Justice CommitteeWritten evidence from Matthew Scott

Summary

I am a barrister practising in criminal law.

I have had personal experience of ALS failing to provide interpreters for my cases

I believe the Framework Agreement is damaging to the interests of justice. It will lead to a decline in interpreter quality, and has indeed already done so.

It flies in the face of recommendations on interpreters in the criminal justice system made by two Royal Commissions. It may not meet the Government’s minimum obligations under domestic and international law.

I also believe that the Agreement is likely to lead to an increase not a decrease in public expenditure.

The Government should exercise its power to withdraw from the Agreement, either by giving the contractual three month notice or immediately.

Inquiry into the provision of interpretation and translation services since Applied Language Solutions (ALS) began operating as the Ministry of Justice’s sole contractor for language services in February 2012

1. I am Matthew Scott, a barrister practising in criminal law from the chambers of Oba Nsugbe QC, 3 Pump Court, Temple, London EC4. I prosecute and defend in roughly equal proportions. This submission is made in a purely personal capacity.

2. I work mainly in Crown Courts in Hampshire, Wiltshire and Dorset. I have contributed two articles to The Times on the subject of the ALS/Capita Framework Agreement on Language Services in the justice system.1 My wife is a professional interpreter and was, until August of this year, a member of the National Register of Public Service Interpreters.

3. I have been practising at the bar for over 25 years and in that time I have had considerable experience of using interpreters. In cases where they are required the competency of an interpreter is central to a court’s ability to do justice, whether to complainants, witnesses or defendants.

4. Two Royal Commissions on Criminal Justice, Lord Runciman’s in 1993 and Lord Justice Auld’s in 2001 considered the role of court interpreters in criminal cases. Both stressed the importance of properly qualified and fairly remunerated interpreters to the criminal justice system. Following the recommendations made by these Royal Commissions the courts and the police, save in exceptional cases, until the implementation of the Framework Agreement, obtained interpreters from the National Register of Public Service Interpreters (“NRPSI”). All members of the NRPSI are qualified, at the very least by long experience, and most possess at least a Diploma in Public Service Interpreting (DPSI) or equivalent qualification. All are security vetted. Membership of the register is regarded as a mark of competence, and in many cases of excellence.

5. An incompetent interpreter can easily make a trial unfair. A single error can lead to a fundamental misunderstanding. Where the result may be that a person is wrongly convicted or wrongly acquitted the consequences are very serious. Since in many cases there is no-one in court who can appreciate the interpreter’s mistake it is very likely that such a misunderstanding will be overlooked. Even if it does not have that effect, an inaccurate interpreter will slow the trial process down leading to delay and expense.

6. For these and other reasons both the Runciman and Auld Royal Commissions into criminal justice made recommendations which were designed to improve the professionalism, status and remuneration of court interpreters. The Auld report in particular stressed the importance of attracting well trained and qualified people into the profession.

7. Given the considered recommendations of both Runciman and Auld it was surprising that the Government should have entered into the Framework Agreement with ALS in 2011 in which a completely new and nationwide system for providing court interpreters was to be entrusted to a small untested company which proposed to reduce both both the level of qualifications required and the level of remuneration paid to court interpreters. What is more (as far as I am aware) this was done without any consultation with the legal profession or the judiciary, and without adequate consideration being given to the need to ensure—or better still improve—the quality of court interpreters.

8. As was predictable the effect of the changes has been to lower professional standards and reduce the status of professional interpreters.

9. I am aware that ALS claims to have systems in place to ensure the competency and honesty of those who work for it. Competency is meant to be ensured by a computerised interpreting “assessment”, although as ALS themselves say on their web-site www.linguistlounge.com “The assessment is not an exam and will not result in a qualification. Moreover, it is also “not a pass or fail test”. There appears to be no element of independent scrutiny, the names and identities of the examiners are secret although ALS strongly implies that the examiners are not themselves professional interpreters. This does not inspire much confidence. In any event, anecdotal reports of interpreters registering and being given work without being put through even this highly unsatisfactory assessment process are so widespread as to raise real doubts as to whether it is more than a fig leaf to cover the fact that ALS are in fact willing to use virtually anybody prepared to sign up with them.

10. It is clear that the ALS strategy of using under-qualified interpreters was central to their business plan. Within their tender response they had indicated that they would be “increasing the pool of qualified interpreters”. How would the “pool” be increased? ALS proposed to correct “structural flaws within the Diploma in Public Service Interpreting …. This will allow more than one thousand linguists who have failed only the translation element of the DPSI, to be used on many interpreting assignments.”2 In other words, a key element of ALS strategy was to use over a thousand interpreters who had failed a key part of the most widely recognised interpreting qualification. Whilst ALS claimed that such failed interpreters would not be employed on “tier 1” assignments, in practice no such quality control appears to have been put in place. The alarming and well-publicised case of R v. Rajvinder Kaur3 at Winchester Crown Court in which an unqualified man, Mr Lone, stood in for his wife as an interpreter in a murder trial suggests at the very least that any such controls are inadequate.

