Background
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into effect in April 2013, reducing funding for legal aid, a service that can help meet the costs of legal advice, representation and family mediation in a court or tribunal. For family law, while public law proceedings and the representation of children remain in scope, most private law cases involving children or finance remain in scope only where there are issues concerning domestic violence or child abuse and specific evidence fulfilling the requirements of regulation 33 or 34 of the Procedure Regulations is provided in support of this.
The Magistrates Association (MA) conducted two surveys to monitor the impact of LASPO, in 2014 and 2017 respectively. This research found that litigants in person (LiPs) increased in this time frame. In 2014, respondents to the survey stated that 24% of defendants in adult criminal hearings lacked representation; by 2017 this had risen to 30%. In family court, 41% of parties were reported as lacking representation in 2014, rising to 68% in 2017.
Anecdotal evidence indicates that the number of unrepresented parties in both criminal and family hearings continues to increase. While there is no clear data relating to hearings in the magistrates’ court, the data for crown court hearings shows an increase in parties unrepresented at a first hearing, from 5% in 2017 to 8% in 2018. The percentage of private family law cases in which both parties had legal representation decreased from 41% in January to March 2013 to 18% in the same period in 2020, and marking a 2% decrease from the same period in 2019.
MA Position
The MA’s primary concern is that the increasing number of unrepresented parties risks a reduction in access to fair and efficient justice. In the research conducted by the MA, over 90% of magistrates felt that there was always a risk that those appearing in court without representation would have a negative impact on the court process.
A lack of legal representation can result in several negative impacts. These include but are not limited to:
- Litigants being underprepared for a hearing (including the need for interpreters or intermediaries not being identified)
- Applications and other paperwork not being properly completed
- Relevant evidence not being available
- A greater degree of intervention needed by the bench and the legal adviser to explain and clarify proceedings and requirements
- A lack of understanding of the need for position statements and other necessary documents to be prepared before a hearing
- A lack of understanding of the confidential nature of some information
- A lack of understanding as to the need for parties to name witnesses for their defence or their responsibility to produce relevant evidence, eg CCTV
- A lack of understanding about potential defences that might be available in law
- Challenges in defendants being able to put forward their best defence
All of these factors can increase the length of hearings, impacting on the ability of the courts to efficiently deal with cases as well as increasing delays for all parties waiting for their case to be heard.
MA Position – Criminal Jurisdiction
LASPO was not intended to make significant changes in relation to legal aid for criminal cases, so it is very concerning to see the high proportion of magistrates who had seen an increase in unrepresented defendants for criminal hearings. This both risks the efficiency of the court process and may place the defendant at a disadvantage.
Legal representation is vital from the point of police interview, so that individuals can receive advice about all stages of the process. Legal representation can assess evidence and explain different elements to an offence, making it more likely a guilty person will plead guilty at the earliest stage. Positive engagement with the police, including admitting responsibility for a crime, impacts on the chances for an out-of-court disposal to be offered, therefore diverting an individual from court. If a case does come to court, an early guilty plea can both save the court’s time and result in a less severe sentence for the defendant.
Legal representation can also ensure a defendant understands if they have a statutory defence they may wish to present. To avoid a miscarriage of justice in which an individual’s potential statutory defence was not raised due to lack of representation, a legal adviser might step in to assist, but this takes up additional court time and can increase delays. It is therefore important that there is an adequate number of duty solicitors available to speak to defendants before their court appearance, and that they have sufficient time to speak with their clients so that they fully understand all the relevant circumstances, including identifying any vulnerabilities that should be brought to the attention of the court. The MA is concerned that changes to legal aid have reduced the number of duty solicitors, which puts pressure on existing services, risking the quality of advice being given. It is therefore even more vital that those providers that do legal aid work receive adequate recompense for their work.
The MA is also concerned that where processes are moved online, it will be more difficult for defendants to access legal advice, for example if they are sent a postal requisition charge and encouraged to give an online plea, they may not realise the importance of accessing legal advice. Cases that are dealt with remotely, via the Single Justice Procedure or video link, also offer less opportunity for a legal adviser to step in. It is vital to understand why our members are seeing an increase in the number of unrepresented defendants before them, and it should be assessed whether increased use of release under investigation, in conjunction with postal requisitions, has led to more defendant attending court without having received legal advice.
