26 July 2024
New judicial Bench Book gives guidance to ensure courts and tribunals are fair for all, including migrants and asylum seekers
Judicial College publishes updated Equal Treatment Bench Book to inform, assist and guide judges on principles of fair treatment and equality
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Interpreters
Is an interpreter necessary?
80. Although judges are not involved in making arrangements for interpreters, it is important that they are fully aware of potential difficulties experienced by witnesses who may have only a limited ability to speak and understand English, and the interpretation facilities available and the arrangements for securing them.
81. When giving evidence, people for whom English is not a first language may not always fully understand what they are being asked. It is one thing to know the basics of a language and to be able to communicate when shopping or working. It is quite another matter having to appear in court, understand questions, and give evidence. It should also be remembered that many ethnic minority people prefer to speak their first language at home. Similarly, Welsh speakers may be relatively fluent in English but still feel more comfortable speaking Welsh, eg in relation to legal or technical terms. [415] Judges should therefore be alert to different language needs, and should not assume, simply because a witness has lived in the UK for many years, that they do not require an interpreter.
82. Situations may arise where the judge has to take a proactive role and make some effort to clarify and resolve the extent of any language difficulty faced by a witness. It is part of the judge's function to check everyone understands each other so as to ensure a fair hearing. If a judge hearing a case considers that an interpreter is required, an adjournment should be granted for that purpose.
83. It can happen that an interpreter was not arranged in advance or that an interpreter, who has been booked, does not arrive. It may be tempting for everyone involved to continue without an interpreter in that situation if the party or witness says they can manage in English. Judges should exercise caution about accepting such reassurances. Ultimately, it is the judge's responsibility to ensure that there is a fair hearing.
84. Sometimes a party or witness has asked for an interpreter, but in practice communicates in English during the hearing. This does not mean the interpreter was not needed. The witness may be anxious to communicate directly as far as possible, but have an interpreter present to assist when understanding breaks down. Some people also "code switch" as they talk, switching unconsciously between languages as they search for the most natural way to express themselves for the point they are making. They should not be stopped from doing this.
Interpretation and cultural difference
85. Judges need to ensure that where there is an interpreter, there is no reduction in a party or witness's participation in the hearing, willingness to speak, understanding of questions and overall ability to put his or her case.
86. Practice regarding how to book interpreters varies across different courts and tribunals. Judges should be familiar with the rules in their own jurisdiction. For the right to a Welsh interpreter, the special booking system and particular considerations, see "The right to speak Welsh".
87. In hearings which involve parties or witnesses who speak little or no English, judges need to be skilful in clarifying meaning between cultures, adjusting their own mode of talk as necessary to ensure that the chances of accurate interpretation are maximised.
88. An interpreter has a difficult job. Languages do not operate in ways which identically match each other. They can differ in grammatical structure, vocabulary, the meaning of certain abstract concepts, and in how much is directly spoken as opposed to understood between the lines. The interpreter's job is to transfer as near as possible the meaning of what is said by each side, not merely to translate words and phrases literally, which can create a false impression.
89. English, like all other languages, is not a "neutral", culture-free language: it is freighted with embedded cultural assumptions. It is important to read this section together with the section on "Communicating interculturally" in this chapter.
Practical arrangements in court
90. Where applicable, ensure that the interpreter speaks the correct dialect of the language in question and that the witness and interpreter can communicate properly. It may be tempting when an interpreter arrives with the wrong dialect to ask whether the witness can manage anyway. A witness may feel under pressure to agree when in fact there could be a considerable loss of understanding. Check at the beginning and at the end of evidence that the party has understood the interpreter.
91. Plan an appropriate seating position with the interpreter. Facial expressions and gestures can often contribute to the meaning of what is said. The interpreter should therefore be able to see all speaking participants, and his/her position should also indicate his/her role as neutral and impartial.
92. Introduce the interpreter or allow the interpreter to introduce him/herself. Then introduce yourself, with the interpreter confirming what you say.
93. In explaining court procedures to all participants, do not forget to include the ground rules on how the interpreter will work.
94. Interpreting is a taxing job. No interpreter can go on too long. Consider requests to have frequent breaks and allow sufficient recovery time. It is good practice to agree frequency and timing of breaks with the interpreter in advance.
95. Allow the interpreter to take notes.
How to communicate through an interpreter
96. Address the witness directly, using first and second person ("I" and "you"), and look at them rather than the interpreter. It may be important to monitor small, non-verbal signals, as they speak.
97. Use a slower pace in your speech style, matching your speed of delivery to the interpreter's speed of interpretation.
98. Pause after every two or three sentences. Ensure you do this at the end of a sentence – not in the middle. Many languages order the words of a sentence in a different way from English, so it is necessary for interpreters to hear the whole sentence before they can translate it properly.
