Unrepresented parties
1. Overview
In contrast to tribunals where unrepresented persons are often the norm, most parties are represented in courts. Given the divergence between the practice in courts and tribunals and that many parties in tribunals are unrepresented, this chapter is mainly aimed at dealing with party litigants in court.
Where there are allegations of abuse against the party litigant
Sources of help and guidance for a party litigant
Legal aid
Law centres and other bodies
Written guidance
Lay representative
Lay supporter
Expenses and party litigants
Solicitors firms
AppealsUnrepresented accused in criminal cases
Introduction
Prohibition on accused representing themselves
Intermediate diet in case of unrepresented accused
Unrepresented accused appearing from custody
Disclosure for an unrepresented accused
Plea of guilty by unrepresented accused
Trial with an unrepresented accused
Criminal record of accused
Protecting the interests of witnesses
Sentencing an unrepresented accused
Interpreters
Disruptive accused
Vexatious litigants
Children’s hearings pppeals
Freemen on the land and ‘Scottish sovereigns’
2. Introduction
There is no general rule preventing natural persons representing themselves in tribunal or courts, in civil or criminal proceedings. A natural person may do so by choice, because of difficulties in obtaining legal aid or in obtaining a solicitor willing to act. Whatever the reason, “party litigants” (as they are generally referred to in Scotland) can face difficulties in presenting their case and do raise issues for the court.
Party litigants are unlikely to understand practical issues, including where to sit, when to sit or stand and how to address the court. They may not be able to express themselves orally or in writing or understand how to plead a relevant case. Many party litigants deal with examination of witnesses by making statements rather than asking questions. They are unlikely to understand the rules of evidence and may be surprised when told it is not good enough simply to say: “If you phone up Mr Smith he will confirm what I have been saying”.
Party litigants might not understand the need for expert evidence, or to have documentary and other productions lodged in court, copied to the opponent, and agreed or spoken to. They may not understand that a case may be dismissed as incompetent, irrelevant, or lacking in specification without a single word of evidence having been heard. Whilst some assistance on procedural issues can be given by clerks, that should not extend to legal advice.
Against that background, difficult questions arise as to the extent to which a party litigant should be guided by the judiciary or given dispensation for a failure to comply with the rules. The answer might depend on the judicial setting and the specific rules, the issue to be determined, the ability of the party appearing without representation to present their case, and the interests of their opponent.
3. Unrepresented parties in tribunal proceedings
In most tribunals, applicants and some respondents commonly represent themselves. Others have representation or support from lay representatives including welfare rights officers, family members, union representatives, the CAB or a university law clinic, depending on the tribunal and location.[1]
The Tribunals (Scotland) Act 2014 created a statutory framework for the First-tier Tribunals and an Upper Tribunal. There are six chambers of the First-tier Tribunal:
the General Regulatory Chamber[2]
the Health and Education Chamber[3]
the Housing and Property Chamber[4]
the Social Security Chamber[5]
the Tax Chamber[6]
the Local Taxation Chamber[7]
In addition to the tribunals sitting within the structure created by the 2014 Act, the Mental Health Tribunal for Scotland, the Pensions Appeal Tribunal and the Lands Tribunal for Scotland hear a vast number of cases a year, administered by staff and clerks from SCTS.
Generally, tribunals use two approaches to encourage participation by unrepresented parties: the inquisitorial approach and the enabling approach.[8] Tribunal rules are generally drafted to enhance participation, particularly by unrepresented parties.[9] Often such rules often have an overriding objective. For example, the Housing and Property Chamber has an overriding objective to deal with proceedings “justly”[10] defined by several factors (including avoiding delay, seeking informality and flexibility, trying to achieve an equal footing and participation, and using the expertise of the tribunal).[11] Rules may require the tribunal to assist with the presentation of the case but without advocating the course parties should take.[12]
Jacobs ‘Tribunal Practice and Procedure’ contains a useful discussion as to how the role of tribunals differs from courts, and what concepts such as fairness mean in practice.[13]
4. Examples of good practice in tribunals
Given the diversity of practice within different tribunals, and the often well-established culture that each tribunal has in encouraging participation by unrepresented parties, the focus of this chapter is on unrepresented parties in court proceedings. However, it can be helpful for judges from other jurisdictions to understand common practice in tribunals.
Some examples include:
The Mental Health Tribunal for Scotland is generally flexible on accommodating the preference of the patient in participating, which might be to speak themselves, to have their wishes and feelings articulated by someone else, to speak at the start or finish of the hearing, to leave during the evidence of another witness and so on;
Case management – for example, in the Health and Education Chamber, there is a pre-hearing allowing for judicial case management;
Utilising flexibility within the particular rules – in Tax Chamber, where unrepresented parties frequently appear against Counsel, the order of presentation is sometimes reversed so that the unrepresented party is responding;
Frequent breaks if required – in the Tax Chamber, consideration is given to having breaks each 90 minutes;
In the Health and Education Chamber, there is awareness of the impact of noise and other sensory demands on young persons with additional support needs, and guidance is provided to tribunal members and witnesses to assist;
In the Local Taxation Chamber, judges will tend to ask for technical valuation concepts to be explained in plain English;
In the Social Security Chamber there is encouragement to using open, neutral questions and the tribunal to show active listening throughout.
5. Party litigants in civil courts
Whilst this section is aimed at court proceedings, some parts may be relevant to tribunal judges.
