- Judges have an obligation to make adjustments for disability so that hearings are conducted fairly: Legal duty of judges to make adjustments. This is separate from the Equality Act.
- The Equal Treatment Bench Book gives important guidance for judges. Adjustments should be considered in advance. The court should look at the individual’s needs rather than making generic assumptions. The ETBB gives numerous examples of adjustments which may be helpful for stammering.
- Speaking in court, and alternatives sets out some steps which may help one’s speech in court, and possible alternative ways of communicating.
- If someone who stammers is giving evidence, it should be considered whether information ought to be given to the court to counter the possibility of stammering or its effects being mistaken for dishonesty.
- Other ways stammering may have an impact in court include the possibility of people altering their answers to make things easier to say, deciding not to pursue or defend a case, not giving full answers, or not orally presenting one’s 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, and sometimes it may be possible to be excused jury service.
- The judge’s obligations will normally not be under the Equality Act but because of the duty to conduct proceedings fairly. However, court administrative services are generally subject to the Equality Act 2010 in the normal way.
Summary guide for judges, lawyers etc
See Stammering in court: summary guide for judges, lawyers etc. This is aimed at judges, lawyers and others not familiar with stammering.
Legal duty of judges to make adjustments
Judges have non-statutory obligations (outside the Equality Act) to make adjustments for disability when hearing a case, because cases must be conducted fairly. Judges have particularly been told by appeal courts 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.
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. It 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 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 sufficient adjustments had been made in the present case. An expert report might be appropriate on what adjustments are required. By way of general guidance, the EAT said (a) courts should focus on adjustments tailored to the individual claimant (individuals have different needs) rather than adopting a generic approach for those with a particular disability, (b) courts should not normally second-guess decisions of the individual, and (c) 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 are not set in stone.
In the matter of Horan  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. 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. 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, said his wife, only served to make him more anxious, stressed and frustrated.
Rights in this area under the Equality Act are more limited and less important in practice: see below Equality Act 2010.
Under the Equality Act, any right to make a complaint is normally that of the disabled person. However, as regards these non-statutory obligations (or perhaps some statutory rights, such as the right to a fair trial), it is not necessarily the disabled person who would bring a complaint:
Example: A disabled witness is called by the defendant in a criminal case. There is a failure to make adjustments for the witness’s disability. The defendant might bring proceedings to seek to overturn any resulting conviction.
On 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).
A similar type of case, decided in 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.
Below: Mistaking stammering for dishonesty.
Need not be a ‘disability’ within the Equality Act
Since these rights are not under the Equality Act 2010, there seems to be no requirement that the person has a ‘disability’ as defined in the Equality Act. The focus should be on whether 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.
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.
Equal Treatment Bench Book
The Equal Treatment Bench Book (ETBB) is the key guidance for courts on disabled defendants, litigants and witnesses. The courts have stressed the importance to judges of the advice in the ETBB (eg in the Galo, Rackham, and Isleworth cases). Taking account of the ETBB is seen as a very major part of the judge fulfilling the legal requirement to make adjustments for disability, in the interests of fairness – see above Legal duty of judges to make adjustments.
‘We have formed the clear impression that the ETBB does not appear to be part of the culture of these hearings. That is a circumstance which must fundamentally change with a structural correction to ensure that this situation does not recur.’
Galo v Bombadier Aerospace, Northern Ireland Court of Appeal, 2016.
‘…I wish to stress in this judgment that this advice [in the Equal Treatment Bench Book] is important advice which every judge and every justice of the peace is under a duty to take into account when hearing a case involving people with one disability or another’
R v Isleworth Crown Court ex parte Murray King, High Court, 2001.
Possible ground rules hearing, and role of lawyers
The Equal Treatment Bench Book (ETBB) encourages any disability to be identified and arrangements made in advance (eg pages 3-2, 3-6).
Ground rules hearing
Cases such as Galo and Rackham have held that a ‘ground rules hearing’ may be appropriate to consider what adjustments are required in the individual circumstances. Or this might be done at a case management hearing. The ETBB says:
‘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.’
Equal Treatment Bench Book, page 3-7
However the Court of Appeal in Anderson v Turning Point Eespro (2019) considering an employment tribunal case, said 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
The Court of Appeal in Anderson v Turning Point Eespro (2019) also rejected an argument that the tribunal should “take ownership” of the problem itself and make its own assessment about what substantive adjustments were needed. The tribunal there had facilitated the claimant getting a lawyer pro bono (ie for free). As to whether the tribunal should have done more, the Court of Appeal said 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.
