Follow @LalmyBen INTERPRETING ISSUES IN SCOTLAND
By Ben Lalmy 2009

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Foreword
This paper is written following the concern raised by the media over court interpreters and the cost to the public fund and in some cases referring to miscarriages of justice.
Some newspapers have used psycholinguistics in their headlines such as “Taxpayers fund huge rise in costs for interpreters” or “Justice system compromised by unqualified interpreters”. The science of psycholinguistics has demonstrated that the influence of words with other cognitive abilities can affect minds and emotions and the outcome of some words can create mental images. Unfortunately these types of headlines can only confuse, mislead and ultimately conceal and distort the real issue.
This paper will attempt to shed some light on issues concerning interpreters and the provision of using qualified interpreters by Public Services in Scotland. This subject will necessarily involve the interpreters as a group (community interpreting) of individuals providing their language skills and the Public Service Users who hire these interpreters. Regretfully it does not include the category sign language interpreters for the simple reason that this paper is based solely on the field where I have experience, which is language interpreting. The Public Services covers mainly service providers in the social, legal and health sectors.
The primary aim is to debate these issues, and the secondary aim is to propose a nationally agreed competency level for interpreters and a compulsory quality assurance system for agencies in order to resolve these recurring public issues.
In debating the issues concerning interpreters I will start by introducing the context where interpreters are needed by Public Service users. This will be a brief historical and legal background and will cover the important subject of interpreter as a recognised profession.
In debating the issues of the Public Service users we will examine the procedure for sourcing interpreters. Then we will refer to policies and practice regarding the provision of interpreting services, including research papers by focus groups or instruments currently put into effect. It will be seen that for well over two decades the findings have already pointed out to a lack of coherence in policies across Government, gaps in service, a lack of professional advisory services, a lack of training, and poor pay and conditions of employment in the sector using interpreting services.
In presenting the findings of the research papers and the latest protocols we will be able to observe that in fact the problems were clearly recognised and although some Public Services such as the Police have included in their Action Plan and Protocols corrective actions, there is nevertheless little change in the overall context of using the service of interpreters. The impact on service quality and delivery of interpreting services in the future will depend on implementation of these recommendations and on some new areas proposed in the conclusion.

Section 1
1. The Warning Signs
It has been revealed that the cost of providing interpreters for defendants in Scottish courts who do not speak English has quadrupled in the past five years. (7)
This type of headline every now and again is front page news and it is with interest that I read these commentaries. The power of psycholinguistics is used to convey an image using selected words which the receiver decodes into an image with a negative result. I became frustrated that no thorough analysis of the issue was undertaken and that pertinent questions, consciously or unconsciously, are never raised. I will use this platform to discuss the real issues.

The negative image decoded is twofold: first is the cost of “an immigrant in court” (we associate immediately court with wrongdoing” and the second image “cost of providing interpreters” is the perception of interpreters’ high fees, all of which are paid by the taxpayer.

The cost is high and it seems that solely the interpreters and defendants are to blame. Is this really the case?

If the issue is approached holistically it would be highly unlikely to point the finger in the wrong direction. The blame would not lie with the non-English speaking immigrants and by the same token nor would it lie with the services provided by professional interpreters. Those to blame are the Government for not implementing a stricter policy on the use of interpreters and the Public Services for not implementing corrective actions after successive situations of widespread concern, reports of failures and worse accusations of miscarriages of justice when unqualified interpreters are used during trials.

2. Multicultural Scotland

With war torn African countries in late 1994 and the accession of new member states from the Eastern Bloc to the European Union in 2004 we witnessed a flow of migration from both of these regions to Scotland. A multicultural society needs the services of professional interpreters to provide the basic services to its multi-ethnic community.

It has been argued in the past that immigration from the EU is a crucial part of the Scottish government's solution to a depleting and ageing population in Scotland, and much of the research in Scottish local authority areas regarding EU migrant workers tends to demonstrate many positive impacts (See Scottish Executive - Social Research - Asylum Seekers In Scotland) such as benefiting the country economically, and hence were welcome. In addition to the immigration from the EU there is that of the community made of asylum seekers from the non European Economic Area (EEA) countries. This is the context where the interaction is taking place.

This migration inevitably poses a number of challenges for local and central government. Since the early 1990’s impacts and costs associated with migration, in particular costs for court interpreters provided for those non-English speaking migrants have been the subject of reports and pertinent recommendations not to mention negative news headlines.

3. Shedding some light on the use of court interpreters and cost to the taxpayer
Let us take a step back and view the whole issue of when and why there is a need for interpreters (and remind those who seem to forget that this is a right not just a need), then we consider how the interpreters are hired to provide their skills to the Public Services.

Whilst it is admired that Scotland has its own justice system built on traditional values and being one of the most respected in the world, this status is running the risk of being seriously dented, and in the present circumstances the Justice Charter, part of the government’s Citizen’s Charter programme, is unlikely to improve the standard of Public Services.

Ensuring access and fairness for all court users is an important goal just as eliminating linguistic barriers in the courts is fundamental to achieving these goals. Qualified court interpreters are critical, and even more so now, given the various malpractices which will be considered later.

