I don’t usually write about my own cases, because I have never been a big believer in blowing my own trumpet. In addition to that, this blog is supposed to be about the Bribery Act, although with the caveat in the “About” section (which nobody reads) that I may wander off at a tangent from time to time. Well this is that time.
We rightly take pride in our judicial system which, despite occasional flaws, usually comes up trumps when compared with those in pretty much any other jurisdiction.
Part of that necessarily has to include the manner in which we dispense justice to those who are visitors to this country, and are accused of crime in our courts.
In exactly the same way as I would expect, or at least hope, to be able to understand and participate in proceedings abroad if I were unlucky enough to be arrested in foreign climes, anyone in the dock of an English Court is entitled to expect the same. And not just in court either. The legal process for a non-English speaker is very likely to begin long before the swearing in of a jury.
Thus it was, when the client in question drove his lorry off the Channel Ferry into the welcoming arms of UKBA, who expressed a very healthy interest in the “anomaly” within his load, revealed by their detection facilities (see below), linguistic assistance was required.
True, he spoke a little English. That is the way of an international lorry driver. They need to eat and buy necessities, so they have a smattering of the language as often as not. Same goes for UK drivers travelling abroad.
However, merely because they won’t starve in a Burger King, does not mean they are bilingual.
In fairness to UKBA, I have yet to come across a case where an arrested person who asks for one, is not afforded the services of an interpreter, but therein lies the rub. What sort of an interpreter are they likely to get.
This is not yet another attempt to hurl vitriolic abuse at Applied Language Solutions. (although I did find the word “Solutions” a little difficult to type having set my keyboard to non-ironic mode.)
What follows began some time ago, in the days before the MoJ put interpreting up for sale to Delboy with a Dictionary.
The warning signs should have been there for Interviewing officers as well as the Duty Solicitor. Answer after answer came back, “He says, He did, He went. Etc etc. This was not a simultaneous verbatim translation in the first person, it was quite clearly a third person précis of what was actually being said.
Two problems arise here. It’s not just the defendant’s answers that are being improperly interpreted. Who has got the faintest idea of how the questions are being interpreted to him?
Thus it was that the interviewing officer, quite reasonably thought that the defendant was being evasive and changing his story, and proceeded to say so under cross-examination in the witness box.
The fault lay in the fact that the defendant had told the officer he had done something on a particular day, but the interpreter on each of half a dozen different occasions, omitted to translate which day it was. The officer genuinely believed it was a different day. When you are dealing with a tachograph case, this is of course, vital.
Problem was that although it was clear that the interpreter had not been doing a perfect job, it being a minority language that not many were familiar with, no-one could have realised just how badly she was getting it wrong in both directions.
Fortunately it became so obvious in the course of that officer’s evidence that something was wrong, the judge was asked for an adjournment overnight so that the court interpreter could help check what was actually on the tape.
Prosecuting counsel wisely decided to arrange for the interview interpreter to attend court the next morning.
On the morrow, armed with a large number of errors deciphered the night before, I invited the prosecution to have their “expert” listen to the tape again, and see if she agreed her own translation.
Within five minutes there was a knock on my conference room door from prosecuting counsel. “I’m very sorry, we agree that there are significant errors. We have to ask for the jury to be discharged so this can all be done again.”
Fortunately for him, the defendant was on bail. He could be allowed to return to his home in Eastern Europe, while this was done.
Eventually, we were able to agree a revised version which went before the jury, in which it was clear that on all the matters criticised by the interviewing officer, the defendant had in fact been telling the truth, but the interpreter had failed to interpret the answers.
We were lucky that the court appointed interpreter, (NRPSI accredited) was not only able to do the job properly, but also happy to put in a lot of extra hours at very short notice, in order to provide the necessary guidance, without which we would never have been any the wiser.
All this took place before ALS arrived on the scene. However the retrial could not be listed until after the new arrangements were in place. By a minor miracle, and I know not how because she has not accepted the Capita shilling, the same court interpreter was instructed to interpret for the trial, at which the defendant was acquitted by the jury, but not before yet another misinterpretation, this time of a text message, had been corrected by her sharp eye, with the immediate agreement of the prosecution “expert.” (A different one.)
Not only should this never happen, as a matter of common sense, it should not happen as a matter of law either.
I do not know why this has happened, though I suspect yet again it is down to money, but there is a very simple answer. It lies in the judgement of Gorman J. In the case of R –v-Attard, 43 Cr.App.R. p 90. (Nerd Reference, Archbold 8-193) Although this was a trial at first instance at the Central Criminal Court, it is of persuasive authority on Crown Court Judges, and should be followed.
It says simply this.”When a defendant is interviewed by police through an interpreter, only the interpreter can give evidence of the questions which he put to the defendant on behalf of the police, and of the answers given to him by the defendant.” (my italics).
What that always used to mean is that the ROTI’s (interview transcripts) were produced as exhibits by the interpreter who conducted the interviews, having checked them for accuracy first. That of course costs money.
What happens now is that tape is sent to an audio typist who prepares a transcript of what he or she can hear in English. That is then produced as an exhibit by the interviewing officer, who can only check the English, NOT the interpretation.
So there are two alternatives. Either the defence solicitors have to apply to the Legal Services Commission, in every case for authority to submit the transcript to an interpreter for checking, (i.e. so they can get paid), or the job should be done properly, and the transcript, and interpretation should be checked by the original interpreter, who has a second chance, without pressure, to listen to what was said and ensure accuracy.
I am not going to get into a spat about the competence or lack of it, of those who are contracted to provide interpretation services at police stations or UKBA posts.
If the case of Attard is good law, and to my knowledge it has never been challenged, then every interpreted interview should be subject to a review by the original interpreter, and exhibited in that interpreter’s witness statement, before it can be placed before a court.
Half-arsed suggestions that all this can be circumvented by a Hearsay Application, will not do. Yes, it is hearsay, but you can choose any number of reasons from Section 114 (2) of the Criminal Justice Act 2003, as to why it should not be admitted.
So, next time you as a solicitor or counsel are sent a brief for a client with an interpreted interview, produced by the interviewing officer, do not forget to include on the Case Management form that you object to the admissibility of the defendant’s interview in the absence of any statement from the interpreter producing it. Simples!
And then duck!
Watch this space.