If you were charged with a crime, could you defend yourself in court without a barrister or a solicitor? More and more people are doing just that, according to leading researchers. In the absence of official statistics, 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 found that a quarter of defendants fighting criminal charges do so 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 responsible goes free. 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
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 Phoenix Wright but probably work behind the counter in your local cafe. 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 your local Citizens Advice Bureau, or stick to government websites on the law, such as the guidance on criminal procedure. The Crown Prosecution Service itself publishes guides to offenses 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.
Sounding as if you know what you’re talking about is at least 20% of a real lawyer’s job. As a “litigant in person” (LIP) you’re already likely to annoy everyone under the assumption that you’ve come in not knowing anything, and are likely to argue about all the wrong things and waste everyone’s time. Here’s a simple way to show that you mean business. Use the correct forms of address (“sir/madam, you and your colleagues” is preferable in the magistrates’ court to the exceedingly silly “your worships”). Don’t 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
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 beer 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 the information itself. If there were people at the scene that the police didn’t question, then isn’t that a sign the court can’t be sure about what actually happened? Phone records, notes, photographs, receipts and other documents can all be vital pieces of evidence.
Strike a deal
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 that anything you say to them hands them ammunition, so only use this if you are sure you can negotiate a deal.
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.
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, organize 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 offense. This takes longer than you’d think.
Tell the truth
Even if a fact doesn’t work in your favor, 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
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 difficult to represent yourself in court, and if you can avoid it, you should.
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