‘Don’t shoot the messenger’ - Why do we need the interpreters for the non-English speaking defendants
in the dock?
by Dorota
Krogulewska, Polish interpreter for the UK Ministry of Justice
NOVEMBER 2018 LONDON
My interest in the English criminal
law and the issue of ‘fairness’ of the justice system started years ago with detective
fiction in Wilkie Collins's novels, himself a trained lawyer in Victorian era. Nowadays,
an immigrant myself, I work as an interpreter in the legal sector in London. I
am growing increasingly concerned with some negative comments from different
judges about the need for interpreters addressed to the non-English speaking
defendants in the dock. These openly hostile remarks are equally unpleasant to
the assisting interpreter, just doing their job as all the other professionals
present at the hearing, who has no way of voicing the frustration in such an
impossible situation. In the post Brexit vote courtroom, ‘the bad immigrant’ is hopeful for
justice, with the assistance of, by association, equally ‘bad interpreter’.
Firstly, just imagine how you would feel if you
could not fully explain your position in the court of law, which could cost you
all the liberties we take for granted. It is understandable
that in times of austerity the ‘bad immigrant’ facing the justice system with
the use of costly state funded interpreting services adds fuel to the
ever-present argument of the rights of citizens who were here first. It may seem that sense of justice
might call for depriving those newly arrived people of the opportunity to
escape justice; they got caught and are now facing the justice system, so they
have probably done it, or have they?
From
the legal point of view, ‘fairness’ of criminal proceedings, namely ‘ensuring
that suspected or accused persons have the knowledge of the case against them
and are able to exercise their right of defence’ is safeguarded by the right to
interpretation and translation, set out in Directive
2010/64/EU[i].
Where the inability to speak and understand English is established, the
interpreting and translation services are virtually essential at every stage of
the journey through the Criminal Justice System[ii] where interpreters assist
detainees, suspects, victims, witnesses and defendants in giving their best
evidence. In reality, the National
Statistic numbers regarding the use of interpreter and translation services in
criminal cases/courts in England and Wales[iii] in recent years indicate
that the volume (and therefore also the cost to the public) of this service is
significant.
It is a massive misunderstanding, however, when
the linguistic profession is blamed for milking the system, as the linguists
have no say in the actual cost to the public purse. The services are
currently provided through the agency
under the terms of the new contract effective from 31 October 2016.[iv]
Needless to say, the
interpreters have always strongly
opposed the outsourcing. They work in
the wild wild world of freelance, compete with one another for assignments, are
paid solely for the hours worked, and with no guarantee of any work coming in.
‘If you think it's expensive to hire a
professional to do the job …’
Discussing the evidence with a trained lawyer before entering a plea actually saves the court’s time and money, and the same applies to using a qualified court interpreter. The case runs smoothly as it is led by professionals, yet only if one actually understands them. In the courtroom, hours pass with simultaneous whispered interpreting of legal arguments, statements read aloud, and witnesses giving evidence. When the time comes, the accused give their own account of the events which need to be interpreted into English, and every nuance matters. For the immigrants facing the legal system, the issue is not just English but also things like the idea of the jury system, solicitors versus barristers, the magistrates, legal concepts like theft by finding, to name just a few. It is essential that the justice system is supported by the professional linguists, qualified and governed by their code of conduct, as the decision to use an inexperienced and far from impartial family and friends could lead to disastrous consequences in the end.
Discussing the evidence with a trained lawyer before entering a plea actually saves the court’s time and money, and the same applies to using a qualified court interpreter. The case runs smoothly as it is led by professionals, yet only if one actually understands them. In the courtroom, hours pass with simultaneous whispered interpreting of legal arguments, statements read aloud, and witnesses giving evidence. When the time comes, the accused give their own account of the events which need to be interpreted into English, and every nuance matters. For the immigrants facing the legal system, the issue is not just English but also things like the idea of the jury system, solicitors versus barristers, the magistrates, legal concepts like theft by finding, to name just a few. It is essential that the justice system is supported by the professional linguists, qualified and governed by their code of conduct, as the decision to use an inexperienced and far from impartial family and friends could lead to disastrous consequences in the end.
For example, apparently ‘cost
effective’ fee-charging McKenzie Friends offer their legal representation
services on the basis of their ‘right of audience’, to the non-native language
speakers who see them as lawyers, unaware that they are not regulated[v]
and their activities are not controlled. They also advertise ‘the summarizing
interpretation services’, where only essential information from the documents is
‘summarized’ to the paying customer. But the choice of what is relevant is
discretionary and what content is essential to the person summarizing could be
not quite what the litigant needed to understand to grasp the issue of their
case.