However the court retains ultimate responsibility for seeing that a disabled party receives a fair hearing, and the Court of Appeal did 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.
In Galo (2016), it was held that given the court could see signs of the claimant’s disability, the court had a duty to consider adjustments even though the issue had not been raised by the disabled person’s representatives.
A ground rules hearing – or presumably any other consideration of adjustments – is not just a one-off consideration; the court must keep the adjustments needed under review (Galo).
‘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, page 3-7.
Consider needs of individual, but fairness to both sides
The courts (eg in Rackham) and the ETBB also emphasise that the court should consider the needs of that individual, rather than making generic assumptions.
‘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.
10. 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, pages 3-4 to 3-5.
Examples in the ETBB
The ETBB does not specifically consider stammering (hopefully it will in future). However Appendix B says the fact that a disability is not listed in it does not mean the disability is less important than any other. The following are some adjustments and considerations mentioned in the ETBB which could be relevant to stammering. Also though, actions to be considered by a court are not limited to measures mentioned in the ETBB. It must be stressed that 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.
- A disabled person may need more time – so a longer time estimate for the hearing may be required, which should be decided in advance (ETBB page 3-6). Breaks or shorter hours is also a possibility if helpful (pages 3-10, 4-13). See also 4-9 which mentions time pressure, and feeling of being pushed or rushed, which can be unhelpful.
- Adjusting the order in which evidence is heard, so the person is not kept waiting and fretting longer than necessary (page 3-2, 3-9, 4-12, Appendix B-40, B-41). Or with a litigant in person who stammers, it may sometimes be better for the other side’s witnesses to go first (4-13).
- 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 (3-8, 4-11).
- Where telephone communication is difficult, holding additional case management preliminary hearings (4-11).
- Arrange (in advance) for the evidence of a disabled witness to be taken by video link (3-6, 3-11, Appendix B-35, B-36, B-38, B-43, B-52, B-55, B-56). See also below Criminal cases: Special measures.
- A video recording of an interview of the witness to be admitted as evidence in chief (3-12, 4-17, Appendix B-43, see also Appendix B-9). See also below Criminal cases: Special measures.
- Conducting examination of the witness through an intermediary, such as a speech and language therapist (3-12). See also below Criminal cases: Special measures.
- Do not hurry the person (Appendix B-29), see also Appendix B-21 ‘patience’.
- Constraints on cross-examination style – any major constraints should be decided in advance so advocates can be notified (3-7, Appendix B-42). This could include avoiding ‘rapid fire questions, and cross-examination questions being put in a non-threatening way, so as not particularly to provoke fearfulness (4.15).
- Be aware of the powers to prevent inappropriate questioning, and use them where appropriate (3-9, 4-13).
- Advising advocates that they need not ‘put’ their case in cross-examination (4-14, Appendix B-42).
- Witnesses being allowed to tell their own story in their own way (4-15).
- Keeping questions and answers to a minimum (Appendix B-46)
- Adapting communication style (page 3-3, 3-10, 4-14).
- Reviewing whether it is really necessary for the person who stammers to give evidence (3-8 para 32). Also accepting sworn written evidence (Appendix B-5, B-9, B-43).
- Allowing another person to act as an assistant or advocate for the disabled person in court (pages 1-20ff on McKenzie friends, 3-11, 4-16).
- Allowing the witness to provide written answers (3-10, 4-15, Appendix B-8, B-29, B-37, B-43, see also 2-26).
- Allowing a witness to give evidence behind a screen so as to focus (4-14, Appendix B-29). See also below Criminal cases: Special measures.
- Restrict the number of people attending the hearing and/or restrict reporting (4-13). Also evidence given in private (3-11, 4-17).
- Stammering may be more severe with ‘authority figures’ (4-9). Also removal of wigs and gowns (4-17, Appendix B-38). In any event the stress of the hearing may exacerbate symptoms (3-6).
- Considering layout of the room (3-8). Also suitable chair (Appendix B-6, B-48) – 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 (4-14).
- A person might appear disrespectful, difficult, inconsistent or untruthful, but these impressions might be erroneous (4-16).
- ‘People with SpLDs will be concerned about how their behaviour might be perceived: … 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. (Appendix B-20)
- Tiredness caused by the disability (3-6), which may include the effort of speaking a long time.
- A 2015 study has shown that up to 60% of young people in the youth justice system have speech, language and communication needs (2.7).
Whilst the court’s powers to ensure a fair hearing are not limited to what is set out in statute or the ETBB, there are particular statutory options for alternative ways to give evidence:
Criminal cases: ‘Special measures’
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 trial. The court’s powers are not limited to these statutory ‘special measures’. See above, and also below The accused (England and Wales).
