The Supervision of Guilty Pleas by the Court of Appeal of England and Wales – Workable Relationships and Tragic Choices

Abstract

AbstractThe judgments of criminal appeal courts are an example of Calabresi and Bobbitt’s concept of ‘tragic choice’. Judges justify convictions by reference to the values which they attribute to criminal procedures: fairness, truth and rights, rather than the full range of considerations which have influenced the introduction of those procedures: cost, efficiency, crime control, public perceptions of crime, etc. The difficulties facing the Court of Appeal in justifying convictions by juries after a full trial are multiplied in the case of convictions following guilty pleas. A procedure which on its face is less capable of identifying guilt than a trial, has to be defended on the basis that it is overwhelmingly more capable of identifying guilt (or so fair as to justify disregarding the possibility of innocence). Recent changes to the plea system restricting maximum sentence discounts to pleas made at the earliest opportunity further distance guilty pleas from the protections afforded by trial, and compound the difficulties in justifying these convictions as ‘safe’. With guilty pleas we have reached a situation where the Court of Appeal seems unable to provide a remedy for miscarriages, but instead, like the judges of the 19th century opposing the creation of the Criminal Court of Appeal, claims the procedure is so safe that there is little or no need for review, even in cases of procedural irregularity (short of abuse of process) or new evidence (short of exoneration).