15 years of stammeringlaw 1999-2014
Home Overview Disability Discrimination Employment Services Education PSED Benefits Business Advice Links More...
This page does not apply outside the United Kingdom.

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.

Update, October 2014: the Employment Appeal Tribunal upheld a tribunal decision to grant a review. It held that the claimant's mental health condition, which may have influenced his conduct of the litigation, was properly a factor to be taken into account. It also referred tribunals to the Equal Treatment Bench Book. Crown Prosecution Service v Fraser (link to employmentcasesupdate.co.uk), EAT, 2014.

In summary

Firstly bear in mind that if you do stammer in court, that's fine. The court should be patient and let you say what needs to be said.

Judges, and Equal Treatment Bench Book

Judges have legal obligations to make adjustments for disability (including stammering), though not necessarily under the Equality Act. See below Duty of judges to make adjustments.

The Equal Treatment Bench Book gives important guidance for judges about disabled people in court. For example, if a person with a speech impairment is not legally represented, it may be appropriate to allow a friend to represent them if this would not normally be allowed.

Administrative services

Court administrative services are generally subject to the Equality Act 2010 in the normal way. See below Court administration is subject to the Equality Act.

Some particular measures

It may be useful for the judge and legal representatives to be given information on stammering: Awareness of stammering issues in a hearing. A particular danger can be Mistaking stammering for dishonesty.

Alternative ways of communicating in court can be considered, whether one is a witness or party. Particular rules on alternative ways to give evidence are 'Criminal cases:'Special measures', including use of an intermediary such as a speech and language therapist, or civil procedure rules providing for a video link.

Arranging adjustments

It may be possible to make any special arrangements for a case through the lawyers. Otherwise, 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.

Also on this page:

Duty of judges to make adjustments

It is not clear whether a judge is subject to Equality Act 2010 as regards how s/he runs a hearing. One case (In the matter of Horan, below) says that the Equality Act does not apply because of an exception for 'judicial functions'. However, this may be reconsidered in future cases.

In any event, there is authority that judges have non-statutory obligations to make adjustments for disability when hearing a case. 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.

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. Here it would presumably be for the defendant to bring proceedings to seek to overturn any resulting conviction.

Since these rights are not under Equality Act 2010, there seems not to be a 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.

A more recent UK discussion of these issues is Fraser v Crown Prosecution Service, EAT 2014 http://www.employmentcasesupdate.co.uk/site.aspx?i=ed21699

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.

Equal Treatment Bench Book

 Link: Equal Treatment Bench Book: Chapter 5 Disability (pdf, link to judiciary.gov.uk), October 2009.

The courts have stressed the importance to judges of the advice in this Book. The Book has been cited in connection with the requirement on judges to make adjustments for disabilty - see above Duty of judges to make adjustments.

"...I wish to stress in this judgment that this advice [ie. 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 Book 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.

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 5-16.

The Book encourages the making any special arrangements in advance (p.5-8).

An example of something which may be helpful for a person who stammers is the use of a McKenzie friend or lay representative (p.5-19 Equal Treatment Bench Book):

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.

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 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.

One characteristic which may affect evidence in court is that a person who stammers may give less full answers, trying to say less. This may be because of the effort of stammering, or it might be to try and avoid stammering openly in which case the person may sound quite fluent. Advocates may need to ask supplemental questions to draw out fuller details.

A particularly important danger in court is viewing stammering or effects of a stammer as signs of lying...

Mistaking stammering for dishonesty

There is a serious danger that a jury, and possibly a judge, may see effects of stammering 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.

Blocking, 'eh'-ing, or substituting one word for another word, may be interpreted as fabricating the truth - unless the listener realises that these are common effects of a stammer. Other effects of a stammer (non-exhaustive) can include 'filler' words and phrases such as "well", "you see"; wording which may sound convoluted; not answering a question directly if a direct answer is difficult to say; and hesitations, thinking etc which may not look like stammering but are perhaps actually behaviours the person is accustomed to using if they cannot just say what they want. Tension and nervousness related to a stammer may also be seen as signs of lying. So may avoiding eye contact which is common amongst people who stammer. Generally, a key feature of stammering is that the person will often try to hide the condition.

