Northern Ireland Court Service

Consultation Paper Provision of In-Court Interpretation Services

About Law Centre (NI)

Law Centre (NI) is a public interest non-governmental legal organisation. The Law Centre works to promote social justice and provides specialist legal services to advice organisations and disadvantaged individuals through our advice line and our casework services from our two regional offices in Northern Ireland.  The Law Centre provides advice, casework, training, information and policy services to over 400 member organisations in Northern Ireland. The Law Centre works in five areas of law: community care, employment, immigration, mental health and social security. Law Centre practitioners regularly present at the Social Security Tribunals, Industrial Tribunals, Mental Health Review Tribunals and Immigration and Asylum Tribunals as well as at the High Court and Court of Appeal.

Introduction

We welcome the opportunity to respond to this consultation. We have structured our response in two sections. The first section responds directly to the consultation focus about arranging court interpreters. In the second section, we make a number of comments about the use of interpreters within the Court Service. We conclude by presenting a number of recommendations: some are directed at the Court Service administration team and others could perhaps be addressed through judicial training and/or guidance.

The scope of the consultation exercise is wide as it encompasses a number of different court services. We limit our comments to our areas of work and related Tribunals that most commonly require the services of an interpreter, which relates to immigration and social security.

The majority of our asylum/immigration clients require the use of a court interpreter for a variety of global languages. By comparison, our social security unit notes that European languages are most commonly required at Tribunals and that demand for language services is increasing.

Article 6 of the European Convention on Human Rights protects the right to a fair hearing and protects the right to interpretation where required.  European jurisprudence increasingly indicates that the Convention’s provisions are engaged in the context of immigration and asylum[1] as well as social security.[2] Therefore a consideration of human rights standards is clearly applicable.

SECTION 1: Provision of Interpretation Services

Quality and competency of interpreters

In general, our experience is that the quality of interpreters is good. A Law Centre Immigration Adviser, who has extensive advocacy experience in Great Britain, reports that the standard of interpreters in Northern Ireland compares very favorably with that in London, which is a credit to the Court Service. We acknowledge and support the accreditation scheme for local interpreters and believe that this accreditation requirement should be retained.

However, the Law Centre has been involved in cases where the standard of interpreting has been poor. This may have a profound impact on the outcome of the case, especially in the context of asylum cases where fundamental human rights are at risk and where an incorrect outcome may result in serious harm. We wish to highlight a particularly relevant case that highlights the risks that may arise from poor quality interpreting.

Case study 1

The appellant “A” is a refused asylum seeker who was provided with a court interpreter for her asylum hearing. The appellant’s representative brought her own interpreter who was present throughout the proceedings. This interpreter noted a number of interpreting difficulties during the hearing but had no means by which to communicate her concerns to the Tribunal judge or to the representative. Instead, the interpreter drafted a statement following the hearing and set out particular concerns. A’s asylum hearing was dismissed and an adverse credibility finding was recorded.  Part of the judge’s reasoning for this finding was the appellant’s ‘vagueness’. A approached Law Centre (NI) for assistance. The Law Centre applied to appeal the decision arguing that the hearing and the judge’s determination was fundamentally undermined as a result of the poor interpreting. The First Tribunal judge dismissed the application, however, the Upper Tribunal judge concluded:

‘However, looking at the matter in the round, interpreter problems arguably caused or contributed to the appellant’s apparent vagueness.’

Although this case study is exceptional, it highlights the worrying reality that poor interpreting is sometimes difficult to detect without the presence of another professional interpreter. This underscores the importance of ensuring appropriate quality control of interpretation services in judicial proceedings. One way of doing this is perhaps by implementing a system of peer observation and review.

Interpreter qualifications and training

The Northern Ireland Court Service requires its interpreters to possess as a minimum the Open College Network [OCN] Level 3 accreditation. In more complex cases, interpreters must be registered with the National Register of Public Service Interpreters (NPSI) and possess a Diploma in Public Service Interpreting (DPSI). However, we note that there is currently no training or testing facility in Northern Ireland for the Diploma qualification.[3] In order to improve the quality of interpreting in Northern Ireland, we recommend that the Courts Service, in conjunction with the Department for Education and Learning, consider establishing such training and testing facilities locally.

