In this article for the Journal of Law and Society Dr Rebecca Helm, of the University of Exeter, assesses the extent to which the current guilty-plea procedure is consistent with legitimations of criminal convictions, with a focus on decision-making in child defendants. She argues that differences in children’s brains relating to their sensitivity to pressure and rewards, make it more likely they will admit to crimes they didn’t commit when incentivized to do so. Her findings suggest that the current procedure in England and Wales may be leading to systematic problems with the legitimacy of convictions of children. Dr Helm outlines a number of reforms which might address this issue and enhance the legitimacy of children’s guilty pleas. Her conclusions serve as a crucial warning to practitioners representing children in the criminal courts.
The report sets out the following findings. Criminal justice systems around the world, England and Wales included, are heavily reliant on guilty pleas. In these jurisdictions, the majority of defendants plead guilty rather than contest their charges. Child defendants (under the age of 18) fare no different; in 2019, 61 per cent of child defendants in the Crown Court pleaded guilty with 58 per cent pleading guilty at their first hearing. However, plea decisions in the current system are not based purely on the admission of guilt as many innocent defendants plead guilty for a variety of reasons. One of the strongest pressures comes from the credit awarded in terms of a sentence reduction in return for an early guilty plea. For children, sentencing guidelines provide a standard one-third reduction in the sentence if the child defended pleads guilty at the earliest opportunity. As practitioners are aware, the amount of credit available reduces the closer a child gets to their trial date, adding to the pressure. However, many children have the additional incentive of a referral order which is only available to defendants pleading guilty. Referral orders provide an opportunity for restorative work with the Youth Offending Team and, crucially, become ‘spent’ on the day of completion and generally will not have to be disclosed to employers or course providers unless certain exceptions apply.
In this current system, ‘children – whom the law recognizes as being too immature to vote, to drink alcohol, or to gamble – are making complex decisions to incriminate themselves, which may influence the rest of their lives.’ Recent psychological research supports the idea that children are more susceptible to pleading guilty when they are innocent since they are more sensitive to the pressures of being in court. For example, research suggests that children may plead guilty on the basis of relatively small sentence reductions when this does not adequately reflect what they desire. As children are more vulnerable due to their immaturity and developmental vulnerabilities, this must be accounted for within the current justice system.
In England and Wales, most cases involving children are handled by the Youth Justice System (‘YJS’). The YJS is designed to address the needs and vulnerabilities of children in various ways and its primary aim is to ‘prevent offending by children and young persons’. While the protections available for children in the YJS are helpful, the author believes they are not enough.
Diversion from prosecution
One method used by the YJS to benefit children is to divert them from prosecution. The diversion scheme works by attempting to dispose of as many childhood offences as possible out of court. As practitioners will know, the diversion system comprises of both informal outcomes for particularly low-level offending (such as community resolutions) and more formal outcomes for more serious offending (cautions and conditional cautions). Problematically, there is a general feeling that a child must admit guilt in order to be eligible for an out of court disposal. Dr Helm argues that children should be able to participate in the diversion system without admitting guilt or receiving a formal caution on their record.
Dr Helm recommends that certain modifications are made to ensure children defendants are given a fair chance in the court system. These modifications include ‘referring to children by their first name, taking time to explain court proceedings to them, avoiding complicated language, and using an intermediary to help with communication.’ Further reforms in the court systems include tailoring sentence reduction guidelines, removing Goodyear hearings, reducing time pressure and better training lawyers working with children. For sentencing guidelines, the author argues that children should be awarded reductions to sentencing based on less prescriptive guidelines and also individual case circumstances such as defendant’s age. This argument is based on developmental psychology and the perception that a reduced sentence encourages children to admit guilt even in cases where they are innocent. Dr Helm supports removing Goodyear hearings because by providing child defendants with exact maximum sentence, they will be more predisposed to plead guilty as well. The author also believes that children should have reduced time pressure by removing the encouragement given to children to plead guilty as early as possible in order to receive the maximum sentencing discount. Finally, the author argues that lawyers should be trained to better deal with child defendants. According to her, ‘lawyers working with child defendants [should] receive tailored training to help them identify deficits in understanding, appreciation, and decision making more generally that are important when a child defendant decides whether or not to plead guilty.’
Clearly, the need to legitimize the convictions resulting from guilty pleas is particularly marked in the case of children given their developmental differences. As such, this article is essential reading for practitioners representing children in the criminal courts. Whilst there are clearly advantages to children in the guilty plea system, it is crucial that defence practitioners satisfy themselves that they have robust instructions before allowing their child clients to plead guilty. This requires defence practitioners to communicate well in a developmentally appropriate manner with the children they represent. Not all practitioners will feel confident in their ability to do this and thus Dr Helm’s recommendation that lawyers working with children receive additional and specific training is particularly important.
In relation to the concerns that Dr Helm raises regarding the diversion system, it is worth highlighting that there are current plans to amend the guidance to clarify that a child need only accept a level of responsibility rather than fully admit guilt to be diverted. Further, after a welcome regime change to the criminal records regime in November 2020, no out-of-court disposal issued to a child will be automatically disclosed on an enhanced criminal records check.
This article demonstrates that whilst the current procedure in the YJS attempts to address the vulnerabilities of children it is still failing to do an adequate job. The suggestions for changes in practice and procedure that Dr Helm identifies have the potential to increase the legitimacy of child guilty-plea convictions. Especially important is the need to reduce the pressure that children face when in court. The daunting experience of Court coupled with the pressure of the credit system is bound to result in children making hasty decisions without realizing the full consequences until a much later date. Hopefully the modifications outlined here will be seriously considered by the Government.
Andro Atlaga and Valmir Merkaj, Associates, Paul Hastings (Europe) LLP