Legal representatives will also ensure that any mitigation is presented to the court. Unrepresented individuals face a higher risk of being the subject of unfair or unequal outcomes. Legal representation can also assist an individual throughout a process, ensuring fair participation, by raising any issues about a defendant’s vulnerability at the appropriate time and putting in requests for intermediaries or support workers’ assistance where necessary. This also applies to individuals with English as a second or other language who require an interpreter to fully understand the process and their rights within it.
The MA is also concerned about challenges parties face in accessing legal aid in a timely manner, even when their case is within scope. Delays have a direct impact on the efficiency with which cases are handled. Further to this, the eligibility criteria can be restrictive, so that even where cases involving more serious offences are in scope, individuals cannot access legal aid as they fail the merits test.
The MA believes more defendants should have access to legal aid, especially for first hearings (so that legal issues around things like an early guilty plea can be explained), hearings carried out remotely, and any cases where the bench decides it would be unfair for the defendant not to be represented (such as likely outcomes lead to significant impacts including a disqualification from driving). It is important to remember that cases where less serious offending is involved can offer an opportunity for early intervention through targeted support by probation, and therefore the impact of an individual not being represented can be significant, not just on the individual, but on the effectiveness of the wider justice system.
MA Position – Family Jurisdiction
Given that it was understood that some family law cases would be out of scope from legal aid following LASPO, it is perhaps unsurprising that family magistrates have seen the greatest increase in LiPs between 2014 and 2017. 80% of respondents to our surveys said that litigants had increased in family private law cases, while 43% thought they had increased in family public law cases. As the increase in LiPs in family hearings was expected, policies and practices were implement to ensure support is available for LiPs and they were not disadvantaged but our survey indicates magistrates did not feel the structures were adequate.
The MA is particularly concerned by the negative impact that LiPs in family court have on children not achieving the best outcome in terms of their relationship with their parents, the effect on the fairness and effectiveness of the court process, and the consequences of delays to family court proceedings.
Hearings involving LiPs usually take longer than those where both parties are legally represented. Respondents to the MA surveys reported that when LiPs do not understand the court process, this puts additional pressure on magistrates and legal advisers who may have to explain the court process. In addition, family proceedings can require the completion of lengthy and complex application forms. Without legal advice, LiPs can struggle to complete the necessary paper work, often resulting in legal advisers having to assist them before court hearings. Ensuring a fair process must always be the primary consideration of any bench, even if this results in a slower process.
Another consequence of the increase in LiPs is that it has resulted in an increase in cases where one party is legally represented and the other is not, which leads to a lack of equity. The MA is concerned that any lack of equity can lead to situations where the bench or legal adviser has to step in to assist the LiP and ensure the process is fair.
LASPO has exacerbated the long-standing issue of domestic abuse victims being cross-examined by their alleged abusers in family court proceedings. In criminal jurisdictions, the court may make an order to prevent an alleged abuser from directly cross-examining their victim during court hearings. However, in family proceedings, following LASPO, victims of domestic abuse are able to apply for legal aid funding but the alleged perpetrator is not within scope. Even though there are alternatives to cross examination such as the Presiding Justice or Legal Advisor asking questions, along with new Family Procedure Rules 2010 Part 3A and Practice Direction 3AA and revision to PD 12J there continue to be inappropriate situations where the alleged abuser is able to question their victim in court proceedings. The MA welcomes the measures in the Domestic Abuse Bill designed to end this. However, the MA believes that legal aid funding may be necessary for the full hearing, not just the cross-examination.
An additional issue that arises with cross-examination between LiPs is that parties representing themselves may not recognise the need, or have the legal understanding, to ask meaningful questions relating to the legal context. This can make the hearing last longer as the Presiding Justice is required to elicit the appropriate legal questions from the cross-examination. It can also limit the effectiveness of the opportunity for cross-examination, thus reducing the amount of evidence on which decisions are based.
In the family court, there is always a risk that anything that negatively impacts on the fairness or efficiency of the process will have a direct impact on children. Therefore, lack of legal representation, especially for one party but not the other, in family court risks a negative outcome for the children involved.