Exceptions as to when natural individuals are not entitled to appear for themselves are set out in Macphail’s Sheriff Court Practice 4th Ed. at para 4.139. Children can represent themselves (so long as they have capacity). Persons with a mental illness are also able to represent themselves, subject to having capacity to do so. See section on adults with incapacity within the chapter on physical and mental disabilities.
The ability of party litigants to present their case varies widely. Some have a degree of self-confidence and some knowledge of law and procedure. For many though, the prospect of appearing in court and presenting a case before a judge is daunting and frightening. It is more likely the party litigant will be confused, worried, nervous, and even scared. Often the substantive matter before the court concerns their home, family, or livelihood. They may have limitations with literacy or numeracy, or a disability, exacerbating difficulties. They are likely to suffer disadvantages compared with those represented by counsel or a solicitor. To allow for fairness, the judge needs to carefully consider the nature of those disadvantages and may need to take some steps to accommodate a party litigant, whilst maintaining a balance of fairness with the opponent’s interests.[14]
So where does the balance lie? The following may assist:
Beware of the temptation (at least in a court setting) to stray into offering legal advice;[15]
Whilst the judge may make allowances for a party litigant, take care not to alter the balance of proceedings if those are otherwise in an adversarial setting;[16]
When discussing procedural issues, care might be needed to avoid straying too much into the underlying substantive law. There is a balance to be struck which may depend on the case and forum (see for example: Rule 1.4 (2) of the Simple Procedure Rule);
The fact that a party is appearing for themselves can be taken account of when considering a failure to comply with a rule or order.[17] That means allowing some latitude, but such latitude must be balanced with any prejudice to the opponent;[18]
The latitude allowed to a party litigant is unlikely to extend to allowing irrelevant submissions to be made, which would not be permitted by counsel or a solicitor. However, it may be necessary to allow a submission to be developed for a period before it can be judged to be irrelevant, given the party litigant may be nervous and unsure how to structure their submission;
If required, make it clear that disrespectful or disruptive behaviour, whether to the court, witnesses, or the opponent’s representatives, will not be permitted whether from a party representing themselves or a represented party;[19]
Leaving the court room before the proceedings are concluded can be treated as a default and decree or orders granted in the party litigant’s absent.[20]
6. General steps the court may wish to take
When a party litigant appears before you, it may be their first time in a court or tribunal room. Consider advising them of the following in simple and everyday language:
Who the judge is, and how they should be addressed;
Who the other persons in court are, and their respective functions;
That the party litigant should stand when addressing the court or questioning a witness (using discretion where e.g. for disability or pregnancy);
Explain parties have a full opportunity to present their case and not to interrupt when someone else is speaking. Often interruptions are due to the anxiety of wanting to get the story out rather than rudeness. Explain you will hear from each side in turn. Explain the importance of listening to the other side’s submissions;
Suggest notes are taken whilst the other side is addressing the court. Consider asking a court officer/clerk to offer a pen and paper, if the party litigant is unprepared;
A brief explanation of what the purpose and focus of the hearing is, which may include its potential outcomes. Not everything needs to be explained but, e.g., a party litigant will not understand the nature of a call over in a busy court. A few words of explanation might help to focus matters e.g. “I just want to know at this stage if xxx is still opposed/in dispute, and if it is, then I will hear arguments later this morning”;
Some solicitors, when appearing against a party litigant, are attuned to providing a summary of the issues and/or the case’s history. The court may need to use its discretion, given that hearing firstly from the solicitor may give the wrong impression of bias against the party litigant, particularly if the party litigant is the pursuer, or it is their motion calling;
Think about whether you can structure the hearing into discrete issues, and deal (and perhaps also rule) on each matter in turn;
If a party litigant is giving evidence, consider allowing them to have a bullet point list of topics or chapters they wish to cover in their evidence, so long as it has been checked in advance and everyone has a copy;
Ensure your decision is clearly communicated, whether the action is disposed of, or continued to a further hearing. If a proof or evidential hearing is assigned, consider what case management directions could be given to aid the running of that hearing. If a party litigant has no experience of a proof in court, it may be worth pointing out that most courts can be observed daily;
Following proof, it can be helpful to focus a hearing on submissions by giving a suggested list of chapter headings relative to the disputed evidence, without prejudice to parties raising other matters;
Prior to submissions, it might be helpful for the judge to enquire if parties are agreed on the applicable law that applies and its interpretation, particularly if the law is relatively straightforward;
Allow a party litigant a short time to consider a new production, authority or information presented during a hearing. If authorities or productions are produced but not intimated in advance (such as at an interim hearing), the court may need to allow a party litigant time to absorb the document. That may not mean the case being adjourned to another day; sometimes recalling the case later in the day is sufficient;
If a party litigant is accompanied by a friend or colleague (even if not acting as lay representative or lay supporter), it might be appropriate to allow the party litigant a short opportunity to discuss the matter in private before responding to the court;
If a case is being continued, consider whether a longer period is necessary than might be the case if it was solely agents or counsel involved. Although time limits should apply to both parties equally, in some circumstances agents or counsel might have no objection to lodging e.g. written submissions earlier than the party litigant, with the represented party being given time to respond to the party litigant’s submissions at an oral hearing. That may assist in focusing matters;
Party litigants are often confused when counsel or solicitors refer to authorities. They may not understand the relevance of what happened in someone else’s case (as they may see it). Consider explaining in simple language the significance of decided cases as setting out the way in which a particular point of law should be interpreted or applied;
A judge might wish to consider tape recording proceedings involving a party litigant which would not normally be tape recorded.
