Hidden Penalties Faced by Non-English Speakers in the UK Criminal Justice System: An Interpreting Perspective
Hidden Penalties Faced by Non-English Speakers in the UK Criminal Justice System: An Interpreting Perspective
On January 29, 2010, the number of foreign prisoners in the UK (on remand and convicted) represented 13.7 percent of the total prison population of 83, 378, not including juveniles in Secure Training Centres and Local Authority Secure Children’s Homes.2 There are no statistics on the number of non-English speakers (NES) being dealt with by the criminal justice system (CJS); however, it can be safely assumed that their number is far greater when taking into account defendants, people on police bail, people serving community orders as well as witnesses and victims. Likewise, there are no statistics as to the number of foreigners dealt with by the CJS who have little or no English at all, just as we do not know how many British people dealt with by the CJS need interpreters. However, for the purposes of this study, quite apart from philosophical arguments for natural justice, the figure above stands witness to the fact that in a multicultural society such as the UK, interpreters are essential to lawful procedure.
Interpreted communicative events (ICE) have been the focus of much recent research. Traditionally, interpreters have been ascribed the role of invisible communication channels, neutral language conduits and language-switchers—a role poetically conceptualized as that of “bilingual ghosts,”3 and commonly known as the legal model of interpreting, or the “conduit” role. Its main commandment is that interpreters “shall interpret truly and faithfully what is uttered, without adding, omitting or changing anything.”4 This all-pervasive professional ideology informs the codes and rules of practice of interpreter organizations and training programs whose main concern is to prescribe the “conduit” role to practitioners instead of evaluating interpreting as a situated activity constrained by type of interaction, setting and participants.
A sustained critique of the legal model of interpreting has been leveled by documenting the impact of interpreters on trial proceedings by Hale (1999),5 and the changed dynamics of interpreted police procedures by Russell (2002), while Angelelli (2004) has gathered empirical evidence of the interpreters’ perceptions of their own role in terms of visibility.
The aim of this study is twofold: to raise awareness among the legal profession of specific challenges encountered by non-English speakers in the CJS over the course of ICE, some of them taking place outside courtrooms and police interview rooms; and by canvassing issues that have come to my attention and that of my interpreter colleagues, to further criticize the legal model of interpreting for compounding the aforementioned challenges.
This study has emerged from an accumulation of observations over fifteen years of freelance interpreting for the CJS and immigration services in the UK. The observations on which I based my study are quite recent, as my workload and that of my Romanian interpreter colleagues increased dramatically after January 2007, when Romania joined the European Union. My opportunities to observe the conduct of legal proceedings soared accordingly, and I had additional feedback from my colleagues. I believe that my exposure to all stages in the CJS fostered an in-depth understanding of the ways in which non-English speakers are dealt with.
I used a mixture of qualitative research methods in the form of participant observation, and secondary data from published literature. This study is based on observations during police and court proceedings, as well as legal consultations for preparing the case for court.
The following data are used in the construction of the arguments.
a. notes of instances and practices that attracted my attention for illustrating the pitfalls of the legal model of interpreting—I jotted down the salient points of the respective encounters (date, time, setting, people present, purpose and relevant features of encounter) from memory as soon as possible into an ethnographic diary. I coded these encounters by giving them fictitious names, locations and dates.
b. unprompted personal communications from fellow interpreters, included in the study with their authors’ consent—they agreed with the contents of the comments and the context in which they were referred to in the study, and I recorded their consent in the diary. By obtaining respondent validation, I triangulated the data to ensure its reliability and appropriate use.
a. academic texts relating to the work of interpreters working in legal settings, which were the source of helpful concepts for analyzing the primary data;
b. Internet resources.
Carrying out the research in the course of my job meant that this research has distanced itself from one of the major threats to the validity of my data: reactivity, defined by Hammersley and Atkinson (1995, 130) as “the effects of audience … on what people say and do.” It is assumed that non-reactive methods elicit behaviors that occur naturally, therefore circumventing the concern with observer-induced distortions.