Availability of interpreters and booking procedures

The Law Centre Immigration Unit notes a definite shortage of interpreters for some languages, especially Somali and Masalit.[4] This may result in cases taking longer to be listed and is perhaps something that could be addressed through a recruitment drive. However, once a case has been listed, out experience is that the Court Service is usually effective at obtaining an interpreter. It is rare that hearings have to be adjourned due to a lack of interpreter.

By comparison, the Law Centre Social Security Unit has been involved in a number of cases where it appears that the Court Service has failed to make suitable interpreter arrangements. This often results in hearings being adjourned at the last minute, which can significantly inconvenience the parties to the appeal. In particular, some clients may risk additional financial hardship if the adjudication on their benefit claim is adjourned. The Law Centre is aware of some cases where, in the absence of a court interpreter, the applicant has decided to try and manage alone sometimes with a friend or family member acting as an ad hoc interpreter. While we understand that some applicants are anxious for the proceedings to take place as soon as possible (and indeed may feel that they ‘cannot afford’ an adjournment) we believe that it is wholly inappropriate for the hearing to take place in such circumstances.  We wish to highlight applicable human rights standards that make it clear that the relevant judicial authority is ultimately responsible for ensuring adequate comprehension during proceedings.[5] Therefore to ensure human rights compliance, cases should not proceed in such instances and interpretation services should be speedily arranged to minimise undue delay.

The root of this problem appears to be that there is no formal procedure by which a Social Security applicant can notify the appeals service that s/he requires an interpreter. Instead the onus is on the applicant or their representative to request an interpreter. Clearly unrepresented applicants may not be aware that they can make such a request. To address this problem, the Law Centre recommends that the court correspondence is amended by including a tick box to indicate the need for an interpreter. The applicant can then specify the language required. The most appropriate document to be amended is perhaps the Reg2(i)d document, which the applicant is sent along with the Court Service’s acknowledgment of receipt of the appeal. As a possible template for the amended document, we suggest the IAFT-1 notice of appeal form that is used at the Immigration and Asylum Tribunal.[6]

Dialect variants

Law Centre practitioners have noted that some languages are more likely to give rise to difficulties with interpreters due to dialect variants. Arabic, in particular, can be problematic given the considerable differences in Arabic spoken in the Gulf region compared to Arabic spoken in the Levant or North Africa. Kurdish Sorani also has strong variants depending on whether the speaker originates from Iran or Iraq.  We are also aware of at least one case where the judge noted that the tribunal user had stipulated a need for a particular dialect only to proceed with a ‘standard’ interpreter. As noted above, human rights standards require that adequate comprehension is ensured.[7] Accordingly, we would recommend that the Court Service to gives consideration to the applicant’s nationality when arranging an interpreter rather than booking a ‘generic’ interpreter.

SECTION TWO: Using Interpreting Services in Judicial Proceedings

Below we make some recommendations for enhancing best practice in relation to using interpreting services in judicial proceedings.

Issue of confidentiality and privacy

We are mindful that Northern Ireland has a comparatively small pool of interpreters to draw on given the small size of particular linguistic communities. This gives rise to the possibility that the interpreter may be known to the applicant which could risk breaches of confidentiality. This is primarily a matter of concern in asylum cases given their sensitive content: victims of sexual violence in particular may find it difficult to disclose information to interpreters who are known to them in a personal capacity. We acknowledge that this situation is to some extent unavoidable; we certainly do not advocate that local interpreters should not be used. However, we wish to highlight the issue and ask that all parties to the proceedings are accommodating when such problems arise. In such instances, it may be appropriate for the case to be adjourned so that a different interpreter can be sought.

We are also aware that one possible way to address this issue is through the use of video-link interpreters. However, in general we believe that our clients are much more at ease when communicating with a human interpreter – this is important in terms of establishing trust and good comprehension.

