Dr Charlotte Walker (Lecturer in Social Sciences, York St John University)
Introduction
If you were charged with a criminal offence, would you appear unrepresented at court or would you wish to be represented by a lawyer? This is a decision that defendants must make in England and Wales every day. Some defendants will be entitled to legal aid and will be represented by a lawyer, but others will not be. Defendants self-represent for a number of reasons, including: not wanting to delay proceedings; not thinking that they need a lawyer as they believe themselves to be guilty or innocent; not trusting lawyers; and not appreciating the consequences of appearing without a lawyer (Transform Justice 2016, Walker 2021). Other defendants will not be entitled to legal aid and will not want to pay for legal representation or – more commonly – will not be able to afford it and, therefore, will represent themselves at court for some or all hearings. What are the consequences of this? What experiences do defendants have when representing themselves at court?
Methodology
A small-scale study has been carried out which explores these questions (Walker 2021). Between 2019 and 2020, 20 semi-structured interviews were conducted with court actors: legal advisors (LA), ushers (U), defence lawyers (DL) and judicial prosecutors (JP). Attempts were also made to interview defendants themselves, but these were unsuccessful.
In addition to the interviews, court hearings – including plea hearings, sentencing hearings, and trials – were observed at 2 magistrates’ courts. Around 226 hours were spent observing at the two courts: 100 hours at Court A and 126 hours at Court B. Whilst observing, an observation schedule was used. Matters that were recorded included: the type of hearing being observed, whether the defendant was represented or not, and the outcome of the hearing. The researcher also wrote down what was said in court. This research focuses specifically on the experiences of unrepresented defendants in the magistrates’ court as opposed to the Crown Court. This is because a smaller proportion of defendants represent themselves in the latter court (Kemp 2010, Transform Justice 2016, Welsh 2016).
Results
It is important to recognise that unrepresented defendants are not one homogenous group. Thus, it cannot be said that all unrepresented defendants will have the same experience at court. Nevertheless, in this research, it was found that unrepresented defendants tend to experience some common problems – some of which will be discussed in this post.
The study found that one of the key difficulties faced by unrepresented defendants relates to the entering of a plea – one of the most, if not the most, important stages in the criminal process. Some defence lawyers interviewed said unrepresented defendants do not always know what plea to enter, understand the law or know that they have a potential defence in law:
You’ve got to hope that they’ve not gone and pleaded guilty in a situation where they might not actually be guilty of an offence and that may have become apparent if they had had representation. You do get situations where a person might think that they have committed the offence, but they might not be aware that there is a statutory defence available to them… You undoubtedly do get situations where unrepresented people through lack of knowledge of what it is that they are actually accused of will plead guilty when they are technically not guilty. That may not necessarily become apparent to the court. (Interview participant 5 – DL)
A few defence lawyers also discussed how defendants may enter a guilty plea to speed up the process, because they do not fully understand the implications of pleading guilty or due to them feeling pressured into doing so:
[Unrepresented defendants’ experience] problems at plea hearings – they don’t know whether to plead guilty or not. They quite often enter what’s known as an equivocal plea, so ”I’m not guilty but I’m going to plead guilty to just get it over and done with” or just not understanding what the consequences of their actions or lack of actions are. (Interview participant 12 – DL)
This can result in defendants pleading guilty which they may not have done if they had received legal advice. Alternatively, defendants may plead not guilty when they are very unlikely to be acquitted, which will also have implications for them. For example, if they are later found guilty at trial, then the sentence passed may be more onerous and they may have to pay higher court costs.
Another problem highlighted in the study was that unrepresented defendants usually struggle to cross-examine witnesses when the case goes to trial. For example, in one trial the defendant had pleaded not guilty at a previous hearing to the offence of failing to provide driver information (s.172 Road Traffic Act 1988). The prosecutor provided a summary of the case, and the prosecution witness then gave evidence.
Legal advisor to defendant: You’ve heard [name] give evidence. What is it that you don’t agree with?
Defendant: I don’t know if it’s incorrect or not. I just know what my side of it is.
Legal advisor: You will be able to give your evidence later. In relation to what Mr [name] said is there anything you disagree with? Any questions of Mr [name]?
Defendant: No. (Case 386)
In other observed cases, unrepresented defendants generally said very little or asked irrelevant questions. The lawyers, in contrast, asked more questions to test the reliability of the evidence. Unrepresented defendants also usually did not say a lot in mitigation. In one case, the defendant had pleaded guilty to driving or attempting to drive with excess alcohol while exceeding the legal limit (s 5 Road Traffic Act 1988).
Legal advisor to defendant: Did you want to explain the events that led up to the situation? Say anything?
Defendant: I’ve got nothing to say. I’ve said everything at the police station. (Case 11)
Some of the interviewees also commented on this:
They [unrepresented defendants] just don’t know what to say… An unrepresented defendant [will get asked] “have you got anything that you want to say about what’s happened?” “No, no or no, I’m sorry” – so the court will have no background information or information about the offence and why it’s happened. (Interview participant 3 – DL)
Again, this suggests a lack of understanding in the sense that unrepresented defendants do not always understand what they need to say or why they need to say it. These results support past research, including research from the 1970s and 1980s (e.g., Carlen 1976, Dell 1971, McBarnet 1981, Shapland 1981). This indicates that although time has passed and changes have occurred to criminal proceedings, unrepresented defendants generally still experience similar issues when attending court.
