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English courts: Statements of truth and foreign language speakers

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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.

So, to return to the issue of witnesses who are bi- or multi-lingual, and how to approach the language of their witness statement, there does not seem to be any guidance as to which language they should choose to draft their statement in. However, as a matter of common sense and practicality, if an individual who does not speak English as their first language chooses to write an (obviously untranslated) English language witness statement, then the Court will expect them to speak English without an interpreter at a final hearing and, therefore, to understand all the nuances of cross-examination questions and be able to respond in a clear and detailed manner, for example using all the tenses of verbs correctly and with a wide vocabulary. Conversely, if someone needs to use a language other than English in a witness statement, then a translator needs to be organised to translate their evidence in their witness statement which needs to be read back to them in English by an interpreter at the time they sign the statement of truth. Further, an interpreter needs to be arranged for any court appearance where the witness gives evidence. Although it takes longer, the witness should stick to their own language whilst giving oral evidence to ensure the best quality of their evidence.

I would strongly advise lawyers not to get involved in translating witness statements of their own clients nor to interpret documents back to the client, so as to avoid any suspicion or direct accusation of influencing the witnesses evidence, particularly given the now very clear warnings about contempt.

Finally, where a witness is so proficient in more than one language but English is not their first or “mother tongue”, which language should they choose? As a matter of practicality and communication they should choose the language in which they can explain their problem fully and respond to searching questions. As a matter requirements of the law, they must be able to be confident that their evidence is “true” (or believe it to be true) in whatever language.

If there ever was, there is now no wriggle room. The Manuels of the Fawlty Towers era can no longer claim that they do not understand because they are from Barcelona!

 

Abigail Holt may be contacted here.