Criticisms to the non-systematic means for collecting the primary data can be staved off on two grounds. Firstly, my long-term involvement with legal procedures stands witness to the internal integrity of the study, in the sense that I was at all times aware of usual modes of behavior and their contexts, and therefore could draw valid, context-bound comparisons. Secondly, the connections made between the primary and the secondary data in the course of the study acted as a check on the reliability of the interpretation of the data.
My approach to data gathering could also be criticized for bias. Bias, we are told, is the arch-enemy of objectivity, and research undertaken from a biased perspective can only compromise the results of the study. On the other hand, it is difficult, if not impossible, to achieve a perfectly objective perspective. The political and ideological stances taken in our research are shaped by our identities and life experiences, we are told by Kleinman and Copp (1993), who draw attention to the analytic costs of ignoring the interplay of person with research. There is a strong subjective element in this research. Most of the observations were occasioned by certain instances when I noticed what I felt was a lack of fit between the legal model of interpreting mandate I had and the realities of my work conditions. However, I would argue that this subjectivity is counterbalanced by a rigorous triangulation of data.
The central ethical issues arising from my study are: deception, for using the cover of interpreting to collect data for research, and breach of confidentiality, for exposing sensitive material. Firstly, I started accumulating observations as a matter of personal interest in legal interpreters’ predicaments, therefore I did not pose as an interpreter in order to gather data, and the study emerged as a result of my exposure to legal procedures. In addition, I protected the anonymity of all those who provided data by using fictitious names. Secondly, confidentiality protects sensitive legal and personal information capable of causing harm to NES if disclosed. As my study focused on the manner in which interpreted CJS encounters played out, not on contents of cases , I would argue that the need for confidentiality had been recognized and is an integral part of this study.
One last issue must be addressed: How typical am I as an interpreter? The answer is that I am not, nor could anyone be a typical interpreter. Interpreters cannot constitute a unitary category, as they have situated identities in terms of personality, age, gender, ethnic background, nationality, professional expertise, exposure to various aspects of interpreting, and personal interests. I would argue, however, that the issues I perceive as being part of my work are also encountered by other interpreters and have a particular relevance.
Some Specific Challenges Faced by Non-English Speakers in the UK CJS
It is perhaps taken for granted that all NES who need a police or court interpreter have the services of one as required, and that the simple presence of an interpreter suffices for legal purposes. However, in my experience and that of my colleagues, this is not always the case. Let us consider three cases.
A.6 interpreted via video-link for a bail application. Speaking very rapidly, the district judge granted bail with very strict conditions, including a curfew. In turn, A. interpreted very quickly in order to keep pace with the judge’s delivery. The defendant was looking very lost throughout. With no time for a post-conference consultation, the defense counsel rushed off without explaining the bail conditions to the defendant.
Sure enough, one week later A. ends up in a different court, this time interpreting face-to-face for the same defendant, newly charged with breach of bail conditions—namely his curfew, of which he was not aware—and by the way, he had breached it by going to his uncle’s two doors down the road to celebrate his release. A. explained to the court that in the previous hearing, the defendant was not given the chance to understand his bail conditions, thus substantially deviating from her interpreter’s mandate out of moral concern and acting as a witness. However, the prosecution did not withdraw the charge, and the defendant pleaded guilty. Had the defendant been familiar with the UK justice system and not needed an interpreter, his chances of understanding the fast-speaking district judge would have been greater, regardless of the barrister rushing off. Thus, the price he paid for not speaking English, despite an interpreter being present, included an overnight stay in custody and a conviction for breach of bail. This will immediately impact on his chances of getting bail in the future, as well as skewing the statistics on the criminality of foreigners.
