Legal translator Aisha Maniar looks at the impact of privatised court interpreting services in England and Wales over the past five years and the new justice sector contract which came into force on 31 October.
‘It is easy to take for granted the right to a fair trial. It does happen, people of good character coming before the courts. Imagine if you were abroad, when you were arrested, finding yourselves in the wrong place at the wrong time, being hauled off to a police station in a country where you don’t speak the language. How terrifying would that be?’
These were the closing remarks of defence barrister Sue Hirst in the high-profile case of three young Syrian refugees accused of sexually assaulting two schoolgirls in a Newcastle park. On 13 October 2016, the men were acquitted by a jury after the trial was delayed when it was discovered that the charges were based on errors – ‘some of them minor, some of them more significant’ – in the translation of police interviews; the interviews had to be checked and retranslated.
The case highlights the importance of translation in legal proceedings when one or more of the parties do not speak English. It also highlights the importance of using suitably qualified language professionals in legal proceedings: were it not for the two Arabic interpreters the errors may not have come to light.
The right to a fair trial, particularly in cases where foreign language speakers or the hearing impaired are involved, cannot be taken for granted, even though it is a legal requirement.
In August 2011, the Ministry of Justice (MoJ) outsourced foreign language and deaf interpreting services across the justice system in England and Wales under a 4-year framework agreement worth £168 million; a further 5-year £90 million contract to cover courts and tribunals was signed in October 2011. The contracts were signed with a small language service provider, which was bought by Capita trading as a new division called Capita Translation and Interpreting (Capita TI) in the interim period before the contract was rolled out in January 2012. The sale was allegedly made without the knowledge of the MoJ.
As the contract involved ‘reduced pay rates and lack of professional recognition’, it was boycotted by the majority of qualified professional interpreters whose services were previously, and are otherwise, offered via the voluntary regulators the National Register of Public Service Interpreters (NRPSI) and the National Registers of Communication Professionals working with Deaf and Deafblind People (NRCPD).
Subject to at least three parliamentary inquiries and an independent review, in 2013, the contract was varied following discussions with interpreter organisations to provide marginally better terms, which were still rejected by most interpreters.
As a result, throughout the life of the contract, Capita was only able to meet its 98 per cent completed requests target under the contract in the final quarter of 2015. In the latest statistics, for the second quarter of 2016 (published in October), that figure fell to 96 per cent, or more than 25 cases per day where an interpreter did not attend. A written parliamentary question revealed that more than 2,600 court cases were adjourned due to interpreter unavailability between 2011 and 2015.
Such statistics, provided by Capita, offer only a quantitative view of the situation, and relay nothing of the quality of interpreting when cases went ahead. In many cases, trials proceeded without an interpreter or with one who was unqualified. In 2015, the most senior family courts’ judge criticised the service and fined Capita TI £16,000 after a Slovak interpreter failed to attend hearings in the same case on six occasions.
In July 2016, Baroness Coussins outlined the history and failings of the contract in the House of Lords and summed up the effect in the courts:
‘Problems included unqualified or underqualified interpreters and people with no experience of courts or the judicial system and its language. In one case, the so-called interpreter did not know the difference between murder and manslaughter. People with the wrong language turned up: in one case, a Lithuanian interpreter arrived for a Slovakian prisoner; fortunately, they both spoke Polish so they muddled through. Often no one turned up at all because of a flawed booking system.’ In sum, foreign language speakers and the hearing impaired can no longer expect justice even if an interpreter attends.
A tender for a new 4-year contract, with the possibility of annual renewal for a further three years, was launched in October 2015. It was preceded by a consultation period during which the MoJ met interpreter organisations, which expressed their concerns in a manifesto. However, the new contract appears to demonstrate the MoJ’s failure to learn from the ‘total chaos‘ of the first contract.
The new contract, which is divided into four lots – interpreting / translation and transcription / non-spoken languages / independent quality assurance – appears strikingly similar to the one it is replacing. The successful suppliers were announced in May 2016. Non-spoken languages was allocated to Clarion Interpreting Limited and independent quality assurance to The Language Shop (London Borough of Newham). The largest share – interpreting, translation and transcription – was awarded to Yorkshire-based thebigword Group Ltd, the runner up in 2011. Capita TI, which had done very well out of the old contract, going from an industry newcomer to one of the largest public sector interpreting service providers in the country, only bid for the written translation and transcription lot under the new contract, and was unsuccessful. Unlike Capita TI, thebigword has over thirty years of experience in the language sector. The £120 million contract is greater than that awarded to Capita TI, even though it covers a shorter period and fewer services. In May 2016, thebigword was also awarded another 4-year public service interpreting contract.
The new contract started on 31 October and picked up the baton exactly where the last one left off: cases were delayed and interpreters failed to attend court. Sentencing in the case of a family of Czech traffickers was delayed when the interpreter in the 8-week trial failed to attend following the change in contract holder: ‘From Friday to Monday there was a change of contracts. She (the interpreter) was not approved by the new contract company and the rates they were going to pay her were so meagre it was not worthwhile for her to attend.’ A defence interpreter finally stood in so the parties could be sentenced. The same case had previously been delayed in 2015 when the judge expressed concerns about an interpreter.
The government’s stated rationale for privatising court interpreting services is to improve efficiency and save money. Whether either of those has been achieved remains debatable. Unsubstantiated savings of £38 million under the first contract do not include the cost of rescheduling court cases, holding defendants on remand for extra time or the unquantifiable distress to parties. Changes to the publication of statistics on language services may also make it difficult to track significant differences between the two contracts.
Access to the courts and justice is increasingly a privileged sphere. Migrants and the disabled – the communities served by court interpreters –– are already adversely affected by austerity measures and public service cuts. With the language of court proceedings a challenge for many monolingual speakers of English, demanding that foreign language speakers learn English is irrelevant; language ability is simply a further disadvantage. The discourse around Brexit and foreign workers and nationals in the UK also places interpreters, many of whom are foreign nationals, at a disadvantage.
Many professional foreign language interpreters have already expressed their dissatisfaction with the new contract, which offers them little incentive or professional recognition. A strike is due to take place on Monday 14 November.
Aisha Maniar’s blog: One Small Window
IRR News: (Language) policing at Europe’s borders