Many witnesses or defendants are likely to be challenged by the language used in justice contexts such as court trials, Family Group Conferences or police interviews. Some people may find it particularly difficult to understand what is being said and participate due to their age or because they have difficulties with language or learning.

Speech-language therapists from TTANZ have carried out Court-appointed Communication Assistance roles for both witnesses and defendants in New Zealand. This has involved children, adolescents and adults across High Court, District Court and Youth Court settings. We have also assisted with the communication involved in Family Group Conferences, in Forensic Health assessments, probation assessments, and in a tribunal.

TTANZ’s Court-appointed Communication Assistant service

Our Communication Assistant service involves one of our expert speech-language therapists being appointed by the Court to carry out a specialised assessment of the speech, language and communication skills of the person with a particular focus on how they are likely to manage the communication demands posed by a court context, for example instructing lawyers, cross-examination, and listening to, understanding and giving evidence. Our assessment also explores what enables them to communicate as easily as possible, trialing strategies such as modifying language, using visual supports, and organising information visually. A report detailing bespoke recommendations is then sent to the Court for consideration. We may then be appointed as an Officer of the Court to act in a neutral, impartial role to assist everybody to communicate with the person in court proceedings.

The Talking Trouble Aotearoa NZ team is part of a working party chaired by a Judge that explores how best to develop these Communication Assistant roles in New Zealand courts. Development of New Zealand protocols, processes, and codes of ethics and conduct is under way and we are exploring how to develop a system of training and support for SLTs undertaking this challenging work. We are also involved in a working party exploring the fitness to plea/fitness to stand trial process in a New Zealand Youth Court, which involves exploring how Court-appointed Communication Assistants are being utilised.

Please contact us if you are looking for this sort of specialised support from a speech-language therapist in Court or other legal contexts. Information about our TTANZ Court-appointed Communication Assistant process can be downloaded, together with a TTANZ Court Communication Assistance referral form.

We also would like to hear from New Zealand SLTs who have provided this type of communication assistance for a victim, witness or defendant.

Why is Communication Assistance needed?

Talking Trouble’s work is about the language and communication involved in justice settings. The legal system only works when all the participants can understand each other and communicate effectively. For some people involved, the language just doesn’t make sense. Participating effectively in legal processes is challenging for many because of the complexity of the language typically used in legal settings, and also because many involved have complex speech, language and communication needs which often go undetected and unaddressed. When these needs are not identified and managed with effective strategies, unintended consequences can follow. Communication breakdowns can be disempowering, confusing, and can diminish the mana of those involved, but at the very worst, unaddressed communication issues can lead to miscarriages of justice. Bringing these issues into the light and developing practical solutions that are fit for the Aotearoa context has been the focus of Talking Trouble’s activities.

Language and communication issues are commonly experienced by those involved in justice processes and hide in ‘plain sight’ in our courtrooms. Many lay people, even with a high level of education, can struggle to make sense of legal interactions, but many of the people our team work with have struggled with language, literacy and learning for a wide range of reasons. Such difficulties often go under the radar and professionals communicating with a person may be unaware that their communication has not been received as intended. Most people are unlikely to say if they don’t understand – they might say ‘yes’ or ‘no’ and hope for the best, or they may struggle to put their ideas into words and convey their thoughts coherently and completely. Others might be viewed as uncooperative, uninterested or perhaps unremorseful. They might be all those things, but once a careful look is taken at the potential mismatch between the linguistic skills required and the linguistic skills of the individual concerned, it is common for difficulties with language and communication to be contributing to how a person participates. Difficulties with language and communication often occur alongside other learning and mental wellbeing challenges.

How much of a problem is communication in legal contexts?

Oral communication difficulties have been identified in over 60% of young people in the criminal justice system in Australia and the UK (Bryan, Freer, and Furlong, 2007). Recent research (Lount, Purdy and Hand, 2017) from New Zealand also established that 64% of the young people assessed in a youth justice residence context had significant language impairment compared with only 10% of control peers.

Research has been conducted by the Talking Trouble team for Kingslea School about the communication profiles of their students who attend a school within a youth justice facility in Aoteraoa. The findings of our report are in line with other international studies and another NZ study (Lount et al. 2017). Young people told us themselves that language and communication can often be very difficult, especially in legal settings. As a group, they also found the language tasks we did with them much more difficult than other young people of the same age who are not involved in youth justice. Communication and language difficulties were highly over-represented in this group of rangatahi. On formal language tests, this group achieved scores that suggested that 81% could be described as having a language impairment, and 48% of our group could be described as having a moderate to severe language impairment.

Less research has been conducted with adults, but similar issues have found for adult defendants in the justice system. Children who have involvement with care and protection processes have also been found to be at higher risk of having difficulties with speech, language and communication development (e.g. Snow, McLean and Frederico’s 2020 publication which explored this topic for Australian children in ‘out of home care’ ).

