New judicial Bench Book gives guidance to ensure courts and tribunals are fair for all, including migrants and asylum seekers

Judicial
College

Equal Treatment Bench Book

July 2024

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Chapter 8: Racism, cultural/ethnic differences, antisemitism and Islamophobia

Contents
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Migrants, refugees and people seeking asylum
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Communicating interculturally
Interpreters

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Migrants, refugees and people seeking asylum

Definitions and overview

32. The term "migrants" usually refers to people who leave one country to live in another. People migrate for a range of reasons, including to work, to study and to escape from oppression. Some migrants are transitory or seasonal, staying in another country only for a period of time. Others have moved permanently.

33. In the UK, many migrants have become part of settled ethnic minority communities and will often have British citizenship. Newer migrants are an increasingly diverse group, coming from almost every nation in the world, within and outside the EU.

34. The UN Refugee Convention defines a "refugee" as someone who, "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to, avail himself of the protection of that country". A refugee is a person who has been granted asylum.

35. In 2022, there were 74,751 asylum applications and 45,700 people arrived in small boats. That is significantly less than Germany, which received 244,132 applications [400] or France, which received 156,103 applications. [401]

36. Negative perceptions of migrants, refugees and people seeking asylum are fuelled by parts of the press and some political debate. A number have faced imprisonment, torture or rape prior to fleeing, as well as witnessing the consequences of societal breakdown in their home country.

37. As well as pre-migration trauma, people seeking asylum suffer as a result of the loss of support of family and friends, social isolation, loss of status, culture shock, uncertainty, racism, hostility (eg from the local population and press), housing difficulties, poverty and loss of choice and control.

38. The process of seeking asylum in Western countries and stressful legal processes place additional demands on people. People seeking asylum who are detained in the host country experience further and more specific stress from the detention process itself and the detention centre environment, which may adversely affect their mental health status. Sources of stress include insecurity, loss of liberty, uncertainty regarding return to country of origin, social isolation, abuse from staff, riots, forceful removal, hunger strikes and self-harm.

39. As a result of these factors, people seeking asylum and refugees have higher rates of mental health difficulties than are usually found within the general population. Depression and anxiety are common. Post-traumatic stress disorder is greatly underestimated and underdiagnosed. For cultural reasons, mental illness may not be expressed or may manifest as physical complaints. Stigma may also be attached to mental ill health. Furthermore, Western psychological concepts are not universally applicable to people seeking asylum who come from different cultures. [402]

40. For more detail on the experience of lesbian, gay, bisexual people seeking asylum, see chapter 10, and regarding trans people seeking asylum, see chapter 12.

Help with the court process

41. Newly arrived migrants may well have different experiences and understanding of the role of courts. They may not trust a court due to experiences in their home country. They may have come from countries where the accused in a criminal court does not necessarily enjoy the presumption of innocence. In their country of origin there may have been corruption among judges and/or judges may not generally be regarded as being independent of the government or other state authorities like the prosecution or police. These steps may help judges establish trust and confidence:

• It will be particularly important to explain the process, what will happen, the court's powers and the opportunities which the individual will have to explain their case.

• Through the course of the hearing, carefully monitor that the individual understands the process and feels included in it.

• If a defendant waives a right, a judge needs to ensure it is done knowingly, not because the defendant assumes exercising rights is futile.

• Bear in mind intercultural ways of communication.

• For further guidance as applicable, see "Communication with a person who is using English as a second or third language" and "Interpreters", both within this chapter.

• If the individual has mental health difficulties, make the necessary adjustments (see chapter 4). This may require particular sensitivity. Bear in mind that such difficulties may not have been diagnosed and that the individual may be unwilling to admit them.

• Be aware that individuals' experiences may have affected their self-confidence so that they appear to consent, eg to proceeding unrepresented or having a remote hearing, even if this is contrary to their best interests. [403]

42. Remember that remote hearings will often be unsuitable because of:

• Lack of confidential and private space.

• Lack of access to technology, phone credits, wifi/mobile data of sufficient quality.

