Raising the bar for equal treatment in the courts
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Marc Bloomfield
John Horan examines the new edition of the Equal treatment bench book, and provides suggestions on how it can be used by practitioners to improve disabled people’s experiences in the courts and tribunals.
On 28 February 2018, the Courts and Tribunals Judiciary announced the new-look ‘updated, expanded and improved’ Equal treatment bench book (ETBB), which has regard, among other things, to ‘recent evidence regarding the experiences of different communities living in Britain today’. It aims to provide practical guidance to help improve the experiences of parties and witnesses who may be ‘uncertain, fearful or feel unable to participate' in courts and tribunals in this country.1New edition of the Equal treatment bench book launched’, Courts and Tribunals Judiciary, 28 February 2018.
The judges and lawyers involved are to be congratulated on a systematic and enlightened approach to the way that the judicial system must operate.
What is the result? A handbook that is almost double the length of the old ETBB. This is partly due to new or expanded sections on litigants in person, refugees, modern slavery and Islamophobia and anti-Semitism. However, it is fundamentally different from its predecessor in form, and generally is to be welcomed due to its laying out, in clear and methodical terms, guidance for judges about how to deal with vulnerable people who form such a large part of our society and, as important, how to spot them in the first place. The judges and lawyers involved are to be congratulated on a systematic and enlightened approach to the way that the judicial system must operate if it is ever to earn the respect of all the people it is designed to serve.
The style of the book is very important too. It contains numerous references to other works that may be helpful for the user to read: publications from the Judicial College itself (for example, the Guide to judicial conduct), statutes, cases and even conventions, as well as articles by respected members of the government, judges, lawyers and charities (I note, with approval, that Mind and its various reports are quoted from at length as to what, in practice, judges must look out for when dealing with mentally disabled people).
However, more fundamentally, the different chapters frequently cross-refer to one another – for a classic example, see page 2-5, para 3, which considers vulnerable people and cross-refers to the chapters on mental disability, physical disability, gender, modern slavery, refugees and asylum-seekers, mental capacity, and both anti-Semitism and Islamophobia, among other things. This does lead to many of the chapters repeating points made in other parts of the book, but, on reflection, it was surely known to the authors and looked on as a plus – the book is not designed to be read in one session, but to be a handy guide, ready on the judge’s bench for guidance at all stages of the case management process, including the trial. It does that admirably.
How the book deals with disability
As a barrister specialising in discrimination law, I have been concerned over the past few years with disabled people’s right – no matter which court or tribunal their case is at and no matter how direct or indirect their involvement in the case – to effective access to justice on an equal basis with others, including to the provision of appropriate adjustments, in all legal proceedings. Disabled people, of course, have this right under article 13 of the UN Convention on the Rights of Persons with Disabilities (UNCRPD) and, in common with the 2013 ETBB, members of the judiciary reading chapters 3 and 4 (physical disability and mental disability respectively) are left in no doubt that this is so – see, for example, page 3-5, paras 11 and 13 (the latter of which quotes from the seminal judgment of Langstaff J, then president of the Employment Appeal Tribunal, in Rackham v NHS Professionals Ltd UKEAT/0110/15/LA, 15 December 2015) as to the link between article 13 and the ETBB.
For disabled people (as well as other historically disadvantaged groups), the new-look ETBB is a wonderful resource. It contains:
Sections on physical and mental disability with quotations from various charities to highlight the problems that such disabilities can generate in the court process.
An analysis of precisely what disabled litigants may find difficult about the court process, from the self-evident to the not-so-obvious.
A clear and well-thought-out procedure for identifying at an early stage, and well before the final hearing is listed: whether the person is disabled; if so, what they need regarding reasonable adjustments to the court process; and what those reasonable adjustments should be.
Sections on the need for consultation, case management and, in some cases, special ground rules hearings, so disabled people themselves have the opportunity to tell the court what reasonable adjustments they need.
Paragraphs highlighting that if the needs are complex, as well as the need to determine what reasonable adjustments would be helpful, it may also be necessary to ask the person to provide an advisory letter from their GP or a consultant.
Paragraphs highlighting the fact that once the arrangements for the hearing are made, they are not set in stone and further reasonable adjustments should be made if that proves necessary.
Practical examples of what reasonable adjustments may be appropriate – in the real world – including what to do if a venue is inaccessible.
Sections on breaks and shorter hours, and communication – and indeed representation – with a practical, no-nonsense approach to the factors that may indicate to a judge that a reasonable adjustment is necessary.
It also raises the question of what to do if an individual does not raise the subject of disability. Adopting a common-sense approach about the likelihood of some people telling the court or tribunal that they have a disability or are having difficulties, it analyses what questions the judge should ask in the actual court or tribunal to defuse the situation and to quickly identify the reasonable adjustments issue if that is a problem. It discusses at length acceptable terminology and provides a short guide to the use of the term ‘disability’ and dos and don’ts.
