When the Judge can't hear

hires

HH Gordon Risius explains how hearing loss – never a good career move for a judge – didn’t have to mean the sudden end of his time on the Bench.

Last June’s issue of Counsel contained a helpful article by Sukhveer Kandola and Narita Bahra about court users with hearing difficulties, in which they drew attention to facilities which can help access justice (June 2014, p30).


Practitioners in the Thames Valley are familiar with such problems, not because hearing loss is particularly prevalent there, but because one of the Crown court judges at Oxford (the author) regularly complains about his inability to hear in court.

This has nothing to do with the old jokes about improperly dressed advocates or those attempting to address the court from outside the Bar, but is simply because whoever is speaking has strayed too far from the nearest microphone.

The practical difficulties

Following the sudden loss of most of my hearing after a head injury, I found that even powerful hearing aids were insufficient to follow evidence and submissions accurately. Hearing aids amplify speech, but they cannot discriminate between people speaking simultaneously, nor are they adequate over a distance of more than a few metres at most.

The initial expert advice was to take advantage of the loop system available in most Crown courts, but I was reluctant to try plugging the output into the necklace device provided for me as a wireless relay to my hearing aids, for fear that a moment’s forgetfulness could result in my leaving court entangled by lengths of cable and associated equipment. The more serious objection, however, was that the typical loop system uses a single small microphone, designed to pick up sounds from the court-room generally, not just the voice of whoever happens to be speaking at the time. In consequence it can radiate such a multiplicity of sounds that an accurate note of the evidence or submissions is impossible.

The loop system undoubtedly helps those with mild hearing loss, but does little for those whose hearing is more seriously affected. There is a practical solution, encouraged by the Disability Discrimination Act 1995, but it is expensive for the public purse, particularly when it benefits only a single individual. It works by supplementing the comprehensive sound systems already built into most Crown courts, which perform a range of different tasks; enhancing and reinforcing speech at a low, background level, for the benefit of court users generally; playing DVDs and video recordings in evidence; relaying what is said over live video links; and recording the proceedings for the Digital Audio Recording Transcription and Storage System, better known as DARTS. These are all linked to court microphones serving witnesses, counsel, the clerk and the judge. There is usually a microphone in the dock for unrepresented defendants, though as it is placed out of reach for obvious reasons, it may be too far away to be of much practical use. Judges also need occasionally to talk to individual jurors, but there is rarely a microphone in the jury box. Moreover, in cases involving more than four advocates, additional microphones need to be installed, otherwise counsel have to play musical chairs and swap places, which, although potentially highly entertaining, is tedious for them.

The solution

Kandola and Bahra suggest that more needs to be done to assist those with hearing difficulties. To enable me to continue sitting in crime, the South Eastern Circuit Secretariat helpfully arranged through the Ministry of Justice for Voice Products, who maintain much of the standard court-room sound equipment, to liaise with my audiologist and then to provide all four Crown court-rooms at Oxford with additional microphones for counsel and the jury; suitably located, vandal-proof versions for those in the dock; and, most importantly, complex sound mixer equipment and control units. These automatically convey sound from the microphones closest to those currently speaking, so as to cut down on background noise. The result is then relayed by blue-tooth transmitter to my necklace receiving device, which in turn re-transmits it by radio to my hearing aids. By adjusting the control unit on the Bench, I can vary the volume and frequency from whichever microphone happens to be in use, without affecting any of the equipment settings designed for other purposes. But I have no instant means of identifying who has just started speaking, unless I can see the person concerned or can recognise whose voice it is, because the normal ability to use both ears to work out from which direction the sound is coming (the stereo effect) is cancelled out by the monaural feed from the court microphones.

This arrangement, with its wireless link, happily avoids the need for me to connect myself physically to the sound system on entering court, though I was concerned to discover that on rising afterwards and returning to my chambers some distance away, I could still hear through my hearing aids what counsel were saying to each other back in court. But they will be relieved to know that ever since making that worrying discovery, I have always switched my necklace device off immediately on leaving court. The only thing I then hear is an irritating, computer-generated announcement in my hearing aids from a lady with a transatlantic drawl, informing me that I have just switched my link off – something I already know and of which I hardly need reminding. But if I’m quick, I can cut her off without causing her offence. But with days to go before my retirement, the same lady is now repeatedly distracting me by warning that my batteries are low. It may be her way of confirming that it is time to hang up my wig.

Increasing expectations

Electronic aids for hearing loss have improved in leaps and bounds over the years. The arrangements described above generally work well, and have enabled me to concentrate on the legal and evidential aspects of cases, instead of struggling, as before, to make sense of what is being said. But they are still far from a satisfactory substitute for “normal” hearing – woe betide a failure to remember to recharge the batteries overnight, which could easily bring a trial to a temporary halt – and there is still much room for improvement. For example, when special measures are in use and the complainant’s police interview is being played on a DVD as evidence in chief, the sound reaches me not direct through cables, but via the court’s loudspeakers, and thence through the court microphones, with considerable loss of clarity in the process, to the extent that without a transcript it can be a struggle to make any sense of what is being said. Meetings in chambers, or otherwise out of court, can also be difficult, given the background noise with which anyone with hearing loss will be familiar when attending social gatherings.

But further improvements are on the horizon, which is encouraging, not only given that hearing loss is hardly a rarity these days, but also because there is an increasing expectation that reasonable adjustments will be available. Mobile phones are now being developed which can double as both selective microphones and transmitters, so it may not be long before hearing loss is much easier to cope with in court.

The criminal justice system depends primarily on the spoken word. Intermediaries are already routinely encouraged to assist those with communication difficulties who would otherwise be unable to access justice. There are, of course, limits on what can reasonably be expected for those who need electronic assistance, but one judge in particular counts himself exceptionally fortunate that hearing loss – never a good career move for a judge – did not mean the sudden end of his time on the Bench.

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His Honour Gordon Risius CB

Gordon recently retired as Circuit Judge at Reading and Oxford Crown Courts (Resident Judge/Honorary Recorder of Oxford). He was previously Solicitor, Army Legal Officer (latterly Director, Army Legal Services and the Prosecuting Authority for the Army).