APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Brodie Lord Philip	[2013] HCJAC 10 Appeal No: XC157/12 OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in the   APPEAL AGAINST CONVICTION   by   YASSAR HASSAN Appellant;   against   HER MAJESTY'S ADVOCATE Respondent: _______

Act: Kerrigan, QC, Pike; Phillip Rooney, Paisley

Alt: A Millar, AD; the Crown Agent

 

7 December 2012

Background
[1] On 31 January 2011, at the High Court of Justiciary in Glasgow, the appellant was convicted of a charge which libelled that:

"(2) on 1 June 2010 at ... Glasgow you ... did assault (YM) ... and did seize her by the arm, struggle with her and prevent her from leaving said flat, punch her on the head, straddle her, place your arm on her back and pin her to the ground, repeatedly punch her on the head and body, threaten her with violence, repeatedly place your private member in her hinder parts, rub your private member against her private parts and hinder parts, grab her on the body and struggle with her all to her injury"

 

On 18 February 2011, the appellant was sentenced to six years' imprisonment and the court made a recommendation of deportation in terms of section 6 of the Immigration Act 1971.

[2] On 2 June 2011, the appellant was allowed to lodge a late note of appeal against conviction. This raises a question about the adequacy of the interpretation at trial. In particular, it is said that the appellant is a native Punjabi speaker, but that the interpreter was a native Urdu speaker. The appellant's agent at the trial was said to be fluent in both English and Punjabi. The first ground of appeal proceeds as follows:

"In the course of the trial it became apparent to the appellant's solicitor that interpreting of the evidence was not accurate. ... the judge was alerted to the perceived difficulties with interpreting, namely that the interpreter was using euphemisms rather than exactly equivalent terms when interpreting certain expressions. The judge requested of the interpreter that, if indeed that was what she was doing, she should make every effort to interpret the evidence using directly equivalent terminology".

 

[3] The second ground of appeal is an amplification of the first. It states that the interpreter was not a native speaker of Punjabi and that she had used words which the appellant did not understand. The appellant "did not understand much of the evidence at his trial". The complainer's version of events was that she was anally penetrated without her consent, whereas the appellant's position was that what had happened had been consensual vaginal intercourse. "[W]hen these issues were being led in evidence", the appellant had not known whether the discussion related to vaginal intercourse or to anal intercourse. There had been evidence of semen found in the complainer's rectum, but the ground of appeal narrates that the appellant had not understood the scientific evidence led in that connection. All of this leads to a contention that the appellant did not have a fair trial and, in particular, that there had been a contravention of Article 6.3 of the European Convention which provides that an accused person such as the appellant requires the assistance of an interpreter.

[4] On 14 September 2011 leave to appeal was granted at second sift, when the sifting judges remarked that the court would require to be addressed at a procedural hearing on how the allegations regarding deficient interpretation were to be addressed. The process that then followed consisted of repeated attempts by the court to understand the nature of the appellant's complaint. The grounds of appeal seemed to be protesting about the interpretation of the evidence during the Crown case and of the questions put to the appellant, when he was giving his testimony, but they did not complain that the appellant's account had not been correctly translated for the jury. Ultimately, a transcription of the appellant's testimony was obtained by the court in order to see if there had been any obvious problem. This also revealed the precise nature of what the appellant's counsel had said to the trial judge. After a number of procedural hearings, it was decided that there would require to be evidence led on the adequacy of the interpretation and a hearing on this basis ultimately proceeded on 6 December 2012.

 

The trial
[5] The trial judge explains that the jury's verdict must have been based on an acceptance of the essentials of the complainer's account of events and the rejection of that from the appellant. The complainer had said that she was a prostitute, who had been familiar with the appellant and had provided oral sex for him on several occasions. On this occasion, he had not requested vaginal sex, but had asked for anal sex, which she had, in accordance with her general practice, refused to allow. On the date of the libel, she had gone to the appellant's flat at his invitation. He had appeared drunk. The complainer had performed oral sex on the appellant for cash. She had then got up to leave, but the appellant had pulled her back down. She got up again and tried to telephone 999 on her mobile, but had been punched on the head by the appellant. He had then grabbed her by the hand, punched her again on the head, and she had eventually fallen to the floor. He had pulled her trousers down, penetrated her anally on several occasions and ejaculated inside her. The complainer had managed to strike him on his mouth with her elbow. When he had got off, he had punched her again and she had bit him on the wrist and struck him with a kettle before running out of the flat. The complainer's distress upon leaving the flat was spoken to by two witnesses and corroboration of anal penetration was obtained as a result of the recovery of sperm, with the appellant's DNA profile, on anal swabs.

