Divided by Language: Language Difference and its Politics Inside the Courtroom

Post by Ana Aliverti, Warwick Law School, University of Warwick. Ana is currently writing up a project on the impact of migration on criminal courts in Birmingham. Follow Ana on Twitter @a_aliverti.

Language difference and the specific power dynamics communication generates inside the courtroom are seldom topics that attract much criminological attention. Indeed, accounts of criminal courts often take for granted the existence of a monolingual space. Yet, as the social spaces in which the courthouses sit become more diverse and multicultural, the methodological and logistical challenges posed by multilingualism are difficult to overlook. As Ines, Rachel and Andriani noted in their posts, doing research with people who speak different languages from that of the researcher can create serious obstacles, severely curtailing research possibilities and shaping methodological choices. In the UK, participants who don’t speak English are usually voiceless. In addition to revealing the linguistic limitations of many academics, paying attention to language raises acute questions about the relevance and shortcomings of criminological research in highly diverse societies, such as Britain.

In my own research, I quickly became aware of the importance of language proficiency for conducting research in the UK. Mastering English is much more than a matter of communication. My strong ‘foreign’ accent surely stood out as a visible aspect of my identity as a researcher in my exchanges with judges, lawyers, court bureaucrats, and police and immigration officers. It sparked suspicions among some, and assumptions about my status as an outsider and acquaintance with the British criminal justice system on others. As with gender and ethnicity, in fieldwork ‘sounding foreign’ may also affect research participants’ initial perceptions of the researcher, casting doubts on her/his credibility and academic credentials. Such perceptions of ‘foreignness’ mirror wider assumptions and stereotypes of academics, and can, in turn, create distrust and distance. While conducting research with a colleague, Rachel Seoighe, in Birmingham courts, some people with whom we interacted mistakenly assumed that she, who is an English native speaker with a mild Irish accent, was leading the project. They addressed her throughout in our conversations, ignoring me altogether.

Inside the courtroom, making sure that non-English speaker defendants and witnesses are assisted by a professional interpreter is increasingly routine for court staff and one of their top logistical challenges. The demand for court interpreters in criminal proceedings has been steadily on the rise. According to Ministry of Justice’s statistics, in 2013 requests for interpretation and translation services in the criminal courts were just below 20,000; by the beginning of 2015 they were closer to 23,000. In 2015, the criminal courts were the greatest user of language services, with 57 per cent of all such requests before courts and tribunals having originated there.

Most of the court operators I interviewed, including judges, magistrates, solicitors and prosecutors at Birmingham criminal courts, mentioned that language barriers –and the attendant need for professional interpretation- is one of the most taxing aspects of dealing with foreign nationals. For some rare languages, interpreters are hard to find. Even scheduling interpreters of more common examples, such as Gujarati or Romanian, can be difficult. Bookings may fail due to errors by the courts or by Capita Translating and Interpreting –the company tasked with providing interpretation services to a range of public bodies, including courts and tribunals in England and Wales, since 2011.

Even when interpreters do show up for hearings, the quality of their work can vary. For some languages, such as Polish, one crown court judge attested, ‘the quality is generally good, whereas for others it is very poor’. ‘Even when they are good –another judge reckoned- I suspect that the jury are not getting as good an opportunity to assess a witness as they are in their own language because by the time the translation comes, they have lost facial expression, it is difficult for them to pick up nuance in voice, which obviously is an aspect of assessing someone’s credibility, and idioms don’t necessarily translate very well’. In short, while formal legal language is inaccessible to many of the lay people who routinely pass through the criminal courts, non-English speakers are significantly more disadvantaged in spite of the assistance of interpreters no matter how good they are.

Interpreters not only can assist non-English speakers to understand and communicate in court proceedings; their presence can also aid the identification and sorting of court participants. For court staff, the intervention of interpreters is one of the main proxies for the presence of foreigners at a hearing. A few of them were more cautious though, noting that some British nationals from ethnic minority groups may not be fluent enough to appear in court unaided. One interpreter confidently told me: ‘The majority

The presence of interpreters often taints the standing of those assisted by them. Incredulous lawyers cast doubts on the alleged linguistic inabilities of witnesses claiming that defendants sometimes ‘hide behind’ interpreters. They use interpreters to create an ‘impression of naivety, lack of sophistication, lack of intelligence’, as one judge put it. Others speculate about the control court interpreters exercise on witnesses when they translate partially and inaccurately what it is said in court, or influence statements by directing witnesses on what to say. By and large, interpreters are viewed with suspicion, as an unwelcome figure, and a reluctant collaborator within the court community. As a solicitor boldly confessed, ‘if you can avoid having an interpreter, it’s probably better to avoid it, but obviously in some situations you can’t avoid it and you need to be erring on the side of caution’.

A more positive view, less often articulated by court staff, is to conceive of interpreters as linguistic and cultural experts who cannot only assist non-native English speakers with the preparation of the case, but can serve as a bridge between them and the court by bringing valuable knowledge about people’s customs and traditions. Casting interpreters on a new light, not as obstacles but as facilitators of multicultural communication, may serve to appreciate the work of interpreters and strengthen their professional standing. It can also contribute to mitigate the disadvantages faced by non-English speakers before the courts.

As the social world we live in becomes more diverse, multicultural and multilingual, it is time that our institutions adapt to these changes striving to include. Language should be a vehicle for communication rather than segregation and marginalisation.

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How to cite this blog post (Harvard style):

Aliverti, A. (2016) Divided by Language: Language Difference and its Politics Inside the Courtroom. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2016/07/divided-language (Accessed [date]).