Fair representation for all

by Edward Fenner

Fair representation for all

Unrepresented defendants

Our adversarial justice system is based on a level playing field between prosecution and defence. Unrepresented defendants are becoming ever more frequent before the courts.

A recent survey entitled Justice Denied [see also our news article] highlights the dramatic increase in unrepresented defendants within the Criminal Justice System. It puts this trend down to a combination of legal aid cuts, inadequate support for defendants and complex bureaucracy. The report cites one example of an unrepresented defendant remaining silent in court. Following his appearance and subsequent remand to prison he was found to be deaf.

FMW Law have campaigned for the right to fair representation for all. The unfairness and inequality for those who come before the court unrepresented, should be evident to all. But this increase is not only leading to inequality but also lengthy delays. I have spoken to a number of barristers prosecuting unrepresented defendants and in each case the trial has taken at least twice as long as it should. In one case, a simple three-day trial lasted three weeks. That is delay for everyone associated with the criminal justice system, defendants and victims alike. That is also a courtroom that could have been used for other cases being tied up.

It is also increasing the potential for miscarriages of justice, causing more delays and cost further on – for those lucky enough to have been identified as suffering from a miscarriage of justice. Isn’t it better to do the job properly first time around, to ensure that everyone has access to proper representation?

I was recently instructed to represent a non-English speaking man who stood unrepresented before the court on the day of his trial on very serious charges. His interpreter had offered to contact me on his behalf and ask for help. I stepped in at the last moment and managed to spot some serious deficiencies in the crown’s case against this man. He was subsequently acquitted by direction of the judge.  I cannot help but wonder what would have happened to him, had he not had a caring interpreter. The prosecution would still have proceeded. Would he have been able to spot those deficiencies himself?

If the state is going to prosecute someone, accuse them of committing a crime, it must allow that person fair representation.  Otherwise we cannot call ourselves a civilised society.

Edward Fenner