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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Erkurt v. Procurator Fiscal [2003] ScotHC 63 (25 November 2003)
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Cite as: [2003] ScotHC 63
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Erkurt v. Procurator Fiscal [2003] ScotHC 63 (25 November 2003)
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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Marnoch Lord Carloway CGB Nicholson QC
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Appeal No: OPINION OF THE COURT delivered by LORD CARLOWAY in the BILL OF ADVOCATION by ALI ERKURT Complainer: against LEONARD A HIGSON, Procurator Fiscal, Glasgow Respondent
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Complainer : Crowe; Gilfedder McInnes for Herd Moultrie, Glasgow
Respondent : Bell Q.C., A.D.; The Crown Agent
25 November 2003
[1] This is a Bill of Advocation which craves recall of a decision of the Sheriff taken at an intermediate diet in the course of summary proceedings at Glasgow on 2 December 2002. The charge libels a contravention of section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995. The complainer first appeared to answer the complaint at a diet on 24 October 2002. There was an interpreter present and the complainer pled not guilty. The case was adjourned for trial until 16 December 2002 and 2 December was assigned as a date for an intermediate diet. At that diet it was minuted that the complainer intended to adhere to his plea and the case was continued to the trial diet. It is against that continuation, which related to the diet of trial already fixed at the previous calling in October, that the Bill is aimed. [2] The nature of the complaint is set out in the third and fourth paragraphs of the Bill. These are in the following terms :"3. The complainer is Turkish and speaks very little English. Accordingly, he requires the services of an interpreter to assist him answering this complaint. At his intermediate diet of 2 December 2002, although a Turkish interpreter was provided by the court, nothing was translated by the interpreter to [the complainer] other than confirming the date of trial when advised by the clerk of court. Furthermore, the presiding Sheriff took no action to swear in the interpreter and, on being invited to do so, responded that the interpreter was not in court for his benefit. On that basis, the complainer's not guilty plea was adhered to and the [respondent] moved that matters be continued to trial. The Sheriff then made a pretended order purporting to continue matters to trial on 16 December 2002. During the course of this procedure, clear difficulties arose in the complainer following and understanding matters. The complainer was confused and it was impossible for him to give full instructions to his solicitor.
4. The complainer submits that the...decision of [the] Sheriff...was unjust, erroneous and contrary to law. Failure to provide a competent interpreter or competent interpretation in circumstances where the accused is a foreigner with little or no understanding of English is inconsistent with the proper administration of justice. In the absence of such interpretation, the proceedings at [the] intermediate diet were of no effect. Accordingly, any pretended order purporting to continue matters to the diet of trial was incompetent there being in effect no intermediate diet to continue. The complainer having been ordained to an assigned diet, the instance fell at midnight on 2 December 2002."
[3] The Sheriff informs us :"When the case called...I was advised that an interpreter was present. I asked for an indication of how the [complainer] intended to plead since if he were to plead guilty, then I thought it altogether appropriate that the interpreter be available to give him a "running commentary" of the narration of circumstances being set out by the respondent's depute. However, the indication given was that the plea of not guilty was to be adhered to. I accordingly took the view that that was such a very formal matter and not likely to occupy more than about thirty seconds or at the very most one minute of purely formal exchanges. I accordingly felt it was not necessary to go to the extent of swearing an interpreter."
The Sheriff made a distinction between purely formal procedures whereby an interpreter could simply sit near the accused and provide a "running commentary" and situations where, for example, there was evidence being given and there was a need for everyone in court to have a complete understanding of what was being said. The two situations were described by the Sheriff as respectively ones of private and public need for an interpreter. The present case was one of private need and the Sheriff was content that the interpreter could sit near the complainer and tell him anything which he thought it appropriate to tell him. In the event, all that happened was that the complainer's agent tendered the plea and stated that there were no defence witnesses and that no evidence was capable of agreement. This was done without any exchange between the complainer and his agent, the Sheriff assuming that appropriate instructions had already been taken, either with or without the assistance of an interpreter, prior to the calling of the diet. The Sheriff also assumed that, if so advised, the agent could tell the complainer what had happened after the diet using the same assistance or otherwise. The Sheriff concludes :
"At no stage was an indication given to me of any difficulty in communication between the [complainer] and agent.
At no stage did the procedure depart to any extent whatever from the entirely predictable course that these matters normally follow.
There was no mention whatever of any of the merits of the matter from either the prosecution or the defence point of view.
In these circumstances I find it hard to see in what way the [complainer] could have been confused or disabled from instructing his agent. Furthermore, I cannot see that he can have been in any way prejudiced."
