‘At the heart of the adversarial system is the concept of “equality of arms”, with both sides being equally able to present their case. This has been so seriously undermined by the lack of access to legal aid that it has become a regular and disquieting feature of the magistrates’ court to find defendants attempting to respond to a charge they don’t fully understand, with no experience of the law or of legal procedures, against qualified professionals with all the resources of the CPS behind them.’
Christopher S Morley JP (the Magistrate)
One magistrate I know said he enjoyed dealing with unrepresented defendants. It challenges him and allows him to hear the real voice of the person in the dock. But he admits that unrepresented defendants are at a massive disadvantage. New research from Transform Justice backs this up (here).
There are no official figures for the number of unrepresented defendants in the magistrates’ courts, but a small survey suggests a quarter are without lawyers. In the Crown Court, 6% of defendants are unrepresented. Given that all those in the Crown Court face the threat of imprisonment this is pretty scary. It is a myth that most people who defend themselves are members of the ‘awkward squad’ – people who choose to represent themselves because they think they can advocate as well, if not better, than lawyers.
Most people representing themselves would rather have a lawyer, but can’t afford one. Anyone with a disposable household income of £22,325 or more is barred from getting legal aid (apart from in exceptional circumstances) in magistrates’ court cases. And the demands for proof of income are so stringent that many self employed people on very low incomes are still denied legal aid. So many people are faced with either paying privately for a lawyer, or defending themselves.
The prosecutors we spoke to and surveyed have a unique perspective on unrepresented defendants since they face them in court. They were all uncomfortable about the inequality of arms involved, and felt that unrepresented defendants were at a significant disadvantage. Without the advice of a lawyer, people often couldn’t understand what they were charged with and whether they had a reasonable defence. ‘I could count on the fingers of one hand how many have actually understood the charges. I have had one who was facing a GBH [grievous bodily harm] s18 charge, believing he is in court for common assault and being shocked when I had to tell him the serious nature of the charge,’ said one prosecutor.
Unrepresented defendants who go to trial have no idea how to prepare for court, how to challenge evidence or how to cross-examine. Preparation for cases isn’t helped by the fact they seldom get the paperwork in advance and are excluded from the new digital case file system. And when it comes to sentence, they lose out because they have no idea how to mitigate. A prosecutor told us: ‘Most people for instance, think it’s mitigation to say they were drunk at the time. The sentencing guidelines say that’s an aggravating feature!’ So unrepresented defendants are likely to get harsher sentences, not because judges are tougher on them, but because they don’t understand the ins and outs of mitigation.
Justice is undoubtedly denied to too many people who represent themselves in court. There are many improvements that could be made, but tinkering with the existing system won’t do enough. The government needs to either provide advocates to all who need them, or radically re-design the system to create a more level playing field.