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Appearing in court

This page looks at some issues of people who stammer appearing in court. There is a separate short page on prisons and the youth justice system.

Note: For the most part, this page does not seek to deal with what procedural law will or won't allow in different kinds of proceedings.

In summary

Duty of judges to make adjustments

Judges have non-statutory obligations (outside the Equality Act) to make adjustments for disability when hearing a case, because cases must be conducted fairly. Judges have been particularly encouraged to take into account the Equal Treatment Bench Book (below). The disabled person may be a party to the case, or a witness, or even a barrister.

(As to whether the Equality Act 2010 applies, the Act (at Sch 18 para 3) has an exception for 'judicial functions' which may exclude from the Act not just judgments also but how the judge runs a hearing, as held in In the matter of Horan below. However even if the Equality Act does not apply, judges must make adaptions for disability because of their duty to conduct hearings fairly, as discussed on this page.)

Galo v Bombadier Aerospace, Northern Ireland Court of Appeal, 2016.
The court overturned a Northern Irish industrial tribunal decision because the tribunal had not made appropriate adjustments for the claimant's Asperger's Syndrome. The tribunal should have paid attention to the Equal Treatment Bench Book. An early 'ground rules' case management session should have been convened to meet the specific challenges of his condition.

Rackham v NHS Professionals, Employment Appeal Tribunal (EAT), 2015
The EAT held that employment tribunals are under an obligation to make reasonable adjustments to accommodate disabled claimants. However sufficient adjustments had been made in the present case. An expert report might be appropriate on what adjustments are required. By way of general guidance, the EAT said (a) courts should focus on adjustments tailored to the individual claimant (claimants have different needs) rather than adopting a generic approach for those with a particular disability, (b) courts should not normally second-guess decisions of the individual, and (c) an initial 'ground rules hearing' on adjustments should be considered, though the results of that are not set in stone.

In the matter of Horan [2010] EqLR 473
This was a case decided by the Bar Standards Board Review Panel. It found that a barrister who had aphasia following a stroke was fit to practise as a barrister. The Panel considered the obligation of judges to make reasonable adjustments (eg for a disabled barrister). It held that the judge hearing a case was not subject to Equality Act 2010. However the judge was under a non-statutory obligation to make reasonable adjustments with regard to disability when hearing a case.

R v Isleworth Crown Court ex parte Murray King, January 2001, High Court
The applicant was the defendant in a criminal case. The Crown Court had dismissed his appeal against conviction. Following a stroke, the applicant had a disability which affected his communication and mental functioning, and caused fatigue. In 'judicial review' proceedings the High Court set aside the decision of the Crown Court, because he had not been given a fair hearing. The High Court stressed that the Equal Treatment Bench Book now gives important advice which any judge dealing with disabled people should take into account.

For example, the applicant's wife said he found it difficult to assimilate his thoughts into brief, concise, clear questions, and as a layman did not necessarily phrase his questions correctly. The judge had been irritated, making comments such as "stick to the point" These kind of comments, she said, only served to make him more anxious, stressed and frustrated.

Under the Equality Act, any complaint is normally by the disabled person. However, as regards these non-statutory obligations (or perhaps some statutory rights, such as to a fair trial), it is not necessarily the disabled person who would bring a complaint:

Example: A disabled witness is called by the defendant in a criminal case. There is a failure to make adjustments for the witness's disability. The defendant might bring proceedings to seek to overturn any resulting conviction.

The appeal court must determine for itself whether a fair procedure was followed, not merely review whether the tribunal's (or other lower court's) decision on fairness was reasonable (Galo v Bombadier).

Since these rights are not under Equality Act 2010, there seems to be no requirement that the person has a 'disability' as defined in the Equality Act. The focus should be on whether any adjustments are required to give the person a fair hearing.

A similar type of case, decided in Australia:

Coombe v Bessell, 1994, Tasmanian Supreme Court
A criminal conviction was overturned where the magistrate had mistaken a speech impediment for dishonesty.
Below: Mistaking stammering for dishonesty.

Equal Treatment Bench Book

 Link: Equal Treatment Bench Book (link to judiciary.gov.uk), 2013.

The Equal Treatment Bench Book (ETBB) is the key guidance for courts on disabled defendants, litigants and witnesses. The courts have stressed the importance to judges of the advice in the ETBB (eg Galo, Rackham, and Isleworth cases. Taking account of the ETBB is seen as a very major part of the judge fullfilling the legal requirement to to make adjustments for disabilty, in the interests of fairness - see above Duty of judges to make adjustments.

