Unrepresented defendants negatively affect court proceedings, finds survey of magistrates

A survey by the Magistrates’ Association (MA) together with the Bureau of Investigative Journalism earlier this year revealed the shocking impact of cuts to legal aid and the rise in defendants representing themselves (called ‘litigants-in-person’ (LIPs), with magistrates warning of “serious threats” to the justice system. The survey of magistrates was conducted in November 2014, and compared with findings from a previous MA survey conducted in February 2014.

Key findings from the survey were:

  • More than 70% of magistrates questioned now have serious concerns about the impact on their courts of defendants representing themselves
  • The number of legal aid funded criminal trials at magistrates’ courts has fallen by 6% between 2013 and 2014
  • One in five of the defendants seen by the magistrates in the survey had been representing themselves
  • One magistrate so concerned about the cuts they warned: “Justice is something that is increasingly only available to the wealthy.”

The findings revealed that in February 2014 39 per cent of magistrates who responded felt that LIPs negatively affected the court process in all courts “most of the time”,  with the figure rising to 41 per cent in November 2014. With regard to hearings of breaches, the figures were 70 per cent and 100 per cent, respectively. In the area of public family law, in February last year, 53 per cent of magistrates felt litigants in person had a negative effect on court proceedings most of the time, with the survey finding that of the parties seen by magistrates, 34 per cent of litigants in public family law cases represented themselves.

Over all respondents, in February 2014 25 per cent of the parties seen by magistrates represented themselves, with the figure rising to 29 per cent in November last year. With regard to defendants facing criminal trials, 40 per cent of the magistrates who responded felt that litigants in person had negatively affected court proceedings most of the time in February last year, with the figure rising to 53 per cent in November.

The National Audit Office (NAO) reported that in the year following the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) on 1 April 2013, there had been a 30 per cent year-on-year increase in family court cases in which neither party had legal representation. LASPO took many civil and private law children and family cases out of scope for legal aid.

The NAO further noted that the reforms “have the potential to create additional costs, both to the Ministry and wider government.” Based on their assessment of available evidence relating to the rise in self-representation and the effects LIPs have had on court proceedings, they estimate the additional cost to HM Courts & Tribunals Service at £3 million per year, plus direct costs to the Ministry of approximately £400,000.

We can only speculate as to the current impact the huge rise in LIPs has continued to have on magistrates’ courts and more widely across the justice system. In February this year, the House of Commons Library published a briefing note on the rise in unrepresented defendants, citing a study into the experiences and support needs of LIPs in private family law cases, carried out for the MoJ (November, 2014).

This study found that the major reason for appearing in person was inability to afford a lawyer, while even those with high levels of education or professional experience “struggled with aspects of the legal process.” Further, around half of those observed in the above study had one or more vulnerabilities, making it more difficult for them to represent themselves and in some cases making it impossible. Finally, the study found that LIPs may create problems for the courts “by not appearing, by refusing to engage with proceedings, or (less frequently) by behaving violently or aggressively. Apparent resistance to court proceedings (and violence and aggression) may often be related to litigants’ vulnerabilities.”

We blogged recently about the House of Commons Justice Committee’s call for the government to scrap criminal courts charges, which, when combined with cuts to legal aid the removal of many areas from its scope (the latter as a result of LASPO), show the need for a wholesale change in direction for government policy on justice. The Speak up for Justice campaign calls for for an integrated, publicly owned, accessible and accountable justice system, as well as an end to legal aid cuts, and a reversal of previous cuts to help ensure access to justice for all, including families and children.

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The government is fragmenting the justice system, privatising policing, probation and prison services, closing courts, slashing the legal aid budget and making drastic cuts to funding. This will undermine the system, reduce access to justice and put public safety at risk.

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