Impact of court reform programme
The MA is also concerned that as the court reform programme results in an increased use of digitisation, unrepresented parties will be disproportionately affected by the changes. Digitisation has the potential to increase accessibility for parties, but can impact on an individual’s access to justice in two ways. Firstly, a digitised system may lead to more unrepresented parties, who have not received legal advice before interacting with the court process. Secondly, increased use of video link or even virtual hearings may reduce opportunities for unrepresented parties to participate fairly in a process.
Both of these issues will be relevant in both criminal and family court proceedings, but the ambition in respect of criminal cases is for the system to be digitised (with online pleas encouraged) and for most hearings to be dealt with remotely. It is therefore likely the reform programme will have the largest impact on criminal proceedings.
As the efficiency of criminal processes is improved through digitisation, defendants will be able to respond online to charges, and the speed with which cases can be progressed may reduce their opportunity to seek legal advice. It is likely this will lead to a further increase in the number of unrepresented parties dealt with by magistrates. The MA would like a step-back process to be introduced, where defendants are advised to get legal advice before submitting an online plea, and signposted to legal aid providers.
It will also be more challenging for unrepresented defendants to engage with the Common Platform, as the system is primarily set up for established parties to sign-up to use the system. For example, the initial details of the prosecution case are now sent out to secure email addresses, which have been registered with the system, so unrepresented defendants will not be able to receive papers this way. This could lead to them not having sight of papers before they turn up in court and having to rely on the prosecutor giving them those papers on the day. Any delays in defendants being able to see papers can make it difficult for them to have gone through them in detail, or take advice on certain factors introduced as evidence.
The increased use of remote hearings will also lead to challenges for the court to ensure fairness and equity, particularly in respect of participation for all parties. There is evidence showing that vulnerable people are more likely to struggle to effectively participate via remote hearings. This is relevant to the support offered by a legal representative in two key ways. Firstly, a legal representative is often the person who identifies a defendant’s vulnerabilities, and makes sure the court is aware of these vulnerabilities, as well as understanding any adaptations that may be required (such as interpreters or intermediaries). This could involve recommending that a defendant would not be able to effectively participate over video link. Without access to legal representation, vulnerabilities may not be identified, and remote hearings may go ahead when they are actually inappropriate. Secondly, even where a defendant is represented, increased use of remote hearings may increase the likelihood that they are unable to have a face to face conference meeting with their lawyer. This could affect the advice given, as well as present a challenge to vulnerabilities being identified.
Impact of Covid-19
There have been a number of specific impacts on the legal representation available to people going through the court system during the pandemic, including making face to face meetings more challenging and creating additional delays.
Social distancing has made face to face meetings less common, and in some situations (such as a lawyer meeting with a client who is currently held in prison), made it impossible for a period of time. Increased use of technology has enabled many meetings to go ahead, although lack of capacity in prisons has placed restrictions on clients using video link to speak to their lawyers from prison. Remote meetings pose their own challenges in relation to communication, especially if a lawyer is meeting a client for the first time. This is a particular concern where clients are vulnerable, as it may be more difficult for a lawyer to identify vulnerabilities and respond appropriately.
Covid-19 also initially reduced the capacity of the justice system to deal with cases in person, and although considerable work has gone in to rectifying this, there is still a backlog of cases which leads to increased delays. Specifically this creates challenges for lawyers, as they need to ensure urgent matters are prioritised but it can be more difficult to contact the relevant court staff who can assist with this. In order to respond to the backlog, listing has to be flexible, which requires good communication between all parties. As good practice is evolving to respond to the backlog, it will obviously be more challenging for unrepresented parties to negotiate the system.
It may also be the case that as some lawyers have had to shield or self-isolate, it has become more difficult for individuals to find lawyers willing and able to represent them. In addition, some firms had to furlough lawyers, leading to shortages in some areas.
Although in general, the use of digitised systems and remote hearings was not previously seen as viable in respect of many hearings in family court, Covid-19 has necessitated an increase in remote hearings in this jurisdiction. This has introduced challenges with parties not being able to have face to face meetings with their lawyers, as well as limiting the support that can be offered during a hearing, where lawyers are not co-located with their clients. In the family courts, conducting hearings by telephone (such as BT MeetMe) without being able to see the parties has been difficult, especially in relation to assessing the veracity of parties’ evidence. While delay will always result in harm to children, an order placing unwarranted restrictions on contact with one or other can result in more harm. Courts are therefore required to make difficult decisions in challenging circumstances.