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2011-03-01 06:25:20
By Jon Kelly BBC News Magazine
Matthew MacFayden in Criminal Justice; Martin Shaw as Judge John Deed; Maxine
Peake in Silk; confused man; barrister; Leo McKern as Rumpole
Legal aid changes in England and Wales could mean hundreds of thousands more
people representing themselves in court, judges have warned. So how exactly do
you become an amateur lawyer?
You know how it works. You've seen the courtroom dramas - Rumpole of the
Bailey, Kavanagh QC, Judge John Deed - and, by now, you're surely a
fully-fledged legal expert.
There's the wig, of course, and you can't forget the gown. And you have to say
things like, "in my submission" and "I put it to you, m'lud".
The case for the prosecution rests. How hard can it be?
Except that thousands of people each year find out just how onerous a task
representing oneself in court actually is - and it is a phenomenon that some in
the profession believe could be about to become increasingly prevalent.
The Judges' Council, which is chaired by Lord Igor Judge, the head of the
judiciary, has warned that government plans to remove 350m from the legal aid
budget could result in a surge of amateur barristers clogging up the system.
The Ministry of Justice (MoJ) insists there is "little substantive evidence"
that litigants in person delay proceedings and that any increase should not
significantly impact proceedings.
No clear statistics are available on how many people actually represent
themselves. The Northern Irish courts services say such information is not
collated in their jurisdiction and their Scottish equivalents are also not able
to provide figures.
However, according to the MoJ, in England and Wales either one party or both
did not state that they had legal representation in some 94,672 family cases
heard by the High Court and in county courts during 2009/10.
Start Quote
Lindis Percy
You have to be courageous and address your own fear
End Quote Lindis Percy
A lawyer who acts for him or herself has a fool for a client, runs the old
legal adage - but there have been prominent recent examples of people making
the choice.
The Scottish politician Tommy Sheridan sacked his legal team and represented
himself during his initially successful civil case against the News of the News
of the World in 2006. However, repeating the same strategy did not prove quite
so effective during his resulting criminal trial for perjury in 2010 - he was
found guilty and jailed for three years.
Heather Mills acted on her own behalf during her divorce proceedings from Sir
Paul McCartney in 2006, earning 14m for herself and 2.5m to buy a house in
London - but falling way short of the 125m she had been seeking.
For non-celebrities, the situation is similar. According to figures released by
Andy Slaughter, the shadow legal aid minister, of the 25,500 incapacity benefit
cases in 2009/10, some 60% of people without legal representation lost,
compared with just 33% of those who had lawyers.
One less well-known serial litigant-in-person is Lindis Percy, 66, a
grandmother and peace activist from Harrogate, North Yorkshire, whose
activities have means she has "lost count" of the number of times she has
represented herself before magistrates, in Crown and civil courts, at the High
Court and in appeals.
Despite working variously as a nurse, midwife and health visitor, Ms Percy, who
protests against US military bases in the UK, has spent hours in libraries
poring over legal textbooks to prepare her cases.
She admits that stepping into a courtroom to take on an array of highly-trained
legal professionals is terrifying. But she says that, without access to legal
aid or the financial resources to instruct a barrister every time she ends up
in the dock, she has little choice.
"I'd advise anybody, if they're about to represent themselves, just to sit in a
court and get a feel for the place," she says.
"You get to understand that a court is like a theatre - you get all these
characters, the judges and the ushers and the clerks.
"It's very intimidating. It's very difficult to cross-examine. But you have to
be courageous and address your own fear."
Legal aid
as eviction, debt and family breakdown, and if necessary represent people in
court
Ms Percy acknowledges that, because she has the confidence that comes with
being middle class and committed to her cause, she finds it easier than most to
swallow her nervousness and face down the opposition.
But, unsurprisingly, legal professionals are less enamoured of her
characterisation of the plucky amateur taking on the ritual and flummery of the
bench.
Nick Armstrong is a barrister with Matrix chambers whose specialisms include
immigration and mental health law. He fears any reductions to the legal aid
budget because most of his clients, he says, simply do not have the language
skills or the capacity to present their case effectively before a judge.
Quite understandably, he adds, even the most fluent of non-lawyers rarely
manage to get to grips with the finer points of law, the standards of evidence
and the advocacy techniques that professionals take years of training to
develop.
His advice to potential litigants in person - get represented. Quickly.
"It can be a complete disaster for the individuals involved," he says. "I've
watched cases implode because someone has under-prepared.
"These cases get won or lost because someone has spent an enormous amount of
time with a client who doesn't understand why it's important to dig out every
receipt and every telephone call.
"At the end of the day, the judge has to decide on the basis of evidence. If
that isn't put before them, you've lost."
Start Quote
It's a bit like a school pupil going before the headmaster
End Quote Prof Richard Moorhead Cardiff Law School
Despite the legal profession's doubts, the phenomenon of self-representation is
not well studied in the UK.
In 2005, however, Prof Richard Moorhead of Cardiff Law School carried out
research on the subject for the then-Department of Constitutional Affairs in
2005.
Typically, he says, professional lawyers tend to characterise
litigants-in-person as obsessive cranks who clog up the system with petty
grievances.
Such plaintiffs may create problems for the legal process, Prof Moorhead says,
but they are small in number.
The bigger issue, he believes, is the lack of support and assistance offered to
them in an adversarial system in which the judge relies on both sides putting
their cases effectively.
"Emotional distance is a problem for them but the primary problem is is that
they don't know know to put their cases in a technical way," he says.
"They are terrified, usually. They don't understand the substantive law, they
don't understand the procedure, they don't understand the law of evidence.
"It's a bit like a school pupil going before the headmaster, and the court
process and procedures aren't well-developed to help them."
Few of us would welcome the opportunity. But if the Judges' Council is right,
more and more Britons could be about to get their day in court.
londonlawstudent
28th februari 2011 - 14:19
Re: law being simple. A lot of the time it is but people don't always
understand. I have seen cases where individuals represent themselves where you
see them trying to plead ignorance when the law doesn't allow this in regards
to a specific offence or failing to understand the burdens required for
evidence. These rules are crucial, but sometimes necessarily have to be
complex, no getting around it
Eagle
28th februari 2011 - 13:48
I am a barrister who represents legally-aided and privately paying clients
every day in court in a variety of areas of law. It is really frustrating to
arrive at court to find the other side representing himself, regardless of how
my own client is paying me.
That's because every little thing has to be explained by me and the judge.
Simple cases take hours and hours and waste expensive court time.
David_L
28th februari 2011 - 13:21
I disagree with Nick Armstrong's comments. Immigration law is particularly
simple to understand. A close friend of mine had to represent themselves after
a lawyer refused to act because they believed the case would not be successful.
I studied the laws in detail with my friend. They represented themselves and
won, with more ease than we had anticipated.