21 September 2020
Not reviewed after the date of publication
If a foreign national custody detainee requests a solicitor and the solicitor then tries to conduct a telephone consultation with the detainee, but terminates it due to the language barrier, whose responsibility is it to facilitate an interpreter?
Does the responsibility lie with the police or with the solicitor? I was of the opinion for private consultations it was the responsibility of the solicitor and for interview it was the responsibility of the police.
Code C of PACE outlines that the police have an obligation to facilitate an interpreter in the situation stated. The relevant extract of the code states as follows:
'13.9 If paragraph 6.1 applies and the detainee cannot communicate with the solicitor because of language, hearing or speech difficulties, arrangements must be made for an interpreter to enable communication. A police officer or any other police staff may not be used for this purpose'.
For clarity, paragraph 6.1 outlines that:
'Unless Annex B applies, all detainees must be informed that they may at any time consult and communicate privately with a solicitor, whether in person, in writing or by telephone, and that free independent legal advice is available. See paragraph 3.1, Notes 1l 6B and 6J'
The above applies whether the consultation takes place via live link or in person. If a defence solicitor wants to appoint their own interpreter, instead of one to be provided by the Force then in our view, there would be nothing preventing them from doing so – however we would advise to check your specific force policy in this regard to ensure that this is permitted within your area.
Paragraph 13.2 outlines with regards to interviews that:
'Unless paragraphs 11.1 or 11.18(c) apply, a suspect who for the purposes of this Code requires an interpreter because they do not appear to speak or understand English (see paragraphs 3.5(c)(ii) and 3.12) must not be interviewed unless arrangements are made for a person capable of interpreting to assist the suspect to understand and communicate'.
Arrangements must be made by officers, for an interpreter to assist in communication (unless the interview is urgent and specific conditions apply).
Further detail on interpreters in custody can be accessed in paragraph 13 of PACE Code C in its entirety on PNLD
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