Judges wield huge power over the rest of society. We therefore have a special responsibility to ensure that there can be no possible reason to think us prejudiced and this entails a positive responsibility to demonstrate our fairness
Lord Irvine of Lairg, former Lord Chancellor of England and Wales
Justice delivered according to the law requires equal treatment of all participants in legal proceedings. Providing differential treatment to one participant over another is repugnant and conscientious action by judicial officers especially would strive to avoid such an occurrence. This does not prevent the application of remedial measures, however, which may seek to alleviate the effects of a vulnerability or disadvantage.
The awareness of vulnerability and appropriateness of counter measures are detailed in equal treatment guides applicable to judicial officers in many jurisdictions.
Equal treatment is fostered by an understanding of differences and potential obstacles or difficulties facing certain groups as they encounter the justice system. A contemporary, relevant and accurate understanding of the issues facing certain groups is the key part here: outdated, erroneous or ill-informed understanding or perception of the issues may result in either substantive unfairness through decisions that would otherwise have been different but for the misunderstanding; or the perception of unfairness which may erode confidence in the justice system or the authority afforded the system and its officers.
Ethnicity and Religion aren’t necessarily tied
Consider the diversity of ethnic origin and religious faith of people encountering the justice system in a Christian dominant Anglo jurisdiction like Australia. Ethnicity and religion may each suggest a disadvantage but substantive misunderstandings of the nature of the disadvantage could arise from erroneous perceptions of the complex relationship between ethnicity and religious faith. For example, a person of Cambodian ethnicity and Buddhist faith may avoid direct eye contact with a person of the opposite sex thus potentially raising suspicions of their honesty. However, it could be said that avoiding direct eye contact is a religious and cultural norm for devout Buddhists of Cambodian ethnicity but not necessarily for equally devout Buddhists of Japanese ethnicity. Similarly, assuming a Buddhist religious faith merely because a person is of Cambodian ethnicity and avoids direct eye contact may erroneously explain a gesture on cultural diversity grounds which may actually be an accurate reflection of dishonesty. Misinterpreting a common feature of dishonesty for cultural diversity is an example of unequal treatment with potentially significant consequences. Had the person been of a different ethnicity, their avoidance of direct eye contact may not have been readily dismissed as a cultural and religious norm. This is just one example of the nuances that dot and potentially guide or mar the already complicated landscape of justice.
Decoupling Oaths from Religion
By way of an alternative example, consider the matters of Oaths in Court. Historically, sworn evidence could only be given by a person who believed in a God who would punish them if they did not tell the truth to the Court. The law developed to accommodate belief in a Supreme Being, not just a God, and later developed to accommodate a lack of belief in any God or Supreme Being and instead was concerned with whether the Court was satisfied that swearing to tell the truth was binding on the individual’s conscience and whether the individual also agreed that swearing to tell the truth to the Court was binding on their conscience.
Accommodating preferences to swear an oath binding on conscience rather than swearing an oath with a corresponding religious belief of punishment is reflective of the increasing identification of members of society as having no religious belief, or alternative religious belief to those traditionally accommodated. Seeking to treat all people equally within the justice system is furthered by allowing means of swearing to the tell the truth to the Court which are relevant and meaningful to all people and which satisfy the paramount consideration of the court which is that the individual considers the promise to the tell the truth binding on them, and that the court is satisfied this is the case.
Language: verbal and non-verbal
Language is another aspect of diversity which presents a potentially challenging barrier to overcome in the quest for equal treatment within the Justice system. The use of translators is provided for and accepted within the justice system but consider the difficulty in translating the contextual and cultural meaning of particular terms, phrases and words not just to another language, but also highlighting linguistic and cultural ambiguity which may arise from the translation and accurately translating the contextual meaning and inference of legal terms and concepts in a way that is adequately understood in the first language and culture of the witness.
Translation is not merely a mechanical process of substituting one word for another but instead involves expressing the idea or concept as closely and accurately as the second language will allow.
Three very important aspects of a fair trial and equality before the law is the need to ensure the accused understands the evidence being presented against them including witness testimony, the need to ensure the jury can hear and understand a witness’s evidence and the right of the accused to be able to instruct counsel.
These three things rely on linguistic clarity. However, language is just one aspect of communication. For people of non-English speaking backgrounds, the non-verbal communication norms of the Australian legal system may be confronting. Our adversarial legal system may seem gratuitously challenging to a witness from a non-English speaking background and many non-verbal cues considered polite in their native culture may be considered less so in Australian culture and vice versa. Remedial measures seeking to neutralise any potential misunderstandings in situations analogous to these may involve seeking clarification from the witness, seeking expert evidence from an anthropologist or linguistic specialist and possibly instructing the jury on how to view aspects of the evidence where cultural diversity is considered to have had an impact.
By remaining alert to the potential vulnerabilities, diversity and resultant difficulties that may be encountered while navigating the justice system, officers of the court can contribute to re-balancing the scales closer to a point a where a level playing field is available for everyone drawn into contact with the justice system.
This level playing field, after all, is the aspiration of True Justice.
Do you agree? Do you disagree? Either way, please feel free to respectfully explain why.