When and Why
Some historical background may be necessary. Although the United Kingdom was a signatory of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (1) (known as the European Convention on Human Rights – ECHR), this only came into force in the UK very recently (1998 Human Right Act) (2). As far as Scotland is concerned, it meant that the UK citizens are no longer required to take their grievances to Strasbourg but, for the first time since the enactment of the Act, to their own local courts to protect their rights. Given that the UK is a full member of the EU and the advent of the flow of immigrants from Europe and asylum seekers from other non EU countries, it is clear that our courts are going to be dealing with non-English speakers.

On the subject of foreigners in our courts and for whom public funds are provided, I note with sadness that authors of inflammatory headlines are not always honest (back to my above argument where pertinent questions are never raised). In response to headlines such as "Scandal of Interpreters cost", “Taxpayer’s money wasted in courtroom translators “ with no attempt from the authors to shed some light on the true causes…. The power of psycholinguistics and the outcome sought is plain to see in some of the reactions of the undiscerning public. Some readers jump to the wrong conclusions as one can see from their comments: “It just shows how much crime is being committed by these people”; or “if I went to a foreign country, and was accused of a crime I can see foreign lawyers defending me on the state funds I think not”.

There is nothing to suggest that these specific people portrayed in the media were criminals, may be they are witnesses in a Sheriff court, or they could be appellants in immigration courts which determine on immigration status and not on criminal matters?

Back to When and Why argument.

Now, when we are in a situation where we have, in our courts, people not speaking English attempting to exercise a right to something they may or may not be entitled, our judicial system treats its court visitors fairly and in accordance with their needs. This need is further reinforced by Article 6 of ECHR “Right to a fair trial” which stipulates inter alia “(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;”

As we can see above, ECHR as embodied in the 1998 Human Rights Act has introduced a new right to all UK citizens and by extension to the immigration community for whom the use of a professional court interpreter is not just a need but a legal requirement.

Now let us turn to How interpreters are hired by the Public Services such as the Home Office, the Police, NHS, Crown Office and Procurator Fiscal Service. This is crucial, because in my mind this is the area which is not subjected to strict regulation and has been the source of problems ultimately leading to high cost to public funds and court cases hitting the headlines.

The guidelines adopted by these bodies are crystal clear as can be seen in their own official documents.

Home Office: “ You must always use an interpreter who is recognised by the Home Office whenever there is doubt about a person's ability to understand English “(3)

The Police: “ Chief officers are responsible for making sure appropriate arrangements are in place for provision of suitably qualified interpreters for people who: • are deaf; • do not understand English…..Whenever possible, interpreters should be drawn from the National Register of Public Service Interpreters (NRPSI) or the Council for the Advancement of Communication with Deaf People (CACDP) Directory of British Sign Language/English Interpreters] (4)
It is also mentioned in their Action Plan 2008-2010 (5)

Crown Office and Procurator Fiscal Service (COPFS) the Protocol says: “It is the responsibility of the Procurator Fiscal to engage a suitably qualified and experienced interpreters, skilled in the language and dialect specified in the police report, to assist prosecution witnesses in giving their evidence” (6)

The next item in the chain of understanding the working process is the hiring of interpreters by these Public Services. They do not look up the Yellow Pages or Google to find an interpreter. For the provision of interpreting and translation services they use a tendering process and sign contracts with the lowest bidding agency to supply interpreters.

4. Contractual provision of interpreters to the Public Service
Now let’s consider how this set up between agencies and the Public Service users has worked so far.

The first thing to say is that it did not work out as well as it should have. In terms of performance they have failed, because of complacencies from both the agencies in providing unqualified interpreters and from the Public Services who unquestionably accept their services despite previous appalling experiences. Despite the various press headlines over the last 5 years or so pointing out those agencies failing to provide adequate interpreters (7), I have still not come across a case where Public Services have sued an interpreting agency for breach of contract. One can only assume that the loop in the system is exploited by one party and accepted by the other, relying mainly on the footnote (i) found on the COPFS Protocol above which states: ” … On occasion it is recognised that interpreters who do not have the preferred qualifications and experience will require to be engaged.” I would argue that over the last decade there was plenty of time for the agencies to bring up to standard those interpreters not fully qualified on their register, and such an exception would solely apply to a very specific dialect from a remote part of the world.

What is most difficult to comprehend is why continue with a scheme which consists in choosing an agency because it is the lowest bidder knowing that the quality of its interpreters is inadequate. The quality does not, in all the cases that came to light, match the standard expected as defined by Focus Groups’ Recommendations.

In a system where total quality management (TQM) is the industry standard, it is well known that unless it applies all along the chain, which means service providers upstream and downstream are subjected to the same rigorous principle, the weakest of any one along this chain will mean a poor quality service at the end. This is known as a non conformance in business jargon and for a court this amounts to a malpractice or could even mean a miscarriage of justice.

We are told repeatedly and we read about the aim “to achieve the best quality of service to customers” and yet these Public Services, I am certain, would not contemplate for one moment doing business tomorrow with a new Delta Airways in town advertising “Cheap flights to Europe, our quality service is 80% of the time and our fleet quality performance is 90% of the time.” The same would apply for a new Quick Surgery Ltd offering “Quality performance 90% of the time”. No-one seeking a quality service would approach these companies.