Generally, these 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, where 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 substitute words: see below Other ways stammering may have an impact in court.
The statutory rules apply to criminal cases, but it can be argued that if these measures are allowed for criminal cases then all the more so they should also be considered for non-criminal cases.
The following are some of the measures in the YJCEA 1999. The measures are also discussed in Chapter 2 of the Equal Treatment Bench Book (above).
- 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).
- As regards video-recording of cross-examination and re-examination (s.28), there have been pilots but it should be checked whether this measure has been implemented nationally (http://doughty-street-chambers.newsweaver.com/Crime/9i9da514ll3);
- examination through an intermediary such as a speech and language therapist (s.29). It seems a family member or friend would be permitted only as a last resort. See
- 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
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 and other cases subsequent to Camberwell, see
C v Sevenoaks Youth Court (link to 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.
Later cases on use intermediaries for defendants: R v Walls (link to bailii.org), Court of Appeal, 2011; R v Great Yarmouth Crown Court (link to bailii.org), High Court, 2011, R v Dixon (link to bailii.org), Court of Appeal, 2013.
Accordingly, non-registered intermediaries may be used for vulnerable defendants based on the court’s inherent jurisdiction to ensure the defendant has a fair trial, see www.theadvocatesgateway.org/intermediaries#england-and-wales-intermediaries-for-defendants-in-criminal-cases
Civil Procedure Rules (England and Wales)
Courts such as the High Court and county courts in England and Wales have discretion to allow evidence to be given through a video link or some other remote method: Civil Procedure Rules rule 32.3. Annex 3 of Practice Direction 32 is guidance on Video Conferencing Guidance: www.justice.gov.uk/courts/procedure-rules/civil/rules/part32/pd_part32#annex3.
However, as discussed above, the court should have powers and indeed duties to take measures beyond this, in order to ensure a fair trial.
Speaking in court, and alternatives
Speaking in court: introduction
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 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 possible issues below such as stammering symptoms being mistaken for dishonesty, and whether stammering information should be arranged with the court to help counter this. Also bear in mind 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 will probably want to try and get this arranged in advance of the hearing.
If you do want to consider adjustments, the following are some to consider. See also the examples in the Equal Treatment Bench Book (ETBB) above, or there may be alternative steps you come up with yourself. As set out in the ETBB, adjustments should preferably be arranged in advance. However this does not prevent a court having an obligation to take steps later if these turn out to be required.
As a witness, or putting one’s arguments
These are some possible adjustments to help someone who stammers speak in court, and alternative ways in which evidence might be given or arguments put. It needs to be discussed with the lawyers and/or court what would be possible in the relevant case. Many of the following are examples given in the Equal Treatment Bench Book above. As I mention above, 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.
- It may be helpful for the judge or court to make clear to someone who stammers that they can take their time and it is fine for them to stammer. How to do this may differ depending on the individual, given that people are often sensitive about their stammer – eg whether it is done by the judge in open court, or beforehand more privately.
- Where a person who stammers is giving evidence orally, arranging that information about stammering be given, for example to counter the danger that stammering symptoms may be misinterpreted as dishonesty: below Telling the court about stammering.
- Both sides in a case might agree the person’s evidence, so they don’t have to be called as a witness.
- Not being kept waiting too long to give evidence (which may build up stress). This might involve adjusting the order in which witnesses are called.
- See below on taking the oath.
- Allowing communication to take longer so the person can have their say, for example setting a longer time estimate for the hearing, and not telling the person to limit their answers or arguments because of the stammer;
- Live video link, so the person who stammers is not actually in the court room. This might include Skype (link to employmentlawuk.blogspot.com, 2012).
- Video recording of the person’s evidence (or perhaps arguments?), perhaps with a supporter present, so again the person is not in court – it is videoed beforehand. This may be limited to one’s ‘evidence-in-chief’, ie excluding cross-examination which may happen in court.
- Other steps if these make speaking easier, such as the public gallery being cleared (so there are fewer people in court), speaking from behind a screen, removal of wigs and gowns, or changing the place in court from which the person gives evidence.
- Writing down answers or arguments and having someone read them out.
- Giving evidence or putting arguments orally and being allowed the alternative of writing things down if the person really gets into difficulty – this might help take pressure of their speech.
- Speaking to a friend or family member or a speech and language therapist, who (if need be) passes on what the person says to the court;
- Written statement (for Employment Tribunals see Taking witness statements as read), and then perhaps just being cross-examined on it orally in court.
