How the use of Cautions can persuade innocent suspects to admit guilt, and affect those suspects for life
By David Wacks (CRB Problems Ltd).
‘Better education and fair funding could help minimise miscarriages of justice even without major changes to the law’
These comments relate specifically to the law and procedures in England and Wales rather than in Northern Ireland or Scotland.
Cautions, a type of Out of Court Disposal, are criminal sanctions which can be issued by the Police, rather than the Courts. They are particularly useful in dealing with low level crime speedily and much more cheaply than charging a suspect and taking them to court. They will mostly affect people less adversely than if found guilty at Court and avoid adverse publicity, which attending court can result in.
However, Cautions are criticised by some as too lenient, and not as effective in deterring crime as bringing criminal charges. On the other hand a tick box approach to “resolving” crime by out of court disposals can result in suspects being persuaded to admit guilt, thinking that it is just “a slap on the wrist,” and in order to get out of the Police station. For this reason, Cautions, while useful, can contribute to innocent people admitting guilt. This is important, since although a caution is not a criminal conviction, it can have significant adverse consequences on a suspect’s life through showing on both standard and enhanced Disclosure and Barring Service (DBS) checks (for some more discussion of the potential adverse impacts of accepting a caution, see here).
There are a variety of Out of Court Disposals each with differing legal consequences but in this article consider only Police Cautions.
Protections for Defendants: Informed Consent, Duty Solicitors and Appropriate Adults.
There are a number of safeguards in place to stop innocent defendants accepting cautions and to ensure suspects are appropriately informed. Every Caution must be signed by the suspect, who must admit guilt to receive it and avoid prosecution. In 2013, the High Court declared that in order to be valid, the Caution itself must clearly set out the long-term consequences of accepting it and as a result all the Police Forces in England and Wales updated the warnings as to the consequences of signing.
Arrested suspects should also be offered the benefits of a free legally aided duty solicitor who can attend at the police interview and subsequently advise the suspect as to whether or not to sign any Caution offered or refuse it and possibly be charged.
Quite separately, suspects under the age of 18 must have an Appropriate Adult with them to advise the suspect and countersign the Caution Form. This adult can be a parent or solicitor or another independent person. An appropriate adult may similarly be needed for other vulnerable suspects, for example a suspect who is blind, illiterate, does not read English or has some mental health problem.
However, despite these safeguards there remains a significant risk that innocent suspects will accept Cautions both due to a lack of understanding and due to incentives making accepting a Caution a logical thing to do even when innocent.
Pressure to Accept a Caution
Even after amendments to the warnings given on Cautions they are still difficult to understand in full. Most people arrested for the first time are terrified at the potential consequences if they are proceeded against and just desperate to get out of the Police Station (which they may only be able to do if they are willing to ‘admit’ guilt and accept a Caution). Individuals are advised they can get a duty solicitor but despite this being legally aided and free of charge, a significant minority still refuse this, often telling us subsequently that they did not realise it was free.
If they do ask for a duty solicitor, suspects often ask how long it would take to get the solicitor and especially for those arrested at night they are often given to understand it could take a few hours and many then agree to be interviewed by themselves.
After an interview the Police may advise that “because it is a first offence,” that they will not charge them and that if they sign a Caution it would just be a “slap on the wrists.” The individual frequently agrees to do so and is often so stressed and desperate to get out that they don’t read the warnings properly but just sign where pointed to! The regularity of the reference to a “slap on the wrist,” was emphasised when a Latvian client who when asked by us what was said to him to persuade him to sign the Caution, said he was told it was just a “hit on the hand,” obviously translating the phrase but remembering that translation.
Even where a duty solicitor is called, many do not understand all the long-term consequences of signing a Caution. This area of law falls between the criminal law and civil law and trainee lawyers are rarely if at all told of these complications and are often just anxious to save the client from being arrested. Many may be unaware of the option of downgrading an offer of a caution to a Community Resolution which has much fewer consequences, and the Police themselves do not consistently offer this option.
The warnings even on updated Caution forms are very legalistic and difficult to understand in full by most suspects. This is even more true for those for whom English is not their original language or those who may be dyslexic, illiterate or suffering from a mental health issue. There have been improvements to Police training but it is by no means perfect and more use needs to be made of health professionals to assess the suspects’ state of mind and mental capacity before proceeding to an interview let alone asking them to sign a Caution.
