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Law - Judicial Advice

May 13, 2004 Times online:

Judges told to watch their language in changed society
By Frances Gibb, Legal Editor

JUDGES must avoid using phrases such as “asylum-seekers” or “second-generation immigrants” under new guidelines designed to prevent them from making embarrassing courtroom gaffes.
Under the guidance, issued yesterday by the Lord Chief Justice, judges will be reminded about the problems of the socially excluded who are not, they are told, “a homogenous ‘underclass’ with a wholly alternative set of norms, values and behaviours from those of mainstream society”.

They are also cautioned that although women and girls comprise more than half the population, they remain “disadvantaged in many areas of life”.
The guidance is the most far-reaching yet in its efforts to keep judges on-message with changing social mores. It is contained in an updated Equal Treatment Bench Book; the 1in-thick book of advice is to be issued to every new judge on appointment.
As well as equal treatment and social disadvantage, it covers minority ethnic issues, religion, children, disability and sexual orientation.
Lord Woolf, Britain’s most senior judge, said: “While we must treat people equally, of course we are all different and that is part of the rub. Another part of the difficulty is the fact that not only must justice be done, it must be seen to be done, and therefore although judges are in fact acting and behaving fairly, if they don’t appear to be acting fairly that is just not good enough.”
Lord Justice Keene, chairman of the Judicial Studies Board, which has published the book, said the new version included a section on religion and more emphasis on poverty and social exclusion.
“No one needs telling about the increased importance of religion in the world we live,” he said. More attention was being paid to ensure that judges understood about poverty and social exclusion and “appreciated the difficulties of people from deprived backgrounds”.
The guide advises judges not to overlook the use — unconscious or otherwise — of gender-based, racist or “homophobic” stereotyping as an “evidential short cut”.
They should should avoid terms such as “mental handicap” and “the disabled”, using instead “learning disabilities” and “people with disabilities”.
Descriptions such as black or disabled are adjectives and should always be used as such, as in “black person” or “disabled person”, they are told.
“However committed a judge may be to fairness and equality, they may still give the opposite impression by using inappropriate, dated or offensive language.”
British: must be used in an inclusive sense; avoid as synonym for white, English or Christian.
Refugee/asylum-seekers: now associated with people with no genuine claim and is “almost pejorative” Second/third-generation immigrants: “likely to cause offence”
Black, disabled: say “black person, disabled person” Coloured: “an offensive term that should never be used” Mixed race: “slightly pejorative”
Don’t: make assumptions; project cultural stereotypes; assume Aids and HIV-positive status indicate homosexuality.
Do: remember everyone has prejudices, “guard against your own”.

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