Mark Conway: Party like a litigant

Mark Conway

In this article, Mark Conway describes his experience as a party litigant. Mr Conway was convicted and imprisoned in 2017 after defrauding Dundee City Council of more than £1 million, due to a gambling addiction. He represented himself at the High Court after his case was referred to the court by the Scottish Criminal Cases Review Commission. He succeeded at the High Court and his sentence was reduced to four years’ imprisonment, running from 2 August 2017.

When I fell into the world of addiction fueled criminality I did so as a naive layman in respect of all things legal. I was actually heartened to discover that due to the seriousness of the charges laid against me I would automatically qualify for legal aid for my defence. My first impression upon meeting my legal representatives did nothing to dispel this innate, societal gratitude. The solicitor who took up my case was as earnest as I could possibly wish for. The advocate whose services were subsequently engaged displayed a razor sharp intellect and seemingly unflappable self-assurance. I felt that I was in good hands. Yet, and without casting unmerited aspersions, by the end of the judicial process I was left feeling undervalued and under represented. Above all else I felt that the system had given me no opportunity to convey my own opinions, to offer justifications for the mitigatory factors I felt existed.

Partly this was down to my own willingness to go meekly into the night. Suitably wracked with remorse for my crime, and the weakness that I had shown in letting it occur, I readily sought early resolution by way of an early plea. Doing so eventually brought due recognition at the sentencing diet, although the utilitarian benefit to myself felt somewhat diminished by what I considered to be an excessive starting point. Harsh, was the term mooted by my counsel. To me, though, the lasting impression was one of lost opportunity. The opportunity to express my own view on the offence, as well as on the condition that had underpinned my commissioning of it. This however is the price one pays for amortising the potential risk. While no taxation without representation may have cost George III the colonies, the converse, no representation without taxation, is the tenet upon which accelerated justice hangs.

I had a voice but I felt that it was one that no one cared to hear. This did not change following my remand to prison. Our establishments of penal reform are filled with lost souls with stories untold. While it may be argued that any story with sufficient merit to attract an audience will inevitably do so, the fact is that the authorities in charge of our prisons, and also our community justice disposals, actively discourage such voices being heard. If children should be seen and not heard then prisoners should be neither seen nor heard. Under closed conditions prison managers can effectively stifle cries to the wilderness through monitoring of phone conversations and vetting of postal mail. For those progressed to open conditions a whole raft of conditions are imposed to suppress outside contact, even when considered suitable for temporary access to the community, including bans on use of electronic communications, social media and contact with media representatives.

Release under licence conditions, as imposed by the Parole Board, can often seem just as prohibitive and unnecessarily draconian. My own conditions include limits on the use of phones, internet and a continued ban on using social media. Even speaking to another living human being is frowned upon under a condition which directs that I must not ‘approach or communicate in any way, or attempt to approach or communicate in any way, either directly or indirectly, with persons whom you know to be, or should have reasonable cause to believe may be persons who gamble.’ According to the Scottish Health Survey 2017 it was identified that 63 per cent of adults in Scotland had gambled in the previous 12 months. Precognised with such a fact it seems reasonable to assume that every adult I ever meet may fall in to the category of being a person who gambles and that for me to approach such a contact thinking anything otherwise would constitute unreasonable behaviour.

Is it any wonder then that I came to welcome the opportunity to revisit the High Court as an appellant. Here at last was an opportunity for me to exercise my right to self-representation in an environment where I felt reasonably free from persecution. Surely even Criminal Justice Social Work would draw the line at alleging my contact with three judges constituted a breach of conditions. Not that I saw fit to enquire of the panel whether any of them were prone to the odd flutter, somehow it seemed disrespectful for me to do so, and even worse, what if one of them had admitted to having exercised their lawful right to buy a lottery ticket. Quel dommage, justice stymied for the sake of a lucky dip.

Flippancy aside, I genuinely found myself imbued with a determination to have my voice finally heard. For me the issue became less one of consequences than the power to claim self-advocacy. If I failed then at least I would have done so on my own terms. Looking around me, at others in prison, I had become conscious that too many of my fellow inmates were accepting of their role as cash cows for the legal profession to milk for what meagre yield could be obtained from them. Self-representation for Parole considerations were routinely left to solicitors to pen, when in truth the Parole Board would probably prefer to hear the disjointed and heartfelt offerings of the individual than the all to familiar artificial polish attaching to advice and assistance submissions. Not that I believe the submissions placed before the Parole Board have any material outcome on the decisions reached by them when set against the recommendations given by the doubly represented CJSW report writers.

Due to events which had happened after my date of sentencing, I felt that I had stateable grounds to appeal my sentence. Under Scottish criminal procedure, I had lost any right to appeal on my own behalf due to time barring, a meagre allocation of two weeks from date of sentencing, and as such my only route to appeal lay through the backing of the Scottish Criminal Cases Review Commission. As was my determination in the matter I chose to write my own application to that body rather than call upon the services of a solicitor to do so and thereby giving them the chance to rack up some more A&A fees. Fortunately for me, the legal officer assigned to reviewing my case felt that there was some merit in (part) of my submission and in due course a referral to the High Court was forthcoming. Throughout this process the various legally qualified parties whom I encountered, even down to the Lord Justice General himself, continually advised me to engage the services of a qualified legal professional to advise and represent me. My determination not to do so was occasionally tested, mainly through fear of the unknown and a lack of published information on what exactly to expect, but it is with some degree of pride that I did not cave in to the weight of opinion. 

Thus it was that I made my reappearance at the High Court as a party litigant, the term used in Scotland for someone choosing to represent themselves in court. In terms of boxing bouts, this was equivalent to a title rematch based on a clause written into the contract drawn up for the first encounter by the management team of the defending party. Rather than one judge, or referee, this time there were three. Thanks to Coronavirus there was no need to attend in person, the appeal hearing taking place virtually through use of video conferencing technology. While this may have detracted from the solemnity and spectacle of the occasion it certainly helped from a practical and logistical viewpoint. And so I sat, my silk boxers hidden from view under the kitchen table, and finally after three years of involvement in the criminal justice and judicial systems had the chance to say exactly what I wanted to say, how I wanted to say it, and with no filtering caused by having my words read out by ‘actors’. It was a cathartic experience and one which I would strongly advise others with the capacity to do so to consider for themselves. In the end it was not about the winning but all about the taking part.

As for the outcome, well, to couch it in terms which I am glad to say no longer have relevancy to my addiction free life… get in, back of the net.