Yesterday, JUSTICE, the all party law reform group published a powerful and convincing report arguing that the dock should be abolished in English criminal cases. At the launch of the report, which was supported by the law firm Dechert, Lord Thomas, the Lord Chief Justice gave a speech to welcome its publication and looked forward to the debate it would no doubt provoke. Jodie Blackstock, JUSTICE’s Director of Criminal Justice and Anthony Burton spoke in support of its recommendations.
JUSTICE takes three principal objections to the use of the dock, particularly the modern secure dock in general use since about 2000 concerning the impact on a defendant’s right to a fair trial in respect of effective participation in one’s defence, the preservation of the presumption of innocence and the maintenance of the dignity in the administration of justice.
The report is instructive in illuminating the short history of the dock in English criminal cases, the even shorter and very recent history of the secure dock and the very significant evidence from other countries, some with systems very closely connected to our own, where the dock is absent from criminal trials altogether.
In the United States, the dock was still in common use in Massachusetts until the 1980’s but in other states there was no use of the dock during trials. A US Court of Appeals for the First Circuit criticised the use of the dock as an erosion of the “presumption of innocence that every person is to enjoy”. The First Circuit judgment held that where no justification is given by the judge and there are no security concerns, confinement in the dock is unconstitutional, being incompatible not only with the presumption of innocence but also with effective consultation with counsel.
In Ireland, as far back as 1966, a report concluded that the dock was not an essential part of the courtroom in criminal trials. It was seen as out of date and incompatible with fair trial rights in a similar way to the US example above. Whilst there may in some cases be a form of open dock, the secure dock is not in use.
In the Netherlands, there is no evidence of docks ever being used. Direct contact between lawyer and client is possible in all cases. In other European countries it was common for there to be a metal cage for defendants in court; these were, for example, used in the mafia and terrorist trials in Italy in the 1980’s, but the practice is now being abandoned, even in countries like Moldova and Ukraine.
In Australia research has been carried out recently which demonstrates that the dock had a particularly negative impact on the outcome of a trial for defendants where the evidence was inconclusive as to guilt.
The obvious objection to any reform of the use of the dock is security. Yet security concerns are dealt with adequately in the various jurisdictions which do not have the dock or at least no secure dock. There are alternatives to the use of the dock to safeguard court users. In the US, measures are taken to restrain defendants in cases where this is justified, but restraint devices are concealed from the jury wherever possible and the case for such restraint has to be made at a formal evidentiary hearing.
There is no statutory basis for the use of the dock in England and the presence of the defendant in the dock is a matter for the trial judge to determine based on any application made by the defence. Among the recommendations made by JUSTICE in support of the abolition of the dock is for the Lord Chief Justice to consider issuing a practice direction on the measures to be taken in criminal trials so that there is a presumption that all defendants should be able to sit with their lawyers in court.
But there is no reason to wait for a practice direction. This report is sure to prompt (and so it should) a routine application now in all criminal trials for the defendant to sit with their lawyers and not in the dock.
Copies of the report, In the Dock – Reassessing the use of the dock in criminal trial, are available from JUSTICE here.