Despite the above disadvantages experienced by self-representing defendants, some benefits of self-representation emerged from the data. For example, a legal advisor mentioned how unrepresented defendants get the opportunity to play a more active role in their case, and it can be quicker for them to appear unrepresented:
If I am honest in straightforward cases… it’s quicker for them – so say they are turning up in a traffic case, they are not waiting for their solicitor to come. They can get straight in and into court so in your run-of-the-mill type cases, like your traffic cases, like your excess alcohol cases… your drunk and disorderly, it can be a lot quicker for them to come in and also, they get to explain their side of it to the magistrates as well directly, so I would say that’s potentially an advantage. I wouldn’t say there were many [advantages] if I’m honest but that’s definitely one – and also, they are getting to make their own decision on what they want to do with the case rather than taking the advice of the solicitor that they may not want to take the advice of. They may disagree with the advice that has been given to them. (Interview participant 18 – LA)
Furthermore, in cases when defendants are not entitled to legal aid or able to see a duty solicitor, there are financial incentives to appearing unrepresented:
In motoring courts, if it’s not imprisonable – you know like for not having no insurance and things like that, then they wouldn’t normally have a solicitor; so, if I were in them courts, you couldn’t recommend that they go and get a solicitor because – do you know what I mean? That’s not in their best interest because they would end up paying because they can’t get legal aid. I wouldn’t recommend that they should go and get a solicitor. (Interview participant 15 – U)
Some legal advisors also stated that representation is not always required in certain cases – as also suggested above by interview participant 15 – due to the low-level seriousness of the offence and the penalties available. A few defence lawyers interviewed, however, contended that defendants can still struggle to represent themselves in such instances, and they noted how even for non-imprisonable offences, a conviction and the imposition of a non-custodial penalty can still have implications for defendants. During the interviews, it was also discussed how some of the disadvantages experienced can be mitigated in some cases due to the assistance that legal advisors and judges offer, although based on the observations the frequency and nature of such assistance appeared to vary.
Conclusion
Some of the problems that self-representing defendants tend to experience at court have been discussed, alongside some of the benefits. The advantages relate to unrepresented defendants saving time and money and being able play a more active role in court proceedings. The disadvantages concern their ability to enter the correct plea, cross-examine witnesses, and know what to say in mitigation.
As suggested, however, defendants may not all experience the same problems or to the same extent. Experiences are likely to differ based on, for example: the nature and seriousness of the offence, how complex the case is, their level of knowledge and understanding, whether they are unrepresented at all stages and at all hearings, whether they have been to court before, whether they have any additional support needs, and the assistance they are given at court. Whether the disadvantages outweigh the advantages for a defendant will, therefore, depend upon a range of factors. Based upon this study and other research that has been done (e.g., Carlen 1976, Dell 1971, Shapland 1981, Transform Justice 2016, Walker 2024), it has been found that unrepresented defendants generally struggle at court and experience difficulties when self-representing.
As noted, defendants were not interviewed due to issues around recruitment, and this a limitation of the research given the focus of the study. Defendants themselves are in the best position to talk about these issues given they are the ones who have been through the process. Nevertheless, the interviews with court actors and observations of court proceedings are still instructive and offer important insights into this reality of summary justice.
Reference list
Carlen, P. (1976) Magistrates’ Justice, London, Martin Robertson.
Dell, S. (1971) Silent in Court, London, Bell.
Kemp, V. (2010) Transforming Legal Aid: Access to Criminal Defence Services, London, Ministry of Justice.
McBarnet, D. (1981) ‘Magistrates’ Courts and the Ideology of Justice’, British Journal of Law and Society, 8(2), 181-197.
Road Traffic Act 1988
Shapland, J. (1981) Between Conviction and Sentence: The Process of Mitigation, London, Routledge and Kegan Paul.
Transform Justice (2016) Justice Denied? The Experience of Unrepresented Defendants in the Criminal Courts. Available from: https://www.transformjustice.org.uk/wp-content/uploads/2023/02/TJ-APRIL_Singles.pdf [accessed 10/02/2024].
Walker, C. (2021) A Study Examining the Experiences of Unrepresented Defendants in the Criminal Courts, PhD Thesis, University of Sheffield.
Walker, C. (2024) ‘The Pains of Going to Court: Unrepresented Defendants’ Ability to Effectively Participate in Court Proceedings’, Criminology & Criminal Justice. Available from: https://doi.org/10.1177/17488958241228176 [accessed 09/04/2024].
Welsh, L. (2016) Magistrates, Managerialism and Marginalisation: Neoliberalism and Access to Justice in East Kent, PhD Thesis, University of Kent.
Defending Vulnerability 