Justice CommitteeWritten evidence from Fair Trials International

Executive Summary

1. Fair Trials International (FTI) has long been concerned about standards of interpretation and translation services, not only in the UK but throughout the European Union (EU). The ability to understand criminal proceedings and the prosecution’s case is vital to preparing a defence and receiving a fair trial.

2. We welcomed the adoption in 2009 of an EU Directive guaranteeing that nobody facing criminal charges in any EU country would be disadvantaged because they do not speak or understand the language of the country in which they are accused or arrested. The UK opted in to this Directive, which must be implemented into domestic law by October 2013. The right to interpretation is well protected in UK law, but new legislation will be needed to make sure that translations of key documents are available free of charge and that high standards of interpretation and translation are maintained. These are requirements under the Directive.

3. Over the past six months we have been concerned about reports that standards of interpretation in the UK are declining. When cases are adjourned due to lack of an available interpreter, this not only has an impact on the individual suspect but also causes significant costs to the Government and ultimately, the tax payer, due to wasted police, court and lawyer time. We are aware of cases in the UK where proceedings have continued in the absence of an interpreter, even though it is not clear that the defendant understands the proceedings—a clear violation of the right to a fair trial.

4. As technology is increasingly used in interpreting services, both through telephone and video-link, it is vital that adequate procedures are introduced to ensure that high standards of interpreting are maintained. Audio and video recording is an efficient and cost effective way of creating an accurate and impartial record of all interpretation provided in a case, to deal with any doubts or complaints which may arise at trial or on subsequent appeal or review. We recommend that it is used in all cases involving interpretation.

5. The UK has traditionally had high defence rights standards in comparison to many other European countries. We appreciate that resources are tight due to the current austerity measures and economic crisis. However, proper safeguards for basic fair trial rights are not a luxury we can do without in a modern and fair justice system. Action is needed to ensure that every person arrested or tried in the UK has proper protection for the fundamental right to a fair trial, including the vitally important right to access high standards of interpretation and translation.

Context of this Inquiry

6. FTI welcomes this opportunity to present its views on interpretation and translation services in the United Kingdom to the House of Commons Justice Select Committee. The right to effectively communicate in, and understand, criminal proceedings is an indispensable aspect of the right to a fair trial. A lack of adequate interpretation and translation during any stage of criminal proceedings is unjust and violates Article 6(3)(e) of the European Convention on Human Rights (ECHR), which states that everyone charged with a criminal offence has the right to “the free assistance of an interpreter if he cannot understand or speak the language of the court”. If defendants cannot understand the case against them or communicate properly with their lawyer then they cannot properly prepare a defence and therefore cannot receive a fair trial.

7. In the six months since the Applied Language Services contract came into effect in February 2012, we have heard reports of a number of hearings in UK courts where interpreters have not been available (often failing to turn up despite being booked), leading to adjournment until a later date. This has an enormous impact on the suspects involved, who may have to wait weeks for their cases to be heard, often without being granted bail. It also incurs significant public costs due to wasted court and police time and unnecessary periods spent on remand. If the suspect is legally aided then these costs will be increased further as the lawyer will have to return on an alternative day.

The New EU Directive on Interpretation and Translation—Why it is Needed

8. FTI helps hundreds of people arrested abroad every year, and the standard of interpreting in police stations and at court proceedings in many EU countries continues to be a common problem reported by those whom we assist. In 2010, 33% of the people who contacted us from EU countries reported being denied access to an interpreter or translation of key documents.

9. In recognition of the fact that fair trial rights are not adequately safeguarded in many EU countries, the EU adopted the “Roadmap” on procedural defence rights in November 2009. This gave a mandate for a series of laws designed to ensure better protection of defence rights in Europe. The first Directive under the Roadmap, on the right to interpretation and translation in criminal proceedings, was adopted in October 2010.1

10. FTI was delighted that the UK opted into the Directive, which must be implemented into the national law of all Member States by October 2013. It will help ensure that nobody is denied a fair trial because they do not understand the language in the country in which they are accused or arrested. It provides additional concrete protections to the basic principles enshrined in Article 6(3)(e) ECHR including, for example:

Interpretation: Interpretation must be provided free of charge for proceedings before investigative and judicial authorities, during police questioning, for all court hearings and in certain circumstances for communication between suspects and their lawyers.

Written translation: Written translations of documents essential to enable suspects to exercise their right of defence must be provided within a reasonable time and without charge.

Sufficient quality: The interpretation and translations provided must be of sufficient quality to ensure that suspects have knowledge of the case against them and can exercise their right of defence.