Yet the Public Services continue to sign contracts with these agencies supplying interpreters, closing their eyes to the lack of quality performance of their services and that of their interpreters. Every now and then their shoddy services gets the attention of the media, the outcry will last for a day or two and then dies down without any corrective action being taken.

The boat seemed in danger after the huge swell, but the captain did not feel the need to shout “all hands on deck”. The boat has made it in similar situations before and will make it again, after all those on board are just immigrants (perish the thought). This kind of attitude can only lead to question the responsibility of those making policies and rules at a strategic level. Another critical factor to take account of is the trust of the people on the Scottish Judiciary system which is already at stake. My understanding of operating a professional business, let alone in a court of law, is striving to achieve 100% quality service to the client 100% of the time, which means all of the time including when dealing with non-English speakers.

It is common knowledge that agencies pay a pittance to its interpreters. It is very unlikely that a professional, qualified and experienced interpreter would want to work for such agencies (See ITI survey below). What we are left with is agencies with mostly new migrants, who are unqualified and have never interpreted before in their home countries. They see the opportunity and rise to it. They are not in a position to demand high wages and offer their unqualified services cheaply. On the other side of the equation, we have agencies who have no quality control system in place, who pay low rates to its interpreters and can afford to outbid contracts to supply interpreting services to the Courts, the Police etc..(Scottish Law Reporter (7), Glasgow Herald (7)).

5. The bells are ringing, is anybody listening?

Unfortunately there are no recent specific lists of court cases with interpreting issues in Scotland. The Research Findings for provision of foreign language interpreters in the Scottish courts is dated 1996 (8) The Scottish Law reporter (op.cit) writes “The Sunday Herald has evidence that fiscals and sheriff clerks are routinely using unqualified freelance linguists provided by Scotland's largest interpreting agency, Alpha Translating and Interpreting. Solicitors, court officials and qualified interpreters have raised fears that mistakes are being made that could lead to wrongful convictions or acquittals”.

The issue of wrong or unqualified interpreters used in courts is not new as can be seen from court cases both in Scotland and England. I must point out that delving into the area of court interpreting can be an overwhelming task. The first difficulty in finding historical cases is that in the English system at least, cases are not automatically reported unless they involve a new point of law (9). Hence the Iqbal Begum appeal, an influential case in ECHR and court interpreting, was heard in 1985 (four years after the original trial), but not reported until 1991.

I managed to search and find some court cases involving interpreters and the list can be seen here:
o Belgian Franky Pluvier, defendant - Canterbury Crown Court 2006. The Defendant spoke Flemish and the non registered interpreter provided was Dutch.
o Cuscani - Newcastle Crown Court, March 2006.
The agency sent an interpreter to assist the court in the trial of Italian defendant Cuscani. She had never interpreted in a Crown Court before, nor did she have any interpreting diplomas or qualifications. The Agency told the interpreter it’s a motoring offence. The Case in fact was a conspiracy trial.
o S. Dubrovska and A. Vladinovskis and V. Sergejev – Norwich Crown Court 2006.
Three Latvian defendants were interviewed by Norfolk Police using a female Russian interpreter who had studied the language only at school. The police interview transcript revealed that the caution was distorted to the extent that it ended up as: “You don’t have the right to say anything at all and anything you say will be used against you”. The prosecution found that it was unable to go as far as they might have gone because of the poor interpreting.
o Reg v Milenky, Gujda and Lazok [2005] Reliance Translations from Manchester sent the husband of an NRPSI interpreter to Bradford Crown Court. Trial was compromised.
o Reg v W Khan at Burnley Crown Court [2005] Case had to be adjourned because Defence solicitors used an unqualified interpreter, incurring huge cost to the taxpayer.
o Endenico Belo - Caernarfon Crown Court 2005- had been granted unconditional bail pending the outcome of an Appeal Court hearing because the interpreter did not speak his language.
o Cuscani v UK, European Court of Human Rights, September 2002. It was held that the failure to provide a professionally qualified interpreter that the judge should have ensured that the applicant understood the trial proceedings. There was therefore a breach of Article 6(1) and 6(3)(e).
o A. ERKURT v L A HIGSON, Procurator Fiscal Glasgow 2002. “The complainer submits that the...decision of [the] Sheriff...was unjust, erroneous and contrary to law. Failure to provide a competent interpreter or competent interpretation in circumstances where the accused is a foreigner with little or no understanding of English is inconsistent with the proper administration of justice”
o QC William Taylor,[Lockerbie trial] refers to the 1942 case in Scottish law in which an appeal court over-ruled convictions of three Polish soldiers on the grounds of inadequate translation.
o Mikhailichenko v. Normand 1993 9S.C.C.R. 560 - Court interpreter (Bulgarian) did not provide competent (full, accurate) consecutive English-Russian interpretation. Defendant did not understand court proceedings. Case was dropped.
o R vs. Iqbal Begum [1991] 93 Criminal Appeal Reports 96 - An interpreter was engaged for the trial in 1981, but he was not trained for the job. This case triggered the Trial Issues Group that has resulted on Lord Justice Auld’s recommendations on the use of interpreters in the Criminal Justice System
o Re Trepca Mines Ltd [1960] 1 W.L.R. 24 - Issue of an untrained interpreter acting as an advocate / a witness / interpreter all at the same time!
o Dies v. British and International Mining and Finance Corporation Ltd. [1939] 1 K.B. 724 - Issues of Understanding and accepting process of translation / interpretation and the non requirement of “verbatim” renderings came to light
o R. v. Lee Kun (1916) 11 Cr.App.R. 293- Evidence at trial not interpreted to defendant, although interpreter sat below dock.
o R. v. Berry (1876) 1 Q.B. 447- Jury discharged without hearing. Prisoner detained.
o Borosky and Others (1682) 9 Howell's State Trials 1 - Interpreter acts as advocate / witness / interpreter.

