Not the ‘awkward squad’: unrepresented defendants in the Crown Court

In 2015 when I was trying (with difficulty) to do research on unrepresented defendants in the criminal courts, I steered away from the Crown Court because the Ministry of Justice said they were doing research on this which would be published. I chased and chased but eventually they announced that they had no intention of publishing the research. After I and others FOIed the report and appealed to the Information Commissioners Office, the Ministry of Justice was forced to publish.

Two years later we have six pages – an analytical summary based on interviews with 15 Crown Court judges and six CPS prosecutors. Small scale though it is, many of the findings echo Transform Justice’s own research on unrepresented defendants in the magistrates’ courts.

No one knows how many people appear in the Crown Court without a lawyer throughout their trial, but 7% defendants are unrepresented at their first appearance in the Crown Court. The report points out that

1. Not all self represented defendants in Crown Court are members of ‘the awkward squad’- people who are determined to represent themselves. Some defendants self represent either because of mental health problems or legal aid/funding issues ‘these defendants perceived the level of contribution as too high and that self-employed defendants had particular problems proving their level of income’.
2. Unrepresented defendants have a varied but limited understanding of the court process including how to present evidence about their case at hearings, how to prepare defence statements or how to ask questions in court (i.e., the fundamentals of advocacy). Disclosure was a particular problem – with unrepresented defendants ‘not understanding the concept of disclosure…not knowing what to ask for and not setting out their argument’.
3. There are strong hints throughout that unrepresented defendants do not get a fair trial as they are ‘not properly qualified to put their case forward’. ‘Other interviewees felt that a higher proportion of guilty verdicts resulted from the unrepresented defendants’ cases.’ They also suggested that the behaviour of an unrepresented defendant could directly influence a jury either way thus risking the ‘neutrality’ of the jury – ie their ability to make an unbiased decision.
4. Interviewees thought witnesses were disadvantaged when faced with an unrepresented defendant. In cross examining ‘interviewees gave examples of defendants being aggressive, rude and asking unnecessary questions’. Through their (understandable) ignorance unrepresented defendants could waste witnesses time by calling ‘witnesses to trial unnecessarily as they did not understand who should give evidence’.

There is a consensus from interviewees that unrepresented defendants slow the court process down at every stage. This has implications for funding of legal aid. There are strong hints from the report writers that they think that it is not cost effective to deny legal aid to those who cannot afford private fees/contributions – hence the suggestion that there should be a Crown Court duty solicitor scheme and/or judicial discretion to grant representation where appropriate.

The report is disappointing in not including any quotes from the interviewees. But the conclusion are clear – that unrepresented defendants are neglected in policy and practice and that their financial impact should be monitored ‘assessing and costing options to mitigate any negative impact’.

Transform Justice made a similar recommendations two years ago. We have a criminal justice system which is too complicated and fundamentally unsuited to defendants coping without a lawyer, either in the Crown Court or the magistrates’. We either need to simplify the system altogether, or give legal aid (with the lawyers paid fair rates) to anyone who needs it.

This article was first published on the Justice Gap on May 1, 2018 – and previously here.