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The lone defendant – facing prison without a lawyer

Penelope Gibbs
14 Sep 2023

How would you cope with defending yourself in a trial which could end with your own imprisonment? It’s little known that judges in magistrates’ courts can imprison adults for up to six months for one offence and more for multiple offences. The decision on conviction and sentence is made by a bench of two or three magistrates or by a single district judge (no jury is involved). All defendants faced with a possible prison sentence can use a lawyer for free for their first appearance in the magistrates’ court, but can’t have a free lawyer for subsequent hearings unless their income is below £22,325 pa.

Our whole criminal justice system is designed to be an adversarial “contest” between lawyers, a defence lawyer representing the person accused and a prosecution lawyer representing the interests of the state. The language and process is complex – observers, defendants and witnesses often find it hard to know what is going on when lawyers are there. So it’s a tall order for anyone to represent themselves, to know whether the charge against them is the right one, whether to plead guilty or not guilty, how to argue for a particular sanction if convicted. Transform Justice published research on unrepresented defendants in 2016 and have championed the interests of unrepresented defendants ever since.

We were hampered in 2016 by a lack of data. There was no court data at all on unrepresented defendants. Now the data is there thanks to the Common Platform, a new digital case file system. The Centre for Public Data has analysed some very interesting numbers which indicate the problem is much worse than it was, or than anyone thought. Ideally every defendant faced with getting a criminal sanction in the courts would have a lawyer. But its particularly important for those facing imprisonment either on remand or sentence – they’re facing a life-changing experience in an institution in crisis. Violence in prison is rife and many prisoners are locked up 22 hours a day. Anyone who serves a prison sentence acquires a life-long criminal record. The new data shows that half of all those at risk of receiving a prison sentence in the magistrates’ court are unrepresented at every stage of the process. This includes over two thirds of those accused of driving when over the alcohol limit or of having taken illegal drugs, of driving when disqualified and of failing to surrender to court/police bail.

At least one in five defendants are unrepresented for every category of serious offence. Those accused of “indictable only” offences will be tried in the Crown Court but it is critical that they’re represented at the early stages of the process – in police custody and in the magistrates’ court – to prevent a miscarriage of justice. Yet these figures show that 29% of those accused of rape and 20% of those accused of murder are unrepresented in the magistrates’ court.

Transform Justice has recruited courtwatchers to observe London magistrates’ courts. Their figures of cases where the defendant is unrepresented are slightly lower than the national picture – on average one in five are unrepresented. Courtwatcher Dhillon Shenoy recently observed a case which highlights why people are unrepresented and how the courts adapt. A woman was accused of four offences – driving without insurance, possession of cannabis and a class B drug and obstructing a section 23 search (as in stop and search) by the police. Being convicted of just one of these could have landed her in prison. She arrived at court expecting to be represented but communication with legal aid lawyers had broken down and she learnt that they would not be coming. She hadn’t had access to any of her own case papers since she thought she had a lawyer. She was on benefits, neurodivergent and with mental health problems. Despite this, she was encouraged by the judge to defend herself in her own trial. The judge said she could apply for an adjournment but he didn’t have to grant it, and if she represented herself the case would be dealt with by the end of the day. I think this type of pressure on defendants is wrong, but in the event the judge and the prosecutor appear to have done their absolute best to support the woman. The charge of possession of class B (in fact ADHD medication) was dropped, she was acquitted of the cannabis possession charge, given a conditional discharge for obstructing the section 23 search and fined for driving without insurance. Dhillon particularly praised the prosecutor Lydia Marshall Bain for her fair approach.

It is impossible to know whether the outcome would have been different had the defendant been represented. But I really worry that such a complex trial (involving cross examining a police officer) was held when the defendant was “vulnerable and fragile” and “very distressed throughout the hearing”. Its traumatic enough to face a trial in the magistrates’ court without learning you must represent yourself at only a few minutes notice.

Ironically, the tool for providing this new data on unrepresented defendants – the new digital case file system called the Common Platform – is also increasing the discrimination they face. It will contain all the case files for a hearing, including disclosure, and is accessible to any professional participant in the process. But it has been designed to exclude the unrepresented defendant. So they have no digital access to the files a defence lawyer would see. This disadvantages all those unrepresented defendants who work better digitally then reading paper files, but also means that, in reality, unrepresented defendants often don’t receive any case papers before their hearings – merely the instruction to turn up.

This new data is a revelation. Most people accused of imprisonable offences have the right to free legal advice. Previous research suggests most unrepresented defendants would prefer to have a lawyer. So why aren’t they getting one? And what are the results of so many people defending themselves? Our 2016 research suggested justice outcomes were different – that unrepresented defendants were less likely to get their charge downgraded, more likely to make the wrong plea given the evidence, and less likely to be able to mitigate their sentence if convicted. Maybe now the data can tell us whether this is the case.

NB the raw data on unrepresented defendants was a response to a parliamentary question from shadow courts minister Alex Cunningham.