22
Public Services Committee
Corrected oral evidence: Interpreting and Translation Services in the Courts
Wednesday 23 October 2024
11.05 am
Members present: Baroness Morris of Yardley (The Chair); Lord Bach; Lord Carter of Coles; Lord Laming; Lord Mott; Lord Prentis of Leeds; Lord Shipley; Lord Willis of Knaresborough.
Evidence Session No. 1 Heard in Public Questions 1 - 14
Witnesses
I: Susan Grocott KC, Co-Chair, Legal Services Committee, Bar Council; Philip Stott, Co-Chair, Legal Services Committee, Bar Council; Richard Miller, Head of Justice, The Law Society.
Susan Grocott KC, Philip Stott and Richard Miller.
The Chair: Welcome to this first public session of our inquiry into interpreting and translation services in the courts. I welcome our three witnesses today. I will start by asking them to introduce themselves and say where they are from.
Susan Grocott: I practise from Manchester, with chambers also in Preston. I am a co-chair of the Legal Services Committee and a vice-chair of the Ethics Committee of the Bar Council. My practice area is family, and I defer to my colleague on any questions relating to the criminal jurisdiction.
Philip Stott: I am a practising junior barrister in private practice. I practise in London, in crime mostly, though I also do some professional regulatory work: doctors, dentists, lawyers. I am also a co-chair of the Legal Services Committee at the Bar Council.
Richard Miller: I am the head of justice at the Law Society. The way I describe the team is that we look at access to and the administration of justice; the work of the courts and all the elements of ensuring a fair trial fall within my remit.
Q1 The Chair: I will start. I have no interests to declare in this inquiry.
Richard, can you tell us how the interpretation system works in the working life of your members? How often do you find yourself using it? How effective do you think it is? Without going into all the detail—we will come to that later—can you give us a brief summary of how it affects your job and what you see as its strengths and weaknesses?
Richard Miller: Our members in all areas of law will, from time to time, encounter clients who do not speak English as a first language. The language skills can vary. Sometimes, clients can have a certain facility in English but not sufficient for the detail and complexity of legal issues. Sometimes, they can have very little English at all and so need interpretation for even basic understanding. There is a judgment to be made in an individual case as to whether an interpreter is or is not required.
The proportion of clients who need an interpreter will vary enormously, both in the area of law and the area of the country in which people are practising. There are parts of the country where you would virtually never encounter an interpreter, and others where interpretation is a common part of a significant proportion of a caseload. Solicitors engaging interpreters to deal directly with their clients, to take instructions and to go through documents, tend to have very good lists of interpreters who are sufficiently skilled, and very often will have used them regularly and so know the quality that they are getting.
Issues tend to come up when you get to court. In court, there is a range of different possibilities of who is responsible for booking the interpreter and where they are sourced from, and then questions can arise over the quality. That is where some of the key challenges in relation to interpretation services for our members arise.
Philip Stott: As barristers, our engagement with interpretation will normally come at court. The areas of law where there will be the most need for interpretation will be crime and family, along with immigration, inevitably. When you come across somebody who has been arrested and charged within relatively short order, the identification of the language they need, and in particular the dialect they need, may have been made by the police. The person may have seen a duty solicitor only very briefly. It is then the court that is providing the interpretation service that we need to use to speak to them.
Another element of how we come across interpretation is with witnesses. Again, the service will often be provided by the court, and we will find out only on the day whether or not the right interpreter, with the right skill and understanding, has been booked.
Susan Grocott: Family law is also court-based. We would expect our instructing solicitors to have spent quite a considerable time with the client before we meet them, taking them through the paperwork. They will, ordinarily, be able to match a client with an appropriate interpreter, so there are no issues there. The issues arise with the court interpreter.
There was a time when it was customary to book two interpreters. It is now down to one, and the court interpreter comes only on the days when a witness who needs interpretation is about to give evidence. In the body of the court you will have the solicitor-instructed interpreter, who will, in theory, be there to assist the party to understand the other evidence that is being given in English. That combination means that, sometimes, it is not particularly well interpreted. There are different reasons for that, but the quality of the court interpreter is a concern around many of the issues that have already been raised, not least dialect.
Then, of course, interpretation of some of the rarer languages is absent. For example, there are no UK-based interpreters for Sango, from the Central African Republic, and we have to use interpreters in America who will be remote interpreting. That is the only way we can have that language interpreted.
It is deceptive. Although French is an official language, as it is in many African countries, another difficulty is the standard of education of your client. Someone who went to school only up to the age of nine or 10 is much more likely to use their local language, rather than the official language. Sometimes, there is a disconnect between the language that may be presumed for a client and the one that actually works for them.
The Chair: Can I follow that up with a question to you all about something that I am not certain of? The contract for the MoJ is with thebigword. My understanding is that people who are entitled by law to an interpreter will get one through thebigword, but that is not everybody. It does not apply, presumably, to solicitors before they get to court, and it does not apply to defence witnesses or in some of the civil courts. If you are not in the bit of the system that gets the interpreter through thebigword, where do you get your interpreter?
Richard Miller: There are a range of agencies that provide interpretation services— thebigword is just one of a number—and most firms are aware of those agencies. If they deal with a particular community where there are often interpretation issues, they will have a regular list of interpreters that they go to frequently.
The Chair: So an interpreter could work for more than one company; they could work for thebigword and for one of these other companies.
Philip Stott: Yes. I think that a lot of them—although there is some dispute about this—are effectively self-employed and therefore will sign up as agency workers for one or the other. They can choose which agency to work for. That then causes problems, for reasons to do with dissatisfaction about how they are treated. If they are not working for thebigword, that causes the pressure point or bottleneck in the court-provided interpretation services.
