Complainer: A Ogg, Solicitor Advocate; McCusker, McElroy and Gallanagh, Paisley

Respondent: A Brown QC, AD; Crown Agent

24 September 2013

[1] The complainer in this bill of suspension was convicted on 24 October 2012 after trial of three charges, all of which arose from an incident which occurred on the evening of 14 July 2011 in a street in Johnstone. The first charge alleged an assault, contrary to section 41(1)(a) of the Police (Scotland) Act 1967, on a constable, PC Bradley. The second charge, also a contravention of that statutory provision, alleged that the complainer resisted the constable and struggled violently with him and three of his fellow officers. The third charge libelled a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. The bill of suspension is concerned essentially with the absence of an interpreter for the evidence a defence witness.

[2] By way of background and in brief summary the Crown case, spoken to by PC Bradley and one of the officers referred to in charge 2, was to the effect that a report was made to the police that a white van was being driven in the area by a driver who it was said was thought to be under the influence of alcohol. Officers observed a white van halt outside the house where the complainer was living. They approached the van and observed the complainer in the driving seat accompanied by a dog. The complainer left the van and began to walk towards his house having declined a request by the police that he remain at the van to await the arrival of a breathalyser kit. PC Bradley thereupon blocked the complainer's path towards his house. The complainer then allegedly punched Bradley in the shoulder and thereafter, put very shortly, a struggle ensued between the complainer and a number of police officers. The complainer gave evidence. Again put very shortly, his account was to the effect that he had gone to his van to obtain cigarettes; he sat in the van smoking a cigarette and looking at some papers relating to his business; and when, after about five minutes, he left the van he was seized by a policeman and while being held by the arm was interrogated about an alleged metal theft and fraudulent insurance claims. The lady with whom he lived, Miss Jarmila Kapustova, came out from the house and he passed the dog to her. Miss Kapustova was then abused by a police officer and when the complainer sought to prevent that abuse he was punched by a policeman with the result that his spectacles were knocked off and fell to the ground. The complainer was thereafter brought to the ground by the police officers and was repeatedly assaulted by them.

[3] Both the complainer and Miss Kapustova are from the Czech Republic. During the initial stages of the proceedings in the prosecution the complainer was represented by a solicitor. At the second of a number of intermediate diets an interpreter was provided for the assistance of the complainer whose native language is, of course, Czech. The case eventually called at a trial diet on 20 August 2012. The complainer was by then without the legal representation which he had had previously. The court, on the motion of the prosecutor, adjourned the trial diet until 9 October 2012 "to give the accused further time and seek legal advice if required". The sheriff reports that on 19 September 2011 (sic) a local firm of solicitors wrote to the court advising that they required to withdraw from acting because the complainer's application for legal aid had been refused. The sheriff further reports that, according to his understanding, the solicitors had been unable to seek a review of that refusal because of the absence of certain financial information from the complainer.

[4] When the case called for trial on 9 October 2012 the complainer was unrepresented. An interpreter commissioned by the sheriff clerk was in attendance. It would appear that either the interpreter or the sheriff clerk had advised the complainer that the interpreter would not act as an interpreter for the complainer's only witness, his partner, since the sheriff reports that at the commencement of the trial the complainer informed the sheriff that he had been refused legal aid and was unrepresented and that he had no funds to employ an interpreter for his witness, whose English was not good.

[5] In his first report, dated 7 November 2012, the sheriff advises that his understanding was that

"...the practice is that the Sheriff Clerk's Office will instruct an interpreter to attend Court where the accused requires the services of an interpreter. If, however, an interpreter is required for a defence witness, this is the responsibility of the accused, and an interpreter requested by the Sheriff Clerk is not permitted to assist in interpreting for a defence witness (even in the situation where the accused has forgotten, or been unable, to instruct an interpreter)."

[6] It is not clear whether the interpreter who was present on 9 October 2012 provided chuchotage interpretation for the complainer as the Crown case was presented. At all events the complainer, who the sheriff says speaks English well, elected to give his evidence in chief in English but relied on the interpreter to interpret the questions which were put to him in cross‑examination by the procurator fiscal depute.

[7] The interpreter was also present on the second day of the trial, namely 24 October 2012, when the complainer wished to adduce the evidence of his partner Miss Kapustova. The complainer again stressed that the witness' command of English was not good and that she required an interpreter. However, the clerk advised the sheriff that the interpreter declined to give any assistance to the court by way of interpreting for the defence witness. The sheriff accepted that to be the position and the entirety of the defence witness' testimony was conducted in English.