In some cases, Police may deliberately or recklessly mislead suspects, but probably more often mistakes can be caused by a lack of training and guidance or a lack of time. For example, in one case I know of, a 15 year old pushed her mother away when she tried to take the cigarettes they found her with, shortly after the grandmother’s death from lung cancer. The father called the police just to scare her but was then called as the Appropriate Adult even though he was not independent. Generally a bit of common sense should have persuaded the Police that a Caution was disproportionate even if guilty and by applying the Public Interest Test they could have downgraded their approach, but the child ended up admitting guilt and being cautioned. This kind of situation is not unusual. In a leading High Court Judgement on the use of Cautions, the Judge, in setting aside a Caution for assault, acknowledged that the Police were not being malicious in offering a Caution. They had a lot of calls on their time, especially on a busy weekend meaning that balanced judgments could not always be made. However, the judge also acknowledged that such mistakes should be rectified.
When we are helping clients who have received cautions, we always seek to emphasise that the client is not seeking to punish officers for any mistakes, but just to rectify any mistakes that have been made and that even where a Caution is deleted, the Police still have other options to protect vulnerable people.
One other practical area for mistakes is charging with an incorrect offence. Often solicitors don’t wait to explain the Caution warnings to the client and the Police should therefore provide a copy of the draft to explain to the client and also to make clear exactly what the Caution will be for eg ABH rather than Common Law Assault (Battery).
The mistaken use of ABH for minor assaults is the biggest mass mistake in the use of Cautions. Legally, it can be argued that ABH can be used even for minor assaults but for the last 25 years the CPS have issued periodic guidance that ABH should only be used for more serious injuries. In fact, up until the filtering rules came into force 6 years ago the effect of wrongful use was minimal. However, now, under filtering, a Caution for common assault will be filtered after 6 years but a Caution for ABH only when you reach 100. In addition, even spent and filtered Cautions can affect you as they still prejudice you getting a visa to travel even for a holiday, let alone on business- unless the caution can be deleted.
Other Pressures to Accept Cautions
Sometimes and with the best legal advice a client is so terrified of being charged that they agree to sign a Caution even after the Solicitor has advised them that there was definitely no crime! For example, one client was desperate to avoid publicity and the risks of going to court but contacted us years later when she found that she could not get work because of this caution for (allegedly) having an offensive weapon with intent to cause harm. My client was returning home on the motorway with one of her friends both still dressed up after a fancy-dress party. The motorway was bumper to bumper in all 3 lanes and with them in the middle lane. In the inner lane was a lorry driver who noticed their outfits, rolled down his window, pointed 2 fingers at my client and shouted “bang , bang!” My client pulled out her bright plastic water pistol pointed it at him and shouted the same back. She ended up being arrested at gunpoint and taken to the police station where she felt so frightened she signed the Caution just to get home! It can be appreciated that there was pressure to get a result and thankfully we were able to get this Caution removed, but the client should never have been given a Caution. Only a few years ago, President Obama’s security picked up a mechanical clock a schoolboy had made and sent as a present. The boy was arrested as a precaution, but as soon as the President heard he arranged for all potential charges to be dropped and for the boy and his family to see him in the Whitehouse to encourage his enterprise. This shows the ability of those in authority to turn what could be embarrassments into positive PR, something that could help the Police increase trust.
There will always be pressure on the Police to dispose of matters promptly and at times when they are rushed off their feet. Likewise, duty solicitors have many calls on their time especially with the low rates for duty solicitor work, but there does need to be a balance between protecting the public and not risking destroying an innocent person’s career. Some better education for both police and solicitors and fair funding for both could help minimise miscarriages of justice even without major changes to the law.
David Wacks practised as a solicitor in practices dealing with both civil and criminal work before retiring from private practice 9 years ago and establishing CRB Problems Ltd ( crbproblems.co.uk) to deal with such matters. © 2021.
For more information on our data and research on incentivized admissions: https://evidencebasedjustice.exeter.ac.uk/current-research-data/incentivized-admission/
Miscarriages of Justice: Women
Identified miscarriages of justice in woman have a different overall profile from those in men.
.Identified miscarriages of justice in woman have a different overall profile from those in men.