[6] The trial judge reports that the issue of the accuracy of interpretation was raised by counsel only in the course of the appellant's own evidence-in-chief, on the fourth day of the trial. As minuted at the time, the complaint was indeed that the interpreter was not accurately translating certain things which were being put to the appellant by his own counsel. The particular complaint related to the description of the locus. The appellant's counsel had not started to ask questions about the allegations in the libel. He explained to the judge that the appellant had told him that he had only understood about 60% of the trial. However, counsel had not been troubled by that, given that this was not, he said, unusual even in cases involving an accused who was a native English speaker. Counsel was satisfied that, in general, the accused had understood the proceedings. However, the particular concern then raised was that the interpreter had been toning down certain expressions which had been used in the course of the Crown case. This applied particularly to certain anatomical terms.

[7] The court made enquiry of the interpreter in relation to the use of euphemisms. The interpreter had explained that she was endeavouring to make the appellant understand what was said and had used appropriate words to do so. She had used the terms "back passage" and "front passage" rather than anatomical terms as the latter were not commonly used in ordinary Punjabi parlance. The accused would, however, understand the terms which she was using. She was advised to use the anatomical terms when interpreting, if these were in fact the words employed by counsel or witnesses. On this basis the appellant's counsel stated that he was content to proceed with the trial. He was satisfied, through consultations with the appellant, that there was no fundamental problem with the proceedings "so far". Matters were left on the understanding that the interpreter would use the words which the appellant used when interpreting his answers (transcript p 34). The trial judge made it clear that, if there were further difficulties in relation to interpretation, then the appellant ought to make that clear immediately. This would have been interpreted and explained to him. The trial judge comments, as follows:

"All I can say in this regard is that counsel indicated that he was satisfied with the situation and did not make any motion to have the diet deserted. I find it very hard to accept that, if the appellant was really having problems, the matter was not raised at a much earlier stage in the proceedings. For what it is worth I think it appropriate to mention that I have presided at at least one previous trial where Mrs Minhas was the interpreter. I was then extremely impressed by the way in which she carried out her task. It seemed to me that she was equally efficient during the course of the appellant's trial".

 

[8] The appellant's account, as revealed by the transcription of his evidence, was that he had telephoned the complainer "for business" and was going to meet her at his flat. Although the complainer had described him as one of her regulars, the appellant denied that that had been the case. He said, in examination-in-chief, that he had only once met the complainer for sex and that was on the date libelled. This matter was clarified by the trial judge and he had repeated his answer. He admitted that he had drunk some whisky. He had then asked the complainer for the cost of having "sex" with him. He had paid the agreed price of £40. It was at this point in the appellant's evidence, and before any further questioning about the incident itself had taken place, that the problem of interpretation had first been raised with the court, as described above.

[9] When the evidence resumed, the appellant explained that oral sex had commenced after he had handed over the money. After twenty or thirty seconds of activity, the complainer had stood up and said that she wanted to leave to meet her boyfriend. The appellant had prevented her from doing so, saying, "Give me my money back and you can go". She had pushed him back, but he had got hold of her and they had both fallen to the ground. The complainer had explained to him that she was not going to give him his money back, but that he could have "sex" with her. She had then taken her trousers off and he had done the same. The transcription is that, "She put her things on the table. I had, I did it to her from the front" (transcript p 51). This was repeated (p 53). There is then the following exchange (p 54):

"Are we to understand that (YM) bent over the table we see in photograph 14 - yes.

Q And what did you do - I did with her from the front. I did have, I did have sex with her in her vagina".

 

He explained that he had ejaculated and she had hit him on the mouth with her elbow, for reasons which he could not explain. She had also tried to hit him with a kettle. They had both fallen to the ground again and were engaged in some form of struggle, during which he had punched her.

