Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 88

HCA/15-833/XC

 

Lord Eassie

Lady Smith

Lord Drummond Young

 

OPINION OF THE COURT

delivered by LADY SMITH

in

APPEAL AGAINST CONVICTION

by

LOUISE McDOUGALL

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  M MacKenzie;  Faculty Appeals Unit (for T. Duncan & Co, Montrose)

Respondent:  Di Rollo, Sol adv, AD;  Crown Agent

16 September 2015

Introduction
[1]        This is an appeal against conviction;  the appellant was convicted on 28 January 2015, at Dundee Sheriff Court, of a contravention of section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, an assault to severe injury and permanent disfigurement and an attempt to pervert the course of justice.  All the charges arose from the same event during which, according to the allegations in the indictment, the appellant had caused a disturbance, assaulted the complainer with a fireside implement and made a false allegation that he had sexually assaulted her.

[2]        The trial took place between 22 and 28 January 2015. 

 

Background
[3]        The incident took place on 29 December 2013, at which time the complainer was aged 86 years.  The appellant was aged 24 years.  She had, on a number of previous occasions, attended at his home and performed sexual favours for him.  Whilst it was not disputed that the complainer was injured in the incident in the present case, the line of cross examination adopted at trial (conform to the appellant’s statement to the police) was to the effect that he had sexually assaulted her in the course of which he had grabbed her and threatened her with a knife, causing her to react – in her own defence - in the manner described in the assault charge. 

 

The complainer’s circumstances
[4]        The complainer is profoundly deaf and has no speech.  He has been deaf and without speech since birth.  He does not have even minimal spoken language skills and has only basic sign language skills.  He had, by the time of trial, been assisted and supported for 17 years by a specialist interpreter trained and qualified in “minimal sign language”, Mrs Jennifer Ramsay.  She knows the complainer very well.  He suffered a stroke in April 2013.  Mrs Ramsay’s support of the complainer intensified thereafter, particularly in relation to a multiplicity of medical appointments. 

[5]        Prior to trial, a compatibility minute was lodged in which the following contentions were stated:

“(a)      (The complainer) is profoundly deaf with no speech.  On 6 January 2014, (he) provided a police statement …  During this process, (the complainer) had the assistance of a sign interpreter Jennifer Ramsay who interpreted and translated his complaint.  It is also understood that said Jennifer Ramsay has assisted the complainer numerous times in the past in her professional capacity.

 

(b)        It is understood that at the forthcoming trial diet, said Jennifer Ramsay will be present to enable (the complainer) to give evidence.

 

(c)        It is contended that in interpreting the evidence in this trial, there is a real risk that said Jennifer Ramsay’s interpretation will be influenced by her knowledge of the complainer and the police statement account that she has already heard from the complainer.  Her prior knowledge of the complainer’s police statement may influence her translation and interpretation.  In addition, it may allow her to compensate for his inability to answer certain questions which would allow the jury to assess his credibility and reliability.

 

Further, it is also possible that in the event that there is a dispute about what the complainer said to the police e.g. by the defence putting a prior inconsistent statement to him, the complainer may cite misinterpretation at the time of the police interview.

 

In such a case, it may be necessary to call the interpreter as a witness.  This however would not be possible due to the said Jennifer Ramsay’s presence in court.

 

Accordingly, as there is a real risk of prejudice to the minuter should said Jennifer Ramsay act as court sign interpreter and translater, it is respectfully contended that a suitable alternative be appointed.”

 

Mrs Ramsay was also listed on the indictment as Crown witness number 10. 

[6]        A hearing on the minute took place in advance of trial, on 13 January 2015, during which the sheriff heard evidence from two witnesses.  The first was Alana Trusty, the manager of an advocacy service for deaf persons who live in the same area as the complainer.  She has also acted as the complainer’s advocate since September 2010.  The second was Jennifer Ramsay.  It emerged from that evidence that:

• there were about five other local interpreters although not with the “minimal sign language” qualifications held by Mrs Ramsay;
• those interpreters had no prior association with the complainer;
• there were 50 – 60 other such interpreters in Scotland;
• it would not, according to Mrs Ramsay, be impossible for another interpreter to interpret for the complainer so long as that interpreter was able to spend a couple of hours with him beforehand, to become familiar with what was , in his case, required;
• there had been no attempt by the Crown to seek or to instruct any interpreter other than Mrs Ramsay; and
• Mrs Ramsay referred to the complainer’s police interview, to his being unwell and upset during it and to knowing that he can get frustrated.