11. Free access to interpretation for all suspects in criminal proceedings is well established in the common law of the UK and is protected in statute for those in custody.2 However, the duty to translate documents free of charge is not explicitly included in UK law and relies on the case law of the European Court of Human Rights.3 We note that the Government has indicated that it expects to be in compliance with the Directive by the implementation date of October 2013.4 In order to achieve this it is likely that there will be a need for legislation to clarify what types of documents must be translated free of charge, and to make provision for the maintenance of high standards of interpretation and translation. A failure to comply would enable the European Commission to bring infringement proceedings against the UK at the Court of Justice of the European Union in Luxembourg.

12. Given the need for the Directive to be effectively implemented during the next year and the UK’s traditionally strong record in this area, it is concerning that standards of interpretation in the UK are now reported to be declining. Members of FTI’s Legal Expert’s Advisory Panel (LEAP), a network of experienced cross-border defence practitioners, have previously warned that great caution should be used around subcontracting interpreting and translation services to agencies, due to the risk of cost increases and the possibility that independence will be compromised.5

13. Worryingly, cases are sometimes allowed to continue despite the fact that no interpreter is present. FTI observed an extradition hearing at Westminster Magistrates Court on 24 August 2012 where an Albanian interpreter was required but none was available. The hearing commenced regardless. At the end of hearing, the judge remarked that he hoped that the defendant had been able to follow proceedings, but received no reply and made no active effort to ascertain whether this was the case or not. FTI is concerned that defendants are being required to attend extradition hearings in the UK that they do not understand, given the serious human impact extradition has on individuals and their families.

Increased use of Technology in Interpreting Services

14. Telephone interpreting is widely used in police stations and video-linking is increasingly being considered as a means of overcoming shortages of interpreters. At present, these are used for simple procedures but are not considered appropriate for use in evidential procedures or at trial.6 It does however seem likely that, as technology continues to advance, both telephone and video-linking will be used for interpreting in increasing numbers of cases.

15. Technology can offer a good way to deal with situations where the personal attendance of an interpreter is impossible, for example, due to the rarity of the language or dialect required or in genuine emergencies. However, care must be taken to ensure that accurate and reliable standards are maintained and that the suspect fully understands the proceedings to the same level as if a physical interpreter was present. In July 2011, FTI visited a women’s prison in England and interviewed eight non-national prisoners about their experiences on remand. Several of these women indicated that their pre-trial detention hearings had taken place via video-link and that they could not understand the proceedings.7


16. The Directive must be implemented into national law by October 2013. While rights of interpretation are already well protected under UK law, legislation will be required to ensure: a) that the UK complies with the provisions of the Directive that relate to translation of documents in criminal proceedings; and b) that the UK’s traditionally high standards of interpretation and translation do not slip.

17. Audio or video recording provides a good way of both checking that adequate standards are in place and reducing the risk of unfairness where it transpires that suspects have not understood the interpreter. The UK currently has strong provisions in its laws relating to the recording of interviews in police stations.8 While the Directive is silent on this point, it is our recommendation that audio and/or video recording should be used in all cases involving interpretation in the UK. Recordings should be preserved throughout the proceedings so that any subsequent doubts about content or accuracy can be easily clarified. Recordings also streamline the complaints process by providing an impartial and accurate record of the interview or court proceedings.


18. The right to high quality interpretation and translation during criminal proceedings is a cornerstone of a fair trial, and will be enforceable under EU law from October 2013. FTI is concerned that the UK is moving backwards in this area and in some cases is failing to guarantee adequate standards to those who do not speak English or are unable to understand proceedings, particularly at bail hearings and in extradition hearings.

19. The UK should now be focusing on the steps needed for full compliance with the new Directive. It is important to maintain the traditionally high standards of interpretation in criminal proceedings in the UK and to extend these to the translation of documents. A failure to do so will mean not only that suspects and defendants are denied their basic fair trial rights, but also that the UK may be subject to infringement proceedings brought by the European Commission.

September 2012

1 Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings

2 See Police and Criminal Evidence Act 1984, Code C

3 European Scrutiny Committee, Twenty-Ninth Report of Session 2008–09, Documents considered by the Committee on 14 October 2009, page 71, available at http://www.publications.parliament.uk/pa/cm200809/cmselect/cmeuleg/19xxvii/19xxvii.pdf

4 Oral answer to EU Interpretation and Translation Question, House of Lords 9 July 2012 http://www.publications.parliament.uk/pa/ld201213/ldhansrd/text/120709-0001.htm#1207098000454

5 See communiqué issued after the Fair Trials International Legal Experts Advisory Panel Meeting (11 September 2009) available at http://www.fairtrials.net/documents/LEAP_Communique_September_2009.pdf

6 Section 9 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 and 2011, available at http://www.justice.gov.uk/courts/interpreter-guidance

7 For more information see page 21 of “Detained without trial: Fair Trials International’s response to the European Commission’s Green Paper on detention” October 2011 available at http://www.fairtrials.net/documents/DetentionWithoutTrialFullReport.pdf

8 See Police and Criminal Evidence Act 1984, in particular Codes E and F

Prepared 5th February 2013