Exclusive: 'Justice under threat' as defendants face court alone due to legal aid cuts

Magistrates warn justice is under threat because people can’t afford lawyers

Lawyers march on Westminster in March 2014, to protest against cuts to legal aid (EPA) (EPA)

The principle of fair justice is being undermined by the growing number of criminal defendants forced to represent themselves in court, magistrates from across the country warn in a survey to be released today.

The survey of justices across England and Wales, conducted in conjunction with the Bureau of Investigative Journalism (TBIJ) and the Magistrates’ Association, reveals that about one in five criminal defendants who comes before them does not have a lawyer.

About half of all trials for traffic offences in the survey took place without a qualified defence lawyer, while 23 per cent of defendants sentenced for a range of offences including assault and burglary did not have legal representation.

Seven out of 10 magistrates who had witnessed self-representation in criminal courts thought it was a serious problem and a threat to the smooth running of the justice system, the research showed. A similar survey a year ago found less than half of all magistrates saying self-representation was a concern.

Senior legal figures believe high levels of self-representation could be due to reforms in legal aid, in particular an 8.75 per cent cut in fees paid to lawyers. This, they say, has reduced the number of solicitors willing to work on criminal cases.

The findings from the survey of magistrates – who were asked to log cases that came before them over a period at the end of last year – appear to be backed up by official Ministry of Justice figures that show the number of criminal trials at magistrates courts funded by legal aid fell by 6 per cent – or 18,228 cases – between the first three quarters of 2013 and the first three quarters of 2014. The Government points out that there has also been a drop in applications for legal aid.

Magistrates who responded to the survey in detail said self-representation slowed the courts down and risked skewing cases in favour of the prosecution. “Defendants in-person are at a constant disadvantage and justice is often not done as a result,” one magistrate said. “Trials take longer and often prove to have been unnecessary.”

Several magistrates noted that a lack of representation had led to defendants making ill-informed decisions, such as how to plead. One magistrate gave an example: “The unrepresented defendant did not give any explanation or mitigation [of his guilty plea] despite the seriousness of the charge [possession of a bladed article]. We sent to Crown for sentencing where he will get representation.”

Another magistrate said those representing themselves “do not understand fully the process, don’t feel as though justice has been served and you get the impression they are forced to plead guilty because of the fear of fees and court costs, even when they feel they are innocent”.

Greg Foxsmith at the London Criminal Courts Solicitors’ Association (LCCSA) told TBIJ that most solicitors shared the concerns. He added: “We see people pleading guilty when they could have a real defence.”

There has been a marked rise in the number of self-represented litigants in the civil courts since the Government introduced restrictions to civil legal aid. But this is the first real evidence of the extent of self-representation in the criminal courts.

The Magistrates’ Association is calling on the Government to undertake a review into the situation. But the Ministry of Justice insisted that criminal cases had not been affected by changes to legal aid. A spokesperson said: “People accused of a crime have exactly the same access to their choice of a legally aided lawyer now as they did before our reforms.

“The proportion of applications granted for legal aid for magistrates’ court hearings actually rose last year. This Government inherited an unprecedented financial crisis and we had no choice but to find significant savings as a result.”

Case study: A child custody case

The potential consequences of legal aid cuts were grappled with in a family court in Leicester when a judge called on representatives of Chris Grayling, the Lord Chancellor, to explore how to proceed in a delicate child custody case.

The case involved a father, who cannot be named, who has been fighting for custody rights to his two children. However, his former partner’s 17-year-old daughter alleged that the man had sexually abused her, a charge he denies. Criminal charges were dropped, but the court deemed it necessary to explore the claim.

Complications arose as the father was over the “disposable income” bracket – but did not have the money to pay for representation. The Bar Pro Bono Unit could not help him, leaving the father to represent himself at the hearing.

This meant that if the hearing were to go ahead, he would be cross-examining the 17-year-old girl.

Judge Clifford Bellamy ruled that the man in question should be provided with paid legal representation.