Unfortunately we don’t have equality of arms when it comes to unrepresented defendants. After a year of research (done with ICPR), I am now convinced that no-one should have to represent themselves in today’s criminal courts. Of course, anyone who chooses to represent themselves should be allowed to.
I’ve got nothing against self representation in principle. But in practice, our system is designed for opposing lawyers, and very complex. Without a very deep knowledge of the law and the legal process, anyone who presents their own case is at a disadvantage. This has been revealed to us by their “opponents”, the prosecutors. Most prosecutors hate prosecuting unrepresented defendants, because they believe justice is denied them, however hard they try to level the playing field. “I have prosecuted trials against unrepresented defendants. It is a complete sham and a pale imitation of justice” (prosecutor).
Unrepresented defendants seem to be most at sea when trying to conduct their own trial. They are supposed to get the paperwork in advance, but often don’t. Whenever they do see the paperwork, they get little help to know what to do with it – a lot is in impenetrable legal language. They also need to decide who to call as witnesses and review witness statements in advance. We heard of unrepresented defendants mentioning someone in their trial who clearly should have been called in their defence, but hadn’t been, and of witnesses called to give evidence unnecessarily. When the right witness was there, unrepresented defendants had no idea how to cross examine:“they don’t make the right points, they don’t ask the right questions. They can actually undermine their own case” (prosecutor). Slightly surprisingly, most of those we interviewed, felt that judges did usually come to the right verdict (guilty or not) in self-represented trials. But no-one was convinced sentences were fair, not because judges were tougher, but because unrepresented defendants didn’t know how to mitigate their sentence -what are valid reasons to reduce a sentence, and what not. “Most people for instance, think it’s mitigation to say they were drunk at the time. The sentencing guidelines say that’s an aggravating feature!” (prosecutor).
Magistrates’ courts have been muddling along with unrepresented defendants for years, doing their best. But with numbers appearing to increase, now is the time to step back and examine how to deliver better justice for those reluctantly representing themselves.
Transform Justice’s new report is here