[8] The sheriff reports that the witness' command of English was indeed poor. He had to require the complainer and the procurator fiscal depute to endeavour to frame their questions in a simple straightforward way. The sheriff reports that he considered that the witness understood all of the questions which were put to her. At no time could it be said that she gave a nonsensical answer. But she had difficulty formulating answers in English although when given time she was able to answer the questions. In the event the scope of the examination and cross‑examination appears to have been restricted, with each party apparently asking little more than a dozen or so questions.

[9] As already indicated, the point raised in the bill of suspension is that the absence of interpreter for the defence witness, Miss Kapustova, rendered the trial unfair and resulted in a miscarriage of justice. In advancing the argument for the complainer Ms Ogg, solicitor advocate, referred at the outset to a code of practice, namely the "Code of Practice for Working with Interpreters in the Scottish Criminal Justice System" which had been formulated in 2008 by a working group upon which the Crown Office, the Association of Chief Police Officers in Scotland, the Scottish Court Service, the Law Society of Scotland and the Scottish Legal Aid Board were represented. Ms Ogg recognised that the code of practice envisaged that the court service would instruct an interpreter where the accused lacked fluency in English; that the Crown would instruct an interpreter for prosecution witnesses and the defence solicitor where an interpreter was required for a defence witness. However, it was submitted, the court had in every case ultimate responsibility for ensuring the fairness of the proceedings. In the present case a Czech interpreter was indeed present in the court. The sheriff ought to have instructed the interpreter to perform her duties as an interpreter sworn for that sitting of the court. It was clear that the witness' command of English was poor; she had great difficulty in answering any question in English. If the sheriff were not prepared to ensure that the interpreter attending the trial performed the task of interpreting the questions to and answers from the witness the sheriff ought to have adjourned the proceedings to allow the complainer to apply again for legal aid particularly when it became apparent the witness had such great difficulty in speaking English. Moreover, and importantly, the manifest difficulties which the witness had in giving evidence in English had an inhibiting effect on the extent to which the complainer felt able to pursue his examination of the witness. There was a great deal of additional detail which the witness could have contributed had she had the services of an interpreter.

[10] In response the advocate depute submitted, in summary, that whether the services of an interpreter were essential for a witness' evidence was a matter of circumstances. The problem in the present case had arisen because, it seemed, legal aid had been refused and review of the refusal had not been possible without the financial information from the complainer. However, albeit that the witness' English was clearly very limited, she had been able to give evidence in support of the complainer. She confirmed essentially the position adopted by the complainer in his evidence. In England and Wales it was ultimately for the court to judge whether an interpreter was necessary in order to enable a witness meaningfully to give evidence. Reference was made to Archbold on Criminal Pleading, Evidence and Practice at paragraphs 4-58 and following; and to R v Ajay Kumar Sharma [2006] EWCA Crim 16; [2006] 2 Cr. App. R. (S.) 63. The sheriff had formed the view that the witness had understood the questions. She had been able eventually to provide answers. The sheriff did not consider that the complainer had been disadvantaged by the absence of interpretation. There was therefore no miscarriage of justice.

[11] As we have already mentioned, at the outset of her submissions Ms Ogg referred to the "Code of Practice for Working with Interpreters in the Scottish Criminal Justice System". There is annexed to the code of practice a protocol drawn up between the Crown Office, the Scottish Court Service and the Association of Chief Police Officers in Scotland respecting the instruction of interpreters for criminal court diets. The protocol records the agreement between those three organisations that inter alia where the need for an interpreter for a prosecution witness is perceived the procurator fiscal will instruct the appropriate interpreter. It further envisages that the Scottish Court Service will instruct an appropriate interpreter for an accused at all diets[1]. The introduction to the Code simply says:

"The protocol does not deal with the issue of defence witnesses but it is the responsibility of the defence solicitor to arrange an interpreter for those defence witnesses whose first or preferred language is not English."

To that extent, the sheriff's understanding of the practice in the sheriff court is consistent with the code of practice. However parties were unable to point to any part of the code of practice, or any other provision, which states that an interpreter requested by the sheriff clerk "is not permitted to assist in interpreting for a defence witness (even in the situation where the accused has forgotten, or been unable, to instruct an interpreter)".

[12] In normal course it will naturally be for the defence solicitor in the first place to identify the possible need for an interpreter for a witness whom the defence proposes to adduce since the linguistic abilities of the witness will be a matter within the knowledge of those who have interviewed the individual as a potential witness. In many cases an interpreter may be required for a witness although the accused is a native English speaker; and even where the accused is not such a speaker, the mother tongue of the witness may be different from that of the accused. As a matter of practicalities, therefore, it is no doubt appropriate that in normal course the defence solicitor should be responsible for instructing an appropriate interpreter. However, all of that said, the presiding judge has an ultimate responsibility for ensuring the fairness of the trial; and, in our view, if it appears necessary or desirable that the giving of evidence by a witness with limited command of spoken English be done with the assistance of an interpreter, the judge should take such steps as he can to enable that to be achieved.

