Dr Charlotte Walker (Lecturer in Social Sciences, York St John University)
Introduction
This blog post discusses some findings from my own research study, which examined unrepresented defendants and their experience at court. Attention in this post will specifically be on the number of defendants self-representing in the magistrates’ court and whether there has been an increase in recent years or not. Unrepresented defendants for the purpose of this research refers to a defendant who at some stage during court proceedings is not represented by a lawyer.
Methodology
The results discussed are based upon a small-scale study, which involved twenty interviews with court actors (legal advisors, ushers, lawyers, and judicial prosecutors) and observations of court hearings at two magistrates’ courts. I observed 220 hearings in Court A and 183 hearings in Court B in 2018-2019. This included plea, sentencing and case management hearings, as well as trials. The interviews took place between 2019 and 2020, and they were done mostly face-to-face, although some were done over the phone. Participants were recruited through email or by being approached at court. Permission was gained from Her Majesty’s Courts and Tribunals Service (HMCTS) to interview the legal advisors and ushers. No permission was required to observe court proceedings due to adult court hearings generally being open to members of the public.
Legal aid and representation
Although this has not always been the case, the majority of defendants are now legally represented in the magistrates’ courts and Crown Court (Walker 2021). In certain circumstances, defendants are entitled to legal aid to fund their legal representation. In order for defendants to qualify for full legal representation (representation at all hearings), a means test, and a merits test have to be satisfied. This is decided by the Legal Aid Agency, who consider applications for legal aid. In relation to the merits test, there is the interest of justice test which must be passed. Factors relevant to this include: whether the defendant is likely to lose their liberty or livelihood; whether their reputation is at stake; and the defendant’s ability to understand the proceedings or to state their own case (paras. 5(2)(a) – (e), Sch. 3 Access to Justice Act 1999). The means test is based on the defendant’s income, which is adjusted to take into account their partners income and the number of dependent children they have (Legal Aid Agency 2022). If the defendant’s adjusted income is below £12,475 annually then they will be entitled to legal aid, but if it is above £22,325 then they will not be (Legal Aid Agency 2022). Within this range, the Legal Aid Agency will provide legal aid only if the defendant’s disposable income (after council tax, national insurance, childcare and housing costs, and other key expenses) is £3,398 or less annually (Legal Aid Agency 2022). Not everyone is, therefore, entitled to legal aid – and despite, the majority of defendants appearing represented at court, this is not the case for all defendants.
Findings
In this study, in Court A, in 80 out of 220 (36%) hearings, the defendant appeared unrepresented; and in Court B, this was the case in 25 out of 183 (14%) hearings. The defendants appeared without legal representation in 105 out of 403 (26%) hearings in total, which represents a significant minority. Based upon the observations and interviews, this was due to a range of reasons including financial factors; defendants not wanting to delay proceedings; and defendants not seeing the value of having a lawyer.
Interviewees were also asked whether they thought there had been a change in the number of defendants self-representing in recent years. Most of those interviewed thought there had been an increase in the number of those self-representing. The reasons given for this varied. One reason suggested by two interviewees was that it was because the means test had not – at the time of writing – changed since it was re-introduced in 2006, resulting in an increasing number of defendants being ineligible for legal aid, because of inflation:
“A combination of the reduction in the scope of the duty solicitor scheme and the legal aid means test which has not had its financial parameters changed for well over ten years; so financially the means test is working on the same figures now that existed when it was first introduced.” (Interview participant 4 – DL)
Another participant (interview participant 3) also said that ‘a general downturn in the economy’ may mean that ‘people who perhaps paid privately previously can’t afford to’. Financial factors then appeared to a be an important factor for these participants in explaining why they thought there had been a change in levels of legal representation.
A couple of ushers and legal advisors and most defence lawyers also said that they thought there had been an increase due to changes to legal aid making it more difficult for defendants to obtain it:
“So yes, as a result of the changes to legal aid I would definitely say yes because it’s become harder and stricter on the requirements for legal aid so a lot more people are being refused legal aid.” (Interview participant 18 – LA)
There were suggestions by two defence lawyers and a legal advisor that legal aid had changed because of the interest of justice test being interpreted more strictly than used to be the case:
“There probably has because in the magistrates’ court there’s a strict means test for legal aid; so if you earn more than about £220 a week then you don’t get legal aid and also legal aid is less widely available than it used to be, so you really don’t get legal aid unless you’re facing imprisonment or you’re pleading not guilty. They are interpreting the interests of justice criteria more strictly which means if you’re not in danger of prison then they are reluctant to grant you legal aid.” (Interview participant 1 – DL)
Three defence lawyers interviewed also discussed the negative effects that re-introducing the means test has had on levels of legal representation – legal aid is harder to obtain as a result.
“Once upon a time legal aid was purely based on merits, interests of justice. Now it’s based on finances and there are a lot of boxes that need to be ticked for legal aid to be granted in the first place. It is harder to get legal aid than it used to.” (Interview participant 2 – DL)
These results are in line with the findings from Transform Justice (2016), in which interviews were conducted and a survey was done with court actors. In that study, the majority of participants felt that there had been an increase in unrepresented defendants in the previous two years. Reasons for this were similar to those discussed above. They were due to financial factors and changes to the way legal aid is managed to save money.
Conclusion
The quantitative data in this study suggests a significant minority of defendants self-represent in the magistrates’ courts, and the qualitative data provides an indication that there has been an increase in self-representation. The results suggest that this is due to financial factors and reforms that have occurred, with the aim of reducing costs. This is of concern as it has been found that unrepresented defendants tend to struggle to represent themselves at court (Dell 1971, McBarnet 1981, Shapland 1981, Transform Justice 2016, Walker 2021). There is still a need, though, for quantitative data to be gathered, so that the extent of any change can be established. Quantitative data is collected in the Crown Court on this matter, but not – at the time of writing – in the magistrates’ court.
References
Access to Justice Act 1999
Dell, S. (1971) Silent in Court, London, Bell.
Legal Aid Agency (2022) Criminal Legal Aid: Means Testing. Available from: https://www.gov.uk/guidance/criminal-legal-aid-means-testing [accessed 10/02/2024].
McBarnet, D. (1981) ‘Magistrates’ Courts and the Ideology of Justice’, British Journal of Law and Society, 8(2), 181-197.
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.
Defending Vulnerability 