This page is aimed at judges, lawyers and others not familiar with stammering. There is more on my Appearing in court page.
Update: On 24th February 2021 a new edition of the Equal Treatment Bench Book (judiciary.uk) was published. It is excellent that this includes four pages specifically on stammering (from page 445). That is now the official guide for judges on dealing with people who stammer in court, whether as witnesses, defendants or litigants in person. It is not yet reflected on this page.
Not due to nervousness
Stammering is a neurological condition, based in the wiring of the brain. It is not due to nervousness, though it may make people who stammer more nervous in speaking situations, and stress may exacerbate stammering.
Even a stammer that sounds minor may be having significant effects
Stammering is often compared with an iceberg. Much of it may be invisible. Feelings such as fear and embarrassment can lead to people avoiding stammering as much as possible. For example they may change words or phrases, hesitate, use ‘filler’ words (see below), say less, or avoid speaking situations they find difficult. These effects and feelings are the ‘underwater’ part of the iceberg.
Even if ‘on the surface’ there is only minor stammering, the stammer may be having significant hidden effects. There is more on possible effects below.
Some people may be masking their stammer so fully that there is no perceptible stammer (known as ‘covert stammering’; scroll down to ‘Overt and covert stammering’ on Variations and complications (stamma.org)), but it still has major hidden effects.
May be reluctant to talk about stammering
Many (not all) people who stammer are reluctant to talk about it. Some may not even discuss it with close friends. Similarly a person may not like their stammer to be discussed publicly, including in court.
Involvement of a speech and language therapist specialising in stammering, who may be a registered intermediary, will often help to establish the effects of the individual’s stammer and how the person can best be supported.
People who stammer often do not view themselves as having a ‘disability’ or ‘special needs’, even though the stammer has significant effects. They may therefore not tick a box in a form using this language. Reluctance to talk about or reveal the stammer may also result in it not being disclosed on a form.
Stammering may be mistaken for dishonesty
Effects of stammering may be mistaken as dishonesty. In one Australian case, where the magistrate was not aware of the defendant’s stammer, a conviction was overturned on this basis. Some people may wrongly see a stammer as indicative of lying. They may also misinterpret as dishonesty various behaviours which are actually due to the stammer. The stammer may itself be largely hidden. Examples of behaviours which may be mistaken as dishonesty include:
- hesitations, pauses;
- lack of eye contact, common in people who stammer;
- the use of ‘filler’ words such as “eh”, “you know”, “actually”, perhaps many of them;
- adding unnecessary words at the start to ‘get a run’ at the main information. Eg, with filler words as well, “30mph” might come out as “Eh, well, well, you see, at the time, I was, you see, going at 30mph”;
- face, head or body movements;
- changing the word they were going to say, perhaps visibly but often not; or seeming to think what to say next – instead of stammering openly;
- that might include 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;
- seeming nervous because of the above; or actually being nervous because of the ‘ordeal’ of having to speak with a stammer in court which might be misinterpreted as nervousness about the content of the evidence.
Information to the court to counter mistaking stammer for dishonesty?
To help counter the risk of stammering and related behaviours being seen as dishonesty, provision of information on stammering to the judge and perhaps a jury could be considered, though bearing in mind sensitivities the individual may have about this. The next two paragraphs give some ideas on this, but subject to any legal rules or perhaps other factors.
Each person’s stammer is different. Accordingly where possible any information to the judge and potentially the jury should be on that individual’s stammer and behaviours, subject to the individual’s consent as to what the court will be told. This would probably best be done through a conversation between the individual and a speech and language therapist specialising in stammering, who may be a registered intermediary. Presumably the specialist speech therapist would produce the information, which the individual would be invited to approve.
If the individual does not consent to this, it can be considered whether information should be given on stammering and related behaviours in general, including how these can be mistaken for dishonesty. However this may be a very sensitive subject for the individual. I’d say the individual’s views should at least be taken into account in deciding whether and how such information is given. Some people who stammer may say they absolutely do not want people told they have a stammer, or about stammering. If so, then if a party calling them as a witness wants disclosure (eg to a jury) 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.
Other effects of stammering
People who stammer may try to reduce what they say – e.g. not giving full answers, or not orally presenting their argument fully. Indeed they may be deterred from giving evidence, or from pursuing or defending a case.
As mentioned, people may change an answer etc because of a stammer. In a coffee shop or restaurant, for example, some people who stammer may even order something different from what they really want, because they can say it. 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.
Steps in court
Apart from possible information to the court about stammering (above), steps which may help in court include the following, but what is appropriate will depend on the individual:
- longer time estimate;
- seeking to ensure the person does not feel under time pressure, eg assuring them they can take their time;
- allowing writing if the person wishes;
- minimising the amount the person need say (e.g. advocate not having to ‘put their case’);
- evidence by video link, or with fewer people in court, or in a less formal way;
- changes in style of cross-examination (eg avoiding ‘rapid fire’ style);
- allowing a witness to answer or tell the story in their own way;
- minimising any time a witness who stammers needs to wait before giving evidence;
- if a preliminary hearing would normally be by telephone, have it face-to-face instead, as many people who stammer find speaking on the telephone particularly difficult;
- a litigant in person might be allowed a non-lawyer to speak for them, or referred with a view to obtaining pro bono legal representation as in Anderson v Turning Point Eespro;
- taking an oath may be helped by the clerk repeating the words along with the witness or jury member taking the oath.
For more, see Appearing in court>Speaking in court, and alternatives.
There is guidance on talking with a person who stammers at https://stamma.org/about-stammering/talking-someone-who-stammers
There is an example of a judge behaving unhelpfully trying to push things along to try and finish quickly, only serving to make the individual with communication difficulties more anxious, stressed and frustrated, in R v Isleworth Crown Court ex parte Murray King.
As regards young offenders, “a 2015 study has shown that up to 60% of young people in the youth justice system have speech, language and communication needs”: Equal Treatment Bench Book 2018 p2.7, linked at Appearing in court>Equal Treatment Bench Book. Bear in mind a stammer may not be evident, as outlined above.