Response to Home Office consultation “Revised PACE codes of practice: C and H”

The Home Office
By email to pacereview@homeoffice.gsi.gov.uk

24 September 2013

Response to the open consultation “Revised PACE codes of practice: C and H”

Dear Sir or Madam,

I am writing on behalf of the Society of Official Metropolitan Interpreters UK Ltd (SOMI UK). Please consider our response below in conjunction with that of the Joint Professional Interpreters for Justice (PI4J) of which we are a party.

All our members are official Metropolitan Police interpreters. Under the National Agreement on the use of Interpreters in the Criminal Justice System (NA), we are required to be on the National Register of Public Service Interpreters (NRPSI) or the National Registers of Communication Professionals working with Deaf and Deafblind People (NRCPD). We are vetted to CTC level or above by the Metropolitan Police Service (MPS). We are all professional interpreters with academic qualifications and proven experience of interpreting within the criminal and civil justice systems.

The comments below concern the Home Office consultation on the proposed changes to the PACE codes of practice C and H4 which aim to implement the EU Directive on the right to interpretation and translation in criminal proceedings, and in particular the ‘Notes for Guidance 13A” copied below.

Notes for Guidance
13A Chief officers have discretion when determining the individuals or organisations they use to provide interpretation and translation services for their forces provided that the services which are provided satisfy the requirements of the Directive. One example would be the Ministry of Justice Framework Agreement for interpretation and translation services. Whenever possible, interpreters should be provided in accordance with national arrangements approved or prescribed by the Secretary of State.

We strongly object to the following points:
• the inclusion in PACE of the Ministry of Justice Framework Agreement as an example of services provided that satisfy the requirements of the Directive
• the deletion of the sentence stating that wherever possible, interpreters should be provided in accordance with national arrangements approved or prescribed by the Secretary of State.

It is our contention that (i) the Ministry of Justice Framework Agreement in PACE should not be cited as “an example of services that satisfy the requirements of the Directive” for the reasons explained below, and (ii) that the national arrangements approved or prescribed by the Secretary of State should not be removed from PACE as this is counterproductive and not in the interest of justice.

An essential pre-requisite to achieving justice is reliable communication provided by qualified professional legal interpreters and translators, who are an essential resource which ensures that justice and human rights are upheld.

The introduction of the tier system by the Ministry of Justice Framework Agreement has profoundly compromised the quality of service provided to the police and court services, and constitutes an unacceptable lowering of the standard required for interpreting in the Criminal Justice System. It does not satisfy the requirements of the EU Directive and is resulting in costly delays, collapsed trials and may lead to miscarriages of justice.

This is evidenced extensively in the reports of the National Audit Office, the Public Accounts and the Justice Select Committees, and the Parliamentary Debate that followed, as well as in the stream of national and international articles published in the media since 30 January 2012, when the Ministry of Justice Framework was introduced (see Professional Interpreters for Justice and RPSI Linguist Lounge). The vast majority of our qualified public service colleagues have not and will not register with the Ministry of Justice Framework Agreement.

A more suitable example would be the Metropolitan Police Service, which has made substantial savings since the introduction of their Language Programme in 2009, through efficiency and technology, whilst maintaining high standards of quality. Last year’s spending on Language Services was reduced to 2004/5 levels (please see below chart).

An appropriate and professional interpreting service upholds both the suspect’s and the victim’s ECHR rights, and the MPS, through Language and Cultural Services and its Language Programme, ensures that all Victims and Witnesses – which constitute about 35% of LCS use – are afforded equal access to the highest levels of linguistic support.

It is noteworthy that court interpreting is mainly held in public and open to scrutiny by interpreters, official bodies and the public alike and therefore misinterpreting can be readily detected and nipped in the bud. However, police interpreting by nature is held in private and misinterpreting can only be detected at a later stage, for example, when the case goes to solicitors or in court. Therefore, a different approach to the FWA should be applied.

We assume that ‘the national arrangements approved or prescribed by the Secretary of State’ proposed for deletion in the draft PACE refers to the National Agreement (NA), which was introduced to address concerns raised by Lord Runciman with regards to the difficulty of obtaining good quality interpreters in his Report to the Royal Commission on Criminal Justice in July 1993, and Lord Justice Auld’s Review of Criminal Justice in 2001. The NA is a safeguard to basic human rights and was put in place following the recommendations of Lord Justice Auld in order to ensure the right to a fair trial. In 2006 a Home Office Circular reinforced the importance of the NA and the quality of interpreting services, and subsequent amendments were made to strengthen it, ensuring only registered and qualified interpreters could practise in the Criminal Justice System.

Under the previous arrangements, interpreters used in criminal proceedings were primarily drawn from the NRPSI and the NRCPD, which ensured interpreters’ competence, reliability, accountability and security vetting by independently verifying their credentials and qualifications. These interpreters are bound by more stringent and robust codes of practice and conduct than those in the Framework Agreement.