Susan Grocott: Anecdotally, if you ask Lancashire listing, you will find that many interpreters who used to work for thebigword have become exclusively self-employed and are therefore off-contract interpreters. I understand that that is to do with working conditions at thebigword, which has had a drop-off in the number of interpreters.
Q2 The Chair: In a general sense, and obviously without criticising any of these services, is there knowledge within your sectors of which of the companies has better standards of service and quality of interpreters, or do you just go to them all, with no judgment about who is the best provider? I am not asking about individual interpreters but about company groups.
Philip Stott: As Richard says, individual solicitors will have an idea about that, and often there will be a client base that focuses on a particular language set, due to geographical reasons or whatever. Somebody who specialises in dealing with, say, the Albanian immigrant community, will have those routes in.
I have been practising for about 20 years and, generally speaking, without wishing to deal with specific entities, my sense is that the quality of interpretation has gone downhill right across the board. There are of course individual excellent interpreters out there. I will feed that back. Where it is a solicitor who has booked them, I will say to my instructing solicitor, “This person was great, you should use them again”. But generally speaking, the quality has gone downhill.
When you take an oath as an interpreter, you undertake to translate things to the best of your skill and understanding, so understanding—fluency in both English and the translated language—is a necessary but not sufficient part of it. The particular skill is being able to interpret, and particularly to interpret for court proceedings, which is a specific and demanding skill because you have to translate the question as put and the answer as delivered. You cannot interpose yourself and say, “The man is asking you where you were on the night of the 19th”, and then give the answer, “He says he was at home in bed”. It cannot be like that. It has to be as put, because the words have been chosen specifically for a purpose. That is very demanding. In my experience, and that of others, I think, that is the ability that has gone downhill over time.
Susan Grocott: I agree with that. For some reason, it is especially so for Urdu. That is certainly not a rare language in the UK, but, more recently, the quality of English that the interpreter demonstrates immediately puts you on edge as to whether or not they will understand the question.
Q3 Lord Shipley: In the written evidence we have had, a constant theme is that there has been a decline in quality over the past few years. Perhaps you could explain—it was not clear to me from the evidence—whether this derives from an increasing volume of court cases that require an interpreter? Is it that there are not enough interpreters because the number of cases is going up but there is no commensurate increase in the number of interpreters, or is it that there is a declining supply of interpreters? Is it about the volume of cases? What is the reason for the seemingly generally held statement that the quality has “gone downhill”, to use your phrase?
Philip Stott: I do not know the exact statistics for the numbers that are needed. There has always been, particularly in crime, a need for interpreters. There are often victims, witnesses or defendants who do not speak English. That was the case 20 years ago, it was the case 10 years ago, and it is the case now. I have not necessarily noted a feeling that there are more cases in which interpretation is required. The issue probably is, therefore, a decrease on the supply side. The reasons for that may be multifaceted. It may be because they are not being paid enough, there is not enough investment in the system, the way they are treated or other factors, but I think it is more likely to be the latter than the former.
Lord Shipley: I should add that I have no interests to declare. I am a vice-president of the Local Government Association but that is not a direct involvement. Is there anything else you want to add?
Susan Grocott: I agree with what was said. Practising in the north-west, I have found that language has always been an issue for families within public law children’s proceedings. Potentially, there has been a slight increase, but that is not the reason for the decline. We do not understand the reason for the decline.
It does not matter as much if you can be alerted. If somebody else in the case can speak that language well—whether an interpreter who is still in the body of the court assisting a client or, more commonly, another advocate who has language skills for that particular language, or an instructing solicitor who is attending and who has those language skills—they will bring the problem to the attention of everybody within the court as it arises.
Our worry is those cases where there is nobody who can make that observation. Simply seeing a witness or a party looking puzzled could be explained by the subject matter and the reason why they are in court; it means nothing in the context of the interpretation. You need to have someone there who can point you in the right direction and say that there is a real problem. Dialects, in particular, are one of the major issues.
Richard Miller: For solicitors, there is another issue. A lot of interpreters need to be funded through the legal aid system. There is a general issue with legal aid and the rates paid for experts of all sorts, including interpreters. The rates have been very low and frozen for many years. This has led, over time, to increasing numbers of all sorts of experts, including interpreters, saying that they are not prepared to work for legal aid rates. That is having an impact on the availability of some of the higher quality experts, particularly in relation to the rarer languages, where obviously the market can dictate that you need to pay a higher fee to be able to get anyone at all with the necessary skills.
Q4 Lord Willis of Knaresborough: I have no interests to declare, other than a passion for AI, and I am currently doing research in that particular direction.
Could I follow up on two things? Richard, I am pleased that you mentioned the business of legal aid. That has not appeared rapidly in our evidence, and clearly the committee needs to look at its effect on this area.
I am particularly concerned about the complexity of evidence and the inability of interpreters to be informed about, if you like, the substance of the evidence before they are in court to be able to then translate. I do not understand why they are not given advice ahead of time about an issue that is complex and requires, for the case itself, that sort of interpretation.
Richard Miller: As far as court interpretation is concerned, the interpreters would be expected to have a good understanding of the court process more generally. I am not sure if you are talking about specific issues arising in a case.
Lord Willis of Knaresborough: I understand that. My concern is about the evidence itself, where you are dealing with very complex subjects within the court.
The Chair: Such as fraud or something like that.
Lord Willis of Knaresborough: Yes.
Richard Miller: That may be something that my colleagues can better answer.
Philip Stott: At the moment, I am dealing with an extremely complicated pensions fraud case; I am doing it in front of a jury and there are subject matter expert witnesses but also lay people giving evidence. When you are dealing with something complicated, you have to run at the speed of the slowest person, and that is on the barrister. The barrister has to use language that everybody can understand. That should not necessarily cause a problem.
