Thematic report on Crown Office and Procurator Fiscal Service's response on race issues

INTERPRETERS

The findings in this chapter were at times unexpected and it is an area in which people of many different backgrounds held very strong opinions on what was happening currently and on methods of improvement.

It is an area in which the Department has taken a leading role in driving up standards. However, future improvements have to be driven, not just by Crown Office and the Procurator Fiscal Service, but also by all criminal justice partners, the interpreting agencies and by public authorities more widely.

Research for this chapter consisted of: -

• Reviewing the written guidance for COPFS staff, guidance from the Lord Advocate to the police and the protocol between the Scottish Court Service and COPFS.
• Research into what actually happens in our courts with the information coming directly from witnesses and interpreters (where the interpreter was requested by the Crown) interviewed at courts during their attendance for trials and other court diets. A total of 16 interpreters were interviewed.
• 50 postal questionnaires returned by interpreters. This included interpreters requested by the Scottish Court Service and the police. A summary of the results is contained at Annexe B.
• 13 focus groups with members of the minority ethnic communities and COPFS staff around the country.
• Contact with all local authorities.
• Contact with the Scottish Association of Sign Language Interpreters (SASLI).
• Contact with the National Register of Public Service Interpreters in London.
• Consultation took place countrywide with approaches in various forms also being made to areas outwith the central belt.

Background

To put the situation into context reference has to be made to the past and the changes that have happened in the years since the tragic case of Surjit Singh Chhokar.

A significant finding from all of our research was how little understood was the role of the Department, its operational responsibilities and its place in the partnership of criminal justice agencies.

"People need to know what the Fiscal does."
(Minority ethnic focus group member, Glasgow, 14 October 2004)

A Historical Perspective

Until the new measures were introduced interpreters were cited for court and precognition as though they were witnesses.

Citation was done by COPFS for court whether the interpreter was required for a witness or an accused.

Later consideration of this practice concluded that it did not properly reflect the role of the interpreter in providing expert assistance nor did it reflect that the interpreter could properly choose to refuse the assignment.

"It is a much better system (nowadays). You used to get a citation and the people issuing the citation did not have a clue about language match. You used to get requests for 'Pakistani' interpreter!"
(Interpreter 18, court study, September 2004)

Interpreters were not used routinely to assist witnesses or family members follow proceedings at court, which was of course, one of the difficulties manifested at the first Chhokar trial.

Documents for witnesses or next of kin who could not speak English were not routinely translated.

Current Policy and Practice

In 2001 COPFS Race Strategy Group reviewed the arrangements and policy for the instruction of interpreters in the criminal courts and updated policy and guidance was issued to staff on 6 July 2001.

Bodies consulted on the new arrangements and policy had included:-

• The Scottish Translation, Interpreting and Communication Forum;
• Racial Equality Councils;
• The Scottish Association of Sign Language Interpreters (SASLI) and
• Private interpreting agencies that supplied interpreters to the Crown.

The Department is obliged to instruct a suitably qualified and experienced interpreter for witnesses in court and how this is achieved is outlined later in this chapter.

In October 2002 the practice was extended to cover consideration of such a service to bereaved and other relatives who wished to view court proceedings.

As of 1 April 2002 the responsibility for instructing an interpreter for an accused person, as opposed to a witness, passed to the Scottish Court Service for Sheriff and High Court cases. The exception to this is where an accused appears from custody when the police, on behalf of the Scottish Court Service, arrange the interpreter to assist the accused at his or her first court appearance.

We found the majority of interpreters instructed for court are to assist accused persons.

This highlights the need for the Department to work with the Scottish Court Service as it is currently doing in the Working Group for Interpreting and Translation Provision in the Criminal Justice System in Scotland (WGIT).

Improvement of the current position cannot happen without the involvement of all criminal justice partners.

"We need to bring everyone together to share what everyone needs out of interpreting and translation services. Other people such as the police and the solicitors should be included. They can discuss each other's role and what is expected of that party by the others."
(Interpreter 15, court study, July 2004)

The Practicalities

As common sense dictates, the current position is that the police Reporting Officer has responsibility for advising the Fiscal as to whether interpreting services are required or not. The quality of the work of the Procurator Fiscal depends entirely on the quality of information provided by the police which again emphasises the need for joint working in this important area.

"I missed court. There should be some arrangement for it (citation) to be translated so we can read it and understand."
(Witness 7, court study, June 2004)

(Witness 7 was a complainer in a domestic abuse case in June 2004 for whom a warrant was granted after her failure to appear due to her inability to understand the citation. The police report made no mention that the complainer required an interpreter.)

