Written evidence from the Magistrates Association

 

About the Magistrates Association

The Magistrates Association is an independent charity and the membership body for the magistracy. We work to promote the sound administration of the law, including by providing guidance, training and support for our members, informing the public about the courts and the role of magistrates, producing and publishing research on key topics relevant to the magistracy, and contributing to the development and delivery of reforms to the courts and the broader justice system. With over 14,000 members across England and Wales, we are a unique source of information and insight and the only independent voice of the magistracy.

 

Question: How has LASPO has impacted access to justice and for views on the post-implementation review and the criminal legal aid review?

The Magistrates Association (MA) is concerned that increases in the number of unrepresented parties risks limiting access to justice.  In response to surveys carried out by the MA 5-6 years ago, over 90%[1] of magistrate respondents felt there was always a risk that parties before them being unrepresented would have a negative impact on the effectiveness of the court process.

The MA carried out two surveys to assess the impact of LASPO, in 2014 and 2017, to produce comparative evidence from our members in relation to the number of unrepresented defendants they were seeing in court, and what impact this was having on justice.[2]

This MA research indicated the overall number of unrepresented parties seen by magistrates increased between 2014 and 2017.  Respondents were asked to identify how many parties were unrepresented for a particular day in court, and from that data we calculated the overall proportion of defendants dealt with on that day who were unrepresented. We also used the data to work out how many sittings had over 50% of unrepresented parties. This allowed us to see whether the proportion of unrepresented defendants changed between 2014 and 2017 for different jurisdictions.

The MA wanted to know whether there were particular hearings where magistrates were seeing an increase in the number of unrepresented defendants so in the Autumn 2017 survey we also asked respondents about any increase they had seen over the previous two years.

Data on the Adult 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.

In relation to the specific hearings where respondents had seen an increase in unrepresented defendants between 2014 and 2017, the following figures were produced for different types of hearings

 

Our research showed that magistrates were seeing an increase in unrepresented parties in all adult criminal cases. This is very concerning when linked to views that unrepresented parties’ impacted negatively on the effectiveness of the justice system. An average of over 90% of respondents felt unrepresented defendants negatively affected the court hearing, putting them at an unfair disadvantage in respect of most hearings in magistrates’ court.

 

Data on the Family Jurisdiction

 

 

 

Given 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.

 

 

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.

 

In 2014:

 

In 2017:

 

Impact of individuals not being represented

 

Broadly, the MA is concerned that a lack of legal representation can result in:

 

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.

 

Although our survey is now three years old, the indication is that the number of parties unrepresented in both criminal and family hearings continues to increase. Although there is no clear data in respect of hearings in magistrates court, the data for Crown Court shows a steady increase in those unrepresented at first hearing, from 5% in 2020 to 8% in 2018 (data was not collected in 2019).[3] Similarly, the data illustrates the same trend in family court proceedings, not just that LASPO had an immediate effect in the number of those represented, but that the number of LiPs continues to increase. For example, the proportion of private family law cases where both parties had legal representation went from 41% in January to March 2013 to 18% in January to March 2020, which is a 2% decrease from the same time period in 2019.[4]

It is vital to understand why our members are seeing an increase in the number of unrepresented defendants before them. Concerns have been raised that changes to legal aid have reduced the number of providers, which puts pressure on existing services. It is therefore even more vital that those providers that do legal aid work receive adequate recompense for their work.

Question: What is the impact of the court reform programme and the increasing use of technology on legal aid services and clients?

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 (IDPC) is 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 defendants 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.

Question: What is the impact of Covid-19 on legal aid services and clients?

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 remotely.

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.

 

Question: What are the challenges for legal aid over the next decade, what reforms are needed and what can be learnt from elsewhere?

 

Criminal jurisdiction

Legal representation is vital from the point of police interview, so that individuals can receive advice about all stages of the process. 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 need to come to court, an early guilty plea will be taken into account at point of sentence, reducing the final sentence given. Legal representation can assess evidence, and explain different elements to an offence thus making it more likely a guilty person will plead guilty at the earliest stage.

Similarly, legal representation can ensure a defendant understands if they have a statutory defence that they may wish to present. If there were situations where individuals were either pleading guilty or being convicted of an offence in situations where they would have had a statutory defence available to them, but it was not raised due to lack of legal representation, they would constitute a serious miscarriage of justice. Miscarriages may only be avoided due to legal advisers stepping in, and assisting defendants, but this does take up additional court time and is likely to increase delays. When defendants appear in person in court, the duty solicitor should be able to assist them. However, the MA is concerned that where processes are moved online, it will be more difficult for defendants to access legal advice. For example, if defendants are sent a postal requisition charge, and are encouraged to give an online plea, they may not realise the seriousness of the issue and avail themselves of legal advice. If the case is then dealt with remotely, for example, via the Single Justice Procedure or via video link, then there will be less opportunity for a legal adviser to step in to assist them.

