Research shows right to a fair trial can be in danger if individuals go to court without legal representation

Report calls for cultural change and enhanced provision of information that will improve understanding of court procedures, processes and overall experience of going to court without a lawyer.

New research led by Ulster University Professor of Law and Social Justice Gráinne McKeever explores the barriers people face when they go to court without a lawyer. The research, in association with the NI Human Rights Commission and funded by the Nuffield Foundation, finds that those without lawyers will face barriers that can impact on their right to a fair trial.

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.”

Chief Commissioner of the Northern Ireland Human Rights Commission, Les Allamby, commented:

“Effective access to justice engages human rights. The research highlights the difficulties individuals face in trying to represent themselves in court. The recommendations provide a road map for lawyers, judges, administrators and personal litigants to tackle the issues identified. It is in all our interests to improve the experience for the thousands of people who have to represent themselves and to ensure justice is both done and seen to be done.”

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.”

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Notes

From September 2016 to August 2017, researchers from Ulster University collected data from people who were representing themselves in the civil and family courts in Northern Ireland.

• The participants included:

o 179 LIPs: 49 women, 126 men; 3 couples and 1 group counted as one LIP each.

o 13 members of the judiciary

o 7 legal representatives

o 11 members of Northern Ireland Courts and Tribunals Service

o 5 Court Children’s Officers

o 3 people who act as McKenzie Friends

• Civil and family law in Northern Ireland is similar to that of England and Wales; Scotland has a different legal system. The provision of legal aid in Northern Ireland also operates in a similar way, with means and merits tests determining whether individuals are eligible. What is different in Northern Ireland from England and Wales, however, is the scope of legal problems that are covered by legal aid. In England and Wales, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 drastically reduced the type of legal problems that legal aid covers. This legislation does not apply in Northern Ireland and so the type of legal problems that are covered here are similar to those that would have been covered in England and Wales prior to 2012.

• The similarities between the Northern Ireland legal system and other jurisdictions in the United Kingdom, and internationally, means that findings and recommendations made in this report will have broad reach across other systems. The disadvantage of the distinctive elements of the Northern Ireland legal system, however, is that LIPs may not be aware of these distinctions and rely instead on resources that are not relevant or applicable in Northern Ireland.

• The Nuffield Foundation is an independent charitable trust that funds research and student programmes to advance educational opportunity and social well-being across the UK. The research we fund aims to improve the design and operation of social policy, particularly in Education, Welfare, and Justice. Our student programmes provide opportunities for individuals, particularly those from disadvantaged backgrounds, to develop their skills and confidence in quantitative and scientific methods. We are financially and politically independent, but often work in partnership with other organisations that share our aims and interests. www.nuffieldfoundation.org/ @nuffieldfound

• The main report and the summary report, along with five briefing papers, are available at: www.ulster.ac.uk/litigantsinperson