Time to Reconsider
The UK has signed up to two sets of formal commitments in respect of those involved in its criminal justice system.
1. The European Convention on Human Rights, Article 6 of which upholds the right to a fair trial. There are 47 States Parties to the Convention, all members of the Council of Europe. Proceedings based on this article may ultimately come before the European Court of Human Rights in Strasbourg.
2. As one of the 27 Member States of the European Union, the UK is pledged to comply with the body of EU law.
All EU Member States have until 27 Oct 2013 to transpose Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings into their national legislation. http://www.eulita.eu/sites/default/files/directive_en.pdf
Unlike an EU Regulation, which sets out in detail steps to be taken by the Member States, a Directive sets out an aim or end point to be reached, Member States being free to determine how they will achieve this. It is no less binding in its effect.
The UK now has 13 months to comply with this legislation. This obligation weighs on Her Majesty's Government in respect of courts and tribunals operating in the judicial systems of England & Wales, Scotland & Northern Ireland.
Paragraphs 1 & 2 of Article 5 of the Directive, entitled Quality of the interpretation and translation, read:
"1. Member States shall take concrete measures to ensure that the interpretation and translation provided meets the quality required under Article 2(8) and Article 3(9).
2. In order to promote the adequacy of interpretation and translation and efficient access thereto, Member States shall endeavour to establish a register or registers of independent translators and interpreters who are appropriately qualified. Once established, such register or registers shall, where appropriate, be made available to legal counsel and relevant authorities."
Article 2 (8)
"8. Interpretation provided under this Article shall be of a quality sufficient to safeguard the fairness of the proceedings, in particular by ensuring that suspected or accused persons have knowledge of the case against them and are able to exercise their right of defence."
Article 3 (9)
"9. Translation provided under this Article shall be of a quality sufficient to safeguard the fairness of the proceedings, in particular by ensuring that suspected or accused persons have knowledge of the case against them and are able to exercise their right of defence."
The Ministry of Justice's decision to abandon the National Agreement for the Use of Interpreters within the Criminal Justice System, ditching recognition of a National Register of Public Service Interpreters based on objective qualifications and subsequent experience, is clearly a move AWAY from both of the following requirements, not a move in that direction:
- establishing "a register or registers of independent translators and interpreters who are appropriately qualified"
- "interpretation of sufficient quality to safeguard the fairness of the proceedings". (my emphasis)
The Ministry's disregard of its obligations is indefensible and will inevitably lead to an action against the UK brought by the European Commission before the EU Court of Justice in Luxembourg unless someone swallows hard and comes up with a constructive approach to bring the legal interpreting profession back on board. Minister Blunt & Lord McNally must raise their eyes from a script which is belied by the facts on the ground. The representative professional bodies state they are keen to discuss the shape of a fair and workable arrangement with the MOJ.
Since other attempts to turn court & tribunal interpreting services into a cottage industry generating revenue for outsourcing firms are reported, inter alia in Spain & the Netherlands, the legal services of the European Commission will be keen to obtain established case law in this area. It is to be hoped the UK will turn the page on this inglorious chapter before it is exposed to the scrutiny of the Luxembourg judges.