When I am defending, one of the signs that I have an interpreter who really knows their onions and is doing the job properly is when on arraignment they ask me, “Can I have a copy of the indictment in writing so that I can read it out word for word, properly and slowly and carefully, to the defendant as they are being asked to enter their pleas?”, rather than, where an indictment has a long set of particulars, only a sentence or two being said to the defendant and you then think that it has been summarised.
That is not necessarily a problem, in the sense that you should be able to expect and use language that can be understood by everybody, and therefore an interpreter of sufficient skill and understanding should be able to deal with it. I do not think there is necessarily too much there. Obviously, when it is legal applications, that might be different, because you are discussing with the judge, using a lot of jargon potentially. I accept that that might be challenging for an interpreter to follow.
The Chair: As it might be for the jury.
Philip Stott: Yes, but in a legal application you would not have that consideration. Lawyers and judges can disappear into their own language.
Susan Grocott: In my area, about 70% of public law children cases arise from what we would generally term neglect. There are some fairly common issues that might arise: domestic abuse, drink, drugs, and all those things. However, the absence of notifying an interpreter as to the nature of the work is something that needs to be addressed.
Lord Willis of Knaresborough: That is the point, yes.
Susan Grocott: Very much so. I deal with the upper end: with babies who have been killed, children who have been sexually abused, and all that type of information. Jurors will now be offered emotional support if they have had to deal with that type of case. The poor interpreter may turn up at court not knowing the intimate and personal questions that are going to be put, and it is shocking that they do not know that.
Some interpreters come from very small communities within the UK. There is a great potential for them to have knowledge of the family within court proceedings. A recent example that came to my attention was Slovak. There are 16 registered interpreters for that language. Knowing where somebody comes from in the country could mean that there becomes personal knowledge of that interpreter’s background.
There are lots of protections that simply do not exist in the current system for interpreters. They may turn up at court and, all of a sudden, have to ask horribly intimate questions, properly directed, to witnesses or to parties.
Q5 The Chair: I have one quick question. You say that the quality used to be better. All the evidence talks about the fact that people are not paid to come half an hour or an hour before the case starts. When things were better, was that different? Did you see the translator before the case started? Was there some preparation time in the morning?
Philip Stott: That is definitely a more modern development—the idea that you would have a 10 am court listing and that the interpreter turns up at 9.50 am is no good, particularly when you have a defendant down in the cells and you need them there for a half-hour conference before and afterwards.
The Chair: That has been a change. That is very helpful.
Philip Stott: I would say that that has been so for the last half decade or so.
The Chair: It is a recurring theme in the evidence that we have received.
Susan Grocott: I think that is so in crime, but in family we tend to get interpreters who turn up in good time. It is certainly my practice, borne out of bitter experience, to ensure wherever possible that there is an introduction between the court interpreter and the person who will be giving evidence, so that if there is a problem it can be identified at the earliest possible juncture and, wherever possible, a different interpreter can be booked to come to court. It is no good waiting until the evidence starts and it becomes immediately apparent that there is a huge disconnect and inability for the questions to be understood by the witness.
Q6 Lord Laming: I have no interests to declare. I was taken with Susan Grocott’s point about familiarity. There is mention in our papers of sometimes family members acting as interpreters. I wondered if you have experience of that and, if so, what the issues are there. I am especially concerned because of the content, as it might children interpreting for a parent.
Susan Grocott: It does not happen in the cases that I come across. It would be a complete no-no, not least because sometimes family conventions are such that they inhibit getting the best evidence from a witness.
Lord Laming: That is very reassuring.
Richard Miller: So far as solicitors are concerned, that is an issue that does sometimes arise. For example, there may be a case of a client booking an appointment and it is only when they attend with the relative that it becomes apparent that they do not speak English and that the relative will interpret. Sometimes, that can work okay; they need the relative for emotional support, as well as translation, and it is fine. On other occasions, there can be real concerns about whether there is undue influence or the wrong person’s agenda being presented, shall we say. It is something that solicitors tend to be very alert to.
Where possible, they will always prefer to have an independent interpreter. However, in some circumstances, the family member is the only one who is available at the time to conduct the interpretation. It is something that causes concern. It is a red flag for solicitors if that happens.
Q7 Lord Bach: My questions will be about quality assurance and feedback processes as they affect you as practising members of the Bar, but also, Richard—I can call you Richard because we have known each other a long time—solicitors, and what the Law Society knows about it.
I should declare an interest as the chair of the trustees of the Leicester Community Advice & Law Centre.
What is your view on the quality assurance and feedback processes in place? Overall, what might good processes look like, particularly with regard to the fact that the MoJ states that there is a secret shopper approach to quality assurance in interpreting in the courts? Is this a good approach? Are there better ones?
Philip Stott: Do you want to go first, Susan, on the concept?
Lord Bach: Let us start with that and then I will come on to a couple of others.
Susan Grocott: Family law proceedings are private proceedings, as most of you will be aware. If somebody who is not connected directly to the proceedings attends the court, there has to be permission from the judge for that person to be there. I have never, ever come across the secret shopper in any of the work I have ever done where an interpreter is required.
I have looked at the information that is available—the 8,000 assessments—and they talk about listening to recordings and looking at it that way. Well, that is not my area of work. You are not permitted to have a recording of the court proceedings; that does not leave the building. So it cannot be that the MoJ has a proper handle on what happens in family courts. It simply cannot happen.
I would welcome assessments. There is no reason why an assessor—as long as they are a qualified linguist with the skills and expertise to be an assessor—could not come to the courtroom to see what happens.
