Judicial Review and Courts Bill

Written evidence submitted by Dr Rebecca K Helm, Director and Clinic Solicitor, Evidence-Based Justice Lab, University of Exeter (JRCB11)

Submission to the Public Bill Committee Considering the Judicial Review and Courts Bill

I am the director of the University of Exeter Evidence-Based Justice Lab, an interdisciplinary group specialising in behavioural and data science research, and applying this research to the legal system. I have been researching guilty pleas and the operation of guilty plea procedure in practice for almost ten years, and have published extensively in this area. I am writing to express great concern about provisions in the Judicial Review and Courts Bill (the Bill), particularly in the case of defendants under the age of 18 (child defendants).

Introduction

My understanding is that the Judicial Review and Courts Bill (specifically Chapter 1, Section 4 of the Bill) expands the circumstances in which defendants (including children over the age of 16) can plead guilty to summary offences online. Although this procedure may seem reasonable, it exacerbates many of the vulnerabilities faced by children in guilty plea systems and risks leading to children, particularly children from vulnerable groups, pleading guilty when innocent, and feeling that they have no real choice but to do so.

I have an understanding of these issues as a result of my PhD in Developmental Psychology at Cornell University, my substantial research in the area of guilty plea decision-making, and through extensive consultations with lawyers, appropriate adults, and children, in my empirical research in this area. For more information on my research, which informs the comments below, see here.

Relevant Developmental Vulnerabilities

Research shows that children are highly sensitive to a range of pressures when deciding whether to plead guilty, and that developmental vulnerabilities mean that children are particularly susceptible to pleading guilty when innocent (eg Helm, 2021; Helm et al., 2018; Zottoli et al., 2016). In my recent work (Evidence-Based Justice Lab, 2021, reported in the Daily Telegraph), lawyers, on average, estimated that 15% of children (1 in 7) who plead guilty are actually innocent. Only two of the 19 children we interviewed were happy with their decision to plead guilty.

Procedure surrounding child guilty pleas must be carefully designed to protect children, who are hugely vulnerable in this area, bearing in mind the complex and sometimes counter-intuitive effects that even subtle changes in procedure can have. This Bill, on the other hand, has the potential to exacerbate vulnerabilities. Relevant vulnerabilities, and their potential to be exacerbated by the Bill, are as follows:

Children have reduced comprehension and understanding when compared with adult defendants. Children often do not understand the specifics of the offence that they are accused of and any available defences, and may often not really know whether they are legally guilty or not (for more information see Helm, 2021; Evidence-Based Justice Lab, 2021). Concepts such as dishonesty, intention, and recklessness are, for example, difficult for children to understand and appreciate. My own experiences interviewing child defendants has shown me that children are often disoriented by the criminal justice process, and struggle to understand what is happening and whether they are legally guilty. Although they know what they have done, they do not know whether what they have done matches the criteria of a criminal offence.

Some children think they have not done anything wrong but that they must be legally guilty if they have been accused of an offence and the police are suggesting they did it. They don’t understand why. This reality was evident in one child interviewed as part of my work, who told us "I still don’t think I did it."

These problems are greatly exacerbated in the online environment described in the Bill, in which pleading guilty without a lawyer (or with only minimal "tick-box" legal advice) becomes quick, easy, and discrete (see Helm 2021b for notes on how online procedures can increase self-representation and reduce the quality of the lawyer-client relationship). Children may already be pre-disposed to avoiding legal advice or not carefully considering legal advice, as they can believe asking for a lawyer or for help may make them look guilty and so do not do so.

In addition, it is notoriously difficult to gauge children’s understanding, and doing so may be close to impossibly in the online environment. For example, children often have a response bias which leads them to answer "yes" to questions that they do not understand or do not know the answer (e.g. Fivush et al, 2002). It will be impossible or near impossible to adequately assess the understanding of child defendants through an online system. Problems with comprehension and understanding will also be compounded by reading difficulties faced by many child defendants. As a result, the online environment greatly increases the probability that children will plead guilty without understanding charges against them.

Children tend to lack sufficient appreciation of how serious it is to be found guilty of a criminal offence. Children have developmentally immature decision-making systems which make them susceptible to the influence of superficial incentives to plead guilty and to a lack of sufficient appreciation for meaningful considerations such as the seriousness of a criminal conviction (for more information see Helm, 2021; Helm et al., 2018). This lack of appreciation is likely to be severely exacerbated where children can enter a guilty plea online. As Dr Frances Rock has stated (Rock, 2016), "tick-box" type requests are dangerous because "individuals orient to them as if they concern unimportant matters; when, in fact, the consequences of acquiescing to such matters can be very serious." We must not turn waiving the right to a fair trial or voluntarily accepting a criminal conviction into a "tick-box" exercise for our young people. But allowing a guilty plea to be entered online, at home, in an informal environment does just this. Even adults are unlikely to appropriately orient themselves to the importance of a plea decision when making it online. Children can clearly not be expected to do so. They can also not be expected to understand information provided to them about criminal record consequences without help (see above for more information on a lack of understanding). The environment in which they are making plea decisions must adequately reflect the importance of the decisions that they are making.