In the second case I turn my attention to,7 I was interpreting late one night at a police station for a juvenile, in a complicated case. Another Romanian prisoner was brought in, who hardly spoke any English and needed my full assistance for the booking-in procedure. He asked for the duty solicitor, and one was duly called out. So far so good, except that his solicitor happened to turn up just as I was going into consultation with the juvenile and his solicitor and appropriate adult. Two hours later, when I emerged from the consultation room, the prisoner had been interviewed, cautioned and gone. How the interview was carried out and the caution administered remains a perfect mystery to me. To accept a caution, our detained person must have signed a form to confirm he understood the likelihood of being charged if he committed any similar offences, as well as the consequences of the caution in terms of employment and traveling to other countries. He had no way of understanding this form, yet by his signature he assumed responsibility for being aware of its contents. This does not surprise me, as time and time again I see Romanian detainees who, out of long-ingrained deference to authority, would pick up a pen and sign anything when told “Sign here,” without requiring any explanations.
In the last example, M.8 acted as an interpreter in a magistrates’ court in three different cases, two of which were in custody. She made initial contact with one of the detained defendants, who specifically requested the assistance of an interpreter and a solicitor. However, his case was heard in the absence of both while M. was commuting between courtrooms and cells in the other two cases.
What explanation can there be for what appear to be breaches of police and court procedures? Interpreter provision is traditionally seen as difficult and resource-intensive, always involving various waiting times for interpreters to arrive—witness the falling faces of court and police officers when they realize an interpreter is needed. Stories abound about London-based interpreters taking up to four hours to arrive at London police stations, and court cases being adjourned for lack of interpreters. However, in each of the examples given, there was an interpreter on the premises, so the costs or the extra time involved would have been negligible.
I would argue that the reason for these three NES being rushed through the system arises out of the changes to Legal Aid, which came into force early on in 2008 and which pay solicitors a set fee per case. My colleagues and I have noticed that solicitors and barristers alike are under pressure to deal with cases very quickly. Duty solicitors at police stations are not willing to wait: they will arrive when everybody is ready for the interview, and leave immediately after the interview, while many court solicitors and barristers represent a panoply of defendants not always in the same court, and being short of time, bounce from one to the other, and as in the above example, sometimes skimp on the explanations given to defendants. Thus, over and above any changes in representation brought about by Legal Aid, some foreign defendants suffer further legal penalties in terms of curtailed interpreter assistance.
Russell (2002) describes the police interview as a major stage in criminal proceedings offering suspects the first opportunity to put forward their version of events leading to their arrest. It constitutes the “main plank in the prosecution case” and “a major piece of evidence for consideration by the jury in reaching their verdict.”
a person must not be interviewed in the absence of a person capable of acting as an interpreter if:
a. he has difficulty in understanding English;
b. the interviewing officer cannot speak the person’s own language;
c. the person wishes an interpreter to be present.
A person may understand English to a certain extent, but Collins and Morris (1996) argue that it may not be sufficient for the purposes of the interview, which involves the ability to comprehend words, concepts, assumptions and legal implications. Thus, under PACE, it falls to police officers as well as court staff to assess the need for an interpreter. Relevant issues arising here include: Who and on what basis assesses the need for an interpreter? Is a reading or a comprehension test to be applied? If so, who is responsible for designing the test, and what does it consist of? What procedures are in place to instruct officers in assessing the level of fluency? Who is the best person in the encounter to evaluate NES’ knowledge of English? From what my colleagues and I have seen, the evaluation of someone’s knowledge of English is reduced to a variant of “Can you understand me? What is your name and address?”—this is hardly sufficient for legal purposes.
For example, some people have a tendency to say “yes” even when they don’t understand what is being said to them. Just to give an example, I have come across many of my compatriots nodding eagerly and saying “yes, yes” to police officers addressing them, then turning to me to ask, “What did he say?” This may be in part a cultural issue of deference to authority, which is strongly instilled in traditionalist Romanian society. I have also come across many Romanians who say they understand what they are told in English, but are unable to explain or repeat the same when asked.
I would argue that people who possess a limited knowledge of English are not the best judges of their own language competency for legal purposes. In any speech situation, the meaning of words is a construct of the social, legal or professional context in which it occurs. Generally speaking, words divorced from their context