Interpreters, the organisations representing them, and other professionals in Criminal Justice are also fearful of the consequences for Equal Access to Justice and Fair Trial for non-English Speakers, which may be put at risk if quality legal interpreting or translation is not provided. There are inherent dangers to the delivery of justice that can arise out of inadequate interpreting or complete failure to supply an interpreter at all. The potential cost due to failed prosecutions and appeals also cannot be underestimated.

It is often the victims that are overlooked in this and they too will suffer if the standards are dropped and quality is sacrificed for profit.

The only way to ensure quality of result for the victim and fairness for the perpetrator in any case is having good-quality interpreters, resulting in improved integrity of investigations and trials, better treatment of victims, witnesses and detainees, compliance with legal obligations, and good race relations.

Yours faithfully,

Klasiena Slaney
Company Secretary
For and on behalf of SOMI UK Ltd

Specific links for further information
1) National Agreement on the Use of Interpreters (NA)
2) National Register of Public Service Interpreters (NRPSI)
3) National Registers of Communication Professionals working with Deaf and Deafblind People (NRCPD)
4) Home Office consultation on the proposed changes to the PACE codes of practice C and H
5) RPSI Linguist Lounge and Professional Interpreters for Justice (PI4J)
6) Metropolitan Police Service opted out of the MoJ Framework Agreement
The Sunday Telegraph, MPS Language services costs 2012/13
MPS FOI, January 2013, Language services costs 2011/12
MPS FOI, September 2011, Expenditure on Interpreters and Translators for the past 7 years
7) In 2001 Lord Justice Auld made recommendations in respect of interpreting provisions.
Auld Recommendations (paras 276-286, pages 63-64)
8 ) Equal Access to Justice and Fair Trial for non-English Speakers

Metropolitan Police Language Services Cost – Savings achieved through the Language Programme
01/04/2004 – 31/03/2005 £7,599,844.00
01/04/2005 – 31/03/2006 £8,823,838.00 16.11
01/04/2006 – 31/03/2007 £9,881,520.00 11.99
01/04/2007 – 31/03/2008 £10,541,236.00 6.68
01/04/2008 – 31/03/2009 £10,897,315.00 3.38
01/04/2009 – 31/03/2010 £9,598,849.00 -11.92
01/04/2010 – 31/03/2011 £8,829,552.00 -8.01
01/04/2011 – 31/03/2012 £7,624,797.00 -13.64
01/04/2012 – 01/01/2013 £7,100,000.00
Reduction since 2008/9 £3,797,315.00 -34.85

Met HQ Commercial and Finance – Money spent on interpreters in the MPS in the past 5 financial years (to 2015)

2 Responses to “Response to Home Office consultation “Revised PACE codes of practice: C and H””

  1. Klasiena Slaney says:

    Thank you to everyone who has responded to this consultation – strength of feeling and unity of responses made a difference and the wording was amended to reflect this.
    Klasiena

    1. Procurement arrangements are left to the discretion of chief officers. Note 13A amended to make this clear.
    2. Details of the arrangements for the provision of interpreters and setting in the Criminal Justice System are outside the scope of the Code. Responses forwarded for the information of the Ministry of Justice

    http://www.policeoracle.com/news/PACE-changes-What-you-need-to-know-_72911.html
    PACE scholar Michael Zander looks at the changes taking effect on 27 October 2013.
    “There have been serious issues with regard to the provision of interpreter services. The Ministry of Justice wanted to give a monopoly to one organisation. Under the new rules chief officers are free to decide which individuals or organisations to employ.”

    https://www.gov.uk/government/consultations/revised-pace-codes-of-practice-c-and-h

    Consultation on PACE Codes C and H – response
    Published: 23 October 2013 PDF, 997KB, 34 pages
    https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/252316/A__B__C__E__F__H_PACE_Consultation_Response.pdf

    64. Sixteen separate responses – 5 from organisations involved in providing services, and 11 from individual interpreters.
    See ‘Response & purpose’ column. Code C Note 13A Code H Note 13A
    1. Requested that the Ministry of Justice Framework Agreement should not be cited as an example of arrangements which comply with the Directive. Some included detailed information about the Framework agreement to support this.
    2. Many asked that the deleted reference to national arrangements be reinstated.
    1. Procurement arrangements are left to the discretion of chief officers. Note 13A amended to make this clear.
    2. Details of the arrangements for the provision of interpreters and setting in the Criminal Justice System are outside the scope of the Code. Responses forwarded for the information of the Ministry of Justice
    Organisations within the Professional Interpreters for Justice (PI4J) including
    Association of Police and Court Interpreters (APCI)
    Chartered Institute of Linguists (CIOL)
    Institute of Translation and Interpreting (ITI)
    National Register of Public Service Interpreters Ltd (NRPSI)
    National Union of Professional Interpreters and Translators (NUPIT)
    Professional Interpreters Alliance (PIA)
    Society of Official Metropolitan Interpreters UK Ltd (SOMI)
    Society for Public Service Interpreting (SPSI)
    Wales Interpreter and Translation Service (WITS)
    Individuals: (initials only): AC, AN, IM, JC, JM, JP, KS, LRS, NK, SGT and TP