As part of the review of reports of racially motivated crime in 2000 (July - October 2000) it had been found that Reporting Officers generally did not assess the language need of individuals from minority ethnic communities and simply assumed that the Fiscal would know whether an interpreter was required.

A companion of one witness cited for June 2004 (witness number 2, court study) advised that the wife of the witness had phoned the Procurator Fiscal's Office to advise that he would require an interpreter for trial. The police report made no mention that the witness required an interpreter.

The current position where the police have responsibility for passing on information on interpreting and translation needs is contained in the second set of guidelines (dated February 2002 which succeeded an earlier set dated May 2001) from the Lord Advocate to Chief Constables on the investigation and reporting of racist crime (see Annexe C). The guidelines outline the current responsibilities of the police to assess the language needs and cultural sensitivities of accused persons, victims and witnesses from an ethnic minority.

• The accused, victim or witness should be asked to state their first or preferred language.
• The accused, victim or witness should be asked whether correspondence and documentation to be sent to them will require translation.
• These preferences should be included in the police report.
• The language and dialect required should be specified both in the police report and the statement of the witness.
• If the Reporting Officer is in any doubt as to whether an interpreter is required then the police should provide one and the Fiscal should be advised of the view of the Reporting Officer.
• If the Reporting Officer concludes that an interpreter is not required than that should be specifically stated in the police report.
• The police should also advise the Fiscal of the ethnic and religious background of any individual who requires interpreting services.
• The name and contact details of the interpreter used by the police should be contained in the police report.

A further review of police compliance with the Lord Advocate's Guidelines on the reporting of racially motivated crime (October 2002 - March 2003 and October 2003 - findings reported June 2004) found that in 59% of cases the report included an assessment as to whether the accused or witness required an interpreter. However, in 93% of the 59% of cases the assessment was an adequate one. This is subject to constant joint working between COPFS and the police.

Where there is no assessment of the language needs of the witness or accused in the police report Procurators Fiscal will proactively and robustly seek clarification from the Reporting Officer as to whether such an assessment took place and the result. Guidance on this was issued to Fiscals in July 2001.

"… the police did not bring an interpreter, it could've been better, I'd have preferred an interpreter. It was difficult to give a statement without one. I would've been positive if the police brought someone who spoke the language."
(Witness 10, court study, September 2004)

(In this case it was not highlighted in the police report that the witness required an interpreter.)

Language Line

After a pilot in the Procurator Fiscal's Office in Glasgow all COPFS offices have had Language Line telephone interpreting service available since January 2001.

Language Line accesses more than 100 different languages in a matter of seconds. This is an extremely useful resource for instances when people simply come in without an appointment, off the street, with a query. The importance of being able to communicate cannot be overemphasised.

Crown Office do not currently analyse what use is made of the service. This may be a lost opportunity to assess developing language needs.

Recommendation 1
That Crown Office begins to monitor and evaluate use of Language Line as a tool to anticipate changes in language needs.

Instruction of Interpreters for Precognition and Court

It is the responsibility of the interpreting agency to ensure the interpreter is suitable for the assignment in accordance with minimum requirements specified by the Crown in a letter of instruction.

"It is a very delicate subject. Many people have done interpreting in court which was not right and there was no action against them."
(Interpreter 6, court study, June 2004)

The letter of instruction should be passed to the interpreter by the interpreting agency. The letter and enclosures contain important information which the interpreter will require for proper preparation for the assignment.

Interpreters interviewed in the court survey (a total of 16) appear to receive the necessary information from COPFS in the vast majority of cases. Interpreters were asked if they received the various documents from their Agency in respect of the case for which they were presently at court. Charts 1-4 illustrate the questions asked and responses given (in percentage terms).

Chart 1

"I go to the copy complaint or indictment and read about the crime so that I can familiarise myself with names and words."
(Interpreter 9, court study, June 2004)

The guidance issued to COPFS staff directs that requests to interpreting agencies should always be in writing and that written records should be kept of discussions. Even if the interpreter is required at short notice and the initial contact made by telephone the standard letters of instruction and enclosures should be used and passed expeditiously to the interpreting agency.

The letter of instruction should have enclosed with it the following:-

• A copy of the Code of Conduct for Interpreters;
• A copy of the complaint or indictment;
• A general briefing note containing a glossary of terms commonly used in the Scottish Criminal Court context;
• Copies of documentary productions where it is clear that the production contains unusual or technical language, which will require to be interpreted in court.

This is to enable the interpreter to be in a position to more effectively assist the court.

Chart 2

Chart 3

Chart 4

In our survey of cases we found that on some occasions witnesses are precognosced (interviewed by a member of COPFS staff) without the use of an interpreter.