• Lack of visual clues, use of more focused and closed questions, and difficulty interpreting silences can cause barriers in remote hearings and in remote interviews with their own legal representatives.

• As a result of their experiences, possible fear of disclosing sensitive information to interpreters from their own community, especially interpreters they cannot see clearly.

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Communicating interculturally

59. This section is about witnesses attending a hearing conducted in English, but who do not themselves speak English as a first language. For example, their first language might be Spanish, Cantonese or Polish. For a discussion of the specific rights and needs of Welsh-speakers, see "The right to speak Welsh" below.

60. Language and cultural barriers, coupled with poor or inaccurate information about the process, have been identified as critical barriers to people using the tribunal system. This may also apply in the courts. [408]

61. Different cultures have different communication styles. These differences may still apply when a foreign-born person has learned to speak English fluently or where a person who speaks English as a first language comes from a cultural minority. Judges may find it helpful to refer to Chapter 1: Litigants in person, for use of language and question style.

62. Assumptions should not be made about whether these differences apply to a particular individual. Many people of different backgrounds are able to operate completely bi-culturally. Moreover, there is a large range of personality and behavioural difference within every culture. Having said that, it is important to bear in mind that an individual's communication style will be a result of both cultural patterns and the structure of their first language.

63. The greater the gap of cultural difference in a verbal exchange, the greater the risk that a native English speaker's customary process of inferring meanings and intentions will break down – even with good will on both sides, and when English is being spoken with fluency by all parties. A judge needs to be aware of this risk, and to help clarify meaning where necessary.

64. In some cultures, particularly from East Asia, the concept of "saving face" is fundamental. [409] This goes beyond the sense of "saving face" in UK society. An individual may be concerned to save both their own face, but also the face of judges and representatives. This desire will be particularly acute if there are others from the individual's own cultural background in the room.

65. It is particularly important in terms of saving face:

• Not to ask, "Do you understand?" The individual may well say "yes" even when they do not understand simply to save the face of the judge if a "no" might imply that the judge has not explained clearly.

• To soften any negative or critical comments if possible. It can help to generalise, eg "Many people have difficulty writing a witness statement", or to give an indirect example by apparently talking about someone else.

• Not to say, "You are not making yourself clear". This entails loss of face by drawing attention to lack of fluency or clarity in the speaker's use of English.

66. It is important to be aware that there are culturally different ways of structuring answers to questions. This creates a risk of failing to grasp what a witness is saying, or of wrongly considering a witness to be evasive, or of cutting off a witness prematurely.

67. These are other key differences to bear in mind in the way that languages are spoken in different cultures:

• Low context/high context: the degree to which meaning is stated explicitly in the words used, as opposed to meaning being left implicitly to be read or inferred between the lines.

• Directness/indirectness of style in answering questions, expressing disagreement, or making an argument.

• Ways of seeking to argue persuasively: quietly concise or impassioned and verbose.

• Ways of indicating engagement in a topic: low key/animated.

• Formal, impersonal, guarded in manner/informal, chatty in manner.

• Turn-taking: when to speak; whether to interrupt; how to indicate one has something to say or ask; whether to wait until invited to speak.

• Use of silence in replies: as a mode of respect (a token of thoughtful consideration of the question), or as uncertainty in needing mentally to "translate" the question and to formulate a reply in another language.

• Emotion: for some cultures, expressing emotion overtly is a cultural norm. For others, restraint is the norm, especially in public. As well as this, emotions may be expressed differently facially in different social environments. [410]

• Parties may demonstrate emotion differently, both when telling their story during evidence and when arguing their case. For example, in one study, African Caribbean tribunal users expressed concern that they were culturally more likely to express emotion in a legal setting, which might have an adverse effect on how they were perceived. [411]

• Body language: the degree to which intended meaning is carried non-verbally, by gesture or manner. In addition, the meaning of certain body language is not universal. For example, in some cultures a smile could be a signal of suppressed negative emotions like loss of face, disappointment, or even anger, rather than of being pleased. The meaning and appropriateness of eye contact varies from culture to culture. Lack of eye contact can appear evasive, bored or disrespectful by some cultures, but indicative of respect by others.

