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No other Western adversarial system denies defendants legal representation

Penelope Gibbs
22 Sep 2017

Our criminal justice system is fiercesomely complicated – so complex that the Law Commission has proposed a massive simplification of criminal law.

Last year Transform Justice published research on unrepresented defendants in the magistrates’ courts. This found that up to a third of defendants were appearing without lawyers, and that they struggled to get justice – to understand how to plead, how to conduct their own trial and, most importantly, if pleading or found guilty, how to mitigate their sentence. And one of the key reasons for people opting to represent themselves was that they were not eligible for legal aid, but could not afford to pay for legal representation.

The report is not our greatest triumph in terms of influencing change in the criminal justice system. Of the sixteen recommendations we put forward, none have been implemented so far. Lots of people acknowledge problems, including the Ministry of Justice, but nothing has actually changed.

One of the more straightforward recommendations was to gather data on the number of defendants who are unrepresented in the magistrates’ courts. We still have no data, but since writing the report I have found out that in 2010 the MoJ themselves estimated the proportion of unrepresented defendants in the magistrates courts as 32%. There are likely to be more now. The MoJ have collected figures on the proportion of unrepresented defendants in the crown court.  This proportion has been steadily rising from 5% at first hearing three years ago to 7% now.  That’s over 6000 cases in 2016 where defendants had no lawyer in the Crown Court.

There is no other similar (adversarial) system in the Western world where high proportions of those facing imprisonment and life long criminal records, are not legally represented. When I’ve discussed this with advocates in Scotland, Northern Ireland and the USA, they cannot believe their ears. In the US, the right to counsel in criminal prosecutions is in the sixth amendment to the US constitution.  There has been much criticism of the quality of work of the US public defender service, but at least the land of the free provides a lawyer for everyone who needs one.

Unrepresented defendants continued to be overlooked in criminal justice policy. Our recent survey on video justice reveals that 74% of those who responded felt appearing on video had a negative effect on the participation of unrepresented defendants. We don’t have current data how many who appear on video are unrepresented, but in the 2010 study of police station-court links, 46% had no lawyer. It makes sense that unrepresented defendants would be disadvantaged by appearing on video – represented defendants usually have their advocate in court, talking face to face with the bench. But there is no guidance anywhere suggesting whether unrepresented defendants should be brought to court or not, nor hints on how to facilitate their participation if they are on video.

The new Bach Commission report “the Right to Justice” however does draw attention to the way the criminal legal aid system leads to ever higher levels of self-representation.

“There is a means test for legal aid eligibility in both the magistrates’ court and the crown court. The threshold for legal aid is £22,325 of gross household income, although defendants whose assessed household income is between £12,475 and £22,325 may have to pay contributions to their costs.
These contributions, whose make-up is never explained, can be very high: the level of monthly contributions demanded sometimes exceeds the cost of the case, and frequently exceeds the client’s ability to pay. In such cases clients will either be forced to represent themselves or, if they can, they may come to an arrangement with their solicitor to pay privately at a discounted rate”.

The recommendations of the Bach report on criminal legal aid are good, including simplifying the evidence requirements for criminal legal aid. Lawyers told us that someone with no income was unlikely to get legal aid, since they had to provide documents proving they had no income. This is nigh on impossible to do.

The Bach Commission also calls for a Right to Justice Act and a Justice Commission to police it- great ideas but I fear unlikely to happen. But the criminal legal aid reforms would be one relatively easy step towards reducing the number of unrepresented defendants.