- Using an aid to communication, eg text-to-speech technology where you type and a machine speaks (this was used in an employment tribunal in Y v Calderdale Council).
- Changes in the style of cross-examination (whilst remaining fair to the other side), for example not hurrying the person, avoiding rapid-fire questioning, and reducing number of questions where possible such as the advocate not having to ‘put their case’.
- Allowing a witness to answer or tell the story in their own way.
- Some ‘warm up’ questions to help a witness relax before being cross-examined.
As a party: other points on putting one’s arguments
This is 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.
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
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.
Many of the suggestions above on ways of giving evidence may be helpful. But see also the Equal Treatment Bench Book examples (above). For example:
- 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;
- it may be appropriate that the judge ensures 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 speak because of the stammer.
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, relative or other supporter to put the case (a lay representative), if this would not be permitted under the normal rules.
A further point: if a preliminary hearing would normally be by telephone, fairness may require that it be face-to-face instead. Many people who stammer find speaking on the telephone particularly difficult.
As regards getting legal aid for a lawyer, a person who stammers should bear 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: Sources of help and advice>Legal aid: Exceptional case funding.
Mistaking stammering for dishonesty
There is a serious danger that a jury, or indeed 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
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 judge 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. The conviction was overturned and the case sent for re-hearing.
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.
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. Possible effects include:
- Hesitation, stumbling over words, or perhaps blocking.
- Avoiding eye contact is common amongst people who stammer, and might be viewed as being ‘shifty’.
- Substituting one word for another word (perhaps starting one word and switching to another part way through), or changing a phrase to something they can say but which may sound convoluted or artificial;
- Keeping saying words such as “eh”, “well”, “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 the fillers, there the person may have added the unnecessary sentence at the start to ‘get a run’ at the main information, 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;
- The person may not answer a question directly if a direct answer is difficult to say. 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, which they may find helpful to their speech..
- Some people who stammer may keep answers short (below Not giving full answers), which in some situations may sound odd.
- Face, head and/or body movements (even legs or feet)
- Tension and nervousness related to a stammer may also be seen as signs of lying (ie nervousness about the content of the evidence) – whereas 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. 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 make think that stammering is due to nervousness, which in turn is due to lying. Research indicates that stammering is at root neurological, related to the 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.
Note on behaviours to hide stammering
Many of the behaviours in Mistaking stammering for dishonesty above and under the next heading 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.
It may however be helpful to make clear to someone who stammers that they can take their time and it is fine for them to stammer. How to do this may differ depending on the individual given that people are often sensitive about their stammer – eg whether it is done by the judge in open court, or beforehand more privately in some way.
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 these kind of ‘tricks’ to hide the stammer. One should not assume a stammer is having only minor effects just because it sounds minor.
Some people can sound totally fluent, as may have been the case in Coombe v Bessell where the judge and perhaps the lawyers did not realise he had a stammer. This is known as ‘interiorised stammering’ – see below Some people will be reluctant to talk about their stammer. If the person does not tell his lawyers or the court that he has a stammer, and sounds fluent, in practice the court may be unable to take the stammer into account.
Other ways stammering may have an impact in court
See also above Note on behaviours to hide stammering.
Altering answers, or at least wording
As outlined above, 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 rather odd or convoluted. For example, a witness may have difficulty saying a simple ‘yes’ so thinks up some longer wording they are able to say. In the case of many people who stammer, it seems likely that this kind of thing will happen in court.
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.
More radical changes of meaning 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.
Decision whether to give evidence, or whether to pursue or defend a case
Avoidance of situations in which they will have difficulty speaking is common among people who stammer. 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 some defendants may plead guilty in a criminal case where they would not otherwise do so, or at least not give evidence in their own defence. This may be because of concern that their evidence is more likely to be disbelieved (above Mistaking stammering for dishonesty), as well as fear of the speaking situation.
Concern about not being believed as witnesses, or not being able to put their arguments in a persuasive way as litigants in person, may also deter some litigants in civil cases.
Not giving full answers
A witness who stammers may restrict the amount they say, either to reduce their chances of 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.
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 (though see above As a party: other points on putting one’s arguments).
Telling the court about the stammer
How best to mitigate any risks above in Mistaking stammering for dishonesty and Other ways stammering may have an impact in court will be a matter for the litigant/defendant and/or witness, the lawyers, and the judge. Preferably any steps should be planned ahead of the hearing – see above Equal Treatment Bench Book. as regards ground rules hearings or case management hearings.