We have formed the clear impression that the ETBB does not appear to be part of the culture of these hearings. That is a circumstance which must fundamentally change with a structural correction to ensure that this situation does not recur.
Galo v Bombadier Aerospace, Northern Ireland Court of Appeal, 2016.

"...I wish to stress in this judgment that this advice [in the Equal Treatment Bench Book] is important advice which every judge and every justice of the peace is under a duty to take into account when hearing a case involving people with one disability or another"
R v Isleworth Crown Court ex parte Murray King, January 2001, High Court.

The ETBB makes the point that disabilities affecting communication can be just as important as mobility disabilities:

"There are many potential sources of discrimination and not being heard or being misunderstood by the judge is just as discriminatory as an inability to access a court building."
Equal Treatment Bench Book, page 5-8.

Ground rules hearing

The Equal Treatment Bench Book (ETBB) encourages the making any special arrangements in advance (page.6-7).

Cases such as Galo and Rackham have held that a 'ground rules hearing' may be required to consider what adjustments are required in the individual circumstances. Though not explicit in Chapter 6 on physical disabilities, a preliminary hearing considering adaptions for the disability is discussed in the ETBB Chapter 5 (from para 87) and in Chaper 7 on mental health. It is not just a one-off consideration - the court must keep the adjustments needed under review (Galo). The courts and the ETBB also emphasise that the court should consider the needs of that individual, rather than making generic assumptions.

19. If a disability is indicated on court or tribunal pro-formas both the administration and the judiciary should act on this information, requesting further documentation or arranging a directions hearing to consider requirements arising out of special needs. There may be a duty to make reasonable adjustments under the Equality Act 2010

20. Rather than making assumptions based on generic information or knowledge of previous cases, decisions concerning case and hearing management should address the particular needs of the individual concerned insofar as these are reasonable. The individual should be consulted or given an opportunity to express their needs. Expert evidence may be required.
Equal Treatment Bench Book, Chapter 7

In Galo, it was held that given the court could see signs of the claimant's disability, the court had a duty to consider adjustments even though the issue had not been raised by the disabled persons representatives.

Examples in the ETBB

Some adjustments and considerations mentioned which could be relevant to stammering are:

If the person has a speech or language impairment concentrate on what they are saying and try not to guess what they want to say. If necessary, ask them to repeat the sentence and then repeat what you understand to gain confirmation.
Equal Treatment Bench Book, page 6-15.

It may be appropriate for parties who have difficulty representing themselves to be permitted to have their case conducted by a representative of their choice. This person may have no right of audience in a court, but the judge may confer such right.
Equal Treatment Bench Book, page 6-18.

Awareness of stammering issues in a hearing

Where a person who stammers is giving evidence orally, it may be useful for the judge/magistrates and legal representatives to be briefed in advance on stammering, and/or for evidence or guidance about the person's stammer and its effects to be given in court.

In conversation with a person who stammers (BSA website) gives general guidance on speaking with someone who stammers. The BSA Information and Support Service may be able to provide further help - for this and other resources see below Sources of advice and support.

Also it is very important to be aware that the real extent of a person's stammer is often not apparent, since the person has become accustomed to trying to hide their stammer in various ways, to 'fit in' with social expectations of how one should speak. In some cases the stammer may not be apparent at all, even though it is affecting what the person says (see Interiorised stammering (BSA website)).

One hidden effect which may affect evidence in court is that a person who stammers may give less full answers, trying to say less. (This may be to hide the extent of the stammer, but could also be because of the effort of saying more.) Advocates may need to ask supplemental questions to draw out fuller details.

It is also common for a person who stammers to change the words they say, or insert 'fillers, to help them speak more fluently. They may for example swap a word for something it is easier to say, or insert phrases such as 'you know', 'well'. This may make their evidence less clear, and mean that the person is not saying what they really want to say.

A particular danger in court is viewing stammering or its hidden effects as signs of lying...

Mistaking stammering for dishonesty

There is a serious danger that a jury, and possibly a judge, may see stammering or its hidden effects as a sign of dishonesty. An example is the Australian case of Coombe v Bessell:

Coombe v Bessell, 1994, Tasmanian Supreme Court, Australia
Here a speech impediment was mistaken for dishonesty. Mr Coombe had been convicted of assaulting his wife. The magistrate did not believe his evidence, but was unaware of Mr Coombe's stammer. The conviction was overturned and the case sent for re-hearing.

Effects of a stammer (both overt and hidden) which could be seen as dishonesty

Disclosing the stammer

As a minimum (though it may not be enough: see below Educating the court about stammering), it seems very desirable that a witness who stammers should expressly say that they have a stammer, or that the court should be told this in some other way. (This may be very difficult though for some people who stammer, who may be reluctant to discuss it.) As well as explaining the situation to listeners, disclosing a stammer may help the person who stammers feel more comfortable.

