We have abolished the gallows, the gibbets and the pillories that once adorned every rutted turnpike cross-road.
It’s now time to turn our attention to another eighteenth century legal relic. No, not the harmless wig, but the pernicious practice of forcing defendants to stand trial while caged inside the wooden and glass cages known as “docks.”
The Lord Chief Justice, Lord Thomas, seems to think so too.
In a speech last week to Birkbeck College’s Institute for Criminal Policy Research Lord Thomas suggested that docks could be abolished:
“Do you really need the dock? Are they really necessary? I do think these sort of radical ideas need considering …. They are terribly expensive. Particularly in magistrates’ courts.”
Abolition of the dock may seem like a dangerously radical idea to English criminal lawyers. It is rare that any justification is felt necessary for caging the defendant – often behind thick bullet-proof glass – at the back of the court-room.
What is more, in recent years, far from moving towards their abolition, the Ministry of Justice has been spending scarce resources installing ever more intimidating and impregnable docks. Invariably these interfere with the defendant’s ability to hear what is said in court. Crown Court trials are regularly interrupted by the whine of feedback as some electro-acoustic fault develops in a sound system which is only required because the thick glass walls of the dock block natural sound-waves.
Yet docks – with or without glass screens – are in fact entirely unnecessary. Far from assisting in the administration of justice they actually contribute to injustice. They undermine the presumption of innocence, they strip away the defendant’s dignity by treating him (at a time when the law presumes him innocent) as a dangerous criminal, and they interfere with the his ability to confer with his legal representatives.
As the trial rages in court the defendant’s position in the dock means that even if he can hear what is said there is little that he can do about it. If a police officer thinks of some important fact or question that needs to be asked he can quietly mention it to the prosecutor.
But the defendant has no such ability.
Sometimes the design of the dock may allow him to pass a discreet note to his solicitor (assuming that the solicitor has a representative present in court, itself a highly implausible assumption these days). Otherwise, when his brief fluffs a crucial question the unfortunate defendant has to choose between sitting on his hands and hoping for the best or burying his head in his hands and fearing the worst. As he can’t catch the eye of his advocate his only other option is to create such a fuss that the judge interrupts the trial to announce, in tones of ill-concealed exasperation, “your client wants to tell you something.” It is a grotesque and ridiculous arrangement.
Keeping the defendant locked away at the back of the court might have made sense in the days when he was not allowed to give evidence, not allowed counsel and expected to spend his trial leaning back and contemplating his imminent hanging. It makes no sense today.
Anyone who watched the televised Oscar Pistorious trial will have noted how the defendant was seated on an ordinary bench behind his legal team rather than in a locked dock.
And South Africa is not alone amongst common law jurisdictions to have hugely curtailed the use of docks. In Canada they exist, but are rarely used.i In Australia, they are still used but there have at least been effective challenges to the routine use of glass screens.ii
In the United States docks have been ruled unconstitutionaliii in all but wholly exceptional cases where the security risks are otherwise unmanageable. Save for a few defunct docks in Massachusetts which are hardly ever used,iv most American courts no longer have docks at all.v
The American rule is in fact a development of the English common law. According to Blackstone:
“it is laid down in our antient books, that, though under an indictment of the highest nature,”a defendant “must be brought to the bar without irons, or any manner of shackles or bonds; unless there be evident danger of an escape, and then he may be secured with irons “vi
The rule did not stem from any particular concern for the presumption of innocence, still a somewhat shaky concept in eighteenth century England. It was because shackles and manacles, even when (as they sometimes were) lined with leather to prevent chaffing of the skin, could be painful to wear. As Coke put it (in a passage shortly before he discusses the use of the rack):
“If felons come in judgement to answer, . . . they shall be out of irons, and all manner of bonds, so that their pain shall not take away any manner of reason, nor them constrain to answer, but at their free will” vii
Whatever the origins of the rule, American jurisprudence is now clear. Any restraining mechanism, whether visible shackles or placing the defendant in a dock is considered a violation of the presumption of innocence, an interference with the defendant’s right to counsel and an attack on his dignity.viii In exceptional cases the trial judge may authorise measures to prevent the defendant’s escape, such as the presence of extra armed guards in court,ix the wearing of invisible restraints or even, possibly, the wearing of an invisible electric stun belt,x but enormous care is taken to to ensure that the jury is not prejudiced as a result.