    26. Police – Gwent Chief Inspector Wales Interpretation and Translation Service (WITS)
    Code C Note 13A Code H Note 13A
    Concerned that citing the Ministry of Justice Framework Agreement of 2011 (MoJ FA) as an example of services that satisfy the requirements of the EU Directive, gives credence to a commercial contract which has been widely discredited.
    1. Suggest the reference be removed.
    2. Suggest deleted reference to national arrangements be reinstated.
    1. N 2. N
    1. Procurement arrangements left to the discretion of chief officers and selection processes are not affected. Note 13A amended to make this clear.
    2. Details of the arrangements for the provision of interpreters in the Criminal Justice System and setting qualifications & standards are outside the scope of the Code. Responses forwarded for the information of the Ministry of Justice.

    3.3 Key Comments and Home Office Responses

    3.3.1 General
    (a) The vast majority of comments related either to the proposed changes in relation to 17 year olds or those relating to the EU Directive on Interpretation and Translation. There were a few comments on other areas and three responses supported the change without comment.

    3.3.2 EU Directive on Interpretation and Translation
    (a) Some respondents did not support the reference to the Ministry of Justice Framework Agreement for Interpreter and Translation Services being included in Note for Guidance 13A as an example of services that meet the requirements of the EU Directive.
    Home Office Response:
    We have retained reference to the Ministry of Justice Framework Agreement on the basis that it is available to chief officers who have discretion when determining an operational matter such as the individuals or organisations they use to provide services for their forces. The comments offered by respondents have been forwarded to the Ministry of Justice for information.

    (b) A significant number of responses expressed concerns at the cost, time and additional work needed to produce copies of the essential documents2.
    Home Office Response:
    The Government is bound by EU Law to comply with the EU Directive so the modest resource implications highlighted would need to be met by forces. We estimate that the costs of translation are likely to amount to around £3.5m per annum which works out an average cost of just over £81,000 per force, although it is likely to be concentrated in the Metropolitan Police’s area.

    (c) The list of key documents should be more clearly defined.
    Home Office Response:
    We are content that the list provided at Annex M of Code C meets the requirements of the Directive. Decisions on whether or not to translate any additional documents would be an operational matter for the chief officer.

    (d) The Home Office should provide more guidance on what circumstances an oral translation as opposed to one in writing would be acceptable.
    Home Office Response:
    We will liaise with national policing leads to establish whether further guidance in this area is necessary. Oral translations should, however, be the exception, not the rule.
    Decisions on whether or not an oral translation would be sufficient are an operational matter and should be made on a case-by-case basis.

    (e) The requirement for written interview records to be created contemporaneously by the interpreter for the person to check and sign will create significantly delay and will impact upon the flow of an interview.
    Home Office Response:
    This applies only to interviews for which a written record is required and does not represent a change in current practice. Interpreters are already required to provide this so there is no extra burden.

    (f) The Home Office should provide translations of the essential documents in multiple languages, perhaps the same list as the Notice for Rights and Entitlements.
    Home Office Response:
    We are currently discussing with national policing leads the feasibility of providing standard translations of the commonly used forms in an appropriate range of languages.

    (g) Can a person be detained for the purposes of producing a translation?
    Home Office Response:
    The reasons under which an individual can be detained in police custody are set out in Part IV of PACE. There is no power to detain a person to complete and provide a written translation. We have added a note M3 to Annex M to clarify this.

    (h) Concern was raised over the implications for police forces in Wales with regard to the need for Welsh interpreters and translations.
    Home Office Response:
    New paragraph 13.1C inserted to make it clear that the Codes do not affect the application of Welsh Language Schemes by police and crime commissioners in Wales in accordance with the Welsh Language Act 1993

    4. Next Steps
    4.1 Following careful consideration of the consultation responses, the Home Office has finalised revisions to the six codes of practice. These revised codes have been laid before Parliament, along with the statutory instrument (SI 2013/2685) which will bring them into operation on 27 October 2013. Copies of the revised codes are being made available online at:
    https://www.gov.uk/government/collections/police-and-criminal-evidence-act-1984-pace-current-versions.

    4.6 There were also calls for the Government to provide a set of templates for essential documents translated into a range of languages in order to reduce the resource implications for individual police forces. We are currently working with police forces to establish the practicalities of doing so and develop solutions which minimise bureaucracy and burdens. We are also looking to include additional information in the Notice of Rights and Entitlements to explain this new requirement for detainees who require an interpreter.

  2. Klasiena Slaney says:

    https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/364680/2013_PACE_Code_C.pdf

    POLICE AND CRIMINAL EVIDENCE ACT 1984 (PACE)
    CODE C
    REVISED
    CODE OF PRACTICE FOR THE DETENTION,
    TREATMENT AND QUESTIONING OF PERSONS BY
    POLICE OFFICERS
    Commencement – Transitional Arrangements
    This Code applies to people in police detention after 00.00 on 27 October
    2013, notwithstanding that their period of detention may have commenced
    before that time.

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