Disadvantaged defendants and torn prosecutors: the impact of falling legal aid eligibility in the magistrates court

Growing numbers of unrepresented magistrate court defendants are putting extra strain on prosecutors, and being disadvantaged by a court process designed for professionals, according to research by the charity Transform Justice.

There are no official figures of the numbers appearing without legal representation, but according to a survey of Magistrates Association members, a quarter of defendants who came before them in 2014 had no lawyer. Numbers are believed to be growing, following cuts in legal aid eligibility.

The report, Justice Denied, included interviews with 10 prosecutors from the independent bar, who described unrepresented defendants out of their depth in a system which was not set up for them. Lay people can’t get onto the court’s wifi and have no access to the new digital case file system, which is being rolled out across England and Wales, it points out.

Prosecutors reported adapting their own behaviour to try to make the process fairer for unrepresented defendants. One claimed to have effectively thrown a trial, to ensure the defendant was acquitted ‘because it was such a ropey case’, according to Transform Justice director Penelope Gibb speaking at the launch.

Many interviewees spoke of defendants who had no lawyer to explain or negotiate on their behalf accepting charges without realising the implications, ‘or that alternative, lesser charges might be more appropriate’. ‘I could count on the fingers of one hand how many have actually understood the charges,’ said one prosecutor.

Some spoke of unrepresented defendants being more likely to plead not guilty, because they don’t understand the difference between a defence and mitigation; while others cited examples of defendants being wrongly ‘bullied by the bench into pleading guilty’.

Defendants often thought having a good reason for doing what they did was a defence, rather than something that could be raised in mitigation; others mixed up mitigating and aggravating factors – such as having been drunk at the time.

Weak prosecution evidence goes unchallenged: ‘No-one analyses it, no-one picks holes in it, and it’s just unfair,’ said one prosecutor.

Where defendants wrongly pleaded not guilty because they thought they had a defence and subsequently changed their plea, it would be at the cost of any credit for an early guilty plea which they would have had if they’d been properly advised at the outset.

District judge Tan Ikram described having to stop a trial to explain the legal meaning of ‘frustration’ to a defendant who thought it was referring to the frustration of a police officer in the case. Without his constant intervention to keep the unrepresented defendant on track, the case would have risked becoming increasingly adversarial, he said. ‘The role of judges has also changed. Judges don’t sit back as umpires any more.’

Traditionally, the adversarial system relies on both sides being evenly matched rather than the current situation where, in the case of an unrepresented defendant, you have ‘a heavy weight in one corner and a feather weight in the other’, he said.

‘I will explore why an unrepresented defendant is pleading guilty or not guilty. I will ask questions on behalf of defendants where I can see weaknesses in the case. It is a difficult line. Within the limits of an adversarial trial, there is much which we can do on the bench to ensure fairness for unrepresented defendants.’

However, a magistrate in the audience pointed out that while it might be feasible for district judges to take a more hands on role when a defendant was unrepresented, magistrates – who are not qualified lawyers – are specifically trained not to intervene in the cases they hear.

‘Justice denied? The experience of unrepresented defendants in the criminal courts,’ April 2016, Transform Justice

Case study: Drilling down into DIY justice failings
A man in his 30s is in a magistrate court after being accused of stealing drills from a DIY store. He is unrepresented.

He admits he was present when the drills were stolen, but says he is not guilty of theft. When it is pointed out that he is being charged for theft as joint enterprise, he doesn’t seem to understand. He continues to say he is not guilty and didn’t steal the drills.

The magistrate asks if he would like to plead guilty or not guilty? He says: ‘I don’t want to plead guilty, because I didn’t steal the drills.’ The prosecution explains that this was a joint enterprise because the unrepresented defendant held the door open while his friend stole the drills.

The prosecutor says they were expecting a guilty plea.

The court legal adviser asks the defendant if he understands what the prosecutor has said. The man replies: ‘Yeah, but I didn’t steal the drills.’

The legal adviser says: ‘Right. I think we need to go to trial.’


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