• Different ways of expressing politeness. See for example the difference between Welsh and English.

• A different cultural script can cause particular difficulties. This means differing cultural assumptions about the purpose and "normal" steps, ie "procedural rituals", of conventionalised, formal interactions, such as tribunal or court hearings, or about the role and powers of a judge or legal representative. For example:

• The level of proactivity expected of parties in a court process might vary.

• Terms like "compromise", "fairness" and "mediation" could have different connotations in different cultures.

• A party may have different ideas about what courts are for. For example, in the past, recently arrived Somali people associated going to court with receiving punishment; for them, going to court would be a typically terrifying experience signifying harsh and arbitrary treatment. [412]

• A defendant may come from a country where it is not assumed that an accused person is innocent until proved guilty.

Communication with speakers of English as a second or third language

68. This section concerns people who are using English as a second or third learned language.

69. According to the 2021 Census, 91.1% (52.6 million) of people in the UK had English or Welsh as their main language; 4.1 million people living in England and Wales had a main language other than English or Welsh. The most common main language in the UK other than English or Welsh was Polish (612,000), followed by Romanian (472,000), Punjabi (291,000) [413] and Urdu (270,000). [414]

70. If a judge needs to enquire about someone's level of fluency in English, the best formulation is to ask, "Is English your first language or are you using it as a second or third language?", rather than "Are you a native-English speaker?", which may be misunderstood.

71. Many parties, witnesses and even representatives who do not speak English as a first language but use it socially and at work, feel able to appear in court without an interpreter. Nevertheless, they may be at a disadvantage when seeking to ask or answer questions and argue their case in the formal and artificial setting of a court hearing.

72. The level of an individual's spoken English will vary greatly, and assumptions cannot be made. Some individuals will have lived in the UK for a long time and will have achieved a high degree of fluency. On the other hand, it can be easy to over-estimate an individual's ability to cope with language as used in court and under the stress of proceedings. The fact that an individual can communicate perfectly well in their work context may not be a reliable guide to how well they can communicate in court. Equally, a person may appear entirely fluent at the start of a hearing, but the level of their fluency may reduce when overtaken by emotions or stress, as may happen under cross-examination.

73. Speaking English clearly to a person who is using it as a second or third language requires care to use "plain English", and to clarify legal jargon, but this may not be sufficient to meet their communication needs in court. They may bring culturally different social assumptions, behaviours and expectations, as well as a "speech style" (ie accent and manner of talking in English) influenced by a "mother tongue" or a dialect whose grammatical structures and intonation patterns are very different from English. As adult learners of English, they may be well versed in vocabulary, but not fully aware of how the way words are spoken and used alters meanings in English. Such linguistic differences create difficulties in both the presentation and the evaluation of verbal evidence.

74. It is likely to be easier for someone who does not speak English as a first language to understand if the judge and advocates:

• Allow more time and offer more breaks during intensive periods of the case.

• Speak slightly slower, at a steady pace and with clearly articulated consonants. Speaking louder does not help.

• Make small (but not excessive or unnatural) pauses where a comma or full stop would appear in written English.

• Use short sentences and avoid compound sentences with sub-clauses.

• Deal with only one subject/idea in a sentence.

• Do not ask two questions in a single sentence.

• Use verbal signposts ("I am going to make three points now") and signal topic changes ("I am now going to talk about…").

• Frequently summarise.

• Take care in using hypothetical questions and statements, as some languages do not use these forms.

• Ask questions by using question words and sentence structures, rather than by adding intonation to a statement.

• Avoid idioms. These may be taken literally or simply not understood.

• Avoid humour, sarcasm, irony, puns and rhetorical asides. These are rarely a good idea in a court setting, and travel particularly badly across cultures.

• When setting out procedure, go through the steps in sequence, and do not make any back references or add any commentary.

• Be ready to explain jargon, legalese and terms referring to status and roles in an organisation.

• Make direct requests rather than use UK politeness forms, which tend to be very indirect, often using complex grammar. "Please speak louder" is clearer than "I am finding it difficult to hear what you are saying".