11. ALS also claimed that they “pay above the market rate … to attract the most highly qualified individuals4 Instead, under the Framework Agreement they are paying substantially below the going rates and set out to recruit under-qualified individuals, specifically those who have failed the translation element of the DPSI, but in practice almost anyone who applies including, in one well-publicised case, a rabbit.5

12. In any case the idea that a court interpreter does not need competency in written translation is fundamentally misconceived. In any criminal trial a witness is likely to be cross-examined on the basis of a witness statement, or some document will form part of the exhibits in a case. At any time an interpreter may be called upon to translate a written document. It is absurd to suppose that somebody unable to perform written translation to the DPSI standard would be competent to act as an interpreter in a criminal case, at any stage of the proceedings.

13. I have personal experience of using an unqualified court interpreter to translate a routine document in a case at Winchester Crown Court heard in February of this year. I do not know whether the interpreter was supplied by ALS, but I do know that she was not a member of the NRPSI. The case was a serious one involving allegations of cruelty to a child and perverting the course of justice. I was representing one of the Nepalese speaking defendants, Mr Dilli Lechharbo. Eventually I drafted a “basis of plea” which was agreed with the prosecution. Whenever such a document is drafted it is essential that the defendant understands it (I attach a copy of my draft as a Appendix 1 to this submission). It was not a long document. I asked the interpreter to translate it into Nepalese. She took a very long time indeed to do so, making extensive use of a dictionary and appeared to make a number of telephone calls. It seemed that she was struggling with the task, although eventually a Nepalese document was produced which Mr Lechharbo signed. I cannot say that the document was mistranslated—I have no idea—but the suggestion that anybody should be considered suitable to act as a court interpreter when they are unable to translate routine yet important legal documents of this sort demonstrates a fundamental misunderstanding of the court interpreter’s role.

14. I should perhaps mention that following Mr Lechharbo’s guilty plea the case was adjourned for sentence. On the first occasion ALS failed to supply any interpreter (despite having had three weeks notice of the hearing) and the judge had no option but to adjourn the case for a further couple of weeks. As a result I emailed Louisa Carrad the Ministry of Justice Interpretation Project Manager setting out my concerns. I attach a copy of this email as Appendix 2. I received no response from either Ms Carrad or anyone else at the Ministry of Justice. On the second occasion ALS again failed to supply any interpreter. Eventually the defendant’s son, who spoke reasonable English but had no training or experience of any sort, was persuaded to act as the court interpreter. With the co-operation of prosecution counsel who supplied him with a written copy of his opening (which he was allowed about 30 minutes to study) he was able to interpret most of the prosecution case. He was unable to interpret any of the Judge’s sentencing remarks.

15. This was a disgraceful state of affairs: that a system should have been set up that on two separate occasions simply failed to supply any interpreter in a serious case in which one defendant spoke very limited English and one spoke none at all.

16. Both the European Convention on Human Rights6 and the October 2010/64 EU Directive on interpretation and translation in criminal proceedings make it the duty of Government to ensure that proper provision is made to ensure that accused persons are provided with adequate interpretation and translation services. Common law principles of fairness demand the same thing. My own experience demonstrates that as a direct result of the Framework Agreement this basic duty of government has been breached in ways that are unfair and very probably also unlawful.

17. The Framework Agreement may directly breach Article 5 of the EU Directive which provides:

(1)Member states shall take concrete measures to ensure that the interpretation and translation provided meets the quality required under Article 2 (8) and 3 (9).

(2)In order to promote the adequacy of interpretation and translation and efficient access thereto, Member States shall endeavour to establish a register or register of independent translators and interpreters who are appropriately qualified. Once established, such register or registers shall, where appropriate, be made available to legal counsel and relevant authorities.

One effect of the Framework Agreement is that if ALS (or for that matter any other single provider) become established as the sole provider of interpretation services in the criminal courts there would no longer be any purpose served by the National Register of Public Service Interpreters. Independent interpreters would no longer have any reason to join and it would wither and die. There would then no longer be a register of “independent translators and interpreters who are appropriately qualified”.

18. It therefore seems to me that the highly probable result of continuing with the Framework Agreement with ALS will be that the profession of court interpreting will be seriously damaged. Highly skilled and competent individuals will leave the profession and the criminal justice system will once again have to rely on under-qualified, underpaid and inexperienced bilinguals. All the advances made since Runciman and Auld will be reversed.

19. This would not be a price worth paying even if the savings in public money were as promised by the government. In practice however I have little doubt that the cost to the public purse will actually be far greater than any notional savings that may have been envisaged when the Framework Agreement was signed.