"I went to ……… and gave a statement. There was no interpreter."
(Witness 8, court survey, July 2004)

Not surprisingly such precognitions are of little use to the Depute in court.

"We asked for an interpreter at precognition and did not get one. It is a little bit strange. …. It was difficult because we were worried and could not say what had happened exactly."
(Witness 3, court survey, June 2004)

Recommendation 2
All precognition staff should receive training on working with interpreters.

Interpreters for bereaved relatives wishing to view proceedings

The question of the provision of interpreting facilities for bereaved relatives who wished to view proceedings was the subject of consideration as part of the COPFS response to Dr Jandoo's report.

New guidance was issued to COPFS staff in October 2002. The guidance also covers those cases which do not involve a death and in which the Procurator Fiscal takes the view that an interpreter should be provided to relatives of victims who wish to view proceedings.

In cases involving a death where the police have advised that interpreting and translation services will be required by the deceased's bereaved relatives the Procurator Fiscal should inquire whether the relatives wish to attend court to view proceedings.

This applies to criminal cases and Fatal Accident Inquiries.

Liaison with the relatives will be required to ascertain their requirements and consideration should be given as to the most appropriate way to meet their interpreting needs.

Further guidance for staff is contained in the revised Chapter 22 of the COPFS Book of Regulations of May 2004 on Victims, Next of Kin and Witnesses, which is referred to in more detail later.

In reporting the case to Crown Office Crown Counsel's instructions should be sought as to whether one or more interpreters should be instructed to assist the bereaved relatives.

In cases where an interpreter is being provided by COPFS a meeting between the relatives and the interpreter is required prior to court to ensure the language/dialect match.

"Bereaved relatives" in this context is taken to mean parents, husband/ wife/partner, brother and sister.

In cases where the deceased has no close relative the Fiscal will have to consider whether interpreting services should be provided to more remote family members who may be thought to have a legitimate interest. Such cases are to be discussed by Fiscals with Crown Office Policy Group in advance to ensure consistency of approach countrywide.

In any other case, prior to provision of interpreting service instruction should be sought from Crown Office Policy Group.

Further consideration of these provisions will take place during the course of our next report on victim and witness issues including the operation of the Victim Information and Advice service (VIA).

However, we did observe a particular fatal accident inquiry involving a Chinese man who committed suicide in Barlinnie Prison whose family were resident in China. The liaison arrangements with the family were well conducted and the Fiscal had an extra member of staff available at the hearing to attend to the needs of a minority ethnic friend who was representing the family. The Fiscal's Office also made arrangements for the Sheriff's determination to be translated for the family.

Qualifications and Experience of Interpreters

"Bad interpreting is a waste of a case and is bad for everybody. It is a waste of money."
(Interpreter 15, court survey, July 2004)

The Fiscal will always instruct interpreters for court or precognition by going through a recognised interpreting agency.

"The situation needs monitoring; some interpreters are not up to the job. I recently met a jury member from the High Court who could not understand the interpreter. How do you make a judgement?"
(Interpreter 3, court survey, May 2004)

The interpreter is expected to have the Diploma in Public Service Interpreting (Scottish Legal Option) and recent experience of both consecutive and simultaneous interpreting in the court context.

Interpreters surveyed in court were asked if:-

• They had the necessary qualification;
• They had the necessary experience.

The questions and responses (in percentage terms) are shown in Charts 5 and 6 below.

Chart 5

Chart 6

It is accepted that there is a shortage of qualified interpreters in some languages and on occasion the interpreting agency approached cannot provide an interpreter who meets the standards required by the Crown. This has been found in our surveys to be quite unpopular with people who see themselves as properly qualified interpreters who as a matter of professional pride would prefer that only fully qualified interpreters be used.

"Some interpreters are a disaster."
(Interpreter, court survey, July 2004)

The Scottish Translation, Interpreting and Communication Forum have assured COPFS that when this happens interpreting agencies share relevant information in relation to available interpreters. If the interpreting agency approached initially is not able to provide an interpreter with the qualifications and experience required the manager of the interpreting agency will go back to the Fiscal who will ask him/her to liaise with the other interpreting agencies to ascertain if a suitably qualified interpreter is available elsewhere.

This can mean that interpreters have to be brought in from other Areas or indeed other parts of the United Kingdom.

If after making appropriate efforts the interpreting agency cannot supply a suitably qualified and experienced interpreter the Fiscal should ensure that the interpreting agency outlines the basis of their assessment of the recommended interpreter and that a record is kept of the information given to the Fiscal.

