Trial tainted by non-neutral interpreter, appeal court rules

A young woman accused of serious assault on an 86 year old man, failed to receive a fair trial where the complainer's evidence was given with the aid of a specialist interpreter who knew him well, the criminal appeal court has ruled.

Lord Eassie, Lady Smith and Lord Drummond Young quashed the conviction of Louise McDougall, who was found guilty at Dundee Sheriff Court on charges of statutory breach of the peace, assault to severe injury and permanent disfigurement of the complainer in his home, and attempting to pervert the course of justice. The accused had previously performed "sexual favours" for the complainer there, and claimed that on the occasion in question he had sexually assaulted and threatened her.

The complainer, who was profoundly deaf, had no speech and only basic sign language skills. For the previous 17 years he had been assisted and supported by a specialist interpreter trained and qualified in “minimal sign language”, Mrs Jennifer Ramsay. Before the trial the accused objected to Mrs Ramsay assisting the complainer to give evidence as, among other reasons, there was a "real risk" that her interpretation "will be influenced by her knowledge of the complainer and the police statement account that she has already heard from the complainer".

Other interpreters were available, who had no prior association with the complainer, though they did not have Mrs Ramsay's minimal sign language qualification. The sheriff however was not satisfied that there was a real risk of prejudice to the accused, while taking the view that there was a real risk to the interests of justice if the complainer's evidence was not properly interpreted and Mrs Ramsay was clearly the best person to achieve that. Any issue arising from her prior involvement could be dealt with in the course of the trial.

Lady Smith, delivering the opinion of the court, said this was not a case where there was no real alternative to using Mrs Ramsay’s services. While there was no suggstion that Mrs Ramsay 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."

Here the circumstances relied on did point to the presence of such a risk: it was impossible to rule out there being a significant risk of Mrs Ramsay's interpretation being affected by sympathy for the complainer, particularly once he was being subjected to cross examination. "It was a risk which did not, in the circumstances, need to be run", Lady Smith stated.

There was, a further problem of Mrs Ramsay being on the Crown list of witnesses, and the sheriff erred in dismissing that submission as being "not substantive". 

While the sheriff had considered Mrs Ramsay’s interpretation at trial to be of quality, this did not remove concern about the risk of prejudice. "Further," Lady Smith continued, "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."

Accordingly the court concluded that there had been a miscarriage of justice. It also refused a Crown motion for a fresh trial, as the Crown "were not without fault in this matter" and the accused had already spent some time in custody, and had given birth there.

Click here to view the opinion.