Mental Health, Autism & Learning Disabilities in the Criminal Courts

Information for magistrates, district judges and court staff

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d. Unrepresented defendants

There are various reasons why people either choose or have to represent themselves, rather than instructing a lawyer. For many, it is because they do not qualify for Legal Aid Agency funding, which is becoming increasingly difficult to secure.

While most unrepresented parties are likely to be anxious, vulnerable defendants are likely to be especially so – or conversely, might believe they are in full control of the situation. Most may be unaware of basic legal principles and court procedures, and are likely to be experiencing feelings of fear, ignorance, frustration, bewilderment and disadvantage.

Magistrates’ courts operate ‘duty solicitor schemes’ which provide advice and representation to defendants facing criminal proceedings. It is not uncommon for a court usher to refer an unrepresented defendant to the duty solicitor. The court duty solicitor can only provide advice to a defendant who:

  • is in custody, or
  • is charged with an offence which carries imprisonment, or
  • appears for non-payment of a fine and is at risk of receiving a custodial term for default in payment.

Part of the role of the duty solicitor is to give advice on the general availability of legal advice and assistance. If it is appropriate, the duty solicitor can assist the defendant in completing an application for a Representation Order (commonly referred to as ‘Legal Aid’). Publicly funded representation can only be granted if the defendant can show that one or more of the statutory reasons for granting a Representation Order apply in the case. One of the reasons is that the accused person may be unable to understand the proceedings or to state his own case, which may apply to defendants with learning disabilities, mental health problems or autism.

Duty solicitor schemes are under increased pressure with cuts to Legal Aid Agency funding. It is now even more important to be aware of potential vulnerability and communicate effectively with defendants and refer to liaison and diversion services when needed. Some defendants will still refuse representation, but it is your role to ensure they have had a fair chance to justice.

“Having read the resource, I am much more aware of my responsibility to provide for the fair delivery of justice to defendants with mental health conditions or learning disability.” Verna Nosworthy, magistrate

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