• Take particular care when a person is being cross-examined on a document in English or when you are asking your own questions of a witness in relation to a document. What may be obvious to you on the basis of language may take a while for a witness to appreciate. The fact that the witness may take time should not lead to an inference that they are being evasive in the face of what, to you, may seem to be clear language.

75. It is usually advisable to avoid the following complex grammatical usages, which may be unfamiliar or confusing:

• Elisions ("I'll, you'll, won't, don't").

• Passive verbs ("Send this in by next week" is clearer than "This must be sent in by next week").

• Double negatives ("The evidence is conclusive" is clearer than "The evidence is not inconclusive").

• Using pronouns to repeat a noun ("he" "she" "it" "they"). It is usually better to repeat the noun itself ("Did Alice go to the house?", "What did Alice do next?"). Pronouns may confuse people, especially those whose first language does not use pronouns in the same way (eg Chinese languages), or which (eg Hindi) lacks articles ("the" and "a") or has quite different ways of expressing this idea.

• "Would" and "should". These are ambiguous terms which often do not have exact equivalents in other languages. "Should" can mean a moral obligation, an expectation or ideal preference, a compulsory social obligation, or advice. Instead of saying, "What you should do now is send in a witness statement", it is best to say simply, "The next step is for you to send in a witness statement".

• Negative formulation in questions like, "Don't you think that…?", "So you have no objection to…?". Languages differ in what they mean by the answer "yes" or "no" to these questions. Non-native speakers of English may reply to the opinion/intention of the interrogator, not to the facts of the question. For example, "I assume you didn't intend to do it?" – reply in UK: "No" (= I didn't), but in other languages: "Yes" (= that's a correct assumption).

• Negative tag questions, eg "You don't mind if we take a break now, do you?" These are difficult for non-native speakers to answer, and they may say "Yes" when they mean "No, I don't mind". It is clearer to ask, "Shall we take a break?"

• Certain styles of cross-examination designed to elicit an admission or put pressure on a witness can be linguistically confusing. "Did x happen?" is clearer than, "So you will accept x did not happen, won't you?". "Is that correct?" is clearer than the ambiguous "That's right, isn't it?".

• Forms of legalese used in cross-examination, eg "With due/deepest respect" (indicating strong disagreement or meaning "That is not true"); "If I could just make my point" (meaning "Please do not interrupt me").

Checking understanding

76. It is useful regularly to summarise and paraphrase what the individual has said, especially at important points, to check that no misunderstanding is building up.

77. If uncertain whether someone has misunderstood a term or phrase, rather than repeating what has been said using the same words, it is better to reformulate and rephrase.

78. When clarifying meaning, go on to explain what you are trying to achieve, eg "What I am saying is that you must write your witness statement in date order. The reason for this is that it is easier for the court to understand your story."

79. Instead of asking, "Do you understand?", it is more reliable to ask the person to feed back to you their understanding of any important points.

Interpreters

Is an interpreter necessary?

80. Although judges are not involved in making arrangements for interpreters, it is important that they are fully aware of potential difficulties experienced by witnesses who may have only a limited ability to speak and understand English, and the interpretation facilities available and the arrangements for securing them.

81. When giving evidence, people for whom English is not a first language may not always fully understand what they are being asked. It is one thing to know the basics of a language and to be able to communicate when shopping or working. It is quite another matter having to appear in court, understand questions, and give evidence. It should also be remembered that many ethnic minority people prefer to speak their first language at home. Similarly, Welsh speakers may be relatively fluent in English but still feel more comfortable speaking Welsh, eg in relation to legal or technical terms. [415] Judges should therefore be alert to different language needs, and should not assume, simply because a witness has lived in the UK for many years, that they do not require an interpreter.

82. Situations may arise where the judge has to take a proactive role and make some effort to clarify and resolve the extent of any language difficulty faced by a witness. It is part of the judge's function to check everyone understands each other so as to ensure a fair hearing. If a judge hearing a case considers that an interpreter is required, an adjournment should be granted for that purpose.

