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English courts: Statements of truth and foreign language speakers

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Contributor
chiefofficersnet

English barrister Abigail Holt explains important changes in what used to be called "affidavits" and are now termed "statements of truth." The changes appear in a practice direction published 6 April 2020. Holt also looks at some of the practical problems that arise when taking statements from those for whom English is not a first or even second language.

In relation to non-English “foreign” language and process, the 113th amendment creates changes at Practice Direction 32:

https://www.justice.gov.uk/cou...

PD32 para 18 says that the witness statement must, if practicable, be in the intended witness’s own words and must in any event be drafted in their own language and the statement should be expressed in the first person.

PD32 para 23.2 says that where a witness statement is in a foreign language, the party relying on it must have it translated, file the foreign language witness statement with the court, and the translator must sign the original statement and must certify that the translation is accurate.

The above Practice Direction requires these very clear steps to be taken and it is obvious that there will be very serious consequences if the provisions are not adhered to.

It should also be noted that Practice Direction 32 at para 18.1 states that, not only should any witness’s statement by in their own language. It must, if practicable, be in the intended witness’s own words.

It is unclear what “if practicable” means in this context when there is no such thing as direct word-for-word translation (eg Latin-origin languages use the subjunctive tense to communicate degrees of nuance, whereas English only has a hint of subjective and uses different vocabulary and forms of words to give important detail instead). This, therefore, will give those drafting statements on behalf of clients yet more practical challenges regarding drafting witness statements that are concise, stick to the point and explain evidence in a thorough and logical manner, without the drafter inadvertently changing the content of evidence or giving unintended emphasis to part of it. In truth, I think that Judges and opposition parties would complain, not least from a costs perspective, if witness’s statements started communicating in the unstructured, slightly disorganised and often emotional way that litigants and witnesses communicate about legal problems serious enough to warrant witness statements.

These amendments to the Practice Directions are not mere “best practice” and so should focus minds. I emphasise this because I have frequently come across witness statements being tendered by individuals who require an interpreter at Court for a final hearing, but who have not provided a witness statement in their own language and where even the English language version of the witness statement does not contain a translator’s statement of truth to show that it has been read to them in a language that the witness understands. Even more glaring, sometimes the signed statement of truth is on a last, separate piece of paper unconnected to the rest of the witness statement and such witnesses sometimes frankly admit that they have never seen the body of the final, typed, witness statement! They frequently say that they gave their instructions to their solicitors and were emailed/faxed only the bit that they had to sign! A Judge is likely to pick up on this because the faxed or PDF-ed signature page often looks visually different to the rest of the witness statement so they are likely to guess what has happened, with concomitant suspicions about the quality and reliability of the evidence contained in the body of the witness statement.

When this issue is explored, often the innocent explanation is that the litigant’s solicitor speaks the witness’s mother tongue (often an influencing reason why they sought the help of the solicitor in the first place) and that the witness has trusted them to reflect their instructions in English when the formal witness statement was drawn up. The witness, however, does not understand the importance that the final draft of the witness statement is read to them in their language before they sign the statement of truth at the end. This, obviously, has potentially serious consequences if cross-examination reveals inconsistencies in the witness’s evidence which engages the accuracy of the written witness statement.