McHale & Co. Solicitors Blog

To be, or not to be? (represented)

A recent article in the Law Society Gazette (see http://www.lawgazette.co.uk/practice/unrepresented-defendants-crowd-criminal-courts/5055067.article) shows that the trend for litigants in person is not only exclusive to small claims in the civil courts or contact disputes in the family courts, but has now infiltrated the realm of the criminal justice system.

Of course, it has always been the case that some defendants choose to represent themselves by choice, whereas for others, the lack of availability of legal aid for particular types of offences (many road traffic offences, for example) means that the courts have always been frequented by a number of litigants in the person who have needed some guidance .

However, over the past several years, changes to eligibility criteria for legal aid and a sea-change in the criminal justice process, the emphasis on ‘speedy’ resolutions to magistrates’ court matters in particular, have resulted in an ever-growing number of litigants in person.

This puts many individuals in a vulnerable position, since pressure is put on defendants (represented or not) to enter a guilty or not guilty plea at the first hearing. There can be no adjournments, unless ‘exceptional reasons’ apply.

To compound matters, all the prosecution needs to serve evidence-wise is a summary of the allegation, without any witness statements. Common sense would dictate that in order to establish whether there is in fact a case against a defendant, this is the very least one would expect to see.

The view that the courts take is that a defendant ‘will know whether or not he or she is guilty’. Whilst that may be true many cases, this is a troubling approach.

First, regardless of what a defendant may or may not know, it has been and still is the duty of the prosecution to prove a defendant’s guilt. It is not for a defendant to do the prosecution’s job.

Second, there are many cases where a defendant simply cannot say whether he or she is guilty of an offence in law, for example where certain procedures need to have been followed, or where on a close scrutiny of their account there is a defence which they are unaware of.

Without the benefit of legal advice, there is a grave risk that many defendants plead guilty when they should not, under pressure to ‘get the case over and done with’, especially as the threat of a loss of credit is dangled in front of them, not necessarily realising the long-term damage they could be doing to their career prospects, as well as (in many cases) their loss of good reputation.

If a defendant pleads not guilty, a trial date will be set for a future date there and then, and he or she is then expected to be able to assist in the preparation of a six page document which covers such matters as the issues in the case, how many witnesses are required (bearing mind they might not have seen any statements!) and any other evidential points, in readiness for the trial.

This is just a snapshot of some the difficulties that the litigant in person can face when encountering the criminal justice system – so it is important that you give strong consideration to obtaining legal representation, and do so before going to court.

Remember, the unwary litigant will also not be allowed to adjourn the case to instruct a solicitor, so it is vital that you act quickly if facing criminal proceedings.

Whilst the thought of the expense of paying for legal expertise may be daunting, rather than asking yourself whether you can afford to have legal representation, ask yourself instead, can you afford not to?

If you think you might need representation at a police station or at court, then contact us now on 0161 928 3848 for a no obligation discussion.

Categories: Criminal Defence

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