Gareth Morgan
Managing Director, Ferret Information Systems, Cardiff
Member since
20th Feb 2004
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RE: provision of supporting evidence - language
Tue 03-Jan-06 12:16 PM |
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A bit of digging on our CD-Rom produces the following, possibly useful bits.
from CDLA 2748/2002
"The standard of interpretation
10 The secretary of state's representative also made a submission on the relevance of the European Convention on Human Rights Article 6 to the issue of interpretation. The representative rightly draws attention to the specific provision in Article 6(3)(e) that there should be “the free assistance of an interpreter if he cannot understand or speak the language used in court.” I agree with the secretary of state's representative that this relates specifically to criminal proceedings, but the general principles are, as the representative says, also applicable to all hearings within the scope of Article 6(1). The main authority on Article 6 (3) is that of Kamasinski v Austria Series A No 168, 19 December 1989, <1991> 13 EHRR 36. At paragraph 74, the Court ruled:
paragraph 6(3)(e) dos not go so far as to require a written translation of all items of written evidence or official documents in the procedure. The interpretative assistance provided should be such as to enable the defendant to understand the case against him and to defend himself, notably by being able to put before the court his version of the events.
In view of the need for the right guaranteed by paragraph (3)(e) to be practical and effective, the obligation of the competent authorities is not limited to the appointment of the interpreter but, if they are put on notice in the particular circumstances, may also extend to a degree of subsequent control over the adequacy of the interpretation provided.”
That is a statement made in the context of the express application of Article 6(3)(e) to criminal proceedings. The Court also went on to apply this approach to the facts of the case and to find that there was no breach of the obligations by the Austrian court. But it noted in particular no objection being made to the interpretation at the time.
11 I agree with the secretary of state's representative that the general approach to interpretation at tribunal hearings should be guided by the ruling of the European Court of Human Rights, even if it does not apply directly. The interpreter in this case was a tribunal-appointed interpreter, and not to be considered as associated with either party to the appeal in any way. The interpreter is neutral and, in effect, part of the tribunal as is the clerk. A failure of interpretation must therefore affect the fairness of the tribunal hearing. This is the first case where I have heard of a specific challenge to an interpreter’s competence. But as it was made it should have been dealt with expressly and the decision of the chairman recorded.
12 The record of the hearing is silent on the issue. There is no record of the complaint. Nor is there any indication that the interpreter was asked about the problem or whether there was any factual exploration of the differences between the dialect spoken by the claimant and that spoken by the interpreter. Having once had to “interpret” the spoken English of a Queensland colleague from Australian English to British English over several days, so that it could be further interpreted by a professional interpreter into Czech, I do not underestimate that problem.
13 I do not accept that it is adequate to establish a fair hearing that the tribunal concluded that it had “sufficient understanding”. Where the Appeals Service has appointed an interpreter, the claimant is entitled to expect the questions to her, and her evidence in reply, will be interpreted professionally. If the interpreter is showing signs of “indifference” (to quote the chairman) then it is the chairman’s task to deal with that. In this case the representative did what should have been done, namely to draw the problem to the attention of the chairman during the hearing. The issue should then have been investigated and appropriate decisions made. Perhaps, for example, the daughter could have helped or an agreement reached about proceeding. The chairman took no action. I must set aside the decision as a result."
CH 4972/2002
"11 I do not need to deal with any other aspect of the decision or appeal. However, I note that there was some dispute about the evidence and forms of evidence before the previous tribunal. The appellant now has a chance to obtain any necessary translations and clarifications he may think necessary to put the full evidence before the new tribunal. I direct that he do so as soon as possible, and not later than six weeks from the date of issue of this decision."
The Occupational Pension Schemes (Disclosure of Information) Regulations 1996
1996 No. 1655 includes
"(4) Any document of which disclosure is required by paragraph (1) which is not in the English language shall be accompanied by a translation in that language."
You might risk the argument that the absence of a similar provision elsewhere in Social Security law is intentional.
The HB Guidance Manual says in Part C7 Annex D (People from abroad)
"6 Photocopies of any documents should never be accepted unless provided by Jobcentre Plus as copies of documents examined by them. Documents not in English may need to be translated."
(nb, it doesn't suggest by whom and isn't matched by anything I can find in the regulations)
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