https://www.ein.org.uk/news/new-judicial-bench-book-gives-guidance-ensure-courts-and-tribunals-are-fair-all-including
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
[…]
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.
[…]
