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Professor of Criminal Justice and outgoing ICPR Director Jessica Jacobson (JJ) is giving the ICPR Annual Lecture on "Reimagining the Courtroom." Thread of key points to follow #reimaginingthecourtroom

JJ gives examples from ICPR’s study on experiences of the Crown Court which was carried out in the early 2010’s. Kevin, who was convicted in the Crown Court for a first offence said “It was like justice was done to me rather than for me or even with me”

Elaine gave evidence in trial of man accused of sexual offences against her daughter. She said ‘’Justice is a law unto itself... It’s all trickery. It’s not about telling the truth; it’s not about being honest any more, or perhaps it never has been.”

Our work over the past 15 yrs has examined what it’s like to attend court as a member of the public directly involved in proceedings. We’ve looked at looked at experiences of the criminal courts: defendants, witnesses & victims in the Crown Ct, Mags’ Ct & Youth Ct.

We’ve looked at experiences of the family court among parents involved in care proceedings or in private law proceedings.

Recently, with ICPR colleague Alex Murray and Lorna Templeton from the University of Bath, I’ve done research on coroners’ courts – looking at people’s experiences of attending an inquest into the death of someone they were close to.

But before I talk about what we’ve learned about court user experiences, I want to say something very briefly about the nature of court business – to set our findings in context.

The core business of the courts is fact-finding and adjudication, in relation to many different scenarios and circumstances – including allegations of criminal offences; disputes over care of children; unexplained deaths in the case of the coroners’ courts.

Fact-finding and adjudication involves the determination – by the judge or judicial officer, sometimes assisted a jury - of what has happened; where responsibility lies; what – if anything – should be done as a result, and so on.

In so doing, the courts should fulfil their essential role of delivering justice.

This can be understood as a process whereby a problem, conflict or set of questions – or collection of messy human realities – is translated into legal questions to which legal answers are given.

In most court settings in E&W, this is an adversarial process – ie entails opposing parties each presenting their own account, between which the judge is a neutral arbiter. Not all proceedings are adversarial – eg this doesn’t apply to inquests.

Of course the courts also have other functions. These include the symbolic and expressive function of communicating to the public that the law is being fairly upheld by the courts; that social order is being maintained;…

…and that the public should therefore have trust in the courts and the authorities of the state more widely. Our research has looked court users’ experiences.

We’re particularly interested in the extent to which court users feel included and able to participate in the proceedings of which they are a part.

This interest reflects a long-standing legal principle in England and Wales that ‘effective participation’ by court users is integral to justice. This is seen as a core aspect of fair trial rights, and it’s closely linked to the concept of access to justice.

We see this expressed, eg, in the Equal Treatment Bench Book – a key guidance document for the judiciary across the justice system – which states that: ‘effective communication underlies the entire legal process: ensuring that everyone involved understands and is understood’.

This principle of participation is also expressed in the popular understanding of ‘having our day in court’. But what, according to our research, happens in practice?

Many court users we spoken to have used the word ‘game’ in describing what seemed to go on in court.

These include bereaved people who attended inquests in the coroner’s court, who said: ‘Just prepare for the absolute frustration of not getting the answers you want & playing these legal word games.’

And: ‘There was a sense of playing a game you didn’t fully understand, by their rules.’ There’s so much that is unfair because it hinges on your ability to play a game and a role within that game.’ And: I was never good at games, so I could never play the game.’

And similarly a victim in the Crown Court commented that the lawyers ‘should remember: it’s not a game. They’re playing with people’s emotions and people’s lives… It’s not a human rights exercise or a game’

Reinforcing the impression of game-playing, in hearings, there are sometimes in-jokes or jocular exchanges between the professionals which can alienate those to whom the joke means nothing – as in these exchanges which we observed in the Crown Court.

In very different contexts, court users have told us of being distressed or angered when they have seen professionals – judges, lawyers and professionals giving evidence - laughing and joking during breaks in proceedings or outside the courtroom.

This seems to signal a lack of respect for, or an insensitivity to, the painful and difficult matters that the court is dealing with.

A defendant in the Crown Court described the lawyers ‘coming in and they're laughing and joking. I’m thinking: What’s this? Like you’re going for some drinks or something?’

A bereaved mother described the coroner and lawyers laughing at autocorrect errors in a transcript that was being discussed.

She said: ‘My child died. So, what are you laughing at autocorrect for? We don’t need to bring any lightness to this proceeding, thank you. We don’t need to at all. …’

And another bereaved person described witnesses chatting in the corridor outside the inquest hearing ‘as though they were at a nightclub’.

