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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> MacCarthaigh v. Minister for Justice, Equality and Law Reform & Ors [2002] IEHC 149 (14 April 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/149.html Cite as: [2002] IEHC 149 |
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BETWEEN
APPLICANT
RESPONDENTS
Judgment of Mr. Justice Finnegan delivered on the14th day of May 2002
The Applicant was charged with another person and it was alleged against him -
(1) That he did on the 28th May 1990 at Swords Road, Corballis within the Dublin Metropolitan District rob one John Nelson of assorted chocolates, sweets and confectionery to the total value of £11,252.50 contrary to section 23 of the Larceny Act 1916 as amended by the Criminal Law (Jurisdiction) Act 1976.
(2) That he did on the 28th May 1990 at Swords Road, Corballis within the Dublin Metropolitan District by threat or force unlawfully seize a vehicle to wit motor vehicle 89D 29349 contrary to section 10 of the Criminal Law (Jurisdiction) Act 1976.
(3) That he did on the 28th May 1990 at S Henrietta Lane, Dublin in the Dublin Metropolitan District receive assorted chocolates, sweets and confectionery to the total value of £11,252.50 property of John Nelson knowing the same to have been stolen contrary to section 33(1) of the Larceny Act 1916.
The trial of the Applicant was delayed pending determination of an application by him for Judicial Review in which he sought the following reliefs -
(1) An Order of Prohibition directed to the Director of Public Prosecutions preventing him proceeding with any trial of the Applicant except before a jury having the capacity to understand the Irish language without the assistance of an interpreter.
(2) An Order of Mandamus directed to the Director of Public Prosecutions requiring him to empanel a representative jury to ensure that the Applicant will have a trial according with the requirements of justice.
(3) A Declaration that the Applicant is entitled to a jury excluding from its make up incapable members as referred to in the Jurys Act 1976.
Relief was refused in the High Court (O'Hanlon J) and in the Supreme Court.
Thereafter when the trial came on before the Circuit Court the same was again stayed pending the present application for Judicial Review.
On this application the Applicant seeks the following reliefs -
(1) An Order of Certiorari quashing the Order of the Learned Circuit Court Judge in which he held that an accused person did not have the right to have a transcription taken of proceedings at his trial as spoken.
(2) An Order of Mandamus directed to the first named Respondent and the second named Respondent –
(a) Directing the provision of a satisfactory recording system for the trial of the Applicant and/or
(b) Directing the provision of an effective simultaneous translation system which would not interfere with the speeches and submissions of Counsel and would facilitate the conduct of the trial.
(3) An Order of Prohibition restraining the trial of the Applicant before the Dublin Circuit Criminal Court on Bill No. 333/92 until there is provided –
(a) A satisfactory recording system and/or
(b) A simultaneous translation service.
Insofar as the reliefs sought at (1), (2)(a) and (3)(a) above are concerned there is now available for use in the Circuit Criminal Court and there will be available at the trial of the Applicant a Lanier System which complies with the Criminal Justice (Miscellaneous Provisions) Act 1997 section 7 which substituted a new section 33 for that in the Courts of Justice Act 1924. The Courts of Justice Act 1924 now reads as follows -
"33(1) The appeal, in cases where such certificate or leave to appeal is granted, shall be heard and determined by the Court of Criminal Appeal ("the court") on-
(a) a record of the proceedings at the trial and on a transcript thereof verified by the judge before whom the case was tried, and
(b) where the trial judge is of opinion that the record or transcript referred to in paragraph (a) of this subsection does not reflect what took place during the trial, a report by him as to the defects which he considers such record or transcript, as the case may be, contains with power to the court to hear new or additional evidence and to refer any matter for report by the said judge.
(2) Where the court is of opinion that either the record or the transcript thereof is defective in any material particular it may determine the appeal in such manner as it considers, in all the circumstances, appropriate.
(3) In this section "record" includes in addition to a record in writing
(a) shorthand notes or a disc, tape, soundtrack or other device in which information, sounds or signals are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in legible or audible form,
(b) a film, tape or other device in which visual images are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in visual form and
(c) a photograph ".