Where there is no alternative but to engage an interpreter who does not have a formal qualification or has little or no court experience it will be extremely important to ascertain the basis of the interpreting agency's assessment and a record must be kept of the efforts made to obtain a suitably qualified interpreter and explaining the reasons for engaging the interpreter who was provided by the agency.

"Jobs are going to low quality interpreters because they are paid less… We raise issues as interpreters but if you raise an issue you get less jobs and less income."
(Interpreter 14, court survey, July 2004)

Some interpreters are concerned that some agencies do not properly assess interpreters and so unsuitable people can be sent for assignments at court or other places. At least one interpreter advised that interpreters generally receive no feedback on their performance.

"There is no one to specifically measure the quality of the interpreter. Can this be done? Are there issues involved in that? This would be with a view to interpreters being of a good professional standard."
(Interpreter 15, court survey, July 2004)

In such circumstances there must be concerns over the potential for possible miscarriages of justice.

Crown Office with other Criminal Justice Agencies is addressing this issue in the Working Group for Interpreting and Translation Provision in the Criminal Justice System in Scotland (WGIT). Partner agencies included are the Police, Scottish Court Service, the Scottish Legal Aid Board and the Law Society of Scotland.

Recommendation 3
That the performance of individual interpreters should be monitored regularly. It may make sense that this be carried out by the interpreting agencies themselves.

Best Practice Points

"The Fiscal and solicitor sometimes talk too quickly and it is hard for the interpreter to ask the judge to speak to them about it repeatedly."
(Interpreter 8, court survey, June 2004)

Points of best practice are highlighted in the guidance for COPFS staff:-

• A checklist for legal and precognition staff;
• Assisting the defence in communications between solicitor and client;
• Where possible the Fiscal meeting interpreters prior to the commencement of the court business to, amongst other things, advise of the likely order of business.

"Sometimes inside the court the lawyers and sheriff are not aware of our role and some of them don't seem to be aware that we need to interpret every word and we need time to do it."
(Interpreter 3, court survey, May 2004)

Recommendation 4
That Crown Office, through WGIT raises and takes forward with all criminal justice partners training on the use of interpreters with consideration being given to the development of a protocol on the use of interpreters in court.

Training on the Guidance on Arrangements for Instruction on Interpreters

"The whole crux is everyone needs to get together and feed information back."
(Interpreter 15, court survey, July 2004)

Training for COPFS legal and precognition staff took place from August 2001.

"The (written) guidance.... for (the use of) interpreters is good."
(Staff focus group member, Aberdeen, 31 August 2004)

Procurators Fiscal were encouraged to develop and maintain links with interpreting agencies where these were not already in place.

"It's much better than it was 3 years ago. People were not used to an interpreter and you were just sitting waiting and sometimes you knew better than they did what to do. People are more used to having an interpreter in court and know what to do."
(Interpreter 1, court survey, May 2004)

Present Monitoring Arrangements

At the conclusion of each interpreting assignment the interpreter has a monitoring form to complete as has the member of legal or precognition staff involved in the assignment. These forms are sent to Crown Office.

"The monitoring form is a good, positive step but we have to take it further."
(Interpreter 15, court survey, July 2004)

The value of the monitoring form is a little in question as COPFS staff are not in a position to comment on anything other than appearances on the professionalism of the interpreter and cannot in any way judge the appropriateness of the interpretation.

Interpreting in Court

Simultaneous (or whispering) interpreting is an immediate interpretation into the other language of everything being said. The interpreter usually sits close to the non-English speaker and in multi-accused cases microphones and headphones may be necessary. Interpreters interpreting for accused persons most commonly use this form. It is an extremely difficult and demanding process made more difficult with the distractions and noises that can happen in courts. It is such a demanding task that in other situations relays of interpreters are used.

"I had one experience. …when the Sheriff was not all that aware of the interpreter's role and the defence lawyer directed the question to me and not the witness "Could you ask the witness………" They had not worked with interpreters and so you have to say, "I have to ask you…" and then put the question which makes the question longer and the brain has to think in a different way. I asked the lawyer nicely "Could you direct the question to the witness please" and was told "Well, the witness does not understand any English" in a cheeky way and the Sheriff did not do anything about it. It was annoying but I made my point but if the Head of the Court does not do anything about it…."
(Interpreter 3, court survey, May 2004)

"In order to have people try out life as a court interpreter I have devised the following: -
Place people working with interpreters in front of a radio or tape recorder - they should sit at a distance no closer than 6m - and the radio should be turned so the speakers are pointed away from them.The people should now listen to something like parliament proceedings and they should repeat all that is said for say 15 minutes."
(Interpreter 49, postal survey)

Consecutive interpreting is where the interpreter waits for the message then repeats it in the other language. Interpreters interpreting for witnesses most commonly use this form.

