Effective communication underlies the entire legal process: ensuring that everyone involved understands and is understood; otherwise the legal process will be impeded or derailed (Equal Treatment Bench Book, Judicial College, 2013).
Courts are verbally mediated, which means that effective communication between all parties is essential. The language used in court, however, is often complex with a vocabulary not generally encountered outside of the court environment. The use of jargon – specialised language concerned with a particular subject, culture or profession – can be especially problematic (Crew and Ellis, 2008).
Many defendants with speech, language and communication needs, including people with autism, learning disabilities or mental health problems, will experience difficulties with communication and comprehension. For example, they may find it hard to give a clear narrative account of what has happened or to properly sequence events; and they may behave inappropriately during proceedings, such as smiling or laughing when asked a question or given instructions. Magistrates and district judges are expected to deal with such difficulties ‘as part and parcel of the ordinary control of the judicial process.’
Being able to understand what is happening in court and to communicate effectively is fundamental to a defendant’s participation in proceedings. Conversely, a lack of understanding on the part of the defendant and an inability to participate effectively may lead to feelings of frustration, anger or passive acceptance – each of which can impede court proceedings and risk an unfair outcome.