According to a new report from charity Transform Justice an “effective system” is needed to monitor the quality of criminal defence lawyers and to identify those who, anecdotally, increasingly feel they need to represent themselves. The report, Criminal defence in an age of austerity: Zealous advocate or cog in a machine? says there have always been defendants in the magistrates’ courts who have appeared without a lawyer, particularly in traffic cases. But the report suggests that there has been a significant increase in the number of people representing themselves who are not choosing to do so. The main reasons are:
• Ineligibility for legal aid due to income or
type of offence
• lack of awareness of rights to legal aid
• lack of organisation
The judges and lawyers interviewed for the report were concerned that unrepresented defendants are at a disadvantage, and only differed in their views of how significant that disadvantage was. It takes time, skill and confidence to deal with unrepresented defendants well. Unfortunately, many lawyers felt that some colleagues and court staff do not go the extra mile and, even when they do, cannot make up for the lack of a defence advocate.
There are no official figures for the number of unrepresented defendants in the magistrates’ courts, though all interviewees felt numbers had recently increased. Official statistics from the Crown courts indicate numbers have remained steady at around 6% over the last five years. The lack of data means unrepresented defendants in the magistrates’ courts are invisible in policy terms. But the report found that the impact on court staff, judges and advocates of dealing with unrepresented defendants is immense – cases are taking longer, and explanation skills and patience are
being tested. Many advocates doubt there are genuine savings to the state in denying legal representation to reluctant defendants, but the absence of a cost benefit analysis means no one knows for certain. What is clear is the cost to justice – interviewees had witnessed unrepresented defendants not understanding what they were charged with, pleading guilty when they would have been advised not to, and vice versa, messing up cross examination of witnesses, and getting tougher sentences because they didn’t know how to mitigate. Most advocates felt more and better access to legally aided lawyers was the only answer.
Certainly, that is one potential remedy, but the report also recommended that the whole system needs to be looked at. The report concludes that if justice is to be delivered there are two options – to fund lawyers for all defendants who want or need them, or to change the whole system so that the needs of unrepresented defendants are integral.