Legal representatives will also ensure that any mitigation is presented to court, which means that there is a risk that unrepresented individuals may be 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; 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 that pressures on duty solicitors may be impacting on both the number of defendants being represented, and the quality of the advice being given. There has to be adequate provision of duty solicitors to ensure they are able to speak to defendants before their court appearance, without delaying courts through adjournments. Unless duty solicitors have sufficient time to speak with their clients, they may not fully understand all the relevant circumstances and therefore be unable to identify any vulnerabilities that should be brought to the attention of the court.

Currently a significant proportion of defendants are unrepresented for hearings in magistrates court. We would also like to take this opportunity to note concerns about the impact of defendants appearing before magistrates without being able to utilise the duty solicitor scheme at first hearing. As mentioned previously, it can be challenging for the efficiency of the court process if defendants are unrepresented, as well as the risk that those defendants may themselves be at a disadvantage.

Difficulties accessing legal representation for further hearings can also slow the process down, or necessitate the court making difficult decisions to continue hearings even where the defendant has not managed to find suitable legal representation. This may be due to someone not being eligible for legal aid, or due to complications with applications for legal aid, if a custodial sentence is not deemed likely.

Given the importance of legal representation, especially where hearings are being held remotely, and interaction with the system (in terms of giving a plea and accessing documents) is via a digital system, we would argue that the benefits of defendants being represented for all criminal hearings should be considered, even if a custodial sentence is not likely. 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.

As well as the issue of whether certain hearings are in scope for legal aid, the eligibility criteria can also 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.[5]

It is also possible that the increase in police use of released under investigation, and subsequent postal requisitions to appear in court, have led to more defendants attending court without having accessed legal advice. This is an issue that should be looked at in more detail.

 

Family jurisdiction

 

Particular issues of concern for the MA in respect of the family jurisdiction include 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 fairness and effectiveness of the court process; and the consequences of delays to family court proceedings.

 

The MA has found that hearings involving LiPs usually take longer than those where both parties are legally represented.  This is due to LiPs not understanding the court process, which puts additional pressure on magistrates and legal advisers who may have to explain the process. In the 2017 MA survey, in the open comments section, in respect of family court, 25% of respondents expressed concern that being unaware of the court process put LiPs at a disadvantage, prolonged the legal process and put additional pressure on legal advisers and magistrates to ensure they understand what is going on and what they need to do. Ensuring a fair process must always be the primary consideration of any bench: although efficiency is to be encouraged, it must never be at the expense of fairness. So the increase in LiPs does have an impact on the efficiency of the system.

 

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. Recent work by the President of the Family Division has gone into drafting Standard Orders for family proceedings, which may well assist LiPs in preparing papers. In addition, the Reform Agenda is starting to move applications online, and considerable effort is going into how to use online systems effectively to support LiPs. One benefit of online forms is that the system can require certain elements of form to be completed before it can be submitted, which will help LiPs ensure the applications are not missing necessary information.

 

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. This concern was raised in the 2017 MA survey, where in the comments box, 8% of respondents raised concerns about the disadvantage LiPs face when the other party had representation in family hearings.

 

As noted by the MA previously, LASPO has exacerbated the longstanding issue of domestic abuse victims being cross-examined by their alleged abusers in family court proceedings. In criminal jurisdictions, the court may make 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 continues to be inappropriate situations where the alleged abuser is able to question their victim in court proceedings. This is an issue that will be hopefully be resolved when the Domestic Abuse Bill is passed.

 

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.

October 2020

 


[1] 94% respondents in respect of the 2014 survey and 93% respondents in respect of the 2017 survey

[2] A summary of the data can be read here: https://www.magistrates-association.org.uk/Portals/0/45%20Key%20figures%20from%20two%20MA%20surveys%20on%20unrepresented%20parties_October%202020_1.pdf For further details please contact Jo Easton at jo.easton@magistrates-association.org.uk

[3] See Table AC11a https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/897716/ccsq_tables_jan_mar_2020.ods

[4] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/897071/FCSQ_bulletin_January_to_March_2020_final_V2.pdf

[5] https://consult.justice.gov.uk/digital-communications/legal-aid-eligibility-and-universal-credit/supporting_documents/annexcsummaryofcurrentlegalaidfinancialeligibilityrules.pdf#:~:text=In%20order%20to%20be%20eligible%20for%20criminal%20legal,both%20the%20income%20and%20the%20capital%20eligibility%20test.