Good judgments

New advice to judges on how to communicate in court

Judges in England and Wales have been given new guidance on communicating with witnesses and other parties in courts and tribunals.

The latest edition of the Equal Treatment Bench Book has been slimmed down to a mere 350 pages or so (although that’s currently obscured by a mismatch of 10 pages between the printed page numbers and the page numbers of the pdf file).

It’s full of sound advice, some of it quite unexpected. There’s a detailed glossary of impairments and disabilities, with advice on reasonable adjustments for court users. It also includes an introduction to personal naming conventions and an overview of world religions.

The online publication is produced by the Judicial College, which is responsible for training the judiciary. Its chair, Lady Justice King, said the bench book was a “key work of reference… admired and envied by judiciaries across the globe”.

Lady Justice King (foreground) in a new courtroom for law students at her former university

Welsh speakers

There are good reasons why a Welsh speaker may be anxious about giving evidence in English, the guide explains. “It should not be assumed that a bilingual speaker who wishes to speak Welsh is being awkward or deliberately obtuse or trying to make a political point.”

That may be well understood. But judges are warned of further subtleties:

Welsh, like some other languages, achieves politeness and avoids undue familiarity in communication by the use of the second person plural (in Welsh chi rather than the singular ti, which is used when addressing the Deity, children, close friends and animals). English, on the other hand, relies on the deployment of polite expressions.

A Welsh speaker may, for instance, rely on the polite form of address in making a request rather than inserting “please” in the utterance. In translation, this distinction may be lost and therefore the speech may appear rude. It is known that some Welsh speakers construct very formal requests when speaking or writing English and then unthinkingly omit “please” without any intention of failing in politeness.

Another difference in expression as between Welsh and English involves the use of the word “Yes”. In Welsh, a positive response is made by answering the particular question asked using the same verb. In English, this can appear formal or even slightly stilted: “Did you?”, “I did”, rather than simply “Yes”. Again, Welsh speakers frequently respond in this way when using English.

Identity

As the bench book acknowledges, language is constantly evolving and there are disagreements on what terms may be acceptable. Here’s the latest guidance:

BAME or BME: These are generally no longer used because they emphasise certain ethnic-minority groups (Asian and black) and exclude other and white ethnic minority groups…

Black: It is now generally considered acceptable to use the term “black” to describe people of African-Caribbean or sub-Saharan African descent. People of South Asian descent may or may not describe themselves as “black”: there may be a different view between older and younger generations. This term should only be used as an adjective, eg “a black person”, not as a noun (“a Black”). There are different views on whether the terms “black” and therefore “white” should be written with a capital letter and this can vary in the research reports…

Non-white: It is not acceptable to describe black people or black and Asian people generally as “non-white”. That is defining people by what they are not. In the UK, it is defining them by reference to the white majority.

West Indian/Afro-Caribbean/African Caribbean/African: The term “West Indian” was formerly used as a phrase to describe the first generation of post-World War II settlers from the West Indies and, in particular, many older people from that community will so describe themselves. Whilst the term “West Indian” would not always give offence, it is inappropriate to use it unless the individual concerned identifies himself or herself in this way…

Asian: “Asian” is a collective term which has been applied in Britain to people from the Indian sub-continent. In practice, people from the Indian sub-continent tend to identify themselves in terms of one or more of the following:

• Their national origin (“Indian”, “Pakistani”, “Bangladeshi”).

• Their region of origin (“Gujarati”, “Punjabi”, “Bengali”).

• Their religion (“Muslim”, “Hindu”, “Sikh”).

The term “Asian” can be appropriate when the exact ethnic origin of the person is unknown or as a collective reference to people from the Indian sub-continent…

Mixed race/mixed or dual heritage/mixed parentage/dual parentage: The term “mixed race” is still widely used and is considered acceptable by some, though not by others. More acceptable terms are “person with a mixed ethnic background”, “mixed heritage” or “mixed/dual parentage”. “Half-caste” is generally considered offensive and should be avoided. The term “multi-racial” is only used in relation to diverse communities…

People of colour/coloured: The term “people of colour” tends to be used more in the USA than in the UK. “Coloured” is offensive and must be avoided. A person of the older white generation in the UK may feel that they are being polite by using the word “coloured” rather than “black” but that is an extremely outdated view and not acceptable in any way. “Brown” (as a reference to South Asian people) should also be avoided.

