THE ROLE OF THE COURTROOM INTERPRETER IN THE LEGAL SYSTEM OF ENGLAND AND WALES USING THE APPROACH AND PARADIGM OF SOCIAL CONSTRUCTIONISM

Byadmin

THE ROLE OF THE COURTROOM INTERPRETER IN THE LEGAL SYSTEM OF ENGLAND AND WALES USING THE APPROACH AND PARADIGM OF SOCIAL CONSTRUCTIONISM

Сборник материалов конференции «Язык и право: актуальные проблемы взаимодействия», 2016 г.

Green Liubov Vladimirovna,
Doctoral Researcher, Centre for Forensic Linguistics, Aston University
(Birmingham, United Kingdom) 

THE ROLE OF THE COURTROOM INTERPRETER IN THE LEGAL SYSTEM OF ENGLAND AND WALES USING THE APPROACH AND PARADIGM OF SOCIAL CONSTRUCTIONISM

 

Introduction

According to the latest statistics presented by the Home Office the immigration in the UK is still increasing rapidly and net migration figure remains positive, on average 240,000 people a year come to the UK that is 2 million every decade if the trend persists. This means that the need for Public Service Interpreters is greater than ever, particularly interpreters in the legal settings.

It is acknowledged that the role of the interpreter in the legal setting is “to make communication possible despite language barriers that exist between litigants and court personnel” (Mikkelson, 2000:1). The interpreter’s main duty is to remove those linguistic and cultural barriers to place the non-English speaker in a similar position to that of the native speaker, so ensuring access to a fair trial for the non-native speaker in accordance with the Article 6 of the Human Rights Act, 1998 (Hale, 2004).

At the same time, the interpreter should not put his/her client at an advantage over other litigants. It means that the interpreter is not there to ensure the client understands, but just to provide an equal opportunity like a native speaker would have in the same situation (Mikkelson, 2000).

Existing research in court interpreting has revealed persistent controversy over the role of the court interpreter, lack of professional recognition and overall negative attitude expressed by the legal professions along with other challenges and dilemmas interpreters face in the courtroom (Morris,1995, 1999; Berk-Seligson 1988, 1990; Lee, 2009). Hale (2004) notes that the interpreter’s understanding of their role has a crucial bearing on performance. She further notes that courtroom interpreters do not have a problem with ethics, but they have a problem with their role.

This research examines the role of the courtroom interpreter in the English legal system using the perspective of Social Constructionism. The central part of this study is the analysis of various aspects of the courtroom interpreter’s role in order to understand how it is constructed both socially and linguistically. It focuses on the question of his/her professional identity in a changing social and linguistic landscape.

This paper explores the views of professional interpreters, lawyers and other court professionals as well as non-English speaking litigants in order to establish the professional profile of the interpreters and answer the question who the interpreters are today? It also discusses changes in the provision of professional interpreting services and existing controversial views over the role of court interpreters.

 

  1. Provision of Court Interpreters in the UK: Current Situation

Before August 2011 the provisions of court interpreters in England and Wales was administered directly by courts through the National Register of Public Service Interpreters (NRPSI) in accordance with the National Agreement on the arrangements for the use of Interpreters and the Police and Criminal Evidence Act 1984 codes of practice C and H. Both the National Agreement and the Police and Criminal Evidence Act required that whenever possible the interpreters should be used from the two registers (NRPSI and NRCPD) in the interviewing suspects or in any other legal proceeding.

The National Register of Public Service Interpreters (NRPSI), which is a not-for-profit subsidiary of the Charted Institute of Linguists, has been a primary source for foreign language interpreters and translators since 1994. Another equally important register is the National Register of Communication Professionals working with Deaf and Deafblind People (NRCPD).  Both these registers have Codes of Conduct, which specify minimum requirements in relation to professional competence, qualifications, and professional conduct of legal interpreters (PACE; National Agreement on the Arrangements for the use of interpreters 2007).

In August 2011 to save the cost on Public Service Interpreting the British government outsources public service interpreting provision to a small regional translation agency Applied Language Solutions, which was subsequently taken over by Capita. Unfortunately, the Ministry failed to undertake proper due diligence on ALS’s winning bid. When the contract went live, ALS had only 280 interpreters signed up out of the 1,200 the Ministry of Justice considered necessary for its operation. As soon as the contract went live problems immediately arose with supply and quality.