It needs to be born in mind that the other side's lawyer will often seek to discredit the witness. Some may use rapid fire questioning which could be particularly difficult for a person who stammers to cope with. It will be harder for a lawyer to take advantage (wittingly or unwittingly) of a person's speech difficulties if the court has been told about the stammer.

In StutterTalk podcast Episode 131 (from 20:22 to 25:20), a United States police officer talks about importance of advertising his stammer when he is giving evidence in court. Various of the points I make under this heading are drawn from that interview.

Educating the court about stammering

Because effects of a stammer can be hidden as described above, or because listeners may not appreciate that stammering is neurological rather than due to nervousness, it may not be sufficient to just say the person has a stammer. Some explanation of stammering and its effects may need to be given to the court (perhaps with the aid of a speech and language therapist) so far as relevant to the particular individual - for example that nervousness is the result (not the cause) of stammering, and that people who stammer often avoid eye contact, and often try to hide the stammer by altering words and phrases, using fillers, circumlocuting or other tricks, or by saying less.

Of course ideally a person who stammers should bear in mind the importance of giving accurate evidence, and should not let word avoidance etc stop them from doing that, even if it means they are less fluent. However, this may not be practicable. Avoidance is often part of a stammer, and something to be worked on in speech and language therapy.

Alternative ways to communicate in court

As a witness: Agreeing evidence

It may be possible for both sides in a case to agree your evidence, so that you don't have to be called as a witness.

As a witness: If evidence is not agreed...

These are some alternative ways in which evidence might be given, at least in some cases. It needs to be discussed with the lawyers or court involved what would be possible in the relevant type of case:

As a party: Putting one's arguments

This is arguing one's case, and perhaps questioning witnesses, if one is a party to the case and does not have a lawyer to put one's arguments.

It may well be possible to prepare a written argument in advance, though that will rarely be an adequate substitute for participating in the hearing.

Some of the suggestions above on ways of giving evidence may be helpful. But see also the Equal Treatment Bench Book examples (above).

Example: A party to a case is not legally represented. Because of a stammer he would have difficulty representing himself at the hearing. The judge exercises her discretion to allow the person to use a friend or relative to put the case (a lay representative), if this would not be permitted under the normal rules.

An example on deafness:

The Northern Ireland Courts and Tribunals Service agreed to pay £2500 to a claimant with severe hearing loss. He was due to defend himself in a small claims case and had advised court staff before the case that he would need everything to be written down. Despite assurances that all arrangements were made, he did not receive the adjustments that he needed to defend himself. The Courts Service acknowledged that an error was made in the provision of reasonable adjustments for Mr. Annett and that this constituted a breach of its duties under the (Northern Ireland) Disability Discrimination Act.
www.equalityni.org/Footer-Links/News/Individuals/Two-claimants-with-hearing-loss-settle-cases-again

Whilst the court's powers to ensure a fair hearing are not limited to what is set out in statute, there are particular statutory options for alternative ways to give evidence:

Criminal cases: 'Special measures'

Introduction

This section focuses on specific statutory powers given to the criminal court. However, the court is likely to have powers and indeed duties to take measures beyond these, in order to ensure a fair trail. The court's powers are not limited to these statutory 'special measures'. See above, and also below The accused (England and Wales).

Witnesses (England and Wales)

The Youth Justice and Criminal Evidence Act 1999 (link to legislation.gov.uk) allows 'special measures' to be used for certain witnesses in criminal cases in England and Wales. This includes for example where the quality (in terms of completeness, coherence and accuracy) of the witness's evidence is likely to be diminished by virtue of a physical disability or disorder (ss.16,17 YJCEA), which would presumably include a stammer.

Examples of the measures in the YJCEA 1999 are:

For more about 'special measures' (in England and Wales) , see

The accused (England and Wales)

The above legislation does not apply to the accused, even as a witness. Legislation for the accused is more limited (see below).

However, even without statutory powers, the court has a discretion, and pr potentially a duty as discussed above, to allow the accused to give evidence in such a way that he has a fair trial. See R v Camberwell Green Youth Court, 2005 (external link), particularly Baroness Hale at paragraphs 59 & 63. On use of intermediaries and cases subsequent to Camberwell, see

C v Sevenoaks Youth Court (link to bailii.org), 2009, High Court
Even though there was no statutory power to appoint an intermediary, the criminal court was held to have other powers (and potentially a duty) to do so.
Later cases on use intermediaries for defendants: R v Walls (link to bailii.org), 2011, Court of Appeal; R v Great Yarmouth Crown Court (link to bailii.org), 2011, High Court.

