How to tell it to the judge

Defending yourself in court is not an easy feat. But with legalaid shrinking, the number of lay litigants is growing fast.

Robert Verkaik looks at DIY lawyers

The Independent, August 23, 1995

There are days when David Morris feels as though he's caught up in a Kafka-esque nightmare. As one of the " McLibel Two", he is a litigant in person (LIP) who can't afford legal help but has spent the past five years representing himself in the longest libel case in history.

Mr Morris and his co-defendant, Helen Steel, are being sued by McDonald's for distributing a leaflet highly critical of the fast-food chain. Although their case is exceptional, Mr Morris and Ms Steel are in a legal predicament that has become increasingly common. LIPs now account for one in three cases brought before the Court of Appeal, compared with one in 10 five years ago.

The " McLibel" case began in 1991, leading to 28 pre-trial hearings before the proper start of the trial in June 1994. It is not expected to end until later next year.

Mr Morris, a single parent reliant on state benefits, has spent more time speaking in court than many junior barristers.

"There's no written guidance for litigants in person and there's no obligation on the courts to provide guidance or information about what's going on," Mr Morris warns.

The first pre-trial review, Mr Morris says, was supposed to outline procedure, "but when we asked when we could speak, the judge shouted back, 'If you don't know, you should be represented'. Clearly, the courts are embarrassed by people like us. Members of the public are either there as witnesses or victims." He describes his experience as "extremely stressful and intimidating".

The judiciary is presiding over more and more cases like Mr Morris's, unravelling the mysteries of legal procedures to the lay litigant. In a recent report by a Judges' Council working party into LIPs in the Royal Courts of Justice, council members urged the Bar Council and Law Society to embark on urgent action. The 60-page report recommends the establishment of a "court-based agency" within the RCJ to help LIPs and an "enhanced" Citizens' Advice Bureau. This would be provided on a pro-bono basis by both solicitors and barristers.

Pamela Lloyd-Hart is the manager of the RCJ CAB. She is normally the first point of contact for unrepresented litigants. She says their number has recently "escalated". Some appear in court for the very first time without any documentation. "In these cases," she says, "we will go through the salient points they need to put before the judge. If they can't express it themselves, then we will write it down."

Where LIPs have not followed correct procedures, says Mrs Lloyd-Hart, judges will often adjourn cases for half an hour so that they can get help from CAB advisers.

Some LIPs receive help from other sympathetic lawyers. Keir Starmer, a human rights barrister of Doughty Street Chambers, continues to provide free help and advice to both Mr Morris and Ms Steel. Mr Starmer gave the few hours of Green Form advice at the start of their case. After that no further legal aid is available in libel actions.

Both defendants have had to get used to performing quickly a variety of legal tasks, from photocopying to cross-examination.

As the material mounts up - 20 lever-arch files of documents so far - Mr Starmer says it is impossible for the defendants to keep on top of the material without proper back-up. In an adversarial system he would like to see a duty being placed on the judge to explain the legal procedures to the LIP.

In response to the growing numbers of DIY litigants, the National Council for Civil Liberties is publishing a guide to defending oneself in court. It has been written by Michael Randle, one of two men who helped the spy George Blake to escape in the Sixties; he then went on successfully to defend himself when he was acquitted on criminal charges brought 25 years later.

Mr Starmer believes the reason so many more people are now taking their own cases to court is because legal aid is "shrinking" and solicitors are just too expensive.

John Wadham of Liberty - Mr Randle's solicitor, who advised him during the trial - identifies another group that chooses to represent itself: "There are also politically motivated individuals being prosecuted for their activities, for example, road protesters."

Some people clearly feel there are advantages to dispensing with lawyers in court. Michael Randle managed to convince the jury that he should be acquitted of both helping a prisoner to escape and harbouring a prisoner, despite admissions made in a later book about the affair.

Says Mr Wadham: "He knew the case backwards and was passionate about the decision to free George Blake and that can only come from the person concerned."

David Morris, who has been denied a jury, sees few benefits to being an LIP, but says: "The reality of the dispute is more honest when real people are having the arguments rather than one smooth lot of barristers on one side and one smooth lot on the other."

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