Thursday 25 April 2013 by Sue O'Rourke, Amy Izycky, Andy Cornes

We have previously explored and made suggestions for reasonable adjustments required in order to make legal proceedings accessible to deaf people. The courtroom is no exception to this rule and once again an assessment of need for each deaf client will be required to ensure that adjustments are made and the courtroom and its associated procedures are accessible.

When a deaf person is called to be a witness, it is important to consider how their account will be heard and made accessible to the court. A sign language interpreter (SLI) will be required for deaf people who use sign language. However, standard practice is to audio record the interpreter's voice to produce a transcript of evidence. We would argue that this is entirely unsatisfactory, providing as it does an interpreted version of events and not a recording of the original. This means that there is no safeguard for the deaf person or others in terms of being able to challenge the accuracy of interpretation. We strongly recommend evidence given by a deaf person is video-recorded particularly in complex or serious cases.

Any time a deaf person is required in court, consideration may need to be given to the provision of assistive devices, SLIs or deaf relays. Ideally this should take place before the court date, as much time can be lost at the beginning of a hearing due to discussions about such matters. This usually necessitates specialist advice. Provision will of course be dependent upon the nature and degree of deafness and the specific needs of the individual in question. For deaf people who use hearing aids or cochlear implants and are able to access sound with assistive devices, the provision of a loop may be necessary to ensure access to all information in the courtroom.

For a deaf person who does not sign but lip-reads or can access written English, provision of an electronic notetaker or lipspeaker may be necessary (we outlined the difficulties in lip-reading and using written information in part two). For the deaf client who uses sign language, sign language interpretation is essential. Interpreting in a court situation is a specialised and complex task; there are individuals and organisations with a wealth of experience in this area that can assist the court greatly. For deaf clients with additional learning difficulties (LD) or disabilities, a deaf relay may also be required to work alongside the SLI. The Ministry of Justice also provides an intermediary service for deaf victims and witnesses which can assist not only in working directly with the deaf person but also in advising the court about appropriate adaptation.

Practicalities

It may be that the physical layout of the court in terms of where people stand needs to be changed in order to suit the communication needs of a deaf person giving evidence via an SLI. In addition, frequent breaks may be necessary in order for the person to maintain concentration. Part of the interpreting role or indeed the intermediary role is to alert the court to possible misunderstandings. This too can prolong proceedings and play havoc with the court timetable; it is advisable to be aware of this from the start.

Expert evidence

The current climate and funding pressures from the LSC (now the Legal Aid Agency) have caused a rise in situations where experts are only instructed where absolutely necessary. Unfortunately non-specialists and the courts may make similar assumptions about deaf people as the rest of the population. Such assumptions generally fall into two categories, those that exaggerate the difficulties of deafness and those that minimise or misunderstand the needs of deaf people. Therefore, the importance of expert advice is indicated.

Assumptions of incompetence include notions that deaf parents cannot parent adequately due to their deafness, that difficulties in understanding in proceedings amount to a lack of capacity, that deaf defendants are unfit to plead or give evidence.

Assumptions which minimise the impact of deafness assume that hearing aids, lip-reading and writing will suffice as reasonable adjustments, which is simply not the case as we have outlined in previous articles.

The use of an appropriate expert in deafness can assist the court in many ways; in relation to capacity and fitness to plead, to ascertain the understanding of proceedings and to advise about appropriate accommodation in court and any special measures required. Once again, we recommend that experts are suitably qualified and working within their own competence. In this respect, experts should have considerable experience working in specialist mental health settings with deaf patients.

A further role for the expert is to advise counsel in relation to examination and cross-examination; this can greatly reduce the need for clarification and repetition which can prolong and confuse matters greatly.

Psychological vulnerability

In terms of examination and cross-examination, the court pays attention to vulnerable witnesses and defendants by way of providing special measures. Whilst the provision of an appropriately qualified SLI may be sufficient for some deaf people, a significant proportion could be considered vulnerable. In this context, vulnerability relates to individuals who may be acquiescent - that is, say 'yes' to questions regardless of the content of the question, or be suggestible - be vulnerable to leading questions or inadvertently accept a proposition contained in the question. Gudjonsson (1991) outlines factors which increase such vulnerability and these must be borne in mind in relation to deaf people. Such factors include:

• Learning disability
• Mental health problems
• A perceived imbalance of power between the questioner and the person being questioned
• Anxiety
• Young age

Although the only study of deafness and suggestibility indicated that deafness per se does not increase suggestibility (O'Rourke & Beail 2005) the presence of any of the above factors should alert the court to potential difficulties in giving evidence. Again assessment by a suitably qualified expert is recommended.

Recommendations

1. Provide the correct assistive devices or communication service. Ask your deaf client directly what resources they need to be in place to support them in accessing information in the courtroom. But be aware that they may not know and you need to seek specialist advice.

2. Select the right expert with specialist experience and awareness of deafness. It is advised that specialist experts are used that are proficient in the use of sign language, working with interpreters and have specialist experience and knowledge of social, emotional and psychological development of deaf children and their transition into adolescence and adulthood, as well as knowledge of mental health and deafness.

Dr Sue O'Rourke, Dr Amy Izycky and Dr Andrew Cornes are all chartered psychologists with deafness as a clinical specialism