21 October 2015

You have the right to remain silent

How does a profoundly deaf man, with no speech and only basic sign language skills, give evidence in court? This was the difficult question undergirding the Court of Criminal Appeal's decision in McDougall v. HM Advocate, published today. Louise McDougall, 24, was indicted in the Sheriff Court, accused of threatening or abusive behaviour towards the 86 year old complainer, and an assault to his severe injury and permanent disfigurement with a fireside implement in his Dundee home. 

In response, McDougall told the police that it was the complainer who first sexually assaulted her and threatened her with a knife. The injuries inflicted on the old man, she said, were the result of legitimate self-defence. It was this allegation which gave rise to the third charge McDougall faced: that she had attempted to pervert the course of justice. The Crown argued this whole story was a tissue of lies and there had been no sexual assault. 

The complainer's evidence was clearly critical to the Crown's case. But how could he testify? It was proposed that the complainer's long-term companion interpreter, Jennifer Ramsay, should facilitate the presentation of his evidence to the court. Ramsay practised as a specialist interpreter in "minimal sign language", and knew the complainer very well.

Indeed, she'd had dealings with him for the last seventeen years, dealings which had only increased after a stroke in the spring of 2013, some months before the incident with the young woman occurred. This proposal was challenged by the defence, who argued that there was a "real risk of prejudice" if someone so personally close to the complainer was permitted to act in court as his sign interpreter and translator. 

Evidence was taken, during which it was revealed that there were a number of alternative interpreters available, but "there had been no attempt by the Crown to seek or to instruct any interpreter other than" Ramsay. Nevertheless, the sheriff concluded that she was "not satisfied that there was a real risk of prejudice" to the accused and a "real risk to the interests of justice" if the complainer's "evidence was not properly interpreted." Ramsay, concluded the sheriff, "was clearly the best person to achieve that." 

You may sympathise with this assessment. Taking the complainer's impairments into account, someone with an intimate knowledge and experience of interacting with him may well be best placed to comprehend, decode and relay the significance of his gestures. But there remained a nagging doubt. Was Ramsay too close to the fray? Too personally involved with the complainer? Even if she did her very best to be cool, impartial, and to interpret the complainer's testimony in an unbiased way, could she avoid human sympathy for the complainer? Even unconsciously?

And as Ramsay herself recognised in evidence, it would not "be impossible for another interpreter to interpret for the complainer so long as that interpreter was able to spend a couple of hours with him beforehand, to become familiar with what was, in his case, required." The Appeal Court thought not. Quashing McDougall's conviction on grounds that a miscarriage of justice had occured, Lady Smith concluded that:

[13] The issue for the sheriff was whether, if Mrs Ramsay acted, there was a significant risk of prejudice to the appellant. In the circumstances, the question whether there would be apparent bias if Mrs Ramsay’s services were used was of central importance. The point was not whether or not Mrs Ramsay would in fact be deliberately biased; no one suggested that she would be deliberately biased. Partiality may, however, be conscious or unconscious and a trial can be rendered unfair by the presence of partiality, whatever its source and whether actual or apparent. If the circumstances are such as would lead a fair minded and informed observer to conclude that there is a significant risk of partiality then it will be difficult to resist the conclusion that a trial conducted in the presence of such circumstances cannot be a fair one.  
[14] All the circumstances relied on by counsel for the appellant did, we agree, point to the presence of such a risk. The length and nature of the association between Mrs Ramsay and the complainer and her knowledge of the line adopted by him at the earlier police interview made it impossible to rule out there being a significant risk of her interpretation being affected by sympathy for him particularly once he was being subjected to cross examination. It was a risk which did not, in the circumstances, need to be run.

Appeal judges also revised a Crown motion to grant authority to bring a new prosecution against Louise McDougall - a request which was delined, partly because of the length of time she has already spent in custody, partly because "the Crown were not without fault in this matter", presumably in failing to canvass alternative interpreters.

You can understand the human sympathy for the complainer which may have animated this decision by the prosecution. In submissions, the Advocate Depute argued that "it was important to equip a frail and vulnerable witness so as to enable him to give his evidence" and in view of the complainer's "particular circumstances", the use of a well-known interpreter was justified.

He might also have argued that employing Ramsay was the best way of securing the best evidence from a complainer, for whom communication could clearly be challenging. But this seems ultimately unpersuasive. The Appeal Court must be right about that. In its efforts to accommodate the complainer's needs, the accused's rights and entitlements slipped too far from view.

McDougall is also an important reminder that victim-centric decision-making can risks losing sight of other important aims and values in criminal justice processes, not least that the accused should be tried fairly. There is a presumption of innocence, not a presumption that the complainer is telling the truth - even, or perhaps especially, a complainer whose personal characteristics render them, in the Advocate Depute's phrase, "frail and vulnerable".

This is an all too-human case. You sympathise with the choices made, and why they are made. This was, I think, an all-too human mistake by the procurator fiscal. One that Lady Smith and her colleagues - more coldly seeming, perhaps, at a bit more emotional distance - put right today.


  1. This feels a little wrong. Why should a translator be impartial? A defendant is surely by definition partial? Why couldn't the person tasked with communicating on their behalf to the court *also* be partial?

    1. If as LPW says she was his interpreter during initial police interviews she will have perhaps better memory of his evidence then. During cross examination she could interpose what he said then instead of what he is saying in court to shield him. Acting from what she perceives as his own best interest.

      Yet the court, and the defendant are entitled to make a fair assessment of a witness's reliability and this case that would be frustrated.

      It seems to me another example of difficult cases leading to bad law. The Appeal Court has fixed that.

      The result is unsatisfactory but we have to accept such a situation when a trial fair to all cannot be contrived. In this case the truth will have to remain known only by the two involved. C'est la vie.

    2. Consider this scenario. The complainer is giving evidence in a manner inscrutable to everyone else in the court room. A difficult question is put in cross-examination. The interpreter has a personal relationship with the complainer. They also are themselves familiar with the "story" of the case. The heat gets turned up. The complainer mis-remembers or mis-states their story. The interpreter can see that to relay their thoughts in the manner in which they had been expressed would undermine their thoughts. Perhaps even only unconsciously, they reassemble the evidence into a more "accurate" version, and relay this to the court. Nobody can know if they've done this or not. But it is the kind of thing which only somebody close to a witness on a personal basis is likely to do. This would be actual bias. Nothing of that sort is alleged here. The decision focuses on appearances of bias only. But these anxieties are at the crux of Lady Smith's reasoning.

    3. Going off at a slight tangent (and for present purposes ignoring the cost implications), is there not a problem of principle here if evidence being given is only comprehensible to one person in the court? It is of the essence that justice should be public (done and seen to be done).

      There are notorious philosophical problems about the concept of a private language. Given this, when translation is crucial to a case, should the court not require the services of two independent translators to eliminate any possibility of misunderstanding, quite apart from the question of bias?

    4. An interesting idea! Though not one I think that our financially overstretched court service would welcome. As you rightly say, the role of the interpreter is critical. You can apprehend some things from how an individual comports themselves in the witness box, but the words - the words are critical. I get the scent of a potentially interesting research project here, on the travails and challenges of this...

  2. Easy to understand if one juxtaposes the dumb complainer as the Westminster Government , the defendant as the Scottish Government and the interpreter as the , ever ready to interpret for the stupid , news media.

  3. It seems as if the complainant would not have a fair chance to put across his point of view if forced to communicate through an unfamiliar interpreter, so there should have been a skilled interpreter present to verify what the familiar one was doing.

  4. Not to make light of this situation but it sounds very much like Starfleet v Spock with Commander Christopher Pike as a witness.