Throwing the book at judges

(Filed: 13/05/2004)

Joshua Rozenberg talks to Mrs Justice Cox, who chaired the committee responsible for the Bench Book equality handbook for judges

The Government's new Commission for Equality and Human Rights - announced in a Government White Paper yesterday - will bring together the work of the three existing equality commissions.

In effect, it will be challenging discrimination and promoting human rights. As well as supporting individual legal claims, it will have the power to intervene in equality cases going through the courts.

Mrs Justice Cox: responsible for the Bench Book

But the Government admits that the new commission will not be up and running "before the end of 2006 at the earliest". In the meantime, though, there is a great deal that the courts themselves are doing to promote equality.

This work is handled by the Judicial Studies Board, which trains judges how to judge. Until 25 years ago, there was no formal mechanism for teaching the art of judgecraft - indeed, in the 1970s, some judges thought that training could be positively harmful.

And there are probably still a few of the more traditional, part-time judges who do not bother to open their shrink-wrapped copies of the board's equality handbook for judges, the Equal Treatment Bench Book - a new edition of which was launched yesterday.

Does this matter? Mrs Justice Cox, the High Court judge who now chairs the committee responsible for the Bench Book, accepts that some judges may resent being told that they need to learn about equality - although the number of these has "vastly reduced" in the last decade or two.

"One of the success stories of the Judicial Studies Board has been in enabling judges to become much happier with the concept of training in general, not just on equality issues," she tells me. Although some judges question whether there is anything they need to know, "the vast majority want to get it right and are very grateful to have the information."

And how does she deal with judges who describe themselves as "colour-blind", insisting that they take the same even-handed approach with all who appear before them?

The answer, she explains, is that certain people who appear before the courts - particular those with physical or mental disabilities - need greater help than others if they are to have equal access to justice. "You can discriminate if you treat the same cases differently but you can also discriminate if you treat different cases in the same way."

Past editions of the Bench Book gave judges advice on practical courtroom problems, such as the different forms of oath taken in court. Of these, my favourite was the advice not to allow Chinese witnesses to break a saucer while taking the oath - a practice said to be followed by the Triads during secret initiation ceremonies.

The new edition now supplements practical tips with a very useful introduction to 12 of the major "belief systems" - from the Baha'i faith to Zoroastrianism - with passages on various religious or traditional practices, including dietary rules and rites of passage.

There is also a wealth of new statistical material on social exclusion and poverty. We are told, for example, that Chinese, Indian, Black African and Asians who are not Indian, Pakistani or Bangladeshi are "more likely than white people to have degrees or equivalent".

Advice on the use of interpreters includes a reference to a tragic case from 1991, in which an uneducated woman called Iqbal Begum - charged with killing her husband - was misunderstood by an unqualified interpreter as admitting to murder rather than manslaughter. Although she was freed from prison once the mistake was discovered, she was rejected by her family and committed suicide.

Interpretation is not easy: judges are also told, without further explanation, that the word "evening" can mean "something completely different to a Scottish person and a Spanish person". And they should take care with idioms: in 1989, when the expression was still fairly new, an exam question for trainee barristers that referred to "sleeping policemen" was failed by "the vast majority of non ethnic-English students".

Should we be referring to people as "ethnic-English"? This question is not answered in a key section of the book advising judges on their use of language. But one phrase that judges are advised to use will undoubtedly cause widespread irritation.

The book advises ditching the term "ethnic minority", which most people understand to refer to a group of people whose ethnic origins are different from those of the majority. Instead, the Bench Book uses the increasingly popular "minority ethnic communities".

The new phrase presupposes that there is such a thing an "ethnic community" - a meaningless concept in most cases. It is also likely to be abbreviated to "ethnics" - though the book says this a patronising expression that should be avoided, along with the phrase "minority ethnics".

Mrs Justice Cox believes that the term "minority ethnic community" at least has the advantage of making it clear that "ethnicity is a component of everybody's identity, whether they are from the minority or the majority".

I remain bemused - but the judge comes back with a clincher. "The reason it's in there is because the advice we have is that this is a term which is now becoming increasingly acceptable and used." Judges need to know what terminology is regarded as appropriate by other organisations, she insists.

And this philosophy underlies the entire book. Address people as they would wish to be addressed. Do not ask non-Christians to give their "Christian names". Do not ask women whether they are married when what you really want to know is whether they wish to be addressed as Miss, Mrs or Ms.

And do not reduce people to adjectives such as "black", "disabled" or "blind": they are "black people", "disabled people", "people who are blind" and so on.

Disability merits a chapter in itself. "We now adopt a social model of disability," it says, "which sees the problem as arising from the barriers constructed by society." So the problem facing a wheelchair user is not a physical disability, but the lack of a ramp in the courtroom.

Acceptable terminology will change over time, says Lord Justice Keene, chairman of the Judicial Studies Board. There is a hint that this may already be happening in the chapter on gender reassignment, which refers both to transgendered people and transsexuals.

What's the difference? Mrs Justice Cox, who specialised in discrimination law before becoming one of only four women among nearly 70 men in the High Court Queen's Bench Division, explains that "gender" has broader social and cultural connotations, while "sex" refers more to a person's biological status.

It is easy enough to poke fun at the Bench Book, or to accuse its authors of being politically correct or insufficiently robust. But Lord Justice Keene and Mrs Justice Cox insist that the intention is not to prescribe strict rules for their fellow judges - merely to raise their sensitivity, steer them away from stereotypes and give them the training in diversity that is common in many organisations.

"I am really proud of this," says Mrs Justice Cox. "I'm sure there'll be disagreement about whether it's a useful thing. But I think most judges will welcome it."

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