Excess Alcohol and Failing to Provide – Language Barriers

If a suspect fails to understand the police station procedure concerning breath tests correctly, this may amount to a reasonable excuse if the suspect fails to provide a specimen of breath.

Also, as a matter of law, the implications of such a refusal must be explained to the suspect and understood by her. Any default in this regard will be fatal to the prosecution (s 7(7) RTA 1988).

This issue was considered in Bielecki v Director of Public Prosecutions [2011] EWHC 2245 (Admin) a case where it was alleged that B did not understand the procedure.

The interpreter was not called to give evidence, and the defence argued that:

“…this was a lacuna in the evidence for which the Respondent was responsible since the onus of proof was on the prosecution. It was, [Counsel] suggested, for the Respondent to say that it needed the interpreter to be present and not for the Appellant. Wherever the responsibility lay, she said, the absence of the interpreter made it impossible for the justices to conclude so that they were sure (a) that the requirements for the specimens were made properly and/or (b) that the Appellant understood the requirements and the consequences of not providing the specimens.”

The court rejected this argument in the following terms:

“The short issue is whether the justices were entitled, as they must have been in the absence of any direct evidence from the interpreter, to infer that what was said by Sergeant Cart to the Appellant (they being satisfied so that they were sure that Sergeant Cart had indeed made the relevant requests in English) had been translated properly by the interpreter and understood by the Appellant. As I have indicated, [Counsel for the Appellant] says that no such inference was permissible and that the justices needed to hear direct confirmation from the interpreter before being able to come to that conclusion.

[The Respondent] submits, however, that they were entitled to draw that inference so that they could be sure that the words were spoken and that they were understood. As juries are told on a daily basis, an inference is nothing more than a common sense conclusion based upon the evidence that is otherwise accepted. The justices plainly accepted Police Sergeant Cart’s evidence, supported by PC Ward, that she made the appropriate requests for the specimens notwithstanding that she failed to put a circle around the “yes” or “no” to record the first answer on the MGDD/A form at section A14. They must have accepted her evidence, supported by PC Ward, that she heard the accredited interpreter say things in a foreign language to the Appellant after she had made the requests. Whilst she was in no position to say (and did not seek to suggest) that what she had said had been translated accurately by the interpreter, it was to my mind, certainly a legitimate inference for the justices to draw that the words had been translated accurately. As [the Respondent] says, there was some other evidence that suggested that the Appellant understood what the interpreter was saying to him and translating on his behalf. There was, he said, no evidence that the interpreter suggested to the police that the Appellant was not understanding what was being said. Equally, there was no evidence that the police officers did not understand the English that the interpreter was speaking.

All these factors go to support, in my judgment, the drawing by the justices of the inference to which I have referred.”

This judgment has implications for the defence in that any alleged defect in the procedure will need to be put in issue. In being satisfied in the present case that the conviction was safe the court held:

“I do not see that there is anything in the ruling that negates the proposition that a court may draw the inference, if the evidence supports it, that someone being asked to do something in a police station by a police officer with the assistance of an accredited interpreter of the relevant language has been asked the correct question, understands it and also the consequences of not responding to it. Here there is no evidence at all that the interpreter, for example, said to the officers “I am sorry, but he does not understand what you are asking him to do”. If that had been said, one could see that concerns might arise, but no such evidence was given and, as I have said, there was other evidence available to the justices that suggested that the Appellant knew and understood what was happening.”

It is, of course, worth noting that in the years that have passed since this judgment was handed down, police station procedure has changed in somewhat fundamental regard.

Interpreters are not now present at the police station and throughout the procedure, such assistance now routinely being offered by Language Line or similar services. The inferences that could safely be drawn in Bielecki are not available in most cases now coming before the courts (although of course there could be other evidence to support the inference).

Practitioners in this area, already aware on a daily basis of the shortcomings of court interpretation services, will, therefore, wish to examine in close detail what actually transpired between their client and the interpreter, and pay attention to whether a simultaneous interpretation was being conducted, or whether the interpreter was attempting to deliver instruction previously directed by the police.

Andrew Keogh, Barrister