Memorandum submitted by the Magistrates
Association Judicial Policy and Practice Committee
The Magistrates Association welcomes the opportunity
to submit evidence to the committee.
1. EXISTING LEGISLATION
1.1 Hearings in Absence
The initiative to rationalise the arrangements
for dealing with defendants in their absence reflect procedures
generally in operation in the UK already. It is important that
cases are not delayed due to continued adjournment so that in
the interest of justice victims do not have to wait excessive
periods of time for their cases to be heard. On the other hand
it is important that defendants have a clear knowledge of proceedings
and that courts have the assurance that defendants have been notified
of trial hearings.
The regulations agreed in this area provide this
assurance.
1.2 Mutual Recognition of Financial Penalties
The European Union (EU) Framework Decision (FD) on
the Mutual Recognition of Financial Penalties (MRFP) allows fines
and certain other financial penalties that are imposed in one
Member State to be transferred and enforced in another. It applies
to fines, compensation and court costs imposed by a court or certain
other authorities in criminal proceedings, including road traffic
offences.
This decision has not been implemented in the UK
so that penalties for offences committed in the UK may not be
recovered. It is important that these arrangements are implemented
across the whole of Europe so that all citizens are treated equally
and fairly.
2. PROPOSALS
2.1 Interpretation
The increasing movement of people throughout
the European Union with a wide range of languages requires a professional
approach for interpretation in all the stages of the criminal
justice process. This includes the period from initial interviews
at the police station through to the court proceedings including
trial and sentencing. Defendants and other court users must be
given every opportunity to ensure they fully understand all the
proceedings and decisions made at every stage of the process.
Much progress has been made in recent times to apply
the guidance agreed between the various parties operating in the
CJS. There is a need across Europe for a common approach so that
all who may become involved in the CJS are able to understand
and provide relevant evidence to any case without disadvantage
due to language.
Some problems remain due to the availability of qualified
interpreters.
The Magistrates' Association has prepared a
practical Guidance Note for use in Magistrates' Courts to ensure
procedures are followed to the benefit of all. A copy is attached
to this submission.
2.2 Control of Heavy Goods Vehicles (HGVs)
The increased movement of goods across national
borders in Europe has generated considerable concern over road
safety. The Vehicle and Operator Services Agency (VOSA) monitors
roadworthiness of commercial vehicles. It is important that all
such vehicles are operated to a common standard and regulation
and that the penalties imposed for offences committed are equivalent
across the whole of Europe.
The restrictions that apply to drivers' hours should
be operated uniformly including
all cross-border journeys within the Union.
2.3 Road Traffic Penalties
There should be movement towards mutual recognition
of driving disqualificationsand a uniform system of penalty points.
1 June 2009
APPENDIX
GUIDANCE ON USING INTERPRETERS IN COURT
Magistrates do not have the responsibility of
making arrangements for the services of interpreters but it is
important that they should know what the correct procedures are
and assure themselves that these are followed in:
— the implementation of any sentence which
may be decided upon by them.
It should also be remembered by all parties
that the interpreter is not acting for a defendant or a witness
but for the court. Arrangements should therefore be made to ensure
that they are not treated as friends or associates of the defendant
or witness either inside or outside the courtroom.
The interpreter arranged for court should not
be the same person who interpreted at the police station either
for the police or the defendants solicitors at any stage prior
to the court appearance. If however it is not possible to find
another interpreter (for example, where the language is rare)
then the court and all parties must be notified of the intention
to use the same interpreter for the court proceedings. This should
be announced in open court and agreement obtained from all parties.
PRE-HEARING
An interpreter should be both competent and
appropriate for the task. The court chairman should therefore
check beforehand with the Legal Adviser that:
— the interpreter has been properly briefed
in advance;
— there is a language match between the
non-English speaker's best language/dialect and that of the interpreter.
The chairman should also check with the Legal
Adviser that sufficient time has been allowed for a hearing where
an interpreter is being used and that time has been allowed for
the interpreter to take regular breaks outside the court room
of 15 minutes every hour, or otherwise agreed.
IN THE
COURTROOM
The chairman should ensure that:
— the advocates and others involved understand
what they must do to accommodate the interpreting process and
cross cultural nature of the situation;
— the interpreter is situated appropriately
in the court room particularly when a sign language interpreter
is being used; and
— the interpreter takes their oath according
to his/her religious beliefs and also interprets it into the other
language.
All parties should be aware throughout the proceedings
that the non-English speaker may be unfamiliar with the English
legal system, its organisations (eg probation) and procedures
and may need further explanations. It is important that even if
an interpreter's knowledge of criminal justice processes is good,
they should not give any such explanations of these processes
themselves, but instead interpret any explanation given by the
court.
There should be no conversations in one language,
where the content is not communicated to the speakers of the other
language present.
To accommodate the interpreting process during
the hearing, the chairman should ensure that everyone:
— uses simple, unambiguous language;
— uses direct speech eg "what happened
on Friday" rather than (to the interpreter) "Ask him
what happened on Friday";
— pauses at suitable points for interpreting
to take place consecutively during exchanges eg after two or three
sentences and not in the middle of a sentence;
— checks the pace when simultaneous interpreting
(at the same time as the speaker) is being used, eg while the
other language speaker is not being addressed, to allow the interpreter
to keep up; and
— listens intelligently and ask for clarification,
when needed, from the non-English speaker via the interpreter
but not from the interpreter himself.
The chairman should also respond to any interventions
from the interpreter, which are permissible when he or she has
a need to:
— seek clarification of something that
has been said in order to understand it fully before interpreting
it;
— ask for accommodation of the interpreting
process eg if someone speaking too quickly or is inaudible;
— alert the bench that, in spite of accurate
interpreting, one of the parties may not have understood something;
and
— alert the bench to a possible missed
cultural inference ie when it may have been wrongly assumed that
a fact is within someone's frame of reference.
OTHER POINTS
TO NOTE
— The interpreter may take notes as an
aide memoire. If this happens, any confidential information should
later be destroyed or left at court with a court official or legal
adviser. — Do not make assumptions about non-verbal signals.
Expressions, gestures, degree of eye contact, tone or body language
can denote different messages in different cultures. Be careful
about your own, which might also be misunderstood.
— When giving reasons for any decision,
accommodate the other-language-speakers' background and understanding.
— At the end of the proceedings, take time
to summarise the conclusions and any next steps to be taken and
satisfy yourself that this has been understood.
— Ask the interpreter to translate any
essential documentation, eg bail form, and suggest a copy is kept
on file with the original English text.
— Thank the interpreter, preferably by
name.
CHECKLIST ON USING INTERPRETERS IN COURT
1. | Is the Interpreter NRPSI or CACDP registered?
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| 2. | Has their membership been verified
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| 3. | Is the Interpreter agreed by everyone
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| 4. | Has the Interpreters name been noted
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| 4. | Has the Interpreter been properly briefed?
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| 5. | If the hearing is a trial, has enough time been allowed
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| 6. | Check the Interpreter's location in court. Is it suitable?
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| 7. | Check that the Interpreter is not paraphrasing
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| 8. | Are people speaking at an appropriate speed
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| 9. | Is the language of the court simple and unambiguous
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| 10. | In a trial, take regular breaks.
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| 10. | Are notes being taken by the interpreter (if so, they should remain at court)
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| 11. | Summarise frequently and ensure that everything is being understood by all parties
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| 12. | Different cultures employ different non-verbal signals so don't make assumptions
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| 13. | After the proceeding are completed, thank the interpreter by name
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December 2008
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