"The solicitors are not aware of interpreters and speak really fast."
(Interpreter 5, court survey, June 2004)

Sometimes the interpreter is at the mercy of the witness.

"During the examination-in-chief or the cross examination there are times when the witness does not understand the question even if it is correctly interpreted, the witness may not answer directly to the question and gives out irrelevant answers, sometimes the witness may avoid the question deliberately. Under these circumstances the interpreter has to interpret exactly what the witness has said and it may sound irrelevant to the question being asked. The ability of the interpreter can therefore be misinterpreted and this can be very frustrating."
(Interpreter 33, postal survey)

Only simultaneous or consecutive interpreting is ever likely to be appropriate for accused and witnesses. A form of summarising interpretation would not be appropriate.

"Practitioners don't speak loudly enough."
(Interpreter 7, court survey, June 2004)

Many interpreters in our surveys speak of having to ask for a break rather than the court providing this which is unfortunate as both simultaneous and consecutive interpreting are demanding labours and research suggests short breaks are appropriate after every 30 minutes approximately.

"I don't think we are given adequate breaks when interpreting in court and sometimes I have to say I need a break."
(Interpreter 6, court survey, June 2004)

It was noted in court that often the priority seemed to be progressing through the business. This is both desirable and commendable but the consequences of tiredness are obvious as are the consequences of mistakes made by the interpreter raising the spectre of a possible miscarriage of justice.

In June 2004 during our court survey an interpreter (court survey, interpreter 12), who had been at court all day, started to interpret for a new witness at ten minutes to four in the afternoon. The interpreter concerned looked exhausted and was not asked if it was suitable that the case continue. The case continued for approximately another 40 minutes before being adjourned for the day.

Perhaps it would be best practice for the court to let the interpreter set the pace as the interpreter knows how often a break is needed in any particular situation.

"You lose concentration (without proper breaks) and we need concentration. You are listening and at the same time you are speaking (simultaneous interpretation). I don't think people realise how demanding it is."
(Interpreter 17, court survey, August 2004)

See Recommendation 4 above.

Code of Conduct for Interpreters

The code sets out the standards expected of interpreters by COPFS. Most interpreters in our court study seem to receive the code of conduct and know what to do with it.

The code sets down that the interpreter is expected to:-

• Have a written and spoken command of both languages including any specialist terminology, current idioms and dialect;
• Be familiar with any relevant cultural backgrounds;
• Understand police station and court procedures.

It lays down rules of procedure to be followed by the interpreter in court with reference to what is being interpreted, declaration of difficulties with dialect or technical terms, not giving advice to the witness, the delegation of work, and ethics and confidentiality.

Additionally the code advises the interpreter to have his/her own professional indemnity insurance cover, as COPFS will not be responsible for any claim made against the interpreter. Perhaps agencies should consider obtaining this.

A great deal is expected of interpreters who are carrying out a very difficult job in what can be very stressful conditions.

"Generally interpreting in the court is more difficult than interpreting in the other contexts such as hospitals, surgeries, in the sense that it is a more official context and the interpreter is really under a lot of pressure. There are some external elements which make the interpreter's job much more difficult such as the busy environment of courtroom, people constantly coming and going and the interpreter needs to ask either parties to speak really loud which sometimes they do and sometimes they do not…(On) some occasions the officers at the courtroom prevent the interpreters approaching the clerk as if the interpreter is a criminal."
(Interpreter 35, postal survey)

Additionally

"You are a bit like a machine; it is a support service for someone to speak to someone in their own language. You have to check that you can understand each other. You have to build up some kind of trust."
(Interpreter 4, court survey, June 2004)

Recommendation 5
Revision of the code of conduct for interpreters: at present the code instructs that an interpreter should not enter into discussion with the witness other than to confirm a language/dialect match, however, witnesses are in an alien environment and it would be helpful if that time spent confirming the match be extended in order to pass vital information on to the witness who may be at court for the best part of the day.

Translation Issues

In order to better inform minority ethnic witnesses on criminal procedure and the court process, COPFS has, since 2000, been translating documents into a number of languages.

In 2000 the "Being A Witness" leaflet issued with citations to attend court to witnesses was translated into Arabic, Bengali, Chinese, Hindi, Punjabi and Urdu.

