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| Don’t try to defend yourself in court. But if you have to, here are some crucial tips | Don’t try to defend yourself in court. But if you have to, here are some crucial tips |
| (4 months later) | |
| If you were charged with a crime, could you defend yourself in court without a barrister or a solicitor? More and more of us are doing just that, according to the legal charity Transform Justice. In the absence of official statistics, it reports, data from the Ministry of Justice, freedom of information responses, an online poll of lawyers, surveys of prosecutors, judges and magistrates and fieldwork at courts all point to a “significant increase” in the number of unrepresented defendants in magistrates courts. A 2014 survey by the Magistrates Association found a quarter of defendants fighting criminal charges without a lawyer. | If you were charged with a crime, could you defend yourself in court without a barrister or a solicitor? More and more of us are doing just that, according to the legal charity Transform Justice. In the absence of official statistics, it reports, data from the Ministry of Justice, freedom of information responses, an online poll of lawyers, surveys of prosecutors, judges and magistrates and fieldwork at courts all point to a “significant increase” in the number of unrepresented defendants in magistrates courts. A 2014 survey by the Magistrates Association found a quarter of defendants fighting criminal charges without a lawyer. |
| You may think that if you’re innocent you don’t need a lawyer, but that’s the kind of naivety that could see you ending up wrongly convicted while the one-armed man responsible goes free. “I have prosecuted trials against unrepresented defendants,” one lawyer told the charity. “It is a complete sham and a pale imitation of justice.” But if you are unlucky enough to have to fight your case yourself, or if you’re confident enough in your presentational and analytical abilities, here’s some of what you’ll need to do. | You may think that if you’re innocent you don’t need a lawyer, but that’s the kind of naivety that could see you ending up wrongly convicted while the one-armed man responsible goes free. “I have prosecuted trials against unrepresented defendants,” one lawyer told the charity. “It is a complete sham and a pale imitation of justice.” But if you are unlucky enough to have to fight your case yourself, or if you’re confident enough in your presentational and analytical abilities, here’s some of what you’ll need to do. |
| Understand the law | Understand the law |
| Law isn’t a compulsory subject at school, and good books about it are pricey. Avoid the junk advice from armchair barristers who like to think they’re Rumpole of the Bailey but probably work behind the counter in your local Costa. To quote Heath Ledger’s Joker, if you’re good at something, you don’t do it for free. Head to a library instead, get some help from Citizens Advice, or stick to government websites on the law, such as the guidance on criminal procedure. The Crown Prosecution Service itself publishes guides to offences like assault. In the magistrates court you should rely on Stone’s Justices’ Manual; in the crown court you’ll want to look at Archbold and Blackstone’s Criminal Practice. Don’t start citing Magna Carta unless you want to be laughed out of the witness stand. | Law isn’t a compulsory subject at school, and good books about it are pricey. Avoid the junk advice from armchair barristers who like to think they’re Rumpole of the Bailey but probably work behind the counter in your local Costa. To quote Heath Ledger’s Joker, if you’re good at something, you don’t do it for free. Head to a library instead, get some help from Citizens Advice, or stick to government websites on the law, such as the guidance on criminal procedure. The Crown Prosecution Service itself publishes guides to offences like assault. In the magistrates court you should rely on Stone’s Justices’ Manual; in the crown court you’ll want to look at Archbold and Blackstone’s Criminal Practice. Don’t start citing Magna Carta unless you want to be laughed out of the witness stand. |
| Learn the lingo | Learn the lingo |
| Sounding as if you know what you’re talking about is at least 20% of a real lawyer’s job. (I’m a barrister myself, so you can trust me on this.) As a “litigant in person” (LIP) you’re already likely to annoy everyone by not knowing anything, arguing about all the wrong things, and wasting everyone’s time. You may be the exception, and you can show that really easily. Use the correct forms of address (“sir/madam, you and your colleagues” is preferable in the magistrates to the exceedingly naff “your worships” but if you want to grovel, use the latter). Don’t, as one LIP did in court against me once, refer to your opponent as “my gentleman friend” but simply “counsel for the prosecution” or “the prosecution”. | Sounding as if you know what you’re talking about is at least 20% of a real lawyer’s job. (I’m a barrister myself, so you can trust me on this.) As a “litigant in person” (LIP) you’re already likely to annoy everyone by not knowing anything, arguing about all the wrong things, and wasting everyone’s time. You may be the exception, and you can show that really easily. Use the correct forms of address (“sir/madam, you and your colleagues” is preferable in the magistrates to the exceedingly naff “your worships” but if you want to grovel, use the latter). Don’t, as one LIP did in court against me once, refer to your opponent as “my gentleman friend” but simply “counsel for the prosecution” or “the prosecution”. |
| Don’t accept what officials say without proof | Don’t accept what officials say without proof |
