Understanding the unrepresented: the case for better data on legal representation in courts
This post is the latest in a series from our project to map and fill data gaps in criminal justice.
Appearing in court is probably one of the most stressful moments in anyone’s life. The prospect of fines or prison can take a huge physical and mental toll. And yet every year some tens of thousands of people appear in magistrates’ courts alone, without a lawyer by their side.
Defendants without a lawyer are called “unrepresented defendants”. Although being unrepresented is stressful and far from ideal, we don’t know how many people end up in this situation, or what impact it has on them or the courts.
What are unrepresented defendants?
Courts in England and Wales are designed to be navigated by lawyers. The paperwork is complex, the language can be inscrutable and mounting the best possible defence generally requires legal expertise.
Yet many people in the magistrates’ courts represent themselves. This might be for a few reasons. They might not meet the eligibility criteria for legal aid, might not know about their right to aid - or might even choose to self-represent.
Unrepresented defendants often pose problems for the justice system. 90% of magistrates feel they have a negative impact on the court process, with research suggesting:
They’re more likely to have bad experiences in court - and find it challenging to submit pleas, work through case files and generally report feeling underprepared.
They can face harsher justice outcomes - prosecutors are concerned that unrepresented defendants make mistakes in their pleas, which can result in more severe sentences.
They struggle to participate effectively in court - partly because some digital processes are difficult (or even impossible) to navigate for outsiders.
They slow down hearings - cases with unrepresented defendants typically lead to longer and more frequent hearings, which can add to the courts backlog.
What do we need to know?
Our research has found that MPs, researchers and journalists have all repeatedly asked the government for better data about unrepresented defendants in the magistrates’ courts - both the size of the issue, and the impact it has on people and courts.
Most commonly, stakeholders want to know:
The number of defendants representing themselves
The demographic make-up of defendants representing themselves
Where in the country self-representation rates are highest
The offences where defendants are most likely to represent themselves.
Unfortunately, our research also found that the government have consistently failed to provide this data, typically saying it is “not centrally held”.
Remarkably, the Ministry of Justice (MoJ) was even found to have abused journalists who obtained related information via FOI - information the MoJ had previously claimed did not exist.
The government can fix this - if it wants
More happily, we think it is possible for the MoJ to gather and publish this data if it wants to. That’s because experts tell us that Common Platform, the new digital court system, records representation status - along with all the other information above - in structured, queryable form. The details are in our briefing note.
So it’s clear why MoJ should produce this data. It would provide insight into why the court backlog may be falling slower as expected, or why some groups face harsher justice outcomes. It would answer MPs’ questions. And it’s entirely technically feasible.
In short, government can take steps to improve its data on unrepresented defendants. It’s simply a question of will.
For more details, download our full briefing note (PDF).
This is the latest in a series of deep dives from our justice data gaps project, and is funded by the Justice Lab, an initiative of the Legal Education Foundation, as part of their ongoing programme of research and advocacy to improve the quality and availability of justice system data. If you’re interested in this or any of our other work, please get in touch. Thanks to Penelope Gibbs at Transform Justice for feedback on this briefing - any errors are our own.