99. It is not good practice to tell the interpreter that an aside or something unimportant need not be translated. This can make the witness feel excluded and even distrustful.
100. Intervene to take control if several people start talking at once or speak in rapid succession (since this makes interpretation impossible).
Translation difficulties
101. Many of the adjustments to speech and questioning which a judge or advocate would make when speaking to a witness for whom English is not a first language, would also be helpful when using an interpreter. See "Communication with speakers of English as a second or third language" for details.
102. Be very clear in handling proper names and numerals/figures, and explain acronyms each time you use them. Remember that the approach to pronouncing acronyms may also vary between languages, eg English pronounces "www" by repeating the letter "w" three times, whereas Welsh says "triple w" ("w triphlyg").
103. Avoid legal jargon or, where this is unavoidable, explain the concept in plain English which the interpreter can translate. Words such as "adjourn", "detriment", "remedy" "mitigation" "witness statement" could all cause difficulty, as well as more obvious jargon such as "hearsay", "burden of proof", "tort". Specific jurisdictions or chambers may use technical words that the interpreter may not understand. When introducing the interpreter, remind them to intervene if there is a term that they do not understand.
104. Many words in English do not have exact single-term equivalents in many other languages: these include words for culturally varying concepts such as "fair", "reasonable", "evidence", "impartial", "commitment", "bias", "compromise", "mediation", "depression", "opportunity", "efficiency", "liability". As a result, an interpreter may need to use longer phrases or sentences to convey the speaker's full meaning across a cultural divide.
105. Conventions of advocacy, such as tag questions and negative questions, are difficult to translate linguistically and are likely to be doubly confusing when going through an interpreter.
106. It is difficult to interpret fine distinctions, and these may be hard for the witness to understand. Such points need to be stated very clearly and built up slowly.
107. If you notice the interpreter apparently making untranslated exchanges with a party, call attention to this and seek an explanation. This may be entirely legitimate, eg there is no exact match between the two languages, such that more words and alternative formulations need to be used and clarified between the witness and the interpreter. On the other hand, it might be because the interpreter has unacceptably crossed a line and become involved in further discussion with the witness, eg about the wisdom of an answer.
108. Some interpreters are concerned to convey to the court any emotion which the witness conveys indirectly in making their answer. This is difficult to do. It is not the interpreter's role to try to "act out" the emotional dimension, but they may seek to indicate/transmit the upset via tone and pauses, as well as by the meaning of words. Judges need to be alert to this.
Interpreters and remote hearings
109. Interpreting in remote hearings is particularly difficult for these reasons:
• Interpreter and witness are able to see less body language, so there are fewer non-verbal cues to help them understand each other.
• Conversely, face-to-face interaction on video platforms is particularly concentrated. Where the party or witness is from a small community, they may have intensified concerns about discussing matters through an interpreter using this medium.
• Simultaneous interpretation will not be practical on most platforms.
• Overlapping speech will not be possible. The interpretation could very easily fall behind.
• Interpreters may be unfamiliar with the particular jargon applicable to technology and the conduct of remote hearings or may be familiar with the words but not how they translate.
• The particular interpreter may be unpractised at working in video remote hearings, with the specific difficulties that arise, including time-lapses caused by broadband speeds.
• Particular difficulties with Welsh/English translation are explained in the section on "The right to speak Welsh", below.
110. Some steps which may help are to:
• Ensure the individual requiring the interpreter is able to understand the process for joining the remote meeting, which may require understanding instructions given on screen or by automated voices in English or Welsh.
• Allow more time.
• Have increased breaks.
• Ensure that everyone who speaks does so in small portions, pausing for the interpreter to interpret.
• At the outset, agree a protocol for how the interpreter should indicate that they would like to speak. Ensure the interpreter and the person being interpreted both feel comfortable to say if they are not keeping up.
Informal interpreters
111. Judges should be alert to the fact that it is not uncommon for litigants who do not use English as a first language to regularly use their relatives (often children or close relatives who have grown up in the UK) as intermediaries when they communicate with others.
112. Often, such litigants have a good level of spoken English but use their children/relatives as informal interpreters in day-to-day life and, in particular, when dealing with official persons or bodies.
113. Although such informal interpreters cannot serve as a substitute for accredited interpreters in relation to evidence, judges should be sympathetic to allowing a litigant to be accompanied by such a person who can assist them in understanding what is being said and to act as an intermediary.
114. That is not to say that such persons can act effectively as the advocate for the litigant. The litigant must conduct their own case but allowing informal interpretation where points of difficulty in language and understanding may arise can assist both the court and the parties. Such persons can also provide a level of support and reassurance to the litigant.
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