It might be suggested that in the case of summary offences the consequences of a plea in exchange for a non-custodial sentence are not particularly significant. However, it should be borne in mind that the consequences can be very significant, particularly for children. Children have often not decided on a career path and may find a conviction restricts them in the future choice. The labelling associated with a criminal conviction has the potential to influence them psychologically and practically for the rest of their lives.

Children are susceptible to pressure from both the system and their environment. My research has highlighted various pressures that children face to plead guilty, even where procedures are not taking place online (see Helm, 2021; Evidence-Based Justice Lab, 2021). One pressure that they can face is a perceived need to avoid court and deal with accusations against them as quickly and easily as possible (a short-term consequence likely to be very important to children). It should not be underestimated how difficult children find the justice process. I heard about one child defendant who was adamant that they were innocent saying that they couldn’t plead not guilty because "I don’t want to come back here. This is very stressful. This is very long." Children need close support through the trial process and through the plea process to prevent them feeling that they just can’t plead not guilty. Reducing the plea decision to an online exercise does not provide this support, particularly for children who do not have help from a supportive parent.

Perhaps most importantly in this context, my research uncovered accounts of parents placing pressure on their children to plead guilty. We heard that, in some cases, parents do not want to (or cannot afford to) spare the time needed to support their child through a full trial. They can therefore tell the child just to plead guilty and get it over with. A system in which children are pleading guilty online provides little to no protection against susceptibility to this kind of pressure, or other pressures (eg pressure from more dominant peers).

Conclusion

Understanding guilty pleas in children is challenging. Even in adults, a complex range of pressures can create pressure for innocent defendants to plead guilty (see Helm, 2019; Helm et al., 2021). The situation is even more complex in children. Children (well past the age of 16) are cognitively immature and make decisions differently than adults. This immaturity means that psychologically children are not considered to have full autonomy (rather, they have agency, gathering and developing the assets necessary for full autonomy, see Hollingsworth, 2013). For this reason, we don’t allow children to smoke, drink alcohol, gamble, vote in most elections, or even to always make decisions about their own medical care. Ensuring that decisions of children to plead guilty are sufficiently consensual to validate the waiver of the right to a fair trial under the European Convention on Human Rights (which requires trial waivers to be made on the basis of informed consent, and without constraint, see Deweer v Belgium, 1980) is a complex and delicate task. A defendant can’t give meaningful consent if they don’t understand, don’t appreciate consequences, or are facing considerable external pressure. It is necessary to consider all proposed procedure carefully, with an eye to understanding the effects such procedure could have in practice.

Extending circumstances in which children can enter pleas online is hugely risky in this context. It may be that there is a way that the guilty plea process can be streamlined for children, but procedure would need to be carefully designed and take into account developmental vulnerability to protect children, particularly when innocent. The current Bill does not provide this protection. I therefore hope that you will consider removing child defendants from the scope of the proposed changes.

If I can provide any further information to help your consideration of this Bill, please do not hesitate to contact me at r.k.helm@exeter.ac.uk.

References

(References are hyperlinked in the text and below where sources are available open access)

Deweer v Belgium, App. No. 6903/75, 27 February 1980

Evidence-Based Justice Lab (2021). Incentivized Legal Admissions in Children. Part 2: Guilty Pleas.

Fivush, R., Peterson, C., & Schwarzmueller, A. (2001). Questions and answers: The credibility of child witnesses in the context of specific questioning techniques. In Memory and suggestibility in the forensic interview (pp. 345-368). Routledge.

Helm, R. K. (2019). Constrained waiver of trial rights? Incentives to plead guilty and the right to a fair trial. Journal of Law and Society46(3), 423-447.

Helm, R. K. (2021). Guilty pleas in children: legitimacy, vulnerability, and the need for increased protection. Journal of Law and Society48(2), 179-201.

Helm, R. K. (2021b). Pleading guilty online: Enhanced vulnerability and access to justice. Modern Law Review Forum.

Helm, R. K., Dehaghani, R., & Newman, D. (2021). Guilty plea decisions: Moving beyond the autonomy myth. The Modern Law Review.

Helm, R. K., Reyna, V. F., Franz, A. A., & Novick, R. Z. (2018). Too young to plead? Risk, rationality, and plea bargaining’s innocence problem in adolescents. Psychology, Public Policy, and Law24(2), 180-191.

Hollingsworth, K. (2013). Theorising children's rights in youth justice: the significance of autonomy and foundational rights. The Modern Law Review76(6), 1046-1069.

Rock, F. (2016). Talking the ethical turn: Drawing on tick-box consent in policing. In S. Ehrlich, D. Eades, and J. Ainsworth (Eds.) Discursive Constructions of Consent in the Legal Process (pp. 93-117). Oxford University Press.

November 2021

 

Prepared 17th November 2021