Judges and lawyers believe the number of unrepresented defendants has increased, but the lack of data makes it difficult to know how big the problem is, according to a report out today.
In charity Transform Justice’s Justice Denied? The experience of unrepresented defendants in the criminal courts report, director and former magistrate Penelope Gibbs says the ‘dearth’ of comprehensive, reliable data ‘makes it difficult to draw quantified conclusions about whether there has been an increase and, if so, how great.
‘However, the strength of perception of those working on a daily basis in the courts is compelling.’
The report focuses on unrepresented defendants in the magistrates’ court.
Judges and prosecutors who spoke to Gibbs said they felt numbers had recently increased. But Gibbs says the lack of data means unrepresented defendants in the magistrates’ courts ‘are invisible in policy terms’.
Magistrates and district judges interviewed for the report had ‘very differing estimates’ of the proportion of unrepresented defendants, ranging from 15% to 40% for non-traffic cases.
Legal advisers and court associates fill in court forms which ask whether the defendant is represented and whether they have applied for legal aid, but Gibbs says this data is 'not systematically collected or collated’.
Estimates of the additional time cases took as a result of unrepresented defendants also varied. 'One prosecutor said it quadruples, another that it doubles the time taken,’ the report states.
'All the judges interviewed agreed that it considerably increased the time a hearing took – three said it could double the time taken, another that each hearing would take 30-45 minutes longer.
'One prosecutor gave the example of a recent trial of someone accused of driving without due care and attention lasting four hours when it should have taken half an hour.’
However, the report highlights ‘reason for optimism’ with the ‘imminent’ publication of Ministry of Justice research on unrepresented defendants in the Crown court, ‘which is already prompting new thinking’.
The main reasons identified by the charity for the perceived increase in unrepresented defendants are lack of eligibility for legal aid, lack of awareness of rights to legal aid and a lack of organisation.
Unrepresented defendants are subject to ‘multiple’ disadvantages, the report states. They are ‘excluded’ from the new digital case-file system being rolled out across England and Wales. They are also excluded from using new court Wi-Fi systems.
Interviewees also suggested that the normal court procedure can be ‘upset’ when unrepresented defendants force the prosecution to call witnesses whose evidence could have been agreed in advance.
The charity was told of a witness to a minor car park accident ’who travelled from Slough to St Albans to give evidence, only to discover that no one disputed his testimony’.
Only one interviewee had heard of a paid McKenzie friend in the criminal courts.
'Prosecutors were not convinced McKenzie friends helped unrepresented defendants, suggesting it can be “like the blind leading the blind”,’ the report states. 'Another prosecutor worried that “they’ve told me what the law is and have got it wrong… it’s one of those cases where a little bit of knowledge is a dangerous thing".’