Before moving away from the issue of using non professional interpreters in court, I would like to mention another equally important issue. It concerns these very same Public Services’ lack of understanding of the concept of an interpreter. An interpreter’s role is still not widely understood and in the presence of an interpreter there are situations not appropriately handled by police officers, lawyers and even by judges themselves.

Let me propose some anecdotes:

This took place in Glasgow Sheriff Court; the Sheriff is advised that the two interpreters have been sworn in and are ready. The Sheriff said:" Why do we need two interpreters, would one not be sufficient for the proceedings?"

In this above case it was the solicitor who hired his own interpreter, whilst the interpreter for the prosecution is hired by the Crown Services. The CPS says that “if a defendant requires an interpreter to interpret the proceedings, it is the responsibility of the court to arrange for the attendance and payment of an independent interpreter (10)

This second instance took place in court and the Solicitor addressed the interpreter: Tell him this, ask him that.. The professional interpreter addressed the Sheriff and requested him to ask the solicitor to address his question directly to the defendant.
The Sheriff replied: “Isn‘t that what he has been doing?”

This is my own experience when interpreting for a Social Security and Child Support Appeal. The panel consisted of a doctor, a social services representative and a lawyer acting as the Chair. It became clear to me that the Chair was not familiar with working with interpreters. I pointed out to the Chair that he should address the appellant directly and more importantly he needs to break his flow in short sentences so that I can interpret correctly unless he wishes me to use simultaneous interpreting. The Chair gave me a “how dare you?” look and said to me: “You want to be in charge of the proceedings then!". He might not have been far from the truth but I managed to make him understand he is “in complete and full charge” and just like him, I wished to do my job professionally to assist him to better fulfil his part whilst the appellant is made aware of every meaningful word of the proceedings.
And this last example mentioned by Ruth Morris, at the World Conference On Human Rights, “Question to witness: Where were you when the assault took place? Interpreter asks question in foreign language.
Witness's answer: (as given in English by interpreter) I was standing in the corner.
Sheriff to interpreter: Oh, were you there too?”
This incident illustrates the problem in a nutshell: even when the interpreter is, correctly, using the first person to convey the witness's words, the judicial participant has no grasp of the way in which the interpreter becomes the witness's mouthpiece.”

6. The Quality Issue

It has been established that court interpreters were used as far back as the 17th century and are now regarded in some well appointed quarters like the Immigration Authority Courts as court officials. However, the Scottish Courts have failed so far to guarantee the provision of quality interpreters. It is not an issue of legislation but rather, as seen earlier, a question of organisation and applying a thorough quality assurance in the hiring of interpreters in order to provide a service of the same high standard as the process of administering justice in a Sheriff Court.

The following paragraphs will highlight this issue, whereby despite the media, the recommendations by focus groups and protocols agreed by the Public Services regarding the quality standard of interpreting services required in courts, there has been little change up to now in 2009.

Inquiry into trial’s use of unqualified interpreter

The Sunday Herald (7) reported in 2008 “Sheriff James Tierney halted the trial of Krzysztof Kucharski and the jury trial of the case collapsed on the second day after the freelance interpreter from Alpha Translating and Interpreting Services admitted her inexperience in open court.” The same article reports how the Scottish Court Services is continuing to use inexperienced foreign students under the heading “Inquiry into trial’s use of unqualified interpreter”.

The trade union Amicus (11) warns that “the use of non qualified interpreters by police and court authorities is causing serious malpractice by police and court authorities.The union says they have documentation detailing serious cases of malpractice resulting from the use of unqualified interpreters. Amicus says that the evidence shows that the use of poorly trained and inexperienced interpreters by the public sector means that non-English speaking people are not being fairly represented.Amicus have a catalogue of incidents that demonstrate the failures caused by the use of unqualified interpreters used by local authorities, courts and the police.They include the use of agencies who ask unqualified interpreters to recommend friends if they are not available for work, the use of people who have not studied the language in question since school and others when a third language, not native to the client is used…. In another incident at court involving an alleged sexual assault had to be adjourned because a statement translated by an unqualified interpreter was impossible to understand.”

A recent report by Amnesty International Scotland (12) discloses widespread concern over the quality of interpreting services available to solicitors in Glasgow dealing with asylum applications and appeals.

Lastly, the Institute of Translation and Interpreting (ITI) provided us with some interesting results in its 2006 survey (13). It reported ”Shedding some light on this, a massive 85.7 per cent of respondents have refused to work with an agency/service because of the terms and conditions it offers, and 52 per cent have refused to work for an agency or service that in their opinion does not always work with qualified interpreters.