In addition the Lanier System is in compliance with the Rules of the Superior Courts Order 86 Rule 14. I am satisfied that the provision of a transcript by means of the Lanier System and the official stenographer's transcription thereof satisfies the requirement of the Applicant that a transcript of the proceedings in the Circuit Court as spoken will be available for the purposes of any appeal. Accordingly I refuse to grant to the Applicant the relief which he seeks at (1), (2)(a) and (3)(a) above. However I accept that the system made available to the Applicant at his trial on the 24th January 2000 was inappropriate and inadequate and did not adequately safeguard his rights. The stenographer provided was unable to take a shorthand note of evidence given in Irish but proposed taking the note in English and the effect of this is that the transcript would reflect the translation of the evidence, speeches and submissions as opposed to the evidence given and speeches and submissions made in Irish. Such a system fails to recognise the provisions of the Constitution Article 8 and the special status of Irish as the first official language and the entitlement of the Applicant to conduct his defence in the Irish language that being his preference. See Mercure v Attorney General v Saskatchewan f!988) SCR 234 at 237 where similar considerations arose in Canada –
"Finally, when proceedings are required by law to be recorded, a person using one or the other official language has the right to have his remarks recorded in that language ".
See also The State (MacFhearraigh) v MacGamhnia LR. Special Reports 1980 - 1998 p. 99,
The Applicant's second complaint is that the system adopted by the Circuit Criminal Court (as indeed by all other courts in this jurisdiction) whereby an interpreter is sworn who translates for the benefit of the parties, counsel, the trial judge and other persons interested who do not understand Irish is a contravention of his rights. In short this system entails a question being asked and translated either in its entirety or in several separate stages and likewise the answer to that question. Speeches of counsel and submissions are dealt with in a similar manner.
la MacCarthaigh v Ireland LR. Special Reports 1980 - 1998 at 105 O'Hanlon J. at 133 accepted that Mercure v Attorney General v Saskatchewan corresponds with his decision in The State (MacFhearraigh) v MacGamhnia as to the status of the Irish language. In The State (MacFhearraigh) v MacGamhnia O'Hanlon J. considered the provisions of the Constitution Article 8 and the relevant jurisprudence and derived the following three principles from the same -
"(1) When a case has to be heard before the courts or before any tribunal having power according to law to make orders affecting the personal or the property rights of the parties coming before it, it is the right of each party coming before the court or the /ridunal to put its side of the case in the Irish language, if it so desires, and to present evidence through the Irish language to the court or the tribunal. If it happens that the other party has not sufficient knowledge to understand the evidence, then an interpreter ought to be appointed to translate whatever is said or written in the Irish language.
(2) It is not the Junction of the court or of the tribunal to enquire if the person wishing to make use of the Irish language has knowledge of the English language - he has a right under the Constitution to choose the first official language if he so wishes until the opposite is provided by law respecting one or more official purposes throughout the State or in any part thereof. This means that a person who is fluent in the English language has the same right as the person born and reared in the Gaeltacht and who has no knowledge at all, or inaccurate knowledge of the English language. Frequently it could happen that the proceedings of the court or of the tribunal would be delayed where it required that the case in whole or in part be heard through the medium of the Irish language and this would add to the costs of the proceedings were it necessary to appoint an interpreter, but those difficulties must be endured in order to act in a constitutional manner. The Oireachtas may make a different arrangement according to law should it so decide regarding any official purposes throughout the State or in any part of it.
(3) At any time that a party wishes to argue its case to the court or the tribunal whether by way of advocacy, through the giving of evidence, through the questioning or cross examination of witnesses, lam of opinion that it is the right of that party under the Constitution to do all of that in the Irish language should he so desire ".
