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Unrepresented Defendants: Perceived effects
on the Crown Court in England and Wales –
practitioners’ perspectives
Joe Thomson and Jane Becker
The Ministry of Justice (MoJ) introduced reforms to legal aid under the Legal Aid,
Sentencing and Punishment of Offenders (LASPO) Act 2012 with the aim of reducing
spending on legal aid, directing funding at those cases that need it most and promoting
alternatives to litigation. As part of this reform package, since January 2014, any
defendant whose disposable annual income is £37,500 or more is no longer eligible for
criminal legal aid at the Crown Court.
The current Criminal Justice System (CJS) processes, operation and planned reforms
are largely based on the assumption that criminal defendants will be legally
represented.
There is an evidence gap on the potential impact of these unrepresented defendants
on court processes and reforms. This report provides an initial exploration, based on
in-depth interviews with 21 practitioners (15 Crown Court judges and 6 CPS Crown
Court prosecutors), of the perceived effects of unrepresented defendants in Crown
Courts on practitioners and court processes. The exploratory nature of this project
meant that the findings were indicative and should not be considered to be a
comprehensive assessment of all the relevant issues.

Key findings
• The majority of the 15 judicial interviewees and all 6 of the Crown Prosecution
Service (CPS) interviewees saw unrepresented defendants as the exception
rather than the rule at trial.
• All interviewees consistently made a distinction between two main types of
unrepresented defendant: 1) those who choose to be unrepresented for nonfinancial reasons; and 2) those who do so because of legal aid/funding issues.
These groups were seen as posing distinctly different challenges to the court
process, with those who choose to represent themselves for non-financial
reasons being seen as more problematic.
• Unrepresented defendants were seen as having a varied but limited
understanding of the court process by the majority of interviewees and were
considered less able to participate effectively in the process.
• A consistent theme was the perception that unrepresented defendants’ cases
had longer hearings and case progression was slower. Other practitioners, such
as judges and prosecutors, adjusted for the defendants’ lack of understanding
and participation which, in turn, slowed the whole process down.
• Interviewees saw unrepresented defendants as a barrier towards achieving early
guilty pleas because they had a less detailed understanding of the discount
scheme. Interviewees also expressed concern about unrepresented defendants’
effect upon witnesses, with particular worries about the cross-examination
process.

 Background

Approach

In 2012 the Ministry of Justice (MoJ) introduced
reforms to legal aid under the Legal Aid, Sentencing
and Punishment of Offenders (LASPO) Act. The aim
was to reduce spending on legal aid, direct funding
at those cases that needed it most, and promote
alternatives to litigation. While the financial eligibility
rules governing entitlement to criminal legal aid
remained broadly intact, the reform package
included one significant change in respect of the
Crown Court. Since January 2014, defendants
whose disposable annual income was £37,500 or
more were not eligible for criminal legal aid. This
was a change from the pre-LASPO system which
had no upper eligibility income threshold at the
Crown Court. The application of the £37,500
threshold was subject to review on the grounds of
hardship for individuals who showed that they could
not afford to pay for their defence costs privately.
Therefore there was a risk of an increase in
unrepresented defendants in the Crown Court1.

In-depth semi-structured interviews4 were used to
explore the views of judges and Crown Prosecution
Service (CPS) practitioners5 in relation to
unrepresented defendants. Fifteen Crown Court
judges and six CPS Crown Court prosecutors were
interviewed in 20156.
The sample was selected to ensure that a range of
experiences and views of Crown Court judges and
CPS prosecutors were reflected. Efforts were made
to get a spread of court circuits and CPS regions,
but final interview choice was driven by availability.
The exploratory nature of this project meant that the
findings were indicative and should not be
considered to be a comprehensive assessment of all
the relevant issues. These findings were the specific
views of those interviewed and may not be
generalisable to other courts or individuals.
The aim of the interviews was to gather information
around:
• practitioner experiences of unrepresented
defendants;

The MoJ publishes statistics which show that the
proportion of defendants dealt with in the Crown
Court known to have had legal representation2
decreased by two percentage points between 2010
and 2015.3 During 2015, 93% (89,400) of
defendants had legal representation at the first
hearing while 7% (7,000) of defendants had no legal
representation or unknown representation at first
hearing. This compares to 95% (107,100) and 5%
(5,500) respectively in 2010. In 2015, 27% of
represented defendants had two or fewer hearings,
compared with 17% of defendants whose
representation was unknown or were known to be
unrepresented.

