The current arrangements for interpreters in criminal investigations and proceedings flow from a revised agreed protocol between CPS and other agencies in the criminal justice system - The National Agreement on the arrangements for the use of Interpreters was published in August 2008. Some sections of the National Agreement are dis-applied for those criminal justice organisations with contracts under the MoJ Framework Agreement for interpretation and translation services made with Applied Language Solutions (ALS) and dated 24 August 2011 (see National Agreement 2011 annex A). The Agreement reflects the introduction of the Human Rights Act 1998 and emphasises the requirement to check the competency of an interpreter. In all cases, Article 6 of the European Convention on Human Rights requires that an interpreter in criminal proceedings be fully competent for the task assigned.
Every interpreter working in the courts and police stations should be selected through the MoJ Framework Agreement or from the National Register of Public Service Interpreters (NRPSI). In a case involving a Deaf person, interpreters should be selected through the MoJ Framework Agreement or from the Council for the Advancement of Communication with Deaf People (CACDP) National Directory of Sign Language Interpreters.
Selection through the MoJ Framework Agreement is strongly recommended as this offers a minimum and measurable standard of training and quality assurance and interpreters are subject to a Code of Conduct, standards of competence and professional skills, and disciplinary proceedings.
The police will arrange for an interpreter when interviewing suspects or witnesses in the course of their investigation who have difficulty in speaking and understanding English. The Codes of Practice issued under the Police and Criminal Evidence Act 1984 (PACE) give guidance to the police. (Archbold 4-35 4-38) and in particular Code C 13. However, it should be noted that the Codes are currently under revision.
Any witness statement taken from a person who has difficulty in speaking or understanding English should be recorded in the foreign language and signed by the witness. It should include the declaration prescribed in section 9(2)(b) Criminal Justice Act 1967 or section 102(2)(b) Magistrate's Court Act 1980. Witness statements for the purpose of section 5A(3)(a) and 5B of the Magistrates' Court Act 1980, must be the statement of the witness and not a translation of what was said by the interpreter See, R v Raynor Times Law Reports 19 September 2000.
Where an interpreter is required to assist at the interview between the police and a witness to record the witness' statement, a Superintendent may authorise an extension to the period of detention to enable the transcript to be prepared before charging. See R (on the application of Wiles) v Chief Constable of the Hertfordshire Constabulary (2002 All ER (D) 263 Feb)
When a suspect has made a statement under caution in a foreign language, the interpreter should make a statement exhibiting both the statement and its translation.
The Police and Criminal Evidence Act 1984 provides guidance about the Codes of Practice. Code C is the Code of Practice for the Detention, Treatment and Questioning of Persons By Police Officers. It contains guidance in the use of Interpreters at the police station. If the defence require a separate interpreter for consultation with their client at the police station, it is the responsibility of the defence solicitor to arrange for the interpreter to attend.
Refer to Confessions and Breaches of PACE, elsewhere in the Legal Guidance. See also R v Govenor of Brixton Prison and Another Ex Parte Saifi Times Law Reports 24 January 2001.
For the rights of the accused under the European Convention on Human Rights see Article 6(3)(a) and (e) (Archbold 16-57 and 16-94).
Committal Papers containing foreign language statement(s)
When preparing committal papers, the foreign language statement should be placed in the bundle of witness statements either immediately before or after the translation.
Interpreter as a Witness in Court
If a suspect has been interviewed through an interpreter and there is an issue about what was said, evidence will have to be given by the interpreter. Evidence from a police officer about what the accused has said in interview, as related to the police officer by the interpreter, is hearsay. The only valid witness as to what the defendant said is the interpreter. (Archbold 4-36). It is therefore important that the interpreter is a person who is suitably qualified and impartial.
If an interpreter is required to give evidence, he or she should be given an opportunity to confirm the accuracy of any record of an interview at which the interpreter was present. This may include being given the opportunity to listen to the taped interview, or in the case of a deaf person, view the video taped interview.
The CPS is responsible for the payment of expenses of an interpreter who attends court to give evidence about what took place at the defendant's interview.
A witness who has difficulty in speaking or understanding English may give evidence at court through an interpreter. It is the responsibility of the prosecution and defence to arrange interpreters for their own witnesses at court. (See National Agreement.) Wherever possible, parties to proceedings should employ the services of different interpreters.
Where the question of the competence of an interpreter is raised, the hearing should be adjourned. The question of the competence of an interpreter is a procedural matter and where it is an issue the hearing should be adjourned to resolve it. See R (on the application of Gashi) v Chief Adjudicator (2001 All ER (D) 262 (Nov).