 

The sheriff’s disposal of the compatibility minute
[7]        The sheriff rejected the contentions in the minute.  In her report she explains:

“I was not satisfied that there was a real risk of prejudice to the appellant however in my view there was a real risk to the interests of justice if Mr Watson’s evidence was not properly interpreted.  Mrs Ramsay was clearly the best person to achieve that and any issue regarding the fact that she had interpreted for Mr Watson during his police interview could be dealt with in the course of the trial.  It should in fact be noted that Mrs Ramsay did not take any notes at the police interview , as this is not her practice.  She could not therefore have been asked to refer to any notes about Mr Watson’s interview which had taken place more than a year before.  The point raised by defence counsel regarding putting a prior inconsistent statement  to Mr Watson and the fact that if Mrs Ramsay acted as interpreter she could not be called as a witness in that connection, was not, in my view, a substantive one.  It appeared to me that the interviewing police officers would be the best persons to call in relation to the content of the interview.”

 

The sheriff, in her report, adds that she had rarely, if ever, seen an interpreter as competent as Mrs Ramsay.

The appeal
Submissions for the appellant
[8]        For the appellant, Ms Mackenzie submitted that the sheriff had erred.  A different interpreter could and ought to have been instructed.  The use of Mrs Ramsay as interpreter involved a real risk of apparent bias;  the impression given to an objective bystander was likely to be one of partiality.  That was because of the length of time during which Mrs Ramsay had known, supported and assisted the complainer, that support and assistance having increased in intensity since his stroke.  The impression would be fortified by her having interpreted for him during the police interview when he was being questioned as a suspect and had provided an exculpatory account.  It was clear that she knew him well and it would readily have been concluded by such a bystander that she was likely to be sympathetic to him.  There was, in these circumstances, a significant risk of prejudice to the appellant.  Further, although Ms Mackenzie had not herself represented the appellant at the trial, she had spoken to the trial counsel and he had, on his professional responsibility, advised that it was his impression, when cross examining the complainer, that Mrs Ramsay was indeed siding with the complainer and was sympathetic to him.  She had, for instance, on a number of occasions, asked him to repeat and rephrase straightforward questions and her tone when interpreting answers, was defensive in relation to any suggestion that was adverse to the complainer’s interests.

[9]        The sheriff had also erred in rejecting the submission that Mrs Ramsay should not be used lest she required to give evidence about the complainer’s police interview.  She was on the Crown list of witnesses.  Had the complainer sought to refute a contention that his evidence in court was at odds with what he had said to the police by criticising the interpretation, her evidence may well have been required yet she would not, having been in court throughout, be able to be called as a witness.  The sheriff’s rejection of that submission on the basis that the police officers could give evidence about the interview failed to meet the point;  they could not speak to the accuracy of the interpretation.  

[10]      Ms Mackenzie referred to the case of Imam Bozkurt v Thames Magistrates’ Court [2001] EWHC Admin 400, in which the Lord Chief Justice endorsed the “Guidelines for Interpreters” as laid down by the Police and Criminal Evidence Act 1984, as clearly supporting her submissions.  Those guidelines made it clear that, barring exceptional circumstances, an interpreter who has had a prior involvement in the case should not be interpreter at the trial.  She referred, in particular, to paragraph 3.2.1 of the guidelines:

“Except in cases where a rare language is used, or in urgent ‘overnight’ cases, the interpreter in court must not be the same as that used at the police station.  The latter may well be called as a witness for the prosecution and this position should not be compromised, except where absolutely necessary.  The consent of all parties must be obtained if necessary (sic) dictates the use of the police station interpreter in court.”

 

Here, the interpreter had not only interpreted for the complainer at interview – and was on the Crown list of witnesses – but had also known, assisted and supported the complainer for many years.  In all the circumstances, there was a significant risk of prejudice to the appellant which was not outweighed by any risk to the interests of justice.  To the contrary, justice was not seen to be done and the appeal should be upheld. 

