My long and lone struggle has been to convince the legal profession, Crown Prosecution Service and the courts in the UK that cultural, religious and ethnic characteristics of a person are as important and useful in legal considerations to deliver justice as one’s age, gender and occupation or social class.
In this first article I give some examples from my observations emphasising how cultural issues may affect the delivery of justice.
By and large there are three main cultures: Western, Eastern and Westernised Eastern. Of course, there are many subcultures.
Eye contact
Let us consider a common scenario in a court room, where the judge and majority of the jury, barristers and prosecution are white British. When giving evidence in court, a Western person – defendant or witness – would look the judge in the eye constantly and give a statement. He or she would look counsel in the eye and listen to the question, and then reply looking at the judge. The communication is likely to be successful; justice would be done and seen to be done.
An ethnic minority person from the Eastern culture, who may be a non-Westernised Asian, African or Chinese, or even the less-Westernised Easterner born in Britain, would usually make initial eye contact with the judge and then look down or away while making a statement or answering questions. They would do the same when listening to the question from counsel. They may look at counsel, off and on, and may not look at the judge at all, let alone look them in the eye. Obviously, the communication would be uneasy and unsuccessful, to say the least. It would probably affect the deliberations and the delivery of justice.
What is the cultural issue here? It is an innocent cultural misunderstanding. In the Western culture, a person is expected to look softly in the eye constantly during a conversation or when making a statement. If a person does not do that, they may be considered rude, shifty, lying, hiding truth and not trustworthy.
In the Eastern culture, looking someone in the eye constantly, during a conversation or statement, is very rude and insulting, particularly if the other person is of higher authority. It is a sign of respect to look away, after initial eye contact, when holding a conversation or shaking hands.
Unlike the Western mother, an Eastern mother would ask her children to look away when talking to their father as a sign of respect. An Easterner would look in the eye of the other person only when angry or asking for a date – in the case of opposite gender.
The $64,000 question is: has someone taught both parties about cultural understandings. Also, who should pay for it and whose responsibility is it if a miscarriage of justice is done under such misunderstandings?
Answering questions and never saying: “I do not know” Culturally, a Western person is taught in English schooling to answer the question, to remain focused, not to bring forward another unrelated issue, and not to be afraid to say: “I don’t know”.
In the Eastern culture one is brought up never to admit “I don’t know”. If one does not know, it is acceptable to make a guess or answer another but related question. The teachers would give grace marks for such answers, because the pupil has read the subject, even if he or she does not know the answer to this question.
Language barriers
Language barriers are now a well understood entity, however some interpreters may edit answers so as to assist the defendant or uphold the honour of a person, family, group, community or religion. Beware of the traps: interpreters need to be encouraged to interpret exactly what the person has said and no more.