Appearing in court with a stammer

Witnesses, defendants, litigants and jurors who stammer can face particular issues. Courts in England and Wales are required to make reasonable adjustments, and there is official guidance for judges on stammering.

There are separate short pages on police and prison.

Update: This page does not yet include Habib v Dave Whelan Sports (bailii.org), August 2023, Employment Appeal Tribunal. The EAT overturned an employment tribunal decision which had found evidence of the claimant not to be credible (Dishonesty, below), for reasons relating to her dyslexia, but failed to take account of the Equal Treatment Treatment Bench Book. The entire case would need to start afresh.

Summary

• Since February 2021 the Equal Treatment Bench Book (below) has four pages specifically on stammering (from p.455). This is now the official guide for judges on dealing with people who stammer in court, whether as witnesses, defendants or litigants in person.
• The Equal Treatment Bench Book gives many examples of adjustments in court relevant to stammering. I also give some examples of cases where adjustments for stammering were made. Remote hearings can cause issues. Adjustments should be considered in advance, and the court should look at the individual’s needs rather than making generic assumptions. There are some further points below in Speaking in court, and alternatives, particularly where one is a party to the litigation.
• Judges have a non-statutory (ie outside the Equality Act) legal obligation to make adjustments for disability, so that hearings are conducted fairly: below Legal duty of judges to make adjustments: In brief. Judicial decisions are excluded from the Equality Act but it still applies to court administration.
• Mistaking a stammer for dishonesty is a particular danger, as illustrated by the Australian case of Coombe v Bessell. If a witness has a stammer, giving the court information on the stammer to help counter any impression of dishonesty should be considered.
• I suggest people who stammer should be somewhat wary of any advice not to give evidence because the stammer might be seen as a sign of guilt or dishonesty: below Advice or decision not to give evidence due to stammer?
• There are other ways stammering may have an adverse impact in court, such as a witness altering their answers to make things easier to say, or not giving full answers, or a party or defendant deciding not to pursue or defend a case, or not orally presenting their argument fully.
• Taking an oath may be helped by saying the words along with the person administering the oath.
• If you have concerns about Jury service these can be discussed with the court beforehand. Sometimes it may be possible to be excused jury service.

Link: Stammering and the criminal justice system (stamma.org), 2022.

Equal Treatment Bench Book (ETBB)

• Equal Treatment Bench Book, April 2023 revision (pdf, judiciary.uk), linked from download page (judiciary.uk). Since February 2021 it includes four pages specifically on stammering (from p.455). Note: My web page is currently based on the July 2022 edition.

This Equal Treatment Bench Book – linked above – is the key guidance for courts in England and Wales on disabled defendants, litigants and witnesses, including for stammering. Below there are Examples of adjustments in the ETBB relevant to stammering.

The courts have stressed the importance to judges of the advice given by the ETBB (Galo, Rackham, and Isleworth cases). Taking the ETBB into account is seen as a very major part of the judge fulfilling their legal obligation to make adjustments for disability (below), in the interests of fairness:

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, High Court, 2001.

Legal duty of judges to make adjustments: in brief

Judges have non-statutory obligations (outside the Equality Act) to make adjustments for disability when hearing a case, because cases must be conducted fairly. This includes taking into account the Equal Treatment Bench Book (above). For more detail, see below Legal duty of judges to make adjustments. A few bullet points:

• The disabled person may be a defendant, a party, a witness, or (as in the Horan case) even a barrister.
• The courts as well as the Bench Book have said that judges should focus on adjustments tailored to the individual (individuals have different needs) rather than adopting a generic approach for those with a particular disability: below Importance of considering individual’s needs, but fairness to both sides.
• So far as possible, any disability should be identified and arrangements made in advance.
• Since the duty on judges is outside the Equality Act (EqA), there need not be a “disability” as defined in the EqA.
• The lawyers often have an important role: below Onus on legal representatives to suggest adjustments?
• The main duty on judges to make adjustments is non-statutory (below Legal basis of duty on judges), though from 2021 changes to the Civil Procedure Rules have further bolstered the duty on many courts. Judicial functions are excluded from the Equality Act 2010 itself, but the EqA could still apply in particular to court administation.

Examples of adjustments in the ETBB

The following are some examples of adjustments given in the Equal Treatment Bench Book (ETBB) (July 2022).

However the ETBB itself stresses the need to focus on the needs of the particular individual, including as regards possible adjustments it lists for specific disabilities such as stammering. Effects of an impairment vary for each individual, so courts should not guess or assume what adjustments an individual might need. Communication with the person concerned is key to understanding what adjustments are required for that individual. See above Importance of considering individual’s needs.

Furthermore possible actions to be taken by a court are not limited to measures mentioned in the ETBB. The ETBB is guidance rather than the law. Even so it may be easier to persuade a court to take steps specifically mentioned for stammering in the ETBB.

ETBB examples specifically for stammering

The following are suggested as possible adjustemnts at the hearing where appropriate (pp.457-458 of Equal Treatment Bench Book, July 2022). Emphasis and wording in square brackets is added by me.

• “Steps to reduce the person’s anxiety, since that in itself may make them stammer more and encourage avoidance measures.
• Reassurance that the person should take their time to say what they want to say, and that extra time will be allowed. [How to do this may differ depending on the individual, given that people are sometimes reluctant to reveal their stammer – eg whether it is done by the judge in open court, or beforehand more privately in some way.]
• Ensuring that time is given after a question from judge or opposing representative for the person to answer. [Eg see below N v Packaging Automation.]
• Controlling turn-taking. Rather than generally ask for each party’s views on a point, come to each party in turn. If asking the other party first, reassure the person that you will then come to them.
• Not relying on the individual to intervene and to ask if they do not understand the proceedings or a question. Regularly checking with them directly and waiting for the reply. Checking for small non-verbal indicators that the person may want to speak (intake of breath, raising a hand etc).
• Allowing the person to answer a question in their own way. As long as they cover the ground, not forcing them to ‘answer the question’, because this may involve them having to use words and sounds which they are trying to avoid.
• If necessary, allowing the person to give written evidence.
  [Though not clear:
  • This might potentially be a sworn witness statement prepared in advance. That would not be a substitute for cross-examination. The latter should not be necessary if the parties are able to agree the evidence.
  • Another possibility might be in court the person who stammers writing down things they find it difficult to say, for someone else to read out. “Making writing facilities available” is an option given for Laryngectomy (p.428) and Motor Neurone Disease (p.439) but which could also be relevant for stammering.]
• Ensuring there is no background noise requiring the person to raise their voice.
• Reducing self-consciousness and anxiety by:
  • Allowing evidence to be given over a video platform or from behind a screen. If using video link, be aware that time lags from the technology added to the person’s hesitation can create extra difficulties and require extra care and patience. [A person who stammers may find a video link more difficult than face-to-face, as discussed in Remote hearings (below) – as ever one should discuss with the individual. The number of people in the court may be relevant. Also, on specific powers of some courts see below Criminal cases: Special measures and Civil courts: Specific powers.]
  • Minimise the number of people in court.
• It may help for taking the oath if the clerk or user says the words at the same time as the witness. Many people who stammer find that speaking in unison with someone else makes them stammer less, as it can reduce self-consciousness.
• Not relying on demeanour / mode of expression such as apparent hesitation, pauses, avoidance of eye contact.
  [See below Mistaking stammering for dishonesty.
  Also in the ETBB eg on SpLDs at p.410 “Lack of eye contact could be misinterpreted as being ‘shifty’ and an over-loud voice might be regarded as aggressive. The overriding worry is that a loss of credibility occurs when they do not ‘perform’ as expected.”]
• Being cautious about drawing adverse inferences from unusual or round-about use of words. [See below Mistaking stammering for dishonesty.]
• In a criminal case, briefing the jury in advance regarding how an individual’s stammer might affect their evidence and to be cautious about drawing adverse conclusions from such factors. [See below Mistaking stammering for dishonesty.]
• Considering intermediaries. For more detail, see chapter 2 (Children, young people and vulnerable adults).” [See below Intermediaries. An intermediary might be a speech and language therapist, for example.]
• The ETBB also includes advice from Stamma about talking to an individual who stammers, at pp.458-459.