At the present time a number of COPFS leaflets and booklets have been translated. These include information on complaints against the police (in Arabic, Bengali, Chinese, Hindi, Punjabi and Urdu), victim statements (in Arabic, Chinese, Farsi, Hindi, Punjabi, Sorani and Urdu), a guide to COPFS (in Arabic, Bengali, Chinese, Hindi, Punjabi and Urdu), the Chhokar reports (in Arabic, Bengali, Chinese, Hindi, and Urdu), the 2002 Lord Advocate's Guidelines to Chief Constables (in Arabic, Bengali, Chinese, Gujarati, Hindi, Punjabi and Urdu), career information (in Arabic, Bengali, Chinese, Hindi, Punjabi and Urdu), COPFS Race Equality Action Plan (in Arabic, Bengali, Chinese, Hindi, and Urdu) and COPFS Strategic Plan (in Arabic, Bengali, Chinese, Gaelic, Hindi, Punjabi and Urdu).

Citations for the witnesses in Sheriff and Jury and High Courts can be translated also into Arabic, Bengali, Chinese, Farsi, Hindi, Punjabi, Sorani and Urdu. The police serve the translated version on the witness with the citation in English.

Where, despite every effort to clarify the position, it is still unclear whether or not the intended recipient of correspondence requires translation services the Fiscal will send out the correspondence in English with a docquet attached which advises the recipient in 30 different languages "If you require a translation of the attached documents please tick the appropriate box and return this letter to the Procurator Fiscal's Office at the address given. Please tick the box beside the language required ".

COPFS does not monitor the use of this docquet and the languages required. It may assist assessment of future language needs if this were to be done.

Unfortunately some witnesses in our court survey did not receive the information they required in a language they could understand. Sometimes this was because the police did not highlight language needs. Again this emphasises the need for a joined up approach and joint working.

"We needed the documents in Albanian, the first letter was in Russian and we could not understand it."
(Witness 4, court survey, June 2004)

Changes in Attitude, Law, Practice and Policy

The Department both in policy and culture has made significant progress. The establishment of the Victim Information and Advice service (VIA) and changes in the instructions issued to COPFS staff have undoubtedly helped contribute to a culture change.

Chapter 22 of the Crown Office and Procurator Fiscal Service Book of Regulations dealing with victims, next of kin and witnesses was originally issued in July 2000. It outlined the relationship between such parties and the Fiscal, the duties of the Fiscal and guidance for the provision of case information and contact with victims, next of kin and witnesses amongst other issues.

The section on minority ethnic victims, next of kin and witnesses highlighted that such members of the community may be made vulnerable by reason of language and cultural barriers and that additionally they may already feel marginalized and isolated from the wider community.

Section 22.9 instructed "If it is known that a victim or bereaved relative's first language is not English, Procurators Fiscal will require to arrange the translation of all the routine and case progress information which is normally issued in the course of an investigation and prosecution".

The guidance was updated, refined and issued to staff in June 2004. The revised chapter updates COPFS policy in light of recent legislative changes including the Sexual Offences (Procedure and Evidence) (Scotland) Act of 2002, the Criminal Justice (Scotland) Act of 2003 and the Vulnerable Witnesses (Scotland) Act 2004.

The chapter also takes cognisance of changes in modern thinking on who is a victim or co-victim.

In considering whether a witness is "vulnerable" for the purposes of the Vulnerable Witnesses (Scotland) Act 2004 and therefore eligible to be considered for some "special measure" eg the use of screens or CCTV, one of the criteria which will now be considered by the courts is the social and cultural background and ethnic origins of the witness.

"Prosecutors have a duty to recognise identified needs of victims and witnesses from minority ethnic groups." (Chapter 22.6.2.8.7)

All victims of racist crime, all asylum seeker witnesses and all minority ethnic victims or witnesses who may have difficulties communicating in spoken English are to be referred to the Victim Information and Advice Service - VIA.

A cultural awareness guide is also available to all staff on the Departmental intranet.

An example we found of good practice related to the tragic death of an infant from a family where the parents were from an ethnic minority and the mother did not speak English. The family wished for certain religious observances to be followed in respect of the infant's funeral.

The legal position was explained to the family by a Family Liaison Officer who could communicate with the family and who was able to translate the COPFS "Advice for Bereaved Relatives" leaflet into the required language.

A two doctor post mortem was arranged for the day the death was reported, the cause of death established and the family were able to meet the timescale required for their religious observances.

We were impressed by the level of awareness of cultural differences demonstrated by the member of COPFS staff who dealt with the death. The lawyer concerned accessed the cultural awareness information on the Departmental intranet to be reminded of the issues involved.

Victim Information and Advice (VIA)

As previously indicated another positive change in COPFS for the victims of serious crime and others adversely affected by it is the setting up of the victim and witness service - Victim Information and Advice (VIA) as it is now known - within COPFS.