I now know, but I did not know at the time, that if there were to be a complaint, it would be handled by listing. Listing uses thebigword booking system. It will request, however many weeks or months in advance, an interpreter in X language. As I understand it, there is a complaint dropbox that exists within that system, where you can select, “did not turn up”, or “quality of interpreting”. What I do not know is what happens if you select “quality of interpreting”. The thing seems to be geared more to non-attendance than anything else. I do not know whether that is a training issue.
Obviously, HMCTS is responsible for the provision of interpreters to witnesses within court. I know that as a practitioner, the time pressure is on me to try to use court time and get over hurdles, not invent them or complain about them. Across the board, it is about what you try to do to get the case continuing. I have never made a complaint, because nobody has ever told me that this is the system. I now know that I could make a direct complaint, but I just do not think that that is appropriate.
Lord Bach: Why not? Can I ask that?
Susan Grocott: Very often, I do not necessarily know who the person is; that is information that is provided to the court. The booking is through the court and it really is the job of the court itself. If it is a High Court judge or a circuit judge, you will normally have a court clerk sat in court, so there is a route through which information can then get to listing. If it is a district judge, there will not be a clerk there.
Judicial training needs to be considered, as does whether there should always be in an interpretation case a small window of opportunity to raise those issues so that they can be properly recorded within court and sent to listing—it is very simple to do that. It will add time, and in many cases judges are trying to get through a heavy list. I imagine that, in crime, it would be even more problematic. But that is the way the system should work. It could be sorted out quite easily if everybody was on the same page about who sends the complaint forward and whether it is an authorised complaint.
One of the difficulties as a practitioner raising the complaint is whether or not the judge would have been happy with the complaint being raised. It is the kind of thing that you should be discussing with the tribunal, to say, “This was a real problem. This interpreter could barely speak English”, and therefore he or she was not suitable. It should then be processed from there, with the court clerk taking the responsibility, or judges themselves in the case of district judges without a clerk, to send the information on to listing so that it can be properly recorded. The statistics as they stand do not make any sense.
Philip Stott: Court proceedings are public, but there could be no secret shopper for the consultation with the defendant in the cells or in the room outside. Often the translation for the defendant is being done quietly in the dock as the proceedings are going on, and I would be amazed if you could hear it from any public gallery. Again, it does not make any sense to me that there could be an effective secret shopper.
On the point about complaints, I agree. I do not think that it can match what is going on. There is some suggestion of a 0.4% complaint rate, but the information about how often they [don’t] turn up tells us that that is 4% of the time, so already there are 10 times as many people [not] turning up as there are complaints, and that is just about whether they turn up.
Lord Bach: It should be the other way around.
Philip Stott: Yes. Also, the court books the interpreter. Susan makes a great point that we do not know the names of these people. It might be said as they are taking the oath, but often that is rushed and you do not get it down properly. All you could say is, “I was in court 12 in this case and there was a bad interpreter”. It is the court that books the interpreter, and the court knows and has the record of who has been booked and why. If there is an issue, you bring it to the judge’s attention. You might say, “This person is not capable of translating for my client” or for this witness, “We need to stop. We need to go and find somebody else”. The day is then wasted, whatever it might be.
However, I would no more independently complain outside of the judicial proceedings on that than I would, say, send an email to the Ministry of Justice complaining that the prison van has produced the defendant two hours late again. It happens all the time. There is a resignation about it. Your job as a barrister is to deal with the case that you have in front of you, solve the problem and move on, because we do not have any insight beyond that. We cannot even access the formal complaint. You would have to try to find an email address. Do you send it to thebigword? Do you send it to the Language Shop? Do you send it to the Ministry of Justice? Do you send it to the national register? We would have no way of knowing which the appropriate forum would be.
Richard Miller: From the point of view of solicitors, I think that mystery shopping has a role to play. One of the challenges with interpreting services is that most other people within the court simply are not in a position to judge whether the interpretation is correct or not. So having someone else who speaks both languages and is able to make that judgment must be a part of the picture. But, for the reasons my colleagues have said, that will not always be effective, and you need other measures in place.
There is a challenge for the system in that, for perfectly understandable reasons, lawyers are often reluctant to lodge formal complaints. Therefore, intelligence about individual interpreters may not be making its way through the system in the way it needs to. Certainly, for lawyers who are working under legal aid, there are issues with it being unpaid work. It might involve quite a bit of unpaid work to follow up on a complaint and they are so constrained at the moment. Legal aid rates have not been increased since 1996, apart from a small increase following an independent review last year. Lawyers are struggling to make ends meet and to continue doing this work. They cannot spend time doing unpaid work making these complaints.
So the complaints have to be part of the picture, but how we capture that is another question. I did wonder whether asking lawyers from time to time just to assess the interpreter after the event in the court may have a role to play. Again, it will not always be picked up, but sometimes you can tell from the defendant’s body language, or from other things that are going on, that something is not right. If there were a routine to quickly rate a person, that might be a way of picking up some of these issues as well, but there is no good answer to the question because of all the challenges around interpreting services.
Philip Stott: I have never once been asked for feedback.
The Chair: Have you not, in all your years of practice?
Philip Stott: You can compare that to booking a hotel or ordering food, where you are asked every time.
The Chair: So there were no smiley faces.
Philip Stott: Nothing like that.
Q8 Lord Shipley: I want to take up the issue of quality assurance evaluation because the written submission from the Immigration Law Practitioners’ Association advises that there is no published evaluation of the system of quality assurance in existence, making it unclear whether standards have improved in practice and complicating the ability to monitor them. My question is: have any of you seen any published evaluation of the system of quality assurance? That is not just about a complaints procedure. Have you ever seen any quality assurance report?
