A woman accused of perverting the course of justice in a murder trial has been told she must represent herself in court because there is no available barrister, in what is thought to be a legal first.
A trial over the killing of Jobari Gooden, 27, who was stabbed outside a Peckham barbershop last December, is under way at Southwark crown court.
Mamadou Faal has been charged with murder, and three others are charged with perverting the course of justice. One of them is Elishah Anderson, who has pleaded not guilty. She was unhappy with her barrister and was told he would not be able to continue representing her after she expressed her dissatisfaction.
However, due to industrial action, no other barrister can accept the case. With no replacement found, Judge Peter Rook QC has told Anderson, 40, that she must represent herself.
While defendants can choose to represent themselves if they wish, senior lawyers have told the Guardian they believe this is the first time a defendant has been ordered to represent him or herself without being given a choice.
Barristers have been operating a ‘no returns’ policy since April in protest at their pay and conditions. This means that they are refusing to pick up cases if other barristers are unable to represent a client – for example, if another case has overrun.
On Monday, barristers are due to start wholesale strike action over funding concerns. Four in five criminal barristers voted for the walkout.
Guidance issued by the judiciary after the ‘no returns’ policy was introduced, states: “If a defendant wishes to be represented it is likely to be an exceptional case where a judge orders a trial to proceed where the only reason why they are not represented is the Criminal Bar Association action.”
Antonia Kim Charles of MTC Solicitors, Anderson’s legal representative, expressed concern about her client being told to represent herself in court.
“My client has a right to representation and to equality of arms. Both of these things are enshrined in human rights law. This is a complex case involving thousands of pages of evidence and my client’s liberty is ultimately at stake,” she said.
Hesham Puri, president of the London Criminal Courts Solicitors’ Association (LCCSA), warned that, if ministers do not address the underfunding of legal aid, more defendants could find themselves in Anderson’s situation.
“It’s terrible, of course, for everyone involved in the trial, but this is the reality of how action in the courts bites,” he said. “As far as I understand it, this is the first time a defendant has had to carry on with their case, regardless of whether they wish to, without legal representation – and are in the position they must then represent themselves.”
He added: “This should serve as a wake-up call for how badly broken our courts system has become and the pressure to clear record court backlogs. It may not be the last time.”
This week’s legal action is being taken to prevent these kinds of “dangerous gaps” routinely happening in future, Puri said, warning there will be no lawyers available to do this work in five years’ time if the issue is not resolved.
The Ministry of Justice said officials would not be commenting directly on the issues raised by the strike action.
However, it referred the Guardian to a statement made last week by the lord chief justice, Lord Burnett, which stated that, while the judiciary is not a party to the dispute between the Criminal Bar Association and the government, “a failure to attend court, having accepted instructions, may amount to professional misconduct”.