7. Settlement of the action and mediation
It should be remembered, particularly where there are party litigants on both sides, parties may not be aware that they can discuss settlement without compromising their ability to proceed with the action if settlement is not achieved. It can sometimes be helpful for the judge to focus parties on the potential for settlement. Judges will have their own form of words, but it can be useful to remind parties to factor in the amount of the claim, any offer/concession already made and therefore the amount now in dispute, and some reminder as to the likely amount of court time to hear the case in full. It can be useful to set this out and then allow a limited time for discussions.
Whilst mediation is not just suitable for cases involving party litigants, it might be helpful for judges to know that there are free mediation services in Scotland, some of which operate remotely. The University of Strathclyde mediation clinic offers a free mediation service online and in person in most cases (other than family law and education cases involving additional support needs).[21] There are also mediation services offered by the University of Dundee, the University of St Andrews, and .
8. Family cases
Family cases can often present particular difficulties for party litigants. Whilst there is increasing judicial case management, it is still an adversarial process in an emotive area of law. Matters that might assist include:
As with any appropriate case, consider the appointment of a curator ad litem to the child. Where there is a party litigant on one or both sides, the court might need to consider the appointment of a curator to ensure it has the relevant information to make an informed decision in the child’s best interests;
Encouragement of a party litigant to use a lay supporter: Shared Parenting Scotland have a link service to match party litigants with a register of volunteers willing to act as such;[22]
Shared Parenting Scotland have information available online, including guidance on pleadings.[23]
9. Civil telephone/video hearings
Dealing with a party litigant by telephone or video raises additional challenges. It is more difficult to read body language as to whether someone is following the proceedings, there can be accidental talking over one another or confusion over which production is being referred to. All of these issues can affect fairness or perceptions of fairness, but are also likely to impact on the efficiency of the hearing.[24] If a party litigant does not have access to a laptop or desktop, additional problems can arise when using a mobile phone to join a virtual hearing.[25] There is also the risk of poor internet connections, causing parties to miss crucial words or parts of hearings.
Whilst court rules provide the default mechanism for procedural hearings is by virtual means,[26] that presumption does not apply if a party is unrepresented or there is an interpreter.[27] The court rules for both Court of Session and sheriff court allow a flexibility,[28] including a hybrid approach.[29]
For party litigants, it would be important to understand the litigant’s view, and whether any barriers would be presented by the court convening remotely.[30]
There can also be challenges around digital literacy and communicating verbally and non-verbally [31]. There is a potential for remote hearings to offer easier, more effective participation for certain groups of vulnerable court users (such as children and young people with additional needs, or parties who have experienced domestic abuse)[32].” And note two new footnotes required both linking to Scottish Government Civil Justice System Pandemic Response findings- Civil justice system – pandemic response: research findings – gov.scot
10. Language
With a party litigant consider how best to:
Comprehensively identify the issues early in the hearing, and seek agreement that those are the issues for that hearing;
speak in plain language;
define any technical or legal terms that must be used;
clearly explain your decision in a straightforward way. That does not need to extend to an explanation of the implications of that decision for the party litigant, given that such comments may stray into the judge giving legal advice.
11. Consider individual needs
As a judge must make reasonable adjustments under the Equality Act 2010, they will be concerned with any vulnerabilities or barriers to effective participation of a party (or witness). Without legal representation to explain what adjustments or other measures are required, the judge may have to probe to understand the issue.
Remember many disabilities or vulnerabilities cannot be seen. Take time to understand what the nature of the issue is said to be. Reference is made to the chapters on vulnerable persons, and on physical and mental disabilities.
12. Interpreters
A party litigant may need the services of an interpreter if they have little, or an imperfect, understanding of English. If in any doubt, it is suggested that it is best to err on the side of having an interpreter.
If an interpreter is used, it must include for the hearing and for any documents or productions. The general rule in civil courts is that the party requiring the interpreter would arrange for one (although that is not always the case – for example in referral proceedings). SCTS has contracts for interpreting, which includes both accused persons and civil party litigants, and thus no issue of funding should arise in these circumstances (see para 1.1 of Interpreting Translation and Transcription).
Tribunals will generally provide an interpreter to any party who needs it.
Best practice for the use of an interpreter is found in the chapter on race.
13. Curators in court proceedings
If there is an issue as to a person’s capacity in civil court proceedings, the rules on curators ad litem apply to party litigants as to any other litigant. It might be that if the opponent is represented, the court will be told of concerns. However, whether or not the opponent draws the court’s attention to it, or if both parties are unrepresented, the judge needs to be alert to the issue of capacity. Ultimately (other than for defenders in family actions in the sheriff court) the test in a court setting is likely to be whether in the circumstances of the case, justice demands a curator to be appointed.[33]
In a family action in the sheriff court, the court must appoint a curator to a defender (see Adults with Incapacity section) with a mental disorder and order that curator to obtain a report to address the issue of capacity.[34] The test remains the same whether or not the unrepresented party wishes to instruct a solicitor – the concern is whether the party can meaningfully instruct a solicitor, having understood the issues arising for such instructions and the implications of such instructions.
14. Evidential hearings and proofs
Sometimes unrepresented parties can adequately represent themselves at procedural hearings but struggle with evidential hearings, depending on the nature and formality of the evidential hearing. In a court context, it is generally wise to provide some words on the significance of a proof hearing and the preparation required in advance, with a clear order recorded in the interlocutor.
