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The process of going through the courts is a confusing one
Revolving Doors report on why so many people don't take up legal representation.

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Understanding and improving defendant engagement

Revolving Doors has just (13 July 2022) published interesting new research aimed at understanding why defendants do or do not engage across the criminal courts process, and how they could be better supported to engage with this process. In particular, the research (commissioned by the Courts Service) aimed to determine how defendants could be encouraged to take up legal representation where appropriate.

The research is based on in-depth interviews with 38 defendants who had recent criminal cases and covers information (often the lack of it) at the police station, before court and at court and includes a section on Prison to Court Video Links.

The fieldwork was conducted in 2020 but, as is often the case with official reports, was only published this week.

At the police station

Identifying the earliest possible trigger for defendants’ engagement with legal representation is critical. The earliest trigger point is at the police station with duty representation and this research found that vulnerable defendants and first-time defendants were the groups least likely to accept help from a duty solicitor. These defendants made this decision due to one or more reasons including:

  • not fully understanding the reasons for, and benefits of, having representation when being questioned
  • wanting to leave police custody as quickly as possible as it was an uncomfortable and distressing experience for them
  • not fully understanding the seriousness of the offence and the consequences that this decision around duty representation might have for them later in their case
  • recognising they were guilty and/or that there was strong and irrefutable evidence against them, and therefore feeling that there was no role for defence representation as they already felt clear on their plea decision.

The following quotes show some of these reasons that defendants gave for not accepting help from a duty solicitor: 

The last thing I wanted to do was spend time in a police cell.”
“I wasn’t well at the time and didn’t realise that I needed representation when making statements.”
“It was not explained what the implications were of having representation or what would happen if I didn’t have representation.”

Preparing for court

Preparing for court was a particularly challenging stage of the journey for first-time defendants. They wanted to take practical steps to prepare themselves but were blocked by a lack of information. First-time defendants explained that they did not know where and how they could access practical information about what to expect on the day of their hearing, which left them feeling under-prepared. The information defendants wanted to know in advance of their hearing included:

  • the length of time they could be waiting in court for their hearing to take place
  • the overall length of time they may be expected to be in court, so that they could make appropriate work and childcare arrangements
  • what they should bring with them on the day of the hearing, for example food, drink, or money to purchase refreshments
  • who they could speak to on the day of their hearing if they had any questions, for example to find out which courtroom they would be in
  • what they could expect when they entered the courtroom, particularly its layout and who would be present

Attending court

On the day of their hearing, researchers found that most defendants interviewed had basic queries and did not know who to direct them to. This particularly affected first-time and self-represented defendants, but also defendants who did not have anyone accompanying them to court.
Queries included when defendants could expect to be seen, which courtroom their case would be heard in, and the location of facilities such as the canteen or toilets. Without an identified person whom they could ask basic questions, these defendants built up anxieties which impeded their ability to engage effectively with their hearing.

“My name was first on the board so I was thinking I would go in first…Everyone going in was coming out again so I thought they were saving me for last cos they were going to send me to prison…. Started to make me agitated and angry – I’ve gone into the courtroom with a bit of an attitude, affected my behaviour.”

Several interviewees, including those with existing representation, had to make updated decisions about their plea late on the day of their hearing, because of their representative sharing new updates about their case, for example that a charge had not been dropped as expected or that the prosecution had shared new evidence. As a result, these defendants were tasked with making life-changing decisions in a very limited time period, in many cases in less than thirty minutes before they were due to appear before the judge. This meant that they felt less able to think clearly and make a balanced decision.

Those with additional support needs (particularly around domestic violence substance misuse and mental health) found the court process even more difficult to navigate.

Prison to Court Video Links

This was an area characterised by significant confusion and a wide range of difficulties. Miscommunication was rife and all the interviewees said they felt unprepared for their video hearing. This was either due to delays in the date and time of their hearing being communicated to them or having only limited time, in some cases less than five minutes, to speak to their representative about their hearing.

Defendants also experienced issues that prevented them from effectively communicating during their hearing. Most defendants felt that the presence of a prison officer prevented them from outlining their mitigating circumstances, because of concerns that this information could be shared with other officers and inmates.
Most defendants experienced audio-visual issues during their hearings resulting from technical problems with the link, but only a couple of defendants felt that judges and court staff put measures in place to mitigate against these, for example by re-introducing themselves each time they spoke.

“Strange feeling, almost as if I wasn’t there. Like a hearing going on about me, like a fly on the wall to it. People in court not looking at camera I was viewing, so it felt that proceedings were not directed towards me. Almost as if I was a ghost of me watching it. I worked really hard on my self-esteem in prison, felt deflated and that I had done a lot of hard work for nothing, that [PCVL] burst a bubble.”

Deciding whether to participate in a video link hearing was complicated for many. Not having to be in a court van, stuck in a holding cell or risk being sent back to a different prison (a shockingly common experience) were all factors which encouraged people to opt for the PCVL.

However, for an important hearing or sentencing, most preferred to be in court in person in order to make sure they had been heard.

Conclusions

  • Across the criminal courts process, at the police station, preparing for court and at court, the research identified three key barriers that prevented, or limited, defendant engagement. These were a lack of:
    relevant and user-friendly information about the criminal courts process provided by a trusted source
  • timely information to support more informed decision-making, particularly around legal representation
  • information and signposting to services that could help defendants with their additional support needs (e.g., mental health, substance misuse, domestic violence, and housing issues)

The research found early intervention is key and recommended that defendants should be provided with more information at two stages:

  1. in police custody – defendants should receive information about the benefits of representation
  2. on discharge from custody – information about what will happen next and how to prepare for their court hearing

 

Thanks to whereslugo for kind permission to use the header image in this post which was previously published on Unsplash.

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