The principal aims of VIA as set down in the COPFS Book of Regulations are:-

• To provide information to victims, bereaved next of kin and certain witnesses about the criminal justice process in general;
• To keep victims and bereaved next of kin informed about case progress;
• To advise on and facilitate referral to other agencies for specialist support and counselling.

Among the types of cases referred to VIA are:-

• Deaths reported for consideration for criminal proceedings;
• Cases with a racial aggravation;
• Cases where it is known to the Procurator Fiscal that the victim perceives the offence to be racially motivated; and
• Cases with witnesses who are asylum seekers or have language difficulties.

VIA is involved in pilot testing the use of Victim Statements in the Lothian and Borders and Ayrshire areas.

By December 2004 all Procurator Fiscal Offices will have access to VIA.

It is sufficient merely to comment at this stage that if a case such as the tragic one of Surjit Singh Chhokar happened now a very different outcome in respect of family liaison could be expected from a dedicated Victim Information and Advice service. The separate Witness Service is also now available (run by Victim Support Scotland).

Miscellaneous Issues from the Interpreters Interviewed in our Surveys

When requested by the Clerk of Court the interpreter does not seem to receive a copy of the complaint.

Interpreters would like 5/10 minutes to speak to the witness/accused before interpreting in the course of a trial to ensure an appropriate language and dialect match. See Recommendation 5.

At least one interpreter suggested that the accused (and consequently witnesses) should be allowed to refuse an interpreter who is not a good language or dialect match.

Late cancellation is a big issue for interpreters who have kept the day available for what may be an all day assignment only to be cancelled on the day or shortly before. This means a loss of revenue for the interpreter who only receives a minimum payment.

One interpreter would like to be paid for the extra time spent in attending certain courts where all have to pass through security.

Some interpreters have found that they are a lifeline for non-English speaking people at court and provide them with basic, vital, information such as where to find the toilet or where to buy a cup of tea. See Recommendation 5.

Some interpreters are concerned about being asked to sit in witness areas. Some fear being drawn into inappropriate discussion with the witnesses or being drawn into being a witness in respect of possible contamination of evidence by being in a position to hear what witnesses say to one another. Some interpreters would like separate waiting areas for interpreters in order to prevent any difficulties arising.

One interpreter expressed concerns about the police when investigating cases not calling out interpreters appropriately. This was also a concern with one Glasgow focus group.

"In this case (which is one in a series of incidents lasting about 2 and a half years) the police always use the child (initially he would have been 9 years of age now he is 12) rather than calling an interpreter for ***** (name of witness and mother of the child in question). This is not good practice: it is very bad practice for a child to be interpreting in this (case of long-term racist abuse)."
(Interpreter 2, court study, May 2004)

Concerns must exist in such cases about the effect on the child and additionally the effect on the case. A court may possibly hold that the evidence of a child witness has been contaminated by him or her having performed this task.

Recommendation 6
That in any revision of the Lord Advocate's Guidelines on reporting racist crime consideration be given to suggesting that the use of child witnesses under 16 to interpret for parents is inappropriate in terms of both the interests of the child and in the interests of the case.

One interpreter expressed concern that some sheriffs did not know how to administer the oath to a witness properly through the interpreter and another spoke about having the interpreter's oath administered differently in different courts and on occasion having to remind the court that the interpreter needs to be sworn in too. SeeRecommendation 4.

Some interpreters find the court situation difficult in that they are not recognised as co-professional workers by other people in court. See Recommendation 4.

Acoustics can be a considerable problem in some courts.

Ongoing Developments

As can be seen in this chapter Crown Office and the Procurator Fiscal Service have gone a considerable way to provide the best service available in interpreting and translation terms and have played and continue to play a part in driving up standards.

However, COPFS are only part of the criminal justice system and the best possible service provision relies on all of the component parts of the criminal justice system planning and working together to continue to drive up standards.

COPFS, as previously indicated, has links to the Scottish Translation, Interpreting and Communication Forum and is a member of the Working Group for Interpreting and Translation Provision in the Criminal Justice System in Scotland (WGIT - established October 2003) and the Scottish Executive established Translation, Interpreting and Communication Support (TICS) Group.

As WGIT's members are drawn from some of the main criminal justice partners, namely Police, Scottish Court Service, COPFS, the Scottish Legal Aid Board and the Law Society of Scotland it is extremely well placed to take forward any change in practice in the provision of interpreting services in the criminal justice sector in Scotland.

One of the aims of WGIT is "To consider, assess and offer recommendations on a coordinated approach towards the instruction of interpreters within the criminal justice system, including a joint protocol on monitoring and vetting; minimum standards; code of practice including conditions of employment".

