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Justice denied? The experience of unrepresented defendants in the criminal courts

Penelope Gibbs
29 Apr 2016

What price justice? There have always been defendants in the magistrates’ courts who have appeared without a lawyer, particularly in traffic cases. But this report suggests that there has been a significant increase in the number of people representing themselves not by choice. 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 we interviewed are concerned that unrepresented defendants are at a disadvantage, and only differed in their views of how significant that disadvantage was.

We found that the impact on court staff, judges and advocates of dealing with unrepresented defendants was immense – cases took longer, and explanation skills and patience were tested. Many advocates doubted there were genuine savings in denying legal representation to reluctant defendants, but no cost benefit analysis has been done. 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 defendants (if those prosecuted under the single justice procedure are counted) are still unrepresented. So if we are to deliver justice, we essentially have 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.