83. It can happen that an interpreter was not arranged in advance or that an interpreter, who has been booked, does not arrive. It may be tempting for everyone involved to continue without an interpreter in that situation if the party or witness says they can manage in English. Judges should exercise caution about accepting such reassurances. Ultimately, it is the judge's responsibility to ensure that there is a fair hearing.

84. Sometimes a party or witness has asked for an interpreter, but in practice communicates in English during the hearing. This does not mean the interpreter was not needed. The witness may be anxious to communicate directly as far as possible, but have an interpreter present to assist when understanding breaks down. Some people also "code switch" as they talk, switching unconsciously between languages as they search for the most natural way to express themselves for the point they are making. They should not be stopped from doing this.

Interpretation and cultural difference

85. Judges need to ensure that where there is an interpreter, there is no reduction in a party or witness's participation in the hearing, willingness to speak, understanding of questions and overall ability to put his or her case.

86. Practice regarding how to book interpreters varies across different courts and tribunals. Judges should be familiar with the rules in their own jurisdiction. For the right to a Welsh interpreter, the special booking system and particular considerations, see "The right to speak Welsh".

87. In hearings which involve parties or witnesses who speak little or no English, judges need to be skilful in clarifying meaning between cultures, adjusting their own mode of talk as necessary to ensure that the chances of accurate interpretation are maximised.

88. An interpreter has a difficult job. Languages do not operate in ways which identically match each other. They can differ in grammatical structure, vocabulary, the meaning of certain abstract concepts, and in how much is directly spoken as opposed to understood between the lines. The interpreter's job is to transfer as near as possible the meaning of what is said by each side, not merely to translate words and phrases literally, which can create a false impression.

89. English, like all other languages, is not a "neutral", culture-free language: it is freighted with embedded cultural assumptions. It is important to read this section together with the section on "Communicating interculturally" in this chapter.

Practical arrangements in court

90. Where applicable, ensure that the interpreter speaks the correct dialect of the language in question and that the witness and interpreter can communicate properly. It may be tempting when an interpreter arrives with the wrong dialect to ask whether the witness can manage anyway. A witness may feel under pressure to agree when in fact there could be a considerable loss of understanding. Check at the beginning and at the end of evidence that the party has understood the interpreter.

91. Plan an appropriate seating position with the interpreter. Facial expressions and gestures can often contribute to the meaning of what is said. The interpreter should therefore be able to see all speaking participants, and his/her position should also indicate his/her role as neutral and impartial.

92. Introduce the interpreter or allow the interpreter to introduce him/herself. Then introduce yourself, with the interpreter confirming what you say.

93. In explaining court procedures to all participants, do not forget to include the ground rules on how the interpreter will work.

94. Interpreting is a taxing job. No interpreter can go on too long. Consider requests to have frequent breaks and allow sufficient recovery time. It is good practice to agree frequency and timing of breaks with the interpreter in advance.

95. Allow the interpreter to take notes.

How to communicate through an interpreter

96. Address the witness directly, using first and second person ("I" and "you"), and look at them rather than the interpreter. It may be important to monitor small, non-verbal signals, as they speak.

97. Use a slower pace in your speech style, matching your speed of delivery to the interpreter's speed of interpretation.

98. Pause after every two or three sentences. Ensure you do this at the end of a sentence – not in the middle. Many languages order the words of a sentence in a different way from English, so it is necessary for interpreters to hear the whole sentence before they can translate it properly.

99. It is not good practice to tell the interpreter that an aside or something unimportant need not be translated. This can make the witness feel excluded and even distrustful.

100. Intervene to take control if several people start talking at once or speak in rapid succession (since this makes interpretation impossible).

Translation difficulties

101. Many of the adjustments to speech and questioning which a judge or advocate would make when speaking to a witness for whom English is not a first language, would also be helpful when using an interpreter. See "Communication with speakers of English as a second or third language" for details.

102. Be very clear in handling proper names and numerals/figures, and explain acronyms each time you use them. Remember that the approach to pronouncing acronyms may also vary between languages, eg English pronounces "www" by repeating the letter "w" three times, whereas Welsh says "triple w" ("w triphlyg").