There is clearly a very strong feeling that quality standards are threatened because some agencies are offering unacceptable terms and conditions, or working with inexperienced interpreters who are prepared to accept lower rates”.

The above findings regarding the lack of standards and in particular the latest figures provided by ITI speak for themselves. If the Public services strive to provide fair and professional standard services to the community they ought to demand a high standard to the agency providing interpreting services. The agencies themselves should have a quality procedure manual and register only interpreters qualified to the national recommended standard.

7. Focus Groups Recommendations

In the 1990’s various focus groups like the Interpreters’ Working Group (IWG) debated the issue of the provision of interpreters to the Public Services and produced a report in 2002.

The interrelation between agencies, voluntary bodies and legal practitioners within the justice system and how it was working was assessed in 1999 and Lord Justice Auld in his Review of the Criminal Courts of England and Wales 2001 gave his recommendations. In Chapter 2 - Summary and Recommendations – the issue of interpreters is introduced:
”18. Urgent steps should be taken to increase the numbers and strengthen the quality of interpreters serving the criminal courts and to improve their working conditions”.
In Chapter 11- The Trial: Procedures and Evidence, under the Heading interpreters the recommendation reads:
“155. The Runciman Royal Commission commented on the difficulties of obtaining good quality interpreters at police stations and at court. They made a number of recommendations, in particular, for their better training and remuneration.”

The above information, albeit concerning England and Wales, is provided to point out that the issue under consideration was the subject of the Ministry of Justice and bears some weight on the Scottish Courts.

Given the concern about the arrangements for and standards of the provision of foreign language interpreters in Scottish Courts, research was commissioned. This concern arose from the results of research conducted in England and Wales, mentioned earlier, and which concluded that “arrangements were poorly developed and that interpreters were often inadequately trained and qualified”.

The Crown Office and Procurator Fiscal Service (COPFS) in Scotland have in previous years debated the same issues with focus groups, such as the protocol agreed between Crown Office, Scottish Court Service and ACPO(S) for the instruction of interpreters for criminal court diets was released in 2002.

The Scottish Translation, Interpreting and Communication Services Forum was formally established in 1998 and brings together public sector service-providers. Its aims are “to promote good practice in the use of interpreting, translating and communication support to people for whom English is not a suitable language of communication and people who need to access English by Sign Language or in another form. More specifically, it aims to develop high professional standards in the use, management and delivery of interpreting and communication support in Scotland. The Forum has recently been involved in the Scottish Executive's Translation, Interpreting and Communication Support (TICS) Group”.

The result is “An Agreed Framework of National Standards for Public Bodies for the Management and Delivery of Quality and Effective Public Service Interpreting and Translating in Scotland”. This is to be found in the form of Good Practice Guidelines produced by the above Forum.(14)

Another report is produced by The Inspectorate Of Prosecution In Scotland On The COPFS’ Response To Race Matters.

The issue under consideration is also debated under a wider context, that of Refugee Integration. The Draft Action Plan submitted to the Scottish Government in 2002 is very enlightening in measuring the changes if any since the 1991 recommendations.

The findings and recommendations are reproduced below for the issues we are concerned with.

“Key Actions: Translation and Interpretation (15)

6) There is a need for clear guidance from the Scottish Executive to public sector organisations to ensure that they can have access to translation and interpretation where this is a necessary part of their work.
(7) Steps should also be taken to identify whether additional resources could be made available nationally or locally to allow individuals and community groups to obtain interpretation services where these are required as part of the process of facilitating community development and integration.
(8) A national certification body for interpreters and translators should be established.
(9) There is an urgent need for the development of guidance to public sector organisations on the use of interpreters (particularly) and for the training of staff specifically in working with interpreters (in mainstream and emergency settings).
(10) Good practice guidance should be developed on the most effective means for public agencies to communicate with target audiences”.

In reading the various research papers I can but come to the same views and conclusion reached by summary of research findings in May 2005 published by the Scottish Consumer Council, where it says:
“Our overview of other research and policy papers found that this is a common theme of many investigations in the field. Despite many published guidelines and policy discussions little has changed on the ground in service delivery. This suggests that further action is required to improve the standards in public sector interpretation and translation. Given the complexities of providing high quality interpretation and translation services in all areas of Scotland, we argue that action is required at national level to ensure service improvement and consistency.

Conclusion
It has been suggested that, with few exceptions, there is little evidence of change in the provision of translation and interpretation services over the last 10 years despite the criticisms that have emerged from reviews, inspection or research. Various guidelines and standards have been devised in an attempt to improve quality and consistency of provision, but their effectiveness has been curtailed by the lack of a strategy for implementation, monitoring and evaluation. Guidelines and policy statements alone do not appear to have improved service delivery.

We therefore recommend that the Scottish Executive develop and implement a national strategy on interpreting and translation to encourage change in the sector.” (15)

8. Conclusion and areas for consideration

A Scottish Register for Public Service Interpreters
In conclusion, it is paramount that a single unified policy is implemented with regard to the provision of translation and interpreting to the Scottish Public Services. There is an urgent requirement to nominate a Scottish body with a mission for certification and maintaining a Register of Public Service Interpreters in Scotland and to assess agencies providing interpreting services. At present The National Register is administered by NRPSI Ltd, a wholly owned subsidiary of the Institute of Linguists. The disadvantage of the NRPSI is that it is far removed from the needs and issues faced in Scotland. I cancelled my membership in 2000, I suppose that made me no longer qualified to interpret in court! I have been a registered member for 5 or 6 years but this membership did not serve me well as I have never been approached for my services through this register. It is essentially for interpreters living in England (more specifically in and around London). In addition the fees are currently about £200 a year, I doubt that those offering their services in Scotland will afford to subscribe for little or no return. Therefore I advocate for a Scottish Register which would better serve the needs of its members.

