Media variations in contact theory that determine how or why contact works – in terms of functional relationships, behavioral factors, affective factors, and cognitive factors – are qualitatively assessed by the research team. This project therefore aims to help shape some of the practical tools needed to remove some of the barriers and thus manage the cultural change needed by working with stakeholders to create and understand the value of co-produced documents to promote litigant participation. The two parts of the overall research project form the basis for the longitudinal and future assessment of attitudinal changes and provide complementary elements to develop the participatory potential of LICs so that the State can fulfil its obligations under Article 6 of the ECHR. Benesh, S.C. and Howell, S.E. (2001) “Confidence in the courts: a comparison of users and non-users,” Behavioral Sciences and the Law, 19(2): 199–214. It was pointed out that such cases, regardless of their different origins, nature and functions, concerned circumstances and events that had gone wrong; and that, therefore, all cases had a history of conflict, loss and disadvantage. Most proceedings have focused on the narration of competing versions of the story by the parties to the case and the court`s assessment of which version had the greatest credibility or relevance to the issues at issue. On that basis, the outcome of the case could be determined: whether it was a decision to continue or close the proceedings; confirm or reject a claim, complaint or request; convict or acquit a defendant; or to impose either sentence on a convicted offender.
The essence of a judicial user`s involvement can therefore be understood as telling their story – either directly or through a representative – and questioning the other part`s version of the story. This chapter now examines the scope and limitations of participation in this regard, with a focus here on how practitioners have been observed in the courtroom to support and facilitate the participation of court users. Kirby, A. (2019) “Engaging with legitimacy: an examination of lay participation in criminal courts,” PhD thesis, University of Surrey, available from: epubs.surrey.ac.uk/851936/ As mentioned at the beginning of this chapter, there have been too few remote presence observations to draw general conclusions about the impact on court users` involvement in proceedings. Of the remote presence cases observed (in all but two cases, where the defendants appeared in prison or at a police station via video link in a criminal court), most took place without an obvious impact on participation, but some were problematic. The latter included a preliminary hearing before the Crown Court, which provided an example of direct and literal silence from a user of the court. The accused, who was in prison, interrupted the trial several times to claim that forensic evidence had been “implanted” on him. The judge lost patience and asked to cut off the prison`s sound supply. Similarly, at another preliminary hearing in Crown Court, the judge threatened to turn off the sound, as the defendant requested via video link: “Where is the television, where is the jury? It`s a whole bunch of, innit. I`m just saying the facts, do you know what I mean? After the threat was made, the accused sat quietly for the rest of the hearing and at the end just said “OK, thank you.” In another Crown court, an accused was sentenced to 16 months in prison for video connection for robbery.
When the judge pronounced the verdict – with some jargon: “appropriate to the nature of the crime”, “range of categories”, “tightened position” and so on – the accused sat there completely silent and motionless, giving no indication as to whether he understood what was being said. These are users of courts who, in the words of Benesh and Howell, have “a very high personal interest in the outcome but little control over it” (which include “criminal defendants, civil litigants, victims, and parties to domestic disputes”): a situation that they said was associated with a low level of trust in state and local courts (2001:205). In the previous chapters of this volume, policy and practice perspectives on the legal principle that laymen should participate effectively in legal proceedings affecting them have been discussed. This chapter examines participation in practice as observed by the research team in the range of dishes at the heart of the study. After a brief methodological note on the implementation of the remarks, the chapter reports on the differences between the different judicial circumstances with regard to the institutional parameters of lay participation. Then comes the examination of the similarities between attitudes. Here it is argued that at the heart of almost all the cases observed by the researchers was a history of conflict, loss and disadvantage; and the “participation” of each non-professional user in the case could be understood as a process by which they told their own version of that story or told it on their behalf. The final part of the chapter describes how court proceedings involved not only telling the stories of court users, but also translating them into legal questions and answers – and how this was a process that often resulted in court users being silenced and marginalized.
The research team conducted a total of 316 hours of observation during 90 visits to 17 sites covering the Crown Court, magistrates` courts, the Family Court (ET) and the Immigration and Asylum Chamber (IAC). Sites were located in all three cities – one in Wales, two in England – and in the surrounding areas selected as the main sites for fieldwork (see Chapter One). Hearings before the court, as well as those before the criminal courts, were public; However, the court staff – while welcoming – were rather curious about our presence and tended to confirm to the judge that the observation could continue. Approval was obtained by the HMCTS and then by the judges or judges of each individual case (who sometimes obtained the consent of the parties) in order to carry out the remarks of the family court. Owusu-Bempah, A. (2018) “The Interpretation and Application of the Right to Effective Participation,” International Journal of Evidence and Proof, 22(4): 321-31. While some judges, lawyers, and others attempted to explain terminology and processes to court users (and lif in particular), many practitioners had a remarkable tendency to resort to jargon and complex language.14 In the first case described in Box 4.3, where the judge understood and supported a manifestly vulnerable and desperate mother, did not prevent the lawyers` references to the “threshold document from not being agreed upon or contradicted”; the child who is “avoidant”; and the need to “dynamically advance contact”. In the second case in Box 4.3, lawyers used traditional expressions such as “my learned friend” and (more than once when they turned away from the bench to consult with their client): “I will simply turn my back.” In the latter case, the maternal grandmother testified; Visibly nervous and in tears, she gave detailed answers to most of the questions, but sometimes struggled to understand: for example, she asked, “What is abstinence?” when asked about her daughter`s drug use. She uses the term “trial” to refer to “any type of court case before a judge” (2017:62). During observations, researchers usually sat in the visitors` gallery of the courtroom or courtroom, or were sometimes instructed by court staff to sit in sections intended for the press or officials. Some types of cases or hearings were not targeted, but the researchers tried to participate in a number of proceedings, focusing as much as possible on those where laymen were present and, where appropriate, were likely to testify.