Susan Grocott: No. We have done our research because we were coming here today and looked on the website of the assessor, which is where I got my information. I have not received it in any other way, and it is simply not a topic that is talked about.
Philip Stott: It is the same for me.
Richard Miller: I learned yesterday that, apparently, HMCTS does publish information about the mystery shopping work that it does. I only learned about it yesterday and I have not had a chance to look for it yet.
The Chair: It is very secret.
Richard Miller: Yes.
Q9 Lord Mott: I have no interests to declare. I will pick up on the comment before last, from Richard, about assessment and feedback. Do you never think that perhaps once a year you could just ask colleagues for feedback and then submit it to the MoJ—or do you think that that would be a complete waste of time?
Richard Miller: Potentially, it is something that we could do. One of the issues for the Law Society is that there are so many issues that members are coming to us proactively about that the ones that they are not approaching us about do not tend to get a look-in. We could certainly consider whether there is a role for the Law Society to play in something like that.
Susan Grocott: I would be less convinced because, if there is a real problem, while waiting a year that interpreter may have turned up in all manner of different cases, so it is more about reporting a problem as and when it arises.
It is also important in fairness to the interpreter. For all we know, the interpreter could have just had some terrible family news and, therefore, is not performing in the way that they ordinarily would. We simply do not know. However, the way it should be is that the complaint should be made on the day and whatever processes are needed then look at the quality to assess whether that person should be an interpreter.
Another difficulty is that members of the Bar are for ever being asked things. Almost weekly, somebody wants a call for evidence somewhere, or what have you, and there is a certain fatigue, especially among family lawyers, who, much like solicitors, have not had fee increases since 1996. It has been over a quarter of a century since fixed fees were introduced, with only a 10% reduction during the austerity period.
Philip Stott: Fundamentally, the state is paying for this and, if the state is incurring the cost of a wasted court day, which can be very expensive—£10,000 potentially—it is the state that should recognise that and record it. The state has booked it, the state has paid for it, and it should be the Crown Court judge or whoever it might be, and the staff supporting them, who records that fact and makes sure that it is properly logged.
The Chair: Say there was a system that worked very well and smoothly in the way you have just described. I take the point about the amount of feedback and information you’re asked for. Do you think that this area is of such professional importance to your members that they would be prepared to feed back into a system they knew was effective? Let us pretend the system is effective.
Philip Stott: Yes. I do not know how you would construct it, but if there were some system where you would send an email or whatever—the out-of-five smiley faces, or whatever it might be—I can potentially see that people would do that. Not everybody would, and not all the time, but they certainly would in greater numbers than now. At the moment, it is not a barrister’s job to complain; it is a barrister’s job to fix the problem. Therefore, barristers do not complain. We leave it to the courts.
Q10 Lord Mott: I want to move on to technology. In one answer, Susan mentioned that, if we do not have the interpreter in this country, we beam them in from the US via screen. What do you think is the role of technology in improving or enhancing interpreting and translation services in the courts?
Susan Grocott: At the beginning of the pandemic, all family work went online—it was the only way to deal with the cases—although we, unusually, went back to court in certain cases from June 2020. There were some specially designed courts and very few could be open, but one way or another we did that because the cognitively impaired client who uses non-verbal cues to be able to exist in life simply is let down by a remote system. We also did it in cases where there were other issues. The call for everybody to return to face-to-face court hearings is one that I have always supported.
I know, because I have read the submissions from the Association of Translation Companies, that many interpreters prefer to remotely join. There are many barristers, especially those with childcare responsibilities, for whom remote working is much more preferable. They can simply be in their study and do school runs and all manner of things. However, that is not what the client requires, and that is the real difficulty. The client needs to be face to face, and everybody needs to be able to gauge things when a judge makes a decision about the evaluation of evidence where it could be critical. There could be findings where adoption is an outcome. There could be findings that mean you never have children placed in your care. There could be findings that are ultimately used against you in other proceedings. Those situations are critical.
However, for some case-management hearings, there is no need for everybody to pitch up at court, except that what you lose is the ability to negotiate, discuss and take instructions easily. That is something that happens every day when you are at court and you can knock on the conference room door and ask to speak to counsel representing X. You can have frank discussions and you can cut down issues much more easily than you can in an online meeting. So there are significant benefits from some case-management hearings—critical ones that shape the way the case is going forward—that identify for the judge the issues that the court will have to determine and hear evidence on. But, if they are simply technical hearings, they can be done remotely and it is perfectly acceptable for someone to hear what is being said through an interpreter.
I have to say that technology is lacking in some courts. It is not uniform across the court estate. The use of CVP, where you would have the ability to have a client and an interpreter privately speaking and not heard by anyone else, sometimes works in some courts but does not always work in all courts. Certainly, the court estate is not fit for the digital working we are doing now in some courts and would need the most monumental investment in new technologies to actually assist in court proceedings. However, you cannot beat face to face when a judge has to evaluate a life and make a potentially life-changing decision.
Philip Stott: The position in crime is similar. The pandemic greatly accelerated the use of video hearings. Different barristers will have different opinions. I personally think it is a good thing. It is much more efficient, much more effective, and enables some people to keep working rather than dropping out of the profession due to the cost of travel and so on, for those technical administrative hearings. Fact-finding jury trials obviously have to remain in person.
There is a real advantage to it. Outside of the criminal sphere, I did a General Medical Council case up in Manchester where there was a real problem with the complainant witness because he spoke a particular dialect of Pashto. He was Afghani rather than Pakistani from the Punjab. We went through, I think, four interpreters, all booked centrally, and each day the same thing would happen again: they would turn up and discover they could not speak properly to this man. However, because he was giving evidence via a remote link—he was too unwell to travel in any event—and the interpreter was on the remote link, that could be changed around and we could get somebody within a couple of hours. If we had been in person, we would have lost the whole day again and again.