Following adoption of the new framework agreement, many sections of the original agreement dis-applied. It is interesting to note that the National Agreement on the arrangements for the use of interpreters is no longer available on the Crown Prosecution Service Website.

According to the Ministry of Justice Statistics its outsourced contractor Capita TI fails to send interpreters to court in over thirty cases a day. The situation was exacerbated by the boycott of the new framework by a vast majority of qualified and trained interpreters who refused to accept the declining standards and significantly reduced rates for their highly complex and challenging work as court interpreters.

There were a number of reports undertaken by various independent agencies to reflect the situation in Public Service Interpreting in the legal settings. Some of the reviews were commissioned by the Ministry of Justice but most of the recommendations resulted from those reviews did not find a positive response within the Ministry.

Here are a few examples taken from the Capita TI Failings Dossier, published in 2013. These reports were followed by the parliamentary hearing which took place in June 2013 (at Westminster Hall) and the main theme of the hearing was the outsourcing to ALS/Capita and the major failings resulted from the new framework agreement.

17/03/2013

Birmingham Crown Court

“…Capita interpreter sent his brother-in-law to Birmingham Crown Court for a trial, because he couldn’t make it himself…” (Involvis, Dossier of Evidence, Vol 2. p.38)

11/03/2013

Reported by Martin Belica, Solicitor

“We had to suspend a police interview yesterday as my interpreter was worse than bad. Never had to do it before and felt bad about it but the detectives agreed and want a report from me with my comments in order to file it with capita…” (Involvis, Dossier of Evidence, Vol 2. p.39)

The above examples are indicative of a dire state of courtroom interpreting in England and Wales. Numerous procedural delays occur, in some instances persons have to be released or kept in custody due to inadequate or unavailable interpreting services. Qualified and experienced interpreters are forced to leave the profession in view of unacceptable pay and working conditions.  Professional courtroom interpreting is key to fair trial and justice in such a multinational country like the UK and particularly in view of recent developments. It has become even more crucial in light of new migration patterns along with the most recent migrant crisis in Europe (Schäffner, Kredens and Fowler, 2013).

 

  1. Data and Methodology

The study reported here is aimed to discuss the issues relating to court interpreting with particular reference to the role of the court interpreterin legal settings. Through my research I intend to answer the question of what the professional identity of the courtroom interpreter is in the changing social and linguistic landscape.

Given research is mainly based on the following qualitative research methods:

—        ethnographic observations of interpreter-mediated hearings in different courts such as Crown Court, Magistrate Court, Civil Court and Immigration Tribunals;

—        survey conducted with interpreters, legal professionals and court officials and clients (non-English speaking litigants).

All observations to date have been carried out in the WestMidlands area, Birmingham. Future observations will be extended to a wider area across England and Wales. I have carried out about 65 hours of ethnographic observation of various interpreter-mediated trials in criminal and civil courts in Birmingham. Amongst attended hearings there were fraud, murder, rape cases, driving offences, family disputes, personal injuries claims, immigration and asylum seeker’s appeals etc. Some observations were followed by discussions with the interpreters, court officials and defendants.

In addition to ethnographic observation in the chosen field the survey was conducted in order to reflect the views held by the practising interpreters, court officials and non-English speaking litigants so as to obtain a panoramic view of the court interpreter’s role and professional profile.

The survey was based on 3 sets of questionnaires: for interpreters, court officials and clients (non-English speaking litigants). The questionnaire for interpreters consists of 12 questions, 3 questions out 12 were multiple choice, where respondents were asked about their age, number of years of experience in court interpreting and court types they interpreted for. The remaining questions were open-ended and phrased so as to elicit answers concerning interpreters’ experience, practice and views on their own role, status in the courtroom and some other problems they encounter in the courtroom.

The questionnaire for the court officials consists of 9 open-ended questions only, mainly structured to obtain their views on the interpreter’s role and status in the courtroom as well as their experience with interpreter-mediated trials and understanding of what the interpreting process involves.