Other examples in the ETBB

The following are some other possible adjustments mentioned in the Equal Treatment Bench Book (ETBB) (July 2022) which could be helpful for stammering. The ETBB does not mention them specifically for stammering, though many may fall within “Steps to reduce the person’s anxiety…” as regards stammering (p.457).

• A disabled person may need more time – so a longer time estimate for hearings may be required, which should be decided in advance (ETBB Chapter 3 para 23, 31). Breaks or shorter hours may also be required for some (ETBB Chapter 3 para 47-52), due to the effort of stammering (eg L v Superdrug and N v Packaging Automation, below) or to allow the person to consider details overlooked due to concentrating on their speech (G v Insolvency Service, below).
• Adjusting the order in which evidence is heard, so that the person is not kept waiting and fretting longer than necessary (ETBB Chapter 3 para 42). See example of L v Superdrug below where the claimant gave his evidence first. Or with a litigant in person who stammers, it may sometimes be better for the other side’s witnesses to go first (ETBB Chapter 4 para 54).
• For similar reasons, not floating case management preliminary hearings. If several are listed together, taking the disabled person’s preliminary or case management hearing first (ETBB Chapter 3 para 31).
• Constraints on cross-examination style (ETBB Chapter 4 para 73-81). This could include avoiding “rapid fire” questions (cf police witness case study, below), cross-examination questions being put in a non-threatening way (ETBB Ch 4 para 79), and advocates not having to “put” their case in cross-examination (ETBB Ch 4 para 73). Any major constraints should be decided in advance so advocates can be notified (ETBB Chapter 3 para 23, Chapter 4 para 34)).
• Be aware of the powers to prevent inappropriate questioning, and use them where appropriate (ETBB Chapter 3 para 43).
• Keeping questions and answers to a minimum (ETBB p.428, 439), at least with a severe stammer.
• Allowing another person to act as an assistant or advocate for the disabled person in court, in some courts as a “McKenzie friend”, if this needs permission of the court (ETBB Chapter 1 para 110-129). See too below Particular points if one is a party, not just a witness.
• Considering layout of the room, for example the judge moving down from the dais to make proceedings less formal (ETBB Chapter 4 para 51). Also suitable chair (ETBB Chapter 3 para 39) – sitting posture may help some people who stammer.
• Allowing a party acting in person to give evidence from the advocate’s table, rather than having to move to a witness table or stand (ETBB Chapter 4 para 73).

There are some real-life examples of people who stammer being given adjustments in court hearings in the Case examples below.

Talking with someone who stammers

There is guidance on this from Stamma at pp.458-459 of the Equal Treatment Bench Book (July 2022). In addition:

• Talking with someone who stammers (stamma.org) gives general guidance on speaking with someone who stammers.
• The Stamma helpline may be able to provide further help – for this and other resources see below Sources of advice and support.

ETBB: prevalence of speech, language and communication needs

The Youth Justice Board and Ministry of Justice, looking at children who had been sentenced in 2018/2019, found that the proportion of the total children assessed who had a Speech, Language and Communication concern was 71%. A survey earlier in 2015, reported that a significant proportion of youth justice services have no access to speech language therapy provision or access to any support for their service users with speech, language and communication needs (SLCN).
Equal Treatment Bench Book (July 2022), Chapter 2 para 16.

Case examples of adjustments for stammering in court

G v Insolvency Service, Employment Tribunal, 2022
Adjustments made in this case include:

• As the claimant sometimes overlooked details due to concentrating on his speech, regular breaks to allow him to reflect on the questions he had asked and assess whether there was anything he had missed. In particular, this was done when the claimant indicated that he thought he had finished his cross-examination of a witness. The tribunal at those points took short breaks, and gave the claimant on returning the opportunity to ask any further questions on matters he had not covered.
• This extended to allowing the claimant to ask a follow up question of one witness after the employer’s lawyer had completed re-examination questions. The tribunal “considered it only appropriate that the claimant was given as much room and flexibility as possible to allow him to ask the questions that he wanted to ask, so long as they remained relevant to the issues in the case”.

See G v Insolvency Service>Adjustment to the hearing.

D v Nottingham Squash Rackets Club, Employment Tribunal, 2022
The tribunal allowed various adjustments in the hearing for a claimant who had a stammer plus other disabilities such as dyslexia and learning difficulties.

N v Packaging Automation, Employment Tribunal, 2021
The tribunal said that in accordance with (among other things) the Equal Treatment Bench Book, it had asked about any adjustments that the claimant felt would assist him with giving his evidence and ensuring that he could fully participate in the hearing.

The claimant had explained to the judge that he simply required time to give his answers to questions and that he should not be interrupted as he was speaking. The employer’s lawyer had confirmed that she would take account of this request.

Additionally, the judge made sure a number of breaks were incorporated into the day’s hearing and reminded the claimant that he should ask for a break where he felt it would be of assistance.
See N v Packaging Automation>Adjustments in the hearing.

M v Ban-Car Hotel, Employment Tribunal, 2021
It’s interesting and welcome that the tribunal seems to have tried to compensate for effects of the claimant’s stammer when – nevertheless – finding that parts of her evidence were not credible.
On this issue, see below Mistaking stammering for dishonesty.

L v Superdrug (gov.uk), Employment Tribunal, 2020
The judge reported: “At [the Claimant’s lawyer’s] request, and with [employer’s lawyer’s] agreement, the Claimant gave his evidence first. [The Claimant’s lawyer] mentioned that the Claimant has a stammer and I readily agreed to allow him more time to answer questions and give breaks as required; in fact the Claimant gave his evidence fluently if a little too fast at times.”

Not a case on stammering, but the adjustment made in it may be helpful:

Anderson v Turning Point Eespro, Court of Appeal, 2019
An employment tribunal referred the claimant to the Bar Pro Bono Unit, which enabled her to be represented by a lawyer free of charge. She had a mental health condition.
This could be a helpful adjustment for someone who stammers if the court is willing, particularly where, as in the Anderson case, more complex legal issues are involved. See further below in Particular points if one is a party.

Speaking in court, and alternatives

If you stammer you may be happy to speak in court and not to have particular adjustments. A court should allow someone to stammer and should give them time to speak.

Even if you do not particularly want adjustments, you should seriously consider letting people know at the outset that you stammer, both to take pressure off yourself (not feeling you have to sound fluent), and to let listeners know what is going on if you do stammer. Do consider the danger of effects of the stammer being mistaken for dishonesty (below), and whether information about the stammer should be arranged to help counter this. (Also bear in mind Other possible effects of the stammer, below.)

If you do want to consider adjustments, there are many examples in the Equal Treatment Bench Book: above Examples of adjustments in the ETBB. Alternatively there may be other steps you come up with yourself.