[10] The appellant was asked (p 68) whether he remembered the complainer saying in evidence that he had forced her to have "anal sex" (interpreted for him as "sex from the back") at least three times. He replied, "I did not force her to do that. Whatever I did with her, it was with her consent. ... I had vaginal sex which her, from the front, with her consent". There was then the following exchange (p 69):

"Q It may just be my understanding is wrong, but you appear to be saying that you had vaginal (front part) sex with [YM] once - yes.

Q And you said 'from the front' - yes.

Q From your earlier description of events I had understood you to mean that when you had sex with her she was bending over a table and that you entered her from behind - yes.

Q When you say 'from the front', do you mean that you had vaginal (front part) rather than anal (back part) intercourse with her? - As she was bending over the table, by her hands on the table, and I did with her from the back.

Q In which part of her anatomy did you put your penis? (How did you do it) - In the front part.

Q Do you mean her vagina (front part)? - Yes".

 

[11] In cross-examination the advocate depute took some time to explore the question of whether the appellant knew the difference between vagina and anus, in linguistic terms. The appellant explained on several occasions that he did (p 27). Thus there was a further exchange:

Q Tell me where the woman's vagina (front part) is? - It's at the front.

Q And if a man and woman wanted to have a baby, where would the man place his penis? - In the front part.

Q Do you mean by that in the vagina (front passage)? - Yes.

Q Where is the anus (back part) on a person? - At the back.

Q Do you understand that the anus (back part) sex is different from vaginal (front passage) sex? - Yes.

Q Did you ask [YM] for anal (back part) sex? - No.

Q Did you want to have anal (back part) sex with [YM]? - No.

Q Did [YM] offer you anal (back part) sex? - No.

Q Did [YM] ever consent to have (back part) sex? - No".

 

The appellant went on (p 43) to say again that he had consensual "front passage" sex only with the complainer and this was translated for the jury as vaginal sex.

 

Evidence on Appeal
[12] The appellant gave evidence that he was from Sialkota in Pakistan and a native Punjabi speaker. He had come to the United Kingdom in 2005, but maintained that he did not know any English until then. He worked in a takeaway restaurant, where the other employees were all of his own ethnicity and Punjabi alone was spoken. He said that he did not speak English even socially. Although he had been in the UK for some six years before his trial, he maintained that at that stage he did not know any English.

[13] In the lead up to the trial, the appellant had instructed Phillip Rooney, Solicitors in Paisley. He dealt with one particular solicitor, Mr Abdullah Hamid, who also spoke Punjabi and who had familiarised the appellant with the terms of the indictment. Mr Rooney sometimes consulted with him, but with an interpreter present. The appellant maintained that there was a male interpreter, engaged in the pre-trial proceedings, whom he could understand. However, at the trial itself, a different person had been engaged who, he maintained, spoke some sort of Indian language and Hindi. It might be remarked at this stage that this is not consistent with the ground of appeal which states that she spoke Urdu, a language more familiar in Pakistan.

[14] The appellant continued that he had only understood about 40% of what the interpreter had been saying to him and she had been translating only a few words of what had been said. This had continued in the same vein even after the issue had been raised with the judge. The appellant had not brought this problem to the attention of his counsel or solicitors. This was because he had never been to court in his life before and did not appreciate that he could obtain a change of interpreter.

[15] According to the appellant, "Asian women", as he put it, cannot speak openly with a male about events such as were being described during the trial, because of Indian and Pakistani culture. She talked about various things, such as sex from the back, or sex from the front and the appellant had not followed what was being said. She had used some words which he did not understand. She did not use the correct terms for vagina and anus. When the scientists and doctors gave evidence, they used technical terms and, again, he had not understood some of the words used. The interpreter had used English words for these technical terms.

[16] When it came to the appellant himself giving evidence, Mr Abdullah Hamid had been present, although, as a generality, it had been Mr Rooney in attendance during most of the rest of the trial. Again, the interpreter had used words which were not exact translations of what had been said and he had become confused. He did not think that he had been able to give his account properly, because the interpreter was not translating everything to him in full. Thus, he was not able to tell the jury how the complainer had come to his house and had been laughing and drinking with him. He had not been able to describe to the jury how she had been dressed and how it was that the complainer had wanted to have sex with him, taken off her top and had started kissing him. If he had been able to tell all of this in his own language, he would have been a free man today.

