「经济学人」Keep up, your honour

And into the mind of the judiciary

A WELSHMAN, A Sikh and a transgender woman walk up to the bar. It sounds like a joke, but in this instance the “bar” separating the judge from a courtroom has served as a synonym for the legal world since the 14th century. In July the Judicial College, which is responsible for the training of judges in England and Wales, issued its triennial update of the “Equal Treatment Bench Book” (ETBB). Its advice on how judges should address different litigants and witnesses offers a portrait of modern Britain.

The main chapters deal with characteristics such as disability, race, sex and so on. An appendix of shorter sections includes pen portraits of Jains, Jehovah’s Witnesses and other religious groups, as well as the various nationalities and health conditions that may confront a judge. It explains, for example, that Indian Hindus should not be addressed by family names; that a Rastafarian should not be asked to remove his head covering; and, helpfully, that “belief or non-belief in religion should not be confused with having, or not having, a moral compass.”

Many of the ETBB’s 350-odd pages concern language. The book explains that the Welsh may unintentionally come across as rude in English if they are used to thinking and speaking in Welsh. That is because Welsh uses politeness forms, like a formal pronoun for “you” (chi), that do much of the job of “please” in English—which Welsh-speakers may therefore omit. (The guide also explains that Welsh does not typically use “yes”, so that when a Welsh-speaker is asked if he saw something he may reply “I did” without meaning to sound stilted.)

It’s not just the Welsh who may inadvertently appear to lack proper reverence for the court. Deaf people may appear “blunter or more demonstrative” than hearing ones; their gestures should not be taken as a sign of rudeness. When a witness “is sweating and goes red, or appears over-anxious, emotional or vague in her evidence”, judges are warned that “may be attributable in certain cases to menopausal symptoms”. Defendants representing themselves may (rather forgivably) “be unskilled in advocacy” and “lack objectivity” about their cases.

The ETBB is inevitably a battlefield in the culture wars. One section details studies showing that black people face systematic discrimination in law enforcement. For some, the two pages on this subject are not enough; for conservative critics, they are sufficient to smuggle a contentious ideology into what is supposed to be neutral guidance for judges. The chapter in the previous edition that was called “Gender” has been renamed “Sex” for this one, in a change advocated by “gender-critical” feminists (foes of some transgender activists’ views).

This revised chapter still advises judges to respect litigants’ and witnesses’ gender identities, including names and pronouns, for “most” purposes. But judges are now warned that a victim of a crime committed by a transgender woman may have known the accused as a male. Requiring a witness to refer to that person as “she” may not only be upsetting but could affect the quality of their testimony. And a witness may similarly become confused and unreliable if everyone else in the courtroom uses “she” to refer to the accused as well.

It is impossible to please everyone. But the ETBB has done an admirable job of the attempt. Its editors brought its bulk down by more than 200 pages since the edition of 2021, culling citations of old studies and cases while including up-to-date supporting material. It serves as a window not just into Britain but also into the minds of judges, whose ways of speaking and thinking are too often impenetrable. The ETBB instructs them that some groups—children, people who are representing themselves and so on—may need legal language like “inter alia” replaced with phrases like “amongst other things”. On why the courts should not speak plain English for everybody, the book is silent.(Aug 26th 2024)

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