CHAPTER THREE LEGAL REPRESENTATION
When a case acually comes before the court, the presence of a lawyer is almost always essential. Everybody is entitled to apply for legal representation under the legal aid system.
However, application for legal aid is rarely advised or encouraged by the police. No help is given to people so that they would know how best to fill in a legal aid form, and if a plea of "guilty" is anticipated by the magistrate, he is more than likely to refuse legal aid.
Legal aid should be applied for at the first opportunity. This would be in the first appearance at the magistrates' court. A request for legal aid must be made to the magistrate, as he directs the court procedure and he alone grants the request. Anything that is said in court should always be said to the magistrate, and it is not wise to pay attention to the advice given by the pollce: It is more than likely they , have said that a solicitor is not necessary. Our experience proves exactly the opposite is true.
The magistrate's power to make a decision on granting legal aid is quite arbitrary. It is impossible to know beforehand whether or not legal aid will be granted. If there is a refusal, it is legally possible to reapply. A solicitor can also make an application on behalf of the client.
Many people go through a first court appearance not realising they can obtain advice. If they are remanded on bail, it is possible that they will be in contact with someone who knows more about the legal system and will inform them of the importance of consulting a solicitor. When a case has been remanded and there has been no application for legal aid, it is still possible to return to the court to make a specific application for legal aid. However, before doing so, it is advisable to find a solicitor who will accept the case. If the defendant does not know a solicitor himself, one can be randomly selected for him by the Clerk of the Court. Unfortunately for the defendant, this usually means that the solicitor is well known by the court and the police, and he may be respected by them for reasons which are not beneflcial to the clients.
One should aim to be in the Clerk of the Court's office as soon as the court opens at 10 a.m. The legal aid form can then be completed, the name of a solicitor who is known to be good filled in on the form, and an application made to the magistrate before the remand cases are heard. These are always heard first. If an application is not heard before the court business begins, time will be wasted waiting until there is a convenient interval in court procedure.
If a person is remanded in custody, it is possible to ask the Governor of the prison or remand home for a legal aid form. Once this form has been completed, it is sent to the court where the clerk inserts the name of a solicitor in the space provided. It is also possible to write to a friend outside the prison who can get in 'ion& wltha'solititot and people in prison can use this means to obtain a solicitor of their own choice.
A person on remand can be visited every afternoon by his friends. Solicitors are able to see their clients as often as is - necessary. Nonetheless there is the risk of solicitors not being able to take on the legal aid cases that have been allocated to them, as prison staff are very overworked and the extra work of legal aid forms adding to an already busy day can lead to delays. If a prisoner is worried that letters to courts or friends are being delayed he should ask the Prison Welfare Officer to make enquiries. These considerations indicate that applications for legal aid should not, if at all possible, be delayed until one is already remanded.
We believe that for any crime, which is 'considered serious enough to bear the penalty of a prison sentence on a first offence, a solicitor should be automatically available to a defendant. People ought not be sent to prison without being legally advised, and magistrates and judges should be prevented from arbitrarily refusing legal aid.
We have had a large number of successes — cases dismissed or cases with results less severe tletn might have been expected — because of the presence of defence lawyers. When a defendant has someone else to speak on his behalf, whether a probation officer or a lawyer, the judge is presented with more details on which to base his decision. Lawyers are trained to present facts clearly and their presence encourages the police to present more accurate accounts for their allegations. When the police know that a person is being defended, they are more discriminating in the charges they do press. Lawyers can make arrangements with the police and are often successful in getting charges dropped before cases come to court. A lawyer may offer immunity to obstructive police behaviour, shielding his client from the severity whick_ Is the most usual treatment received by undefended 014 before the courts.
A lawyer may also prevent his client from experiencing the full force of hostile or prejudiced reactions of magistrates who cannot handle drugs cases in a fair manner because of their own personal opinions.
In nearly all the cases we have handled, the police have made it very difficult for people in their custody to make contact with friends or legal advisers.
"I asked for bail. I was refused. I don't know why. I tried to phone you (Release) but was refused."
One can only conclude that this obstruction is deliberate, in order to prevent arrangements being made for bail and defence. A young person in custody who has been denied access to a telephone is much more easily subdued and induced to plead "guilty".
It is disturbing to find how important class still is in the legal system. The chances of a defendant going to prison or borstal are increased if his education is limited and his background working class. We very rarely hear of a respected member of the upper class being charged with a drugs offence. Prison sentences for persons of such a background are even rarer. Young people of the working class are at a definite disadvantage when compared to the situations of their contemporaries of a higher status. They are more easily intimidated by authority and accept the advice of the police more readily. People with a higher education are more capable of speaking for themselves and are better equipped to gain access to a lawyer.
It became obvious to us that the presence of a defence lawyer in court makes it imperative for the police to present an accurate, detailed account of the offence alleged to have been committed. In a few cases, the police did not submit evidence when it was established that the case was to be defended. When the prosecution has proceeded with a defended case, the results were much less severe than were to be expected If no lawyer had been available to make a plea of mitigation.
Lawyers may also protect defendants from the findings of magistrates who, if not actually prejudiced and biased, are often capricious.
"To get it over with quick we pleaded guilty, thinking we. would get a fine or suspended sentence as it was our first offence. You can imagine how we felt when we were sentenced to six months' imprisonment. I was reading a few cases in the paper about drug offences. It made me really sick when I read about this guy who had been placed on probation for having cannabis. He goes to court again for the same offence and he gets fined £20. I really think it's unfair that one man gets the `bird' and that another gets a fine for the same offence. I'm nearly convinced now that if a judge doesn't like your face, well, it's just too bad."
If a person is legally represented, his defence can be adequately explained to the magistrate who may then feel that a minimum sentence, probation, absolute discharge, conditional discharge, or a small fine is most appropriate for the particular offence under consideration.