PUBLISHED April 26, 2016

Going it alone:  The scandal of unrepresented defendants
This weekend, Transform Justice published its report on unrepresented defendants in the criminal justice system . Tonight the findings will be represented at an event in Gray’s Inn.
It cannot be suggested that the author of the report, Penelope Gibbs, has any interest other than highlighting the genuine issues that the criminal justice system faces when dealing with the upsurge in unrepresented defendants. .
It is vital that the MOJ do not dismiss these findings with a glib “legal representation is available for all those who are in need “  robo response. We are all tired of those meaningless soundbites; perhaps the MOJ press unit is too?  The issues are much deeper and some may say start at the police station.
With increased frequency we are hearing of suspects who elect not to take up the offer of representation at the police station. We are told that police often advise the potential clients that their detention would be extended if they wait for a solicitor. Suspects are being encouraged by police that early admissions will lead to credit at a later stage.
We are told that “between 50-75% “of defendants do not apply for legal representation until the first appearance at court. Many of these may not have been represented at the police station and may not have known where to turn for legal representation until they attend court.
The MOJ and LAA appear not to have any data available as to the number of unrepresented defendants. If it is true that the figures are not recorded this is odd. Take up of a public service is something you would expect the agency and ministry responsible to measure , particularly as there has been a drive over the last decade to record all sorts of other data , including reasons for adjourned /cracked trial hearings . Whilst everything else is so target driven, why is there not a target to ensure that unrepresented defendants are monitored?  What is the point of having a system of granting representation subject to an “interests of justice test “when unrepresented defendants are not recorded?
We at the LCCSA have long campaigned for access to justice for criminal (and civil clients).  Ensuring that all defendants facing the might of the state have representation has to be a priority.
Last year I was observing proceedings before the Crown Court, when a Somalian man who spoke no English was brought before the court for a preliminary hearing. He had already been in custody for ten days. He was without a lawyer or interpreter. His case was remanded for a further week in order to obtain representation. Why was he unrepresented? The LCCSA asked the LAA to look into this , we have had no response , but one can only speculate that he either failed to complete the form on his own due to the complexity of the application process or no firm wanted to take on a case involving a non English speaking person charged with possession of a bladed article, in certain the knowledge that in order to conduct the case ( involving prison visits and interpreters)  to a professional standard would require many more hours of work than the legal aid fixed fee would pay for.
At Westminster Magistrates Court, at least 20 new extradition warrants appear each week . The requested persons are more often than not working. Often self employed or cash in hand. The complexities of the legal aid means testing process leads to delays in their case progression and often adjournments whilst the defendant languishes in custody.
The Courts are expected to progress cases at the first appearance based on limited disclosure of the prosecution evidence. The LCCSA has expressed concern about the drive to expect people to plead guilty without knowing the full case against them, and that is in represented cases. The report details examples of defendants who have been pressured into entering guilty pleas without representation and without adequate understanding of the case against them.  This must give rise to a further call to stop the present drive for “speedy justice” as the two words taken together are often experienced as an oxymoron.
Many defendants not eligible for representation, yet on modest incomes are forced to pay private rates for representation. It is an injustice that those acquitted defendants , the exonerated , those who have had to re mortgage their homes or borrow to clear their name , see only a fraction of their outlay returned to them . In many cases their cases may not have even got to trial had the CPS done their job properly and reviewed the evidence thoroughly. The inequities  of this system must finally be addressed . As the report points out it discourages those who are not eligible from seeking private representation .
The MOJ cannot have it both ways , it either abandons means testing for criminal clients or reimburses the costs of the privately paying defendant whose case ends in acquittal or discontinuance .
The Transform Justice report calls for an increase in the means testing threshold given that it has barely altered since 2006. We would go further and question whether a cost analysis has been conducted into the savings made as a result of mans testing given the delays caused by adjourned hearings and unrepresented defendants in general . The savings if any must be minimal.
We have drawn the MOJ’s attention to the need for a holistic review into the type of fees payable in many of the cases which could in due course lead to good , experienced solicitors declining instructions in legal aid cases for fear of making an loss .
We call upon the politicians to take the alarming findings of this report , complied independently of any professional representative organisation , with much anecdotal evidence from prosecutors , and carry out a full statistical based review as a matter of urgency.
If vulnerable people, and the low paid poor cannot find representation in our criminal courts then access to justice is a fiction in 2016.