Deafness and the justice system

Any form of hearing loss impacts one in six of the population in the United Kingdom. There are four categories; mild, moderate, severe and profound. 900,000 people are estimated to be severely or profoundly deaf. Individuals who are hard of hearing generally have hearing loss ranging from mild to severe and can benefit from an auditory device, such as a hearing aid or a cochlear implant, and the term ‘deaf’ refers to profound hearing loss, implying little or no functional hearing. Different terminologies are used to inform when the hearing loss occurred; ‘prelingual’ suggests hearing loss acquired prior to the development of language, ‘congenital’ represents hearing loss present at birth and can be caused by genetic or non-genetic factors, and ‘postlingual’ means hearing loss that is acquired after the acquisition of speech and language, usually after the age of six years. The individual’s level of hearing loss, including when they acquired their hearing loss, will impact on their ability to participate in legal proceedings, whether criminal, family or civil.

The term deafness can be used as a blanket term to encompass the varying degrees and types of deafness. Many individuals who are prelingually deaf hold the view that they are not disabled but are members of a cultural and linguistic minority. Acquiring deafness later in life may mean the individual does not associate themselves with the deaf community, as they have previously integrated into the hearing community.

Deaf people use a variety of methods of communication, including Sign Supported English (SSE), lip-reading, pen and paper, and light-writers to name a few. In the UK, British Sign Language (BSL) is the most common form of communication amongst the deaf community and was formerly recognised as a language in 2003. It might be assumed that they can understand written language, or engaging them in proceedings is as simple as translating the information from English to BSL, but this would be inaccurate.

For deaf people in a largely hearing world, social support is less prevalent. Approximately 96% of deaf children are born to hearing families and most will be the only deaf family member. Being the only deaf member of the family means there is often no shared language causing a communication barrier and difficult family relations. With no language, and difficult family relations, it is likely the deaf person will experience attachment related difficulties and social isolation. Other potential areas of difficulty include emotional management, coping skills, and problem-solving abilities due to their development stemming from learned strategies in childhood.

Ineffective communication between the parent and deaf child impacts on the parent’s capacity to engage in effective and adequate boundaries and punishment which will have an effect on the child’s ability to internalise appropriate and inappropriate behaviours increasing their vulnerability to abuse victimisation and perpetration. Research has identified that deaf people are at a much greater risk of experiencing abuse compared to their hearing counterparts, across all forms of abuse. These are important factors to explore within family proceedings.

For those children who are not party to stimulating and challenging language environments, with others who can demonstrate such features as abstract thought, negotiation and emotional awareness, are at greater risk of a number of preventable cognitive deficits (e.g. Theory of Mind, Executive Functioning) (O’Rourke, Austen & Wakeland, in press). Young, Monteiro and Ridgeway (2000) have suggested that these experiences may impact on a deaf person’s moral reasoning and consequential thinking, increasing their likelihood of engaging in criminal behaviour.

True prevalence of ‘deaf crime’ is unavailable due to a variety of reasons, outlined in O’ Rourke, Austen and Wakeland. What is agreed upon are the multiple barriers deaf people face when they encounter the criminal justice system (CJS). Wakeland, Rose and Austen (2019) highlight a multitude of complex factors that are interwoven when a deaf offender with mental health difficulties encounters the CJS. This includes communication issues (e.g. lack of interpreters, inappropriate use of relatives/ perpetrators), lack of appropriate resources, the professionals’ perceptions and knowledge of deafness, and the type/severity of offence. Other difficulties include false assumptions regarding their communicative ability, misunderstanding their needs, or their behaviour being mistaken for aggressive or sexual acts.

When it comes to best practice for working with deaf people, more than just an interpreter is required. There are additional difficulties, such as translation issues, English literacy problems, and the acquiescence effect to consider. Without this knowledge, the deaf person’s ability to fully participate within the system can be hindered. For example, McCulloch (2012) discovered that deaf prisoners cannot access areas of the prison regime including education, work, and offender programs, and Kelly’s (2018) research highlighted that prisons in the UK were violating their legal duty imposed by the Equality Act (2010).

Deaf people have historically been assumed to lack capacity or be unfit to plead due to their English language abilities. Deaf people’s communication and language abilities vary considerably, depending on their access to some form of language in childhood and adolescence. Many do not acquire a structured language until they attend school. An assessment of their abilities is required to understand what the best support would be for each individual. For example, the addition of an interpreter may aid someone with fluent BSL language skills, but other individuals may require a relay interpreter. Language within legal proceedings is extremely sophisticated, if the deaf person has difficulties with abstract language this makes many of the most common aspects of court functioning prove impossible to navigate. A multi-disciplinary approach to working with deaf individuals, including specialist interpreters, alongside relay interpreters, deaf professionals and deaf advocates is best practice in order to identify the individuals’ additional needs.

There are a number of guidelines created to help professionals work with deaf people. There are legislation relating to equality and discrimination, and police guidelines (Police and Criminal Evidence Act, 1984). These illustrate best practice when working with an individual with a disability, including deafness. The Advocates Gateway has published clear guidance on adaptations and things to consider when working with a deaf person. It is recommended that the deaf client is asked as to the most appropriate resources they require so as to assist their involvement in proceedings, or specialist advice is sought. This may include hearing loops, assistive devices, or a communication service.

It is important to select the right expert with specialist experience and awareness of deafness. These experts should be proficient in the use of sign language, have experience of working with interpreters, and have specialist knowledge as to the development of deaf individuals and their potential additional needs (e.g. mental health, physical health or communication needs).

Dr Elizabeth Wakeland is a forensic and clinical psychologist providing assessments for criminal and family proceedings