Matters that it might be helpful to raise include:
The need to lodge and intimate productions and lists of witnesses within the timescales set out in the rules or the judge’s order;
Whether a shorthand writer is to be booked or how the recording of evidence is to be dealt with (if applicable);
Whether productions can be agreed or if witnesses need to speak to productions, although care must be taken to avoid any appearance of giving advice as to which witnesses a party should cite. An enquiry as to whether productions can be agreed may be sufficient to open the matter for discussion;
That witnesses generally need to attend court and it is not usually sufficient to lodge a written statement only unless the evidence is agreed;[35]
The need to prepare questions or lines of questioning for examination in chief and cross. Suggesting observing a proof court may be helpful;
During proof, allowing the party litigant additional time to formulate their next question (that is taking the pace of the proceedings more slowly).
During a proof, it might be appropriate and helpful to the management of court time to offer party litigants some assistance in the presentation of their case, subject to any specific courts rules (for example simple procedure rules). Sometimes it is best not to interrupt a party litigant, as that might make them more nervous and insecure. However, it is sometimes helpful and necessary to gently interrupt to clarify a question or a submission. It can also be necessary where a party litigant is not approaching the questioning of a witness by formulating a clear question and waiting for an answer to that question. There might be circumstances in which it is both fair and required for a judge to ask some questions of witnesses to elicit or clarify evidence on a particular point, particularly where a witness is confused by questions. However, a judge should always intervene to control or stop inappropriately aggressive or offensive questioning of a witness.
What if a party litigant has failed to express a relevant case in the pleadings but there is some information before the court that suggests there may be a stateable case? Other than in simple procedure, there are no specific rules in a court setting to guide to what extent a judge should intervene where a party is unrepresented.[36] Does a judge have a duty, or are they even entitled, to assist the party litigant to develop and to express his or her case? Again, it may be a matter of fact and degree depending on the circumstances but, as always, bearing in mind the need to be fair to the other party. If a judge intends to do so, it must be clear that both sides have a proper opportunity to address the court on the correct test. That means it is vital to raise the issue in open court, and guard against any possibility of deciding on a point of which the other side has had no notice.[37]
If a party litigant has a case which appears to be plainly irrelevant, it is not thought there is a duty on a judge to offer suggestions as to how it might be made relevant. That is the outcome of an adversarial system of litigation; and there is no reason why a party litigant should be given advantages not available to a litigant who is professionally represented.
15. Affidavits
Often affidavits are lodged to form the entirety or bulk of a witness’ evidence in chief in a court setting.[38] Such use of affidavits often helps to focus preparation some weeks in advance. That might seem attractive in that it means a party litigant has more time to prepare cross examination for the other party’s witnesses. However, such an order can present additional barriers for a party litigant.
Whilst it might be theoretically possible for a party litigant to employ a solicitor to notarise an affidavit for a fee, solicitors are likely to be cautious in accepting instructions. It is likely to draw the solicitor into discussions on the scope of the evidence to be covered. The solicitor will have no or little knowledge of the issues in dispute in the case. There might be a concern about the accuracy of an affidavit and who would prepare the draft. Ordering affidavits from a represented party, but not the party litigant or their witnesses can raise concerns as to equal treatment.
Affidavits are not always required by tribunals, who will often accept witness statements.
16. Court rules and party litigants
Party litigants are in a different position in terms of court rules. Both the Court of Session rules and Sheriff Court rules restrict or alter the position on matters such as borrowing productions and citation of witnesses.
17. Where there are allegations of abuse against the party litigant
In civil cases if one or both sides are unrepresented and there are allegations of domestic or sexual abuse, the judge will have to consider carefully how to manage the case. The norms (and court rules) may have to be considered to avoid a complainer from coming into direct contact with an alleged abuser. For example, steps such as ordering parties to lodge a joint minute of admissions, or to both to attend a hearing in a busy court are likely to be problematic. Further, if a case proceeds to an evidential hearing, cross-examination raises issues in the absence of the provisions of the Children (Scotland) Act 2020 applying (or not yet applying).[39]
In civil courts, by virtue of section 11 of the Vulnerable Witnesses (Scotland) Act 2004, a person is deemed to be a vulnerable witness in civil proceedings if they are either under the age of 18 (and therefore a child witness[40]), or there is a significant risk of the quality of a person’s evidence being diminished by reason of a mental disorder, or fear or distress in connection with giving evidence in the proceedings. Section 11(2) sets out a range of circumstances to determine if someone is a vulnerable witness.
Civil proceedings are given a wide definition, to include ordinary actions and most children’s referral matters calling in court (section 11(5)). It equally applies where the party is a vulnerable witness. That includes party litigants (section 16). Where a child is to be cited, the court must make an order considering whether any special measures are required.
In terms of section 18 of the 2004 Act, special measures can include taking evidence by a commissioner. That can include the judge appointing themselves as a commissioner.[41] Note that to avoid the alleged abuser directly questioning the vulnerable witness, any commission would need to proceed with interrogatories.[42] Where interrogatories are ordered, the court may wish to consider the witness’ evidence in chief being given by way of an affidavit, available in good time to then allow the party litigant to draft questions, and to give time for those questions to be reviewed. The court may also wish to allow a procedure for additional questions to be submitted (depending on the answers to questions already allowed), perhaps during a break. Provision needs to be made to ensure the party litigant sees and hears all the evidence. Any commission must take account of other special measures allowed, such as a live link or screens.
