The plight of the unrepresented defendant

Buzzfeed, Transform Justice and others recently made a Freedom of Information request to the Ministry of Justice to gain access to unpublished research about unrepresented defendants – read Penelope Gibbs on the Justice Gap here. While they were provided with a summary of the research, the MoJ originally denied that any further data (such as interview transcripts) was in their possession.

Yesterday, it became evident that the MoJ did in fact hold a much fuller report than the six page summary that had originally been released – see Emily Dugan for Buzzfeed (here).

According to Buzzfeed, the previously undisclosed full report that includes:

• The gulf between MoJ predictions on the minimal impact of legal aid changes on criminal cases and the reality experienced by judges.
• That more than half of the judges interviewed were concerned about unrepresented defendants understanding the concept of the difference an early guilty plea made in sentencing.

• Explicit warnings backed up by data that not having a lawyer may create more hearings, a situation that could end up costing the court system more.
• Judges said preparation for cases was ‘more extensive or difficult’ where the defendant had no lawyer.
• Data from five magistrates courts across England and Wales in 2015 suggesting that 13% of people have no lawyer when facing criminal charges there.
• That some of those interviewed said no support at all was offered to unrepresented defendants.
• While the summary made just three vague policy recommendations on the back of what it described as a ‘small study’, the original report has seven specific recommendations, including looking at options for providing legal assistance in crown court.
• A judge saying the impact of witnesses being interrogated by a defendant is ‘almost like committing the offence all over again’.
• Correspondence between the Senior Presiding Judge (SPJ) and MoJ officials ‘where the SPJ requested the MoJ conduct further work on the issue, namely to provide more robust data on the number of unrepresented defendants in the Crown Court’.

The summary of the research indicates that the MoJ commissioned the study in 2015 in order to assess the impact of cuts to legal aid. The research consisted of interviews with 15 Crown court judges and six Crown prosecutors.

There are three things to note about this sample. First, it is small. Second, the absence of defence lawyers seems to be a significant omission. The absence of the voices of defence lawyers in such research is not unusual; there is often a lack of meaningful consultation with the defence profession about change in the criminal justice process. This lack of consultation is likely to further distrust between the government and lawyers, and is likely to further demotivate an already struggling profession. Third, the research focused on procedures in the Crown courts, which is reflective of the fact that magistrates’ courts have historically been neglected sites of study.

This seems to be changing in academic circles over the last three or four years, no doubt assisted by the work of organisations such as Transform Justice, which in 2015 conducted research on the issue of unrepresented defendants in magistrates’ courts. When the full report was leaked, it became apparent that some data on the numbers of unrepresented defendants appearing in magistrates’ courts had also been obtained.

Notwithstanding those limitations, the summary of the research is unsurprising reading for anyone with an interest in the criminal justice process. The threshold eligibility for legal aid has not been reviewed in almost a decade. Following cuts to, and restructuring of, legal aid, more defendants are appearing in criminal courts without legal representation. The MoJ report suggests that 13% of defendants were appearing in magistrates’ courts without representation in 2015. With respect, this seems to be a somewhat conservative estimate.

The MoJ further suggests that, prior to the report, no quantitative data about unrepresented defendants in magistrates’ courts existed. This is not accurate. There is a long history of research on unrepresented defendants in magistrates’ courts. In 2010, Vicky Kemp prepared a report for the Legal Services Research Centre (a department of the Legal Services Commission, the predecessor of the Legal Aid Agency) entitled Transforming Legal Aid: Access to Criminal Defence Services. She found that found that the number of defendants appearing without legal representation had increased since the reintroduction of means testing into legal aid, and noted that 82% of defendants were appearing in magistrates’ courts with legal representation, meaning that 18% were not legally represented.  Again, Kemp found that ‘defendants who were unrepresented had less understanding of what is happening when compared to those who have a solicitor’.

This echoes the findings of both my own research on magistrates’ courts and that by Transform Justice. My own research was conducted as part of my PhD study into the impact of legal aid cuts and efficiency drives on the ability of defendants to actively participate in magistrates’ court proceedings. Across the four magistrates’ courts that formed my site of study, 22% of defendants were unrepresented, although only half of those who were unrepresented would have automatically been entitled to some form of publicly funded legal assistance.

Judges interviewed for the MoJ commissioned research expressed a clear preference for defendants to be legally represented, and were willing to delay cases so that representation could be obtained wherever possible. Judges were prepared to do this not just because of issues surrounding access to justice and the parties’ right to a fair trial, but also for the much more pragmatic reason that cases involving unrepresented defendants tend to take up more of the courts’ time. The leaked report makes clear that judges and prosecutors believe that legal representation helps to improve the efficiency with which cases are conducted. In an era of demands for ever greater efficiency in order to save time, and therefore money, unrepresented defendants are a significant problem. My research suggested that more than half of all advocates who were interviewed felt that proceedings involving unrepresented defendants take longer to conduct because the legal provisions involved need to be explained.  There is evidence that the presence of defence lawyers helps the courts to run more efficiently, which is likely to reduce cost. However, the MoJ has reduced access to lawyers through changes to legal aid in order to try to reduce cost. The two goals (efficiency and reduced access to legally aided advice) appear incompatible.

The unpublished research accessed by Buzzfeed suggested that interviewees were generally unable to assess if outcomes were different for unrepresented defendants, although some felt that unrepresented defendants were more likely to be convicted than represented defendants. My own research on magistrates’ courts suggested that unrepresented defendants do appear to have a somewhat different experience of proceedings compared to those who are represented; points of law are less likely to be raised, mitigation is not directed to sentencing provisions and is not as comprehensive as mitigation advanced by an advocate. Unrepresented defendants also appeared to provide only brief answers to direct questions which were often lacking in context.

Unrepresented defendants are problematic, both in relation to concerns about the fair presentation of justice and for pragmatic reasons. There is a growing body of research which indicates that money saved by reducing access to legal aid (although the actual saving is unclear) is off-set by the cost of lengthier and more protracted proceedings involving unrepresented defendants, and that is leaving aside issues of the defendant’s right to a fair trial and witnesses rights to be cross examined in a professional manner. My research suggested that delay  is caused at this stage of the proceedings because, when defendants are unrepresented, they do not understand procedures which means that unrepresented defendants are trying to give evidence at the same time as conducting cross examination.

Despite these issues, and the fact that the leaked report indicates that judges have asked the MoJ to conduct more robust research into the issue of unrepresented defendants in criminal cases, there is no sign that the MoJ is committed to conducting a review of the impact of funding cuts in this area. While the MoJ has commissioned a full review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which is undoubtedly to be welcomed, LASPO largely affected access to legal aid in civil cases with only minor changes to provisions in criminal legal aid. Changes to funding in criminal cases have been introduced in a much more fragmented and piecemeal manner, with little coherence and even less consultation. However, as defence lawyers have been scapegoated as ‘fat cats’ who milk the system, and defendants cast as undeserving of the support of tax payers’ money, there is little motivation to address these problems.

The criminal justice system has been creaking under ever greater pressure for many years and multiple warnings about collapse have been voiced. Barristers are currently refusing to act in cases in response to yet more legal aid restructuring, meaning that there are significant numbers of defendants currently appearing in Crown courts across the country without full access to legal representation. Surely, the time has come for meaningful consultation and policy review across the system.