The presumption of innocence is hugely important. Amongst other things it emphasises that the powers of punishment possessed by the State should only be exercised against individuals whose guilt has been proved by reliable evidence. Numerous inroads have been made into that basic principle in the last twenty years, including requiring accused people to prove their innocence in some circumstances and allowing types of evidence to be given that have been considered unreliable for decades and, in some rare cases, centuries. I do not want to discuss those today but to look at something that occurs every day in criminal courts and which I have always considered fundamentally at odds with the presumption of innocence.
I refer to the practice of the accused person having to sit in the dock. As a general rule of courtroom architecture the dock is an enclosed area towards the rear of the court and faces the judge, lawyers involved in the case sit between the dock and the judge. In some older courts, such as the four original courts at the Central Criminal Court (Old Bailey), the lawyers sit on the side opposite the jury but in almost all newer courts the lawyers sit in rows in front of the judge with the dock behind them.
Many docks are raised above the level of the well of the court and the defendant sits in deliberate, exposed isolation as his fate is decided by everyone before him. His legal team cannot just lean over and ask him a question or pass him a note, they have to move to the back of the court and stretch upwards to get their instructions. It draws attention and disrupts proceedings.
In the civil courts the litigants sit with their lawyers. This is useful because it is often necessary to take further instructions during a case and it can be done quietly and without interrupting the trial if the person you need to speak to is beside you or in the row behind. More than that, both the claimant and the defendant are on the same physical level. Although one of them claims that the other has done something wrong, the presumption of innocence applies also in civil cases and this is reflected by the fact that they sit in the same row of seats no matter how bitter their dispute.
Many High Court judges spend most of their lives working as barristers or solicitors on complex civil disputes and then, on being appointed to the bench, are given a pretty constant diet of serious criminal cases to try. Often this means murders and manslaughters. Although long fraud trials are rarer now than twenty or so years ago they still happen and the usual practice now is to dispense with a dock and allow the defendants to sit with their legal team. That practice was first adopted regularly in the late 1980s when the courtrooms used for such cases simply did not have docks because they were not designed as criminal courts. No problem was encountered of defendants doing a runner during the morning smoking break, it all worked rather well and allowed the proceedings to be got through with the minimum of fuss.
That, indeed, is the practice in most States of the USA. Even in cases of capital murder the accused person sits with his defence team in the well of the court. He might be in handcuffs or ankle cuffs, where there is any serious fear that he will abscond he will be in some sort of restraints, but he is presumed innocent of the charge he faces so he faces that charge without being put on an isolated pedestal at the rear of the court like an exhibit in a freak show.
Where there are very solid grounds for believing an accused person might abscond there are also good grounds for him being placed in an area of the court from which escape is difficult. That is, however, a very rare circumstance. In the normal run of things defendants are not kept in custody before or during their trial. They go home at the end of each day and turn up the next day. When in the car or on the bus going to and from court they are just another person, no one gives them a second glance. But when they get to court they are sent to a special confined area and set apart from everyone else involved in the trial.
It could be said that placing a defendant in the dock suggests nothing about his guilt or innocence and is merely giving him a special place because the case is about him. But that misses the point. Everyone with a need to know who is accused will know it regardless of where he sits. By separating him physically you set him apart from everyone else simply because he has been accused. Yet he is not different simply by reason of being accused, he is still presumed innocent just as the judge, lawyers, jury and court staff are presumed innocent whatever they might actually have done.
Let me link this to current news. Today it is reported that two men have been arrested on suspicion of the murder of PC Keith Blakelock in 1985. I popped into the Old Bailey to watch a few hours' evidence when three people were tried for that murder in 1987. It was headline news at the time and a chum of mine was representing one of them, so I thought I'd take a look. I had an afternoon when my paperwork could wait, so went down to the Old Bailey, donned the wig and gown and went into court. The first thing I did (after bowing to the bench, you always have to do that first) was look up at the dock to see "them". And that is exactly how it was, there was a "them", a trio of brutal murder suspects. I didn't view them as just three blokes I might have been sat near in a pub. They had a different character, they were accused of murder and their very presence in the dock identified them as something different from the rest of us. I cannot pretend I looked on them with the presumption of innocence at the forefront of my mind because I did not. Ghoulish though it was, I felt I was looking at three cold-blooded barbarians who hacked a police officer to death with machetes. As you probably know they were convicted but then freed on appeal due to serious deficiencies in the way evidence was gathered. When gawping at them I was not applying a presumption of innocence, I was doing exactly the opposite and the effect was enhanced by all three of them being in the special naughty box.