[17] In cross-examination, the appellant accepted that at no point had he said to the interpreter that he could not understand what she had been telling him. When he had been giving his evidence, he had just based his answers on what he had understood from her. He had been aware through his counsel and solicitors of the nature of the allegations against him. He had known that it was said that he had telephoned the complainer and asked her to come to his flat. She had been saying for "business" and had asked for the address. He had understood that it had been alleged that he had paid for oral and vaginal sex and that he had then had anal sex with the complainer without her consent. He had told his counsel of the nature of his defence, which was that he had simply had consensual oral and vaginal sex with the complainer. Nevertheless, he had not understood what was being said in relation to vaginal or anal sex, because the references to sex from the front and back had been confusing.

[18] In response to a question from the bench, the appellant accepted that the minutes of the pre-trial procedure disclosed that the same interpreter, as had been at the trial, had been used on three occasions at preliminary hearings. Only one other hearing had had the services of a different person. The appellant was unable to explain why his Note of Appeal complained that the interpreter had been speaking Urdu.

[19] Mr Asmat Syeed, a professional interpreter whose expertise was not challenged, (although his Diploma in Public Service Interpreting is in "Urdu/Scottish Law") gave evidence in relation to a report, and supplementary report, which he had prepared, having listened to the recording of the appellant's evidence. He said that the interpreter had been using what he described as "Indian" Punjabi. This language bore no resemblance to Urdu. Urdu was commonly used as an official language in Pakistan, whereas Hindi, which was not exactly like Punjabi, was used widely in India. He was a native Punjabi speaker himself and could understand and interpret both Indian and Pakistani Punjabi. One of the differences between the two was that Western (Pakistani) Punjabi was written in Arabic, whereas Eastern (Indian) Punjabi was in Hindi script. Since partition in 1947, there had been a tendency for certain Hindi words to be used by Punjabi speakers in India and certain Urdu words to be spoken by Pakistani Punjabi speakers. Indian and Pakistani Punjabi speakers could understand each other, but that was not the same as being able to provide a professional translation of what one or other had said.

[20] Mr Asmat Syeed considered that the use of "front part" and "rear part", instead of using precise terminology, had caused problems. The nature of the mistranslations was illustrated by the references quoted above to the use of "front" and "back" for vaginal and anal sex. His view was that a female interpreter, unfortunately, could not handle the nature of a case such as this.

[21] Ms Kamaljeet Minhas gave evidence on behalf of the Crown. She was aged 52 and a freelance interpreter, registered with the Institute of Linguistics and engaged on a regular basis for court work by Global Language Services, Glasgow. She had appropriate qualifications from the Institute, notably a Certificate in Community Interpreting - Legal Option, which was the equivalent of what became the Diploma in Public Service Interpreting. Her first language was Punjabi. She had been born and brought up in India, but had come to the United Kingdom 33 years ago. She interpreted in Hindi as well as Urdu and Punjabi. She had some friends who were from Pakistan and some from India. She had had no difficulty in understanding either, when they were speaking Punjabi. There were no material differences, although there were certain local slangs and colloquialisations of a type current in any language. Overall, Punjabi was basically the same wherever it was spoken. She had never had her ability as an interpreter challenged on any previous occasion, despite the fact that she had worked for many years in the courts and had interpreted in many cases of a sexual nature. She had also worked for the police, for the National Health Service and the Benefits Agencies. She did not consider that the fact that she was female had any bearing on the professional way in which she carried out her work.

[22] In approaching that work, Ms Kamaljeet Minhas explained that her function was not just as "lip service", but to interpret in a manner whereby an accused person could fully understand what was being said. Thus, she would adapt her mode of interpretation to the apparent level of education of the accused person. She had had appropriate training and her general experience of life had led her to come across people from all levels. She would be able to tell, from the use of the accused person's body language, facial expressions, answers in response and degree of spontaneity, whether he could properly understand what she was saying. In the appellant's case, she was confident that the appellant had understood what she had been saying. When interpreting in a case, she often had the opportunity of speaking to the accused person at considerable length. That was the situation here and it was her custom to say to such a person that, if he did not understand what she was saying, then he could come back to her and she would rephrase the matter or use alternative words.

