The Ministry of Justice concealed the existence of a 36-page internal report that contained explosive testimony from judges and prosecutors about the impact on the justice system of the rising number of people defending criminal charges without a lawyer, BuzzFeed News can reveal.
Last week BuzzFeed News reported on the release under Freedom of Information laws of a six page summary of research conducted in 2015 into the issue of people facing criminal charges in court with no lawyer.
The study was commissioned by the government to review the impact of cuts to legal aid made in the 2012 Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) and was based on in-depth interviews with 15 crown court judges and six prosecutors.
The MoJ repeatedly insisted, including in two on-the-record statements, that the six pages were the report in its entirety, despite it being labelled a summary and containing no direct testimony or data. After BuzzFeed News expressed scepticism, an MoJ press officer said that any edits from the original draft were minor corrections to spelling or grammar. They also insisted that there was no transcript of the judges’ testimony.
But now the original report has been leaked in full to BuzzFeed News. Dated February 2016 and titled “Unrepresented Defendants: Perceived effects on the Crown Court in England and Wales and indicative volumes in magistrates’ courts" it is marked “Internal Ministry of Justice Report Do not quote publicly”.
It includes the first research of its kind into the number of people facing criminal charges without a lawyer in magistrates court, as well as a series direct quotes from the judges expressing their serious concerns about the impact on defendants, victims and the court process.
“Some of them just sit there like a rabbit in the headlights and haven’t got a clue what’s going on,” one judge is quoted as saying.
The revelations in the full report that the MoJ omitted from the summary it released include:
The gulf between MoJ predictions on the minimal impact of legal aid changes on criminal cases and the reality experienced by judges.
That more than half of the judges interviewed were concerned about unrepresented defendants understanding the concept of the difference an early guilty plea made in sentencing.
Explicit warnings backed up by data that not having a lawyer may create more hearings, a situation that could end up costing the court system more.
Judges said preparation for cases was “more extensive or difficult” where the defendant had no lawyer.
Data from five magistrates courts across England and Wales in 2015 suggesting that 13% of people have no lawyer when facing criminal charges there.
That some of those interviewed said no support at all was offered to unrepresented defendants.
While the summary made just three vague policy recommendations on the back of what it described as a “small study”, the original report has seven specific recommendations, including looking at options for providing legal assistance in crown court.
A judge saying the impact of witnesses being interrogated by a defendant is “almost like committing the offence all over again.”
Correspondence between the Senior Presiding Judge (SPJ) and MoJ officials “where the SPJ requested the MoJ conduct further work on the issue, namely to provide more robust data on the number of unrepresented defendants in the Crown Court.”
The government is conducting a review on the impact of legal aid cuts but it is largely focused on civil law. This proves the MoJ has been sitting on research that showed there were already serious concerns in the judiciary three years ago about the availability of criminal legal aid and the rise of people defending criminal charges without a lawyer.
BuzzFeed News applied under Freedom of Information laws for the release of the research in April last year. It was turned down by the MoJ, but following an appeal, the Information Commissioner ruled that it should be released.
When the MoJ finally released the summary document last week, it vehemently denied any more substantial version of the report existed. In one email a press officer wrote: “Further to our conversation earlier where you accused me of lying to you about the report, I want to make it abundantly clear that the report given to you was the only report produced on the back of this research. We will be very disappointed if you allude to us being in any way dishonest in your article.”
In its on-the-record statement the MoJ insisted: “The report sent was the one requested and it is in its entirety. There are no summaries nor are there any transcripts in the review.”
A further email from the press office after publication said: “upon reading the article published after the conversation we had on Monday about the contents of the report, I would appreciate if you could add the below statement below the passage which strongly suggests that the full research was not published. An MoJ spokesperson said: 'We have released the full and final report as requested and will of course consider any further requests for information related to this work.'"
BuzzFeed News approached the MoJ at 2pm on Tuesday for its response to the full leaked document. We asked why it had failed to disclose its existence last week and why it had repeatedly insisted that the summary was the only report.
By 6pm, the department still had not provided a response and a spokesperson said it would be unable to offer one until Wednesday.
Shadow Justice Secretary Richard Burgon told BuzzFeed News: “When people’s liberty is at stake, no one should be left without proper legal representation. This risks not only miscarriages of justice but, as the revelations uncovered by Buzzfeed shows, it can cause distress for victims and witnesses as well as costing the taxpayer more as cases drag on.
"The government’s failure to publish this research, delays in responding to FOI requests, and denials that the full research even exists suggests that it is trying to sweep these problems under the carpet rather than fix them. That approach must end."
Despite the MoJ insisting no quotes or transcripts from the judges existed, some of the most damning material in the 2016 report is quotes from judges clearly exasperated with the situation.
Describing the impact of unrepresented defendants not understanding court processes, one judge said: “It’s like saying if you felt unwell would you want to go and ask someone with no medical qualification how to cure yourself”.
Another, explaining the defence’s level of participation in hearings where they have no lawyer, said: “Some of them just sit there looking like a rabbit in the headlights and they haven’t got a clue what’s going on and you really have to check that they are following and are in a position to make any relevant comments they need to. Others will be jumping up every five seconds, even when it’s not their turn to talk”.
