28 October 2020
Not reviewed after the date of publication
Is there scope in the legislation to allow a PACE interview to take place in the suspect's native language (supposing there was no solicitor required) if an officer's first language is the same as the suspect. Could this also be used for witness statements?
This is provided a written translation was subsequently produced by a registered interpreter.
With regards to suspects, the police must provide an independent, suitably qualified interpreter and therefore, we are of the opinion that this should not be the officer conducting the interview as, even if they are qualified, they are not independent. This is provided for in paragraph 13.1 of PACE Code of Practice C which states:
'13.1 Chief officers are responsible for making arrangements (see paragraph 13.1ZA) to provide appropriately qualified independent persons to act as interpreters and to provide translations of essential documents for:
(a) detained suspects who, in accordance with paragraph 3.5(c)(ii), the custody officer has determined require an interpreter, and
(b) suspects who are not under arrest but are cautioned as in section 10 who, in accordance with paragraph 3.21(b), the interviewer has determined require an interpreter. In these cases, the responsibilities of the custody officer are, if appropriate, assigned to the interviewer. An interviewer who has any doubts about whether and what arrangements for an interpreter must be made or about how the provisions of this section should be applied to a suspect who is not under arrest should seek advice from an officer of the rank of sergeant or above.
If the suspect has a hearing or speech impediment, references to 'interpreter' and 'interpretation' in this Code include arrangements for appropriate assistance necessary to establish effective communication with that person. See paragraph 13.1C below if the person is in Wales.'
With regards to victim and witness statements, section 9 of the Criminal Justice Act 1967 outlines the requirements that must be in place for a witness statement to be admissible and Part 16 of the Criminal Procedure Rules details the rules with regarding to written witness statements. (Please see the link: https://www.justice.gov.uk/courts/procedure-rules/criminal/docs/2015/crim-proc-rules-2015-part-16.pdf). Any witness statement taken from a person who has difficulty in speaking or understanding English should be recorded in the foreign language and signed by the witness. It should include the declaration prescribed in Section 9(2)(b) Criminal Justice Act 1967. We have not located any legislation or guidance as to whether this can be done without the use of a registered interpreter where the statement taker is competent in the language used by the victim or witness.
We would urge officers to check their own force policy as to whether their force deems it acceptable for a statement taker to obtain a statement from the victim or witness in a foreign language without the use of an interpreter.
If there is no force guidance to the contrary, we see no reason why the person taking the statement cannot do this in the language spoken by the victim or witness, as long as: they also provide a translation statement and their own statement detailing their actions; that they are a competent/qualified user of the language to the level as required of a registered interpreter (for example, by detailing their qualifications or that it is their native language spoken from birth); and exhibiting both the statements of the victim or witness.
Although, we have not been able to find anything in legislation or guidance that would prevent an officer or police staff member from obtaining the statement from a victim or a witness in a foreign language without the use of an interpreter, it is not a course of action that we would advocate because, in our opinion, evidence obtained in this way is likely to be more susceptible to being challenged by the defence. Also, where there is a nationally recognised interpretation service available to police forces to use in such instances, we believe that the service should be utilised in order to obtain the best and most reliable evidence possible.
However, ultimately, whether evidence is admissible in court is at the discretion of the judge.
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