103. Avoid legal jargon or, where this is unavoidable, explain the concept in plain English which the interpreter can translate. Words such as "adjourn", "detriment", "remedy" "mitigation" "witness statement" could all cause difficulty, as well as more obvious jargon such as "hearsay", "burden of proof", "tort". Specific jurisdictions or chambers may use technical words that the interpreter may not understand. When introducing the interpreter, remind them to intervene if there is a term that they do not understand.

104. Many words in English do not have exact single-term equivalents in many other languages: these include words for culturally varying concepts such as "fair", "reasonable", "evidence", "impartial", "commitment", "bias", "compromise", "mediation", "depression", "opportunity", "efficiency", "liability". As a result, an interpreter may need to use longer phrases or sentences to convey the speaker's full meaning across a cultural divide.

105. Conventions of advocacy, such as tag questions and negative questions, are difficult to translate linguistically and are likely to be doubly confusing when going through an interpreter.

106. It is difficult to interpret fine distinctions, and these may be hard for the witness to understand. Such points need to be stated very clearly and built up slowly.

107. If you notice the interpreter apparently making untranslated exchanges with a party, call attention to this and seek an explanation. This may be entirely legitimate, eg there is no exact match between the two languages, such that more words and alternative formulations need to be used and clarified between the witness and the interpreter. On the other hand, it might be because the interpreter has unacceptably crossed a line and become involved in further discussion with the witness, eg about the wisdom of an answer.

108. Some interpreters are concerned to convey to the court any emotion which the witness conveys indirectly in making their answer. This is difficult to do. It is not the interpreter's role to try to "act out" the emotional dimension, but they may seek to indicate/transmit the upset via tone and pauses, as well as by the meaning of words. Judges need to be alert to this.

Interpreters and remote hearings

109. Interpreting in remote hearings is particularly difficult for these reasons:

• Interpreter and witness are able to see less body language, so there are fewer non-verbal cues to help them understand each other.

• Conversely, face-to-face interaction on video platforms is particularly concentrated. Where the party or witness is from a small community, they may have intensified concerns about discussing matters through an interpreter using this medium.

• Simultaneous interpretation will not be practical on most platforms.

• Overlapping speech will not be possible. The interpretation could very easily fall behind.

• Interpreters may be unfamiliar with the particular jargon applicable to technology and the conduct of remote hearings or may be familiar with the words but not how they translate.

• The particular interpreter may be unpractised at working in video remote hearings, with the specific difficulties that arise, including time-lapses caused by broadband speeds.

• Particular difficulties with Welsh/English translation are explained in the section on "The right to speak Welsh", below.

110. Some steps which may help are to:

• Ensure the individual requiring the interpreter is able to understand the process for joining the remote meeting, which may require understanding instructions given on screen or by automated voices in English or Welsh.

• Allow more time.

• Have increased breaks.

• Ensure that everyone who speaks does so in small portions, pausing for the interpreter to interpret.

• At the outset, agree a protocol for how the interpreter should indicate that they would like to speak. Ensure the interpreter and the person being interpreted both feel comfortable to say if they are not keeping up.

Informal interpreters

111. Judges should be alert to the fact that it is not uncommon for litigants who do not use English as a first language to regularly use their relatives (often children or close relatives who have grown up in the UK) as intermediaries when they communicate with others.

112. Often, such litigants have a good level of spoken English but use their children/relatives as informal interpreters in day-to-day life and, in particular, when dealing with official persons or bodies.

113. Although such informal interpreters cannot serve as a substitute for accredited interpreters in relation to evidence, judges should be sympathetic to allowing a litigant to be accompanied by such a person who can assist them in understanding what is being said and to act as an intermediary.

114. That is not to say that such persons can act effectively as the advocate for the litigant. The litigant must conduct their own case but allowing informal interpretation where points of difficulty in language and understanding may arise can assist both the court and the parties. Such persons can also provide a level of support and reassurance to the litigant.

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[415] See "The right to speak Welsh", below.