The Role of Language Barriers in Foreign National Offenders’ Access to Justice 

Guest post by Ria Rampersad. Ria is a first year PhD candidate at Nottingham Trent University Law School, where she researches the role of language barriers in Foreign National Offenders’ Access to Justice. 

As highlighted across socio-legal scholarship, the issue of Foreign National Offenders (FNOs) receives a wide berth of attention both in the United Kingdom and most of Western Europe. In the UK, evidence of sustained political interest can be traced to as far back as 2006, when the mass media rendered the release of some 1 023 foreign national offenders a veritable ‘crisis’, as they were released without consideration for deportation. Eighteen years later and the publication of a 2024 House of Commons Library Report indicates that the focus on the government’s efforts to remove ‘unwanted foreign criminals’ has waxed but never waned.  

From a social justice perspective, the infringement of FNOs’ human rights has been conceptualised from a racist and discriminatory lens. Viewed through a carceral perspective, scholars have highlighted the unprincipled use of detention and the resulting violation of FNOs’ rights as enshrined in Article 5 (1) of the European Convention on Human Rights. Building on this, others have shown the extent to which the criminalisation of immigration has resulted in an erosion of FNOs’ due process safeguards.  

Yet comparatively little attention has been paid to the role of language barriers in shaping FNOs’ legal experiences as they navigate the UK’s monolingual criminal justice system. This gap is worthy of scrutiny since the majority of detained FNOs do not speak English as their native language. 

The concept of language rights remains contested. Whilst some frame the right to use one’s own native language as a core human right, others see it as a key aspect of due process safeguards. In other words, it is language accessibility that allows the construction of a proper defence. However, in monolingual contexts, such as the UK, where multilingual use, often a marker of ethnic and racial difference, is often seen from a deficit point of view, speaking in a foreign accent or language poses additional hurdles for what is a high stakes undertaking.  

Accommodation of foreign language speakers within court systems usually involves the proceedings’ interpretation in a defendant’s or witness’s language of origin. Yet this is not without its own issues, since it is not simply a process of translation but one which is subjected to the interplay of stereotypical judgements and interpretation, which may impact FNOs’ access to justice.  

Taking the latter first, not only can the process of interpretation be complicated by the complexity of legal language, but the actual fulfilment of an interpretation request may also be a source of contention. Studies conducted on FNOs’ access to quality interpretation have found that the cost and length of time taken to procure interpretation services often resulted in short cuts, such as not summoning interpreters due to time or resource constraints or the incapacity to cater for rarer languages or dialects, being taken. This phenomenon occurred both at the point of arrest and during court proceedings and may be linked to the fact that a decision regarding interpretation needs may be left to the discretion of the police or the judge, if not previously declared by either the party or counsel. A cursory consideration of interpretive needs may obscure the difficulties involved in determining language requirements. Yet, considering that a command of general English does not automatically equate to an understanding of legal jargon, then it may be easier to see where challenges can arise. Perhaps this is because there is no formal pre-testing, and a determination of language difficulties is discretionary. This was the case of Golizadeh v Sarfraz in which the failure of Counsel to make the case for interpretation resulted in the witness’ testimony being given in English and not the language with which they were most comfortable. Moreover, in the case of Iqbal Begum, the incorrect identification of a dialect caused the defendant to plead guilty to murder for what should have been a case of manslaughter. Although their appeal was successful, these errors confirm the fact that language barriers can have a considerable impact on an individual’s experience within the justice system and may lead to potential miscarriages of justice. 

The act of interpretation itself may, according to Hale, introduce certain bias to proceedings. Research findings have demonstrated that interpreters have been found to vary the pragmatic content of messages, filtering data they may find redundant or repetitive, but which may likely have a different connotation or purpose. Therefore, interpreters have been shown to unwittingly or not, fail to accurately convey a message’s tone. It is therefore no surprise that their professional capacity and exact role is often questioned, even within court systems. Evidence of the latter was observed in the case of Bozkurt v Thames Magistrates’ Court in which the fact that the same interpreter used during the Police interview could not be used during court proceedings was never raised until the case was appealed. 

Moreover, although an interpreter may obscure FNO’s voices during proceedings, their accents can still be heard, and this too has been found to be a potential source of bias for listeners’ irrespective of status. How bias manifests in this regard works through the process of enregisterment or the categorisation by non-native speakers of accents and languages based on stereotypical tropes about the people using them. Also referenced more popularly under the ambit of ‘raciolinguistics’, the socio-cognitive ascription of value based on an individual’s accent or language of origin has been supported by research.  

Data on the influence of accents used in courtrooms tends to confirm that by and large foreign language accents are perceived negatively. In particular, studies highlighted their impact on the credibility of witnesses’ testimonies, as well as judgements around culpability and guilt. Breaking this cycle, however, would require concerted efforts, not only because these stereotypes have become ingrained, but also because bias that is unconscious cannot be unsettled without first being identified.  Given that impartiality is one of the hallmarks of all judicial systems, that there exists unconscious biases amongst officers within the system may not be immediately apparent and thus, the onus is on each officer to question themselves and the existence of any prejudices. Shifting deep-seated ideologies cannot be achieved in isolation and in-depth training and accountability mechanisms for those who come into direct contact with FNOs such as police, interpreters and judges, specifically in multi-language settings such as the UK may be warranted. 

The foregoing evidence underscores that FNOs face heightened vulnerability within the criminal justice system, not only due to the punitive turn currently informing immigration related infractions, but also because of the stigma attached to their status as foreigners. Disadvantaged by their lack of citizenship, English language competency and the aura of guilt that pre-empts their entry into the justice system, FNOs are unable to self-advocate on a level that is equal to citizens. Whilst amending existing legislation may seem like a remote possibility in the current socio-political climate, it is nonetheless important for scholars to continue this discussion to foster a judicial system that emphasises FNOs’ equitable access to justice.  

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