Different adjustments will be appropriate for different people who stammer. The court in Rackham made the point that adjustments should be tailored to the individual: above Importance of considering individual’s needs, but fairness to both sides.

As set out in the ETBB, it is much better for adjustments to be arranged in advance. However this does not prevent a court having an obligation to take at least some steps later if these turn out to be required.

Bear in mind too that if you are a witness in someone else’s case, they may want some adjustments (or something said to the court) to take account of your stammer, and if so will probably want to try and get this arranged in advance of the hearing. See also below Sensitivities of the individual.

Particular points if one is a party, not just a witness

These are some particular points about arguing one’s case, and perhaps questioning witnesses, if the person who stammers is a party to the case and does not have a lawyer to put their arguments.

One of the many possible Equal Treatment Bench Book examples (above) of adjustments is that if the person is not legally represented, it may be possible to have a non-lawyer speak for them, eg a friend or other supporter (for more see that link, and ETBB Chapter 1 para 110-129).

Example: A party to a case is not legally represented. Because of a stammer they would have difficulty representing themself at the hearing. The judge exercises their discretion to allow the person to use a friend, relative or other supporter to put the case, if this would not be permitted under the normal rules.

If a hearing would normally be by telephone or video, fairness may require that it be face-to-face instead, because of the additional difficulty remote hearings can cause for many people who stammer. See Remote hearings.

It may well be possible to prepare a written argument in advance, though that will rarely be an adequate substitute for actively participating in the hearing. Presumably the judge should ensure written arguments put by the person who stammers are taken into account, even though the person has not talked about them in court, since the person may well limit how much they say because of the stammer (below Not presenting arguments fully).

In Anderson v Turning Point Eespro, 2019, an employment tribunal referred the claimant to the Bar Pro Bono Unit, which enabled her to be represented by a lawyer free of charge. She had a mental health condition. This could be a helpful adjustment for someone who stammers, if the court is willing to do it. The court might consider it particularly where, as in the Anderson case, more complex legal issues are involved. Or the individual might seek a referral to this Unit or similar from an advice agency or lawyer. Generally it may be best to get help at an early stage if possible. See Sources of help and advice.

As regards getting legal aid for a lawyer, a person who stammers should bear in mind that if they financially qualify for legal aid, they may be able to apply for “exceptional case” legal aid funding due to communication difficulties, even if it is not the kind of case that would normally be eligible for legal aid, eg legal representation in an employment tribunal going beyond initial advice and assistance: Sources of help and advice>Legal aid: Exceptional case funding.

Mistaking stammering for dishonesty

There is a serious danger that a jury or 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, Tasmanian Supreme Court, Australia, 1994
A person who stammers was found guilty of assaulting his wife. His demeanour led the magistrate not to believe his evidence. The magistrate described him as an “uneasy witness” with a tremor in his voice, particularly during parts of his evidence which were controversial rather than common ground. On appeal, the Supreme Court found that his demeanour was at least in part due to his stammer, which the magistrate had not been told about. The matter would be sent for re-hearing by another magistrate.

Update: This page does not yet include Habib v Dave Whelan Sports (bailii.org), August 2023, Employment Appeal Tribunal. The EAT overturned an employment tribunal decision which found evidence of the claimant not to be credible, for reasons relating to her dyslexia, but failed to take account of the Equal Treatment Treatment Bench Book. The entire case would need to start afresh.

To help counter this, provision of information related to the individual’s stammer should be considered, though bearing in mind sensitivities he or she may have about this. See below Telling the court about the stammer.

M v Ban-Car Hotel, Employment Tribunal, 2021
It’s interesting and welcome that the tribunal seems to have tried to compensate for effects of the claimant’s stammer when – nevertheless – finding that parts of her evidence were not credible.

I suggest people who stammer should be somewhat wary of any advice not to give evidence because the stammer might be seen as a sign of guilt or dishonesty: below Advice or decision not to give evidence due to stammer?

ETBB on mistaking stammer for dishonesty

The Equal Treatment Bench Book (July 2022) says among other things:

It can be wrongly assumed, purely from the way someone with a stammer speaks or from the secondary behaviours described above, that he or she is nervous, unintelligent, untruthful or deceitful. …

There is also a risk that judge or jury may be influenced, even unconsciously, in assessing the reliability of the individual’s evidence because of speech patterns and behaviours which are exclusively due to the person’s impairment, eg:

• Slowness of speech.
• Long pauses before starting to speak.
• Apparent hesitancy or uncertainty.
• Apparently indirect or evasive answers.
• Avoidance of eye contact.
• Extreme nervousness.

Research (in the context of language interpreters) has found that English jurors tend to believe witnesses who have what linguists call ‘powerful’ rather than ‘powerless’ speech style. ‘Powerless’ style involves hesitations with pauses, ‘um’, ‘well’, and intonation that conveys uncertainty. It also involves hedges such as ‘I think / you know / sort of’. This clearly also has implications for the way a person with a stammer might speak. …

Where appropriate, adjustments at the hearing may include:

• …..
• Not relying on demeanour / mode of expression such as apparent hesitation, pauses, avoidance of eye contact.
• Being cautious about drawing adverse inferences from unusual or round-about use of words.
• In a criminal case, briefing the jury in advance regarding how an individual’s stammer might affect their evidence and to be cautious about drawing adverse conclusions from such factors.
• Considering intermediaries [below]…
• [The ETBB’s full list – above ETBB examples specifically for stammering – also includes numerous other adjustments to help reduce effects of stammering.]

Equal Treatment Bench Book (July 2022) pp.456-458

Some effects of stammer which could be misinterpreted as dishonesty

Listeners may or may not know the person has a stammer (in Coombe v Bessell the judge did not know). Even if listeners can hear or are told that the person has a stammer, they will probably not know the various hidden effects a stammer may have. Many of these effects are because of the person’s efforts to avoid stammering openly. As the ETBB says:

It may be hard for a judge to know to what extent an individual is doing any of the above [eg changing words, sounding convoluted or artificial, not giving full answers], because a stammer may seem minimal when in fact the individual is working hard not to stammer.
Equal Treatment Bench Book p.456

Possible effects of the stammer, both overt and hidden, include:

• Hesitation, stumbling over words, or perhaps blocking.
• Avoiding eye contact is common amongst people who stammer, and may be viewed as “shifty”.
• Changing a word or phrase to something they can say – either imperceptibly, or perhaps starting to say one thing and then switching to another part way through. It may not be what they’d really like to say, and may sometimes sound convoluted or artificial;
• Keeping using words – sometimes called “fillers” – such as “eh”, “well”, “um”, “you see”, or adding other unnecessary words and phrases, perhaps with some hesitations, because the person is having difficulty saying the next thing they really want to say. Eg “30mph” might come out as “Eh, well, well, you see, at the time, I was, you see, going at 30mph”. As well as these “fillers”, the person may have added unnecessary words at the start such as “I was going at” to (perhaps unsuccessfully) ‘get a run’ at the main information they want to give, “30mph”.
• Using wording which sounds convoluted or artificial. Eg if a person cannot fluently answer “no” to a question they may come up with some more complicated phrase, perhaps with added “fillers” (above);
• The person may not answer a question directly if a direct answer is difficult to say (as in the previous bullet point). For more extreme possibilities see also below Altering answers, or at least wording.
• A person might “disguise” a pause by seeming to think before answering, which might be misinterpreted. Or they might indeed think before answering to plan the words they are going to say, as they may find this planning helpful to their speech.
• People who stammer might claim to forget what they want to say when they are having trouble saying it (ETBB, p.456)
• Some people who stammer may keep answers short (below Not giving full answers), which in some situations may sound odd, or may not give full information.
• Face, head and/or body movements (even legs or feet)
• Tension and nervousness related to a stammer may be seen as signs of lying, ie nervousness about the content of the evidence. In fact the person is likely to be very nervous about their speech and about struggling to stammer as little as possible in front of a group of strangers. The “high stakes” involved may make the person especially anxious to sound fluent. In Coombe v Bessell, the judge did not know about the stammer but described the defendant as an “uneasy witness” with a tremor in his voice.
• Even if the listener knows of the stammer, they may think that stammering is due to nervousness, which in turn is due to lying. Research indicates that stammering is at root neurological, related to connections in the brain. The stammer will often create nervousness around speaking, which may in turn exacerbate dysfluency. In court a person who stammers is likely to be particularly nervous about their speech even if telling the truth.
• See further the Equal Treatment Bench Book at pp.455- 458.