[23] Ms Kamaljeet Minhas had used Punjabi throughout the trial, but did not adopt any particular dialect. She had not been told where the appellant was from, although, in due course, she had ascertained that he was from Pakistan. She had not detected any problem; nor did any of the court officials. At no stage did the appellant raise any problem. Indeed, when the issue was brought up before the judge, the appellant had told her that he could understand her fully and that he did not know why his counsel had been making such a fuss about it.

[24] In relation to the interpretation of particular words, it was important to be aware that there was no sex education in India or Pakistan. The words for anatomical parts, which would appear in the Punjabi dictionaries, were ones which would not be understood widely if used in public. It was clear from the words that she had used during the trial that the appellant had understood what she had been saying. He had used the same words in his answers. Accordingly, "front" was being used for vagina and "back" for anus. Once the issue had been aired with the court, both the appellant and his lawyers had been advised that, if there was any problem, they should bring it to the attention of the court. They did not do so. The complaint, which had been made about the use of euphemisms, was not one which was raised by either the appellant himself or his counsel. Indeed his counsel had said that he did not perceive that there was any problem. She accepted, however, that she did not change her style of translation much after the objection had been raised and there had been a request that she use exact translations of the words used.

[25] In cross-examination, certain Punjabi words for penis, anus and vagina were put to the witness, which she accepted were technically correct. She accepted also that there were certain medical terms which she had been unable to translate because of the absence of Punjabi equivalents and she had used the English terminology instead, but had explained what the word meant. She did not summarise the evidence, but interpreted in full. Thus, if there was a long answer, she would ask for it to be broken down into smaller sections so as to permit such interpretation.

[26] Mr Harnek Monon, also gave evidence in relation to interpretation. He was aged 77 and had extensive experience in interpretation throughout the country. He had been born in the Punjab and had lived in India until he was 21, when he left for the United States of America. He had come to the United Kingdom in 1963. He had been the head of interpreting services for Glasgow City Council until his retirement. He had continued interpreting thereafter in the courts and had frequently assisted accused persons in a variety of cases, including sexual offences. He has worked in the context of the National Health Service, tribunals and social work departments.

[27] Mr Harnek Monon explained that, sometimes in Pakistan, Punjabi speakers would use some Urdu words, whereas Indian Punjabi speakers may use some Hindi words. However, if two speakers from each country met, they would normally understand each other. He did not have any difficulty in understanding persons from India and Pakistan who were speaking Punjabi.

[28] Mr Harnek Monon explained that the interpreter's task was to facilitate communication between two language speakers, without adding or editing, and to pass on a complete interpretation in accordance with the level of understanding of the recipient. There had to be a difference in communication with a professor as distinct from someone who had never been to school. The context in which words were used was very important, since the meanings of single words could change depending upon that particular context. He had listened to the recording of the appellant's evidence. Punjabi had been used throughout by the interpreter and, in his view, the interpretation was very clearly understood by the appellant. This was evident from the answers which he had given without hesitation. He appeared to have no difficulty at all in answering the questions asked. The issue in the case involved whether sex had been vaginal, with consent, or forced anal. Euphemisms had been used to describe parts of the body, both by the interpreter and by the appellant. They used the same euphemisms, namely front and back etc. There did not appear to be any confusion on the appellant's part, as was shown from his prompt, clear and responsive answers. Euphemisms were used on the sub-continent of India, because there was no sex education as there was in the United Kingdom. Thus, boys and girls would use slang words, or euphemisms. The words which were present in the Punjabi dictionary would not commonly be used by people and would not be understood by many people other than doctors.

[29] Mr Harnek Monon did not consider that there was any problem in using a female interpreter in this type of case. It all depended upon the educational background of the person concerned.