• practitioners’ views on what types of
defendants are unrepresented;
• practitioners’ views on what effect (if any)
unrepresented defendants have on the court
process; and
• practitioners’ views on how the court
experience could be improved for
unrepresented defendants.

Findings
The findings from the interviews were grouped under
several themes in the analysis, and these are
reflected in the headings below.

Features of unrepresented cases
The majority of judicial and CPS interviewees
perceived unrepresented defendants as the
exception rather than the rule at trial. Some
1

2

There were also changes in family law legal aid at a similar
time. MoJ has previously published research looking at
litigants in person in family law cases.
https://www.gov.uk/government/publications/litigants-in-personin-private-family-law-cases

4

Representation is classed as defendants who were known to
be represented by a barrister at first hearing.

5

https://www.gov.uk/government/uploads/system/uploads/attac
hment_data/file/533097/criminal-court-statistics-jan-mar2016.pdf

6

3

2

The interviews were conducted by MoJ social research
analysts. All interviews were recorded and transcribed with
the permission of the interviewee. The transcriptions were
coded and prevalent themes identified. The findings section
and headings are drawn from this research.
Defendants were not interviewed as the focus of the research
was on how unrepresented defendants may affect the judicial
trial process.
One judicial interview was conducted face-to-face. All other
interviews were conducted by telephone.

 • defendants who had been told by their lawyers
to plead guilty and they had then sacked their
lawyer; and

interviewees perceived unrepresented defendants to
be more frequent at pre-trial hearings (although still
rare) and others perceived them as more frequent at
breach hearings.

• defendants who did not trust the criminal
justice system and therefore chose to
represent themselves.

Changes in number of unrepresented
defendants

For the second group – those unrepresented
because of issues with legal aid – the interviewees
felt these defendants perceived the level of
contribution as too high. Interviewees felt selfemployed defendants had particular problems
proving their level of income.

The majority of interviewees believed that the
numbers of unrepresented defendants had risen
since legal aid changes, although the rise was seen
as small. Some interviewees explained that they
thought the changes left more people unable or
unwilling to pay for legal representatives with the
result that they had to represent themselves.

Level of understanding

Offence type

Unrepresented defendants were seen as having
varied but limited understanding of the court
process. Some CPS interviewees went further,
highlighting issues such as unrepresented
defendants not understanding how to present
evidence about their case at hearings, how to
prepare defence statements or how to ask questions
in court.

There was a lack of consensus on whether there
were particular cases that were more likely to have
unrepresented defendants. No particular case type
was identified but some interviewees thought that
unrepresented defendants were more common in
cases that had a ‘personal’ element to them. These
included domestic violence or neighbour disputes
where it was felt defendants believed that they
would have an advantage over witnesses by
representing themselves.

Efficiency
A consistent theme emerging from the interviews
with the judiciary and CPS was the perceived
disruptive impact of unrepresented defendants on
CJS efficiency in the Crown Court. They felt that
unrepresented defendants had a disproportionate
effect on court efficiency.

Types of defendants
Interviewees consistently made a distinction
between two main types of unrepresented
defendant:
• those who choose to be unrepresented for
non-financial reasons; and

Pre-trial
A defendant’s legal defence team or counsel would
normally engage with the CPS prosecutor for the
case prior to the initial pre-trial hearing. This did not
appear to occur with unrepresented defendants in
the same way.

