INTERPRETERS CANNOT (AND WOULD NOT) BE COMPELLED TO ATTEND TRIAL FOR CROSS-EXAMINATION

The case of Kimathi -v- The Foreign & Commonwealth Office [2016] EWHC 3004 (QB) has already featured several times on this blog.  Here we look at the judgment made last week relating to the defendant’s application that interpreters attend trial to give evidence.  It also provides an important example of the court considering and applying the overriding objective when considering whether to make an order.

KEY POINTS

  • The CPR gives no specific right to a party to demand that an interpreter attend court to be cross-examined.
  • The court could order that an interpreter attend by using its general case management powers.
  • The use of that power would involve consideration of the overriding objective.
  • The overriding objective strongly militated against the attendance of the interpreters in this case (the witnesses had already given evidence)

THE CASE

The action concerns a large number of claims brought for assault, battery and negligence relating to detention in Kenya in the 1950s. There are over 40,000 claimants. There are 25 test claimants.

THE DEFENDANT’S APPLICATION

The defendant applied for an order that the interpreters attend trial to be cross-examined.

  1. The application is:
“That the translators whose names are listed at Exhibit AJR5/1 be required to attend court on a date to be fixed by the court for cross-examination.”
  1. In support of the application is the fifth witness statement of Andrew Robertson, a senior lawyer at the Government Legal Department. That statement is also dated 29 September 2016.
  2. The Schedule to AJR5/1 contains the names of 11 translators who have translated the witness statements of the Claimants, in particular the Test Claimants, in this action. 24 of the 26 Test Claimants gave evidence in person or by video link in summer 2016. The interpreters for the oral evidence were not the translators of the witness statements.

THE DEFENDANT DID NOT HAVE AN AUTOMATIC RIGHT TO CROSS-EXAMINE THE TRANSLATORS

The judge considered, and rejected, the argument that the defendant had a right to cross-examine the interpreters.

  1. The Defendant’s primary position is that it is entitled to cross-examine the translators. There does not appear to be any direct authority on this.
  2. CPR 32 PD23.2 provides:
“23.2 Where the court has directed that a witness statement in a foreign language is to be filed:
(1) the party wishing to rely on it must –

(a) have it translated, and

(b) file the foreign language witness statement with the court, and

(2) the translator must make and file with the court an affidavit verifying the translation and exhibiting both the translation and a copy of the foreign language witness statement.”
  1. In respect of witnesses the general rule is clear: namely that, at trial, the evidence of a witness is to be proven by oral evidence given in public, see CPR Rule 32.2(1)(a). It is of note, however, that even in respect of witnesses of fact, the court may give directions “identifying witnesses who may be called or whose evidence may be read” (Rule 32.2(3)(b)). The court therefore can control how evidence is to be given such that there is no absolute entitlement to cross-examine a witness. (See the notes to White Book 2016 Vol I at 32.2.3.1).
  2. There is no express provision in the CPR relating to affidavits at trial. Rule 32.5 requires a party who has served a witness statement, and wishes to rely at trial on the evidence of the witness who made the statement to call the witness to give oral evidence, unless the court orders otherwise or he puts in the statement as hearsay evidence. Rule 32.7 permits a party to apply to the court for permission to cross-examine a person giving evidence “at a hearing other than the trial” – such evidence may be in a statement of case, an affidavit, witness statement, a witness summary or an application notice.
  3. The Defendant relies upon CPR 32.2(1). The Defendant says that the general rule there stated
“…is that any fact which needs to be proved by the evidence of witnesses is to be proved –
(a) at trial, by their oral evidence given in public”
It says that facts such as the experience and qualifications of the translators, and indeed whether they are “the translators” referred to in CPR 32 PD 23.2(2) and the Court’s Order must be so proved. I do not accept this for the following reasons:
(i) The requirement in Rule 32.5 refers to the use at trial of witness statements which have been served and requires a party who has served a witness statement, and who wishes to rely at trial on the evidence of the witness, to call the witness to give oral evidence (subject to exceptions). The practice direction specifically requires a translator to file an affidavit verifying a witness statement. It does not require or permit a translator to file a witness statement.
(ii) Historically, written witness statements were not served and/or used as evidence in chief. This began in the mid 1980s and was incorporated into the Civil Procedure Rules. Prior to then, evidence in chief of a foreign language witness was oral and interpreted into English live in court by an interpreter. The new procedure permitted, as here, a witness statement translated by one translator and a different person being the court interpreter. It was not, in my judgment, ever intended by the CPR that every translator who had provided a proper form affidavit would attend court pursuant to Rule 32.2(1) so as to “re-prove” the written translation.
(iii) Nor do I find that in the wording of Rule 32.2. “Any fact which needs to be proved by the evidence of witnesses” is not to be interpreted at including such matters as are provided for in 32PD 23.2. In any event, the Defendant did not object to the translated evidence being given by the Test Claimants, and did not raise this particular issue till after all their evidence had been completed.
(iv) I reject the Defendant’s submission that Rule 32.7 which permits a party to apply to the Court for permission to cross-examine the person giving the evidence “at a hearing other than the trial” is of any assistance. There is no inference from Rule 32.7 that Rule 32.5 would extend to the makers of verifying affidavits under CPR 32 PD 23.2.
  1. Accordingly, I find that there is no entitlement of the Defendant to cross-examine the translators, nor even an entitlement so to do but subject to the court’s control.