Finally, the questionnaire for service-users (clients or non-English speaking litigants) consists of 10 questions, 2 of which related to age and type of court are multiple choice and the remaining 8 questions are also open-ended and aimed at eliciting their views on their experience with interpreters and understanding of the interpreter’s role in the process.

The survey was mainly conducted electronically and in some cases was followed by semi-structured interview. Most of the interviews were held face-to-face or over the phone. Some respondents preferred to respond by e-mail.

Overall 22 interpreters took part in the current study, 9 males and 13 females. All the participants are accredited interpreters and have appropriate qualifications; 18 had the DPSI (Diploma in Public Service Interpreting or Metropolitan Police Test) holders, Law option. 8 UK interpreters are registered on the NRPSI list (National Register of Public Service Interpreters in the UK). All the interpreters are based in the UK, mainly in West Midlands, but a few are from other parts of England. The majority of the participants for the study were approached directly in court and invited to participate in the research. Also some participants were recruited through my personal network.

Given that the UK is a multinational country, comprising different cultures and languages, the choice of research participants was arranged to encompass a wide diversity of languages – the research sample includes: Panjabi, Urdu, Dari, Pashto, Mirpuri, Arabic, French, Italian, Creole, Russian, German, Czech, Slovak, Polish Romanian, and Farsi. The largest groups of respondents were Panjabi, Urdu and Pashto interpreters. In terms of mode of the interview, 9 interviews were face-to-face, 3 via phone and 9 by e-mail. Whilst the most informative answers were provided during face-to-face or telephone interviews, electronically filled in questionnaires also made a valuable contribution to this study.

With regards to court officials, 9 respondents completed the questionnaires in full, 1 has answered 3 questions only.  2 barristers were interviewed face-to-face and 6 completed printed out questionnaires or submitted their answers by e-mail. Amongst the respondents who took part in the research there were 4 barristers, 2 solicitors, 1 judge and 3 court clerks.

The participants were approached directly in courts during the breaks from hearings. Also in some courts (Immigration Tribunal in Birmingham) the court staff was very helpful and assisted me with distributing the questionnaire amongst court officials.

The smallest group of participants is unsurprisingly the third one – non-English speaking litigants. I have managed to speak to only 2 defendants at Crown Court, and only one of them has completed the questionnaire via his interpreter. The other defendant although was not a native speaker of English had a very good command of the English language and therefore did not need an interpreter to assist him during the trial. However, he was happy to express his views on the role of the interpreter in court, which constitutes a valuable contribution to this research.

All interviewed respondents did not disclose any details of particular cases or people involved, as well as choosing to remain anonymous in the study. Some also preferred not to be tape-recorded during the interview. These requirements of preserving anonymity were satisfied and non-disclosure of any confidential information in accordance with Recommendations on Good Practice in Applied Linguistics set out by the British Association for Applied Linguistics. It also includes securing data by anonymising data or even destroying it in case of potential threats to both anonymity and confidentiality (BAAL).

In my research I adopt a paradigm of Social Constructionism which encourages us to take a critical look at the notion of the “objective” world around us. It invites us to question the view that “conventional knowledge is based upon objective, unbiased observation of the world” (Burr, 1995:3). Social constructionists deny that our knowledge is a direct perception of reality, but it is rather constructed by people between them through the daily interaction in the process of social discourse, through the linguistic choices they make to “fabricate” our knowledge about the world or a given phenomenon. Furthermore, they suggest that socially constructed knowledge and action go together (Burr, 1995).

Following the paradigm of Social Constructionism in my research I intend to establish whether the professional profile and the role of court interpreters are in fact a product of social interaction and are, therefore, social constructs. I apply this paradigm through conducting a survey with all the stakeholders of the legal system, including interpreters, court officials and non-English speaking defendants and witnesses. As my research progresses further I intend to also include members of general public in survey in order to obtain a panoramic view of the professional profile of court interpreters in the legal system of England and Wales.

 

  1. Preliminary Findings

In my preliminary analysis I only focus on the questions in the questionnaires, which are related to the interpreter’s role and status in court. By doing this I will try to answer the questionof what is the professional identity of the courtroom interpreter in the judicial system of England and Wales. The analysis of questionnaires will be complemented by the data collected via ethnographic observations and field notes.

