The government was warned four years ago by judges and prosecutors about the disruption caused by unrepresented defendants in the Crown court following controversial legal aid reforms. However, a report highlighting practitioners' concerns was only released after a freedom of information request was made.
The Ministry of Justice told the Gazette that the 13-page document was released more widely following a freedom of information request. The Gazette has learned that requests were made by justice campaigner Penelope Gibbs, director of Transform Justice, and online news site Buzzfeed over a year ago.
The report states that the research was commissioned to plug an 'evidence gap' on the potential impact of the government's controversial 2013 legal aid reforms on unrepresented defendants. Six prosecutors and 15 Crown court judges were interviewed.
The majority of interviewees perceived unrepresented defendants as the 'exception rather than the rule' at trial. In 2015, 7% of defendants were unrepresented at the first hearing. However, unrepresented defendants were perceived to have a 'disruptive impact' on court efficiency.
Most interviewees thought unrepresented hearings took longer than represented ones. Court processes, legal practices and legal concepts had to be explained and practical adjustments, such as moving the defendant from the dock, had to be made. Defendants were prone to over-participation, making long speeches not focused on the relevant issue, and giving the court irrelevant correspondence. Defendants might continually talk over others and juries were sent out more frequently.
All the judges said defendants facing charges should be represented and were willing to delay a hearing if representation could be obtained. Unrepresented cases involved more hearings because of problems obtaining a defence statement, lack of preparation, and giving defendants more time to understand or serve evidence. Defendants did not understand the concept of disclosure or know what to ask for.
The report says: 'Interviewees felt that problems appeared to stem in part from unrepresented defendants not being in a position to engage with the CPS properly due to their lack of legal training. They also felt unrepresented defendants' distrust of the CPS stopped them releasing documents.'
Judges were concerned that unrepresented defendants could either generate sympathy from jurors or irritate them.
A common concern for witnesses was defendants' sometimes 'aggressive, rude' behaviour during cross-examination.
Suggested solutions include a Crown court duty solicitor scheme, giving defendants access to someone with legal training to help on matters such as assessing strength of evidence, employing legal representatives on an ad hoc basis, judicial discretion to grant representation and training for newly qualified prosecutors on how to manage unrepresented defendants.
The report concludes that on the basis of the study, the policy implications are likely to be ensuring that unrepresented defendants are considered more explicitly and consistently within the ministry's efficiency programmes and reforms.