[4] The argument presented to us on behalf of the complainer followed broadly that quoted from the Bill. The proposition was ultimately that any person who did not understand English adequately had an unqualified right to have an interpreter in court to translate the proceedings to him. Although that translation need not be "word for word" in all situations, the failure to have the proceedings interpreted in some form meant that the complainer in this case had not been afforded a fair trial. In this context, "trial" included the whole proceedings leading up to and including the trial diet and "fairness" necessitated permitting an accused person to participate actively in the proceedings. Regardless of what might have been said before or after the intermediate diet, the complainer had not been able to follow what had been going on during the diet and that had caused him prejudice. Indeed he had been left, it was said, "totally confused" by what had occurred. In support of the argument, reference was made to: the Opinion of the Court delivered by the Lord Justice-Clerk (Ross) in Mikhailitchenko v Normand 1993 SLT 1138 (especially at 1140 G-J)(1993 SCCR 56 at 63F-64); and the European dimension set out in summary in Reed and Murdoch : Human Rights Law in Scotland (para 5.137), which we pause to record quotes dicta from the European Court in Kamasinki v Austria (1991) 13 EHRR 36 (paragraph 74) and notes also Ucak v HM Advocate 1998 SCCR 517, 1999 SLT 392). [5] In response, the Advocate Depute stressed the need for the complainer to demonstrate prejudice in the context of his right to a fair trial. In that respect, the diet in Mikhailitchenko v Normand (supra) had been a trial diet, albeit one that was adjourned, as had that in Liszewski v Thomson 1942 JC 55, where a plea of guilty had been tendered and accepted. The present case was more akin to the circumstances in Brown v Vannet 1999 SCCR 458. There it was held that formal procedural steps at an intermediate diet designed to cure a defect, which might possibly arise through the absence of an interpreter, did not themselves require translation. There was no basis for arguing prejudice in the present case where the Court had provided an interpreter, albeit that he was little used. [6] We have taken some time to narrate the circumstances of this case because they do highlight the potential for misunderstanding the functions of interpreters in the court context. It is necessary to make a clear distinction between the function of an interpreter present in court at an intermediate diet such as the one in this case, where it is anticipated that only formalities are to be carried through, and an interpreter sworn faithfully to translate evidence at a trial diet. We recognise at once that, as part of an accused person's right to a fair trial, the charge libelled ought to be translated exactly by an interpreter for the accused person's benefit. Equally, where evidence is being adduced at a trial diet, there must be an interpreter present to translate verbatim the evidence led. This has long been the practice in the Courts and, also in accordance with that practice, such an interpreter requires to be sworn as he is performing an independent function on behalf of, and for the benefit of, the court (Liszewski v Thomson (supra) per Lord Fleming at 58). The need for such an interpreter may extend also, at least if requested, to the situation where an accused person is pleading guilty and a detailed Crown narrative of the circumstances of the offence is given or where, at a trial diet, there is argument requiring extensive narration of facts upon which instructions may require to be taken at the time (Mikhailitchenko v Normand (supra) per the Lord Justice-Clerk). These situations are quite different from the many occasions in which cases are called for primarily procedural or other formal purposes. In such situations it is of course the case that the Court must, if the matter is brought to its attention, provide the free assistance of an appropriate interpreter (European Convention on Human Rights and Fundamental Freedoms art. 6.3.(e)). However, that interpreter is not carrying out a function designed to assist the Court itself and there is no need for such an interpreter to be sworn. Rather the interpreter is present to enable the accused person to understand sufficient of what is happening so that he can give proper instructions to his agent. In that type of situation (as a generality) what the interpreter actually requires to do by way of literal or general translation will depend on a number of facts and circumstances including, for example: the extent, if any, to which the accused person understands the English language; the complexity of what is happening at the diet; and the amount of consultation which has previously taken place between the accused and his agent. Normally, it should not be necessary for every word at a formal diet to be translated. Moreover, it is important to observe that whether an accused person is understanding what is going on, with or without the assistance of an interpreter, is something which can only be known to that person and his agent. If the agent perceives that a genuine problem has arisen in obtaining instructions on an issue which has arisen then it is for him to advise the Court accordingly so that proper steps can be taken to resolve the difficulty. It follows from what we have said that we agree, to some extent, with the Sheriff's remarks that an interpreter in this formal procedural context is not present for the benefit of the Court generally but to ensure that a proper agent and client relationship can be observed throughout the proceedings; that being, of course, normally essential to fairness for an accused within the justice system. [7] In light of the foregoing, it will be apparent that we do not consider that the complainer's contentions in this case are sound. All that in substance occurred here was that the original plea and diet of trial were confirmed at the intermediate diet and certain formal exchanges regarding preparedness took place. It is difficult to see how these matters could not adequately have been conveyed to the complainer whether before, during or after the diet. It is even more difficult to see how any complexity could have arisen in the agent obtaining and executing any necessary instructions from the complainer. If any such problems had arisen then it was the duty of the agent to explain the source of such problems to the Court. An interpreter had been provided by the Court so that any such eventualities could be recognised and coped with. Contrary to what seems to be asserted in the Bill, it is not the duty of a Court to ensure that every word spoken during legal proceedings is officially translated by a sworn interpreter. It is the duty of the Court to ensure that a fair trial takes place but that duty should be seen not as one requiring pointless rigid procedures but as one necessitating practical and useful action. [8] We should add finally that, as the cases disclose, for the Court to entertain a Bill of this sort, it would have to be satisfied that an accused person might, in some way, have been prejudiced by his absence of understanding (e.g. Mikhailitchenko v Normand (supra) per the Lord Justice-Clerk), in the sense of his being unable adequately to participate effectively in the proceedings against him. We are quite unable to find any hint of that sort of prejudice, real or perceived, in the circumstances here. [9] For these reasons, we will refuse to pass the Bill and will remit to the Sheriff to proceed as accords.