Qualifications Standard

First, let us clarify the over abused term of interpreter used by anyone speaking two languages. The profession of interpreter, like many other professions, has different levels of skills, of training in one specific field or another, levels of qualification and of course the best part of all: experience.

Therefore in my opinion a bilingual person does not necessarily mean he is a good interpreter. A community interpreter’s (as defined by the social public services) skills and qualification are not on par with a university qualified interpreter who is expected to provide a higher standard of professional service than the two previous categories of interpreters.
This said I move on to the level of competency used by agencies which has been observed among interpreters.

There should be some concern about the level of competency of an interpreter in the source language. The word ‘competent’ is open to interpretation but I have come across interpreters who do not possess even a general qualification in their own language. The starting point is to ensure the person entrusted with the professional task of interpreting is competent in both English and the source language.

For court interpreters the level should be higher. They should possess a secondary level qualification plus qualifications specific to translating or interpreting. These qualifications are still inadequate for court as those with these qualifications would not have studied legal terminology and would not be ready when faced with the ethical challenges in court.

Therefore specific training is required where they learn legal linguistic skills that include legal terms, Latin and Scottish expressions, idioms and slang. The Diploma in Public Service Interpreting (DPSI) would be the required training where in addition to the skills above they will have the opportunity to experience the simultaneous and consecutive interpreting.

Therefore the minimum standard for all interpreters should be the DPSI. However, my own belief is that given the circumstances at how this level has been achieved so far (inadequate study material, short study period and outcomes are far below the requirements in real life), this diploma on its own is not enough. A more appropriate study over a period of time, such as a university degree in translating and interpreting would equip the interpreter with most of the tools of the trade.

In addition, the newly qualified DPSI interpreters need at least 12 to 16 months practice before becoming fully proficient in their job. Interpreters should build a portfolio where they register evidence of their experience through work assignments, seminars and Court attendance. It would be interesting to find out how many interpreters improve their skills, knowledge and understanding through Continuing Professional Development (CPD). As a professional, an interpreter has the responsibility to keep his/her skills and knowledge up to date. The CPD is an opportunity to identify what one has learned and assessing the areas needing improvement in order to achieve his/her own career objectives. This is a tried and tested method for professionals to enhance their career development.

Clearly, a DPSI alone is neither a passport to successful interpreting in court nor a key to a successful career. I came across DPSI holders who were “speakers of another language”, that is, not even competent nor possessing a secondary qualification in their own language. Some DPSI holders working for less than 2 years attended some of my classes where I tested their legal jargon for commonly used terms in courts. They were asked to define in English “Bona Vacantia”, “ a crave”, “Hamesucken”, “irritate or enforce an irritancy”, “ask the panel” “precognition” and “reset” ; only 2 out of 10 managed to recognise and define properly one term (precognition) only. The use of CPD for example will help review the areas where there are shortcomings, check learning over the previous period, and set development objectives for the coming period. This could be bank terminology for the field interpreter who wishes to specialize in, attend court hearings or invest in a manual to keep abreast in his field.

The responsibility of the interpreter to seek better qualifications cannot be achieved under the present system. There is simply no motivation for the interpreter.
An issue to be taken on board is that higher remuneration paid to qualified interpreters would be an incentive to those unqualified interpreters to gain qualifications such as the DPSI as a minimum requirement and/ or seek further qualifications.

Currently unqualified interpreters are content to work for as little as £10.00 an hour as long as agencies are still able to hire them without being penalised for using unqualified and untrained ‘interpreters’. The ensuing consequence is that training to reach the standard required needs to be more accessible financially and training materials should be vocationally relevant. The Government should provide funding for relevant courses in colleges (DPSI) and 2 years of studies covering the fields of legal and health interpreting apart from the degree in translating and interpreting. In addition there is a requirement for investing in training interpreters to attend court classes and regular seminars to complete a portfolio of evidence such as the SQA’s Professional Development Award (PDA’s).

The findings of Translating, Interpreting and Communication Support: A Review of Provision in Public Services in Scotland (TICS), points out to a significant shortage of trained interpreters working in certain languages and in specific domains or locations. In order to overcome this situation there is a clear requirement for investment in training. The Government needs to implement a training policy, in Further Education establishments and Universities to provide basic training for interpreters, training in more specialised fields of work (legal, mental health) to gain professional skills. Training and accreditation of all interpreters should include coverage of the basics of criminal investigation and court procedures.

Investment in training should be regarded as an important factor in the wider context of a social policy designed for inclusion and integration. In 2007 there were only 3 centres in Scotland providing DPSI studies.

In addition, a training policy will also require the provision of adequate learning material. It is almost impossible to find on the high street basic interpreting legal vocabulary dictionaries, legal translation guides etc… Unless all of these issues are resolved the level of qualifications of our interpreters will remain poor and below the required professional standard.

