In my twenty plus years at the Bar, I have seen many people representing themselves who have little idea what they are doing. Lack of experience is not their fault – how are they to know what to do? Criminal practitioners start their practice prosecuting unrepresented defendants in the Magistrates’ Courts. But unrepresented defendants in the Crown Courts? That was a rare thing.
The rise of the unrepresented defendant in the Crown Courts has long been foretold. Unrepresented not by choice, but by necessity. There has been an unspoken contract that, as the level of charge gets serious enough to come within the wider sentencing powers of circuit judges, so it is more likely that legal aid will be granted. That contract was broken by a revised ‘means test’ that removed legal aid from a swathe of society, then smashed when it became impossible for acquitted defendants (who had paid privately for their defence) to recover their costs beyond the level that legal aid would have paid.
The average Miss Smith, excluded from legal aid, simply does not have the funds to pay privately, and is forced to become a DIY criminal advocate. It is an increasingly intolerable situation. Ask any criminal advocate – we all have tales to tell. I have seen Judges and prosecutors tread the line between giving information and advice. Recently, after introducing myself to an unrepresented defendant in a ‘Proceeds of Crime Act’ hearing, I explained that he was not obliged to speak to me, but asked whether there was anything that he felt I could help him with before the hearing began. He shook his head at me and refused to shake my hand. I have heard about one criminal lawyer who volunteered some free advice, despite the insurance risk, because of the dire need of the litigant in person.
All the while, I have seen court hearings take far longer than if the defendant had been represented. That is a significant problem when the hearing is the trial. A recent two day trial prosecuted by a colleague of mine in Chambers took four days. Another colleague of mine saw a trial with a two day estimate last a total of five days. This is bad news for witnesses who have no certainty about when they can expect to give their evidence. It also poses a problem for forthcoming trials, whose ‘slots’ might be lost. When the legal aid cuts were proposed I went to see my MP to express my concerns. He replied that the price of austerity in the criminal justice system was that people “might just have to wait a bit longer” for their cases to be heard. I invited him to come with me and explain that to the rape complainants in my next few cases. He never came.
The system saves the cost of a barrister, yet happily pays for a two day trial to take five days. How much does it cost to keep a courtroom open for a day? Judges have quoted the figure £10,000 to me, whereas a barrister’s daily legal aid rate for a typical ongoing trial is generally measured in the low hundreds. It is also worth noting that if the charge is one where the law prohibits a defendant in person from asking questions of a vulnerable witness, the system must still pay for a barrister to step in and cross-examine that witness. Money saved in one pot is spent from other pots.
How do you defend yourself in a criminal court?
The great unspoken problem from legal aid cuts is that when people represent themselves, they tend to do so badly. How does one cope with the sheer stress of preparing one’s own Crown Court defence?
Some common examples of lack of preparation by unrepresented defendants, beyond a general lack of focus, include the following:
- Not bringing a witness to testify about an important fact, typically saying to the Judge, “Just ring AB, he will tell you”;
- Not understanding the difference between evidence and speeches, typically wanting to re-state their case in cross-examination (“the witness said X, but the truth is Y; why is the Judge stopping me from saying so?”);
- Some witnesses, having completed their evidence, have to be recalled to deal with an important point which the unrepresented defendant did not realise should have been put.
How can we ensure that litigants in person defend themselves as well as they possibly can? In my experience, it is vital that defendants should know in advance about the different types of court hearings that they are likely to encounter and how they can prepare appropriately for the court hearing. Their preparation will be different, for example, for the first appearance at the Magistrates’ Court, for the trial and, obviously, for the sentencing hearing. If an unrepresented defendant knows what will be expected of them, then they can prepare accordingly and be able to contribute in a manner that advances case preparation and represents effective case participation.
It is not rocket science to see why cases with unrepresented defendants take much longer. The criminal Bar identifies that adherence to elementary rules of evidence (i.e to the law) may perversely give the impression to the jury that the unrepresented defendant is being given a rough deal. Do unrepresented defendants fail to spot important points, or make bad ones, and thus increase their chances of being convicted? Do juries have sympathy for their efforts and side with the underdog? Place your bets now.
The main lesson is that it is important not just to identify the real issues early, but to make an early concentrated effort to train the unrepresented defendant in elementary rules of evidence.
Mixed in with all of this is the central question of whether to plead guilty or not guilty, to which surprisingly few unrepresented defendants give real thought before the first court appearance. There is often a mistaken assumption that there is a duty solicitor at the Crown Court. The unrepresented defendant should know that there is a sentencing guideline that regulates credit for pleading guilty. This is not to apply pressure, but simply to inform about the different factors in play.
Who can an unrepresented defendant expect to interact with at court? Will she be able to speak with the prosecutor, or the prosecutor with her? What role do the officials play who sit in front of the Magistrates or the Crown Court judge? What does the usher do? All these things are taken for granted by the criminal advocate, but for an unrepresented defendant it can be seriously unsettling not to know what will happen or who she will be dealing with.
There are some more complicated topics. How, when and why to supply a defence statement is very important, and with this comes a consideration of how the prosecution decide which unused material to disclose. A defendant should know how they may challenge those decisions – even, that disclosure decisions may be challenged. The alibi defence must be understood in terms of what information the defendant is obliged to give.
What about trials: how can an unrepresented defendant put into practice what a trained pupil barrister feels most apprehensive about? Again, knowing what to expect is key. This can be helped by describing the different stages of a criminal trial, including: jury empanelling; witnesses; questions/speeches and summing up, as long as there is explanation in advance about the rules of evidence.
A decision must be made where to stop. I think that the rules on special measures and bad character evidence merit some explanation; otherwise considerations that are quite normal to a criminal lawyer can appear suspicious and conspiratorial. And what about sentencing, the area that many criminal lawyers think is the most complicated? As with most topics, detailed exposition is unhelpful; instead it’s important to concentrate on what to expect. To have read the sentencing guidelines in advance would be a major step in preparation. To understand that there may be applications for ancillary orders such as restraining orders can take away the sting. To have a basic awareness of the Proceeds of Crime Act (now there’s a whole book in itself) is informative.
Unrepresented defendants are here to stay at the Crown Court, so long as the Government believes it is important to save money from that pot – no matter what the consequent costs may be from other pots. They must, like every defendant, make their own case decisions. If we can help them understand what to expect and how to prepare, then we can help smooth the path for them and for everybody involved in the criminal justice system.
Nigel Booth’s book “How Do I Defend Myself At Court: What To Expect, How To Prepare” is available from Amazon.co.uk. The book’s website can be found at www.HowDoIDefendMyself.com.