Jewish people: It is better to say “Jewish person” or “Jewish people” than “Jews” or, worse, “a Jew”. Although some Jewish people will not mind the collective reference to “Jews”, others will feel the terms “Jew” and “Jews” have been used with hostility over the years and now potentially carry negative connotations…

Immigrant/people seeking asylum/refugee: The terms “immigrant”, “people seeking asylum” and “refugee” should only be used where such terms are factually correct in connection with the particular individual. Even then, “immigrant” should be used with caution, as it can sound exclusionary, especially for a person who has lived in the UK for a long time or who has gained British nationality. The words “immigrant” or “second generation immigrant” should never be used to describe a black, Asian or ethnic minority person who was born in the UK…

British/English: “British” and “English” are acceptable terms in themselves, but they should be used in an inclusive sense to refer to all ethnic groups and not simply to denote white people. The word “English” should not be used where what is meant is “British”.

Welsh: If in Wales, a reference to “Welsh people” should not mean only those who speak Welsh. A Welsh person who speaks only English is still Welsh… Unlike the English language, the Welsh language has different words for “Welsh” in the sense of the language (Cymraeg) and “Welsh” in the sense of “of Wales” (Cymreig). This can lead to misunderstandings or even offence in translation.

Disabilities

We already avoid negative terms, such as:

Handicapped or the disabled

Suffers from — use instead “has”, “experiences” or other more neutral terminology.

Attacks (as in “epileptic attacks; migraine attacks”) — use instead “episodes”.

Wheelchair-bound — use instead “wheelchair user”.

The blind — use instead “blind people”, “people who are visually impaired” or “partially sighted”.

The deaf — use instead “deaf people” or “people with hearing loss”.

Lame — even when referring to an argument in court.

But preferred terminology can vary, the bench book says:

There are different views as to whether a person should be referred to as a “disabled person” or a “person with a disability”. The former formulation, although unpopular at one stage, has been generally adopted by disability groups as it puts the focus on the barriers imposed by society.

In other English-speaking countries, people prefer to use “people with disabilities”. Disabled people do not always use the same language and it is advisable to ask the person what term they prefer.

Sexual orientation

This is a well-known minefield. Judges are told to ask those involved if it is not clear how parties would like to be referred to.

In general, this terminology is regarded as acceptable:

A gay man. The word “homosexual” may sound old-fashioned and it carries echoes of discriminatory attitudes and practices in the past; although some gay men prefer to self-identify as homosexual.

A lesbian or a gay woman. Some lesbians are happy to be referred to as “gay”. Others do not like to be called “gay” because they have a distinct identity from gay men. Some lesbians may also refer to themselves as homosexual or homosexual women.

A bisexual person.

Collectively, “lesbian, gay and bisexual people” (or LGB, for short). Although the issue of sexual orientation is an entirely different issue from that of gender identity, the wider “LGBT” or “LGBT+” formulation is now commonly used.

The following terms are not acceptable:

Gays/a gay.

Homosexuals/a homosexual.

Dyke or queer. May be used by gay people themselves but should not be used by judges.

Trans people

Perhaps the biggest minefield these days involves people who have adopted a social or legal gender different from their birth sex.

According to the guidance, many trans advocacy groups suggest a distinction between gender and sex. The term sex is used to reflect biology while gender represents a social construct. The term birth sex may also be contentious.

The bench book says:

People who identify with a gender/sex which is different from their birth sex are most widely referred to as “trans” or “transgender”.

It is important to appreciate that not all people who have adopted a social or legal gender different from their birth sex will be happy to be referred to as “transgender”. The term should not just be used without checking it is appropriate…

Where relevant, many people will find it acceptable to be described as a “trans person” or a “transgender person”. Others may prefer to describe themselves more specifically as, eg, “non-binary”.

Despite its use in current legislation, the term “transsexual” is generally considered to be out-of-date and it is offensive to many trans people, as is the use of “transgender” as a noun (eg “he is a transgender”).

A “trans woman” describes someone whose birth sex is male and who now identifies as a woman.

A “trans man” describes someone whose birth sex is female and who now identifies as a man.

The term “cisgender” or “cis” is sometimes used to describe people who are not trans gender and are assumed to have a gender identity that matches their birth sex. Many people feel strongly that they do not wish to be described as “cisgender” or “cis”.