Submissions

[30] The appellant maintained that the level of interpretation during the course of the trial had been such that the appellant had not been given a direct translation of the words used. There was accordingly unfairness in the trial and the conviction ought to be quashed. The difficulties could be seen from the passages of evidence quoted above and, in particular, the confusion which might be caused from the use of the words "front" and "back" in describing the sexual act as distinct from positioning from behind or the front. It was the appellant's contention that he could not fully explain what had happened. It was accepted that the rudiments of his evidence had been before the jury. However, the manner of translation was such that he had not been able to present his defence to the jury. He had been inhibited in giving his evidence. Reference was made to the Supreme Court of Canada case of R v Tran [1994] 2 SCR 951, Lamer CJ, delivering the Opinion of the Court (at 975-979 and 985-990); Mikhailitchenko v Normand 1993 SLT 1138; and M, Petitioner 2006 SCLR 177. The problems of translation had been contributed to by the use of a female interpreter.

[31] The Crown submitted that there had been no significant difficulty with the interpretation during the course of the trial. There had been no complaint about the accuracy of the transcription produced and it could be seen from it that the questions and answers flowed together. The only concerns focused upon the use of euphemisms, but it was accepted that the context in which the words were used was very important and the euphemisms could be understood in that context. The transcription confirmed that the appellant's position had been put clearly to the jury. In this respect the case was distinguishable from Mikhailitchenko (supra) and Tran (supra). It was sufficient that the interpretation assistance provided should be such as enabled the appellant to know of the case against him and to defend himself by presenting his version of events to the court (see Diallo v Sweden, ECHR, 5 January 2010, unreported, No. 13205/07, para 23).

[32] It should be noted that, at the commencement of the appeal hearing, the appellant sought to lodge a devolution minute. This was refused on the basis that it came too late. No cause had been shown as to why such a minute could not have been lodged at the outset of the appeal proceedings, quite apart from the question of whether it could have been raised during the first instance proceedings. The appellant sought leave to appeal to the United Kingdom Supreme Court against the court's refusal to permit the introduction of a devolution minute so late. The motion to introduce the minute was renewed at the conclusion of the appeal and the court understood that leave was again being sought to appeal.

 

Decision
[33] There is, of course, no difficulty with the proposition that, where an accused person is unable adequately to understand English at a trial diet, he has a right to have the assistance of an interpreter (HM Advocate v Olsson 1941 JC 63; Article 6.3 of the European Convention). The assistance provided must be such as enables the accused to know what the case against him is and to defend himself properly, notably by being able to present his version of events to the court (Diallo v Sweden, ECHR unreported, 5 January 2010, No 13205/07). The level of necessary assistance may vary according to the accused's level of understanding English. Where his knowledge is good but incomplete, for example, it may be sufficient for the accused to have an interpreter available to assist in moments of difficulty. This does not just apply to the interpretation of the evidence of witnesses. The accused may prefer, for reasons of emphasis or otherwise, to give his evidence in English (with assistance where necessary). He should be entitled to make that choice. If a higher level of interpretation is needed, it will normally be sufficient to have the testimony interpreted simultaneously, discreetly for the accused, either by using electronic means (eg interpreter's booth, microphone and headphones) or by the simpler expedient of having the interpreter sit next to the appellant during the proceedings. In relation to the evidence of the accused himself, when he elects to testify in his native tongue, it will normally be necessary to have the questions asked and the answers given interpreted sequentially; that is to say separately, one after the other.

[34] It is not now disputed that the appellant was provided with the assistance of an interpreter, who interpreted the testimony of the witnesses for him simultaneously into Punjabi and who interpreted his own evidence sequentially. What is at issue is the quality or standard of that interpretation. The court has little difficulty in adopting much of the dicta of the Supreme Court of Canada in R v Tran [1994] 2 SCR 951. The purpose of providing interpretation assistance is to create a level and fair playing field rather than providing some individuals with more rights than others (ibid at 978). In that context, the standard of interpretation is one of "continuity, precision, impartiality, competency and contemporaneousness" (ibid at 979). The right is to interpretation assistance and not to formal translation, such as of writings, at a level which might be achieved by a linguistic expert after mature consideration and study. Interpretation is an art. It requires the interpreter to attempt to convey to the foreign language speaker the meaning of the words used in as accurate a manner as possible. This will not necessarily involve a precise or perfect word for word translation (ibid at 985). There may be no exact equivalent word in the foreign language or in English. Alternatively, there may be several words for the same thing. A "word for word" translation may either be incomprehensible to a person from a different linguistic culture or it may fail to convey the correct meaning to a person of the foreign language speaker's education and intelligence. What is required is interpretation which ensures that the accused person understands what is being said, or asked of him, and conveys in English what he is saying when testifying in his own tongue (ibid at 990).