Another recurring theme we’ve heard in interviews with court users is that the ritual & formality of the courtroom is excessive.

One said, ‘I didn’t realise it was going to be set out like a court ... and that you stand up and you sit down… It's all got a bit of pomp and ceremony about it, hasn’t it, and you don’t really feel like it, do you?'

One commented: ‘My learned friends’, and the way they address people. It’s so antiquated, pompous and full of ceremony. … I shouldn’t have to stand up when that man walks in a room when he won’t even look me in the eye to discuss my daughter.’

A defendant said of the Crown Court: ‘Years ago, I used to try and justify why barristers wore silly wigs and capes and judges as well, but now, I just haven’t got time for it any more. They say they're overworked, but they’ve got time to put on their stupid costumes.’

A parent said of the Family Court: ‘It’s a bit pomp and ceremony… I just remember sitting there, and I just looked at my solicitor, … like, ‘What does that fucking mean?’

Courtroom language as a barrier to understanding is something that many court users have talked to us about.

In the youth court, professionals are meant to do their utmost to engage with the children and young people appearing there and to ensure they understand.

But we’ve still had comments about Youth Court proceedings such as: ‘They said some long words. Long - longer words, which you’ve never heard before.’

Parents from the Family Court have told us: ‘I just thought when you’re in court you’ve got to sit silent… You don’t really have a clue what they’re saying… because they’re using all these big terms and big words and stuff.’

Comprehension difficulties are much worse for court users who are especially anxious about the court case and its possible outcomes, or are vulnerable on account of mental health problems or impairments.

A defendant described undergoing a bad panic attack in court. ’Most of the time, I was sitting down on a bench, slumped over and, sort of, shaking, and sweating… I just didn’t know where I was supposed to be, what I was supposed to do, or anything like that.’

The ritual, formality and complexity of language, together, sometimes create a deep disconnect or almost unbridgeable gulf between the court process and court user.

This can be especially stark for some defendants in the criminal courts and exacerbated by the physical barrier imposed by the dock.

One example involves a female defendant being sentenced to a short prison term for an assault on her sister. She is said to have serious drug and mental health problems.

During the hearing, she sits in the dock with her hood up and hand over her face. The magistrate tells her to stand up & look at him as he gives the sentence. She stands up but closes her eyes.

Many court users we’ve interviewed have described being, essentially, spectators rather than participants – such as some parents talking about their experience of care proceedings.

One said: ‘I wasn’t even allowed …I wasn’t even allowed to speak … All the control had gone. Your voice had gone. Everything. You just sat back, and best you could hope for is that if you do as you're told, things will work out.’

Bereaved people who had attended inquests similarly described experiences of being denied their voice. This is despite the fact that, according to government policy and statements of successive Chief Coroners, the bereaved are meant to be ‘at the heart’ of the coroner system.

We heard things like: ‘I didn’t have a voice. They didn’t want to hear what I had to say.’ ‘During the whole process, as a family we became shadows.'

In recent years, and particularly since the pandemic, court attendance by videolink has become increasingly common.

There can be additional barriers to making one’s voice heard as a remote attendee at court; and sometimes it can seem like the remote attendee is more of an absence than a presence.

The cumulative effect of the various issues I’ve talked about, is that the court process is often experienced as something that works according to its own internal logic, to serve its own ends or purpose – rather than to deliver justice or other public good.

This is what was conveyed to us by several people who talked about the inquest process and said things like: ‘It’s a system, and the system is cold.’

I’m going to turn now to the question of what can be done to address the issues I’ve been describing.

There have been many and ongoing efforts at courts reform. Most notably, in 2016 the courts and tribunals service launched an ambitious, wide-ranging modernisation programme, which has just concluded.

But while the rhetoric of the modernisation programme has always emphasised the goal of enhancing ‘accessibility’ of the courts to court users…

… much of the substance of the programme has focused on efficiency measures in the context of resource constraints & austerity.

These – at best – have mixed implications for accessibility and participation

Most obviously, the growing dependence on remote methods of court attendance – greatly accelerated during the COVID pandemic – offers risks as well as some potential benefits for participation.

From the material I’ve presented, we can see that there are many ways in which the physical, social AND virtual spaces of the courtroom undermine rather than support participation. Much can be done about all of these.

First, physical space. To begin with there’s the issue of the dock in criminal courts. It is necessary to have the offender in the dock in some cases, where there is a potential security risk. This by no means apply to all cases.

