Litigants in Person vs. Self-Represented Litigants: a view from immigration bail hearings in light of new guidance on terminology from the Master of the Rolls
In our recent research report ‘The Liberty Deficit: long term detention and bail decision making’ (download below) we chose to use the term ‘unrepresented’ rather than adopt the term ‘self-represented’, as now increasingly used by the Ministry of Justice. In BID’s view, bail applicants who have not had the benefit of legal advice or representation are lodging bail applications and appearing at bail hearings, but what they are not doing is representing themselves in any meaningful or informed sense.
BID therefore welcomes the guidance issued on 13 March 2013 by Lord Dyson, Master of the Rolls, on the use of terminology in relation to those who conduct legal proceedings on their own behalf.
BID’s experience is that unrepresented applicants often have little idea of how to frame grounds for release (often mixing up the purpose of bail applications with evidence used in relation to their claim for protection); the tone of their application is often wrong and may contain personal or emotional appeals to the judge; they are often unable to marshal suitable sureties with supporting evidence to appear on the day; and they have little or no idea of what evidence is available, could usefully be submitted, or how to obtain it. All of this is assuming that they can read and speak adequate English, and feel sufficiently confident to navigate the tribunal system.
To use terms that suggest otherwise – such as ‘Self Represented Litigant’ – is, we believe, to mask the reality of the way legal aid advice is now delivered in England and Wales. Simply changing the language will not alter the experience of legal advice for immigration detainees or any other client group reliant on publicly funded legal advice. Recent Ministry of Justice pronouncements suggesting that immigration matters do not in fact always require legal advice have not had the effect of simplifying overnight the complex tangle of immigration rules, statute, and case law that a person making an appeal or bringing a case must negotiate unaided. In this latest BID research we found a clear representation premium in bail hearings. In our study, those bail applications where applicants were provided with a pro bono barrister by BID had a 31% grant rate while unrepresented applicants were granted bail in only 11% of cases. This is also despite the fact that many of the BID represented cases, unlike the unrepresented cases in this study, will have had more complex immigration issues to address given the longer periods of their detention.
As Lord Dyson noted in his statement accompanying this guidance, the term ‘Self-Represented Litigants’ has recently gained some currency, but he notes:
“I have considered all the circumstances, including the fact that the term ‘Litigant in Person’: is used in statute (e.g., The Litigants in Person (Costs and Expenses) Act 1975); is and will continue to be used by Government; is commonly understood and well-known both by the legal profession and individuals generally; the term ‘Self Represented Litigant’ is unclear in its scope, as it can variously be understood to suggest that individuals are conducting the entirety of legal proceedings on their own behalf, that they are only conducting court advocacy on their own behalf or, that they have themselves obtained representation i.e., secured the service of an advocate.
In the light of these factors I have therefore determined, with the unanimous agreement of the Judges’ Council, that the term ‘Self Represented Litigant’ should not be adopted or used in future. The term ‘Litigant in Person’ (LiP) should continue to be the sole term used to describe individuals who exercise their right to conduct legal proceedings on their own behalf.”
Professional legal representation makes a difference, not only in terms of case outcome but also to the review and progression of a case in the round, and the management of client expectations.
Downloads
The Liberty Deficit: long-term detention & bail decision-making
