Late last year I was in the dock for a three-week multi-handed rape trial in the Crown Court. I wasn’t the defendant. I was working as a paralegal and my firm was representing one of the men charged. Gareth (not his real name) had intellectual difficulties that would make it especially hard for him to understand his trial but there wasn’t an ‘intermediary’ (a professional appointed to help vulnerable witnesses or defendants in court) available, so I was sent to sit by him in the dock and help him understand the proceedings.
I had often thought that the dock must have a confusing and prejudicial effect on jurors – if the defendant is innocent until proven guilty, why is he already locked up? But it would be an entirely new experience to see a trial from the defendant’s perspective. What does a trial look and sound like from within the glass box at the back of the court?
The answer was partly ‘not much’ because it was difficult to hear what was going on. The speakers inside the dock, which are supposed to amplify the sound from the main part of the courtroom, didn’t work and there was apparently no one on hand to fix them. The next best thing were remote microphone ear loops, so we sat in a row with headphones on like the War Crimes Tribunal of Croydon. But sometimes they didn’t work, or they gave so much noisy feedback that it wasn’t worth wearing them.
I was supposed to be taking notes but there was no table or ledge on which to rest my laptop or papers. The design of the dock seems to assume the defendant is not interested in the evidence.
Over the weeks, the tension between the defendants sometimes simmered in that small glass box, even though in this case there was not an explicit ‘cut throat defence’ (whereby a defendant blames a co-defendant for the alleged crime). If there were to be that sort of defence, and more defendants, or one defendant blaming multiple others, all of whom would be crowded in the dock together, the atmosphere would have been even more intense. It is often said that the dock prevents outbreaks of violence, but against whom? It became obvious to me from the tension in the dock that they increase the likelihood of collision between defendants.
There is sometimes humour and camaraderie in the dock. Being able to have an occasional laugh is perhaps the only advantage the virtual soundproofing of the secure dock affords. But more often the feelings that spring from the negative differentiation the dock enforces are ones of alienation, disengagement and cynicism.
“They’re just here for the money, not us.”
“They don’t give a fuck about us.”
“This judge just rambles on and then gives everything to the prosecution.”
“Look at them all laughing.”
“This is so boring.”
Gareth had been remanded in custody for six months before the trial began. When we visited him in prison our meetings were always in the same small, stuffy legal visit room with chairs and tables bolted to the floor and no ventilation or natural light. During the trial, between court sessions, defence counsel and I would visit him in the cells in the court’s basement. Again, the legal consultation room was tiny and airless. When the court days were over, Gareth would be loaded on to a van for the long drive back to prison.
This type of van is sometimes called the ‘sweat box’ because of the heat that can build up in the cramped cubicles inside. Gareth told me that when court sat until 4.30pm, he would not get back to prison until 8pm, by which point meal time and shower time were over and he would be taken straight back to his cell for a restless night’s sleep, only to be woken up before dawn the next day for the whole process to begin again.
Not being able to sleep properly, wash, eat enough, exercise or have any fresh air, were taking their toll on Gareth’s health. As the trial went on, he became increasingly unkempt. He was unshaven and his skin flared up and looked swollen and sore. He would slouch in his chair, become drowsy and appear to lose focus. I became concerned that the jury would think he looked bored with the whole process, or uncaring of the consequences. At one point he appeared so tired and dishevelled that proceedings were paused so that a doctor could examine him.
I often asked Gareth whether he needed anything to be explained. Much of the time he would say no, but when pushed further it became clear that this was not because he had been able to follow all of the proceedings in court, he hadn’t. In fact, he didn’t ask me to clarify things because he had not been able to maintain the focus required to catch even half of what was happening on the other side of the thick glass. In the end, the struggle to absorb what is going on becomes exhausting in an already draining process, and it is easier to stop straining to engage and simply let the process wash over you.
What became abundantly clear to me was that being locked in a small space over a long period of time: a cell, a van, the dock, is not just physically stifling, it is mentally stifling too. You become an object to be transported or held, rather than an autonomous thinking being. In the dock, this kind of enclosure suffocates active engagement. I wondered how different our client’s involvement in the trial would have been if he were afforded the opportunity of stepping down into the relative openness of the well of the court, taking his place next to his counsel and experiencing the proximity of the judge, witnesses, jury and physical evidence. Would the trial have seemed fairer? Notwithstanding his intellectual difficulties, what might Gareth have spotted that the lawyers had missed?
There may be some lawyers who would rather not have their clients sitting next to them during trials in case of being distracted. But there have also been public calls by prominent criminal barristers for docks to be abolished.
The main purported utility of the dock is as a safety measure. The secure dock was only introduced to courtrooms in England and Wales in the early 2000s. The high glass screen has only been prevalent in courtrooms since the 1990s. Before then, the dock was a simple platform open to the court, with only a single waist-height bar enclosing it. In what way has the risk of escape or attack heightened since before the introduction of these structures to make them necessary? The answer is it hasn’t.
I have recently been working in the United States on death penalty cases. There you have defendants charged with first degree murder and on trial for their lives and the dock is nowhere in sight. The defendant sits at counsel’s table with proper access to note taking materials and the case papers. Even handcuffs in front of the jury are disallowed because of the prejudice they cause and the fact they impede proper interaction with defence counsel. The US Supreme Court stressed in the 1970 case of Illinois v Allen that “one of the defendant’s primary advantages of being present at the trial [is] his ability to communicate with his counsel” and this “is greatly reduced when the defendant is in a condition of total physical restraint.” If the dock isn’t total physical restraint, then what is? When I recently explained what docks were to an assistant district prosecutor in Georgia, he thought the very idea “disgusting”.
Unusually in Gareth’s case he could tell me directly when he had a point to make and I would either address it whilst sitting next to him if I could, or raise it with his barrister at the next break. But like all other criminal defendants, Gareth’s co-defendant had to get his barrister to come to the dock to receive notes or whisper through the slats in the glass if he wanted to raise any questions or concerns during proceedings. In order to do this he would have to catch her attention when she had her back to him, so he hardly ever succeeded. This made him frustrated and sometimes downright angry, and he would often give up and put his head in his hands.
When the verdict came in, Gareth said he did not want me in the dock with him. He did not give a reason but he looked extremely stressed. I wondered if the fact that he was literally boxed in made him feel more likely to explode and ‘kick off’ if the outcome was negative. One hears it said that if you treat people like animals, then they will behave like them. I don’t particularly agree with this sentiment because it seems to assume that people in the carceral system easily become debased or out of control. But it is perhaps a salient point that the word dock derives from medieval slang for an animal pen.
Gareth was found not guilty on all counts. His family, huddled in the public gallery, smiled through tears of anguish and relief – the long ordeal was over. But Gareth wasn’t able to approach and embrace them, he was still locked in the dock, and had to be led back down to the cells for the protracted procedures of release from custody to ensue.
Three weeks in the dock taught me just how much they alienate and exclude defendants from their own trial. How can you trust a process that pretends to presume you innocent but treats you as if you are guilty? How can you understand a process if you aren’t allowed to properly engage with it? The advantages of the dock are of convenience rather than legitimacy. To get rid of them the whole culture and setup of the courtroom in England and Wales would have to change. But the rewards would be manifold: proper recognition of the presumption of innocence, enabling communication with counsel throughout proceedings, allowing active engagement with the process, and dignity for the defendant.
After centuries of keeping defendants in the dock, it is high time that the criminal justice system in this country dropped this prejudicial relic and moved into the modern era.
You can read the Howard League for Penal Reform report (What if the dock was abolished in criminal courts?) here