Another option to consider is the appointment of a curator to the alleged abuser to carry out the cross-examination of a witness or witnesses. That may be problematic if there are issues of funding.
That still leaves difficult questions as to case management. Judges may need to consider how and when cases will call. Reference is made to the sections on trauma, on domestic abuse and on sexual allegations, and more generally on vulnerable witnesses.
18. The judgment or decision
Where a judgment or decision is given at the end of a hearing, care should be taken to express it in simple everyday language. If it is necessary to use technical legal terms, the meaning of them should be explained to the party litigant. If the decision requires the party litigant to do something (for example, to find caution for future expenses) that should be made clear. Depending on the forum and decision, the judge may also warn of the likely consequences of failure to comply.
In many tribunals, a written decision is given as a matter of course. If the decision is taken to avizandum in a court setting, the judge should explain what that means (perhaps that a written judgment will be issued at a later stage containing the decision and reasons).
In court, when a judge is delivering an ex tempore decision, it is important to speak at a speed that the party litigant can follow. It is usually helpful to attach a copy of the ex tempore decision to the interlocutor, and explain that as that will be available, parties do not need to note every word.
19. Sources of help and guidance for a party litigant
Legal aid
Legal aid is still available in most areas of law in Scotland, although there are anecdotal reports of solicitors being reluctant to take work in some legal and geographic areas.[43]
It is useful to understand the basics of the scheme of legal aid, as sometimes party litigants think that simply because e.g. they are working they will not qualify. The Scottish Legal Aid Board (SLAB) has information on its website that party litigants can be directed to.[44]
There are three types of legal aid that might cover appearances before a civil court or tribunal:
Civil legal aid – covers a wide range of courts and tribunals, including the Scottish Land Court, Lands Valuation Appeal Court, the Upper Tribunal for Scotland and the Employment Appeal Tribunal. Civil legal aid is, in theory, available for most civil proceedings except those exempt under the Legal Aid (Scotland) Act 1986.[45] In practice the most common types of proceedings which are excluded are simplified divorce applications, petitions for the petitioner’s sequestration, simple procedure actions for less than £3,000 and proceedings under the Debtors (Scotland) Act 1987 (although applications for time to pay directions are within the scope of legal aid).
Before an application can be granted, SLAB will assess whether the proceedings have probable cause and it is reasonable that legal aid is granted.
The financial limits for legal aid are based on a calculation of disposal income, that is, after deduction of certain outgoings, such as mortgage payments, rent, aliment and others. The limits are changed year on year.[46] For capital, there is no upper limit on what a person can hold before being ineligible, but if a person holds capital above a certain limit legal aid can be refused if SLAB considers that a person can afford to proceed without the benefit of legal aid. That will depend on the nature of the proceedings, and to some degree the risks of costs against that person.[47]
Legal aid is available to sole traders or individual partners in a partnership with a discrete claim or liability, but not to companies or the entity of a partnership.
The existence of a legal aid certificate provides a potential basis for an application to restrict any award of expenses against that individual.[48]
Advice and Assistance by Way of Representation (“ABWOR”) covers appearances before many tribunals, including the Mental Health Tribunal for Scotland, certain Upper Tribunal cases involving reserved matters, a number of First Tier Tribunals both reserved and devolved such as the Immigration and Asylum Chamber and the Health and Education Chamber. It also covers certain contempt of court appearances.
The financial eligibility criteria for Advice and Assistance are more straightforward than for civil legal aid, assessed faster, without the same enquiries by SLAB.[49] The eligibility limits don’t apply for certain proceedings, the most common being the Mental Health Tribunal for Scotland, custody appearances under section 17 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and section 5 of the Protection from Abuse Scotland) Act 2001.
Children’s legal aid covers matters under the Children (Scotland) Act 2011. It is available for adults and for children covering the range of hearings heard in the sheriff court.[50]
Law centres and other bodies
It is useful to have up to date knowledge of the sources of advice or representation in your area.
Law centres are generally funded by a mix of legal aid income and grant income, usually working in specific geographical areas or particular areas of law. A list of law centres is provided, but judges should be aware the list may quickly become out of date.
SLAB grants fund voluntary organisations which provide representation. A list of organisations which are currently funded is on the SLAB website.[51] In addition, the Civil Legal Assistance Office (Home | CLAO) offers direct advice and representation.
There are almost 60 Citizens Advice offices in Scotland. Most are staffed by volunteers and few offer representation in court. A list is available (Citizens Advice Scotland (cas.org.uk), and a national helpline offers the same service by phone. Information on debt and many consumer issues is available on their website.
Money Advice Scotland does not offer direct advice but has information on its website including a benefits calculator (What we do | Money Advice Scotland).
Consumer Advice Scotland (http://www.consumeradvice.scot/) offers advice on trading and consumer disputes, via information on its website, a live chat and a helpline. It does not offer representation.
Many universities now have law clinics, where advice and representation are offered by law students.
Written guidance
There is information available on the SCTS website under the menu tab “Taking Action”.
Lay representative
In a court setting, a lay representative assumes the position of a solicitor or counsel in terms of directly presenting the case to the court. To be appointed, a written form must be lodged.[52] The test is whether it is in the interests of justice for the application to be granted.[53] It is a condition of appointment that no payment is made, directly or indirectly, to the lay representative. Directors of companies or LLPs can be allowed to represent their corporate entity via this route, and it is likely that partners can also represent the partnership as a lay representative in a similar way.[54] Questions might arise as to whether it is in the interests of justice for such an application to be granted if there is a conflict between the interests of the director and the legal entity, or between individual directors/partners of the business.
