Guest blog: Penelope Gibbs, Director of Transform Justice - Justice Denied?

5 May 2016

Penelope Gibbs (Transform Justice)

Justice Denied? Unrepresented defendants in the criminal courts

"I have prosecuted trials against unrepresented defendants. It is a complete sham and a pale imitation of justice" (prosecutor)

How can someone who has never studied law, nor entered a criminal court, get justice if they have to defend their innocence alone?  The answer from Transform Justice's new study (http://www.transformjustice.org.uk/reports/) on unrepresented defendants is that they probably don't. 

People who represent themselves often do not understand what they are charged with, whether they have a viable defence nor how to mitigate.  So at every stage of the process they take decisions which may disadvantage them.

We interviewed members of the independent bar who prosecute, District Judges and magistrates.  All were concerned that, however hard they tried to support a floundering unrepresented defendant, equality of arms was not achieved. 

This was particularly true of cross examination.  Problems started with unrepresented defendants often not receiving any paperwork until the day of the trial. Unrepresented defendants don't understand which witnesses to call, and which not to call, and when they cross examine: "they don't make the right points, they don't ask the right questions.  They can undermine their own case" (prosecutor). 

Justice Denied is the first piece of research on unrepresented defendants in England and Wales, and has uncovered some issues of concern.  But some information is missing.  We know that 6% of defendants in the Crown Court are unrepresented, but have no official figures on numbers in the magistrates' courts, though estimates suggest one in four. 

All those interviewed also felt numbers in the magistrates' courts are going up, even though eligibility thresholds for criminal legal aid have not changed in recent years.  What is clear is that many of the those who represent themselves are not doing so by choice.  Anyone who has a household disposal income of over £22,325 is very unlikely to get criminal legal aid in the magistrates' courts, even if they are accused of an imprisonable offence. So defendants have to defend themselves, or pay for a lawyer and, in an age of austerity, more are choosing to go it alone.

Does the apparently increasing number of unrepresented defendants matter?  It matters for two key reasons - firstly because justice may be denied and, secondly, because it is slowing the system down.  Unrepresented defendants make decisions which can easily lead to a tougher sentence. 

If they go to trial when there is no chance they will be acquitted, they lose potential credit for a guilty plea.  If they accept the "wrong" charge, or if they don't provide the right mitigation, they will get a higher tariff sentence.  So poor are unrepresented defendants at mitigation that they sometimes make the situation worse: "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).  

Perhaps the most worrying evidence is of defendants who are encouraged to plead guilty even when they may have a viable defence.  One of our researchers observed a judge trying to dissuade an unrepresented defendant from going to trial on a charge of arson: "are you sure you are going to plead not guilty…if the arson evidence comes back as yours, you are going to look silly.  Are you sure the fingerprints are not yours on the leaflet? Are you sure you are not going to plead guilty to arson?" 

Our interviewees felt most cases involving unrepresented defendants took longer, sometimes much longer: "I have known a case, listed for an hour for a driving offence, take all day…My worst case was…when I was still sitting in the prosecutors' seat at 21.55 hrs. It is unacceptable for anyone to be there that late" (prosecutor). 

Cases took extra time because judges and others took longer explaining things, because unrepresented defendants did not know how to narrow down the evidence. and because cases sometimes needed to be adjourned to allow time for the defendant to read papers or seek legal advice.  No-one has ever done a cost-benefit analysis of cases involving unrepresented defendants, but many interviewees felt that the denial of legal aid may be a false economy. 

How can we prevent the major and minor miscarriages of justice that afflict unrepresented defendants?  There are lots of small things we could do - like giving people information on the court process and how to conduct a trial.  But I feel only radical change will produce equality of arms.  We need either to give everyone who wants legal advice access to a defence advocate, or to redesign the court process and the law so that it is easy for an unrepresented defendant to present their case. 

Penelope Gibbs is Director of Transform Justice (www.transformjustice.org.uk)