In its recent report,JUSTICE , the all party law reform and human rights organisation, called for the abolition of the dock and recommended alternative strategies. The findings of this report make surprising and compelling reading.
For those unfamiliar with court proceedings, in criminal trials of adults, those remanded in custody will appear in court in a secure glass dock and if they are on bail, they often appear in an open dock rising to waist height. As a criminal defence lawyer I am well accustomed to the layout of the criminal court but have not previously given much thought to the defendant’s positioning and how the physical presence of a dock may influence our subconscious.
The latest JUSTICE report considers whether an independent observer would struggle to avoid the impression that the enclosed defendant immediately appears to be guilty simply by being presented to the court in the dock.
The dock may be an accepted norm but its use is relatively recent. A requirement to use a dock is not enshrined in our law and a number of other jurisdictions including the US use the dock seldom, if ever. The reasoning behind the relatively recent use is to prevent escape or violence but this is not supported by the evidence.
A growing body of academic research demonstrates that the use of the dock impacts on fairness in the criminal trial and is disproportionate to any perceived threat.
Within the last 20 years, the docks have become glass walled boxes that project into the courtroom or open docks, dependant on security needs. Today most courts have only secure docks, where defendants are placed whether or not they pose any risk.
In its report JUSTICE  argue that the defendant’s right to a fair trial is prejudiced by the position in the dock. Effective participation is limited, as it physically distances the defendant from the Judge and Jury and inhibits communication with their legal team. It can also make it harder for the defendant to follow all of the evidence.
I read with interest the suggestion that the presence of the defendant in the dock sets him apart as something different and possibly dangerous. An academic study in Australiain 2014  has found compelling evidence to support the contention that when evidence is inconclusive, jury’s are far more likely to convict those in an open or secure dock rather than those sitting with their lawyer. Does the dock then impact on the presumption of innocence?
In the US and Netherlands the defendant sits next to their advocate and the actual prevalence of security incidents has been found to be negligible. JUSTICE recommends that the defendant should sit with his lawyer so that they can confer and he can play an active part in the proceedings. This would also remove any subliminal bias based on his position in the courtroom. The report also suggests that where there is potential risk of violence or escape, the Judge could consider an application for concealed restraints. Other security measures proposed, include more security guards in the courtroom and in high risk cases, the jury could instead be separated from everyone else in court by a glass screen.
 D. Tait et al ‘The Dock on trial: courtroom design and the presumption of innocence’,