As a minimum, 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.) 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 much 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.

As well as the court being told that the person has a stammer, it should be considered whether the court ought also to be told something about stammering so far as relevant to the person - e.g. that people who stammer often avoid eye contact, and often alter words and phrases to something they can say more fluently.

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 (above) which talks of the possibility of a McKenzie friend or a lay representative (eg a relative or friend):

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.

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. Relevant witnesses can include for example those with a physical disorder (ss.16,17 YJCEA). The Equal Treatment Bench Book also comments at p.5-13: "It may be appropriate to adopt these measures in other types of proceedings."

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 potentially a duty, 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, intermediaries may be used for vulnerable defendants, but only non-registered intermediaiies (for practicalities of this, see from p.15 of Fair Access to Justice?: support for vulnerable defendants in the criminal courts (link to prisonreformtrust.org.uk)). The Prison Reform Trust called in that 2012 report for registered intermediaries to be available for defendants (as well as witnesses), and for that to have a statutory for basis. Article: Fair access to justice for vulnerable? (link to lawgazette.co.uk).

As regards statutory powers, there is limited legislation applying to the accused, in Chapter 1A of Part 2 Youth Justice and Criminal Evidence Act 1999, inserted by s.47 Police and Justice Act 2006 (link to legislation.gov.uk). However:

Vulnerable defendants within that limited meaning are also dealt with in the Consolidated Criminal Practice Direction (link to justice.gov.uk), 2011, part III.30.

Scotland and Northern Ireland

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 is likely to 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 could first say each part of the oath on their own and then repeat 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. See above Duty of judges to make adjustments.

This 'non-statutory' duty will be at least in part based on the Other rights outlined below.

Equality Act

The Equality Act rules on 'services to the public' will apply to some aspects of a court's functions, and the rules on public authority functions to others.

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.

Other rights

There are general rights which may be relevant, such as the Human Rights Act, and rules of natural justice (see the tribunal quote below). These rights may apply even where the Equality Act is excluded. For example, though a judicial act is not unlawful discrimination under the Equality Act, it might be challenged under the Human Rights Act as breaching the right to a fair hearing under Article 6 of the European Convention on Human Rights, and/or the right to equality under Article 14. These other rights could also be relevant to decisions and actions of court staff which are not judicial acts.

In CDLA 936 2004 (external link), a welfare benefit case, the tribunal said:

"The DDA [now Equality Act 2010] requires "service providers", of which the Appeals Service is no doubt one, not without justification to treat a disabled person less favourably than others without his disability. Its purpose is to enable disabled people to participate effectively in (for present purposes) tribunal hearings. If the Appeals Service failed to make a tribunal accessible to a disabled person (for example by holding a hearing for a wheelchair user in an upstairs room without a lift, or failing to provide facilities for a deaf person to participate in the hearing), that might well without any question of justification amount to a breach of natural ("procedural") justice or of article 6 of the European Convention on Human Rights [right to fair hearing] as now applied by s3 of the Human Rights Act 1998. If it did, I might set aside the decision reached by the tribunal; but I would do this without recourse to the DDA."

Sources of help and support

Contacting the court for help

The Court Service Disability helpline is no longer in existence. It may be possible to make any special arrangements for a case through the lawyers involved. Otherwise, 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.

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/helpline.html.


Top

Homepage | DDA in outline | Meaning of "disability" | Employment | Goods and services | Education | Human Rights Act | Proposed changes | Social security | Advice | Links | What's new | Site index | Privacy (cookies) | Disclaimer

Personal home page

© Allan Tyrer 1999-2013
Last updated 5th November, 2013 (part update 11th June 2013)