Where a person who stammers is giving evidence orally, it may be useful for the judge/magistrates and legal representatives to be briefed on stammering, and/or for evidence or guidance about the person’s stammer and its effects to be given in court. In more detail (and see also Summary guide for judges, lawyers etc>Information to the court to counter mistaking stammer for dishonesty?) :
Disclosing the stammer
As a minimum (though it may not be enough: see below Educating the court about stammering), it may be thought desirable that a witness or party who stammers should expressly say that they have a stammer, or that the court should be told this in some other way. However see also below Some people will be reluctant to talk about their stammer.
As well as explaining the situation to listeners, disclosing a stammer may help the person who stammers feel more comfortable 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.
Educating the court about stammering
Because non-stammerers will not normally know much about stammering, those involved in the court case may wish to consider whether it is appropriate for further information about stammering to be given to the judge, and any jury involved. Sensitivities of the individual should be born in mind. See Summary guide for judges, lawyers etc>Information to the court to counter mistaking stammer for dishonesty?
Other general guidance
- Talking with someone who stammers (stamma.org) 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.
- BSA information for Employers & HR professionals (stamma.org) may also be useful.
Important role of lawyers
The lawyers of the person who stammers may know little about their client’s stammer. If the person who stammers allows, it may well be appropriate for them to enquire into it, perhaps with the help of a speech and language therapist specialising in stammering.
The Court of Appeal in Anderson v Turning Point Eespro (2019) evidently expects the lawyers of a disabled litigant to take the lead in suggesting adjustments:
“…In the generality of
casesit 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 toprevent 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.”
Some people will be reluctant to talk about their stammer
A complication is that some people who stammer will be reluctant to talk about the stammer, including what effects it has. For example they may feel ashamed about the stammer, 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.
Similarly a person may not like their stammer to be discussed publicly, including in court.
Taking an oath
One suggestion that could 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.
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
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 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 www.gov.uk/jury-service. Forms are at www.gov.uk/government/publications/guide-to-jury-summons
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.
Equality Act 2010
In summary, court administration is subject to the Equality Act, but court judgments and probably the judge’s management of the hearing are not. However, the judge has a non-statutory duty outside of the Equality Act to make adjustments to the hearing (eg how evidence is given), since the court should ensure a fair hearing: see above Duty of judges to make adjustments.
Court administration is subject to the Equality Act
Apart from judges, courts and tribunals (in particular administrative staff) will generally be subject to Equality Act 2010 in the normal way. Depending on the situation, this could be either 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 Equality Act.
Example: A court’s telephone system uses voice recognition, which a caller who stammers cannot use. This may be a breach of the Equality Act.
See Voice recognition telephone systems.
Equality Act and judges etc
Indications so far are that the Equality Act 2010 does not apply to the judge’s management of the hearing. In particular the Equality Act was held not to apply in In the matter of Horan – see above Duty of judges to make adjustments – but that link sets out how judges nevertheless have a non-statutory duty to make adjustments to the hearing since the court should ensure a fair hearing. Similarly the Equal Treatment Bench Book 2018 above applies whether or not the person’s impairment is a ‘disability’ within the Equality Act (ETBB page 3-15, para 87.)
The likely exclusion of judicial case management from the Equality Act is because of EqA Sch 3 para, which excludes the following from the 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 (EqA Sch 3 para 3). This is not limited to courts and tribunals, e.g. it can include certain functions of the Parole Board;
- a decision not to commence or continue criminal proceedings, and anything done for the purpose of reaching, or in pursuance of, that decision. (EqA Sch 3 para 3)
However an example of adjustments at a hearing (regarding deafness) that seem to have been viewed as falling within the Northern Ireland equivalent of the Equality Act:
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.
Police activities such as arrest and interviews are likely to fall within the Equality Act rules on public authority functions.
From the Equality Act 2010 Explanatory notes (pdf, link to legislation.gov.uk), para 683:
A decision of a judge on the merits of a case would be within the exceptions in [Schedule 3]. An administrative decision of court staff, about which contractor to use to carry out maintenance jobs or which supplier to use when ordering stationery would not be.
Sources of help and support
Contacting the court for help
The Court Service Disability helpline is no longer in existence. If possible ask lawyers involved about any arrangements that can be made – though it may not be something they are familiar with. The Court Service has now said that the first point of contact for all case specific enquiries including disability assistance is the relevant court or tribunal office. The issue can also be raised with the court (judge) which should be ensuring a fair trial.
Citizens Advice Witness Service: www.citizensadvice.org.uk/law-and-courts/legal-system/going-to-court-as-a-witness1/
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-someone.
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.