Selection of Agencies and Courts Service Tender Process

The provision of interpreters and interpreting services to the Crown Office & Procurator Fiscal Service is by tender. After a contract is advertised, any supplier who lodges an Expression of Interest is required to complete a Pre-Qualification Questionnaire (PQQ). These PQQs are then marked before deciding which suppliers to invite to Tender. Regarding the qualification of interpreters, the door is left open to critical situations right from the start of the tendering process. The Invitation to Tender Notice states under the heading:
3.1 Minimum standards and qualification required: “… Where a spoken language interpreter, who does not have the required formal qualifications as noted in the preceding paragraph or who has little or no court experience, is assessed and recommended to undertake the work, the successful Contractor(s) must provide a full written report of the basis of that assessment and recommendation.”

It is too much of a risk to propose knowingly under-qualified and non experienced interpreters for court duties. The catalogue of incidents that demonstrate the failures caused by the use of unqualified interpreters used by local authorities, courts and the police has been mentioned earlier.

Five companies were appointed for the Tender evaluation process for providing interpreters and interpreting services: Alpha, Global Voices, Global Connections, Global Language Services and T&I Services.

FINAL TECHNICAL SCORE
The first figure represents the Total Score
The second figure rpresents the average score(base 100)

Alpha (403.75) (100.94)
Global Voices (409) (102.25)
Global Connections (419.25) (104.81)
Global Language Services (436) (109)
T&I Services (403) (100.75)

Source: Tender evaluation process for framework for the provision of Interpreters and Interpreting Services to the Crown Office & Procurator Fiscal Service. TENDER REF: PCM/05/05 Annex A

In the scoring of the 5 tenderers it seems that the commercial aspect is more important than the professional level of qualifications of interpreters. The weighting factor (15%) for quality is the same as the ability for the agency to provide service at short notice. The quality control is also not highly rated (10%) in the overall criteria for technical and quality evaluation.

The Scoring in terms of quality and price reads as follows:

The first figure represents the Quality Score
The second figure represents the Price Score ()
Alpha 70.66 (46.21)
Global Connections 73.37 (42.77)
Global Language Services 76.30 (19.60)
Global Voices 71.58 (21.99)
T&I Services 70.53 (19.38)

Total Overall Score respectively: 116.87 116.14 95.95 93.57 89.91

VFM Ranking Alpha = 1 Global Connections= 2 Global Language Services =3
Global Voices= 4 T&I Services=5

Source: (ibid)

In reading these figures there are no surprises when the Sunday Herald writes that it has evidence that fiscals and sheriff clerks are routinely using unqualified freelance linguists provided by Scotland's largest interpreting agency Alpha.

According to the Quality Assurance standards, management of a business is a cyclical process which includes planning then implementing and then analysing (checking) the effectiveness of the processes and only in doing so can the company increase its efficiency and therefore improve its services to the public.

Many companies embarked on the Total Quality Management route in the 1990’s and it is expected that agencies offering translation & interpreting services should aim at obtaining the ISO 9001 and EN15038 certification. A conditional requirement in the Pre-Qualification Questionnaire would compel the agencies to get certified.
We have touched on the responsibility of the Government to implement training policies, and it would be also part of the responsibilities of these agencies to offer to their interpreters training and supervision to complete their portfolios of evidence such as the SQA’s Professional Development Award.

The last item to be addressed is the interpreters’ rate of pay used by agencies. The pay rates vary from £16.00 to £29.00. Travel rates (25p) per miles are also an issue for interpreters who are paid by many agencies below the public service rates (50p).

The rate of pay applicable to court interpreters is based on the Lord Chancellor’s Department guidelines, which means they are not mandatory for all the courts. Some courts (IAT, SSCSA) and other Public Services such as the Police offer a minimum guaranteed pay for 3 hours, or like the UK Border Agency offers £16 per hour with a minimum payment of £80 per assignment.

Qualified interpreters are paid the same rate as unqualified interpreters. Some agencies do pay a different rate to qualified interpreters (+ £5/hour over the lower rate) that the difference is so marginal to be regarded as an incentive for those less qualified interpreters to undergo training. It is only fair that qualified court interpreters should be a recognised profession and paid accordingly. Court interpreters should be regarded as court officers and provided before trial any documents likely to assist them in their task during the hearing.
The career of an interpreter is often perceived as a career with a low status (unless you work for the EU or the UN) and lacks career prospects. We are able to argue that the working conditions in Scotland for interpreters are poor and offer little job security. If there is no future in this field as a career, there will be a serious shortage of this service provision. Again, unless there is a dedicated Government policy in training to avoid shortages of interpreters as those already felt in Brussels (for English interpreters), we will continue to see in the next decade the same issues repeated again.
Lastly, there is a requirement for a creation of a body representing the profession in Scotland. This body would defend its members’ interests at fora, would contribute to all policy making and recommendations with regard to the provision of using interpreters by Public Services. This is an action to be taken by all interpreters to decide how to elect office bearers and contribute to the aims and objectives of such a representative body.

