Taking statements from multilingual witnesses

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.