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Security Court in Frederiksberg, Denmark. Photographer _Mark Wilde

Flexible Courts

WORDS BY David Tait

Domestic violence and terrorism are critical matters to consider when designing courts. We live in an age of fear; it is perceived as common to fear our own partners in the family home, or rogue, politically motivated gunmen on the streets or within public centres. It is regularly argued that courts, by contrast, should be based not on fear but on principles of serenity, openness and respect for human rights.

Domestic and family violence pose ongoing risks for courtroom participants; be it in relation to the care of children, property disputes or protective orders. Whether handled in the federal family law court, state courts, or both, formal disputes are often played out in the corridors, waiting areas and car parks of courthouses increasing the need to design for flexibility and security.

The majority of violence and abuse that takes place with the court buildings or during proceedings stems from family and domestic violence cases. While court staff are often subjected to verbal abuse, judges, prosecutors and lawyers are among those least likely to be verbally or physically attacked within the court environment.

Terrorism cases, by contrast, tend to be less heated, quieter and more reserved in courts. This was recognised in the 2007 Benbrika trial in the Victorian Supreme Court when Justice Bongiorno ordered the special glass around the dock to be removed in the ceremonial courtroom of the County Court. From this, there has been a boom in a design approach that advocates both security and flexibility within the public spaces of law courts; allowing separation of waiting areas or the opening of new entrances whenever it is deemed necessary. In turn, better scheduling and suitably-trained judicial officers and staff help make the tense legal environment calmer and safer.

Despite this design approach taking place in shared spaces, Victorian courtrooms continue to place defendants in jury trials away from their lawyers in an enclosed dock towards the back of the room. Victoria, which ironically has a Human Rights Charter, clings on to this archaic courtroom design that impedes effective access of defendants to counsel and undermines the presumption of innocence.

Victorian courtrooms were originally modelled on the design of courts in Ireland, however after the Free State Army bombed the Four Courts in Dublin during the 1922 Civil War, the docks there were not restored. Today Irish courts place the defendant at the bar table (if self-represented) or at an open bench alongside the bar table; a move justified on human rights grounds.

It was once suggested to me by a senior judge on the Court of Appeal for England and Wales that if one group of litigants is more likely to commit violence in court than another, then we should confine those of higher risk within boxes in the courtroom (and potentially in waiting areas too), while allowing lower risk defendants to sit with their lawyers. The implication being that flexible court spaces would need to be available to allow the presiding judge to choose the appropriate level of formality and adjust the level of security according to the level of risk. If participants in a case pose a risk to others or are at risk themselves, then appropriate measures should be taken. But what measures are ‘appropriate’, and what options are available to architects?

The risk to the safety of individuals or to the order of the court often comes from the public or friends and family of defendants in the courtroom rather than the defendant. Putting the defendant in a cage will not stop violence in the room itself. One solution is to put the public gallery behind glass. This is standard in international criminal and high security courts in Denmark and Sweden. There are also some courtrooms in the Cook County Court in Chicago that use this method. When such a screen is done well, as in the district court in Frederiksberg (a small municipality surrounded by Copenhagen), there are enough gaps in the glass to allow the public to hear proceedings with minimal amplification. Where the identity of the witness is concealed from the public (which often happens in the International Criminal Court in The Hague), the witness can be hidden by blinds or glass frosting.

Another solution, used in Western Australian courts when required, is to provide separate live stream viewing areas for conflicting groups. Members of the public still get a chance to see justice being done, but their opportunity to disrupt proceedings or fight with rival groups is largely removed. Alternatively, some participants are able to take part in court or tribunal cases via video link. This is routinely done to hear testimony from vulnerable child witnesses, or for bail hearings for individuals in custody. It is often used if a witness faces a credible threat of harm if they appeared in person, or where a defendant is considered so dangerous that they would otherwise be placed in a dock.

In trials relating to national security, the jury may also be at risk. Indeed the risk to jurors was the reason given for the development of judge-only trials during the Troubles in Northern Ireland, and for a special jury consisting only of judges for terrorism trials in France. This raises the question for jurisdictions like Victoria – for terrorism cases where the jury could be at risk, is it better to abandon jury trials altogether or have an anonymous jury viewing the trial by video link?

Taking measures to make hearings and hearing rooms safer is only part of the picture. As mentioned, risks of violence can also be high in areas surrounding the court building, particularly in domestic violence cases. This is why the Family and Circuit Courts of Australia regularly provide staff to escort people to and from their cars as part of safety plans.

Potential terrorist threats however are rather different in character. The ideal soft targets are people queued up outside or just inside a building; an army recruiting station, fans entering a sports stadium, or court attendees lining up to go into a court building for example. Setting up security screening stations at the entrance to a court (rather than set back after registry services as they are in Darwin Supreme Court or Perth District Court) can be seen as a measure that increases the vulnerability of courts to terrorist attacks.

If placing defendants in a dock potentially undermines the right to a fair trial, and if making court visitors queue at the entrance to the building increases risk, why continue with practices that are unfair or potentially dangerous? The history of court design may help to explain the former, while slavish deference to security consultants may explain the latter. Until courts start to pay more attention to the research evidence about how to create safer buildings, we may continue to have court buildings that reflect fear rather than promote both security and serenity.

http://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3793&context=cklawreview

http://www.nytimes.com/2013/11/19/world/europe/courtroom-cages-remain-common-despite-criticism.html

 

Security Court in Frederiksberg, Denmark. Photographer, Mark Wilde

Security Court in Frederiksberg, Denmark. Photographer, Mark Wilde