No legal system can be truly just without the respect of the society in which it operates. The victims of a criminal being led away to begin their sentence can only feel that justice has been done if they respect the system which has enacted the punishment. Law without respect is a good definition of tyranny.
So it is vital for the law to command the respect of all who pass through the doors of a courtroom – and to do so through wisdom and authority rather than just fear of being found in contempt of court.
But how do you radiate authority to people who have no grasp of the law in all its complexities? You do it with visuals and atmosphere – with ermine and robes and wigs and the bench and formal terms of address like ‘Your Honour’.
Respect for the law is personified in the figure of the judge, the central figure in any court. But it should never be forgotten that behind the judicial robes there is a human being, one with a highly complex and responsible job. He or she must sit through every minute of often long and complicated cases, grasp and apply all the relevant laws and issue rulings and judgements thought to be fair and just by the majority, at least, of those involved in the case.
That is not an easy task. In an intriguing press conference at the end of last week, the Lord Chief Justice, the Lord Judge highlighted one challenge faced by judges up and down the land every day:
“The judge, contrary to some popular idea, does not know all the law. He does not go into court with 25 cases in his list and know the law applicable to every case. He does not. He needs help. He needs to be shown where to find the law.”
In other words: judges may be “learned in the law”, to borrow a phrase from the description traditionally applied to Queen’s Counsel, but they are not walking legal encyclopedias.
The Lord Chief Justice was discussing the rise of the ‘litigant in person’, i.e. individuals or organisations who appear in court with no legal representation. When this occurs from the beginning of proceedings, it is frequently for financial reasons: i.e. the litigant in question cannot afford legal representation and can no longer access Legal Aid.
Once a relatively rare figure, the litigant in person has begun to proliferate in the courts. In the words of the Lord Chief Justice:
“Where you have two self-represented litigants, life becomes very difficult indeed, and up and down the country, particularly in civil cases, district judges have long lists in which both sides are now self-represented. The cases take much longer and they are much more difficult for the judge.”
Such cases are slower and more difficult for the judges because the litigants will have, at best, a slight acquaintance with the law relevant to their case. The judges cannot rely on the assistance of the barristers and solicitors present in conventional cases when it comes identifying the relevant laws. He or she must do much of the heavy lifting themselves, always carefully conducting such cases with an eye to the inexperience of the average litigant in person.
Now that Legal Aid has gone the way of the dodo, those of us who work within the law have been left awaiting the inevitable torrent of litigants in person with trepidation, and not just because they will gum up the wheels of justice, as the Lord Justice has highlighted.
Earlier this year the Law Society issued guidance for solicitors on dealing with litigants in person. It distinguishes between those who may choose to litigate in person and do so with some knowledge of the law, and those who:
“…feel that they have no other option but to represent themselves because they cannot afford to instruct a solicitor and have not been able to obtain free legal advice. Those in this situation may not have any comprehension of the legal process, nor are they able to form an objective assessment of their own case.”
The documents sets out clear ethical guidelines for interactions with litigants in person (LiPs), noting for example:
“You should be mindful … that correspondence and telephone calls from some LiPs may be emotive, repetitive, and potentially hostile. Responses should be relevant, measured and calm; ‘tit-for-tat’ tactics should be avoided, and you should behave in a manner of which the court would approve. This includes treating LiPs with courtesy and in a way that any ordinary person would regard as fair and reasonable.”
I predict that as litigants in person become ever more common within the court system, allegations of bullying and taking advantage levelled against legal professionals will become routine. How will the legal profession respond?
Judges are supposed to sit impartially in an adversarial system and consider legal points being made to them by the counsel for both sides. The bottom line is this: our legal system is built for lawyers. It’s time we all admitted this. You can’t operate without a surgeon and you shouldn’t really go to court without a lawyer.
Of course Judges and other legal professionals will do their very best to help litigants in person, but with no proper legal representation or advice the self-represented will always be vulnerable and at real risk of injustice and misfortune. Sooner or later the government will have to face up the challenges they pose.