Putting a defendant in a dock risks infringing the presumption of innocence.

The defendants sit in this dock because… [i]t is the way in which the court is laid out and it certainly is nothing to… a defendant’s detriment… (R v Bajwa, jury direction).

Criminal court advocates may be familiar with this direction, which seeks to avoid juries prejudicing the defendant as a result of where they sit. This in itself indicates that there may be a problem with the dock, known to the legal profession, but largely overlooked.

Judicial discretion determines whether a defendant is placed in the dock, but there is no uniform guidance on how security issues should be addressed. The standard approach, therefore, is that all adult criminal defendants remanded in custody sit in a secure dock during trial. This resembles a large box, with high walls made of glass panels. A defendant who is not remanded in custody will almost always appear in an open dock.

In a report published last week, Justice examines the use of the dock in criminal trials. We question its necessity, its impact on fair trial rights and its interference with the dignity of the defendant, who is innocent until proven guilty. Speaking at the launch of the report at Dechert, the lord chief justice

welcomed it as ‘raising the debate’. He stressed ‘the need to go back into the community and do justice locally’ which he said ‘in no way [can be done] with a big secure dock’.

The use of the dock in criminal trials is an accepted norm and as a result its use is rarely challenged. However, the dock has not always been so embedded within the courtroom; its use was not nationally required until the 1970s, while the secure dock did not arrive until 2000. By contrast, many jurisdictions do not use the dock at all. In the US, South Africa, the Netherlands and Ireland, the dock is seldom if ever used.

The accepted use of the dock in this jurisdiction is perhaps surprising as it inhibits lawyer-client communication and prevents the defendant from effectively participating in their trial. Taking instructions when the defendant is in a box at the back of the room is prohibitive. Yet the organic nature of adversarial proceedings means that evidence can evolve and consultation with the defendant during trial should be the norm.

This is true of civil, military and even youth court proceedings, where the client is in close proximity to their lawyer throughout. Equally concerning is the evidence of interpreters, appropriate adults and defendants that it is hard to hear or communicate from inside the secure dock.

The dock also risks infringing the presumption of innocence. For jurors, who are invariably new to the courtroom, placing a defendant in the dock signals that they are a security threat. This risks prejudicing the jury against the defendant simply because of where they are seated. Recent mock trial research conducted in Australia bears this out.

Security and escape risks are necessary considerations. There is no public information about security breaches in our courts, yet statistics from other jurisdictions suggest such incidents are rare. Therefore, in Justice’s view, the enclosure of all defendants in the dock is a wholly disproportionate response. Drawing on comparative research, we consider that there are viable security alternatives that will also preserve fair trial rights, such as discreet presence of security officers and concealed restraints.

Our report calls for reconsideration of the use of the dock as we believe it undermines the fairness of the proceedings. We expect that removing docks will allow more flexible use of the court estate and provide long-term cost savings.

As HM Courts & Tribunals Service is currently reviewing the estate, we believe attention should be given to alternative courtroom design. In the meantime, we encourage lawyers to apply for fairer treatment of their clients, by reference to actual security need, rather than tradition.

The report is available on the Justice website.

Jodie Blackstock is director of criminal justice at Justice