• those who do so because of legal aid/funding
issues.
The two groups were seen as posing distinctly
different challenges to the court process.
Most interviewees commented that those who
choose to represent themselves for non-financial
reasons fell into two sub-groups: those individuals
perceived as having mental health issues or those
who were determined to represent themselves
regardless. Interviewees felt both of these subgroups were unaffected by changes to legal aid.
Instead they proposed a number of alternative
explanations for why these individuals were
unrepresented including:

Most of the CPS interviewees said that they were
unable to prepare for unrepresented defendants as
they were not forewarned. This posed particular
issues when defendants faced charges on sensitive
issues.
Some CPS interviewees said that they tried to help
unrepresented defendants and engage with them
pre-trial, explaining the CPS’s role and what the
CPS would be arguing. Other CPS interviewees
maintained that they were the ‘other side’ and that
therefore there was a limit to the extent to which
they could assist an unrepresented defendant. They
reported not wanting to discuss aspects of their case

• defendants who thought they knew better than
lawyers did;

3

 directly with the defendant and run the risk of
appearing to encourage the unrepresented
defendant to plead guilty. The CPS interviewees
frequently said that they asked the judge to tell the
unrepresented defendant to appoint a solicitor to
represent them so that they could serve
documentation on the solicitor.

They were conscious that their involvement should
not stretch into an inquisitorial role.
Number of hearings
Most interviewees believed that unrepresented
cases resulted in more hearings and more
adjournments than those with representation.
Reasons stated included:

Length of hearings

• to allow the defendant time to find
representation; and

Most interviewees thought unrepresented hearings
took longer than those with a legal representative. A
variety of reasons were given as to why.

• to allow the defendant to get legal aid.

• Court processes, legal practices and legal
concepts had to be explained to the
unrepresented defendant. This interrupted the
normal proceedings, slowed down the process
and judges had to pause frequently to check
that the defendant understood.

All the judges interviewed expressed a very strong
preference that a defendant facing charges should
be represented. They were willing to delay a hearing
if there was any chance that representation could be
obtained.
Additionally, some interviewees stated that
unrepresented cases incurred a greater number of
hearings because certain aspects of the case could
not be organised outside court hearings easily.
Reasons given for this included:

• Practical adjustments had to made, such as
moving the defendant from the dock so they
were fully participating in proceedings.
Unrepresented defendants were allowed to sit
towards the back of the barristers’ benches.

• problems in obtaining a defence statement;

• Some matters could not be resolved outside
the court hearing, such as advance agreement
of which evidence to submit. This created
more work during hearings and could also
increase the number of hearings.

• defendants not being prepared for hearings;
• to allow defendants more time to understand
evidence; and
• to give them time to serve their own evidence.

• Unrepresented defendants were prone to overparticipation and lack of clarity and were more
likely to raise points not related to their case;
some gave long speeches that were not
focused on the relevant issue; and the court
was presented with lots of irrelevant
correspondence which had to be sifted through
to find relevant evidence.

Length of trials
Most interviewees believed trials lasted longer when
defendants were unrepresented. Some interviewees
estimated that trials could take at least twice as long.
The reasons for this were similar to those given for
an increased number of hearings, but trials that
involved juries and witnesses added another level of
complexity.

• Defendants could be very disruptive during
hearings by, for example, continually talking
over others.

Disclosure

• Court staff were likely to have to respond to
repeated enquiries from the defendant.

Disclosure – disclosing the evidence relevant to the
contested points – in unrepresented cases was seen
as difficult by most interviewees. A variety of
reasons were given including:

• Juries were sent out more frequently so judges
could give additional advice to the defendant
without risking influencing the jurors’ view of
proceedings.

• unrepresented defendants not understanding
the concept of disclosure;
• defendants not knowing what to ask for; and

One judge said judges may feel constrained to give
advice to such defendants and this could present a
key problem for the adversarial system of justice.

• defendants not setting out their argument.

4

 • regularly sending the jury out so matters could
be discussed without influencing them. This
was said to lead to delays.

Interviewees felt that problems appeared to stem in
part from unrepresented defendants not being in a
position to engage with the CPS properly due to
their lack of legal training. They also felt
unrepresented defendant’s distrust of the CPS
stopped them releasing documents.