See further below Background on trying to hide stammering.

Giving the court information on stammer to counter impression of dishonesty

To help counter the risk of stammering and related behaviours being seen as dishonesty, providing information on stammering to the judge and any jury can be considered, though trying to take into account sensitivities the individual may have about this. Preferably any steps should be planned ahead of the hearing (above). The following gives some ideas on this, but subject to any legal rules or perhaps other factors.

See too Stammering and the criminal justice system (stamma.org), which among other things suggests improved and urgent access to a specialist speech and language therapist before court appearances, and support for compulsory screening of speech issues, not just for young offenders.

Disclosing the stammer

As a minimum, it is likely to be desirable for a witness or party who stammers to expressly say that they have a stammer, at least if this is not obvious, or for the court to be told this in some other way (though see below Some people will be reluctant to reveal their stammer).

As well as explaining the situation to listeners, disclosing a stammer may help the person who stammers feel more comfortable about their speech as they may feel less pressure to sound fluent.

In StutterTalk podcast Episode 131 (from 20:22 to 25:20), no longer online, a United States police officer talked about the importance of advertising his stammer when he was giving evidence in court. One point made was 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 may 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.

Information for court on the particular individual’s stammer?

Effects of a stammer differ depending on the individual. It may therefore be helpful for any information to the judge and jury to include information on that individual’s stammer and behaviours, subject to the individual’s consent as to what the court will be told. This could include effects of their particular stammer which may be mistaken for dishonesty. See similarly on giving information to employers before a job interview: Examples of reasonable adjustments: Recruitment>Information about the individual’s stammer.

In some cases – such as in less formal courts like the county court and tribunals – this might be written by the individual, perhaps with support from the Stamma helpline (stamma.org). Or it might be done through a conversation between the individual and a speech and language therapist specialising in stammering, who may be a registered intermediary. If done this way, presumably the specialist speech therapist would produce the information, which the individual would be invited to approve.

More general information on stammering

Apart from any information on the individual’s stammer, as regards stammering in general the parties may feel it is sufficient to point the judge to the information in the Equal Treatment Bench Book from p.455 (including how it can be mistaken for dishonesty), or may want to add or particularly stress some points.

Any briefing to a jury would have to be specifically written, though perhaps reflecting the Equal Treatment Bench Book and potentially with input from a speech and language therapist. For example one would want to make the point that stammering is neurological rather than due to nervousness.

Sensitivities of the individual

Some people will be reluctant to talk about their stammer, and may not like their stammer being discussed publicly, including in a court: below Some people will be reluctant to reveal their stammer.

I’d say the individual’s views should at least be taken into account in deciding whether and how such information is given.

If a party calling someone who stammers as a witness wants disclosure (eg to a jury) which the stammerer does not want, the court may have to decide what to do. Giving any information in a sensitive way – eg less publicly if possible, or with some input by the individual on what is said (or the individual may have their own suggestions) – may help to both reconcile the individual with it taking place and make them more comfortable when actually giving evidence.

Advice or decision not to give evidence due to stammer?

A person who stammers and/or their lawyers may be concerned that their evidence is likely to be disbelieved because of the stammer (above Mistaking stammering for dishonesty). Also many people who stammer try to avoid situations in which they will have particular difficulty speaking, which is another reason they may be reluctant to give evidence.

An example of a lawyer advising a defendant who stammers not to give evidence::

A defendant in a criminal case sent a video of his TED talk on stammering and creativity to his barrister, to introduce himself and for the barrister to know something of what he was about professionally. He says this stammer led his barrister to suggest that he not give evidence at his trial, in case the jury saw it as “a sign of guilt”. The defendant had been “nervously looking forward to giving my side of things” but, he says, finally agreed not to give evidence when also so advised by a representative of his legal firm. (He subsequently discovered the representative was not legally trained). The defendant was convicted and sent to prison. He says he now sees this failure to give evidence “as fatal, but assumed my defence knew something procedurally that I didn’t”. More on ‘CCRC Watch’ website…
Comment: Whatever one’s view of the jury’s verdict here, there is the question whether someone should be advised not to give evidence because of their stammer, and whether they should follow such advice if given.“

I would tend to encourage people who stammer to give evidence and say what they want – but with any reasonable adjustments in place (above Examples of adjustments in the ETBB), and referring as appropriate to what the Equal Treatment Bench Book says about stammering.

One example of an adjustment given in the ETBB is: “In a criminal case, briefing the jury in advance regarding how an individual’s stammer might affect their evidence and to be cautious about drawing adverse conclusions from such factors.” On that adjustment, see further above Giving court information on stammer to counter impression of dishonesty, including the possibility of involving STAMMA and/or a speech and language therapist. It should be borne in mind that stammering can differ very much between different people, and what matters is the particular individual’s stammer.

However obviously individuals need to make their own decision whether to give evidence, and listen to any advice from their lawyers – albeit bearing in mind that lawyers may themselves have stereotypes and may need to be educated about stammering (including the particular individual’s stammer) and possible adjustments for it.

While there may be risks – hopefully reduced by adjustments – of stammering being misinterpreted as dishonesty, failure to give evidence might itself be seen as indicating guilt (though I don’t know how a judge would direct the jury on this). Also unless the defendant gives evidence, the court presumably won’t have the defendant’s account of what happened, tested by cross-examination.

See also below on the important role of the lawyers in obtaining adjustments, and Decision whether to give evidence, or whether to pursue or defend a case.

Other ways stammering may have an impact in court

See also below Note: Hiding and reluctance to talk about one’s stammer.

Altering answers, or at least wording

Often instinctively, people who stammer may change words or phrases they have difficulty saying to things they can say. The replacement word or phrase may or not mean precisely the same, and may sometimes make an answer sound odd or convoluted. For example, a witness may have difficulty saying a simple “yes” so they think up longer wording they are able to say. (See further Some effects of stammer which could be misinterpreted as dishonesty.)

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 (below Trying to hide stammer).

More radical changes of meaning in court are hopefully less likely, but the possibility cannot be excluded. To give examples of what may happen in non-courtroom situations: In school pupils who stammer are reported to sometimes respond to the teacher with things like “can’t remember” even if they know the answer to the question. Or in a coffee shop or restaurant some adults who stammer order something quite different to what they want because of what they’re able to say.

Adjustments listed above may help to at least reduce these effects: Examples of adjustments in the ETBB.

Decision whether to give evidence, or whether to pursue or defend a case

It is common for people who stammer to avoid situations in which they will have particular difficulty speaking. Accordingly they may perhaps be deterred from bringing or defending a case because they would have to speak in court.