Our Miscarriages of Justice Registry suggests that the most common causes of miscarriages of justice in men are false or misleading witness evidence from a non-complainant and false or misleading confessions, but the most common causes of miscarriages of justice in women are inadequate disclosure and false or misleading forensic science.
One striking feature of miscarriages of justice in women is that approximately 25% of the identified cases (13/53) involve women who have been wrongly convicted of harming a child in their care. A similar theme can be seen in the United States National Registry of Exonerations. In a 2014 report, that Registry noted that 40% of female exonerees were exonerated of crimes with child victims. One such case was the case of Sabrina Butler.
Sabrina Butler is a Black American woman, who has survived a tragic miscarriage of justice. In 1990 she was sent to Death Row, later becoming known as the first female to be exonerated; but not before spending 6 years in prison for a crime she did not commit. On April the 12th 1989 when she was just 17, Sabrina’s nine-month-old son died of a hereditary kidney condition. Almost a year later, Sabrina was sentenced to death, falsely accused of taking her own child’s life. Butler has now shared her story, highlighting the pitfalls of the American criminal justice system. From being prevented from attending her baby son’s funeral, to coerced false confessions, she experienced a significant failure of justice.
So, if her son died of a hereditary kidney condition, how did Butler end up being the prime suspect in a murder investigation?
When Sabrina first realised her son was not breathing, she attempted to resuscitate him. Later on, she gave various accounts of what happened, from a fictional babysitter, to jogging with and without the baby. But crucially, she signed a statement confessing that she had punched the baby in the abdomen in response to his consistent crying. This statement was focused on by the prosecution focused upon in her trial. Her defence team called no witnesses, and instead relied on cross-examinations of the prosecution witnesses.
Many reading this may question why on earth an innocent mother would confess to such actions against their own child. But, when reading Butler’s recollections of her interrogation by law enforcement officers, the pressures become clearer;
“I was alone with no lawyer or parent with me. I told him I tried to save my baby. He wrote down what I said and threw it in the garbage. He yelled at me for three hours. No matter what I said, he screamed over and over that I had killed my baby. I was terrified. I was put in jail and not allowed to attend Walter’s funeral.”
“Ambitious men questioned, demoralized and intimidated me. In that state of mind, I signed the lies they wrote on a piece of paper. I signed my name in tiny letters in the margin to show some form of resistance to the power they had over me.”
There has been significant research into why innocent people falsely confess to a crime they did not do. In summary, false confessions most likely occur due to three factors (see here for more information): custodial and interrogative pressure, defendant psychological vulnerabilities (see here for more information) and a lack of transparency regarding evidence. From this list we can clearly see that Sabrina’s case involved at least 2, if not all 3 of these elements. Most concerningly, Sabrina’s accounts describe dangerous levels of police interrogation pressure. Combined with her being a young female and a recent mother who had just lost her baby son, there is no doubt over her psychological vulnerabilities at the time of experiencing this pressure.
Portrayal of a ‘She-Devil’?
Many of the miscarriages of justice involving women do not even involve a false confession. Potentially, women in these situations are susceptible to being judged more harshly and to having unreliable evidence against them more generally interpreted as reliable or even conclusive, due to gender stereotypes.
In a 2019 report, Appeal, a charity fighting miscarriages of justice, have noted the risk that gender-stereotypes play out against women in these types of case (see here). Women who are accused of a crime against a child, especially their own child, are judged negatively and harshly for allegedly violating social stereotypes.
In England and Wales, the majority of miscarriages of justice involving women in cases of this type involve false or misleading forensic evidence. In many cases, this evidence came from a now discredited paediatric pathologist, Dr. Roy Meadow. The below are some examples of women in England and Wales whose stories are detailed in our registry, who were wrongly convicted, and later acquitted, of harming children in their care. Their stories can help us to understand how evidence may be misinterpreted in such cases, how this might lead to miscarriages of justice, and the influence those miscarriages of justice have on victims who are already grieving for the loss of a child.
Sally Clark (see here) – A mother wrongfully convicted of killing her two baby sons, who died just a couple of years apart. She was sentenced to life imprisonment in 1999 but acquitted in 2003 when it was shown that expert evidence presented against her was unreliable. Sadly, Sally struggled to cope after her conviction was overturned and died in 2007.