It differs from the old guide, but in the way it is expressed rather than the underlying sentiments that experienced judges have to keep in mind when they are considering any kind of litigation. The fundamental point, which shines through, is that ‘the disabled’ are not a distinct (and, by implication, lower) class of individual; they must be respected as members of the community that the judges and other judicial decision-making bodies serve.
Problems that the book cannot solve
So that’s fine is it? Well, in theory yes, but in fact no. There remain two serious and problematic issues confronting disabled people (and, by extension, the other historically affected groups to which the ETBB is aimed):
The apparent refusal of some appeal judges to be swayed that it is even arguable that a good ground of appeal is that a judge has ignored, or made a decision not knowing about, the ETBB where that decision was about, for example, a disabled person and reasonable adjustments to the court process. I have been amazed at the conservative appellate judges who do not appear to think it is even arguable that some kind of account must be taken of the ETBB. They presumably think it is not worthwhile for the courts to insist that every judge and other individual with a judicial decision-making role has at least read the book. This is all the more extraordinary because, under UNCRPD article 13(2), the state is required to ‘promote appropriate training’ for all members of the judiciary. Thankfully, the England and Wales County Court has finally said that it is a matter of public interest that the link between the ETBB and grounds of appeal is clarified.2Anderson v Turning Point Eespro Case No A2/2016/0108, in which Singh LJ gave leave for Ms Anderson’s appeal to be heard on that very point. It will come as no surprise that, among the judges who were involved in the ETBB, Singh LJ was one of the foremost.
Poor or non-existent training: there is a feeling among some judges that there is a need for better training of both the judiciary and the legal profession as a whole on the needs of disabled people. That view was expressed in the Court of Appeal of Northern Ireland’s judgment in Galo v Bombardier Aerospace UK [2016] NICA 25, given by Gillen LJ. The court (including the lord chief justice of Northern Ireland) said (para 61):
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. Had there been proper cognisance of the contents of the ETBB, we are satisfied that a different approach would have been adopted to this case.
How the book might affect work with disabled clients
In the meantime, what can solicitors and claimants’ advisers do about disabled clients who need representation? I suggest the following as a guide:
Potentially, this is much wider than a discrimination issue, as it is clear from the ETBB that it applies to all areas of law and to all courts and tribunals in which the disabled client may be involved (directly or indirectly): criminal, family, employment and commercial court proceedings, employment and other tribunals, and the various UK immigration bodies.3It also applies to witnesses and others who have some connection with the court process – see UNCRPD article 13(1).
Instructing solicitors and advisers may consider the following:
Training their staff in the new ETBB and discussing what it means in practice.
Downloading a copy of the ETBB from judiciary.gov.uk and having several hard copies around the office.
Reminding counsel, in instructions or via a note, of the ETBB in general and in particular their need to establish whether there is disability and, if so, whether that makes reasonable adjustments to the court process necessary.
Adopting:
- A standard conference procedure and ‘client letter’ writing process whereby, early and routinely, the client’s disability, any adverse effects that this is likely to have on the court process and any reasonable adjustments necessary are identified, with action taken as early in the court process as is possible.
- A standard paragraph in both inter-party correspondence and the correspondence with the court or tribunal raising the fact that the client is or may be disabled and may need the court to make reasonable adjustments early on in the process.
- An early challenge to both the other side and the Courts and Tribunals Service on the fact that the disabled client has a right under UNCRPD article 13 to expect reasonable adjustments be carried out by both the Courts and Tribunals Service and the judge.
In cases of complex disability, the court or tribunal should be asked for a ground rules hearing. Thought can be given as to whether a medical view needs to be obtained as well as the lengthy list of questions that are likely to be involved – for an example, see Galo at para 53(7).
The key to this is obtaining information about the disabled person’s condition, not making assumptions from other cases.
What is the effect of the ETBB going to be? Quite how effective a tool for litigants who have suffered at the hands of the wider community the ETBB will be is a question which it is to be hoped that Anderson will answer. But it is clear that the ETBB must be of some importance to such litigants otherwise it would not have been published with a press release by the judges on their website. However, no change in the law can be made until claimants’ advisers raise the point about the applicability of the ETBB; and the more claimants’ advisers do, the louder their voice in demanding practical justice will be.
 
1     New edition of the Equal treatment bench book launched’, Courts and Tribunals Judiciary, 28 February 2018. »
2     Anderson v Turning Point Eespro Case No A2/2016/0108, in which Singh LJ gave leave for Ms Anderson’s appeal to be heard on that very point. It will come as no surprise that, among the judges who were involved in the ETBB, Singh LJ was one of the foremost. »
3     It also applies to witnesses and others who have some connection with the court process – see UNCRPD article 13(1). »

About the author(s)

John Horan
John Horan is a barrister at Cloisters.