What can be impacted by these speech, language and communication needs?

Speech, language and communication needs pose problems for the person concerned and their whānau, but also impact on professionals working with them. Both sides can have problems with communication. Many of us with excellent vocabularies and comprehension skills can be challenged by the language used in legal situations.

People may misunderstand what is said by police, lawyers, justice staff, Oranga Tamariki staff, and many others. These adults may believe that people can understand easily and therefore adopt a communication style which is too complex. It can also be difficult for people to clearly explain what they mean. This is often judged to be a reluctance, obstructive or unmotivated behaviour, or a lack of intelligence. People may not be aware of their own communication problems, or may be aware but cover them up. These difficulties with communication may go undetected and are often not obvious to either side.

Poor communication skills impact hugely on people’s involvement in the justice system. Complainants, defendants, witnesses’ communication needs must be recognised and addressed with effective strategies and resources, and these are the issues that Talking Trouble has been addressing. Justice interactions can result in unintended outcomes if those concerned cannot communication effectively with one another. For example, consequences can include:

Poor interactions with the police and other community services resulting in arrest.

Inability to give a good account of themselves resulting in a charge.

Poor understanding of legal processes and instructions, e.g. appointment requirements, court orders, remand and probation agreements.

Poor interactions with justice staff and the inability to benefit from intervention programs as most of these involve talking.

Bail conditions might be breached if the person cannot comprehend expectations or read the information provided.

People may state agreement (or disagreement) with a proposition without fully understanding what has been said when being questioned.

A person may misunderstand what point they are at in a complex legal process or what options they need to consider. They may need information presented in different ways and their understanding clarified.

Poor engagement in restorative practices such as Family Group Conferences.

Two hot topics for those engaged in Aotearoa’s legal systems in 2021 are creating accessible justice processes and the intersection of neurodisability with the justice sector. These issues relate directly to the programme of work that the Talking Trouble team has developed. The current roll-out of the Te Ao Marama approach in the courts aims to enable more accessible justice for all those coming through the court’s doors. Recent legislation such as the changes to the Oranga Tamariki Act place a high emphasis on interactions taking place in a ‘manner and language’ that tamariki and rangitahi can understand, and those who need assistance are required to have support to understand and give their views. Other parts of the justice sector are also actively considering how to enable those who engage in their services to fully have a say and participate, and to address the high levels of disadvantage and disability experienced by many. These approaches require the development of new knowledge and a change in the level of communication expertise for the professionals concerned.

Sometimes defendants, complainants and witnesses have a hard time communicating with detail and specificity about the matters that professionals need to talk with them about. Timeframes can be particularly difficult to explain clearly. Communication assistants identify the most useful strategies for that participant and suggest how to implement them.

The Communication Assistance Application Form (in court) is used to request communication assistance in a court or tribunal in New Zealand. This form can be used by court or tribunal officials, defence lawyers, officers in charge, crown counsel, or participants themselves. The completed form should be sent to the registrar in the relevant court or tribunal, requesting that communication assistance be considered for the participant named. This form is used for all participants who require communication assistance, including children, youth and adults, across all jurisdictions (Criminal Courts, Family Court, Civil Courts, Tribunals). This assistance is funded by Ministry of Justice but must first be directed by the person in charge of the court or tribunal, for example, the Judge.

All the talk at Family Group Conferences can be difficult for young people and even adults to participate in. Our speech-language therapists can provide specialised communication assistance to make it easier for young people and adults to participate fully, understand what is discussed, and share their views. We carry out specialised assessments that consider the person’s communication needs and then provide recommendations for practical strategies that all the professionals can use to maximise effective communication in the FGC context.

We provide services in many parts of New Zealand. We have a team of speech-language therapists who have expertise in working with children, youth and adults with a variety of different communication needs.

Click here if you want to refer a young person or adult to download the Communication assistance FGC Referral Form June 2023

Benchmark – a New Zealand website resource for legal professionals, including guidelines on Communication Assistants and on Questioning Children

Joyce Plotnikoff and Richard Woolfson’s 2015 book ‘Intermediaries in the criminal justice system: Improving communication for vulnerable witnesses and defendants.’ We could not recommend this book more highly. It explores the development of the UK intermediary service and is highly practical and informative.

Paula Backen’s 2017 book, They Just Don’t Get It: Communication and the Work of an Intermediary with Vulnerable People in the Justice System.

The Advocates’ Gateway website which is a UK resource developed for legal professionals which provides a wide range of practical toolkits.

Intermediaries For Justice (IFJ) is an organisiation of communication specialists such as Communication Assistants and Intermediaries

Our chapter titled, ‘Oral language and communication factors to consider when supporting people with FASD involved in the legal system’ in the book, ‘Fetal Alcohol Spectrum Disorders in Adults: Ethical and Legal Perspectives: An overview on FASD for professionals. Editors: Nelson, Monty, Trussler, Marguerite (Eds.). Published by Springer.