When 'guilty' is the better choice

The chances of prisoners gaining parole are heightened if they admit to being guilty. But, as John Cooper writes, this is a double-edged sword for those who are innocent. John Cooper is a barrister at 3 Gray's Inn Square.

During the course of a contested criminal trial defendants will vigorously assert their innocence. Sometimes the jury does not believe them. If this is the case the next stage of the trial process takes place – as the Americans call it – "the penalty phase".

The defence barrister will present mitigation to the judge, giving reasons as to why the sentence should be merciful.

None of these facts comes as a surprise, even to the most commercially-minded readers of this column. Neither will it come as a bolt out of the blue that there will be no sudden acceptance of guilt, just because 12 people have come to that verdict.

The problems really start for the defendant long after the dust has settled in the courtroom, because until a prisoner has accepted that they are responsible for the crime upon which they are convicted, their chances of parole or early release are severely curtailed.

In other words, admit you are guilty, otherwise you will stay inside for your full sentence. This may be no problem for the genuinely guilty, but what about that creature – who polite society would prefer to stay in the shadows – the innocent, but convicted, defendant?

They, as the system presently stands, have the stark choice. Lie and admit guilt for the cynically practical reason of regaining your liberty sooner, or tell the truth, maintain your innocence – and stay inside.

The appalling dilemma for prisoners in this position is that if they pragmatically admit guilt, any appeal against conviction is destroyed and society will treat them as someone who has admitted guilt and is therefore guilty. The pubs and clubs of this country do not account for the nuances of the parole board.

It is unacceptable for these unseen pressures, applied from behind the closed doors of prison and of no interest to the wider public, to influence innocent people to accept guilt.

These individuals will probably be the most vulnerable, those with lengthy criminal records and with nothing to lose or those who have never been in prison before and will do anything to get out – just the sort of people who need protection.

But what is even more insidious is that an injustice remains unexposed. An acceptance of guilt at any stage completely sanitises or whitewashes any case the prisoner may have.

There are great safeguards laid down by the Police and Criminal Evidence Act to ensure that defendants, yet to face trial, do not make false confessions and includes protection from undue pressure or offers of advantage, such as bail.

But it seems that once a verdict of guilty is entered, all safeguards are dispensed with and implicit offers of early release for acceptance of guilt are considered unworthy of regulation, the only difference apparently being that the defendant has become a prisoner.

I fail to see the difference between the defendant facing police officers during a police interview before trial and a prisoner facing a board during an interview to facilitate early release.

Maybe though, with a moments thought, the difference is obvious – prisoners do not have votes, society can sleep far more comfortably in its bed if it believes that people are imprisoned because they are guilty, having admitted their guilt, and it reduces the long queue of cases waiting to get before the Court of Appeal.

In other words, the system works, at least for those who matter.