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Ulster University 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.”