[13] In the present case it appears to us to have been clear that, while perhaps not absolutely necessary in the sense that Miss Kapustova was a person with no understanding whatever of English, the provision of an interpreter for the evidence of Miss Kapustova was important both as a matter of fairness to the witness and as a matter of fairness for the whole proceedings. An appropriately qualified interpreter, whose services could readily have addressed the manifest problem, was available in the court. The sheriff, it appears, simply accepted without question the advice tendered by his clerk prior to the commencement of the trial that the interpreter, though linguistically qualified, was not willing to interpret for a defence witness. It appears that the sheriff took no steps to investigate the basis for that refusal (or indeed its compatibility with the oath de fideli administratione) with a view, if need be, of simply instructing the sheriff clerk in turn to instruct the interpreter that she was now commissioned to interpret the evidence of the defence witness. In our view, the criticism which was made by Ms Ogg of the sheriff's approach in the particular circumstances of this case is justified.

[14] We did not understand the advocate depute to seek actively to rebut those criticisms. The submission for the Crown, in its essence, was that it was ultimately for the court to consider the necessity of interpretation for the giving of evidence by a particular witness. In the present case the sheriff had concluded - despite the obvious difficulties - that the witness had understood such questions as were put to her. The witness had given evidence in support of the complainer, whom the sheriff did not regard as having been disadvantaged by the absence of interpretation. In those circumstances it was submitted that there was no miscarriage of justice.

[15] While there might appear at first sight to be some force in the Crown contention, given also that the sheriff preferred the evidence of the police officers to that of the complainer, we have ultimately come to a contrary view.

[16] It is, we think, important to bear in mind that the complainer's partner was present for much of the incident under dispute. Her presence was accepted by the two police officers who gave evidence for the Crown. While we have endeavoured earlier to summarise briefly the nature of the incident and the opposing standpoints there was inevitably much discrepancy of detail. It cannot, we think, be said that Miss Kapustova's evidence was the evidence of a witness who was at best peripheral to the central matters. The apparent centrality or otherwise of a witness' evidence is, in our view, an important factor in judging the need for interpretation. Given Miss Kapustova's potential importance as an eyewitness to events respecting which the procurator fiscal had led only two of the police officers present, the importance of Miss Kapustova's giving evidence uninhibited by her obviously defective command of English was, in our view, clear. Similarly it was important that the complainer - indeed also the procurator fiscal depute - should not have been constrained or inhibited in their examination and cross‑examination respectively by the inevitable feeling that the witness was struggling to understand and to reply. This was especially so in the particular circumstance of an appropriately qualified interpreter being present in the court.

[17] Further, while the advocate depute submitted that the evidence of Miss Kapustova, although given but briefly, supported the position of the complainer, that does not appear entirely consistent with what the sheriff states in his supplementary report. He says that the complainer's evidence was contradicted in part by Miss Kapustova and this was a factor in his rejection of the complainer's evidence. The particular contradiction is not specified by the sheriff. Ms Ogg identified in that report a possible contradiction in the sense that the witness is reported as having referred at one point to "punch" in the singular and later to "punches" in the plural. Be that as it may, the inarticulately delivered evidence of Miss Kapustova appears to have been a factor relied upon by the sheriff in his assessment of credibility.

[18] If the contradiction identified by Ms Ogg were the contradiction in issue, it perhaps underscores a difficulty in the sheriff's approach to the effect that because the witness appeared to understand the questions the answers eventually given were equivalent to that understanding. The passive understanding of a foreign language is commonly much greater than the ability actively to respond, express thoughts or convey descriptions of events. Particularly in the context of giving evidence in court proceedings the active component may - and usually will - be important. A witness having understood the question should if possible be able to express him- or herself in language of his or her choosing uninhibited by significant restrictions on his or her command of vocabulary, syntax, idiom or general expression. While of course it might ultimately be that had Miss Kapustova given evidence through the interpreter who was present in the court, the sheriff would nonetheless have reached the same conclusion on credibility and reliability, we do not think one can say that such would necessarily be the case.

[19] In these particular circumstances we have ultimately come to the view that we cannot say that there was no miscarriage of justice and accordingly we consider that the bill should be passed and the convictions quashed.