There is also the possibility that a defendant may not give evidence in their own defence in a criminal case, and perhaps even plead guilty where they would not otherwise do so, because of concern that their evidence likely to be disbelieved (above Mistaking stammering for dishonesty), as well as fear of the speaking situation. Indeed a lawyer may advise a defendant who stammers – perhaps unwisely – not to give evidence because of this concern. See further above Advice or decision not to give evidence due to stammer?

Concern about not being believed as a witness, or not being able to put their arguments in a persuasive way as litigants in person, may also deter some litigants in civil cases.

People will want to consider any legal advice, but I would tend to encourage people who stammer to give evidence and say what they want, but with any reasonable adjustments – and referring as appropriate to what the Equal Treatment Bench Book says about stammering.

See also below on the important role of the lawyers in obtaining adjustments.

Not giving full answers

A witness who stammers may restrict the amount they say, either to reduce their chances of stammering (below Trying to hide stammering), or because stammering (or trying to avoid doing so) means speech takes considerable effort. If advocates are aware this is happening, it may be possible to draw out any further detail with supplementary questions.

As well as adjustments above (Examples of adjustments in the ETBB) which may help, see in the context of job interviews Examples of reasonable adjustments: Recruitment>Oral interview: Limited responses.

Not presenting one’s arguments fully

Similarly a litigant in person, or someone defending themself, may be reluctant to say everything they would really like to in support of their case, because of the stammer. Adjustments may help: see above Examples of adjustments in the ETBB and As a party: other points on putting one’s arguments).

On the similar issue in job interviews, and possible adjustments, see Examples of reasonable adjustments: Recruitment>Oral interview: Limited responses.

Remote hearings

There is greater use of remote hearings, video or audio, since the Covid-19 pandemic. These may be fully remote, or partially remote or “hybrid” hearings where one or more participants attend remotely whilst other attendees are in physical attendance in a court or tribunal room. There is court guidance on What to expect when joining a telephone or video hearing (gov.uk).

Remote hearings: Difficulties for stammering, and making adjustments

Deciding whether hearing should be remote/hybrid

People who stammer often have particular difficulty with telephone calls, and may also find a video conference significantly more difficult than face-to-face. On the other hand, sometimes a person who stammers may find it easier to speak via video than face-to-face in front of a group of strangers in a courtroom. (A video link is listed in the ETBB as a possible adjustment for stammering, subject to caveats such as looking at what helps that individual).

What works best for someone who stammers will depend on the individual, any adjustments that can be made in the remote (or face-to-face) hearing, and perhaps the situation in the courtroom (eg how many people).

A person who stammers – or who has any other disability – should tell the court or tribunal of any problems they may have with what is proposed for a hearing (eg remote vs face-to-face), and if possible what would help (see the HMCTS quote below).

There may be a choice – subject to the judge’s agreement – between actually speaking in the court (where there could be fewer people than normal if the hearing is hybrid) or via a live link. The live link may be either video or audio, though there may not necessarily be a choice between them. Some people who stammer might find it easier if they are at least in the same room as the judge (though there may be a question whether it is fair for only one side to attend in person: Equal Treatment Bench Book, July 2022, at para 31, p.490).

The judge will have the final say on the format of the hearing, but presumably the view of the individual who stammers on what would help them communicate better should be an important factor:

It is ultimately a balancing exercise for the judge as to whether or not a particular hearing should proceed remotely, but it is very important to listen to the views of the parties and their representatives.
Equal Treatment Bench Book (July 2022) p.490

Link: If you have a court hearing by phone or video call (citizensadvice.org.uk). This makes the point that you might have to wait a long time for a face-to-face hearing.

Adjustments in a remote (or hybrid) hearing

In a remote or hybrid hearing, as in a face-to-face one, adjustments should be considered: see examples above at Examples of adjustments in the ETBB, and also Case examples of adjustments for stammering in court and Speaking in court, and alternatives.

The Equal Treatment Bench Book at p.495 says to judges “It can be hard to identify who is talking. Ask speakers to identify themselves each time they speak (unless it is obvious).” However a person who stammers can have particular difficulty saying their name. It might be agreed that the person who stammers can identify themself in some other way that they are happy with, or doesn’t have to at all.

On difficulties and possible adjustments specifically for video and audioconferences, albeit in an employment context, see:

• Examples of reasonable adjustments: In the job>Meetings, video conferences and conference calls and Examples of reasonable adjustments: In the job>Telephone
• Examples of reasonable adjustments: Recruitment>Telephone or video interviews.

Remote hearings: Legal requirement to take disability into account

Remote hearings will create additional difficulties for some people who stammer, and the court has a duty to make reasonable adjustments (below). This duty doubtless includes what format of hearing to use, as well as adjustments within a particular format.

There is clearly awareness that judges need to take disabilities into account in the courts’ greater use of remote hearings. Guidance on telephone and video hearings says:

Reasonable adjustments

We know that people with disabilities sometimes need additional support. This can mean that we need to provide something different so you can access and use our services in the same way as a person without a disability. We often call this a reasonable adjustment.

If you need a reasonable adjustment, tell us using the contact details you have been sent. We will discuss this with the judge hearing your case. Judges are committed to making sure everyone can give their best evidence, participate effectively and have a fair hearing.

What to expect when joining a telephone or video hearing (gov.uk), updated 23rd July 2021. HM Courts & Tribunals Service.

The Equal Treatment Bench Book (July 2022) talks of additional difficulties remote hearings can cause for disabled people, but only as regards mental disabilities: Chapter 4 para 100-102 (pp.130-131) and Appendix E para 17- 21 (pp.487-488). However clearly remote hearings will also create difficulties for some people who stammer, and the courts’ general duty to make reasonable adjustments (below) extends to that. P.487 of the Equal Treatment Bench Book does specifically mention as possible effects of remote hearings “Being reluctant to speak up” and “Having extreme anxiety”, which could apply to stammering, but a stammer can create further issues beyond this in remote hearings.

Intermediaries (criminal cases)

In criminal cases in England and Wales, one of the specifically listed “special measures” a court can order is examination of a vulnerable witness through an “intermediary”, such as a speech and language therapist (s.29 Youth Justice and Criminal Evidence Act 1999 (legislation.gov.uk). On “special measures” and who is a “vulnerable” witness, see below Criminal cases: “Special measures”.

For more on intermediaries:

• The Advocates’ Gateway: Intermediaries, including further links,
• Intermediaries for Justice – a professional body for intermediaries: www.intermediaries-for-justice.org
• Equal Treatment Bench Book Chapter 2 from para 95 (p.69ff).

This special measures legislation does not apply to the accused, even as a witness. However even without statutory powers, the court has a discretion – and potentially a duty as discussed below – to allow the accused to give evidence in such a way that he has a fair trial (eg Camberwell case below). 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. (Intermediaries working with other witnesses, including the victim, are “registered intermediaries”.)

On statutory special measures not excluding the courts’ power to take further steps, see R v Camberwell Green Youth Court (bailii.org) House of Lords, 2005, particularly Baroness Hale at paragraphs 59 and 63. Subsequent cases on intermediaries include:

C v Sevenoaks Youth Court (bailii.org), High Court, 2009
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.

Also R v Walls (bailii.org), Court of Appeal, 2011; R v Great Yarmouth Crown Court (bailii.org), High Court, 2011; R v Dixon (bailii.org), Court of Appeal, 2013.

