Access to justice is one of the many human rights which have been denied to disabled people throughout the world and throughout history. It is a sad knowledge that access to justice in most countries is usually available to those who have financial, political or cultural power, whereas minorities or other groups experiencing discrimination and subordination are excluded from it. The paradox that those most in need for access to justice are the least likely to receive it remains one of the most compelling human rights issues of the 21st century (Flynn, 2016, p. ix).
Persons with severe communication disabilities belong to the excluded group mentioned by Flynn. These individuals often face violations of their basic human rights, such as exclusion from the justice system. Yet, access to justice is vital as it could act as protection against the many forms of discrimination (i.e., intersectional discrimination) and violence they face on the basis of several personal factors or characteristics that interact with one another (for example being a woman, or being a person of colour with a severe communication disability). This discrimination further exacerbates the challenges they face when needing to access the justice system, whether as a witness, a defendant or a legal practitioner with a severe communication disability.
Due to the countless barriers these individuals face, they could experience feelings of shame and embarrassment while having to cope with the emotional toll of reporting a crime. Family members and caregivers may also feel powerless and overwhelmed since they often lack the relevant knowledge and skills needed to support individuals with disabilities during the legal process (from the first contact at a police station to the subsequent involvement with legal practitioners and the eventual appearance in court). With regard to legal practitioners, their insufficient disability-related training (and consequently their inadequate knowledge of disabilities) may contribute to uncertainty regarding their ability to support persons with severe communication disabilities in court, which often results in their withdrawal from such cases.
Another significant barrier is the lack of court accommodations that are (or should be) available to persons with severe communication disabilities. Not only is this an obstacle for persons with disabilities, but many legal practitioners (e.g., attorneys, prosecutors, judges and magistrates) may be unaware of these accommodations. Therefore, persons with disabilities are often not afforded the appropriate evidence-based court accommodations needed for equal and fair participation in the court system.
In an attempt to address this challenge, a recent research study used a human rights framework incorporating procedural justice principles (having a voice; being treated with respect; legal practitioners using objective criteria for decision making; and understanding the language used in court) in a three-phase mixed-methods social justice research design. These three sequential phases aimed to develop and appraise guidelines for accommodations that should be provided to persons with severe communication disabilities to allow for their equal participation in court. The implementation of these guidelines would ensure access to justice for this marginalised group, irrespective of the country or jurisdiction in which they find themselves.
Phase 1 of the research aimed to identify existing court accommodations and entailed a legal scoping review of the extant literature, focus groups with South African and international experts, as well as online interviews with legal practitioners with disabilities. Examples of court accommodations identified included the use of augmentative and alternative communication (AAC), the use of an intermediary, allowing the presence of a support person, allowing frequent breaks, removal of official attire, involving an expert witness, the use of appropriate and proper questioning strategies, and the use of linguistic simplification.
The qualitative findings of Phase 1 were triangulated and integrated, which led to the development of the court accommodation guidelines, using procedural Justice principles, in Phase 2. Finally, in Phase 3, the court accommodation guidelines were appraised by legal experts using a custom-developed appraisal tool known as the Court Accommodation Guideline Appraisal Tool (CAGAT). Overall, the quality of the court accommodation guidelines was rated excellent and very good. Legal experts deemed the guidelines to be a trustworthy resource that could be recommended for implementation in the court system.
The use of AAC strategies was highlighted and foregrounded throughout the research. AAC strategies are typically used by individuals who cannot rely on spoken language alone for communication purposes, for example, persons with cerebral palsy, autism spectrum disorder or intellectual disability. The vast range of AAC systems includes the use of sign language and other gestural systems, communication boards or books with pictures, graphic symbols or writing, as well as the use of systems with voice output (such as the system used by Stephen Hawking). England, Wales, Scotland, South Africa and Israel are among the countries that have allowed individuals to use AAC strategies and systems in court, using a narrative case from South Africa recorded in 2020 (https://www.up.ac.za/alumni/news/post_2930686-ups-centre-for-augmentative-and-alternative-communication-scores-major-legal-victory-for-speech-impaired-teen).
Unfortunately not all courts acknowledge or allow these accommodations. Courts should thus be sensitised to recognise and accept accommodations (eg AAC) to enable persons with disabilities to participate in court (for example by enabling them to testify). Court procedures and rules can also be adapted to accommodate alternative communication formats (eg Braille, communication boards or simple language formats) without undermining any key principles of the right to a fair trial.
A legal expert who participated in this research captured the essence of why access to justice for persons with severe communication disabilities needs to be brought into the international limelight as follows: ‘We need to recognise that the needs [of persons with severe communication disabilities] can be complex and therefore the supports will need to be complex. It begins with assessment. Justice professionals require training. I think we need to be creative, flexible and think about the goals of the justice system for everyone, and how we can provide access to justice. This is in everyone's best interest! If this is the starting point, then supports and accommodations need to be tailored to suit the needs of the individuals to enable them to give their best evidence and/or to be able to participate in a meaningful way.’
Flynn, E. 2016. Disabled justice? Access to justice and the UN Convention on the Rights of Persons with Disabilities. Routledge: Taylor and Francis Group.
- Author Robyn White, PhD student, supervised by Prof Juan Bornman and Dr Ensa Johnson