The voiced and the voiceless: foreign national offenders' experience of the UK courts

Guest post by Ria Rampersad. Ria currently closing off her first year as a PhD Law candidate at NTU is interested in exploring the intersectionality between neoliberal principles, language and the law. 

There is existing research to support the idea that foreign language speakers might be subjected to bias on account of their accent or language, but what happens when they speak through an interpreter? In a previous post, I discuss the issue of foreign language as a barrier to foreign national offenders’ (FNOs) equal access to justice, but isolating the effect of interpretation on this dichotomy is still under-researched. This post examines the impact of interpretation on FNOs' access to justice and considers the possibility that although it acts as a core procedural safeguard, the provision of this public good may also have unwitting effects. From a linguistic equity perspective, interpretation is meant to place the non-English speaker on a platform similar to that of their English-speaking peers. However, from a due process lens, specifically the right of the defendant to be an active stakeholder throughout judicial proceedings, some questions arise.  

Justice is difficult to define but is broadly considered to encompass the equal apportioning of rules within the legal system. Realistically obtaining a level playing field may at times demand the implementation of scaffolding structures to ensure that one group is not unduly disadvantaged. For FNOs, the majority of whom do not speak English as a first language, access to interpretation has been made available to circumvent this language barrier.  

Although the right and access to interpretation is a necessity for equal justice, its potential to affect other due process safeguards, warrants further problematisation. Authors like Runcieman have examined how institutional power limits the ability of those not in positions of power to have their voices heard. Given that it is the voice of the interpreter and not the defendant that is transcribed in the record of the court it may be argued that the same dynamics equally obtain during interpretation.  

Interpretation as a possible source of censorship could highlight the routine silencing of defendants as an in-built aspect of the criminal justice system. Co-dependency is in fact not a novel feature of criminal defendants’ courtroom experiences. Authors like Natapoff outline how the adversarial criminal justice system is designed to minimise the role of the criminal defendant because they lack the expertise and skill to successfully navigate legal proceedings. In most circumstances, it is the voice of legal counsel that mediates on their behalf. Given that the interpreter acts as the conduit through which the defendant receives and transmits information to and from the court, and specifically in the case of foreign language speaking nationals, this censorship can be doubly configured.  

The right of defense is a core aspect of procedural due process. However, the courtroom commands its own set of specific rules,  in which only a privileged few have active participation. Knowledge of the rules determines whose voice is given credibility and by extension, able to successfully engage with others in the system (See O’Nions’ work on powerlessness). Those without power must therefore accept their voicelessness. Since interpreters hold decision-making authority over the legal experiences of foreign language speaking foreign nationals, it constitutes, in addition to legal counsel, yet another prism through which this group is represented. Although foreign language speakers cannot experience the monolingual justice system without interpretive assistance, failing to recognise the power dynamic between interpreter and client glosses over the implications inherent to any relationship with a power differential. This does not negate the fact that interpreters too might themselves be subjected to the peculiarities of each court’s culture, but it does highlight the defendants’ dependency on the interpreters’ expertise, a relationship which is essential to their well-being.  

The inner workings of the courtroom will show that much of the time spent during the hearing is dedicated to case flow management. These discussions directed toward an agreed outcome, are often limited to the Judge, Crown Prosecution and Defense teams, and usually conducted at a fast pace. If the need to enable line by line translation is not recognised, the interpreter is unable to translate effectively and must endeavour to summarise or capture the salient points to be relayed to the foreign language speaking defendant. This simultaneously puts an additional burden of responsibility on the interpreter to accurately capture and relay the court’s decision whilst also keeping the non-English speaking national broadly ignorant to the multiple factors affecting their case.  

By the same token, should the non-English speaker wish to make a contribution that the interpreter deems irrelevant, they may be unilaterally censored. Interpreters take an oath to faithfully and accurately render an interpretation, yet in practice, situations may arise which require a judgement call that blurs the boundaries of language translation, bordering the realm of information gatekeeping. This aspect of the interpreter’s profile is still not something that is readily recognised. A 2025 Report by the UK Parliament’s Public Services Committee spoke to the administrative challenges arising from the procurement, scheduling and quality of interpreters without directly referencing its material effect on foreign nationals’ legal experiences.  Theorists such as Hale have also discussed this in the dynamics of court interpreting, highlighting the poor conceptualisation of the interpreter’s role, even by actors in the legal system. 

Case law demonstrates that these are material considerations. AA v Secretary of State for the Home Department exemplifies how the role of the interpreter is misunderstood even by the court. Here, the court interpreter refused a request by counsel to confirm a key point of contention in the case - the dialect of the appellant. The decision of the interpreter was upheld by the judge and noted in the court’s remarks which found that the interpreter is not to be considered a witness in the proceedings and should never be invited to become one. That an interpreter’s remit of authority should not be extended to make the distinction between dialects was made patently clear.  

Interpretation is essential for foreign language speaking FNOs’ access to justice, yet to assume that this solution fixes the problem of the language barrier fails to configure that even the most well-meaning of law and policy can have unintended consequences. These often result from a lack of consideration of the experiences of those on the receiving end, those that lay claim to these lived outcomes. In this instance, FNOs who occupy these difficult rhetorical spheres may find themselves constrained in their ability to raise these and perhaps other concerns. It is perhaps with this understanding that the question of whether interpretation should also receive this principled scrutiny, just like all public projects and programmes that are subject to monitoring and evaluation is raised. The purpose of this post was not to critique but to encourage debate on the definition of justice. Differentiated justice may require a different kind of assessment to ensure that there is no incongruity between judicial theory and practice.  

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