the numbers against women rose by 6 per cent. 

Q10. What is the key concept of the Gudjonsson suggestibility scale?

The work of Gisli Gudjonsson has been central, as has his development of the Gudjonsson suggestibility scale, which measures ‘interrogative suggestibility and compliance’. 

Q11. What is the significance of the lack of trust in the criminal justice system?

This lack of trust has important consequences for the decisions that accused persons make, particularly decisions about plea and venue of trial.