Footnotes

(1) JCWI- Immigration, & Nationality refugee law Handbook, 2006 ed, p774
(2) JCWI- op.cit.p775
(3) UK Border Agency, Operational Enforcement Activity, Chapter 39
(4) Police and Criminal Evidence Act 1984 (PACE) Code C
(5) CSP/EQU/OPS/03 Equality Scheme Appendix 1 Central Scotland Police Equality Action Plan 2008-2010
(6) Crown Office Protocol February 2002
[ (i) So far as possible spoken language interpreters engaged should have the Diploma in Public Service Interpreting (Scottish Legal Option) and recent experience of both consecutive and simultaneous interpreting in the court context. It is recognised however that there is a shortage of qualified and experienced interpreters in some languages and that particular difficulties may arise in relation to first appearances from custody. On occasion it is recognised that interpreters who do not have the preferred qualifications and experience will require to be engaged. When this is necessary the interpreting service involved should be asked to provide a written assessment setting out why the interpreter is deemed to be suitable for the proposed work.
Sign language interpreters should be registered as qualified interpreters with the Scottish Association of Sign Language Interpreters.]” Crown Office, op.cit.

(7)

BBC news – Scotland- Court interpreter costs increase 5 January 2009 -news.bbc.co.uk/1/hi/scotland/7812047.stm

BBC news – South of Scotland- Court interpreter cost concerns 14 August 2007, news.bbc.co.uk/1/hi/scotland/south_of_scotland/6946522.stm

BBC news – Highland and Islands – Concerns over Court translations, 28 June 2006 news.bbc.co.uk/1/hi/scotland/highlands_and_islands/5124978.stm

The Observer, Interpreters , Sunday 2 December 2001

The Journal on Line, Interpreters' fee costs soar in Scots courts, 6 January 2006

The Sunday Herald, Justice system compromised by unqualified interpreters, 4 March 2009

The Sunday Herald, Inquiry into trial’s use of unqualified interpreter, 16th November 2008

The Scotsman - Immigrants jailed for 'cannabis factory' work, 17 Oct 2007

Workforce language, Lack of Interpreters leads to miscarriages of justice, 29 Sept. 2007

The Scotsman, Taxpayers fund huge rise in costs for interpreters, 4 Jan. 2008

Scottish Law Reporter-Unqualified interpreters used by Courts & Fiscals causing miscarriage of justice, 25 may 2008
Sunday Express, Interpreting the Law costs thousands, 4 Jan. 2008

The Sunday Telegraph, Unqualified interpreters' cause chaos in courts, 27 August 2006

The Scotsman - Taxpayers fund huge rise in costs for interpreters, 4 Jan 2008

The Press and Journal – Cost of interpreters for accused migrants trebles, 5 Jan 2009

The Courier, Concern voiced on court interpreters, 14 July 2007

(8) Crime and Criminal Justice Research Findings No. 11 (1996)
(9) Clinch, P.C. 1990. The Use of Authority: Citation Patterns in the English Courts', The Journal of Documentation, 287-317
(10) The Crown Prosecution Service, Legal Guidance, Interpreter as an Interpreter at court
(11) Trade union Amicus, “failure to use qualified interpreters is resulting in justice failures, 26 Sept. 2006
(12) Amnesty International Scotland www.savethechildren.org.uk/caris/legal/asylumproc/ap_p2_24
(13) ITI – Community, Court and Police Interpreters at a crossroads? ITI Bulletin March 2006
(14) The Scottish Government – Publications
(15) Scottish Refugee Integration Forum: draft action plan – The Scottish Government- Consultations. 4 Oct 2002
(16) Published by the Scottish Consumer Council. May 2005.


Manuals and Reports
- Review of the Criminal Courts of England and Wales, by The Right Honourable Lord Justice Auld, September 2001, Ministry of Justice
- Improving Practice - The 2002 Review Of The Practices And Procedure Of The High Court Of Justiciary By The Honourable Lord Bonomy
- Translating, Interpreting and Communication Support Services across the Public Sector in Scotland: A Literature Review. Joanna McPake and Richard Johnstone. 2002
- Translating, Interpreting and Communication Support: A Review of Provision in Public Services in Scotland, 2006
- The Translator Volume 1, Number 1 (1995). Ruth Morris
- Report Of The Inspectorate Of Prosecution In Scotland. On The Copfs Response To Race Matters. Response Of The Crown Office And Procurator Fiscal Service.
- Proposal for a Framework Decision on procedural safeguards for suspects and defendants in criminal proceedings throughout the European Union. Brussels, 19 June 2003 JAI/B/3/CM
- Code Of Practice For Working With Interpreters In The Scottish Criminal Justice System, 2008
- Joint Committee On Human Rights Nineteenth Report - Appendix 7: Correspondence Between The Chairman And Ministers Relating To Judgments Of The European Court Of Human Rights
- Immigration Law Handbook, M Phelan- J. Gillespie 4th Ed. Oxford University Press
- Immigration, & nationality refugee law Handbook. JCWI. 2006 Ed.
- Challenging Racism- Using the Human Rights Act. Lawrence & Wishart 2003
- Interpreters and the legal process , New Law Journal, 13 September 1996, Butterworth & Co (Publishers) Ltd
- Consultation Paper on the use of Interpreters in Publicly Funded Immigration and Asylum Cases. Amicus- National Union for Professional Interpreters and Translators (NUPIT)