Angela Cannings (see here) – A mother wrongly convicted of killing two of her three babies who had died as a result of sudden infant death syndrome. She was imprisoned in 2002 but acquitted a year later. She continues to suffer a complicated relationship with her surviving child as a result of her experience.
Suzanne Holdsworth (see here) – A babysitter accused of murdering her neighbours 2-year-old son. She was sentenced to life in prison in 2005 but was found not guilty at a retrial in 2008 when new evidence suggested the child may have died of a seizure.
Donna Anthony (see here) – A mother falsely accused of killing her two babies, convicted in 1998 and acquitted 6 years later when it was shown that expert evidence presented against her was unreliable.
These cases combine devastating circumstances relating to the loss of a child with vulnerable women who are susceptible to judgment and stereotypes prior to their conviction. These are just some of the cases we are now aware of, sadly, it is likely that many have slipped under the radar. As more potential miscarriages of justice, it is important to consider the evidence that is introduced in such cases and how the system can ensure it is effectively scrutinised to an extent that meets relevant scientific standards. By creating an awareness of the problem, we can work with legal and medical professionals to develop solutions.
Author Beth Mann – Graduate Research Assistant
You can read Sabrina’s story first-hand in an article written by her in 2014: https://time.com/2799437/i-spent-more-than-six-years-as-an-innocent-woman-on-death-row/
For our new infographic summarising some of our data on women’s miscarriages of justice see: https://evidencebasedjustice.exeter.ac.uk/wp-content/uploads/2021/05/MiscarriagesofJustice_Women-1.pdf
To search our registry for cases involving women go to the following link, and select “F” for gender: https://evidencebasedjustice.exeter.ac.uk/miscarriages-of-justice-registry/the-cases/overview-graph/
False Guilty Pleas And The Post Office Scandal
‘Why did the post office appellants plead guilty? And Why is this important?’
Innocent people plead guilty to crimes they have not committed. Sometimes they are aware they have not committed a crime. Sometimes they have insufficient information to know whether they have. Of the 39 successful appellants in the Post Office Scandal, 35 had pleaded guilty to at least one charge against them. The appellants, now recognised as innocent, pleaded guilty to charges including theft, fraud, and false accounting.
But why did the appellants plead guilty? And crucially, could the miscarriages of justice have been avoided if the defendants hadn’t felt pressure to plead?
False guilty pleas are not uncommon, and are most documented in the USA. The US National Registry of Exonerations lists 576 cases of defendants who have pled guilty to crimes but have later been exonerated of those crimes. These “false” guilty pleas are perhaps unsurprising in the US plea-bargaining system, where defendants often face compelling incentives to plead (see here for more information). To give an extreme example, Phillip Bivens and Bobby Ray Dixon pleaded guilty to rape and murder in exchange for a sentence of life imprisonment after being notified that the prosecution would seek the death penalty against them if they exercised their right to trial. They were exonerated 30 years later when DNA testing showed that they were innocent. Dixon passed away shortly before his official exoneration.
In an article in the Cornell Law Review, my collaborator John Blume and I identified three primary categories of case in which innocent defendants plead guilty in the US – (1) in low-level offences where pleading guilty allows a defendant to get out of jail or avoid spending time in jail (see here, for example), (2) in cases where innocent defendants who are wrongfully convicted win a new trial and pleading guilty allows them to secure immediate or imminent release (see here, for example), and (3) where the sentence a defendant can receive at trial is so much more severe than the sentence they will get if they plead guilty that they plead guilty out of fear (see here, for example).
A line of experimental research has examined guilty pleas in innocent defendants in the US system and confirms that people who are innocent will admit guilt when the right incentives are offered (see here, for example).
But what about England and Wales, isn’t the system here fairer?
The guilty plea system in England and Wales is typically considered fairer and the incentives to plead seem less extreme (see here). The official discount for pleading guilty is a sentence reduction of up to 1/3, given by the judge at sentencing. However, it is important to note that this reduction can make the difference between a custodial and non-custodial sentence and thus can mean people may end up in prison if they go to trial but will not if they plead guilty.
In addition, defendants can have charges against them dropped if they plead guilty, and can sometimes obtain immediate release from custody if they plead guilty (something that has the potential to be very important in the context of current court backlogs).
