4 Early operational problems and their
impact
Early operational problems
50. When ALS began operating nationally under
the Framework Agreement it faced immediate operational difficulties
in its provision of services to HM Courts and Tribunals Service,
including a lack of registered interpreters, resulting in poor
quality of interpreting services and difficulties in responding
to demand, and the adequacy and transparency of the complaints
process and the systems underpinning the online portal. We sought
evidence on prisons' experience of using the services of ALS but
our witnesses reported no problems or difficulties of any significance.[86]
Some examples are described in the box below.
Case studies
In the case of R v Rajvinder Kaur at Winchester Crown Court an unqualified man, Mr Lone, stood in for his wife as an interpreter during a murder trial.[87]
An interpreter working for ALS told us:
"I have been told by the company that if I agree to interpret for counsel/probation/ anyone else outside of the courtroom, it is 'in my own time' and I will not be paid for it! How can the system function?! Time down in the cells with a defendant to explain after the decision what the next steps are, appeal etc or outside the courtroom by probation officers is not factored in, and interpreters are expected to try and persuade the court clerk to sign them off at a different time from when the case finishes."[88]
Another respondent to the online forum said:
Even the easiest legal terms were totally misinterpreted. The oath was interpreted as "the proof I will give" - "give evidence" is the simplest of the legal terms used in Court; and astonishingly, the Police's caution (defendant's recorded interview was read out in Court) was interpreted as "you should not say anything. When legal terms such as "burden of proof is reversed", "evidence by way of rebuttal", or even simpler terms as "contemporary notes" were being discussed, Capita's worker just kept an worrying silence.[89]
A defence solicitor explained to us:
[My] client could speak little, if any English and after an hour wait for an Interpreter (which the Police told the Court Clerk they had contacted) nobody had attended. I was unable to adequately explain the situation to the client and therefore unable to provide any alternative address to the Court. Clearly on a Saturday there was no chance of trying to obtain alternative accommodation which is usually arranged through the Probation Service. Therefore the client had to be remanded in custody until the Monday when through the "Russian" Interpreter who attended he was able to secure bail having put forward an alternative address. It was clear that had he had an Interpreter and being furnished with that information bail could and should have been granted on the Saturday.[90]
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Data Source: Justice Committee e-Consultation
UNDERPERFORMANCE AGAINST KEY INDICATORS
51. Our evidence suggested that ALS' poor performance
could be demonstrated by a range of indicators. In the first week
the level of fulfilment against HMCTS' requirement for interpreters
ran at a mere 40%, against a performance target of 98%; the fulfilment
rate in the first month was 65%.[91]
Over two thousand complaints were received in the first quarter
of operation, comprising 13% of assignments that ALS fulfilled.[92]
Fulfilment figures simply represent an indicator of the level
of supply against demand, not quality.[93]
According to the NAO, no quality associated KPIs were included
in the Framework Agreement as the assumption was that after checks
and assessments only interpreters of the right quality would be
supplied to jobs.
ASSESSING THE QUALITY OF PROVISION
52. The majority of the evidence we received
about the performance of interpreters booked through ALS related
to courts rather than tribunals, and in particular to criminal
justice cases. For example, the Law Society explained that it
had not received significant concerns from a wide spectrum of
the profession but was aware of "significant problems in
criminal courts".[94]
The evidence we did receive regarding tribunals, including from
the Senior Presiding Judge, indicated that performance in tribunals
may be less consistent than in courts.[95]
While we received limited evidence specifically related to problems
regarding the translation element of the contract, Professional
Interpreters for Justice believed that the concerns expressed
about the quality of face-to-face interpreting were equally valid
to the quality of translation services provided by ALS to the
justice sector.[96]
The experience of professional interpreters
53. As Professional Interpreters for Justice
noted, it is difficult for the public to assess an interpreter's
performance as they would not have a mastery of both languages.
By definition it is unlikely that a defendant, witness, or victim
who is being interpreted for will realise that they are not being
given accurate translations, although in some cases it has been
obvious to them and to magistrates, for example.[97]
Since February 2012, interpreter members have been attending courts
across the UK as a means of professional development, and, at
the same time they have monitored the attendance and performance
of ALS workers and compiled dossiers of evidence on underperformance.