Taking an oath (juror or witness)

One suggestion that can help:

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

Unless the witness already knows the oath or is reading it, this is presumably what the ETBB is suggesting when it says as regards witnesses who stammer:

It may help for taking the oath if the clerk or user says the words at the same time as the witness. Many people who stammer find that speaking in unison with someone else makes them stammer less, as it can reduce self-consciousness.
Equal Treatment Bench Book, p.458

There is an example of this “choral effect” 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 and Special Needs”) 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 a 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. If the court does have non-discrimination obligations as regards discussions within the jury, these might well be limited to – so far as the person who stammers wishes – giving other jurors information about the stammer and making requests to help the person participate. Presumably in any event the person who stammers could themself give any information and make requests of fellow jurors.

Criminal law does not permit there to be an “extra” person in the jury room (except for British Sign Language interpreters (gov.uk)), so having a non-jury member in to help would not be a reasonable adjustment (Services Code para 11.32).

On jury service see www.gov.uk/jury-service.

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 (gov.uk). 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.

Legal duty of judges to make adjustments

There is a brief overview of this section above: Legal duty of judges to make adjustments: in brief.

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 particularly been told by appeal courts to take into account the Equal Treatment Bench Book (above). The disabled person may be a defendant, a party, a witness, or even a barrister.

Anderson v Turning Point Eespro, Court of Appeal, 2019
An employment tribunal had made a reasonable adjustment by supporting a disabled claimant in getting a free legal representative. The Court of Appeal held this was enough on the facts. The Court of Appeal said that normally it is entirely appropriate for a tribunal to leave it to the legal representatives to take the lead in suggesting adjustments for a disabled litigant, though the tribunal/court has ultimate responsibility. There is no rule that there has to be something labelled a “ground rules hearing”. What fairness requires will depend on the particular circumstances.

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 the tribunal had made sufficient adjustments in the present case. An expert report might be appropriate on what adjustments are required. By way of general guidance, the EAT said:

• courts should focus on adjustments tailored to the individual claimant (individuals have different needs) rather than adopting a generic approach for those with a particular disability,
• courts should not normally second-guess decisions of the individual, and
• the EAT suggested that in an appropriate case an initial hearing on adjustments similar to a “ground rules hearing” might be held, though the results of that hearing would not be set in stone as the condition or position of the parties may change.

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 (a language disorder) following a stroke was fit to practise as a barrister. He had significant impairment of speech and working memory, but could meet the standards required. 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 the Equality Act 2010, but was under a non-statutory obligation to make reasonable adjustments for a disability when hearing a case.

R v Isleworth Crown Court ex parte Murray King, High Court, 2001
The applicant was the defendant in a criminal case. He had been convicted by a magistrates court, and the Crown Court dismissed his appeal against the 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 by the Crown Court. 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 that he found it difficult to assimilate his thoughts into brief, concise, clear questions, and as a layman he did not necessarily phrase his questions correctly. The judge had been irritated, making comments such as “stick to the point”. These kind of comments, said his wife, only served to make the applicant more anxious, stressed and frustrated.

A case on stammering from Australia:

Coombe v Bessell, Tasmanian Supreme Court, 1994
A criminal conviction was overturned where the magistrate had mistaken a speech impediment for dishonesty. He did not realise the defendant had a stammer.
Above: Mistaking stammering for dishonesty.

Legal basis of duty on judges

The non-statutory duty of courts to make reasonable adjustments has been said to arise from the (English) common law duty of fairness, fed by the increased emphasis on fairness arising out of various international instruments and Acts of Parliament, including Article 6 of the European Convention on Human Rights (right to a fair trial) and Article 13 of the UN Convention on the Rights of Persons with Disabilities (access to justice). See paragraph 51 of the NI Court of Appeal judgment in Galo v Bombadier Aerospace, 2016.

Rights under the Equality Act 2010 (EqA) as regards court hearings are more limited and less important in practice: see below Equality Act 2010.

Civil Procedure Rules (CPR) etc

From 6th April 2021, rights of disabled people under the Civil Procedure Rules (CPR) were strengthened. Where these rules apply, including in most County Court and High Court cases, the court’s “overriding objective” now includes ensuring (so far as practicable) that parties “can participate fully in proceedings”, and that “parties and witnesses can give their best evidence”. A Practice Direction says more on how this is to be achieved. See below Civil courts: “Overriding objective” includes ensuring full participation.

The equivalent wording in eg the employment tribunal “overriding objective” (legislation.gov.uk) is still just “ensuring that the parties are on an equal footing”. However the Equal Treatment Bench Book Chapter 3 para 12 says such wording is wide enough to cover disability.

In any event, the non-statutory duty above, based on fairness, applies to courts and tribunals, criminal and civil, whatever the precise wording of their “overriding objective”.

Complaint is not necessarily by the disabled person

Under the EqA, any right to make a complaint is normally that of the disabled person. However, as regards the non-statutory obligation on judges, 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.

In an appeal, the appeal court must determine for itself whether a fair procedure was followed, not merely review whether or not the lower court’s decision on fairness was reasonable (Galo v Bombadier Aerospace).

No need for a “disability” within the Equality Act

Since this non-statutory right to adjustments is not under the EqA, there seems to be no requirement that the person has a ‘disability’ as defined in the EqA. The focus should be on whether adjustments are required to give the person a fair hearing. The Court of Appeal made this point in the context of mental health in J v K (bailii.org), 2019, at para 38. Similarly the Equal Treatment Bench Book says:

It is not a question of whether or not an individual meets the legal definition of disability. This chapter is concerned to ensure appropriate adjustments are made for any individuals who have a physical impairment which might interfere with their ability to have a full and fair hearing.
Para 10 of Chapter 3 in Equal Treatment Bench Book (July 2022). Similarly on mental disabilities para 170 of Chapter 4.

Example: A person has particular difficulties with their stammer in public speaking situations, such as in a court. As regards a court’s duty to make adjustments, it should not matter whether the stammer has a substantial effect in normal day-to-day activities.
Note: Making presentations is likely to be a normal day-to-day activity in the context of employment discrimination, but perhaps not otherwise.

I think the point that one does not need a disability within the EqA applies irrespective of the European Convention on Human Rights. Even so it is worth noting that so far as UK law here is being influenced by this Convention (above) there need not be a “disability” within the EqA definition: Disability under Article 14 European Convention>Article 14: if a stammer etc is not a “disability” within the Equality Act definition.

Importance of considering individual’s needs, but fairness to both sides

The courts (eg in Rackham, quoted below) and the Equal Treatment Bench Book emphasise that the court should consider the needs of that individual, rather than making generic assumptions. This is particularly important for stammering.

9. Each person with a disability must be assessed and treated by the judge or tribunal panel as an individual so that their specific needs can be considered and appropriate action taken. Failure to do this may result in a decision being overturned on appeal. …

11. Adjustments should be made provided they do not impinge on the fairness of the hearing or trial for both sides. The other party can be expected to cooperate.
Equal Treatment Bench Book (July 2022), Chapter 3 paragraphs 9-11.

