Cross-examining translators (Kimathi v FCO)

8705469_xlThe Queen's Bench Division has dismissed the defendant's application that translators of the claimants' foreign language witness statements be required to attend court for cross-examination. In doing so, it found that any power to make such an order existed under its general case management powers (CPR 3.1(2)(m)) as opposed to under Part 32 of the CPR. This decision is also interesting in its consideration of the distinction between translators of witness statements and interpreters for witnesses giving oral testimony. It also offers some practical tips for practitioners with concerns about the reliability and/or accuracy of translated witness statements.

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What are the practical implications of this case?

Practical implications arising from this judgment include:

  • ensure any concerns you may have about the translation of any witness statement are put to the relevant witness and/or their interpreter during their oral testimony—failing to do so is not a basis on which to seek an application to cross-examine the translator of that witness' witness statement(s)
  • consider other ways in which any concerns about the accuracy and/or reliability (including where there are inconsistencies) of translated witness statements can be addressed. These include:
    • requiring the translator to address any such issues in a witness statement or affidavit
    • addressing such issues in closing and/or other submissions
    • requiring the translator to provide information about their experience or qualifications (even though this is not required under CPR 32 or CPR PD 32 and, more particularly, CPR PD 32, para 4.1)
    • addressing the court on the basis that it is the oral response which should prevail. Note: this can only be done to the extent that such concerns, discrepancies, etc were put to that witness when they gave their evidence (as to which, see first bullet point above)

What was this judgment about?

The defendant sought an order that translators of the claimants' foreign language witness statements be required to attend court for cross-examination. It contended the purpose of its application was for it and the court to:

understand the process by which the documents were created and make judgment as to the reliability and accuracy of the documents in portraying the true account of the witness.

Note: in this case, the translators of the witness statements were not the same people as those who had interpreted for the witnesses in their oral testimony.

What did the judge decide?

The court found there was no entitlement to cross-examine the translators of the witness statements under CPR PD 32, para 23.2, CPR 32.2(1), CPR 32.5 or CPR 32.7 (paras [4]–[9]).

As such, any power to make such an order fell under the court's general case management powers pursuant to CPR 3.1(2)(m) and therefore fell to be determined by reference to case management principles and furthering the overriding objective.

This fact specific decision indicates, among other things, that in determining such an application, the court will consider:

  • the principles of case management
  • the proportionality of allowing such cross-examination. Here, it was estimated that to cross-examine the various translators of the various foreign language witness statements would take an additional week and a half at trial, with attendant costs, and that:

'any benefit accruing to the court from hearing translators is not a proportionate benefit in terms of time and cost'

(para [52(iii)]—see Cross-examining translators (Kimathi v FCO) — What are the practical implications of this case? as to the alternative ways in which the court suggested the various concerns raised by the defendant could be addressed

  • the overriding objective. Here, the court considered that, even if it were wrong that CPR 32.2(1) does not apply 'with full force to the translators', it ought to exercise its discretion so as not to order the cross-examination of the translators in accordance with the overriding objective pursuant to CPR 32.2(2)(b) or CPR 32.5(1)—see Practice Notes: Witness evidence—choosing witnesses and Witness evidence—giving evidence at trial
  • the justness of ordering the cross-examination of translators of witness statements
  • the various concerns raised by the applicant cumulatively as well as individually. Here, even when considering all the points together, 'the exercise of my discretion in giving effect to the Overriding Objective is still against allowing the application' (para [50])

Further guidance

See Practice Note: Difficulties when interviewing witnesses — Non English speaking witness.

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