Taking statements from multilingual witnesses

Zoe Vallance analyses changes to statements from witnesses whose first language is not English

The 113^th update to the Practice Direction Amendments had introduced important changes to witness statements taken from foreign witnesses. Taking effect on 6th April 2020, the Practice Direction 32 was updated, making several key changes to the required content of witness statements taken from witnesses who speak a language other than English.

The most recent requirements for such witness statements are numerous. Among the leading changes are that they must:

• be drafted in the witness’ own language.
• state how the statement was taken (by telephone, face to face or through an interpreter).
• the party wishing to rely upon the statement must have it translated and the original witness statement must be signed by the translator who must certify that the translation is true.
• state the date of the translation.

Where my clients' or witnesses’ first language has not been English, I've found that they will have good conversational English but their written English might not be to the same standard. There may be nuances in the English language that can become lost in translation when the witness is reading and signing a statement. The changes to the Practice Direction are therefore necessary to ensure that the witness has a full understanding of the evidence before signing a statement of truth.

Currently, the changes to the Practice Direction seek to highlight the importance of obtaining reliable witness evidence and to provide clarity surrounding the circumstances in which the evidence is obtained. Yet with some gaps in the legislation, the current rules do raise a number of issues that need to be considered by legal representatives when preparing the statements.

Implications

Typically, when preparing witness statements for court, the legal representative will have two options. Firstly, they can either met face to face with the witness; secondly, they might also arrange a telephone conversation to take the statement.

The legal representative would include these discussions in a draft statement on behalf of the witness which would then be sent out to the witness for review and approval. It is not uncommon for multiple drafts to circulate before the final statement is approved. It is therefore important that the witness considers the statement carefully and that any necessary amendments are made. This can be a lengthy process.

With the requirement for the statement to be drafted in the witness’ own language, this process can take significantly longer, while there is also the possibility of increased costs.

Ultimately, the best practice would be for an interpreter to be instructed from the outset to assist with the meeting where the witness is giving their evidence. The interpreter can assist with translating the questions and provide the legal representatives with the witness’ answers.

However, the legal representative will still need to draft the statement in English. In order to comply with the changes to the CPR, the draft witness statement will need to be translated into the witness’ first language before being provided to them for review and approval. If there are any final changes to be made to the statement, then an additional meeting may need to be arranged with the translator so that the amendments can be discussed and additional evidence obtained.

Following this meeting, the legal representative will need to make the necessary amendments to the English draft before having this translated by the translator for review/approval by the witness.

For the purposes of Practice Direction 32, the signed statement in the foreign language now becomes the 'original statement'. Practice Direction 32 then requires the foreign language statement to be translated back into English with the translator required to sign the 'original statement' and to certify that the translation is accurate.

Despite the fact that the translator may have completed the original translation from English into the foreign language, the translator will need to translate the foreign language statement back into English in order for them to comply with the requirement to sign the original statement as being translated and accurate. The translator will also need to date the original statement with the date they translated the statement.

In practice, this process will include multiple fees being incurred for the interpreter’s work, thus being a leading factor that adds to the increased costs.

It would therefore be important to consider the increased costs for preparing the statement as well as the requirement for disbursements to allow for the interpretation and translation of the witness statements. Additionally, legal representatives will need to consider the costs involved when preparing their cost budgets ahead of a Costs and Case Management Committee (CCMC), and during each phase of the budget, to minimise any dispute in relation to the costs on conclusion of the case.

Multilingual witnesses

At the time of writing, there is no specific guidance in relation to a witness who is bi-lingual or multi-lingual and whether they are still required to provide their statement in their native language. It would be best to approach this issue with common sense.  If the witness is able to understand written and oral English language to a satisfactory standard, then it may not be necessary to arrange for the statement to be taken with an interpreter and prepared in their own language.

A reasonable consideration would be whether you would arrange for an interpreter to assist the witness to give evidence at trial. If there were any lingering doubts on whether the witness would be able to fully comprehend questions under cross-examination and give clear and details responses, then you should consider preparing their witness statement in their first language.

If you consider the witness can give clear and detailed oral evidence with the ability to understand all the nuances of cross-examination, then it's sensible to allow the witness to give a statement in English.

Going forward, the changes to the CPR are necessary but in practice the procedural steps to be taken are onerous and should be considered at each stage of the proceedings. Practitioners should also use their own judgement in a case-by-case basis, such as whether to include using an interpreter or not.  

Zoe Vallance is a serious injury lawyer at Irwin Mitchell irwinmitchell.com