One interpreter, Yelena McCafferty, established a website, www.linguistlounge.org,
to enable court observers and court users, including solicitors,
to submit evidence of ALS' performance. The site received high
volumes of complaints regarding a failure on behalf of ALS to
provide interpreters and the supply of unqualified, inexperienced
and incompetent interpreters; by August 2012 it had gathered 137
such reports and 178 newspaper reports.[98]
She also documented instances gathered from interpreters of: trials
being halted and delayed as a result of failure to supply interpreters;
verdicts being mistranslated; evidence being distorted; and bail
conditions misinterpreted or omitted. [99]
The experience of the magistracy and legal professionals
54. A few months after the implementation of
the Framework Agreement the Magistrates' Association requested
feedback from its members on their experiences of how the new
service was working in practice within the magistrates' court
system. Approximately one-third of areas responded and, according
to the Association, these represented a wide geographical spread
across England and Wales and between rural areas and cities. A
small minority (10%) of respondents thought the service had improved
with the new arrangements; they found the system more flexible
now and thought it had facilitated the availability of a greater
range of languages. The nature of experiences of the vast majority
of those who provided feedback, and individual magistrates who
provided evidence to us directly, was comparable to the incidents
that had been collated by professional interpreters. According
to the Law Society and individual barristers and solicitors, legal
professionals—who rely on ALS interpreting services to interact
with their client and to ensure that their client understands
the proceedings of the court and the implications of decisions
regarding their plea and bail, for example—had experienced
similar problems.[100]
The impact on court and tribunal
proceedings
55. There are a number of areas which the majority
of respondents to the Magistrates Association survey and individual
magistrates' courts had found problematic with the ALS contract.
Some problems primarily related to organisational issues. For
example, interpreters had been unable to stay for the whole duration
of court proceedings or had failed to arrive at the right time;
moreover some interpreters were directed to the wrong court house.[101]
Another key problem for magistrates' courts, particularly those
more distant from large urban areas, has been the location of
interpreters, predominantly those with oversubscribed or with
less common language skills; the implementation of the contract
with ALS has meant that interpreters have had to be brought in
from further afield, at the cost of travel expenses and court
time, despite the presence of local interpreters who had been
used prior to the ALS contract.[102]
ALS had also allocated translators who did not speak the required
language, or with the wrong language or dialect skills; there
are examples of a Kurdish interpreter being sent for a Bengali
client and a Portuguese speaker being provided for a Spanish client.[103]
56. Another problem was that interpreters were
reported as frequently having performed inadequately in their
role. Evidence from solicitors and magistrates suggested that
some interpreters did not have sufficient language skills, either
in the required language or English, necessary to ensure the full
understanding of the defendant.[104]
In some cases magistrates had been forced to rely on their own
language skills, and to use online translation tools.[105]
57. There also appears to have been a lack of
knowledge of court etiquette and process, for example, interpreters
not informing the court if they were going to be late, not dressing
appropriately, or failing to whisper.[106]
There have also been cases in which the interpreter has failed
to accurately translate everything that has been said to the client
and what the client has said to the court. Some interpreters have
been unaware that they are required to give precise translations
and unaware that they are required to swear an oath to court.
Under such circumstances solicitors reported that their clients
had been unable to comprehend the decisions and proceedings of
the court and had been unable to adequately instruct their advocate
as to their desired direction.[107]
Mr Jeremy Lynn, a barrister, told us that he had found interpreters
unable to cope with the language in court, words which he described
as the "everyday fare of a criminal court" like, for
example, indictment, joint enterprise, conspiracy, which "leave
this new breed of interpreter floundering".[108]
He also expressed concerns about the behaviour of interpreters
in court.
58. Mr Fassenfelt raised two consequences of
requests for interpreters being unfulfilled that most concerned
him. First, an individual may be remanded in custody as a consequence
of no interpreter being available and, secondly, a trial may collapse,
inconveniencing witnesses and, if the defendant was previously
remanded in custody, putting them back there.[109]
We heard from a magistrate from South East Suffolk who had personally
observed the emotional distress of defendants when he had been
unable to communicate with them the reasons for adjournments or
remands in custody for lack of information.[110]
Mr Atkinson gave examples of delays to a crown court trial and
of a defendant with no previous convictions being remanded in
custody on three consecutive occasions for lack of an interpreter
then being granted unconditional bail.[111]
We received evidence of many other examples of repeated adjournments.[112]
59. We have referred above
to the Ministry's efforts to prevent us receiving first hand testimony
from court and tribunal staff on the standards of interpreting
services. It is clear to us from the evidence we have been able
to collect that the quality and effectiveness of court and tribunal
interpreting services was seriously hampered by ALS' performance.
