A person with aphasia was found fit to practise as a barrister. The Review Panel spoke of there being a non-statutory obligation on judges to make reasonable adjustments for disability.
 EqLR 473, Bar Standards Review Panel. More on the case: equalitytalk.org.uk.
The Bar Standards Board Review Panel found that a barrister who had aphasia following a stroke was found fit to practise as a barrister.
Though not necessary for its decision, the Panel considered the obligation of judges to make reasonable adjustments when hearing a case.
Equality Act duty?
There is an exemption from the Equality Act 2010 for judicial functions (EqA Sch 3 para 3).
The judge’s decision in a case on the evidence adduced would doubtless be a judicial function, and thus exempt from the Equality Act. However, what about management of the hearing by a judge? The Panel considered this was also a judicial function, and so exempt. In the Panel’s view, it was extremely difficult to distinguish between the management of a hearing and the decision-making process.
Accordingly, the judge did not have a duty under Equality Act 2010 to make reasonable adjustments in managing a hearing.
However, an act of discrimination affecting the outcome of a case could be made a ground for appeal or review of the decision or of a complaint about judicial conduct. The Panel cited the example of R v Isleworth Crown Court where the Administrative Court “enjoined observance of the Equal Treatment Bench Book on judges and magistrates as a matter of judicial conduct”.
As Parliament could be taken to have known of these principles of law, the exception in Equality Act 2010 for the performance of judicial functions could be taken to have been enacted in the knowledge that the judiciary imposes a parallel duty of compensation for disability.
In determining the question of fitness to practise, the relevant panel had to take account of adjustments which judges can be expected reasonably to make in compliance with the Equal Treatment Bench Book. The Panel spoke of “the judicial obligation to make reasonable adjustments when hearing a case presented by a barrister with a disability, a duty imposed otherwise than by the statute.”
This non-statutory duty to make adjustments should apply as regards disabled witnesses or defendants etc, at least as much as to disabled barristers. R v Isleworth Crown Court concerned a disabled defendant.
See further Appearing in court, including on the Equal Treatment Bench Book.