Where a prosecution witness is to give evidence through an interpreter, it is the responsibility of the CPS to arrange for the interpreter to attend court. The CPS is responsible for ensuring that the interpreter is appropriately qualified to carry out the assignment and that terms and conditions have been agreed before the assignment is undertaken.
Where the Ministry of Justice Framework Agreement is used, payment of expenses is an issue for the interpreter and ALS. Where the MoJ Framework Agreement is not used, CPS is responsible for the payment of expenses of an interpreter who attends court to interpret the evidence of a prosecution witness; fees should be agreed in advance of the hearing.>
If a defendant requires an interpreter to interpret the proceedings, it is the responsibility of the court to arrange for the attendance and payment of an independent interpreter. See Prosecution of Offences Act 1985 section 19(3)(b) (Archbold 6-39). Where there is more than one defendant, each should have a separate interpreter.
A plea is uninformed if the defendant has not fully understood the nature of the case to which he is pleading because of his inadequate understanding of the language and because of the inadequate explanation given by his legal representative See Cuscani v UK (2002 All ER (D) 139 (Sep).
It is important that CPS liaise with the court and the police to ensure that the court is aware of the need for an independent interpreter and any other relevant information, in order that an appropriate interpreter can be selected (see also Archbold 4-37).
It is important that an interpreter used at a police station or in the course of investigations by other investigating agencies is not engaged to interpret in the courtroom. If, however, it is not possible to find another interpreter (for example, where the language is rare) the Court and all parties must be notified of the intention to use the same interpreter for the court proceedings, (see Note for Guidance C13 A in Code C) See also Regina (Bozturk) v Thames Magistrates' Court Times Law Reports 26 June 2001.
Section 22(1) of the Welsh Language Act 1993 states that any party, witness or other person has the right to speak Welsh in a court in Wales. A Welsh speaking Prosecutor should be provided in such cases. Where this cannot be done, a short adjournment should be sought to enable a Welsh speaking Prosecutor to attend or a court interpreter should be used. As soon as it becomes known that the Welsh language is likely to be used, the court should be informed, in compliance with the Practice Direction of Lord Bingham, (1995 1 All ER. 575). Failure to comply with the Practice Direction may result in a wasted costs order being made against the defaulting party.
Witnesses who are Deaf
A witness who is deaf or hard of hearing may require the services of a qualified Sign Language Interpreter or, for those who do not know or use sign language, a Lipspeaker in order to give their evidence at court. Only registered Sign Language Interpreters or Lipspeakers should be used. The Council for the advancement of Communication with Deaf people (CACDP) is the national examining and registration body for sign language interpreters and details of qualified Sign Language Interpreters and Lipspeakers appear in the CACDP Directory. (See National Agreement.)
The true record of the original statement of a witness or defendant who uses sign language is a video recording, not the interpreter's written or oral version of what they say the defendant or witness conveyed. See R v Raynor Times Law Reports 19 September 2000 and Regina v Govenor of Brixton Prison and Another Ex Parte Safi Times Law Reports 24 January 2001.
Rider to the 2007 National Agreement on arrangements for the use of interpreters, translators and language service professionals in investigations and proceedings within the Criminal Justice System (issued by the Ministry of Justice (MoJ), August 2011)
1. Some sections of the National Agreement are dis-applied for those criminal justice organisations with contracts under the MoJ Framework Agreement for interpretation and translation services made with Applied Language Solutions and dated 24 August 2011. The Framework Agreement provides for consistent standards in relation to those elements of the National Agreement which have been dis-applied.
2. The following sections are not relevant to criminal justice sector organisations under the MoJ Framework Agreement:
Paragraph 1.2 to the extent that it relates to the sections and paragraphs set out below;
Paragraph 3.3 (with the exception of the first sentence of paragraph 3.3.1);
Paragraph 9.2 (penultimate sentence only);
Section 10 (including Annex F);
Section 11 (including Annex G);
Paragraphs 13.1, 13.3, 13.4 and 13.5; and
3. Some parts of the National Agreement are, however, relevant to all criminal justice organisations irrespective of the delivery mechanism for interpretation and translation services and continue to apply.
4. The National Agreement continues to apply in its entirety to criminal justice organisations which:
continue to book freelance interpreters;
have individual contracts for the delivery of interpretation and translation services; or
have contracts under other Framework Agreements.
5. We anticipate that the move to contracts will probably render the National Agreement redundant and we expect to withdraw it in due course. However, a date has not yet been fixed for its withdrawal.
6. A mixed economy1 will exist for a period, with interpreters and translators being sourced through various routes, and the National Agreement as a whole may continue to be relevant, at least for the medium term. This may continue into the long term depending on the number of organisations moving to the MoJ Framework Agreement. We will take this into account when we consider the continued need for the National Agreement.