3.1 Interpreter’s Perspective

Below is the analysis of question 4 for the interpreters. These questions seek to explore the practitioners’ views on their role in court.

Question number 4 in Interpreter’s questionnaire is formulated as follows: “How do you describe your role in the courtroom?”

In my previous research (Green, 2011) I provided 5 role descriptors (borrowed from Lee’s research, 2009), to the interpreters and asked them to choose the one they felt described their role most accurately. The role descriptors were the following:

  • neutral conduit for language («translation machine»);
  • facilitator of communication in the courtroom;
  • cultural expert in the courtroom;
  • language expert in the courtroom;
  • advocate for the witness.

(Lee, 2009)

This time I left the question open-ended to encourage them to provide their own definitions on the role.

All the interpreters’ responses can be provisionally grouped into the following categories:

—        To bridge communication gap between the speakers of 2 languages (a facilitator/a channel for communication) (9 practitioners);

—        Transmitting device (1 practitioner);

—        Mouth piece of the non-English speaking person (1 practitioner);

—        Linguistic support to the participants; (1 practitioner);

—        Vital/essential part of the process/crucial (6 practitioners);

—        Impartial (3 practitioners).

Although I did not provide the respondents with the role descriptors, they came very close to the categories adopted in literature on courtroom interpreting (Lee, 2009).

It is also interesting to note that some practitioners focused on the importance of their role in the courtroom rather than on what it involves. 6 respondents emphasised the importance of the role rather its constituents.

Similarly to my previous research, the most popular answer was “facilitating communication” in the courtroom, 9 respondents provided that view of the interpreter’s role.

3.2 Court Officials’ Perspective

A similar question was asked in the questionnaire for the court officials. This question comes under number 4 in the questionnaire and is formulated as follows: “What is the role of the interpreter in the courtroom in your view?”

The responses of the court officials with regards to the role on the interpreter in court can also be summarised as follows:

—        Independent translation of oral evidence, not give advice;

—        To bridge the communication gap;

—        Relay the information between 2 parties;

—        Facilitate communication between all parties;

—        Interpret verbatim what is said;

—        To interpret in the dock and translate evidence given by defendant as it said;

—        Be the voice of the non-English speaking litigant;

—        Professional interpretation.

Barrister of the Crown Court: “The interpreter’s primary role is to interpret faithfully for the person in question.  The interpreter should as accurately as possible translate the exchanges between the assisted person and their legal team.  That should be a “warts and all” interpretation.  If there is an ambiguity in the question or the answer then that should be highlighted.”

3.3 Defendants’ Perspective

The most interesting perspective on the interpreter’s role was provided by the interviewed defendants in court. Although the number of participants is rather low to date therefore this finding may not be representative it is still interesting to consider.

The question appears under number 7 and reads as follows: “What is your understanding of the role of the interpreter in the courtroom?”

Below are the defendants’ responses:

“To understand the proceeding in my language as I do not understand English everything was explained to me”.

The most revealing answer was given by a defendant whose first language was not English but he chose not to have an interpreter. However later during the proceeding he regretted this decisionbecause having an interpreter, in his opinion, could have helped him win the case due to the extra time allowed for interpreting which he could have used to his advantage. Also barristers and prosecutors tend to alter their tactics slightly when they communicate via the interpreter, they make their questions more straight forward and easier to understand, which could have benefited his case.

This is in line with the views of some legal professionals and academics that interpreters indeed can destroy lawyer’s aggressive tactics in questioning, hence, act as a protective shield for the defendants. In doing so they even can to an extent put the non-English speaking defendants in an advantageous position compared to the native speakers who do not have an opportunity to think through their answers to achieve a more favourable result on their case.

3.4 Ethnographic Observations revealed…

A brief summary of my observations of interpreters in court can be presented as follows:

—        Sometimes they help their clients to complete some admin forms (observed in magistrates’ court) –Is admin role assumed?

—        They do simplify the language for the client to ensure their understanding (a few interpreters reported that in a follow-up conversations after hearings).

—        They at times coordinate the proceeding by showing the litigant where to sit and when to talk (observed in Immigration Tribunal); — Is the role of coordinator of proceedings assumed?