At p.94 the ETBB adds: “It is crucial to be aware that what is perceived as the same or similar impairment, may well have a different impact upon different individuals.” Similarly discussing the ETTB’s Disability Glossary, which gives suggested adjustments for different disabilities including stammering, the ETTB says:

However, the effects of an impairment vary for each individual. It is therefore important not to guess or assume what adjustments an individual might need. Communication with the person concerned is key to understanding what adjustments are needed for that individual. Not only does this ensure that appropriate adjustments are considered, but it also helps protect the dignity of the person concerned.
Equal Treatment Bench Book (July 2022), p.95

The Employment Appeal Tribunal (EAT) has said:

58. … First, we would emphasise that each case is the case of an individual. Each individual will necessarily be in a position that is to some, and it may be some great, extent different from that of another. A decision as to what it is reasonable to have to do which is then made by a Tribunal must be tailored not to some general idea of what a person with that disability, or it may be disabilities generally, needs but what the individual before the Tribunal requires.

59. Second, we think that a considerable value should be placed upon the integrity and autonomy of the individual. It is precisely that which the extracts from Article 13 and Article 1 of the [United Nations] Convention [on the Rights of Persons with Disabilities] emphasise. If a person entitled to make a decision affecting the conduct of their case makes that decision, it is not in general for any court to second-guess their decision and to make it in a manner which patronises that person. As we have said earlier in this Judgment, there may be exceptions to that, though they may be rare. Generally, we would wish to emphasise the very considerable importance of recognising that those who have disabilities are fully entitled to have their voice listened to, whatever it is they may be saying.
Rackham v NHS Professionals, EAT, 2015

Identifying and planning in advance

The Equal Treatment Bench Book (ETBB) (July 2022) Chapter 3 paragraphs 19-21 encourages any disability to be identified and arrangements made in advance.

See too below on “ground rules” or other preliminary hearings.

Possible ground rules hearing, but keep adjustments under review

Cases such as Galo and Rackham have held that a “ground rules hearing” or similar may be appropriate to consider what adjustments are required in the individual circumstances. Also the court must keep the adjustments needed under review (Galo). The ETBB says:

28. It does not matter whether there is an entire meeting dedicated to discussing the proposed adjustments or whether the discussion is part of a wider case management discussion. What matters is that the subject is fully explored.’

29. Once arrangements for the hearing are made, they are not set in stone. It may subsequently become apparent that further adjustments are needed.

Equal Treatment Bench Book (July 2022), Chapter 3 paragraphs 28-29.

Considering an employment tribunal case, the Court of Appeal in Anderson v Turning Point Eespro, 2019, held that there is no rule that there must be a “ground rules hearing”. What fairness requires will depend on the particular circumstances.

Onus on legal representatives to suggest adjustments to court?

The lawyers of a person who stammers (or of someone calling that person as a witness) may know very little about the person’s stammer. So far as the person who stammers allows, it may well be appropriate for them to enquire into it to identify any adjustments required, perhaps with the help of a speech and language therapist specialising in stammering.

A complication is that some people who stammer will be reluctant to talk about their stammer, including what effects it has. See below Some people will be reluctant to reveal their stammer.

The Equal Treatment Bench Book (July 2022) has sections What if the individual does not raise the subject of disability? Both sections suggest that the judge should be alert to any indicators that adjustments might be required. The section on physical disabilities is at para 61 to 63. The corresponding section on mental disabilities, at para 87 to 91, includes a list of indicators some of which could be relevant to stammering (though the list is not designed for it).

In Galo, 2016, the NI Court of Appeal 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 person’s representatives.

The Court of Appeal in Anderson v Turning Point Eespro, 2019, rejected an argument that it was not enough for the tribunal in that case to have taken steps to ensure the disabled claimant was professionally represented pro bono (ie for free), as it had done, but should “take ownership” of the problem itself and make its own assessment about what substantive adjustments were needed. The tribunal was not required to do more than it had. Indeed the claimant’s lawyer had not argued there were any adjustments which should have been made at resumed hearings but were not. More generally, the Court of Appeal said:

“…In the generality of cases it is entirely appropriate for a tribunal to leave it to the professional representatives of a party who is under a disability, or indeed otherwise vulnerable, to take the lead in suggesting measures to prevent them suffering any disadvantage. The representatives can be expected to have a better understanding than the tribunal of what the party’s needs are, and access to appropriate medical advice; and there is also a risk that if the tribunal itself takes the lead in seeking to protect a party (or witness) it may give the impression of taking their side. This involves no abdication of responsibility by the tribunal. Of course it retains ultimate responsibility for seeing that a disabled party receives a fair hearing, and I do not rule out the possibility that there may be cases where a tribunal should take steps for which the party’s representative has not asked; but those will be the exception, and the default position is that the tribunal can expect a party’s interests to be looked after by his or her representatives.”
Anderson v Turning Point Eespro, Court of Appeal, 2019

See also above on possible dangers of lawyer advising not to give evidence because of the stammer: Advice or decision not to give evidence due to stammer?

Equality Act 2010

In summary, court administration is subject to the Equality Act (EqA), but court judgments and probably the judge’s management of the hearing are not. However, outside of the EqA, the judge has a non-statutory duty to make adjustments to the hearing (eg how evidence is given), since the judge should ensure a fair hearing: see above Legal duty of judges to make adjustments. In more detail:

Court administration is subject to the Equality Act

Courts and tribunals excluding judges – in particular their administrative staff – will generally be subject to the EqA in the normal way. This could be on the basis that the court is supplying 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 EqA.

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

Equality Act and judges etc

Indications so far are that the EqA does not apply to the judge’s management of the hearing. The Bar Standards Board Review Panel so held in In the matter of Horan (above). However Legal duty of judges to make adjustments (above) sets out how judges nevertheless have a non-statutory duty to make adjustments to the hearing, since the judge should ensure a fair hearing. Because this non-statutory duty is outside the EqA, this duty (and the Equal Treatment Bench Book) apply whether or not the person’s impairment is a “disability” within the EqA: above Need not be a “disability” within the Equality Act.

The likely exclusion of judicial case management from the EqA is because of EqA Sch 3 para 3, which excludes the following from the EqA rules on public authority functions:

• a judicial function, and anything done on behalf of – or on the instructions of – a person exercising a judicial function. This is not limited to courts and tribunals, eg it can include certain functions of the Parole Board, and see below on the Financial Ombudsman Service;
• a decision not to commence or continue criminal proceedings, and anything done for the purpose of reaching, or in pursuance of, that decision.

However an example of adjustments (for deafness) at a court hearing that seem to have been viewed as falling within the Northern Ireland equivalent of the EqA:

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

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

From the Equality Act 2010 Explanatory notes (pdf, 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.

Financial Ombudsman case

The Financial Ombudsman Service said in summer 2022, in the context of two cases where the Ombudsman had made adjustments (not necessarily meeting the expectations of claimants) but the Independent Assessor made recommendations on improving communication:

We have to take account of a recent court case which confirmed that the Financial Ombudsman Service benefits from the judicial-function exemption for ‘reasonable adjustments’ in Schedule 3 [above] of the Equality Act 2010. Accordingly, whilst we always make adjustments for accessibility and practical matters (e.g. font size, sign-language interpreters, wheelchair access, etc), when it comes to legitimate casework judgments – such as setting fair timescales, giving impartial answers, or deciding questions of jurisdiction – we may not be able to accommodate a complainant’s requests if they are unreasonable or interfere with natural justice. An example might be a request to halt progression without good reason, which could adversely impact other parties, disrupt our process, and affect other complainants.
Management Response to the Independent Assessor’s Annual Report, 2021/22 (pdf, financial-ombudsman.org.uk)

The case cited by the Ombudsman is R (Shaw) v Financial Ombudsman Service Limited [2022], the judgment in which is unpublished so far as I know. The Ombudsman or anyone else would presumably need to produce the judgment if they wanted to use it in argument in a court case. It seems unsurprising though if the court in Shaw found that the Ombudsman falls within the EqA Schedule 3 exemption. However the Ombudsman’s summary says nothing about other legal duties the Ombudsman may have, like the courts’ non-statutory duty to make reasonable adjustments (above) based on fairness. Also the Ombudsman says it may not be able to accommodate requests which are “unreasonable or interfere with natural justice”, but these would probably not be legally required anyway, whether under the EqA or a non-statutory duty.

