ABSTRACT
This chapter explores the extent to which segmentation and segregation of the courthouse and courtroom have been fuelled by a fear of the public and the way in which the idea of an ‘open’ public trial has come to be perceived of in spatial terms. Fear of uncharted or unscripted performances and physical and mental ‘contamination’ emerge as strong themes in the historical accounts of design presented. I argue that these practices have served to degrade the importance of the spectator in the trial and allowed them to be treated as peripheral to the administration of justice. One reaction to such concerns about how space is used to engender discomfort might be to suggest that courts are supposed to be daunting places in which participants are encouraged to refl ect on the gravity of law and legal proceedings. According to this view the encounter should be extraordinary and memorable. The court is not, and arguably should not be, akin to an academic seminar. Violent outbursts from the public gallery, harassment of the jury and intimidation of witnesses are far from unheard of. My purpose is not to suggest that some surveillance and discipline in the courtroom are inappropriate per se but rather that design can serve to glorify and humiliate in inappropriate measure and in doing so undermine the contention that the courts are ‘open’ to the public in any meaningful way. The thesis I pursue here is that as the public have become increasingly contained within the courthouse the possibility of participatory justice has been seriously constrained as a result. The lack of sustained academic commentary on treatment of the public in court can in part be explained by the fact that greater prominence is often given to the press as agents of the public who act in their interest to publicise trials. The press have fought hard for the right to attend, comment on and report proceedings and it is undoubtedly the case that they have played a signifi cant role in uncovering miscarriages of justice and procedural error. Newspaper and television journalism has also played a part in disrupting traditional notions of the trial by bringing the drama of proceedings into the living rooms and television sets of the public where their consumption of legal narratives can not be monitored by court staff. These achievements have also brought tension in their wake as the accounts
of participants in the trial are mediated by journalistic ‘creativity’ and the profi t motive of newspaper magnates. Whilst many members of the press have undoubtedly served the public interest in uncovering injustices there is also an important tension to be recognised. Just as the defendant in the modern trial could be said to have been silenced by their lawyer, so too it could be argued that the participation of the press in the trial has in turn justifi ed the sidelining of the public they claim to represent. This chapter seeks to explore these dynamics. It argues that if the trial is to maintain its moral legitimacy greater efforts must be made to involve the public in the justice system as participants rather than mere spectators. To my mind, an ongoing challenge in any justice system is the need to ensure that in separating the vulgar from the sacred the design of the spaces of adjudication does not serve to denigrate the public as insignifi cant.