If a lay representative is permitted then the court generally hears from the lay representative, unless there were circumstances where a judge might speak direct to the party (e.g. a child welfare hearing).
In tribunals, lay representatives often appear with appellants and can be extremely knowledgeable and skilled in their own specialist area.[55]
Lay supporter
Party litigants may be unaware that they can apply to have a lay support person assist them in their case.[56] A lay supporter’s role includes taking notes, helping order and arrange papers and quietly advising the litigant. Lay supporters may not receive remuneration for their work or address the court on the litigant’s behalf.
Expenses and party litigants
Where a party litigant is successful in the course of litigation, an award of expenses can be made in their favour in the same way as if there had been legal representation.[57] A sheriff makes an award in the usual way, but at taxation the relevant rules set out what a party litigant can seek (often a maximum of two thirds of the sum which would be allowable to a solicitor under the appropriate table of fees[58]).
A party litigant with a decree may not realise that they are entitled to make a formal motion for expenses. It might be appropriate for the judge to ask if an award is sought.
Solicitors firms
Where a practicing solicitor is representing their firm they are not acting as a party litigant, at least for the purposes of expenses (Macbeth, Currie & Co v Matthew [1985] S.L.T (Sh Ct) 44).
Appeals
Whilst it is not suggested that a party litigant needs to be told of their right to appeal and the time limits that might apply (given that would cross into providing legal advice), it is understood sheriff clerks will usually provide basic information on appeals, where necessary.
This contrasts with many tribunals, where rules often require the right of appeal to be explained.
20. Unrepresented accused in criminal cases
Introduction (unrepresented)
It is less common for persons to represent themselves in criminal cases although it does occur, particularly in JP courts. Legal Aid might not be available to that individual, [59] solicitors might withdraw or, for whatever reason, an accused person has decided to represent themselves.[60]
Accused persons cannot represent themselves where charged with a sexual or domestic abuse offence, and the court can prevent it where there is a vulnerable witness – for further information, see chapter on vulnerable persons.
Legal aid can be granted by the court where the court is considering imprisonment or detention for someone who has not been sentenced to a period of custody before.[61]
If a solicitor withdraws from acting, usually a brief adjournment might be allowed to enable the accused to secure new representation, but it is not unknown for an accused person to “hire and fire” a succession of representatives. Given the impacts on witnesses and others, there will come a point when the interests of the Crown and the public require a trial to proceed with an accused being unrepresented.[62]
Whatever the reasons for an accused appearing themselves, the court has an obligation to consider what steps can be taken to ensure a fair trial, in terms of both common law and article 6(3)(c) of the ECHR.
Prohibition on accused representing themselves
It should be remembered that an accused cannot represent themselves in all cases. An accused is not allowed to do so in cases involving an allegation of domestic or sexual abuse, or where there is a child witness under 12 or where the court considers it is in the interests of a vulnerable witness for the accused to be represented.[63] The court must appoint a solicitor where the accused has not engaged one, dismisses a solicitor, or the solicitor has withdrawn, unless the accused intends to engage another solicitor.
A solicitor appointed by the court may not be dismissed by the accused, and is not obliged to comply with an instruction to dismiss counsel.[64] Provision is made where solicitors do not receive instructions, or receive irrational instructions.[65] The court has power to appoint an alternative solicitor, if satisfied the solicitor can no longer act, or if it is in the best interests of the accused to appoint an alternative solicitor.[66]
Some courts have a list of solicitors willing to act to accept appointments, where solicitors are appointed on a rota basis. It is understood that in some courts local faculties are currently unwilling to accept instructions for certain cases as part of a protest in relation to legal aid rates. If so, the Public Defence Solicitors’ Office (PDSO) may be able to act.
Intermediate diet in case of unrepresented accused
The court can direct that intermediate diets involving unrepresented accused will call in court.[67] It is suggested that the court should direct the physical attendance of an unrepresented accused, given it may be the only opportunity prior to the trial to raise preparation with both sides.
The court will wish to ensure the accused is prepared for trial. Consider the following:
Do they still have a copy of the complaint;
Have they had sight of the disclosure and productions,
Have arrangements have been made for any defence witnesses to attend,
Does the accused understands the implications of a decision to represent themselves? Do they understand the nature of cross-examination?
It is worth reminding accused that trial courts can be observed – this may help to give a sense to an accused as to what is involved.
CCTV may cause a particular issue. At an intermediate diet, the court should always been addressed on whether CCTV or phone footage is to be led by the Crown, but where the accused is unrepresented, the Crown should be able to explain that either the accused has either viewed the CCTV or there is an arrangement in place.
There is no obligation on an unrepresented accused to agree evidence as applies to a represented accused in terms of s257 of the 1995 Act,[68] although it is competent for an unrepresented accused to enter into a joint minute of admission.[69]
Unrepresented accused appearing from custody
Many sheriffs and JPs will be faced with unrepresented accused in courts sitting over bank holiday weekends. Some local faculties or solicitors are not presently attending as part of a boycott of certain types of work due to the level of payments involved (and perhaps also due to concerns over a work/life balance). SLAB advises that, prior to holiday custody courts, contact is made with the local solicitor due to be on duty to see if they intend to provide cover at those courts. For courts where no duty solicitors will be attending, the PDSO is asked by SLAB to provide cover.