THE RIGHT TO A FAIR TRIAL
60. The ability to understand criminal proceedings
and the prosecution's case is vital to preparing a defence and
receiving a fair trial. The scope for damage as a result of poor
quality interpreting is very significant; at worst inaccuracies
in interpreting could lead to miscarriages of justice, for example,
wrongful conviction. [113]
There was some disquiet amongst many witnesses, from the interpreting
sector in particular, that the operational problems and reduction
in quality of interpreters under the new tiering system had impacted
on court proceedings to such an extent to deny defendants a fair
trial.[114]
61. We asked Mr Atkinson of the Law Society for
his views on the potential for the current quality of interpreting
to result in miscarriages of justice or in undermining the right
to fair trial. He suggested that the extent would be difficult
to ascertain. While he was confident that miscarriages of justice
would occur infrequently, he nevertheless felt that it was possible.
In his experience more commonly cases had been stopped and restarted.
Furthermore he explained that fair trial provision within European
jurisprudence looks at the whole duration of the process. He stated:
"If one is looking not at the total outcome but at each of
those processes, clearly it is impacting. People are being remanded
in custody. Perhaps the greatest indictment of the present failures
is that people are spending time in custody for no reason other
than the lack of an interpreter. Although that would not come
into the category of someone being denied a fair trial at the
end of the day, when looking at the trial process, I would be
very happy to say they had been denied a fair trial process."[115]
We also sought the views of the Senior Presiding Judge, Lord Justice
Goldring, on this matter, but he raised no significant concerns.[116]
62. Collapsed cases come under two categories:
'cracked' trials, where a case is concluded without a court hearing;
and 'ineffective' trials, when a hearing is cancelled on the day
it was scheduled to go ahead and has to be delayed to a later
date. The trend for ineffective trials as a result of non-attendance
of interpreters is rising. Between 2006 and 2011 the percentages
of ineffective trials that were attributed to this were below
1% in magistrates' courts and 0.5% in crown courts. In 2011, 327
trials in magistrates' courts and 17 in crown courts were deemed
ineffective for this reason. In the first six months of 2012,
during which time ALS was in operation for five months, there
were 345 such trials in magistrate courts and 17 in crown courts,
representing 2% and 0.6% of ineffective cases respectively.[117]
63. We are seriously concerned
about the increase in ineffective trials as a result of non-attendance
of interpreters, particularly in magistrates courts.
We will monitor the quarterly statistics on ineffective
trials for the remainder of the year to see whether this is an
ongoing trend.
86 Ev 30 Back
87
Ev w9 Back
88
Elsy, interpreter working for ALS, respondent on online forum,
see Annex Back
89
Hirolo1926, self identified as other, respondent on online forum,
see Annex Back
90
Robin123, a Defence Solicitor from the North of England, respondent
on online forum, see Annex Back
91
Ev 52 Back
92
Ministry of Justice, Statistics on the use of language services
in courts and tribunals, Initial bulletin, 30 January 2012 to
30 April 2012, May 2012 Back
93
Q 33 Back
94
Ev 48 Back
95
Ev 108 Back
96
Ev 109 Back
97
Q 47 Back
98
Ev w17 Back
99
Ibid. Back
100
Ev 48 Back
101
Ev 47, Ev w17 Back
102
Ev 47 Back
103
Ev 48; Apollo, respondent to online consultation, see Annex Back
104
Ev 48, Ev 47 Back
105
Ev w17 Back
106
See Ev w44, Ev w72, Ev w81, Ev w83, Ev 47 Back
107
Ev 48 Back
108
Ev w1 Back
109
Q 46 Back
110
Ev w17 Back
111
Q 46 Back
112
See Ev w13, Ev w17, Ev 109, Ev w66, Ev w72, Ev w81, Ev w119 Back
113
Ev 38 Back
114
See Ev w9, Ev w31, Ev w39, Ev w41 Back
115
Q 54 Back
116
Ev 108 Back
117
Compiled from Ministry of Justice, Court statistics (quarterly),
relating to Q 1 and Q 2 in 2012 Back
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