By way of illustration, at times
the Polish-speaking McKenzie Friend who acts both as a legal representative and ‘summarizing
interpreter’, may not give the full picture of the case, especially if their
client does not understand and follow the proceedings, for their financial
gain, giving perhaps false hopes or not disclosing full details until the fees
are paid. There are occasions that the people in court hear the facts of the
case and the evidence for the very first time when the qualified, impartial
interpreter conveys everything to them. This leads to the situation in the
courtroom where the non-lawyer is to represent the litigant with the summarized
idea of the case, hence I argue not fully following the process, with no code
of ethics or liability for misconduct, in the name of false economy of not
engaging the professionals.
Sadly, argument repeated by some of the judges
is that the immigrants should know English and not burden the system with
additional cost of interpretation services. The issue here is the idea that all
the immigrants should know English to the high, court standard to understand
legal advice, follow the legal process and meet the obligations imposed by the
court. And this is all by virtue of living and working here, in anticipation
that this day may come, and they would meet the expectation of the justice
system, even if the nature of their work was fruit picking or heavy labour.
However, some immigrants simply work and enjoy
their life without any dealings with the justice system, some break the law, or
fall victims of crime and turn to the authorities for help. It can be extremely
tricky to get to the bottom of the issues when there is a language barrier. Maybe
they can communicate in English but from my professional experience, going
through the justice system is, in most of cases, an overwhelming experience,
and legalese simply impossible to understand.
The situation isn't all doom and
gloom, in
spite of these recent concerning changes in the attitude to the role of interpreter
in the courtroom, there are still many instances when the profession is valued
and acknowledged as an essential part of the justice process. Furthermore, the
value of the unbiased professional interpreting in court is recognised in the
very fact that this service is provided for free within the criminal justice
system. It is perhaps a matter of better allocation of resources in a fair,
transparent way so that the interpretation could be in place and the cost to
the public minimized by in depth analysis of the actual, hardly justifiable
profit to the agency managing the contract.
All in all, we live in a multicultural country.
Fact. For the time being, having an interpreter in the court of law is a human right.
My aim is to make the general public understand that in the climate of
hostility towards the ‘bad migrant’, with the whole community encouraged to spy
on one another, people may not believe in authorities, and the rule of law in
the courts. After all, feeling that no one is interested in knowing the truth is
understandable if the accused has no trustworthy way of conveying it. Therefore perhaps that ‘bad interpreter’ in the
courts of law is actually doing some good to the rest of us, as miscarriage of justice knows no race, nationality, or settlement status and is always
equally unfair.
Note: Many thanks to Frances Webber of Institute of Race Relations
who inspired me to share my story with her talk ‘You Have No Rights! The
Creation of the Bad Immigrant’ at the conference on Hospitality, the Hostile
Environment, and the Law organised by London’s Birkbeck School of Law at
Cumberland Lodge in September 2018
[i]
Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the
right to interpretation and translation in criminal proceedings [online] https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:32010L0064
[Accessed:
12.10.2018]
[ii]
A guide to criminal court statistics.
Ministry of Justice. 2018. [online] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/743479/criminal-court-statistics-guide-sept-2018.pdf
[Accessed: 12.10.2018]
[iii]
National Statistics. Criminal court statistics quarterly: October to December
2016. The latest statistics on type and volume of cases received and processed
through the criminal court system of England and Wales for October to December
2016, including use of language interpreter and translation services
statistics. Use of language interpreter
and translation services in courts and tribunals statistics. [online] https://www.gov.uk/government/collections/statistics-on-the-use-of-language-services-in-courts-and-tribunals
[Accessed: 12.10.2018]
[iv]
Guide to language interpreter and translation
services in courts and tribunals. Ministry of Justice. 2018. [online] https://www.gov.uk/government/statistics/guide-to-language-interpreter-and-translation-services-statistics
[Accessed: 12.10.2018]
[v]
The Bar Council. 2017. June. New research shows paid McKenzie Friends operating
mostly outside the courtroom. [online] https://www.barcouncil.org.uk/media-centre/news-and-press-releases/2017/june/new-research-shows-paid-mckenzie-friends-operating-mostly-outside-the-courtroom/
[Accessed: 02.11.2018]
