Last Updated on March 29, 2024 by Ranking
In response to the Covid-19 pandemic, many jurisdictions around the world have introduced remote hearings as an alternative way of continuing to provide access to courts. The practice-based article discusses a report prepared by the author for the purposes of judicial quality control of interpreting services provided fully online during hearings.
This practice-based article is based on an expert report I was commissioned to write in 2021. The report covered a judicial review case in connection with an immigration appeal case in a common law country (case details will remain anonymous due to a security vulnerability immigration appeals) The appeal case was initiated by the appellant’s lawyers following a refusal to grant her refugee status. As soon as the Immigration Appeals Tribunal scheduled an online appeal hearing, lawyers filed a request for a pre-hearing hearing.
The case was unique in that no data analysis was performed because the appellant’s claims related to potential problems that could hypothetically arise more frequently in online hearings. The report examines the impact of different interaction patterns, power relationships and the physical environment on potential communication challenges and provides detailed recommendations on how to secure communications in remote environments. The discussion in this practical article is relevant not only to the circumstances of a given case, but also to the management of communication processes in a wide range of remote hearings.
An important step in the procedure is to assess the credibility of the appellant’s account, which is established by assessing internal consistency (consistency between different retellings of the story) and external consistency. The way narratives are presented, argued and perceived are influenced by many linguistic, discursive, socio-cultural, attitudinal, emotional, systemic and procedural aspects. Narratives are often created and shaped in the context of the “culture of disbelief” that characterizes immigration tribunals, where “themes of power, distrust, inconsistency, chaos and otherness” dominate.
It is equally important to remember that interpreting is a complex task, especially in the context of immigration and the legal environment. Language is used to manipulate participants into specific responses, reinterpret narrative frames, and discredit participants’ credibility. Obtaining an accurate reproduction of the original message in the interpreted text seems to be an almost impossible task. The quality of the evidence gathered from the judge’s interaction with the appellant often depends on the interpreter.
Court or tribunal procedures must enable effective communication management and put in place safeguards to maintain an accurate record of initial interactions. Currently, in many jurisdictions there is no audio/video recording of hearings or court proceedings (e.g. USA, France, Ireland), which means that often the only record that exists are notes taken by case workers and judges. Verbatim transcripts of conversations with a court, tribunal or police are not an accurate reflection of the original interactions.
The standards governing the practice of interpreters vary greatly by jurisdiction. For example, in the Czech Republic, sworn translators must have a master’s degree, provide evidence of specialized language knowledge, complete a one-year course for interpreters and translators, and demonstrate appropriate experience of five years. Elsewhere the situation is more mixed; in the US, there is a federal certification program and a wide range of training opportunities for current interpreters.
Doubts are raised mainly by the appellant’s lawyer, rarely by the appellants themselves. Legal systems take the approach that the appropriate quality of interpretation is sufficient for the purposes of legal proceedings. Establishing certification and training programs for interpreters is crucial, but it should also be accompanied by the establishment of clear processes.
Poor audio/video quality can also pose challenges for interpreters. Poor audio quality and limited coverage of the courtroom and detention area make translation difficult and exacerbate any pre-existing inconvenience experienced by foreign nationals. A study of interpreter-assisted hearings in magistrates’ courts where the prisoner is present via video link while the other participants are in a stationary court.
This part discusses the basic issues raised in my expert opinion, i.e. the comparison of interpreting during court hearings and fully online hearings. In the absence of research specifically focusing on online interpreter hearings, my report draws on principles of communication management in the legal environment. Establishing discursive practices and interaction patterns in different modes of interrogation before examining existing documents related to relevant communication practices enabled the report to highlight situations that give rise to social challenges.
In England and Wales, the use of video links is well established in criminal proceedings involving vulnerable victims, who are sometimes accompanied by an intermediary to provide communication support. Even in the case of video-link interpreting, which is much more complex than those tested by Ellison and Munro, it is assumed that if the order can be changed and procedural transparency is introduced, the interpretation is more likely to be successful.
Consecutive interpreting is typically used for the fully online immigration tribunal hearings mentioned in the report. Self-represented appellants are therefore at a disadvantage if the non-evidentiary stages are not interpreted for them or are only summarized separately. The advantage of remote hearings is the simplification of some communication and practical aspects (convenience, greater control over the working environment, no need for unnecessary proximity of the interpreter to the client). However, there are also some challenges (e.g. relationship building) and other fundamental systemic issues that need to be addressed.
When preparing the expert opinion, it was important to read the materials on conducting online hearings that were used by the Immigration Tribunal at that time. Although the guidelines focused mainly on technical aspects, the scenario took into account many potential communication problems. It is positive that important communication processes are taken into account in the proposed online hearing scenario.
Given the health measures in place during the pandemic, it is reasonable to expect hearings such as those conducted by the Immigration Tribunal to be conducted remotely. When physically present, tribunal members typically rely on their observation skills to notice whether someone is tired or appears to have a question. Online settings allow for a non-intrusive method of submitting requests, which puts participants on a level playing field and allows more people to be responsible for reporting communication issues.
In addition to advising the court on the linguistic rules governing online and face-to-face interactions, it was equally important to dispel common misconceptions, such as the role of perception in assessing credibility. One concern that was not adequately addressed on the agenda was the fact that it is difficult to read people’s reactions online.
Many jurisdictions around the world have adopted or are in the process of adopting remote hearings as a standard provision in their justice systems. Linguistic principles embedded in communication practices can help us understand the impact of different modes of interaction on participants. The report recommends the use of remote hearings for hearings that are likely to be less contested, cross-examination-based and involve both parties being represented by a lawyer.
Recording is critical to ensuring that all multilingual/bilingual interactions, including those parts of the proceedings that are interpreted simultaneously, are captured accurately and cost-effectively. Fully online proceedings are likely to be easier to record than those taking place in court due to the location of microphones in the courtroom/tribunal. It is equally important to take into account the risk of the parties secretly recording the proceedings. Although secret recordings are prohibited, it can be difficult to prevent parties from making private recordings during remote hearings.