Accordingly, non-registered intermediaries may be used for vulnerable defendants based on the court's inherent jurisdiction to ensure the defendant has a fair trial, see www.theadvocatesgateway.org/intermediaries#england-and-wales-intermediaries-for-defendants-in-criminal-cases

Civil Procedure Rules (England and Wales)

Courts such as the High Court and county courts in England and Wales have discretion to allow evidence to be given through a video link or some other remote method: Civil Procedure Rules rule 32.3. Annex 3 of Practice Direction 32 is guidance on Video Conferencing Guidance: www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/civil/.

However, as discussed above, the court should have powers and indeed duties to take measures beyond this, in order to ensure a fair trail.

Taking an oath

One suggestion that could help:

When a juror or witness who stammers takes the oath, the person adminstering the oath first says each part of the oath on their own and then repeats it together with the person who stammers.

This uses the 'choral effect'. A person who stammers can often speak fluently if speaking along with someone else. There is an example of this being used for wedding vows at www.mnsu.edu/comdis/isad5/papers/weddingvows.html#badmington

Jury service

There is a place on the jury summons form ('Disability') where you can mention you have a stammer and ask for any adjustments.

You could discuss the stammer and any possible arrangements with the court staff.

A juror will need to take an oath (or affirmation) in open court. For one possible way of dealing with this, see above Taking an oath.

A juror will also take part in the discussions after the jury retire to deliberate their verdict. I discuss in the context of employment some possible reasonable adjustments for meetings. Criminal law does not permit there to be an 'extra' person in the jury room for any reason, so having a non-jury member in to help would not be a reasonable adjustment (Services Code para 11.32).

On jury service generally, see direct.gov.uk: Jury Service. This includes Going to court if you have a 'hidden' impairment.

Being excused jury service?

If you really feel it will be too much for you to do jury service with the stammer, you might apply to be excused from it. There is a place on the jury summons form to do this.

Case study: A person who stammers did not apply on the form to be excused. However, having looked at the online guide/videos etc he became very apprehensive about giving the oath and having his say in the meeting to deliberate the verdict. He talked about this to the jury officer in advance. She consulted with others and it was decided to excuse him from jury service as they didn't want to put him through undue stress.

Alternatively an individual might want to take the opportunty of jury service to expand their comfort zones. This is a personal choice.

Equality Act 2010 and other rights

This section outlines briefly different types of rights against disability discrimination which may apply to courts.

Non-statutory duty of judges to make adjustments

Indications so far are that the Equality Act 2010 does not apply to the judge's management of the hearing. However, courts have said that the judge has a non-statutory duty to make adjustments in the hearing since the court should ensure a fair hearing. See above Duty of judges to make adjustments.

Court administration is subject to the Equality Act

Apart from judges, courts and tribunals (in particular administrative staff) will generally be subject to Equality Act in the normal way. Depending on the situation, this could be either on the basis that the court is supplyiing a service to the public or, if not, that the court is exercising a public function.

Example: A member of the public with a speech impairment phones the court with a query about her case. The staff member who takes her call is not willing to give her the time to let her explain properly what the problem is. This is potentially a breach of the Equality Act 2010.

Example: A court's telephone system uses voice recognition, which a caller who stammers cannot use. This may be a breach of the Equality Act.
See Voice recognition telephone systems.

Equality Act and judges etc

The following are excluded from the rules on public authority functions, and so are likely not to be within the Equality Act:

Police activities such as arrest and interviews are likely to fall within the Equality Act rules on public authority functions.

From the Equality Act 2010 Explanatory notes (pdf, link to legislation.gov.uk), para 683:
A decision of a judge on the merits of a case would be within the exceptions in [Schedule 3]. An administrative decision of court staff, about which contractor to use to carry out maintenance jobs or which supplier to use when ordering stationery would not be.

Sources of help and support

Contacting the court for help

The Court Service Disability helpline is no longer in existence. If possible ask lawyers involved about any arrangements that can be made - though it may not be something they are familiar with.The Court Service say that the first point of contact for all case specific enquiries including disability assistance is the relevant court or tribunal office: www.justice.gov.uk/contacts/hmcts. The issue can also be raised with the court (judge) which should be ensuring a fair trial.

Witness service

Run by Victim Support, but aimed at witnesses - www.victimsupport.org.

British Stammering Association Information and Support Service

You can ask, talk about and explore any issues of concern about stammering - www.stammering.org/help-information/we-can-help-our-services/helpline.


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Last updated 30th October, 2016