The Equal Treatment Bench Book

This article has been written by the Lady Chief Justice following an inspiring judicial training event delivered by Lady Justice King in November 2024. The article draws from the contemporary materials used by Lady Justice King at that event.

1. Introduction

In Northern Ireland the Equal Treatment Bench Book (‘ETBB’) has been referenced by the Court of Appeal in Galo v Bombardier Aerospace (UK) (2016) NICA 25 where the Court outlined principles and guidance for a fair hearing, including the need to have regard to general non-binding guidance and practical advice given in the ETBB on how best to effectively accommodate litigants with disabilities in the court or tribunal process. Moreover, the Court outlined that courts and tribunals should pay particular attention to the ETBB and ensure it becomes part of the culture of hearings.

2. A Judicial Reference

The Equal Treatment Bench Book is a key reference manual for all judicial office holders. It reminds judges that fair treatment is a fundamental principle embedded in the judicial oath and, hence, a vital judicial responsibility. It seeks to enhance the awareness and understanding of the different perspectives and challenges faced by those appearing in our courts and tribunals, establishing practices and providing information and guidance for the bench on equal treatment for all those who come before the court.

It has been an online resource since 2018 and is available as a PDF on judiciary.uk and judiciaryni.uk. The editorial Committee is made up of 10-12 salaried judges who are appointed via a selection exercise. It is constantly updated but has a comprehensive review every three years. The new ETBB was published in July 2024 and has been significantly reduced in size making it more concise and accessible.

The ETBB goes hand in hand with a number of other judicial publications that include guidance on Judicial Conduct, Equality and Diversity and Expected Behaviours. Together, these are important aspects of any judicial holder’s role where good communication and demonstrating fairness are exercised on a daily basis. The judicial oath itself reflects these requirements perfectly – “I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.”

The ETBB is an invaluable reference source for all judges. It focuses on practical steps which judges can use to enable parties and witnesses to participate fully in the legal process and gives contextual details of people in different communities to guide judges’ communication and understanding of issues as they arise. It provides a good starting point or steer on adjustments but is not a definitive guide, as an individual’s needs may impact differently. Ultimately, it assists the judge to provide a level playing field for everyone who comes before our courts.

3. Guidance & Adjustments

The ETBB provides guidance across a wide range of circumstances some of which are set out below:

Litigants in Person (‘LiPs’) and Lay Representatives

The ETBB helps the judge identify the challenges (faced and caused) by LiPs and Lay Representatives before, during and after the litigation process. It contains practical suggestions for enabling LiPs to participate fully in the court process. This is important as every LiP is unique and will have different and varying levels of need, therefore, a discussion with the LiP will help determine what is the fairest, most appropriate and practical approach to enable as full a participation as possible in proceedings. One example is the use of a McKenzie Friend. The judge should inform the LiP that permission is needed to use a McKenzie Friend and that their role is limited to taking notes, quietly making suggestions or offering advice and guidance to the LiP. The judge should also determine if they are being paid or have a financial or personal interest vested or otherwise.

Disability, Children and Vulnerable People

The ETBB provides guidance on ensuring that all of these groups can participate fully in the proceedings. This is particularly helpful when there is no universal definition of disability or ‘vulnerable’ and is defined differently in various statutes and international instruments.

Irrespective of legal definition the key thing is to ensure reasonable adjustments, special measures or making of participation directions for individuals who have additional needs which might interfere with their ability to have a full and fair hearing.

It may also be necessary to make adjustments where welfare needs are identified. This could include: mental health problems and learning difficulties; brain injury or traumatic life experience (including exposure to drink and drugs); speech and language difficulties; vulnerability of children and young people to self harm, particularly within a custodial environment; and effect on children and young people of loss, neglect and abuse.

Special Measures, Participation Directions and other adjustments

The judge will decide on the most appropriate adjustments required for each particular circumstance, which can include:

- Adapt normal trial procedures to facilitate effective participation;

- Active case management such as short days & breaks;

- Timetabling to avoid delay if possible;

- Ground rules hearings [136] – [144];

- Reporting restrictions;

- Special measures such as screens, Live link, separate waiting area or intermediaries.

There are many more sections providing guidance including the following:

• Chapter 6 Sex – everything from employment and domestic violence to social media

• Chapter 7 Modern slavery

• Chapter 8 Racism, culture/ethnic differences, antisemitism & Islamophobia

• Chapter 9 Religion

• Chapter 10 Sexual Orientation

• Chapter 11 Social exclusion and poverty

• Appendix B Disability glossary

• Appendix C Naming systems

• Appendix D Glossary of religions

• Appendix E Remote hearings

The demographic of participation in court has expanded and changed greatly in recent years including many more litigants representing themselves – particularly in family and civil courts. As a result, the dynamics within court and tribunal hearings has been changing to adapt to the needs of all participants.

The foundation of a just and fair legal system is the principle of “equality of arms” with each participant having an equal opportunity to present their case and challenge the opposition. With the change in participant make-up there is a need to continually evaluate and evolve our understanding of how best that principle can be supported.

While great progress has been made over recent years there is still more that can be achieved. The ETBB provides the guidelines for that change and through periodic reviews and judicial training, this principle will remain at the core of what judicial office holders do on a daily basis.