For 2020, the third study commission, which focuses on criminal law, decided to study "communication in the criminal courtrooms". This topic should cover different aspects of communication including questions related to interpreters and the communication of judges with non-legally educated participants to the procedure. In order to facilitate discussion and to assist us in learning from colleagues, we ask that each country answer the following questions:
Interpretation in criminal courts
What criteria must be met for an interpreter to be appointed? Does this differ if it is for a party to the case, or a witness?
Scotland: The right to interpretation and translation, free of charge, at all stages of criminal proceedings, is enshrined in Article 6 of the European Convention of Human Rights and in particular Art 6(3)(e), which forms part of the law of Scotland. That right arises where a suspect or an accused cannot understand English or has particular language difficulties requiring the use for example of a lip-speaker or sign language interpreter. Directive 2010/64/EU, directly applicable in Scotland, facilitates the application of that right in practice. Responsibility for providing interpreters, where one is required for the accused in court, lies with the Court administration. Responsibility for the provision of interpreters for witnesses other than the accused rests with the party calling that witness. Thus, so far as witnesses for the prosecution service are concerned, it is the responsibility of the prosecution (the Crown) to arrange for an interpreter. That need will usually be identified by the police as part of its reporting to the prosecution. Equally, where an interpreter is required for a defence witness, responsibility for arranging that lies with the accused’s lawyer. The police service has the responsibility for obtaining interpretation services necessary for the interviewing of suspects.
England and Wales: In England and Wales it is the same, save that once the case is in court, the court will arrange the attendance of an interpreter for the Crown.
Is the interpretation limited to certain languages?
Scotland: No. Whatever the language, an interpreter must be obtained. Interpreters may sometimes be required to interpret other than by sole use of a spoken language; for example British Sign Language or lip-speaking.
England and Wales: Interpretation is to be available for all languages, but there is a practical difficulty in that for a small number of less common languages of dialects it can be difficult to obtain interpretation. In these circumstances, the court has to make the best arrangements it can.
Who appoints the interpreter?
Scotland: See answer 1 above.
England and Wales: See above
Are there standard requirements for the quality of the interpretation or qualifications of the interpreter?
Scotland: Yes. Interpreters appointed by the court administration use recognised interpreting services to ensure that a suitably qualified and experienced interpreter is used. The interpreter should normally have a Diploma in Public Service Interpreting or equivalent, with experience of consecutive and simultaneous interpreting in the Scottish criminal courts. Where, despite all best efforts having been made, an interpreter cannot be found with that degree of qualification and experience, an interpreter recommended by the interpreting service with lesser, but nonetheless adequate experience and qualifications may be used instead. All interpreters and translators instructed by the court must sign and abide by a code of conduct, which contains strict requirements as to competence; procedures, ethical and professional issues, confidentiality, and professional indemnity insurance. They must also hold a current Disclosure Scotland certificate to demonstrate an absence of a criminal record or other relevant police matters.
England and Wales: The same applies in England and Wales.
If so, how does the judge ensure compliance? In any event, how does the judge ensure that the interpretation is accurate and meets good standards?
Scotland: The court bears ultimate responsibility for ensuring that an accused receives a fair trial and that convention guarantees are met. In the first instance, that obligation may be met by the court being satisfied that the interpreter is provided by a recognised interpretation agency that provides only suitably qualified and experienced interpreters and translators for court work. All interpreters have to take the oath de fideli administratione immediately prior to commencing their work in court whereby they solemnly swear faithfully to discharge their duties to the court. Beyond that, the court’s ultimate responsibility requires the presiding judge to keep a continuous careful eye on the manner in which the interpreting is carried out and to take appropriate steps to investigate matters should it be apparent that the interpretation may not be being provided in an appropriate manner. That action may include questions to the interpreter about how his/her work is being done, adjournment of proceedings and even replacement of the interpreter, all depending on the circumstances.
England and Wales: It can be difficult to ensure standards as the judge is unlikely to be conversant with the language. A natural check can often be the defendant himself or herself as if they speak the same language as the witness they may complain the interpretation is not accurate, and in those circumstances the judge will have to make a decision about it.
Are there legal obligations for court interpreters?
Scotland: Yes. As noted above, they each require to have signed the code of conduct and to abide by it. The interpreter is warned in that document that breach of its terms and conditions may result in criminal or civil proceedings against them. In addition, the contracts between the court administration and the interpreting service as well as those between the interpreting service and the interpreter will contain legal obligations.
England and Wales: The same applies.
For the main hearing of the case is the translation for the whole hearing or only part of the hearing? If it is only part, which parts, and why is the whole hearing not translated?
Scotland: Where a translation service is required, it is provided at every stage of the legal process, from the stage of formal suspicion to the conclusion of the trial and any subsequent appeal proceedings.
England and Wales: It is assumed that translation will be for the whole hearing or the whole of a witness’s testimony, however where the translation is for the defendant, the judge will usually enquire whether the interpreter is required for the whole trial or simply for when the defendant gives evidence. In some cases, the defendant may have a good understanding of English, but may not be sufficiently confident when giving evidence to understand the nuances of language. This is a matter for the discretion of the judge. There may also be cases where interpretation is applied for but the udge refuses it if s/he considers the defendant capable of understanding the proceedings.
The importance of good interpretation and good communication for the verdict?
Assuming that the quality of interpretation could affect the outcome of a case: Do you consider this applies more in certain types of cases than others and, if so, what types of cases?
Scotland: Good quality interpretation is vital to ensuring an accused has a fair trial in all types of criminal cases where the accused or witnesses do not have an adequate command of the English language.