The system of translation adopted by the courts where evidence in Irish requires to be translated creates a difficulty. In MacCarthaigh v Ireland 1980 - 1998 LR. Special Reports at 139 Hamilton C.J. referring to these difficulties quotes from Vanderbilt Law Review (1993) Vol 46 p!75 at 177 where Michael Shulman deals with the difficulties as follows -
"When a defendant testifies in a criminal case his testimony is critically important to the judge's determination of his guilt or innocence. The first noticeable difficulty in the present system of court interpretation is that non English speaking defendants are not judged on their own words. The words attributed to the defendant are those of the interpreter. No matter how accurate the interpretation is, the words are not the defendants, nor is the style, syntax or the emotion. Furthermore some words are culturally specific and, therefore, are incapable of being translated. Perfect interpretations do not exist as no interpretation will convey precisely the same meaning as the original testimony. While juries should not attribute to the defendant the exact wording of the interpretation and the emotion expressed by the interpreter they typically do just that...
Given that juries often determine the defendant's guilt or innocence based on small nuances of language or slight variations in emotion, how can it be fair for the defendant to be judged on the words chosen and the emotion expressed by the interpreter"?
Hamilton C.J. went on to say of that quotation -
"That is true enough, but it must be said in today's Ireland there is no better solution available ".
The Applicant here says that there is a better solution available which was not considered by the Supreme Court in MacCarthaigh v Ireland - simultaneous translation. Simultaneous translation is a solution widely availed of at conferences where more than one language is in use and in international courts - the ICTY and the ICTR, the European Patent Court, the International Tribunal for the Law of the Sea, the International Court of Justice, the ECHR and the ECJ. In general these bodies however in their proceedings and procedures are more akin to our civil rather than our criminal courts.
The ICTY on occasions requires that witnesses be protected and initially this was achieved by screening them from all eyes. However it was quickly realised that facial expression and body language are an essential part of the evidence and so a means was found to ensure that protected witnesses are visible to the interpreters at all times: this court recognised, as did Michael Shulman, that facial expression and body language are an essential part of the evidence and ensured that it was available to the interpreter. Clearly simultaneous translation saves court time but this must not be a primary concern. Simultaneous translation also has defects. Assuming a highly experienced, well prepared interpreter a translation will be delivered almost simultaneously. However there will be inevitably some delay between a witness's spoken words and the translation and a jury or indeed a judge because of this delay may associate the facial expression or body language displayed by a witness with the evidence then being translated rather than the evidence being given at that time which will be translated very shortly afterwards. It seems to me that this problem does not arise where as is the present practice evidence is translated sentence by sentence or in short passages. Again a simultaneous translation requires the interpreter to respond in real time and does not afford the opportunity of going back over past words in order to revise them which opportunity is available at the more measured pace of sequential translation. This difficulty is recognised by ICTY where there is in place a procedure for checking interpreted evidence before it is relied on. Further the reliability of simultaneous translation is greatly enhanced if the interpreters have made available to them in advance of the hearing the relevant papers in sufficient time to allow for preparation. A defendant in criminal proceedings might well prefer not to provide information to an interpreter to enable him to prepare appropriately.
Interpretation has become increasingly important in international courts but also in domestic tribunals throughout Europe. In 1999 the Council of Europe carried out a monitoring exercise of interpretation in courts of member states: the report is confidential and is not being published. The European Court of Human Rights considered interpretation in v Austria (9/1988/153/207). There have been a number of international conferences since 1998. Fair Trials Abroad Trust was funded by the EU to research the issue in individual national legal systems and that research has been published. The emphasis throughout has been on the need for accuracy and hence the proper training and preparation of interpreters rather than on the method of interpretation whether simultaneous or sequential.
Insofar as Counsel's arguments and submissions are concerned the disadvantages which I perceive as attending the interpretation of evidence do not apply. However if an interpreter is to furnish an accurate, simultaneous translation of arguments and submissions it appears to be widely recognised that the interpreter should be furnished with the relevant papers and if possible skeleton arguments. This is not appropriate to a criminal trial it seems to me insofar as the Defendant is entitled to reserve his position. Again a Judge not familiar with the Irish language and so requiring a partial or indeed a complete translation will not be disadvantaged in his ability to understand arguments and submissions whichever method of translation is used: if in doubt at any point he can ask that an argument be repeated: jurors are unlikely to do so.
Having carefully considered the matter I am not satisfied that the interest of justice can be better served by a simultaneous translation than it is served by the sequential translation which is at present utilised. In these circumstances I refuse the Applicant the relief which he seeks in this regard.