THE COURT HAS A DISCRETION TO ORDER ATTENDANCE

In the absence of a specific rule the judge held that the court had a discretion under its general case management powers.
  1. Therefore the court has a power to accede to the Defendant’s application under its general powers of management and in particular Rule 3.1(2)(m) which empowers the court to “(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective…” It is therefore by reference to the principles of managing the case and furthering the overriding objective that I must decide this application.

THE DISCRETION WOULD NOT BE EXERCISED IN THE CURRENT CASE

The judge reviewed the defendant’s arguments in detail. He rejected the argument that the translators should attend.

Summary
  1. The Defendant seeks to cross-examine 11 translators, estimating that they will be able to deal with 2 translators a day amounting therefore to some 6 days of court time. They say it is proportionate to allow this amount of time, given the seriousness of their concerns regarding the translations.
  2. The Defendant relies upon the importance of the translation process and the used of certified translators as emphasised by Peter Jackson J in NN v ZZ [2013] EWHC 2261 (Fam), [2016] 4 WLR 9 at paragraphs 56 – 60 and paragraph 14 of the judgment in Re ABC & F (Children) [2015] EWHC 3663 (Fam) where Sir Peter Singer said:
“Without clarity concerning the provenance of such a statement it is a far more difficult task to assess what weight can be given to it and, in particular, what may be the reasons why on examination it proves to be short on accuracy.”
  1. Finally, the Defendant points to the decision of the Court of Appeal in Northern Ireland in R v Foronda [2014] NICA 17 at paragraph 15 where, in relation to interpreters, it is said:
“Interpreters must be suitably qualified and expert for, otherwise, there would be a real possibility of inaccuracy creeping into the translation of questions and answers which, in turn, might lead to a jury hearing an answer which neither reflected the actual question nor the actual answer.  An interpreter should be suitably qualified and aware of his/her responsibilities to ensure accuracy and objectivity in the provision of interpretation services.”
  1. I return to the stated purpose of the application, namely
“So that the Defendant and the Court can understand the process by which the documents were created and make judgment as to the reliability and accuracy of the documents in portraying the true account of the witness.”
  1. I have, as I have dealt in the judgment with the six points made by the Defendant, given brief reasons why I am not persuaded that it is just and/or proportionate to accede to this application. Those reasons will now be supplemental and amplified.
  2. First, taking the points cumulatively, as well as individually, the exercise of my discretion in giving effect to the Overriding Objective is still against allowing the application.
  3. Secondly, some of the points were explored with the Test Claimants and/or with the Court interpreter. The Defendant was free to ask any relevant translation question in this manner. To the extent that this was not done, but could have been, that is not a reason for calling the interpreters for cross-examination. In paragraphs 65 – 69 of Mr Robertson’s Fifth witness statement he says that the Test Claimants were unable to assist with the discrepancies such that the appropriate way is to call the translators. He gives certain examples, with which I now deal:-
  • Test Claimant 22 was not able to explain why in paragraph 22 of her Kikuyu statement the word ‘njoni’ appears with the words ‘British officers’ in English next to it. Yet the important question is what she meant by ‘njoni’. Any Test Claimant could be asked that. The fact that one interpretation of ‘njoni’ appears in statements did not inhibit the Defendant from establishing the meaning which a witness themself attributed to the word. The result of these questions is set out in paragraph 59 of Mr Robertson’s statement and will presumably be used in final submissions.
  • Test Claimant 25’s statement referred to British soldiers visiting Embakasi. He denied saying this and said he did not understand why it was included in his statement. The Defendant does not suggest this is not in the Kikuyu statement. Therefore I question why this is said to be a translation issue. Again this seeming inconsistency can be used by the Defendant in final submissions.
  • Text detrimental to the Defendant in the English version but not in the Kikuyu was elicited during the cross-examination of Test Claimant 25. That clearly was not a matter for the witness, but it is a submission point which the Defendant may make of what they will. It does not merit calling the translator.
  1. Thirdly, I am unconvinced that calling the translators would in any way properly further the overriding objective in that:-
(i) I do not accept that it is likely to assist the Court in making a judgment as to the reliability of a witness whose oral evidence I have had the opportunity of hearing with the benefit of a separate court interpreter.
(ii) Exploration with the Claimants’ translators of matters:-

(a) on the Defendant’s suggestion would take about a week and a half (11 Translators – half a day each)

(b) might lead to a much greater expenditure of court time: the Claimants point to the fact that when Wolfestone translated Test Claimant witness statements, Mr Robertson prepared a schedule (AJR 19) where Wolfestone commented on translation issues. This schedule runs to 55 pages. Sometimes Wolfestone stick with their own translators, sometimes they indicate they were in error, sometimes either version is said to be acceptable. The Claimants have indicated that if their translators are to be cross-examined on these sorts of issues, that may well require the Wolfestone translators to give evidence and be cross-examined. The Defendant says that they do not seek a battle of translators or translations, but there is a real risk that this may follow.

(iii) of course time taken is only one factor, but in my judgment any benefit accruing to the court from hearing translators is not a proportionate benefit in terms of time and cost.
  1. Finally, I add that if I am wrong on the question as to whether CPR 32.2(1) applies with full force to the translators, in any event, in the circumstances obtaining, it is right that I exercise my discretion in accordance with the overriding objective to order otherwise, pursuant to CPR 32.2(2)(b) (or CPR 32.5(1)).

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