Evidence shows that innocent people in England and Wales do plead guilty.
Evidence shows that innocent people in England and Wales do plead guilty. Many of the cases referred to the Court of Appeal by the CCRC initially involved a guilty plea (for more information, see here), and our Miscarriages of Justice Registry provides specific examples. Thomas Smart pleaded guilty to possessing live ammunition following a novelty bullet keyring being found at his home. His conviction was quashed after the Forensic Science Service admitted it had made a mistake and acknowledged that the keyring was not live ammunition. Michael Holliday pled guilty to robbery of a security vehicle on the advice of his lawyer, but his conviction was quashed when evidence showed someone else had committed the offence. Two of the “Shrewsbury 24” (Graham Roberts and Patrick Butcher) pled guilty and had their convictions quashed nearly fifty years later.
The Post Office Scandal provides a further list of cases in which defendants pleaded guilty when they were not guilty. Josephine Hamilton, Gail Ward, Julian Wilson, Hughie Thomas, Jacqueline McDonald, Allison Henderson, Allison Hall, Della Robinson, Khayyam Ishaq, David Thomas Hedges, Kashmir Gill, Barry Capon, Lynette Hutchings, William Graham, Siobhan Sayer, Tim Burgess, Pauline Thomsen, Nicholas Clark, Margery Williams, Tahir Mahmood, Ian Warren, David Yates, Gillian Howard, David Blakey, Janet Skinner, Seema Misra, Scott Darlington, Peter Holmes, Rubina Shaheen, Pamela Lock, Vijay Parekh, Dawn O’Connell, Carl Page, Mohammed Rasul, and Wendy Buffrey all pleaded guilty to at least one charge against them. Statements suggest that they did this due to the fear of custody (or a longer period in custody) if they contested their guilt at trial.
David Thomas Hedges stated that he pled guilty due to being “petrified of the prospect of jail.” Josephine Hamilton stated that she pled guilty “to avoid prison,” and Wendy Buffrey said she was “advised to plead guilty… to avoid jail.”
But these guilty pleas, while almost always preventing a jail sentence from being imposed, had huge consequences. Many of those convicted were forced to declare bankruptcy (see here and here, for example), some lost their homes (see here and here), and in two cases the convictions were linked to deaths of those convicted (see here and here). And now, it’s become clear that the defendants were not guilty. Evidence against them was a result of a faulty computer system.
An important but currently unanswered question is how many sub-postmasters and mistresses had charges brought against them that were dropped when they wouldn’t plead guilty, or that were found insufficient to lead to a conviction by judges or jurors. One important consequence of pleading guilty is that you are convicted when the evidence may not have proved guilt at trial.
Could many of the victims of this miscarriage of justice have avoided conviction, had they not been pressured to plead guilty by the threat of custody and the opportunity to avoid it?
Another important, but perhaps unanswerable, question is whether the problems with the Horizon system and the inadequacy of its data as legal proof might have come to light sooner had it been scrutinized in more full trials.
While it may not be possible to fully answer these questions, the cases certainly highlight many issues with the guilty plea system. Where defendants are threatened with custodial sentences at trial, which they can avoid by pleading guilty, this will lead many innocent defendants to plead guilty. As a result, innocent people are convicted of criminal offences and the guilty plea loses its status as a relatively reliable indicator of guilt. This has devastating consequences for both defendants themselves and the criminal justice system more generally.
Author Dr. Rebecca K. Helm – Senior Lecturer in Law, University of Exeter, UKRI Future Leaders Fellow, Solicitor in England and Wales, Attorney at Law in New York State, USA.