 

Submissions for the Crown
[11]      For the Crown, the advocate-depute submitted that even if there had been a breach of procedural requirements, there had been no miscarriage of justice.  The relationship between the complainer and Mrs Ramsay was a professional one even if longstanding.  The sheriff had applied her mind to the competing issues.  It was appropriate to use an interpreter who had knowledge of the complainer because of his particular difficulties.  It was important to equip a frail and vulnerable witness so as to enable him to give his evidence.  Risk should not be made into a presumption.  The interpreter was not to be presumed not to have performed her duty to the court properly.  Counsel had not objected in the course of the trial and whilst it was accepted that this court had to have regard to what he said about his perceptions, they were vague and inspecific and, to the contrary, the sheriff found Mrs Ramsay to be highly competent.  The sheriff had had careful regard to all the factors and had not erred.  In all the circumstances, it was open to the sheriff to embark on what was conceded as being a departure from normal practice.

 

Discussion and decision
[12]      On the evidence, whilst it may have seemed convenient to use Mrs Ramsay, it would have been possible for a different interpreter to be instructed for the trial.  This was not a case where there was no real alternative to using Mrs Ramsay’s services.  There was, on the contrary, a viable alternative, namely to instruct one of the other interpreters referred to by Mrs Ramsay in her evidence and enable that interpreter  to spend time with the complainer to gain familiarity with his particular form of communication in advance of the trial. 

[13]      The issue for the sheriff was whether, if Mrs Ramsay acted, there was a significant risk of prejudice to the appellant.  In the circumstances, the question whether there would be apparent bias if Mrs Ramsay’s services were used was of central importance.  The point was not whether or not Mrs Ramsay would in fact be deliberately biased;  no one suggested that she would be deliberately biased.  Partiality may, however, be conscious or unconscious and a trial can be rendered unfair by the presence of partiality, whatever its source and whether actual or apparent.  If the circumstances are such as would lead a fair minded and informed observer to conclude that there is a significant risk of partiality then it will be difficult to resist the conclusion that a trial conducted in the presence of such circumstances cannot be a fair one. 

[14]      All the circumstances relied on by counsel for the appellant did, we agree, point to the presence of such a risk.  The length and nature of the association between Mrs Ramsay and the complainer and her knowledge of the line adopted by him at the earlier police interview made it impossible to rule out there being a significant risk of her interpretation being affected by sympathy for him particularly once he was being subjected to cross examination.  It was a risk which did not, in the circumstances, need to be run. 

[15]      There was, separately, in this case, the problem of Mrs Ramsay being on the Crown list of witnesses.  We agree with counsel for the appellant that the sheriff erred in dismissing that submission as being not substantive.  It was in fact a substantive point.  The police witnesses present at the interview could not have given evidence about the accuracy of the interpretation provided by Mrs Ramsay, had the issue referred to arisen.  The sheriff ought to have regarded that matter as adding weight to the central submissions as to the inappropriateness of using Mrs Ramsay as interpreter.  This is a possible scenario which is covered by the guidelines referred to in the case Bozkurt, referred to above;  we agree that those guidelines are sensible ones, eminently worthy of endorsement.

[16]      We are satisfied that, taking all these considerations into account, the minute should not have been repelled.

[17]      We note the sheriff’s views as to the quality of Mrs Ramsay’s interpretation at trial but we cannot accept that they show there need be no concern about the risk of prejudice discussed above, or about the impressions gained by counsel when he was cross examining the complainer.  Further, we are unclear as to the basis on which she has felt able to reach those views.  Unless themselves proficient in the language being interpreted – or otherwise independently advised as to the competency of ongoing interpretation - judges are not in a position to assess its quality.  The apparent confidence or ease with which the interpreter appears to convert what is communicated by the witness into English does not, of itself, enable any conclusion to be reached as to its accuracy.  Rather, it is a matter of trust.  The court trusts the interpreter to do the job properly, professionally and never losing sight of the role of an interpreter being limited to that of independent and impartial bi-lingual mouthpiece.  That, in turn, elevates the importance of taking all reasonable steps to ensure that the accuracy and objectivity of interpretation cannot be impugned.  We cannot, in all the circumstances, conclude that the risk of prejudice to the appellant was, in the event, eliminated.  Rather, we are satisfied that a miscarriage of justice occurred. 

[18]      As advised at the end of the appeal hearing, we accordingly, uphold this appeal. 

[19]      The Crown having made a motion for authority for a fresh prosecution, we refused it;  we accepted the submissions made by counsel for the appellant to the effect that the Crown were not without fault in this matter and that, given the time the appellant had spent in custody (during which she had given birth), it was not in the interests of justice to grant the motion.