This is a reality for some witnesses and defendants. If this was your client, would you have picked up on the signs? What could you have done to help them achieve their best evidence during the trial process? There are more than 10 million people in the UK with some form of hearing loss, i.e. one in six of the population. That figure is set to increase significantly – to 14.5 million by 2031 – which means that barristers working in courts and tribunals around the country will encounter people from this demographic at some stage during their career. This may be as a client, a litigant in person or a witness. Article 6 of the European Convention on Human Rights, the right to a fair trial, is particularly important for people with a hearing loss to ensure they are on an equal footing with other parties. Reasonable adjustments can be made to meet their needs and improve the court process.
Identifying hearing difficulties
How does one identify a person with hearing difficulties? This seems like an obvious question but can be much harder than it first appears. Audiologists, who have studied the science of hearing, and the diagnosis and treatment of hearing disorders, are trained to look for certain identifying features.
One obvious sign that barristers should watch out for is a hearing aid. However, social stigma still surrounds the use of hearing aids. Technological improvements also mean they can often be concealed behind or inside the individual’s ear, which can deceive even the most discerning eye. Furthermore, hearing loss can often go undetected or an individual may choose not to seek help. Other signs can include a person missing parts of a conversation; asking for things to be repeated several times; misunderstanding what has been said; paying a lot of attention to lip movements and expressions in order to read what they cannot hear; and struggling with quiet or female voices in environments with a lot of background noise, or in group situations. You can always ask the individual if they have any difficulty with their hearing, whether or not you are rebuffed.
If it appears that your client might suffer from hearing difficulties, or they answer the question in the affirmative, what is the best way to communicate? The starting point is to ask how they like to be communicated with. Their first language may be not English, but British Sign Language (BSL), in which case arrangements must be made to book BSL interpreters. For others, there may be alternative tactics. First, make sure you have the person’s attention before you start talking to them. Places with good lighting for lip-reading, and little or no background noise, are best for conversations. This may be difficult when you find yourself in a busy court with no free conference rooms, but it is essential for good communication. Second, face the person so that they can lip-read if necessary, and speak clearly and slowly using plain language and normal lip movements. Facial expressions are also important and avoid raising your voice. Finally, repeat where necessary and check whether the person understands what you are saying. If not, try saying it in a different way, whether you are in a conference or in the courtroom.
It is also important to remember that even with an appropriate hearing aid, the listener may still not hear and understand every word. Use an interpreter where necessary. For written communications, ensure that straightforward language is used and that any complex information is conveyed in a clear and concise manner, avoiding legalese. Employing these techniques can promote smoother communication with the hearing impaired.
Securing access to justice
Further problems can be experienced in the courts and tribunals of the UK. Seventeen per cent of courtrooms do not have induction loops, a system enabling those with hearing difficulties to hear sound through a loop of wire placed round the perimeter of a designated area, which emits an electromagnetic signal picked up by a hearing aid (see box). Sometimes the loops do not work or the wrong type of communication support is provided. There is a shortage of interpreters and an absence in staff awareness of what facilities are available for those with hearing difficulties. This all means that individuals with hearing difficulties have limited access to justice, despite section 20 of the Equality Act 2010 which requires service providers to make reasonable adjustments, where needed, to improve and make their service accessible for disabled users.
Practitioners must first recognise that these issues exist. The second task is to know that changing the way we communicate can have a positive impact. The third is to be aware that there are facilities available for those with hearing difficulties that can be utilised.
However, there is still much to be done. Cuts to the Ministry of Justice budget mean that the old court buildings still need to be modernised with new technology and better acoustics. Court staff need to be retrained so that they can communicate more effectively with people with hearing problems. More BSL interpreters should be available. Her Majesty’s Courts and Tribunals Service should collaborate with disability groups in order to address and prioritise the needs of the hearing impaired. The only way equal access to justice will truly be achieved is when these matters are addressed and the most vulnerable in society no longer suffer the consequences of an unequal system.