[35] The court is not persuaded that the interpretation of the testimony in this trial, including the questions posed to and answered by the appellant, was in any material way defective. Quite the contrary; from the material available, notably the transcription of the appellant's testimony, the court considers that the appellant was able to, and did, fully participate in the proceedings. In particular, it is apparent, even from the form of the answers which he gave, as recorded in the transcription, that the appellant understood the questions put to him and he was able to answer them properly and fully. His answers placed his version of events clearly before the jury. That was, as is also evident from the transcription, that he did not have anal intercourse with the complainer. Rather, he had consensual oral and vaginal sex with her; the latter occurring when she was leaning over a table. In so far as he did not provide certain details of his account, the level of description was a matter for his counsel to control according to his judgment. The court readily understands why counsel might not wish to ask questions about particular aspects of the incident.

[36] The court did not find the testimony of the appellant in the appeal process to be credible in relation to the critical feature of whether he had understood the testimony of the witnesses and the questions posed to him. Central to that finding is the fact that at no point did the appellant himself complain to the court or his counsel and agents about not understanding what the interpreter had said. If the appellant had had any difficulty in comprehension, the court considers that he would have made this clear to his legal representatives at, or even before, the trial diet. Although the appellant maintained that this interpreter first appeared at the trial diet, this is clearly untrue. She had interpreted at three Preliminary Hearings. Any difficulty would have been apparent by the time the trial had started and certainly long before the issue was raised by counsel, without formal objection or motion to desert, on the advice of his instructing agent, once the examination-in-chief of the appellant was well under way. The appellant had been specifically advised by the judge, after the discussion about the accuracy of the interpretation, that he should draw attention to any further difficulties. He made no complaint thereafter about the quality of the interpreter's work. In rejecting the fundamentals of the appellant's version of events, the court has not taken into account the testimony of the interpreter that the appellant had positively said to her that, despite what his counsel had said, he had no difficulty with what she had been interpreting. This statement was not put to the appellant for his comment and, in these circumstances, the court disregarded it.

[37] The raising of the issue with the trial judge appears to have stemmed from the appellant's agent, who considered that the interpreter was using euphemisms rather than the exact equivalent Punjabi words for the relevant parts of the human anatomy. Two points are of significance in this connection. First, the agent did not give evidence at the appeal hearing, although he was present throughout most of it. The court did not therefore have the benefit of his testimony. In particular, it did not hear from him as to whether the appellant appeared to be having any difficulty in understanding the proceedings during the trial. The court would have expected any competent agent dealing with a foreign language speaker to have advised his client to tell him immediately if he was having any difficulty. The court finds that the failure of the agent to provide his version of events strengthens its conclusion that no such difficulty arose. The appellant's counsel at the trial also did not give evidence. However, he is recorded in the transcription as stating that, although the appellant had, on inquiry, said to him that he had understood only a portion of what had been said, he did not regard this as outwith the normal comprehension by accused persons of evidence, notably medical or scientific evidence, in the course of a trial. Counsel advised the judge that he was satisfied that the appellant had understood the proceedings to the point when the issue was raised. In particular, he did not consider that there had been any difficulty which might legitimately have prompted a motion to desert the diet or to pause and remedy any misunderstandings. Counsel did not thereafter make any objection in relation to the appellant's evidence. Had there been any problem in that regard, the court is satisfied that counsel would have raised it. It would not be surprising if an accused person did not understand medical or scientific terminology, at least if it was suddenly thrust upon him. If there is an issue in that regard, it is primarily for his legal representatives to ensure that he is aware of any salient scientific or medical proof. In this case, the relevance of the scientific evidence was the finding of the appellant's sperm in the complainer's rectum. The court has no doubt that the appellant's counsel would have advised him about this in advance of the trial. It has equally no doubt that this evidence would have been understood by him.

