Nigel Booth, Criminal Barrister at St John’s Buildings, comments on the rise in people representing themselves at Court, and the key things people should consider when facing the prospects
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n 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,
28 the barrister Easter Term 2019
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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.