The perceived effect on witnesses
Most interviewees expressed concern about the
perceived effect of unrepresented defendants upon
witnesses. The most common reason for concern
was cross-examination and how unrepresented
defendants might behave while conducting it.
Interviewees gave examples of defendants being
aggressive, rude and asking unnecessary questions.
The common perception of these interviewees was
that this led to an unpleasant cross examination
experience for witnesses. Some judicial interviewees
described how they had to control unrepresented
defendant’s behaviour in these situations, and tread
the line between allowing the defendant to put
forward their case and preventing harm to
witnesses.

The CPS interviewees also reported difficulties in
serving evidence on unrepresented defendants; for
instance, not knowing whether they had the
defendant’s correct address, or defendants saying
they had not received the papers.

Perceived effect upon other
practitioners
Perceived engagement with a barrister
Some of the judicial interviewees discussed
unrepresented defendant engagement with
barristers during the trial. Several said barristers
tried their best with unrepresented defendants, but
one interviewee noted that this was difficult for the
barrister as it challenged their role of leading the
prosecution. Another interviewee said that
unrepresented defendants’ behaviour towards
barristers varied from openly hostile to collaborative,
and the approach adopted was perceived to affect
the engagement between the two parties.

A small number of judicial interviewees discussed
how they thought unrepresented defendants could
lead to wasted time for witnesses. Unrepresented
defendants were perceived to call witnesses to trial
unnecessarily as they did not understand who
should give evidence.

Outcomes and pleas

The perceived effect on the jury

Judges interviewed mentioned problems in
discussing the concept of pleas and discounts to
sentence with unrepresented defendants. This was
because they did not think that someone without
formal legal training could understand these
concepts as easily. They felt it was difficult to explain
them to the unrepresented defendant without
appearing to tell them to plead guilty.

A number of concerns were raised by judges about
the potential for unrepresented defendants to affect
the neutrality of the jury in trials. Some interviewees
said that an unrepresented defendant could,
depending on their behaviour, affect the jury either
positively (for instance, generating sympathy) or
negatively (for instance, creating a sense of irritation
among jurors).

Despite their concerns about neutrality of juries,
most of the interviewees thought that unrepresented
cases saw the same outcomes as represented
cases; some elaborated by saying that the outcome
might take longer to achieve but would still be the
same. Others thought there might be more chance
of unrepresented defendant cases going to trial.

One interviewee said there was a risk that an
unrepresented defendant might say inappropriate
things or make remarks at inopportune moments,
and such actions could unreasonably prejudice legal
fact-finding. A small number of judges went further
into how, because of this, they had to operate the
trial in a different manner. For example:

A few judicial interviewees said it was impossible to
assess whether the outcomes were any different.
Other interviewees felt a higher proportion of guilty
verdicts resulted from unrepresented defendants’
cases.

• explaining to the jury why they had to keep
stopping the unrepresented defendant while
they were presenting their case;
• talking to juries at the outset about the
situation, the judge’s role, and that the jury
should not treat the defendant differently; and

Some CPS interviewees said that they were
concerned that an unrepresented defendant might

5

 not get a fair trial, as they were not properly qualified
to put their case forward. Conversely, one
interviewee did not think unrepresented cases were
fair on the CPS due to the judicial adjustments and
perceived effect on jurors mentioned earlier.

defendants were so set on their way of doing things
that they would not listen to advice.
Better Case Management
A judicially‐led initiative known as ‘Better Case
Management’ (BCM)7 was introduced throughout
England and Wales on 5 January 2016. The
initiative is designed to help to deliver speedier
justice in both magistrates’ courts and the Crown
Court and includes a national Early Guilty Plea
(EGP) scheme and the Plea and Trial Preparation
Hearing (PTPH). PTHP aims to enable early
engagement between all participants in proceedings
and so increase the number of cases brought to a
conclusion in a single effective hearing.