So there is a role for it, absolutely, and it has improved things, particularly in those types of hearings. I fully echo what Susan has just said about the courts and the investment in technology. Where it works, that is fine, but very often it does not.
Lord Mott: If we could put it into a percentage—the ideal scenario where you walk into a courtroom and the tech is there, it works, and it is the quality you need, compared to those where it is not good enough—how do you think that breaks in your experience?
Philip Stott: It is one in five or one in 10 times. There are complaints—they cannot hear you and so on.
Susan Grocott: It is higher in family, I am afraid.
Philip Stott: It is particularly obvious where you have a hybrid hearing and you have not just a judge in the courtroom but also other people, and then some people online. That is particularly problematic because the court infrastructure—the physical location of microphones and so on—is not up to scratch.
Susan Grocott: The Civil and Family Justice Centre—CJC—in Manchester looks state of the art, but it is not. On one side of the building the heating works, but on the other side it does not. The same happens, bizarrely, with the IT systems. Some work better on one side of the building than they do on the other. I often go to courts in Lancashire. They are old Victorian buildings and they simply do not work. You might appear in a court in Chester and find a tripping hazard because of the amount of cables that are all over the floor, with masking tape over the top of them. It is Heath Robinson—that is the problem. We have a reform programme and a digital solution, but we use Heath Robinson devices to try to get that to work for the benefit. Who knows how many billions it would take for the court estate to be like that?
However, this still means that face-to-face hearings will be necessary, and in a face-to-face hearing you will need to have an interpreter. I do not see any role in my work for AI. Some languages have words that do not translate into English. In Pashto, picking up on that, there is no word for menstruation. That can be an important issue, depending on what the nature of the case is. How does AI translate a word that does not exist within the language, no matter how much you feed into it?
There are so many other subtleties. The English language changes all the time, in any event. I know that, if I talk to you, chair, about a ginnel, you would know exactly what I mean, but not everybody in this room would. Or if I said, “I’m off to get my messages”, and I happen to be Scottish, how does AI translate that as shopping? I simply do not know how that would work and I have yet to see a model.
It is fantastic for technical areas where there are similarities in what you are trying to achieve. Building regulations may differ slightly from country to country, but the safety, security and integrity of the project—all those things—can easily be assimilated. When it comes to personal and intimate questions, sometimes, when using language that does not translate particularly well into another language, it is hard to understand how it can assist, rather than throwing a witness off completely or potentially getting evidence on a topic that was not the basis of the questions in the first place.
Richard Miller: In terms of the state of the courts, we did some research with our members a couple of years ago about the physical infrastructure. I think we did ask about the technology in the courts as part of that, so I will check that and, if there is relevant material there, we will forward that report to the committee.
The Chair: That would be helpful—thank you.
Richard Miller: In terms of AI, it is one of those things where we can see, in theory, a role that it could play and how it could be a valuable tool. One of the things that sometimes comes up and that we have talked about is the need for the interpreter not to interpose themselves between the questions and the witness. AI would avoid that problem, so you can see how it could theoretically have a role.
There are some significant difficulties at this stage of the development of AI, though. The first is the amount of very technical language within court proceedings. Where do you find the data set to train the AI on to make sure it understands these issues? There is also a need for absolute precision within court hearings, again very much as my colleague was just talking about. You need to be sure that it is not paraphrasing and that it is translating very exactly, and not having the human in there takes out one of the checks of understanding that you currently have when you do have a human interpreter there. I think that there would be some real concerns, certainly given the state of AI today.
The other concern is the state of investment in the courts. Expecting the courts to have cutting-edge technology that would enable this is unrealistic, and there is no real prospect of significant investment in tech in the courts in the near future, from what we are hearing. It is likely to be in the medium to long term that this could be a realistic solution for anything.
Q11 Lord Willis of Knaresborough: I feel really depressed. I do not mean to be rude, but could I just ask you something, Susan, because I have loved your evidence, and in fact all the witnesses’ evidence today: how much investigation has the Bar Council or the Law Society actually done into AI and its future use?
Susan Grocott: The Bar Council has an IT panel and it reports to Philip and I on the Legal Services Committee. It is for ever looking at issues in relation to AI. I am afraid that quite a lot of it has been negative. For example, if people are using potential recording systems in conference, the same systems, if they are not completely taken off their devices, will perk up again when you are in a court arena. You are inadvertently potentially recording court proceedings, which is, of course, a contempt of court and a criminal act.
There are a lot of pitfalls and, in the Bar Council guidance hub’s ethics and general guidance, we have specific guidance about using ChatGPT and other AI systems because there are huge pitfalls. It is not just about submitting to a judge that there are four cases on point—which turned out in the New York example to be wholly non-existent and made up in some way. There are real problems and problems of confidentiality with any system that then exports information from the specific purpose you are using to a more generalised one. There are trade secrets. There is a plethora of things.
Lord Willis of Knaresborough: That applies to individual interpreters. Everything you said applies equally to interpreters.
Susan Grocott: No. It is the learning for the AI when more information is provided—it is about where that information comes from. We have to be particularly careful that none of the confidential information that we deal with can be in any way used more generally in any AI system.
Lord Willis of Knaresborough: My concern here is that, clearly, there are masses of defects and problems in the current system. I agree with you about the physical structures of our organisations, whether it be courts, magistrates’ courts, police centres or what have you. I understand that. That will go on and requires a huge investment to do something about.