(Schedule 3 of the EqA does not prevent the Ombudsman’s decisions taking into account whether the relevant financial institution has breached the Equality Act, as discussed at Complaints and going to court: services>Ombudsmen and other enforcement bodies? However any court claim for an EqA breach by the financial institution would probably just be against that institution.)

Sources of help and support

Apart from asking the court itself:

Lawyers

Ask lawyers involved about any arrangements that can be made – though it may not be something they are initially familiar with. See further above Onus on legal representatives to suggest adjustments to court?

Stamma (British Stammering Association) Information and Support Service

You can ask, talk about and explore any issues of concern about stammering – https://stamma.org/get-support/talk-to-us.

Witness service

Citizens Advice Witness Service in criminal cases: www.citizensadvice.org.uk/law-and-courts/legal-system/going-to-court-as-a-witness1/get-help-and-support-being-a-witness/get-help-from-the-witness-service/

Note: Hiding and reluctance to talk about one’s stammer

Trying to hide stammering

Many of the behaviours listed above in Some effects of stammer which could be misinterpreted as dishonesty and Other ways stammering may have an impact in court are aimed at hiding the person’s stammer, at sounding fluent.

Many people who stammer will have got used to trying to hide their stammer as much as possible, probably since schooldays, to fit in with the fluent “norm” that is socially expected. This may be, for example, through changing words and phrases to things they can say, avoiding speech situations they find difficult, and reducing how much they speak. (Some people though make a point of trying to stammer openly and not avoiding words or situations, or at least trying to do so.)

Using these behaviours will often be part of the stammer. People who stammer may use the behaviours fairly subconsciously – they are so used to doing it – and may have very negative feelings such as shame and embarrassment around the stammer. It may therefore not be helpful for someone who stammers to be told (eg by a court) “don’t do those things”. A person who stammers might work with a speech and language therapist over a period of time to reduce these behaviours.

Even so, adjustments in court can help: there are numerous Examples of adjustments in the Equal Treatment Bench Book.

A person who stammers may sound fluent, or largely fluent. If some stammering is audible, a listener might assume the stammer is only minor, that it is not having any significant effect on speech, whereas in fact the person is avoiding stammering using “tricks” (such as changing words) to hide the stammer. As the ETBB says, one should not assume a stammer is having only minor effects just because it sounds minor.

Some people who stammer can sound even totally fluent: see below Covert stammering.

Some people will be reluctant to reveal their stammer

A related complication is that some people who stammer are reluctant to talk about the stammer, including what effects it has. They may feel ashamed about it, for example, and may not have discussed it with anyone for years, if at all. It may be easier for them to talk about it with a speech therapist who specialises in stammering. Some people may not even have discussed stammering with close friends, and seek to hide it from them: below Covert stammering.

Similarly a person may not like their stammer being discussed publicly, including in a court. That may be even more so if it is done in the presence of people in the public gallery and potentially the press. See above Mistaking stammering for dishonesty>Sensitivities of the individual on trying to deal with that.

Covert stammering

Some people can sound totally fluent (or at least not as if they have a stammer), as may have been the case in Coombe v Bessell where the judge and perhaps the lawyers did not know of the defendant’s stammer.

The stammer may not be apparent to a listener at all, even though it is affecting what the person says (though changing words etc), and perhaps how much they say, when they choose to speak and what speaking situations they go into. Even people close to the individual may not know about the stammer. This is known as “covert stammering” or “interiorised stammering”. Scroll down to Overt and covert stammering on Covert stammering.

If the person does not tell their lawyers or the court that they have a stammer, and sounds fluent, in practice the court may be unable to take the stammer into account.

Technical note: Criminal cases: “Special measures”

Introduction

This section outlines 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 trial. The court’s powers are not limited to these statutory “special measures”, for example:

• those statutory provisions do not apply to the accused but the court may need to take similar measures for the accused nevertheless: below The accused
• examples of adjustments in the Equal Treatment Bench Book could be applicable in criminal courts.

Generally, the “special measures”, and other aspects of criminal trials such as ground rules hearings, are discussed in Chapter 2 of the Equal Treatment Bench Book (above).

Witnesses (England and Wales)

The Youth Justice and Criminal Evidence Act 1999 (legislation.gov.uk) allows “special measures” to be used for certain witnesses in criminal cases in England and Wales. This includes, among other things, if court considers that the quality of the witness’s evidence in terms of completeness, coherence and accuracy is likely to be diminished by virtue of a physical disability or disorder (ss.16,17 YJCEA). “Physical disability” or “physical disorder” would presumably include a stammer. “Coherence” refers to a witness’s ability in giving evidence to give answers which address the questions put to the witness and can be understood both individually and collectively. In the case of a stammer, completeness and accuracy may also be affected by a witness seeking to minimise the amount they speak, and/or substituting words: see above Other ways stammering may have an impact in court.

The following are some of the measures in the YJCEA 1999:

• Screening the witness from the accused (s.23)
• live video link (s.24)
• video recording of the evidence in chief, ie your main evidence before cross-examination (s.27).
• video-recording of cross-examination and re-examination (s.28) may be still in the course of being implemented, after pilots. On Special Measures (cps.org.uk) scroll down to Pre-trial visual recorded cross-examination (“Section 28”);
• examination through an intermediary such as a speech and language therapist (s.29): see Intermediaries (above);
• using aids to communication, eg perhaps text-to-speech technology where you type and a machine speaks (s.30).

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

• Special measures (cps.org.uk).
• Chapter 2 of the Equal Treatment Bench Book (above).

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.

However, even without statutory powers, the court has a discretion, and 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 (bailii.org) 2005, House of Lords, particularly Baroness Hale at paragraphs 59 and 63.

On the use of intermediaries for the accused, and other cases subsequent to Camberwell, see Intermediaries (above).

Technical note: Civil Procedure Rules (England and Wales)

Civil courts: “Overriding objective” includes ensuring full participation

On 6th April 2021 important improvements to the rights of disabled people in the Civil Procedure Rules (CPR) took effect. Where these rules apply, including in most County Court and High Court cases, the court’s “overriding objective” now includes ensuring (so far as practicable) that parties “can participate fully in proceedings”, and that “parties and witnesses can give their best evidence”. A Practice Direction says more on how this is to be achieved. For more, see Historic inclusion of the rights of disabled and vulnerable people in the Civil Procedure Rules (lag.org.uk) by John Horan.

These revised Rules and the Practice Direction do not apply to criminal courts and employment tribunals, but the legal duty of judges to make adjustments (above) still applies there, and see above Civil Procedure Rules (CPR) etc.

Civil courts: Specific powers

The Civil Procedure Rules (CPR) specifically say that 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: CPR rule 32.3. Annex 3 of Practice Direction 32 is guidance on Video Conferencing Guidance: www.justice.gov.uk/courts/procedure-rules/civil/rules/part32/pd_part32#annex3.

However, as discussed above, courts should have powers and indeed duties beyond this to take measures in order to ensure a fair trial, including adjustments in the Equal Treatment Bench Book.

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.