English courts accept that the wearing of visible restraints in court is hardly ever justified; no longer because they are painful but because they are prejudicial. In Hordenxi Hughes L.J. described as the rule as “obvious” and “uncontentious,” because:
“The jury must be free to decide upon the guilt or innocence of the defendant without the risk of being influenced against him by sight of restraint which in their minds suggests that he is regarded with good cause as being a dangerous criminal.”
Yet if the wearing of handcuffs is “obviously” prejudicial, then so too is placing the defendant in a separate dock, particularly if that box amounts to a glass cage.xii
Solid empirical evidence on the issue is lacking, but what little there is supports the American view that the use of docks, especially when accompanied by glass screens, is highly prejudicial to the interests of the defendant.
Preliminary results of research involving 400 mock jurors and defendants conducted by Professor David Tait of the University of Western Sydney found that 60 per cent of jurors found the defendant guilty when he sat in a glass dock, 47 per cent when he was in an open dock, and only 36 per cent when he sat at counsel’s table.xiii Should Prof. Tait’s preliminary findings be borne out by the final published research it will be hard to deny that placing a defendant in a dock at a criminal trial leads to gross unfairness.
Tait’s research has concentrated on Australia, but it is not just in the common law world that the unfairness of docks has been recognised. The issue has been raised repeatedly in the European Court of Human Rights.
An early and unsuccessful challenge to the use of a glass dock was Stanford v. United Kingdom.xiv The applicant argued simply that he had been unable to hear proceedings properly. He failed, largely because he had not raised the problem at the trial.
Subsequently, however, whilst the Court has not accepted that the use of a dock per se leads to an unfair trial, it has more than once found that it can amount to “degrading treatment” in breach of Article 3, especially when used for non-violent defendants.
“… nothing in the applicant’s behaviour or personality could have justified such a security measure. … The applicant showed orderly behaviour ….. Moreover, the applicant had no previous convictions or any record of violent behaviour and was accused of a non-violent crime. …. The metal cage … was a permanent installation which served as a dock … the applicant’s placement in it was not necessitated by any real risk of his absconding or resorting to violence but by the simple fact that it was the seat where he, as a defendant in a criminal case, was meant to be seated.”
It was no answer to say, as English judges like to say, “that is simply where defendants sit in criminal trials.” Nor, in principle, should it make much difference that modern English docks are built from the latest materials rather than the old fashioned Soviet era iron bars used in Armenia. A gilded cage is still a cage.
In Khodorkovsky v. Russia,xvi the additional factor of an intrusive presence of guards around the cage meant that the defendant was not only subjected to degrading treatment but that his Article 6 right to a fair trial was also compromised.
It is surely only a matter of time before the European Court of Human Rights follows the example of the United States Supreme Court and rules that docks belong to a bygone era.
But English and Welsh judges should not wait to be led by Europe. No statute requires an English defendant to sit in a dock. Docks are not even mentioned in the Rules of Criminal Procedure. The Lord Chief Justice, is in the perfect position to issue a practice direction tomorrow, emphasising to trial judges that, as in Canada, docks should be used only when absolutely necessary. The default position should be that the defendant sits in the body of the court.
He would not even need to look abroad for guidance. As President of the Courts Martial Appeal Court he will know that in military courts docks are unknown. The defendant sits beside his counsel: a fairer, more dignified and far more convenient arrangement.
Docks are nasty relics of eighteenth century injustice. It is time to dismantle them.
(First published in Criminal Law and Justice Weekly February 7th 2015)
iSee, for example R. v. Ahmad et al., 2010 ONSC 1777 per F. Dawson J: “when all accused are out of custody, generally speaking, they should be permitted to sit at counsel table absent some good reason being shown as to why being seated in the dock is necessary, or at least advisable….” Contrast R .v W.S.J (1999) 15065 ONSC
iiDavid Tait Glass Cages in the Dock: Presenting the Defendant to the Jury (2011) 86 Chicago-Kent Law Review
vSome courts in South Carolina apparently used to possess a small enclosure “normally mounted on wheels so it can be gotten out of the way when necessary,” but by the 1960s it was not used during trials. See Lionel Rosen The Dock – Should it be abolished (1966) 29 MLR 289
viiiDeck v. Missouri Supra
xi 2 Cr App Rep 24
xiiSee Julie J Miller: A rights-based argument against the dock  Crim. L.R. 216
xiv(1994) ECHR 16757/90
xv(2010) ECHR Final Judgement 34334/04