There is a strong argument for minimising use of the dock because it is an obvious, physical barrier to participation by defendants…

… especially when, as is common, they are behind a glass screen at the back of the court, facing their lawyers’ backs.

In other kinds of courts, more egalitarian courtroom design and lay-out should be introduced where possible.

As for the social space of the courtroom – we’ve heard that ritual and formality can alienate court users. Adding to this, legal jargon and complex language can make the process incomprehensible.

Use of plain English, less ritual and less formality – and doing away with the wigs where they’re still worn – all this could support participation.

And for those who believe that the ritual and formality lend gravity to proceedings which might otherwise be missing I would say that it does quite the opposite when it is felt to be outdated, pompous, even ridiculous.

Gravity should inhere in the meaning of the process and the professionalism of those who are delivering it.

Coming now to virtual space: clearly, remote court attendance is here to stay.

There is no doubt that remote attendance makes participation more difficult in some respects – although some of the difficulties should lessen over time as the technology continues to improve.

But the aim here shouldn’t be to replicate, as closely as possible, the in-person experience of court, because this fails to recognise that there are also significant barriers to participation for those who attend court in person.

The goal should rather be to better support participation in both physical and virtual settings: we need a reimagined courtroom to address all aspects that are currently sub-optimal for court user engagement.

It is well-evidenced that the way people are treated has significant implications for their trust in the justice process and the legitimacy of the authorities.

In other words, experiences of the process by which justice is delivered matters as much as the outcomes of that process, in terms of what people believe and feel about the system overall.

Our own work reinforces this message that quality of treatment is crucial, and points to humanity as a core component of good treatment

We have noted how relatively small gestures or displays of humanity in the courtroom, particularly by the judge, can have a large, far-reaching impact – while not demanding any extra resources.

We’ve come across many examples of seemingly small gestures & their impact – with people vividly remembering kind words by a judge.

One Crown Court defendant described how the ‘Judge kept saying to me, ‘Do you need to sit down? Are you okay standing? If you need to sit down, just sit down. Let me know.’

And now to the need to ‘look beyond the courtroom’.

We should expect the court process to support participation and we should expect courtroom interactions to be humane. But we should not expect too much of the court process itself.

By their nature, the vast majority of court experiences will be stressful and difficult, and sometimes extremely painful – given the issues most court cases deal with. There is only so much that can ever be done to ameliorate stress, anxiety and distress within the courtroom.

Therapeutic jurisprudence is an approach to law which considers how legal processes can produce therapeutic outcomes – that is, promote well-being and healing.

I think it’s unrealistic to expect therapeutic outcomes from a court process that was never set up for this purpose, and which necessarily operates within certain strict limits set by its formal, legal functions.

However, we should expect court proceedings to be conducted in such a way that, as far as possible, they avoid producing anti-therapeutic outcomes – that is, proceedings shouldn’t exacerbate harms and pains already experienced.

If we want therapeutic outcomes to emerge from the legal process, we need to look to support and other services that can be offered beyond the courtroom. And as part of this, we should make more use of alternative approaches to justice, such as restorative approaches.

In the context of criminal justice, the value of restorative approaches is well proven. This is where offenders and victims meet to discuss the harms the victim has suffered and to explore ways of repairing the harms.

This offers a way for victims and offenders alike to engage and participate meaningfully in the process.

One offender said that while conventional criminal justice is like ‘the mass breeding of chickens in a warehouse … [Restorative Justice] gives you the opportunity to express yourself … I listened but she [the victim] listened.

A victim also talked about how meaningful it is to be listened to: ‘I felt moved, seeing someone listen’.

I also think there’s scope to make more use of restorative approaches in other parts of the justice system – not just criminal justice.

For example, in relation to coroners’ inquests, supported dialogue between professionals who had some involvement in the death and the bereaved may offer the bereaved a greater sense of resolution than can be achieved within a formal inquest hearing.

I’ll end here with a quote from a bereaved relative who spoke about having had the opportunity to speak, outside the inquest hearing, with a psychiatrist whose actions, in her view, had played a part in the death.

She explained that the psychiatrist asked the coroner if he could speak to the family after the inquest. She recounted that they met ‘in the little waiting room area.

The psychiatrist] came to us and just said, ‘I am so sorry. This has had a huge impact on me and my team, and I am so sorry this happened to your family.’ I was able to say to him … ‘I know – I get it.’

This wasn’t a facilitated restorative meeting, but it does just suggest the promise that restorative dialogue may have in such circumstances.

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