Language Interpretation in the Criminal Courts: An Essential but Unstable Service

Guest post by Rachel Seoighe, School of Law, University of Warwick. This post is the fourth installment of the Border Criminologies Themed Week on Migration, Criminal Law and Criminal Justice organised by Ana Aliverti.

The social and administrative worlds of the UK’s criminal courts have been disrupted and complicated by mass migration in recent decades. Drawing on current research I’m undertaking with Dr Ana Aliverti, this blog post will briefly address how the daily performance of court business has been transformed by the emergence of interpretation services as an essential feature of the justice system.

Although the free assistance of an interpreter is undoubtedly recognised as a due process right where a person charged with a criminal offence cannot understand or speak the language used in court, the integration of this service into the routine business of UK courts is by no means satisfactory. Ten weeks into a period of empirical research in Birmingham Magistrates’ and Crown Courts, two things are patently clear. Firstly, cases in which the defendant requires an interpreter are regularly delayed and adjourned where the police or the court have failed to book an interpreter, or where the interpreter hasn’t attended court for reasons unknown. Secondly, there are serious concerns about the quality of legal interpretation.

The way that the state has chosen to manage the centralisation of interpreters in legal proceedings has been controversial and divisive, seemingly to the detriment of all service users―defendants, lawyers, court staff―and to the ‘public purse.’ In 2011, the Ministry of Justice signed a framework agreement with a small single supplier of interpreting services, which was subsequently acquired by Capita, the enormous, £7 billion FTSE 100 corporation tasked with facilitating outsourcing in a vast range of public services across the UK and internationally. Aisha Maniar has provided an excellent overview of issues arising and critical reports prompted by this change. Over 2,300 qualified and experienced court interpreters represented by Professional Interpreters for Justice (PI4J) have boycotted Ministry of Justice contracts in light of drastic cuts in wages and adverse changes to working terms and conditions. Their March 2015 manifesto calls for, among other things, sustainable terms and conditions, independent auditing of quality and performance, and minimum levels of interpreter qualification.

The quality of interpreting in court seems to be extremely variable―while interpreters often appear professional and competent, on numerous occasions interpreters have remained entirely silent throughout extended periods of the hearing. Magistrates have felt compelled to actually direct the interpreter to interpret properly, remarking in once case that the defendant ‘may not be understanding all this.’ In April, a trial collapsed when a lawyer in court who spoke the language in question objected to the quality of the interpretation. The trial had to be rescheduled at extra cost to the court system, inconvenience to the lawyers, and extended punitive constraints and anxiety for the defendant, who must remain subject to the restrictions on his liberty imposed by bail conditions until the process begins again.

On almost every day of our fieldwork so far, hearings and trials have been adjourned and re-adjourned for interpreters to be booked and present. Whether the blame is laid at the feet of the police, the court itself or Capita, for defendants reliant on the services of interpreters, this means confinement in the cells until an interpreter is belatedly arranged or, if the person isn’t in custody, arriving at court numerous times to find that an interpreter isn’t present and the hearing cannot proceed. These delays are time-consuming for the court and are experienced punitively by defendants who must wait for interpretation services in custody or return to the court repeatedly to receive a fair hearing.

The inclusion of an interpreter is now a common extra layer slotted into established hierarchies and working relationships in the court. While the need for their services is often disruptive in the ways described, as a result of logistical and organisational problems, defendants also benefit from the presence and experience of an interpreter in unintended and interesting ways. The criminal court process is alienating and obscure for many defendants who are faced with its formality, its technical and archaic language, and the alternately grand and securitised environment. English language speakers go through the process alone, separated (sometimes by a glass panel and its distortion of sound) from their lawyers and often unsure of structure of the process. Interpreters, by virtue of their experience, can offer informal explanations of the proceedings in lay terms that the defendant can understand. Interpreters can also use their position in the court to improve communication between the defendant and their lawyer―sometimes physically approaching the lawyer where necessary. Bearing in mind that the entire courtroom is oriented away from the defendant, with the exception of the judge or magistrate, the interpreter has a certain mobility and voice in the courtroom that stands to benefit the defendant.

One defence lawyer voiced concern that the mediation of the lawyer-client relationship through the services of an interpreter creates a certain distance between the two parties. Though this may be true, it can be argued that defendants might immediately be more trusting of interpreters―by virtue of shared linguistic, ethnic, or national background and because of their degree of separation from the court system. Further, the practical assistance and comfort provided by interpreters in the court process involves physical closeness that can be perceived as solidarity. The defendant doesn’t go through the process alone.

Our period of observation has engaged with the increasingly centralised role of interpretation services in the criminal justice system in a qualitative sense, engaging with broader critiques of how privatisation appears to have eroded the quality of this crucial service and rendered foreign nationals and immigrants vulnerable to mistrials, miscarriages of justice, and needless, punitive delays.

Themed Week on Migration, Criminal Law and Criminal Justice:

• Monday, 15 June: Crime, Justice and Migration (A. Aliverti)
• Tuesday, 16 June: Bail Denials and Beyond: Lopez-Valenzuela and the Role of Immigration Status in Criminal Justice (J.M. Chacón)
• Wednesday, 17 June: The Deportation Trap of Juvenile Transfers: How A Child Becomes A Desperado in the Eyes of the Law (J. Nogo)
• Monday, 22 June: Language Interpretation in the Criminal Courts: An Essential but Unstable Service (R. Seoighe)
• Tuesday, 23 June: The Function of the Criminal Law in the Prosecution of Refugees (Y. Holiday)
• Wednesday, 24 June: Mapping out a (Brief) Research Agenda for Border Criminology (M.T. Light)
• Thursday, 25 June: Remote Adjudication in Immigration (I.V. Eagly)

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How to cite this blog post (Harvard style):

Seoighe, R. (2015) Language Interpretation in the Criminal Courts: An Essential but Unstable Service. Available at: http://bordercriminologies.law.ox.ac.uk/language-interpretation-in-the-criminal-courts/ (Accessed [date]).