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Jean-Yves Gilg

Editor, Solicitors Journal

Defendants in person, aliens, and the MoJ Jekyll and Hyde

Defendants in person, aliens, and the MoJ Jekyll and Hyde


The Secret Barrister: Injustice waddles hand-in-hand with a lack of legal representation

'Right.' The legal adviser looked at me, then back at the defendant.

'And are any of them going to be witnesses for you today?'

'Any of who?' replied the defendant.

The legal adviser looked at me again and cleared his throat. 'Any of the aliens?'

The defendant shook his head angrily. 'No! My case isn't that aliens did make me do it - it's that at the time I believed they were making me do it. I was insane, yeah? Insane!' He brandished
his antique copy of Archbold triumphantly, as I, a newbie to this prosecuting lark, took my seat and settled in for what proved to be a particularly long trial.

Notwithstanding the years that have passed since that remorseless day, defendants in person (DiPs) are far from a bygone relic.

The charity Transform Justice last month published a report, self-explanatorily titled 'Justice denied? The experience of unrepresented defendants in the criminal courts'. Drawing on statistical and anecdotal evidence from professionals and court users, the report concludes that magistrates' courts are encountering DiPs in ever-greater quantities.

As a prosecutor, it must be said that certain DiPs do not inspire sympathy. Aliens man, a frequent flier in this particular court, certainly gave a damn fine impression of someone determined to get himself convicted - it was impressive how creatively (and doggedly) the words 'I was insane, yeah?' were deployed to expand the trial into the late evening.

But sympathetic or not, everyone - even a man furiously declining to give evidence in his own defence 'until that prosecutor goes into the witness box first' - is entitled to justice. And what we see all too often, as reflected in the report, is that injustice waddles hand-in-hand with a lack of legal representation. Occasionally it will be a conscious choice to eschew professional assistance, as with every criminal advocate's favourite Magna Carta-quoting oddballs, Freemen on the Land, who with a defiant ignorance of constitutional law and a fistful of printed internet 'legal' advice, try valiantly to persuade the court that is has no jurisdiction to try them without their consent, coz Magna Carta. But the recent proliferation of DiPs is largely attributable directly to conscious executive fiat.

A low means-testing threshold (a disposable household income of £22,325 in the magistrates' court) and punitive legal aid contributions for those who do qualify force many middle-income defendants into self-representing. Thrashing through the administrative process if you're self-employed is a nightmare, the impenetrable ambiguity of the legal aid forms seemingly designed to ensure rejection at the first attempt.
The Legal Aid Agency is the institutional embodiment of jobsworthiness, kicking out valid applications for the most trivial - and occasionally non-existent - of perceived slights.

Putting aside the truism that any costs saved in depriving litigants in person of public funding are spunked ten times over by the added court time and resources needed to deal with their cases, the danger, particularly in the magistrates' court, is of significant miscarriages of justice.

I've had years of dubious pleasure watching magistrates deal with DiPs. Many benches do their best to assist the bewildered through the process. But many don't. I recall vividly watching agog as the bench - abetted by their legal adviser - invited a DiP to plead guilty to having an offensive weapon - a hammer - on the basis that he said in interview that he had it with him but intended only to frighten with it. A hammer not being offensive per se, the offence could only be committed if he'd intended to use it to cause injury. Fortunately another solicitor, exchanging raised eyebrows with me, interjected to inject some law into proceedings.

And the fear has to be, as courts are smoothly re-engineered as whirring production lines of justice through Better Case Management, putting the emphasis on speed ahead of quality, that DiPs will get dragged into the grinding mechanism beneath, their cries unheard and their cases undiscovered.

The brave, new, digital world pioneered by the Ministry of Justice (MoJ) is currently predicated on the assumption that all will be represented, the MoJ Jekyll seemingly blissfully ignorant of the MoJ Hyde's bloody night-time trampling over legal aid. Quite how a DiP is expected to muster the wherewithal to extricate disclosable social services records from an exhausted Crown Prosecution Service, or manage the inevitable 500-page-strong notice of additional evidence casually tossed to the defence on the first day of trial, Lord alone knows.

Many of these problems could be ameliorated by the automatic grant of legal aid to anyone accused by the state of a criminal offence, with provision to recoup that money, where available, in the case of a conviction. Utterly unobjectionable in principle. Sadly the modus of successive justice secretaries has been subservience to the false economy of plundering legal aid, plunging other departmental budgets into the red in satisfaction of a laughably dishonest public commitment to 'fiscal responsibility' and 'tough spending decisions'.

@BarristerSecret is, unsurprisingly, an alias for a practising barristerYou can visit their blog at