On June 4, 2018, the Judiciary of Bermuda formally adopted an Equal Treatment Benchbook which is posted on the Judiciary website: www.gov.bm/department/judiciary. It is a practice guide for judicial officers the adoption of which was first publicaly foreshadowed at the Opening of the Legal Year Ceremony in January 2017.
Traditionally it was assumed that treating persons appearing in court equally simply meant that justice had to close its eyes to people’s differences. That principle is still valid in general terms today. Judicial officers must not be prejudiced against litigants or witnesses because of, for instance, their personal characteristics, be they race or religion, physical or mental disability, age, language or sexual orientation. However it is now recognised that judges managing cases must sometimes actually recognise the differences of persons appearing before the courts where a person’s unique characteristics make it difficult for them to participate on a level playing field in the Court process.
The Bench Book accordingly states under “Key Points”:
- People who have difficulty coping with the language, procedures or facilities of courts are equally entitled to fairness and justice.
- Those at a particular disadvantage may include people from minority ethnic communities, those from minority faith communities, individuals with disabilities (physical or mental), women, children, those whose sexual orientation is not heterosexual, and those who through poverty or any other reason are socially or economically excluded.
- Ensuring fairness and equality of opportunity may mean providing special or different treatment.
- Discrimination must not be permitted, whether direct or indirect. Recognising and curbing our prejudices is essential to prevent erroneous assumptions being made about the credibility of those with backgrounds different from our own.
The Bench Book goes on to provide judicial officers with tools to assist them in achieving the goal of equal treatment when handling cases involving persons whose ‘differences’ are likely to put them at a disadvantage. For example:
“The thoughtless comment, throw away remark, unwise joke, use of inappropriate terminology or even a facial expression may confirm or create an impression of prejudice, whether justified or not. It may also create or reinforce stereotypes or encourage discrimination by influencing the way people act or respond to others. It is important to be mindful about how your comments, actions or reactions might be interpreted by others. Parties may be very anxious and the issues being determined may be of the utmost importance to them. They are likely to be very sensitised in these circumstances.”
The Chief Justice stated that he was proud to announce the publication of the Equal Treatment Bench Book and its adoption by Bermuda’s Judiciary. It was intended to ensure that the courts were a ‘safe space’ in which persons whose special characteristics made participating in legal proceedings especially difficult would not hesitate to disclose their challenges so they could receive appropriate and empathetic judicial support. Although the Guidelines only formally applied to the context of court proceedings, judicial officers would obviously strive to adhere to the same demanding high standards out of court as well.
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