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July 1, 2015

What impact would a lawyers’ “strike” have?

It seems clear that a lawyers’ “strike” may be imminent in England and Wales.  Defence advocates are up in arms about cuts to legal aid rates.  There are complications about the effects of the cuts on solicitors versus barristers which I won’t go into.  But if advocates refuse to take on new cases and only do duty work, what will be the effect?  Unfortunately it may not be as great as they wish.  Those accused of crimes will have to represent themselves, but they are doing that in increasing numbers in the magistrates’ courts already.  The Magistrates’ Association did two surveys in February and November 2014.  In some cases the response numbers were very small, but some trends are clear.  In February the proportion of LiPs was already high at 25%, but increased to 29% by November.  There have always been offences like minor traffic which have not been eligible for legal aid but the MA gave an alarming picture of other hearings where number of LiPs (litigants in person) are high.  In November, 14% of remand hearings were unrepresented, as were 23% of sentencing hearings and 22% of criminal trials.  Recently I’ve heard practitioners say a third/half of non motoring trials have unrepresented defendants.  So presumably if legal aid lawyers down sticks, the proportions of unrepresented defendants will increase (though a few more people will choose to pay privately for legal advice) and the courts will bumble along with their cases as previously.  Unrepresented defendants are often very difficult for practitioners to deal with, but it’s the defendants themselves I worry about since they definitely suffer from not having legal advice.   43% of magistrates surveyed felt that unrepresented defendants negatively affected the effectiveness of the court process some or all the time.  I have heard that unrepresented defendants plead guilty to charges where there is scant evidence, or accept one charge when another would have been more appropriate.  When they represent themselves in trials, they do not know which witnesses to call, either calling witnesses whose evidence is not disputed, or not calling witnesses they should have.  They have no idea how to cross examine or what documentary evidence to produce when.  All the lawyers I spoke to felt that unrepresented defendants were at risk of getting unfair convictions and sentences.  Small wonder – our system is designed for skilled lawyers.