Follow us on Twitter @ExeterLawSchool @RebeccaKHelm and LinkedIn https://www.linkedin.com/company/evidence-based-justice-lab
For a list of Dr Helm’s academic publications on guilty pleas, see the publications page of our website: https://evidencebasedjustice.exeter.ac.uk/publications/
For more information on our data and research on guilty pleas, see the guilty plea decisions page of our website: https://evidencebasedjustice.exeter.ac.uk/current-research-data/admissions-of-guilt/
For more information on guilty pleas in actual cases in England and Wales, search for guilty plea cases in our miscarriages of justice registry:
#PostOfficeCase #PostOfficeTrial #EBJL #EvidenceBasedJustice #MiscarriagesOfJustice #FalseConfession #PostOfficeScandal
Suggestive Interviewing, Vulnerable Suspects, and the Line of Duty Season 6 Opener
The first episode of Season 6 of Line of Duty aired on BBC One on 21st March. The series follows investigations of AC-12, a specialist unit investigating police corruption. The first episode was described as returning Line of Duty to what it does best, “dodgy coppers, tense action and characters who communicate almost exclusively in acronyms.” One particularly interesting feature of the episode was the police interview of a suspect with Down syndrome, Terry Boyle (Tommy Jessop), who is arrested on suspicion of murder. The interview was filled with inappropriate questions that would be highly problematic in practice. Although legal regulation (e.g. the Police and Criminal Evidence Act) mean such interviewing would be unlikely to occur in practice, it is still important for suspects and lawyers to recognise potentially problematic questioning. In light of evidence suggesting a ‘CSI’ effect, where the exaggerated portrayal of forensic science and investigation on crime television shows can influence perceptions of the justice system, it is important that fictional shows avoid normalising problematic interviewing techniques.
So, why was the interviewing in line of duty so problematic? First, the interview involved a police officer feeding the suspect details about the case and relevant evidence (e.g., evidence relating to the fingerprints of others found at a crime scene). Giving this type of information to suspects is problematic, since the information can influence the defendants own account by influencing the information that they have about the offence. Where details become known to a suspect during a police interview through exposure to facts about the crime, they come to know this information second-hand. In the example above, a suspect given this information at interview will now have information about the crime scene (e.g., that a specific person was likely to have been at the crime scene). The fact that this information is known by the defendant can come to be seen as incriminating at a later stage of the criminal investigation and trial. This is likely to be particularly important for certain vulnerable defendants who may have a more limited ability to monitor and regulate their memory, and can confuse suggestions with experiences. In court, jurors may be convinced by the fact that the suspect knows facts they could not have known unless they were the true perpetrator, particularly where the suspect does not remember that these facts were given to them by the police.
Lawyers have argued that this type of interviewing led to the alleged false conviction of Brendan Dassey in the United States. They argue that details given by Dassey in his court case did not originate with him but were fed to him during police interviews. For example, they allege that Dassey knew details of the weapon used in an offence as a result of these being fed to him by police.
In Line of Duty this “feeding” of information is combined with the use of leading questions (e.g., did you carry out a thorough cleaning of the property in order to destroy forensic evidence?”). These types of questions can be problematic, particularly with vulnerable defendants, who may have a response bias that leads them to answer “yes” to questions. Some vulnerable groups, including children, do not necessarily have the ability to understand the background knowledge of an interviewer. They may think the interviewer already knows information, and then refrain from going against what they are suggesting even where they do not believe that it is correct.
The fictional interview also shows officers presenting information, including complex forensic information (e.g. relating to gunshot residue) without ensuring understanding of that information or its probative value. Suspects presented with this kind of evidence may end up believing that the police have stronger evidence than they do. This belief can lead them to plead guilty to an offence despite being innocent, or even in some circumstances to come to believe that they actually may have committed an offence that they have not committed. The potential problems with gunshot residue evidence were highlighted in the case of Barry George, who was convicted and then acquitted of murder (https://evidencebasedjustice.exeter.ac.uk/case/barry-george/). Forensic evidence at his initial trial showed a particle of gunshot residue on Mr. George’s coat, but experts later testified that this residue was just as likely to have come from another source as it was to have come from a gun fired by Mr George. Mr George’s conviction was quashed on this basis, but only after he had spent seven years in prison.
In reality, any vulnerable suspect being interviewed would have access to an appropriate adult (https://www.appropriateadult.org.uk/) with the job of safeguarding their interests, entitlement, and welfare. Among other things, appropriate adults can check whether a person understands the meaning and significance of information presented to them, and helping a person to understand the meaning and significance of information and questions.
Ensuring appropriate interviewing is important in both avoiding wrongful convictions and avoiding wrongful acquittals, since once improper interviewing has taken place the value of what might otherwise have been good evidence is compromised. Luckily in practice police uphold high standards in conducting interviews, however it’s still important to remember where mistakes might occur.
For more information on false confessions and false memories in real cases in England and Wales see our wiki pages: