Martin Partington: Spotlight on the Justice System

In July 2015, JUSTICE, the Human Rights Group published an interesting paper on the use of the dock in the criminal trial process. It has not perhaps had the attention it deserves, but its recommendations should be considered in the context of the Transformation of our Justice System currently being taken forward.

I reproduce here the Press Release published at the time which admirably summarises the arguments.

The use of the dock for adult defendants in our criminal courts is unquestioned. Secure docks – with high walls made of glass panels – are most common, although some defendants will be held in open, wooden docks. While some courts will allow the defendant out of the dock in narrow circumstances, this is a far from uniform practice. Despite their use being an accepted norm, particularly among the legal profession, the dock has not always been so embedded within the courtroom.

The established use of docks was not cemented until as late as the 1970s, while the secure dock now in use did not arrive until 2000. Even today, there is no statutory requirement or judicial authority requiring their use in our courts. Rather, it is simply recommended Ministry of Justice policy that they be available in all criminal courts. The rationale for these increased security measures in recent decades has not been documented in the public record.

JUSTICE is concerned that the use of the dock impacts upon the defendant’s right to a fair trial, in particular: effective participation in one’s defence; preserving the presumption of innocence; and maintaining dignity in the administration of justice. These rights have long been protected by our domestic legal system, the European Convention on Human Rights and international human rights law.

Notably, a number of other jurisdictions, including those that share our common law heritage, have abandoned the use of the dock. These jurisdictions offer useful examples of discreet and humane alternatives, which are used on a case-by-case basis. Available statistical evidence for the Netherlands and the United States demonstrates security incidents rarely occur, and the same can be expected of England and Wales.

Moreover, the adverse impact of the dock on the defendant’s right to a fair trial has been explicitly recognised by appellate courts in both the USA and Australia; in fact, the rejection of the dock in the USA is safeguarded by reference to constitutional guarantees the findings of a recent experimental study in Australia aimed at assessing the prejudicial impact of the dock on juries further support JUSTICE’s concerns.

In light of our legal obligations to secure the right to a fair trial in practice – and taking into account the experience of comparative jurisdictions – JUSTICE calls for reconsideration of the use of the dock in our criminal courts. At a time when HM Courts and Tribunal Service is reviewing the use of its estate, attention should be given to how our courtrooms are designed, by reference to actual need, rather than tradition.

Recommendations

1.  There should be a presumption that all defendants sit in the well of the court, behind or close to their advocate;
2. Open docks should no longer be used and defendants should sit with their legal team;
3. Where security concerns exist, a procedural hearing should be held to satisfy the court that additional security is required;
4. In cases where there is no security risk, defendants should also sit with their legal team;
5. We invite the Lord Chief Justice to consider issuing a practice direction with regard to the above recommendations;
6. We invite HM Courts and Tribunal Service, the Ministry of Justice and other appropriate agencies to explore alternative security measures to the dock, mindful of the need for such measures to be concealed from the judge/jury and comfortable for the defendant; and
7. We invite the Ministry of Justice and other relevant agencies to review prisoner escort custody contracts to ensure appropriate security can be supplied to the courtroom.

The report is at https://justice.org.uk/in-the-dock/