Accommodating persons with severe communication disabilities in court : development and appraisal of guidelines

Abstract

Persons with severe communication disabilities often face violations of their basic human rights, such as exclusion from the justice system. Accessing the justice system – whether as a witness, defendant or legal practitioner with a severe communication disability – is extremely challenging. These individuals also face intersectional discrimination based on several interacting personal characteristics (for example, being a woman with a severe communication disability), which exacerbates the challenges they experience when needing to access the justice system. One significant barrier in this regard is the lack of court accommodations that are (or should be) made available to them. Not only is this an obstacle for the primary stakeholder group, but secondary stakeholders (e.g., attorneys, judges, magistrates and other legal practitioners) are often unaware of these accommodations. To rectify this problem, a human rights framework incorporating procedural justice principles (having a voice; being treated with respect; using neutral criteria for decision making; understanding the court language) was used, together with a three-phase mixed methods social justice research design (using a sequential exploratory design). The study included 78 participants (many with disabilities themselves) and aimed to develop and appraise guidelines for court accommodations. These should be provided to persons with severe communication disabilities to allow their equal participation in the court system and achieve access to justice, irrespective of their role or country of jurisdiction. Phase 1, the Qualitative Engagement Phase, aimed to identify existing court accommodations and entailed a legal scoping review of the extant literature, focus group sessions with South African and international experts, as well as online interviews with legal practitioners with disabilities. Thereafter, the qualitative findings from Phase 1 were triangulated and integrated with those of Phase 2, the Quantitative Feature Phase, and court accommodation guidelines were developed (using procedural justice principles). Finally, in Phase 3, the Quantitative Test Phase, 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 as very good and excellent which the legal experts would recommend (some with modifications), and the guidelines were deemed to be a trustworthy resource to be implemented in the court system. The study concluded by suggesting that future research could focus on customising the court accommodation guidelines per specific stakeholder group (e.g., primary stakeholders (witness, defendant) and secondary stakeholders (judge, attorney)) and per country’s jurisdictions.