Commenting on the impact on witnesses when a defendant is the person to cross-examine them, one judge said: “He decides he’s going to represent himself, and then he’s asking questions of these people, it’s almost like committing the offence all over again.”
The judges' testimony
The unpublished research explicitly says that not having a lawyer may create more hearings, a situation that could end up costing the court system more. Quoting 2014 data, it points out that while 17% of defendants with no lawyer had two or fewer hearings, compared to 30% of those represented in court. In analysis absent from the original summary released to BuzzFeed News, it says: “This suggests that legal representation may affect the number of hearings.”
It goes on to say: “Prior to this paper there was no qualitative evidence to give any narrative around these statistics. There was also no quantitative data about the number of unrepresented defendants in the magistrates’ courts.”
The report gives vivid detail on how unrepresented defendants can bring court delays, with one judge giving an example of a case “where an unrepresented defendant asked for 50,000 pages of documents to be provided and for Lord Chief Justice to give evidence. These problems appeared to stem in part from unrepresented defendants not being in a position to engage with CPS properly due to their lack of legal training and their distrust of the CPS stopped the unrepresented defendants releasing documents.”
The research also details case delays caused by pursuing a peculiar defence that a lawyer would be unlikely to try. “One interviewee mentioned a spate of cannabis cases with unrepresented defendants whereby the defendants did not accept the illegality of their actions,” the research notes. “A different interviewee discussed a three week trial in which the unrepresented defendant based their defence on the ‘law of the sea’ in a drug dealing case.”
While the summary said judges “mentioned problems in discussing the concept of pleas and discounts,” it omitted to say that more than half of the judges interviewed were concerned. The fact that some of the CPS interviewees also thought it was harder to get a guilty plea from someone unrepresented was also edited out. The original report says “they perceived unrepresented defendants to be unable to assess the weight of evidence against them and therefore know whether a case is strong”.
One judge said: “To me, saying that to a defendant in person is almost like saying, “you’ve got to plead guilty, mate”.
The impact of those with mental health issues going unrepresented was also detailed. “An example was given of one defendant was assessed by a psychiatrist as fit to stand trial but displayed paranoid behaviour and continually turned up at court with a suitcase full of nappies. The court therefore had an additional task to manage this behaviour as part of the hearing.”
Many of the sentences in the summary released by the MoJ are identical to ones that appear in this report. However, the majority of the report is missing from the summary that was released.
The full report suggests that opportunities to adjust policies have been missed. While it contained seven policy recommendations, the summary that was released by the MoJ last week included just three, all of them vaguely worded.
The recommendations that were omitted from the summary were: that work should be done to create a central bank of data on representation in the magistrates’ courts; explore whether having a lawyer has an impact on outcomes in magistrates’ courts; Create guidance for judges and CPS staff on how to handle unrepresented cases; create practical guides for unrepresented defendants and a fully costed assessment of how legal advice could be provided in crown court, along the lines of the duty solicitor scheme in magistrates’ court.
On the opening page, it says: “The Ministry of Justice (MoJ) estimated that between 200-300 Crown Court defendants per year would be excluded from criminal legal aid funding due to this change. It was anticipated that this would lead to more people paying their own court costs and that this increase would represent a relatively small proportion of cases in the Crown Court. However, feedback from judicial stakeholders has suggested that since this legal aid change, they believe unrepresented defendant numbers have increased and this is disproportionately reducing the efficiency of the courts.”
It also details correspondence between the Senior Presiding Judge (SPJ) and MoJ officials “where the SPJ requested the MoJ conduct further work on the issue, namely to provide more robust data on the number of unrepresented defendants in the Crown Court.”
The unpublished paper says it has two objectives: to understand the perceived effects of unrepresented defendants in the Crown Court and to explore the scale of unrepresented defendants in a small selection of magistrates’ courts. Yet the summary released under FOI did not include anything on the second aspect of the research.
In the buried report, MoJ analysts collected data in five magistrates courts across England and Wales for a period of four weeks from November 2015, recording the numbers of unrepresented defendants. Of the cases they surveyed, 13% of defendants had no lawyer at all. Missing data from two courts meant that only three courts had baseline data so the percentages are based on a sample of 1,031 cases.
While data in the number of unrepresented people in Crown Court is gathered and published by the MoJ, almost no data exists on the issue in magistrates courts. It was for this reason that BuzzFeed News commissioned an exclusive survey of magistrates last year. It found that magistrates reported that 30% of all criminal defendants they saw at their last session had no lawyer, suggesting the problem has only worsened since this research was carried out.
Better Case Management, a scheme introduced in 2016 to make speedier justice, was not yet rolled out when the draft was written. But judges said that delays caused by unrepresented defendants would have a serious impact on this, with one saying “Having unrepresented defendants drives a coach and horses through Better Case Management.”
UPDATE
After publication a spokesperson for the MoJ said: “The FOI requested the final report and this was provided. Over 99% of applications for Crown Court legal aid are granted, and this hasn’t changed following the reforms. We will this year review all the changes made to legal aid in 2012 under LASPO – including criminal legal aid.”