A pale imitation of justice
An increasing inequality of arms and a 'pot luck' approach to supporting unrepresented defendants is putting the integrity of the justice system at risk, says Penelope Gibbs
'I worry about the outcomes for unrepresented defendants more than anything else… I think we
have a victim court culture now… there are so many ways to catch a defendant out that weren't there five years ago… I just think they are at a massive disadvantage, but they don't know it' (prosecutor).
Prosecutors could see unrepresented defendants as 'easy game', but they do not. They are concerned the court room has become an uneven playing field - a 'pale imitation of justice'.
The issue came to light because Transform Justice, the charity of which I am director, recently published research on the experience of unrepresented defendants in the criminal courts. We focused on magistrates' courts because a higher proportion of defendants (20-25 per cent) represent themselves there - though there are still 6 per cent without an advocate in the Crown Court.
There is a myth that those who represent themselves are difficult people, hell-bent on having their moment in court.
In fact, our research suggests most of those who defend themselves are not actively choosing to do so - they either earn too much to qualify
for legal aid (over £22,325 disposal household income)
but not enough to afford legal representation, or they have chaotic lives and just have not managed to organise legal aid. Some just guess the process will be straightforward.
Unfortunately, our criminal justice system is anything
but simple. Defendants encountered problems as
basic as understanding the charge. In one case it transpired at a sentencing hearing that the unrepresented defendant had no idea of the charge, let alone the sentence.
Few interviewees felt there was true 'equality of arms' at any stage of the criminal process but they were particularly concerned by trials.Unrepresented defendants start at a significant disadvantage, since they are excluded from the new digital case file system, and often do not even receive the prosecution papers in the post.
And, even when they have the evidence, they struggle
to challenge it. As one of the prosecutors explained, 'no one analyses it, no one picks holes in it, and it's just unfair. The state is paying people to prosecute and it's got to pay someone, if you can't afford it, to defend'.
Two key questions arise from this research: is means testing of legal aid cost effective? And is justice being compromised by the current system?
All the interviewees, judges, and prosecutors felt unrepresented defendants were at a disadvantage - they only differed in how significant they felt that disadvantage was. Sentencing hearings illustrate this. Most people who represent themselves do not understand mitigation, either personal or circumstantial, so they tend
to get tougher sentences.
Their attempts to mitigate can
make the situation worse still: '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!' (prosecutor).
Do unrepresented defendants cost the system more than they save? Hearings tend to last longer, whether because the advocates and judges have to spend longer explaining things, or for adjournments to allow papers to be read or witnesses summoned.
One prosecutor said: 'I have known a case listed for an hour for a driving offence take all day (started at 10.50, finished at 18.20)… My worst case was… when I was still sitting in the prosecutor's seat at 21.55!'
In some cases involving unrepresented defendants and vulnerable witnesses, advocates are paid to cross-examine the vulnerable witness on the defendant's behalf. The average cost per case was £1,276 in September 2015 - more than would often be paid to a solicitor for the whole case.
We need a cost-benefit analysis to know whether means-testing legal aid ends up costing more than it saves, but it certainly looks that way.
Meanwhile, the justice system would run more smoothly if unrepresented defendants had some help along the way. Some advocates, judges, and legal advisers are skilled at walking the tightrope of supporting an unrepresented defendant while maintaining the integrity of the process. Some are not. As one magistrate pointed out: 'It's pot luck, and I don't think a court process should be based
Penelope Gibbs is director of Transform Justice www.transformjustice.org.uk