However, AI is a product that is in its infancy at the moment, and it seems to me that there are areas of law that could use AI as it exists at the moment at a low level with absolute ease. Vast numbers of languages can be interpreted very simply by existing AI. More complicated ones that require interpretation are clearly incredibly difficult to do, but they are with interpreters as well. That is further down the road.
If I have a very expensive piece of machinery, I do not take it to the local craftsman to mend it. It has to go to a specialist dealer. My worry is that the Law Society, the Bar Council and, indeed, the Government, who we will respond to, are not looking sufficiently intensely at saying, “Where could AI make a difference and at what level and at what stage?” It might be just at a very infant stage where you can do that.
Susan Grocott: I am not sure that is right because a lot of big commercial firms do use AI. If you have a contract for X that runs to 350 pages, 1,050 pages or whatever the case may be, there are standard terms within those contracts, and firms do use AI in order to put together the first draft. Of course, every single page of it will need to be considered by a human. It cannot simply be relied upon because you need to ensure that it is okay, but AI is being used.
It is just that, when we have court-based proceedings and interpretation generally, which is what Philip and I in particular are talking about, we do not see a role for that. We accept that there are problems with interpreters, but it is hard to see how AI will improve that quality. Do not forget: how does AI, for example, adjust for the basic lack of education of the witness, who may, in the country of origin, have had little by way of formal schooling, or have little exposure to what we would take for granted as day-to-day living in the UK?
Lord Willis of Knaresborough: Susan, we have those extremes in every walk of life. We know we do not have the answer to that. We have to make the best of it that we can. My worry, talking to you this morning, in a pleasant way, is how we will resolve the problems that we have at the moment without using technology as a crucial element within that. It might be just a small element, but what you seem to be saying is, “No, we do not want that. We want to continue the way we are”.
Susan Grocott: I read the Working Together document for the Association of Translation Companies, and one of the difficulties that it perceives is the fall-off of language study. Do not forget that interpreters are meant to be degree educated and then have qualifications on top of that. There needs to be encouragement for people to go through that system. Rarer languages will take a generation to replace because the offspring of the people who speak rarer languages will need to then go through the education system and will need to be, I hope, potentially able to go on to university and so on and then become linguistic experts.
I have no problem with technology. It is just that, in my area of work, it is very hard to see how you replace that human interaction.
The Chair: I ask Lord Willis to let Philip and Richard reply to that, then we might need to go on to the last question. I am conscious of time.
Philip Stott: I think that it would be fair to say that the law is quite a conservative with a small ‘c’ profession in its way of thinking about these things, so we are resistant to change like that. I can accept that. The IT panel that Susan and I supervise is certainly not aimed at that. We are very keen on discovering the limits and the proper use of this technology.
With AI, where it might have a role, this another totally separate issue, is in terms of disclosure. If you have a million documents, how do you examine them? AI could certainly have a role to play. If the Post Office has taught us anything, I think that it has raised, in fact, a distrust of technology. What there would need to be, for any technology involved in translating, is some sort of auditable process. That is the issue. I am not an expert on the subject, but understanding the way AI teaches itself and being able to lift the hood and look inside is where there needs to be a lot more work to reassure lawyers, judges and the public about it. That is where I would say the challenges lie for AI.
Richard Miller: For the Law Society, we have set up a project called the 21st century justice project, and one of our strands of work on that is specifically on AI. It is at a very early stage at the moment, but the whole principle there is that we know this technology exists, it is evolving and it is getting ever more skilled and more important. There are litigants in person and other people who are already using it. There are big City firms that are using it in all sorts of ways. We want to understand both its potential and its risks, but we do see it as an essential part of the future legal landscape. We just want to make sure that it is used in a way that advances justice rather than inhibiting it.
Lord Willis of Knaresborough: You are a star, Richard.
The Chair: Is that at a stage where you can send us anything?
Richard Miller: I do not think it is at this stage. Again, I will make enquiries and, if there is anything I can share with you, I will—
The Chair: If there is anything, we would obviously treat it as confidential if that is what you wanted.
Q12 Lord Laming: I have two quick questions. The first is that we have had evidence that the current arrangements for interpreting are working really well. I wondered whether you could help us. Some of us suspect that the issues are serious if things go wrong in interpretation, and that there are terrible implications for individuals. Are we right in thinking that, and could you give us an illustration from your personal experience of cases that have gone, in your terms, really wrong due to poor interpretation?
Philip Stott: Often, the problem presents itself. You will get that there is a lack of understanding and then it is just the waste of court time and resources due to that, rather than getting to the ultimate thing, which everybody would want to avoid: a miscarriage of justice, with a wrongful guilty verdict or a wrongful acquittal. The frightening thing for me—we touched on it earlier—is the number of times that issues are picked up and arise with particular words when there is another person who speaks the language in the room, independent of the translator.
One example goes back to Pashto and a case I did where the word “dard”, meaning either “problem” or “pain”, was used. There was a question about whether somebody actually felt a pain in the context of a medical negligence issue: was there a pain in their stomach, or did they just have a problem with their stomach? That was picked up because there was somebody else in the room who said, “He’s using that word but I don’t think it means, in this context, what the interpreter is saying it means”, and they had to unpack that. We had to listen to the recordings and all that kind of stuff.
When it is picked up, that is fine. In circumstances where there is not that fallback or assurance, you might have situations where important phrases have not been picked up on and you might get to the stage where somebody has been wrongfully acquitted—or, worse still, wrongfully convicted. It is very difficult to unpack that. There is no Court of Appeal authority that I am aware of where that has happened and it has been picked up on. You would have to go to the recordings. The recordings, when we do listen back to them, are often not of sufficient quality. Often, of course, when it is the defendant in the dock, it has been done, effectively, virtually silently and nobody can pick it up. They may well be out there. It is, unfortunately, something of a Schrödinger’s cat in the box.