England and Wales: This is also the case in England and Wales.
Is it a problem that can be remedied, or a problem that the judiciary must live with? And if yes, how do we secure that no one is wrongfully convicted?
Scotland: As noted above, the judge is ultimately responsible for ensuring that the rights of the accused, including Article 6 rights to a fair trial, (which include rights to adequate interpreting and translation services), are afforded to the accused. If the quality of the interpreting services is inadequate, jeopardising the fairness of the process, the presiding judge has a duty to take steps to remedy the problem so as to provide the accused with a fair trial and avoid a wrongful conviction. A convicted person may appeal to a superior court and such an appeal could found on alleged inadequate interpretation services.
England and Wales: This is also the case in England and Wales.
Is there a risk that people who have difficulty explaining themselves, possibly due to low intelligence or poor education, suffer disadvantages at the court? If yes, what remedies exist?
Scotland: Yes. Important safeguards exist. There are many reasons why an accused or witness may have difficulty in expressing themselves fully in a criminal process. So far as accused persons are concerned, legal aid provided by the state is very widely available, which enables the provision of legal services, including court representation, by qualified lawyers at low cost or free of charge. If a witness (or the accused) is to give evidence and is assessed as being vulnerable, special measures may be put in place. The definition of a vulnerable witness includes those under 18, those where there is a significant risk that the quality of their evidence will be diminished by reason of mental disorder or fear and distress, and those where there is considered to be a significant risk or harm by reason only of the giving of evidence. The special measures include taking of evidence by a commissioner in a process separate from the main trial (evidence on commission), giving evidence by CCTV, being accompanied into court by a (non-participating) supporter while giving evidence, screening the witness from the accused while giving evidence and the giving of evidence by means of a prior statement. In the case of children, a variety of other measures are usually put in place to help the child adapt to the criminal process. These measures include court familiarisation visits, special assistance from the witness service, removal of wigs and gowns, clearing the court and so on. Where an accused has a mental disorder and communication difficulties, an appropriate adult may be appointed. That role is separate from that of a supporter. The judge may authorise a number of steps to be taken in that connection to ensure that the accused can participate effectively in his trial. Those steps may include the appropriate adult sitting close by the accused explaining what is happening. The appropriate adult can liaise with the defence lawyer concerning difficulties faced by the adult which lawyer may choose to bring that to the attention of the presiding judge for appropriate action to be taken. If such an accused adult elects to give evidence, the appropriate adult plays no active role while the adult is giving evidence. The judge has the responsibility for ensuring that the adult understands the questions. The police service has the responsibility of ensuring that where a child, or an adult with a mental disorder or other vulnerability, is to be interviewed as a suspect, an appropriate adult is present before and during the interview process.
England and Wales: England and Wales have similar provisions.
Is intercultural communication a subject of training for judges or part of the instruction of juries?
Scotland: All judges receive training in equal treatment. The Judicial Institute for Scotland publishes and updates regularly the Equal Treatment Benchbook which is available online for all judges. That training and the Benchbook emphasise the duty on judges to treat all that come before them in a sensitive fashion regardless of their personal backgrounds. The Benchbook gives detailed guidance to judges in relation to a variety of aspects of equal treatment, including intercultural communication. From time to time the Judicial Institute has provided for judges training courses on the use of foreign language interpreters and also in respect of British Sign Language interpreters. The Director of the Judicial Institute is a member of the Scottish Government’s British Sign Language Justice Advisory Group.
England and Wales: The approach in England and Wales is similar.
Nonverbal communication in the courtroom
Can the body language of accused persons, victims, or witnesses influence the outcome of a case?
Scotland: The standard direction to juries tells them that it is their task to assess the witnesses’ credibility and reliability by taking account of the content of their evidence, their body language in giving it, comparing their evidence with other evidence in the case and so on. That approach applies also where a single judge is the fact-finder in less serious cases. Therefore, assessment of a witnesses’ body language is one factor that a fact finder may take into account, if it wishes, in deciding the case. But it is not obligatory for the factfinder to do so and the body language and demeanour of a witness can only be one factor among many for the fact finder to consider. Most judges would consider that it is the content of the evidence of a witness, in the context of the other evidence in the case, that would be of predominant importance.
England and Wales: Yes, body language or other non-verbal communication can be influential and therefore there are directions given in appropriate cases to juries about such behaviour. It is all case-specific.
Is nonverbal communication a subject of training for judges or part of the instruction of juries?
Scotland: At induction training for newly appointed sheriffs and summary sheriffs there is a specific module designed to encourage the new judges to consider the extent to which they might give weight to the “demeanour” of a witness when giving evidence. The issue arises also in respect of training around the issue of vulnerable witnesses, where the use of special measures such as TV links might run the risk of masking the demeanour of a witness. It is also discussed at training when considering the issue of witnesses or accused giving evidence while wearing a veil, not that this is a common occurrence. The matter of demeanour is also generally considered at training when reflecting generally on the experience of giving evidence, especially where there are inter-cultural issues or where the witness concerned is the complainer in respect of domestic abuse or sexual crime. The trauma of giving evidence may impact on the normal demeanour of the witness such that, to focus excessively on the demeanour of the witness in assessing credibility and reliability may not be useful. It is also well recognised in trauma-centred thinking that the trauma of abuse may well have an impact on how a victim presents when giving evidence. This issue is extensively addressed at training.
England and Wales: Yes it is not only the subject of training but it is also covered in a Benchbook available to all Judges in every jurisdiction, and judges will give juries case-specific directions.
Sheriff Derek O’Carroll: March 2020
HHJ Sally Cahill QC: 6 April 2020