I believe that it was Abraham Lincoln who said: “He who represents himself has a fool for a client.”
However, it could just as well have been Horace Rumpole. Or me, or indeed any other criminal barrister I’ve ever met. We don’t just say that in order to drum up work. It’s because we’ve all seen at first hand what actually happens to people who end up representing themselves in the criminal court – whether by choice or otherwise.
As if there weren’t enough signposts being put up by this Government towards the end game, several newspaper articles within the last week or so have given that game away. You don’t need to have my now well recognised psychic powers to have worked it out.
This Government don’t want ordinary people to be able to have access to the justice system.
In a deeply depressing article published in The Guardian – see the link here – the Transform Justice charity finally managed to make public what all criminal lawyers have been shouting for years, except no one has been listening: the number of people appearing unrepresented in the criminal courts has been exploding. Magistrates reported that a quarter of those appearing in front of them were representing themselves.
Fortunately, this phenomenon is as yet less common in the Crown Court, but I’m not the only one who’s noticed an increase in numbers there. The MOJ, of course, are peddling one of their usual lies about how figures for unrepresented Defendants have supposedly remained stable since 2010. So it’s funny that, in the same article, the same department appear to have admitted that they, um, don’t have any official figures as to how many people don’t have lawyers in the lower court and are conducting an investigation into the situation in the Crown Court. In other words, they don’t know their arse from their elbow, as usual.
This article from the LCCSA about the hazards of and for unrepresented Defendants (see link here) pretty succinctly sets out the problems. For those of you out there who may be thinking that you can be your own Rumpole, what you need to know is that: (i) simply because you’re acting in person doesn’t mean that you’ll be able to sling mud indiscriminately; (ii) the judge or magistrates will have to keep you on track with what’s relevant and admissible and what isn’t allowed; (iii) the rules of evidence and disclosure still apply to you, even if you don’t know them; (iv) neither the Prosecutor nor the judge are there to help you, and in fact professionally should not be doing so; and (v) you won’t be able to look all this up on Google because you won’t understand what you’re looking at.
Why on earth would anyone want to not be represented?
According to that LCCSA article, some people do: one of the main reasons I’ve heard is that some people who are innocent think they’ve no need of a lawyer when their case gets to court. Because they haven’t done it, they reason, they don’t need legal advice. Well, let me tell you, if you’re saying you’re not guilty, the very last thing you need to be doing is trying to represent yourself at trial. You will not be able to be objective about the evidence, as your lawyer will, and so you won’t be able to best present your case in the witness box.
And with the current drive to expect people to enter pleas on very limited disclosure, if you’re unrepresented you won’t have a clue if something important is likely to be getting held back by the CPS, and you won’t know where to dig for it. Your lawyer will.
According to Transform Justice (link to full report here), the lawyers interviewed reckoned that on average, unrepresented Defendants came off at least 15% worse when being sentenced than those who had a lawyer. There were also serious issues with Defendants in person not even understanding what they were charged with, pleading guilty when they plainly had a valid defence, not pleading guilty when they should have (and therefore losing sentencing credit on a massive scale), etc etc. One Defendant who appeared via video link said nothing in his own defence. Having been duly convicted, it was later realised that he was deaf and hadn’t understood a word of the proceedings.
I’m sure we’ve all got our own stories about the unhappy sight of the hapless Defendant attempting to grapple with the niceties of criminal law and procedure when representing themselves. I vividly recall, when prosecuting an appeal against conviction a few years back, the exasperated judge having to deal with an unrepresented man who had been convicted by the magistrates’ court of driving without insurance. Hardly the crime of the century, but the bloke was adamant that he hadn’t done it.
Having represented himself in the magistrates’ court and been summarily convicted, he decided that he was going to appeal to the Crown Court. Of course, he had an automatic right to do so. Trouble was, he was still unrepresented by the time his appeal came up. And he didn’t have a defence.
He thought he did. He was saying that he’d bought an online insurance policy that he believed was genuine but in fact turned out to have been a scam in which he’d been duped. So he didn’t have a defence, since he didn’t actually have valid insurance. What he actually had was mitigation. Which myself and the judge spent an entire day first of all trying to explain to him, then going through the motions of me presenting my case, him calling his (irrelevant) witnesses, them being shown to be irrelevant in a couple of sentences, the judge losing his patience, and the poor fellow paying not only a substantially increased fine, but increased costs to boot. He’d have been better off paying a lawyer. And the Crown Court would have saved probably five hours of its expensive time: supposedly, it costs around over £10,000 to operate one of their courtrooms for a day.
Some people don’t have a lawyer because they can’t afford it. Or think they can’t. Well, they’d be surprised. In my book, if your case is in the magistrates’ court, you probably could afford a lawyer if you can afford to pay for Sky Sports every month and have an annual foreign holiday. Sometimes it’s a matter of priorities. But even then, there are still far too many people in the lower court left without representation. Gawd helps us all if this bugger’s muddle spreads any further into the Crown Court…
As it clearly has, if my experience this morning at a very large Crown Court centre in London was anything to go by. Out of six appeals cases listed, in five the Appellants were unrepresented. Guess which one of the hearings was the only case to be effective that morning?…
Of course, I’m just talking about the criminal courts because that’s what I know about. By all accounts, the situation is far worse in the civil and family courts, with legal aid being virtually non-existent in either forum.
Naturally, it’s fine for the Government to use the top QCs in the country to argue their case in the highest courts in the land when they want to try to avoid an inconvenient or embarrassing result. This story from The Guardian in 2013 (see link here) highlighted how James Eadie QC, who seems to be the MOJ’s ‘go to’ guy when they’ve got something particularly useless and unattractive that they want to argue, had apparently received more than £2.2million for representing the Government in the preceding three years. (I bet his fees have gone up since then, unlike those of legal aid lawyers. The idea of me earning £2.2million in my entire career is risible.)
However, even counsel of that quality or cost often can’t save hapless Government departments from the results of their own ineptitude, incompetence, negligence or downright deliberate nastiness. Like the recent defeat in the Supreme Court over the legal aid residence test (the story is here), where the MOJ were swiftly given a bloody nose by their Lordships. I didn’t notice Grayling or Vara or any of the other architects of the ill-fated scheme popping along to represent the department in person. They wouldn’t dare (though I’m guessing that, if it was a hearing by video link, the current Attorney General could, ahem, ably deputise.)
No, if the Government want to fight a case, they get in practitioners of the highest quality. Which, you may think, is how it should be, so long as those on the other side of the legal argument also have the opportunity to have representation of the same quality.
So why would the Government want to manoeuvre citizens into the position where, if coming up before The Beak, they don’t have a lawyer? Unfortunately, the answer is all too obvious: the thinking is that people who aren’t represented and haven’t had legal advice about the strengths, or weaknesses, of the case against them will just plead guilty straight away rather than fighting the case to trial. That they’ll feel under pressure to do so because they won’t be able to cope with the intricacies of the court process. Bish bosh, bang in a plea, get it over with.
Trouble is, as my example shows above, it doesn’t always work that way. Conversely, or perhaps perversely, many people faced with appearing in court without a lawyer will pursue the case to the absolute limit, whether that is advisable or not. And in the case of a Crown Court trial, inevitably leaving chaos and wasted court time in their wake.
Still, if you’re representing yourself, you probably won’t be able to recognise whether you’re strolling into a miscarriage of justice of your own. The problem is, if you do, there won’t be anyone there to pick up the pieces for you. Which is probably exactly what this Government want.