Max Saffman considers the worrying trend of increased numbers of unrepresented defendants.
A report due to be published this week suggests that a combination of legal aid cuts, complex bureaucracy and lack of support and information has led to a surge of people appearing before the courts unrepresented.
The report, Justice Denied, published by the charity Transform Justice, states that unrepresented defendants don’t understand what they are charged with, plead guilty when they would have been advised not to and receive tougher sentences because they don’t know how to mitigate. There is one anecdotal tale of a defendant appearing by videolink from the Police station and remanded in custody, without saying a word. It transpired he was deaf but legal aid restrictions meant he was unrepresented and therefore didn’t have a voice.
The report also, worryingly concludes that on balance ‘a person who is unrepresented stands a 15 per cent chance of getting a longer sentence or a worse outcome than if he were represented, even by a not very competent advocate’. I’m not sure what this says about our Criminal Justice system.
Right to a Fair Trial
But on a more practical note, how is this compatible with a right to a fair trial, a protected right under Article 6 of the European Convention of Human Rights (ECHR). How can a trial be fair when one party is represented by a qualified experienced lawyer and the other unrepresented. This is not the ‘equality of arms’ envisaged by the ECHR.
Yet despite this, the system adapts regardless of rights. Trials take longer than they should, cases are adjourned as unrepresented Defendants don’t understand the procedure. Court closures and restricted judges hours leads to horrendous backlogs and gridlocks in the system. I have represented defendants who are willing to plead guilty because the trial date that has been offered is so far away. Why is the trial date so far away? It is because the system is clogged up with unrepresented defendants. So the courts whilst trying their best to ensure unrepresented defendant’s rights are protected, are doing so at the expense of others, who are represented.
Much irony, little justice.
I remember when I first started, twenty years ago legal aid was freely available. The biggest headache was completing the forms. I recall in the old style forms at the very end there was a sneaky question enquiring as to whether the applicant had any equitable interest in a foreign property or trust. A more inappropriate question I couldn’t think of dealing with the clients we did. If however the box wasn’t ticked…back it came. The system needed reforming..and reform it did at some price. Not measured in the Ministry of Justice legal aid spend, but in an erosion of all our rights.
Max Saffman – Higher Court Advocate
Written by Max Saffman. Max has spent the last ten years as a specialist Higher Court Advocate and has a wealth of experience of representing defendants facing the full range of criminal law cases including murder, allegations of people smuggling, firearms offences, robbery and serious drugs conspiracies.