Docks have been part of our criminal courtrooms for well over a hundred years. Today they are less appropriate than ever because press and TV reporting of serious crimes has become so sensational that the presumption of innocence is undermined long before an accused person appears in court. The very least that can be done is to ensure the courtroom does not add to the isolation of the accused person from all the other "presumed innocent" people in court.
I refer to the practice of the accused person having to sit in the dock. As a general rule of courtroom architecture the dock is an enclosed area towards the rear of the court and faces the judge, lawyers involved in the case sit between the dock and the judge. In some older courts, such as the four original courts at the Central Criminal Court (Old Bailey), the lawyers sit on the side opposite the jury but in almost all newer courts the lawyers sit in rows in front of the judge with the dock behind them.
Many docks are raised above the level of the well of the court and the defendant sits in deliberate, exposed isolation as his fate is decided by everyone before him. His legal team cannot just lean over and ask him a question or pass him a note, they have to move to the back of the court and stretch upwards to get their instructions. It draws attention and disrupts proceedings.
In the civil courts the litigants sit with their lawyers. This is useful because it is often necessary to take further instructions during a case and it can be done quietly and without interrupting the trial if the person you need to speak to is beside you or in the row behind. More than that, both the claimant and the defendant are on the same physical level. Although one of them claims that the other has done something wrong, the presumption of innocence applies also in civil cases and this is reflected by the fact that they sit in the same row of seats no matter how bitter their dispute.
Many High Court judges spend most of their lives working as barristers or solicitors on complex civil disputes and then, on being appointed to the bench, are given a pretty constant diet of serious criminal cases to try. Often this means murders and manslaughters. Although long fraud trials are rarer now than twenty or so years ago they still happen and the usual practice now is to dispense with a dock and allow the defendants to sit with their legal team. That practice was first adopted regularly in the late 1980s when the courtrooms used for such cases simply did not have docks because they were not designed as criminal courts. No problem was encountered of defendants doing a runner during the morning smoking break, it all worked rather well and allowed the proceedings to be got through with the minimum of fuss.
That, indeed, is the practice in most States of the USA. Even in cases of capital murder the accused person sits with his defence team in the well of the court. He might be in handcuffs or ankle cuffs, where there is any serious fear that he will abscond he will be in some sort of restraints, but he is presumed innocent of the charge he faces so he faces that charge without being put on an isolated pedestal at the rear of the court like an exhibit in a freak show.
Where there are very solid grounds for believing an accused person might abscond there are also good grounds for him being placed in an area of the court from which escape is difficult. That is, however, a very rare circumstance. In the normal run of things defendants are not kept in custody before or during their trial. They go home at the end of each day and turn up the next day. When in the car or on the bus going to and from court they are just another person, no one gives them a second glance. But when they get to court they are sent to a special confined area and set apart from everyone else involved in the trial.
It could be said that placing a defendant in the dock suggests nothing about his guilt or innocence and is merely giving him a special place because the case is about him. But that misses the point. Everyone with a need to know who is accused will know it regardless of where he sits. By separating him physically you set him apart from everyone else simply because he has been accused. Yet he is not different simply by reason of being accused, he is still presumed innocent just as the judge, lawyers, jury and court staff are presumed innocent whatever they might actually have done.
Let me link this to current news. Today it is reported that two men have been arrested on suspicion of the murder of PC Keith Blakelock in 1985. I popped into the Old Bailey to watch a few hours' evidence when three people were tried for that murder in 1987. It was headline news at the time and a chum of mine was representing one of them, so I thought I'd take a look. I had an afternoon when my paperwork could wait, so went down to the Old Bailey, donned the wig and gown and went into court. The first thing I did (after bowing to the bench, you always have to do that first) was look up at the dock to see "them". And that is exactly how it was, there was a "them", a trio of brutal murder suspects. I didn't view them as just three blokes I might have been sat near in a pub. They had a different character, they were accused of murder and their very presence in the dock identified them as something different from the rest of us. I cannot pretend I looked on them with the presumption of innocence at the forefront of my mind because I did not. Ghoulish though it was, I felt I was looking at three cold-blooded barbarians who hacked a police officer to death with machetes. As you probably know they were convicted but then freed on appeal due to serious deficiencies in the way evidence was gathered. When gawping at them I was not applying a presumption of innocence, I was doing exactly the opposite and the effect was enhanced by all three of them being in the special naughty box.
Docks have been part of our criminal courtrooms for well over a hundred years. Today they are less appropriate than ever because press and TV reporting of serious crimes has become so sensational that the presumption of innocence is undermined long before an accused person appears in court. The very least that can be done is to ensure the courtroom does not add to the isolation of the accused person from all the other "presumed innocent" people in court.
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1 comment:
Not read such a bleeding liberal, they can't help it, rose tinted biased piece of tosh in a long while.
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