Richard Miller: In terms of our members, the issues tend to be more the systemic things. Routinely, turning up at court for a first hearing in a criminal case in the magistrates’ court, the police should book an interpreter in those situations, but repeatedly people turn up and find that no interpreter has been booked. When this happens it is, again, a waste of public money every time. There is so much inefficiency there, and there could be huge savings if this were addressed.
Susan Grocott: I provided to the Bar Council in our response a snippet of information about a very poor interpreter and the judge wanting to carry on, using the interpreter the solicitor had provided—who, it subsequently transpired, had been telling the witness what to answer or not to answer. There is more to that, too. That interpreter went on to try to suborn the court interpreter who then did arrive as a replacement, who was an extremely competent interpreter. That was why she brought that information to our attention. It was a very difficult case because of that.
On whether there will be injustices, of course there will be. If a judge has wrongly evaluated the evidence given because of poor translation or because of issues, that could have lifelong consequences for the individual if they are a party to the proceedings. It is unlikely to become an appellate point unless it is absolutely naked and is picked up by somebody who is a fluent speaker of the language in question, who comes across and says, “What on earth went on in that case? That is not what was being said. It was X, Y and Z”. Then, potentially, that could launch an appeal. However, we are dependent upon someone in the room bringing a problem to our attention.
The Chair: Lord Prentis has one question and then we will come back to the final question. I do not want to over-keep our witnesses today.
Q13 Lord Prentis of Leeds: I will make my question very quick. I have no interests to declare, but I have used interpreting services for many years, both in Brussels and in Geneva, where it is very well organised.
In your introduction, which is what I would like to go back to, you talked about the quality going downhill and about how there were supply-side issues. Obviously, we want to come out with positive recommendations to improve things, so, if there are issues, who would be responsible for dealing with them and putting things right so that we provide a better service?
Philip Stott: We are focused today on the courts rather than individual solicitors, for example, who may have their own processes that they can improve on. One of the things that we would say needs to be addressed is the information given to the interpreter and it being properly assessed in a much better way. That will be the court’s responsibility, potentially with help from the parties, asking: how long is this person is needed for, and does there need to be a pre-hearing consultation? Yes, if they are the defendant, but, if they are the witness, perhaps less so—although there might be a need for them to be seen beforehand. Do they need to stay afterwards? What is the dialect of the language that it is required for? Is there some issue, such as whether it is appropriate to have a female interpreter, rather than a male interpreter. Is there some issue about this involving matters of an extremely distressing sexual nature? Will that cause a problem for the interpreter? Better information is probably a comparatively cheap way of addressing some of the problems that we see inherent in the system.
Richard Miller: One of the challenges is the diverse responsibilities. In a criminal case, for example, for a prosecution witness it is the CPS; for a defence witness, it is the defence; and, for the defendant, it is the court that has to book the interpreter. If it is a first hearing, it is the police who have to book. So many different people are responsible for booking interpreters in different situations, and streamlining and clarifying lines of responsibility could go a long way to addressing some of these problems.
Q14 Lord Laming: The committee is hoping that, at the end of this process, we can make recommendations to government that will improve the interpreting services in courts. Can you, at this stage, suggest to us any recommendations that we could make to government to achieve that objective?
Susan Grocott: For me, the recommendations are to reinvigorate interpretation. As I have already said, they are very skilled linguists and we see some exceptional people. They have studied and they are professionals—yet they leave their current employment in droves because their pay, terms and conditions have not altered for the better over years and years, and it becomes unsustainable. So they go off-contract, although they are still quality.
It is like everything else: if we want to encourage people to become future linguists and to provide an interpretation service, there needs to be positivity about that, including their terms and conditions. I am a big not-for-profit girl, as opposed to businesses, which, of course, cream off the profits. However, I suggest one thing: I do not see why any government contract should not have, within its terms and conditions, a commitment to automatically increase rates of remuneration. For example, if you had a seven-year contract and an interpreter knew that they would get an inflation increase, increases to subsistence for travel and so on, they would, I am sure, be interested. They would think that there was an investment and that they could become a linguist and an interpreter without eventually giving it up or doing it in a different way because it simply cannot pay the bills. It is the same with most other things.
I do not understand this about contracts. If a business is taking an hourly rate but has no obligation to ensure that the people who work for them are taking a pro rata amount of that money consistent with their expertise, that is a problem and those contracts should not exist.
Philip Stott: In addition to the information point, which is perhaps the front end—and in addition to what Susan said about the investment, which I completely agree with—the back end that has come through in our evidence is that there has to be much better monitoring of the performance. That will mean proper robust systems to ensure that the court—or the CPS or whoever it may be—feeds through when interpreting is not up to standard, because either the interpreter did not turn up, or they did not speak the right language or they just were not good enough at it. There must be proper procedures and, again, that is not an expensive fix.
Richard Miller: I would certainly say that investment has to be part of the picture, and the same applies to legal aid rates and the rates that the court interpreters are paid. Better data has to be key. For example, one of the things I saw reference to is the fact that HMCTS is saying that 95% of its interpreter bookings are met. Well, yes, but that is just one small bit of it. We have talked about all the different people who might be responsible or cases where they have not identified the need for an interpreter so no one has been booked. There are all sorts of other elements that we need to have clear sight of. As has been said about the MoJ across so many aspects for so many years, the data does not give us a clear picture of what is going on. That has to be key.
Philip Stott: That is in many many areas.
The Chair: We are very grateful. We have the MoJ next week, so we will be able to take forward some of those questions. That has been an excellent first session for us. It has given us a good grounding and a good foundation for our understanding, and we are very grateful that you have not yet complained about having to stay for some extra time.