Interpreting submissions

It is common practice that the ‘submissions’ phase of Tribunal hearings is interpreted through a means of whispered interpreting (also known as “chuchotage”). This is usually a form of simultaneous interpreting as the parties making submissions do not pause to allow for interpreting. Often the interpreter will summarise the arguments rather than interpret word-for-word. This may make practical sense as the applicant may not wish to be informed of, and cannot be expected to understand, the technical and often complex legal arguments being discussed. This is not necessarily a problem, especially where the applicant has quality legal representation. However, there will be instances, especially where the applicant is unrepresented, where it becomes necessary to ensure that all phases of the proceedings are interpreted and that parties give the interpreter adequate time to do this. Members of refugee support organisations, who have accompanied unrepresented asylum seekers to their Tribunal hearings to provide moral support, have reported their astonishment to the Law Centre of finding that the whole court proceedings are not automatically interpreted to the applicant. If the applicant does not receive a copy of the “Reasons for Refusal” letter in translation and is not offered full interpreting of the oral submissions made against her during the court proceedings, then it is possible that she is not entirely aware of the arguments lodged against her. Clearly, in the interests of fairness, this situation is unpalatable.

Consequently, we recommend that tribunal chairs exercice particular care with unrepresented applicants to ensure that full interpreting of all phases of the proceedings is available if necessary.

Appropriate Breaks

Case Study 1 above demonstrates the need for appropriate rest breaks. The Upper Tier judge, while finding in favour of the applicant, stated that it ‘is unrealistic to expect word for word perfection over some hours’.  To safeguard against the risk of inaccurate interpreting that may be associated with sustained periods of interpreting, we recommend that practice should conform to the National Union of Professional Interpreters and Translators guidelines.  Good practice standards advise that interpreters take regular breaks due to the intensity of the work.[8]

Judicial training and/or guidance

The Social Security Unit notes that some Tribunal Chairs demonstrate a lack of awareness about working with interpreters. Consequently, it is not uncommon for Tribunal Chairs to address the interpreter rather than the applicant. Some Tribunal Chairs may even use the third person e.g. “ask the applicant to explain about...” This can give rise to confusion. The correct way of framing questions is through the first person e.g. “explain to me how...” In addition, it is our experience that some Tribunal Chairs do not give the interpreter adequate time to interpret, which can result in hurried (and inaccurate) interpreting. These issues could perhaps addressed through judicial training or by issuing guidance on working with interpreters and judicial proeceedings.

This does not appear to be a problem in the Immigration and Asylum Tribunal where there is much greater familiarity among judges of working with interpreters.

Allocating adequate time for Social Security Tribunals

At a recent administrative court service meeting attended by a Law Centre Social Security practitioner, it was confirmed that Social Security hearings are not automatically allocated additional time where it is known that an interpreter will be present. We recommend that as a matter of practice additional time should be allocated so as to ensure that time estimates are realistic and that parties to the hearing are not unduly rushed.

Again, this does not appear to be a problem for immigration/asylum hearings.

Recommendations

In light of the issues set out about, we recommend that the Northern Ireland Court Service considers the following action:

• Retain current minimum interpreter qualification criteria;
• Recruit new interpreters for minority languages;
•  Introduce a formal procedure whereby all court users can request an interpreter. In the context of Social Security applicants, this could be achieved by amending the Social Security Reg2(i)d form;
• Consider the court user’s nationality when booking interpreters;
• Allocate additional time to any case involving an interpreter;
• Consider implementing a quality control mechanism;
•  In conjunction with DEL, consider establishing a training/testing facility for advanced interpreting qualifications.
• Furthermore, additional judicial training should be provided and/or guidance should be issued which:
•  Underscores the importance of accurate interpreting and recognising it as an essential feature of the justice process;
• Ensures that interpreters are always offered adequate rest periods;
• Ensures that hearings do not proceed without a professional interpreter where there is an indication that one may be required (this also includes instances where the applicant has specifically requested a particular dialect);
• Ensures that issues of confidentiality/privacy arising as a result of the comparatively small pool of local interpreters are accommodated;
• Where necessary, ensures that all phases of proceedings are interpreted;
• Ensures best practice of using the ‘first person’ when addressing the applicant through an interpreter is employed in all judicial proceedings.

We are grateful for the opportunity to respond to this consultation. We would be more than willing to provide any further information or clarification if necessary.