Suggested solutions
Most interviewees mentioned the informal help they
and court staff might give an unrepresented
defendant, such as explaining what was happening
or what to expect. The CPS interviewees also
mentioned other forms of support that
unrepresented defendants were offered. These
included court staff advice on process, local
members of the bar offering advice and lawyers
working before any legal aid had been granted.

When asked if unrepresented defendants could be a
barrier to the planned BCM scheme, over half of
judicial interviewees believed they could. Some did
not think unrepresented cases could be dealt with in
the reduced number of hearings under BCM. One
interviewee was sceptical about BCM as it assumes
better engagement between defence and
prosecution which they did not see as possible in
unrepresented defendant cases. A few interviewees
said matters could not be resolved at a single
hearing as it took time to understand the case an
unrepresented defendant was putting forward. Other
interviewees did not think unrepresented defendants
would be able to access evidence or serve papers
as the system becomes digitalised.

Suggestions for further/future support

A variety of suggestions about how unrepresented
defendants could be supported further were given
by interviewees. One such suggestion was that
leaflets or videos might help explain to them the
‘goings on’ of the court and its processes and what
was expected.
A number of suggestions focused on access to legal
representation including:
• a duty solicitor scheme, like that of the
magistrates’ courts;
• giving defendants access to someone with
legal training, who can give them advice and
help on matters such as assessing strength of
evidence; or

CPS interviewees also thought unrepresented
defendants could pose issues for BCM. One
thought they would pose the same problems for
BCM as they did to the current system. Others
believed that BCM could make things better as
proceedings should be more uniform and better
recorded.

• employing legal representatives on an ad hoc
basis.
Other proposals focused on helping the courts and
its practitioners to manage unrepresented
defendants better. These included:
• judicial discretion to grant representation
where appropriate, suggesting this would be
cost-effective as particularly difficult
unrepresented defendants took a lot of court
time; and

Conclusion
The findings from this explorative study based on
interviews with 21 Crown Court legal practitioners
showed that there were perceptions of different
types of unrepresented defendants who had
different needs and posed different challenges to the

• training for newly qualified prosecutors on how
to manage unrepresented defendants so that
they would feel more comfortable dealing with
them.
A couple of interviewees said nothing could be done
to support a defendant if they chose to represent
themselves. This was because they believed these

7

Please see: https://www.gov.uk/government/news/crime-newsbetter-case-management-rollout-and-new-guidance.

6

 court8. A consistent theme emerging from the
interviews with the judiciary and CPS was
unrepresented defendants’ disproportionately
disruptive effect on CJS efficiency in the Crown
Court. This was attributed to unrepresented
defendants having a large impact on efficiency
relative to their low numbers in comparison to cases
where defendants were represented.
Unrepresented defendants were perceived to
lengthen hearings and the process as a whole;
overall case length was seen to be longer.
Interviewees suggested that this was because a lack
of understanding among unrepresented defendants
limited their participation in court activities. This
affected other practitioners within the court. Judges
and prosecutors adjusted how they conducted
hearings, generally slowing them down. In addition,
unrepresented defendants were seen as a barrier to
achieving early guilty pleas. Interviewees also
expressed concern about unrepresented
defendants’ effect upon witnesses, with particular
concerns about the cross-examination process.
On the basis of this small study, the policy
implications are likely to be:
1. Ensuring that unrepresented defendants are
considered more explicitly and consistently
within the MoJ’s efficiency programmes and
reforms. For instance, MoJ policy delivery
teams need to look at the impact of
unrepresented defendants when collecting
management information data for schemes
such as BCM.
2. Working with CJS partners such as the Judicial
Office, HMCTS and the CPS to look at best
practice in handling unrepresented cases in the
Crown Court.
3. Continuing to monitor the number of
unrepresented defendants and their impact
over time. Then, if appropriate, assessing and
costing options to mitigate any negative impact
of unrepresented defendants in the Crown
Court.

8

Similar themes were found by the previous MoJ study looking
at litigants in person in the civil courts. .
https://www.gov.uk/government/publications/litigants-inperson-in-private-family-law-cases

7