It is understood that, at the time of writing, the duty solicitor from private firms will not appear in bank holiday courts in Dumbarton, Dumfries and Glasgow Sheriff Courts. In Edinburgh it is understood that some firms will appear.
When faced with an unrepresented accused appearing from custody, it may be helpful to consider the following:
Ensure the clerk has checked the accused has been served with a copy of the complaint in good time before the accused is brought up;
Remember that the accused may have literacy problems – does the complaint need to be read to them?;
Explain the accused should stand whilst you are speaking to them;
Explain the procedure – that a plea is tendered (in summary matters), and then you will decide either on sentence or on bail;
Before taking the plea, check if the accused has read over the complaint and whether the accused wishes to tender a plea in the absence of legal advice (remembering the accused may have literacy difficulties);
If there is some doubt about the accused’s plea, particularly one of guilty, it may be the judge would wish to continue it without plea for legal advice to be given – see section on Plea of Guilty by Unrepresented Accused.;
Explain the issue of bail, and ascertain if bail is opposed by the Crown if applicable;
If the matter of bail is for the court alone, or the court has doubts about bail irrespective of the Crown’s position, ensure the court’s position is clear to the accused;
It may be easiest to ask the accused a series of questions in relation to the relevant factors for bail. Ensure this is done at a pace where the accused has time to think before answering or expand on the information.
Remember it may be daunting for an accused to appear in court themselves, particularly if they have vulnerability due to age, mental health problems or lack of education. In addition, the accused is unlikely to have ‘prepared’ or thought about the factors they wish to rely upon for bail. By way of illustration, it can take experienced solicitors some time to take the relevant information from an accused on their personal circumstances to put before the court on a bail application, and as such, the court will need to exercise patience.
If the court is unable to determine bail for an unrepresented accused, it may be necessary to continue the matter to the next custody court when representation will be available. This will be of no value where the accused appears alone because they have refused legal representation (and it is not one of the circumstances where the court must, or has discretion to, appoint a solicitor). In those circumstances, the court will have to make the best decision it can on the information available.
Disclosure for an unrepresented accused
It is understood that local practices vary, but unrepresented accused are generally given sight of the disclosure in either a police station, a local PF’s office or in court, on a supervised basis. It is understood that unrepresented accused can take notes on the disclosure but cannot take copies or photographs of it.
If CCTV is to be relied upon, the Crown has an obligation to allow an unrepresented accused to view it, perhaps in the local Fiscal’s office.
Such arrangements mean an unrepresented accused is likely to only have had one opportunity to read the disclosure and will not have it in front of them during the trial. The sheriff or JP may wish to suggest:
that an unrepresented accused has a further opportunity to refresh their memory as to the disclosure on the morning of the trial, perhaps during the call over or (if the matter is picked up at the intermediate diet) earlier by arrangement on the morning of the trial depending on volume;
that the unrepresented accused has a copy of the disclosure before them during the trial, on the basis that it is returned before they leave the courtroom.
Plea of guilty by unrepresented accused
If an unrepresented accused tenders a plea of guilty, a judge will consider whether:
the accused has a copy of the complaint and has both read it and understands it;
the accused understands if there are any mandatory implications of a plea of guilty (such as a mandatory disqualification);
there is a full understanding of the charge or charges;
the accused is freely and truly acknowledging guilt, and it is not a plea of convenience.[70]
Trial with an unrepresented accused
If the matter is proceeding to trial, it may be appropriate (and helpful to the efficient running of the court) to:
briefly describe the order of questioning;
the role of submissions at the end of the evidence;
the ability to object to the admission of any evidence;
the distinction between the Crown and the defence case.
It is usually easier for a judge to ensure a fair trial takes place if they know what the accused’s position is. However, whilst a defence agent will understand the bounds of what information the court may not wish to know, an unrepresented accused will not. Accordingly, although fraught with difficulty, it can be helpful to the judge to ask some broad questions to understand the nature of the accused’s position. Examples are if there is a statutory defence being relied upon, or, for example, the accused’s position is one of mistaken identity. Some general questions at the start of the trial might elicit sufficient information for the court.
At the close of the Crown case, if the unrepresented accused does not make a motion of no case to answer where it could be merited, it might be appropriate for the trial judge to consider whether to invite them to do so, and to raise with the Crown the question of the sufficiency of the Crown evidence.
The accused should be asked whether they wish to give evidence personally.[71] It must be made clear there is no obligation to do so, but if so, they may be cross-examined. A judge should check if any defence witnesses are to be called. When all evidence has been led, the accused should be reminded that they will be given an opportunity to address the judge or the jury on the evidence.
In a jury trial, the judge has a responsibility to ensure that an unrepresented accused’s position in relation to the evidence and the charges, as far as that can be determined, has been fairly and adequately put before the jury. That may have to be dealt with in the judge’s charge to the jury.
A judge has a duty to ensure that the trial is overall conducted fairly. That might extend to a duty to intervene during the evidence to take points or objections which might have been made had the accused been represented by counsel or by a solicitor.[72]
Accordingly, some things to consider are:
consider any vulnerabilities of the accused at the outset, including (but not limited to) any matters falling within the Equality Act 2010;
explain the process in a straightforward way at the beginning and as needed throughout the trial;
ensure the accused has a copy of the complaint or indictment;
ensure the accused has seen the disclosure, including CCTV;
consider whether the accused should have a copy of the disclosure for the duration of the trial;
check if the accused has writing materials or wishes them;
explain the court’s expectations of the accused (i.e. when they speak, how to draw to court’s attention if they cannot hear etc.).