—        Not always interpret everything what is happening in the court (observed in all courts) – Is the role of the gatekeeper assumed?

Although interpreters both trained and untrained have an idea of what they should or should not do in court (when questioned they usually refer to the code of ethics or “rules” imposed by certain courts or the agency they are working for) they still intentionally or unintentionally tend to assume roles which go beyond interpreting task.

 

  1. Preliminary Conclusions

This paper has discussed the problematic nature of the role of the court interpreter arising from the conflicting expectations of different participants of the interaction in the context of developments in the field. The analysis of the existing literature (not presented in this paper due to the word limit) has also revealed the lack of consensus on the role of the interpreters in the legal settings.

My observation and conducted survey with various participants of the interpreter-mediated trials to date can be summerised into the following preliminary conclusions:

—        Both my observations and survey so far suggest that there is confusion in the perception of interpreters’ professional identity.

—        Conflicting views over the role of the court interpreter leading to conflicting and at times unrealistic expectations expressed by all parties involved;

The professional profile of the court interpreters in England and wales is constructed by views and perceptions of their role by the practitioners themselves, courts officials, their clients and anyone who comes into contact with their services. In my next stage of research I am going to extend my survey and involve the members of general public to obtain a wider view on the profession of the court interpreter in order to answer the question who the interpreters are in the new changing reality.

 

REFERENCES

  1. BAAL: The British Association for Applied Linguistics. Recommendations on Good Practice in Applied Linguistics [online]. Available from: http://www.baal.org.uk/dox/goodpractice_full.pdf
  2. Berk-Seligson, S. (1988). The Importance of Linguistics in Court Interpreting. La Raza Law Journal, 2(14), 14-48.
  3. Berk-Seligson, S. (1990). The Bilingual Courtroom: Court Interpreters in the Judicial Process. Chicago: The University of Chicago Press.
  4. Burr, V. (1995). Social Constructionism. London and New York: Routledge.
  5. Green, L. (2011). “An expensive and unnecessary nuisance”: how court interpreters see their role and their challenges. Unpublished M.A., University of Birmingham.
  6. Hale, S. (2004). The Discourse of Court Interpreting: Discourse Practices of the Law, the Witness, and the Interpreter. Amsterdam; Philadelphia: John Benjamins Pub Co.
  7. Human Rights Act 1998 [online]. Available from: http://www.legislation.gov.uk/ukpga/1998/42/contents [Accessed on 29/10/2016].
  8. Involvis (2013). Dossier of Evidence, Vol.2 [online]. Available from: http://www.litis.co.uk/linguistlounge.org/images/Capita_TI_Failings_Dossier_Volume_2_updated_to_30_Sept_2013.pdf [Accessed on 08/11/2016].
  9. Lee, J. (2009). Conflicting views on court interpreting examined through surveys of legal professionals and court interpreters. Interpreting, 11(1), 35-56.
  10. Mikkelson, H. (2000). Introduction to Court Interpreting. Manchester, UK ; Northampton, MA: St. Jerome.
  11. Morris, R. (1995). The moral dilemmas of court interpreting. The Translator, 1(1), 25–46.
  12. Morris, R. (1999). The gum syndrome: predicaments in court interpreting. Forensic Linguistics, 6(1), 6-29.
  13. NRPSI [online]. Available from: http://www.nrpsi.org.uk/ [Accessed online on 07/11/2016].
  14. National Agreement on Arrangements for the use of interpreters, translators and language service professionals in investigations and proceedings within the criminal justice system, as revised 2007.
  15. Police and Criminal Evidence Act Code C 2008 [online]. Available from: http://www.homeoffice.gov.uk/publications/police/operational-policing/pace-codes/pace-code-c?view=Binary [Accessed online on 28/10/2016].
  16. Schäffner, C., Kredens, K. and Fowler, Y. (2013). Interpreting in a changing landscape. Challenges for research and practice. In Schäffner, C., Kredens, K. and Fowler (Eds.), Interpreting in a Changing Landscape. Selected papers from Critical Link 6 (pp. 1-11). Amsterdam/Philadelphia: John Benjamins Publishing Company.

Об авторе

admin administrator