[38] Lest it be forgotten, the court is not ignoring the fact that the complaint in the ground of appeal, which was presumably seen and approved by the appellant's agent, who remained the instructing agent in the appeal, is that the interpreter was a native Urdu speaker. How this fundamental aspect of the ground came to be drafted remained unexplained, but it was clearly unfounded in fact.

[39] The second point is that the complaint made by the agent to counsel appears to misunderstand the function of interpretation as set out above. It is to convey, as accurately as possible, to the particular accused the meaning of the English words used in the context in which they appear. The fact that euphemisms were used for parts of the body does not mean that the interpretation was in any way inaccurate, in the absence of evidence that such use would not be that understood and employed by the foreign language speaker in accordance with his culture. The court accepts the evidence of the interpreters that the Punjabi words for the anatomical parts referred to are not in common parlance amongst the general population in Pakistan and would either not be understood by the ordinary person or, if understood, would not be the normal manner of referring to these parts. Avoidance of the use of the actual words for sexual genitalia or the anus is hardly unusual in cultures. Indeed the language employed by the courts in Scotland, and sexual education programmes, tends to avoid either local or more general English terminology in favour of, presumably for reasons of social delicacy, words in Latin. Indictments are framed using euphemisms, such as "private member" for penis and "hinder parts" for anus. Accordingly, the court does not accept that the interpreter's method of approaching the issue was in any way at fault. It rejects the idea, which Mr Asmat Syeed advanced, to the effect that the correct dictionary terms ought to have been employed. As indicated above, such an approach may be appropriate when translating documents and where time is afforded for precise analysis of different meanings of words not in common use, but it is not practical when interpreting continuously, either simultaneously or sequentially.

[40] The duty of the interpreter is to convey true meaning to the accused so far as is reasonably practicable. If the court interjects to direct the interpreter to do something different, there is a potential for conflict. It is not unreasonable to suggest that, at one point in the trial, the interpreter was asked by the judge to use the Punjabi anatomical terms when interpreting. However, she could hardly be expected to do this if, in so doing, she would not convey that meaning to the accused. In any event, matters were left on the basis that the interpreter should use the words which the appellant himself used. It was he who had used the same euphemisms as the interpreter had been employing in the first place. In such a situation, it was entirely reasonable for the interpreter to continue to use the terms which the appellant was using, and clearly understood, rather than attempting to introduce obscure Punjabi words for particular parts of the body, which the appellant would not have been familiar with.

[41] The court was impressed with Ms Kamaljeet Minhas' approach to her task, as supported by Mr Harnek Monon. It is equally satisfied, upon their evidence and indeed that of Mr Asmat Syeed, that any differences which may exist between Pakistani and Indian Punjabi were of no moment in this trial. It seems to be accepted that, although the language may be written in different scripts depending upon whether the writer was educated to the west or east of the border, Punjabi speakers will understand each other no matter from which part of the sub-continent they come (and the appellant comes from a part almost upon the border).

[42] The court does not consider that there is any merit whatsoever in the contention that, because she is a woman from (as it was put) "Asia", this led to any difficulty at the trial. Quite apart from the unsupported generality of this allegation, it was clear to the court that Ms Kamaljeet Minhas is an extremely competent and experienced interpreter with quite sufficient an understanding of the world, notably events explored in the criminal courts, that the use of sexual terminology in the course of her professional duties would not cause her the least embarrassment or consequent difficulty.

[43] For all of these reasons, the court finds that the interpretation at the trial met the test of continuity, precision, impartiality, competency and contemporaneousness. It does not consider that there was any material problem with its quality. Lest it be perceived that the point is missed, it also does not consider that the fair minded and impartial observer viewing the trial would have had any difficulty in deciding that justice was not only done but was seen to be done, especially having regard to the way in which the matter was raised (ultimately without formal objection) with the trial judge, dealt with by him and which ultimately ceased to be a matter of any substance.

[44] The appeal is accordingly refused. Given that the court has determined this issue primarily as a matter of fact, it will also refuse the appellant's renewed motion to introduce a devolution minute and for leave to appeal to the United Kingdom Supreme Court.