Nowadays, it is generally inaccurate to refer to someone as a “pre-operative” or “post-operative” trans person because many trans people do not wish to undergo any particular gender-reassignment surgery.

Some trans people do not like the phrase “gender reassignment” as they believe they are simply confirming their correct gender from birth. They prefer the term “gender confirmation”.

“Deadnaming” is a term used where a trans person, in the course of transitioning or having transitioned, is called by their birth name or when their birth name is otherwise referred to instead of their chosen name…

“Gender critical” is a phrase which, broadly speaking, refers to a belief that sex is fundamentally immutable and binary. People who are gender critical do not believe that a person can change their sex. Very often it is linked to concerns that allowing the definition of women to include trans women would make the concept of “women” meaningless and undermine protection for vulnerable women and girls. There is also often concern about what is seen as potential encroachment into single-sex spaces and opportunities.

Gender critical beliefs are protected beliefs, even if they might offend or upset trans people (and others).

Comment

The new Equal Treatment Bench Book is well edited and the advice it offers is worthy of attention far beyond the courtroom. Just occasionally, it may be seen as oversensitive or even a little coy. For example:

“Person seeking asylum” is now preferred to “asylum seeker” as it is more humanising…

Some faiths observe their weekly Sabbath from sunset (or before) on Friday until sunset on Saturday, and work or other activity is not permitted during this period. In winter months, sunset may be as early as mid-afternoon, and individuals will need time to travel home.

But the bench book is right to stress the importance of communicating well:

Effective communication underlies the entire legal process: ensuring that everyone involved understands and is understood. Otherwise, the legal process will be impeded or derailed…

Inappropriate language or behaviour is likely to result in the perception of unfairness (even where there is none), loss of authority, loss of confidence in the system and the taking of offence.

Conversely, where people feel that they have been heard and treated fairly, they are more able to accept an adverse outcome: procedural justice is important for the operation of the rule of law.

Sutcliffe v Education Secretary

By coincidence, the High Court gave judgment yesterday in a case that demonstrated a thoughtful — though not mechanical — application of these principles. Mr Justice Pepperall dismissed an appeal by a former teacher who had been prohibited from carrying out teaching work because of his conduct in two schools.

Joshua Sutcliffe

In the judge’s carefully chosen words:

This appeal by a teacher against the secretary of state’s decision to make an order prohibiting him from teaching raises issues as to the conflict between the teacher’s Christian faith and his professional duties to the children in his class.

The laws that protect a person’s freedom of thought, conscience, religion and expression apply to teachers just as much as anyone else. A teacher’s right to believe that no one can self-identify as a different gender and that homosexuality is a sin against God is protected by law, but does not entitle the teacher to fail to treat transgender, gay and lesbian pupils with anything short of the dignity and respect with which all schoolchildren must be treated or justify a failure to safeguard the best interests and wellbeing of such children.

This case is not about a teacher who accidentally failed to follow a school’s policy of referring to a transgender pupil by the child’s chosen pronouns or even about a teacher who reconciled his religious convictions with such policy by choosing to avoid pronouns altogether and referring to the child by name.

Rather, it is about a teacher who deliberately used female pronouns to refer to a transgender male pupil both in the classroom and then on national television in such a way that he would be “outed” without any apparent regard for a vulnerable child who was thereby caused significant distress.

Further, it is about a teacher who told his class that homosexuality is a sin and implied that homosexuals might be cured through God without any apparent regard for the gay and lesbian children in his class and who made them feel that their teacher regarded them as worthless.

Joshua Sutcliffe is a maths teacher and an evangelical Christian who preaches both on the streets and online. He has strong and sincerely held views rooted in his faith about gender identity, homosexuality, the sanctity of marriage between a man and a woman, the role of men and women in society, and Islam…

This case arises from the conflict between Mr Sutcliffe’s deep convictions and his professional duties as a teacher.

Sutcliffe had failed to establish that a professional conduct panel or the secretary of state were wrong to decide that a prohibition order was necessary and proportionate in this case, the judge concluded. The panel had properly applied the relevant guidance and it took into account the seriousness of the conduct, the public interest, the available mitigation and whether a prohibition order was necessary and proportionate.

Responding yesterday to the decision on social media, Sutcliffe said he was “deeply saddened”.