20. It is important that in considering the financial implications of the Framework Agreement the Select Committee should not look at the interpreting budget in isolation. It is easy to reduce the interpreting budget if no interpreter is supplied for a case, but this greatly increases the cost to the public. For example, in cases such as that I have described in this submission, the actual cost to the interpreting budget will have been nil as no interpreter turned up at all on two hearings. In fact, however, the costs of four counsel, judge and court were wasted on an abortive sentencing hearing. The cost to the public under the old system would have been an interpreter at £85 (plus modest travel expenses) and the case would have been disposed of in one hearing.

21. The Select Committee also needs to scrutinise any figures for such matters as “court cancelled” interpreters with great care. I know from speaking to court managers that on some occasions hearings have been cancelled—sometimes at very short notice—simply because ALS has indicated that it has not been able to supply any interpreters for a particular hearing. If this is categorised as a “court cancelled” assignment it may conceal the fact that the only reason that the assignment was cancelled was because ALS could not supply an interpreter.

22. There may have been a perception that costs of court interpreting were in some way out of control before the introduction of the Framework Agreement. But the Ministry of Justice’s own figures do not seem to bear this out. The total spent by the Court Service on interpreters fell by 13% from £49.2 million in 2009–10 to £47.2 million in 2010–11.7

23. I note from the Paragraph 38 of the Framework Agreement that the Government has the option to cancel the contract on three months notice. This is irrespective of any right to cancel on the basis of poor performance by ALS. In my opinion the agreement has not worked and the effect on court interpreting services has been so malign that its continuance will be a running sore on the administration of justice. If the agreement remains in place unqualified interpreters will make mistakes, non-English speaking witnesses and defendants will be handicapped and unfair trials will take place. The effects on the integrity of our criminal justice system are unquantifiable, as is the increased cost to the public purse of the delays, adjournments, appeals and retrials that will result. The existing well-qualified profession of court interpreters will cease to exist and be replaced by a less professional and less well-qualified body of casual workers.

24. I would therefore urge the Select Committee to invite the Government to exercise its power to cancel the Framework Agreement before further public money is wasted and further injustice is caused.

August 2012

APPENDIX 1

R v. Dilli Jung Lechharbo

BASIS OF PLEA

I plead guilty to Counts 5 and 6 on the indictment on the following basis:

Count 6

1.Although I believe Bishwa did fall whilst playing football, I did not myself see any injuries on him afterwards. Nor had anyone else told me that he had been injured in this incident. I therefore do not know whether he was injured or not by this fall. For this reason I accept that when I wrote in the letter at Exhibit Pages 72–74:

“tell them on Sunday 28th April (sic), while Bishwa was playing football with his male friends outside the house there had suffered a serious injury …”

I was asking my wife to say something that I did not know to be true, with the intention that the police would be misled.

Count 5

2.I accept that at Exhibit Pages 109 and 121 in the course of telephone conversations with my wife I asked her to say that Bishwa had injured himself by falling over playing football, or while doing kung fu. I accept that this was speculation as I did not know that he had been injured in this way. I therefore accept that again I was asking my wife to say something that I did not know to be true, with the intention that the police would be misled.

Signed ….

APPENDIX 2

From:

Matthew Scott

Sent:

Fri 3/2/2012 12:23 PM

To:

louisa.carrad@cjs.gsi.gov.uk

Cc:

Subject:

Interpreter problems

Attachments: 

Dear Ms Carrad

I have been given your email address as the person at the MoJ responsible for administering problems with the company supposedly supplying interpreters to court.

Through no fault of Winchester Crown Court the sentencing hearing of three Nepalese speakers had to be adjourned for a month today because no interpreter was available. I was representing one of those due to be sentenced today and understandably he was extremely upset. The case (R v. Dilli Lechharbo & others) involved allegations of cruelty to a child and perverting the course of justice.

I thought perhaps you should be made aware as it appears that this has become a widespread problem since the introduction of new contractual arrangements for the hiring of court interpreters.

Yours sincerely

Matthew Scott

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1 http://www.thetimes.co.uk/tto/law/article3185193.ece http://www.thetimes.co.uk/tto/law/article3351645.ece

2 Framework Agreement p.131

3 http://www.dailyecho.co.uk/news/9829131.Interpreter_fiasco_at_murder_trial/
It is not even clear that his wife was adequately qualified. No-one with the name of “Lone” (the husband’s name) appears on the National Register of Public Service Interpreters website.

4 Framework Agreement pp126–127.

5 http://linguistlounge.org/index.php/all-articles/analysis-and-comment/490-i-registered-with-als-with-fake-details-and-got-12-job-offers

6 Art. 6 (3):
Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b)...
(c) ...
(d) ...;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

7 Ministry of Justice FOI 70507 June 2011.

Prepared 5th February 2013