Criminal record of accused
If an unrepresented accused begins during a trial to ask questions or lead evidence which might permit the prosecutor to seek to disclose the accused’s record, it is suggested the judge may wish to intervene to advise the accused of the possible consequences of continuing with that line of questioning or evidence.[73]
Protecting the interests of witnesses
Whether or not an accused is represented, it is now settled law that cross-examination should not stray beyond proper bounds.[74] Whilst solicitors and counsel should be acutely aware of their duty to the court and to witnesses, unrepresented accused may not, and may approach questioning of witnesses, particularly complainers, in an aggressive or offensive way. Such an approach must not be allowed by the court. Whilst there is a right to test the evidence by cross-examination, often such questioning, by its very nature, strays into collateral matters that would not, even if allowed, assist the court in determining the factual issues in dispute before it. A judge must be prepared to intervene to protect the interests of a complainer or other witness. Reference is made to the section within vulnerable witnesses which would apply more generally, whether or not there is a particular vulnerability to the witness.
Sentencing an unrepresented accused
In terms of section 204 of the Criminal Procedure (Scotland) Act 1995 a court cannot pass a sentence of imprisonment or detention (including for the failure to pay a fine) on an unrepresented accused unless the accused has had legal aid refused on the grounds of not being financially eligible,[75] or alternatively has been told of his right to apply for legal aid and has failed to do so.[76]
Legal aid can be refused by SLAB on two grounds – firstly that the expenses of the case cannot be met without undue hardship to the accused, and secondly that it is not in the interests of justice that legal aid be made available.[75] SLAB now takes the view that in the sheriff court, it is in the interests of justice for legal aid to be granted. Accordingly, if legal aid has been refused in a sheriff court case it is solely on the grounds of financial eligibility. However, in the JP court, it may be necessary for enquiries to be made as to the basis of refusal of legal aid.[78]
The court has the power to grant legal aid in summary proceedings to a person who has not previously had a sentence of imprisonment or detention, so long as the court is satisfied the cost of the case cannot be met without undue hardship to the accused or the accused’s dependents.[79]
Courts should bear in mind that sentencing guidelines may apply to the particular circumstances of an unrepresented accused, and may have to probe to ensure that the court has sufficient information to sentence.[80]
Interpreters
Judges will want to carefully consider whether an unrepresented accused should have an interpreter, if English is not their first language.[81]
Best practice for the use of an interpreter is found in the section on interpreters within the race chapter.
Disruptive accused
If an unrepresented accused is so disruptive that the trial cannot take place in his presence, the court must appoint a solicitor to represent his interests during his absence from court.[82]
Vexatious litigants
The Inner House can make a vexatious litigant order on the application of the Lord Advocate.[83] Such an order can prohibit that person from commencing civil proceedings (including in the sheriff court) without the permission of an Outer House judge, and/or, if the individual has ongoing litigation, require permission to be sought to take such steps as specified in the order.[84] An order can be for a specified period, or indefinite.[85] A list of persons against whom orders have been made is available on the SCTS website.[86]
Such declarations are made only infrequently (Lord Advocate v B [2012] SLT 541). It does not apply in circumstances where an individual is defending an action which has been raised against them.
Children’s hearings appeals
Sheriffs will be aware of the power in terms of section 159 of the Children’s Hearing (Scotland) Act 2011. If the sheriff considers an appeal against the decision of a children’s hearing was frivolous or vexatious, the sheriff can make an order for the appellant to obtain leave to be permitted to lodge any further appeal against a compulsory supervision order (arising from any further children’s hearings that may take place). Such an order lasts for 12 months.
Freemen on the land and ‘Scottish sovereigns’
The term “freeman on the land” has been used in many English-speaking jurisdictions, including Canada, USA, New Zealand and Australia. In Scotland, they sometimes refer to themselves as “Scottish sovereigns.” Persons appear in court claiming they are a “freeman” on the land where they live. Often they will refuse to identify themselves. It does not appear to be an organised movement.[87] Individuals claim to be independent of the government and not bound by the applicable law of a country, asserting the only “true” law is their own idiosyncratic interpretation of common law. ”Freemen on the land” also advocate schemes to avoid paying tax, arguing they have not entered into a contract to pay a particular tax,[88] and claim names are owned by the Crown, and they need permission to use a name.[89] Sometimes they attempt to appear as lay representatives.[90] Occupy protesters have also been reported as using similar tactics.[91]
None of the arguments presented by “freemen” have been judicially accepted.[92]
Some practical tips if a “freeman” appears in court include:
“Freemen” often refuse to confirm their name. If someone refuses to confirm their identity make it clear that the person cannot be viewed as being present in court;
In civil cases you may wish to make it clear that the absence of a party may lead to decree being granted or an action being dismissed, as appropriate.
In criminal cases, if ordained or on bail, a warrant may be issued for their arrest if the person does not identify themselves;
If someone is brought from custody and refuses to confirm their name to the clerk, it may be sufficient to check that those bringing the person from the cell area are satisfied they have brought the correct individual;
If someone refuses to accept bail conditions which are reasonable and considered by the court to be necessary, it may be the individual has to be remanded. Judges may wish to have the case recall later, as it is not unknown for there to be a change of position later in the day.
In extreme circumstances judges may require to consider if such individuals are in contempt of court.
21. List of Law Centres
Govan Law Centre (also runs Govanhill Law Centre)