Right to a fair trial can be in danger if individuals go to court without legal representation

14 September 2018

People who go to court without a lawyer face barriers that can impact on their right to a fair trial, according to a new Nuffield-funded study by Ulster University. 

The first study of its kind in Northern Ireland, researchers explored the experience of those who take or defend civil and family law cases without legal representation, to understand the impact of self-litigation on the court system and the impact on an individual’s human rights when litigating without representation by a legal professional.

The research revealed there are a number of reasons why an individual would represent themselves in court. The main reasons were financial, especially for those who were not eligible for legal aid, and because the cost of legal representation was seen to be too high. Some individuals chose to represent themselves because of a negative experience of legal representation in the past or because they felt it was something they could do themselves.

Many litigants in person faced problems with completing and submitting the appropriate paperwork, as well as understanding the legal arguments in their case. The research identified a significant lack of public information and advice on the practical, procedural and legal issues relating to court proceedings.

Ulster University researchers worked with the NI Human Rights Commission to trial an innovative procedural advice clinic for individuals representing themselves in matrimonial or family law cases. Procedural advice is neutral advice or information that is intended to inform a person’s decision. It helps the person think through their options and decide for themselves the best approach to their case. This is different from legal advice which looks at the merits of the person’s case and suggests a legal strategy.

One of the litigants who attended the clinic spoke about the reassurance and confidence that the procedural advice provided: “It is quite stressful being in court, and you’re scared of saying the wrong thing. It did give me a good guideline of when I should speak and, you know, what to do, and, you know, it was such good advice. So, so, good.” What many of the clinic clients appreciated was “A wee bit of empathy, and a bit of sympathy.”

Lead investigator Professor Gráinne McKeever commented; “The research shows there is a clear need for a cultural change in the legal system towards litigants in person. We recommend putting those who wish to self-represent at the centre of the development of reforms alongside dedicated training to support judges and lawyers to provide recognition that individuals have a right to self-represent and should be supported to do so.

“The creation of a central information hub is advised where a qualified lawyer can provide procedural advice as early as possible in the process to help people who go to court without a lawyer to participate effectively in their court proceedings.

“Although the help of the advice clinic was not enough to help litigants in person match the advantages of legal representation in most cases, there is clear evidence that improved access to legal services, better information on court procedures and relevant law, as well as guidance on how to complete court forms and documents would remove many of the barriers that threaten the right to a fair trial.”

Robert Street, Director of Justice at the Nuffield Foundation said:

“This research shows that people who represent themselves in court can be disadvantaged on a number of levels, and that has serious implications for their right to a fair hearing. The recommendations offer practical ways these barriers to effective participation can be addressed through improved access to services and information, as well as cultural and administrative changes in the courts. There are also lessons for England and Wales, where the number of litigants in person has been increasing since the changes in legal aid eligibility.”