WGIT is concerned with driving up standards across the whole system in a cooperative and holistic way and is presently considering proposals, which would tie in with the Inspectorate's Recommendations 3 and 7, which concern the monitoring and vetting of interpreters.

If WGIT did not exist we would have recommended that it be established.

Vetting has to be an active consideration considering the sensitivity of information to which interpreters have access and the fact that interpreters are dealing with potentially vulnerable witnesses and accused persons.

At the present time the level of vetting undertaken by the Interpreting Agencies varies from no regular vetting to Disclosure Scotland checks.

The Police Act of 1997 provides for vetting and the issue of certificates by Disclosure Scotland, which was established by the Scottish Criminal Record Office (SCRO) for this purpose. There are 3 types of disclosure - basic, standard and enhanced.

Basic disclosure shows details of any and all "unspent" convictions in terms of the Rehabilitation of Offenders Act of 1974.

Standard disclosure is available for certain categories of occupations eligible for disclosure and contains details of all convictions on record, spent or unspent.

Enhanced disclosure is similar to the standard disclosure but additionally may also contain information that does not relate to a conviction.

WGIT are in agreement that the minimum standard of disclosure which should apply to interpreters engaged by any of the criminal justice partners should be to the level of standard disclosure. This would require a change in the law and it is understood that approaches have been made to the Scottish Executive.

As interpreters are, generally speaking, instructed through agencies the onus for vetting would logically fall to the agencies. This would require the agencies registering with Disclosure Scotland.

Monitoring and vetting are crucial areas and active consideration is being given by WGIT at the moment to how best to take these issues forward. In respect of monitoring there are a number of options available.

Given WGIT's work in this area it would not be appropriate for us to make more than the general recommendations we have in Recommendations 3 and 7.

However, we found some good examples of work in the local authorities with one authority expecting high academic qualifications from interpreters, initial testing of written and spoken language skills, vetting with a Disclosure Scotland check and thereafter occasional monitoring of translations and interpreting appointments.

Another system, which is universally respected, is that of the sign language interpreters who are regulated by the Scottish Association of Sign Language Interpreters (SASLI). SASLI maintains the register of sign language interpreters and handles the complaints and disciplinary procedure.

The sign language interpreters and trainees have gone through Disclosure Scotland checks and this will be repeated every 3 years.

A monitoring pilot carried out by SASLI in 2004 proved to be too expensive and time consuming and SASLI are now working towards a system of compulsory Continuing Professional Development for all sign language interpreters.

The numbers are, however, relatively small with 44 interpreters and 8 trainees interpreters.

In England the Crown Prosecution Service uses interpreters registered with the National Register of Public Service Interpreters (NRPSI). These interpreters have to have certain qualifications and experience, must provide references, which are taken up and be vetted.

Recommendation 7
That all interpreters involved in the criminal justice process be vetted to the level of standard disclosure.

Conclusions

We are pleased to report that the translation and interpretation needs of the criminal justice system in Scotland are being better served than in the past.

It would be useful to have data trends on language needs. The issue is dynamic as language needs are constantly changing and demand difficult to predict. A central record of all languages available through interpreters would be helpful. WGIT could be a useful forum for analysing the languages being used and the possible language needs of the future.

There has been a complete change of policy and culture in COPFS in relation to racial and other victim and witness issues evidenced in the policy documents on racial crime, translation, interpretation and a new and since revised chapter in the Crown Office Book of Regulations on victims, next of kin and witnesses.

The protocol for the instruction of interpreters goes a very long way to pushing standards up and while COPFS has made considerable efforts in terms of its own responsibility doubts have been raised about the quality of some interpreters and that is an issue that we have recommended must be addressed.

A vital element in the provision of improved service to witnesses is the establishment of VIA, a service dedicated to the provision of information and advice to witnesses.

These changes go a long way to meet the criticisms made of the Service by Dr Jandoo in his report and will go a long way to prevent the flaws in the liaison with the bereaved family of Surjit Singh Chhokar being repeated in another case.

While we have found some gaps between policy and the provision of the actual service, in general terms the benefits of the provision of an improved service can be seen in the courts. We have seen some good examples of COPFS staff going out of their way to put the fears of anxious minority ethnic witnesses to rest, for example:-

• By having a brief word with witnesses through the interpreter to keep witnesses updated on case progress during the court day;
• By checking the pronunciation of a witness's name with the interpreter prior to the court commencing;
• Ensuring the safe passage of vulnerable and traumatised minority ethnic witnesses from the court building by the police.