| Act politely and patiently. If you’ve been unfairly put on the hook for something, the chances are that it isn’t a vast conspiracy against you, just a mess-up. Ask for evidence; look for the holes in the case. If the prosecution says there are one fewer cans of beans when you left the shop than when you entered it, when was the last stock check? Ask for the records, and remember that a lack of information is as important as information itself. If there are people at the scene the police didn’t question, then isn’t that a sign the court can’t be sure about what actually happened? Phone records, contemporaneous notes, photographs, receipts and other documents can all be vital pieces of evidence. | Act politely and patiently. If you’ve been unfairly put on the hook for something, the chances are that it isn’t a vast conspiracy against you, just a mess-up. Ask for evidence; look for the holes in the case. If the prosecution says there are one fewer cans of beans when you left the shop than when you entered it, when was the last stock check? Ask for the records, and remember that a lack of information is as important as information itself. If there are people at the scene the police didn’t question, then isn’t that a sign the court can’t be sure about what actually happened? Phone records, contemporaneous notes, photographs, receipts and other documents can all be vital pieces of evidence. |
| Strike a deal | Strike a deal |
| All this advice is easy to give, but extraordinarily hard for an amateur to follow | All this advice is easy to give, but extraordinarily hard for an amateur to follow |
| Plea bargaining doesn’t officially exist, at least as far as English law is concerned, but many prosecutors will consider accepting a plea to a lesser charge. Be reasonable about your chances of success (conviction rates in the magistrates court particularly are very high) before deciding to fight. Usually lawyers would engage in these discussions, since they can do so without making any admission of liability, but if you’re desperate, you could try to politely approach the prosecutor to discuss your case. Remember anything you say to them hands them ammunition. | Plea bargaining doesn’t officially exist, at least as far as English law is concerned, but many prosecutors will consider accepting a plea to a lesser charge. Be reasonable about your chances of success (conviction rates in the magistrates court particularly are very high) before deciding to fight. Usually lawyers would engage in these discussions, since they can do so without making any admission of liability, but if you’re desperate, you could try to politely approach the prosecutor to discuss your case. Remember anything you say to them hands them ammunition. |
| Remember your audience | Remember your audience |
| Magistrates are – generally – retirees who believe in law and order. They hear the moaning pleas of thousands of defendants who all think the system has conspired to lock them away. Juries are ordinary members of the public who are simply doing what is asked of them. They are wildly different audiences, and you should tailor your remarks accordingly. Magistrates in particular want the public to afford them the respect and dignity of their great office, and humility goes a long way. | Magistrates are – generally – retirees who believe in law and order. They hear the moaning pleas of thousands of defendants who all think the system has conspired to lock them away. Juries are ordinary members of the public who are simply doing what is asked of them. They are wildly different audiences, and you should tailor your remarks accordingly. Magistrates in particular want the public to afford them the respect and dignity of their great office, and humility goes a long way. |
| Play the system | Play the system |
| Overworked prosecutors have nowhere near the preparation time you’d expect for small cases. Police deal with many matters and aren’t always as useful to the prosecution as you’d think. Know the evidence in your case inside out, organise yourself, and give yourself the upper hand just by knowing what’s going to happen and having a list of questions to ask. Read about cross-examination, and think about your “case theory” – why the court cannot be sure that you committed the offence. This takes longer than you’d think. | Overworked prosecutors have nowhere near the preparation time you’d expect for small cases. Police deal with many matters and aren’t always as useful to the prosecution as you’d think. Know the evidence in your case inside out, organise yourself, and give yourself the upper hand just by knowing what’s going to happen and having a list of questions to ask. Read about cross-examination, and think about your “case theory” – why the court cannot be sure that you committed the offence. This takes longer than you’d think. |
| Tell the truth | Tell the truth |
| Even if a fact doesn’t work in your favour, tell the truth. Once a witness starts fibbing, they are generally toast. Sustaining a lie in the face of evidence is difficult. Sustaining many lies is all but impossible. The truth may not always be on your side, but massaging the facts to fit your argument is a path to disaster. | Even if a fact doesn’t work in your favour, tell the truth. Once a witness starts fibbing, they are generally toast. Sustaining a lie in the face of evidence is difficult. Sustaining many lies is all but impossible. The truth may not always be on your side, but massaging the facts to fit your argument is a path to disaster. |
| Don’t do it | Don’t do it |
| All this advice is easy to give, but extraordinarily hard for an amateur to follow. You probably don’t have the self-awareness to present your own case as well as someone else would. You probably don’t have the time or resources to understand things as complex as the rules of evidence and procedure, and you will probably have more than enough to worry about during your trial just as a witness and as a defendant. It’s near-idiotic to represent yourself in court, and if you can avoid it, you should. | All this advice is easy to give, but extraordinarily hard for an amateur to follow. You probably don’t have the self-awareness to present your own case as well as someone else would. You probably don’t have the time or resources to understand things as complex as the rules of evidence and procedure, and you will probably have more than enough to worry about during your trial just as a witness and as a defendant. It’s near-idiotic to represent yourself in court, and if you can avoid it, you should. |
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