Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE STEWART
Between :
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Eloise Mukami Kimathi & Others |
Claimants |
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- and - |
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The Foreign & Commonwealth Office |
Defendant |
Simon Myerson QC & Sophie Mitchell (instructed by Tandem Law) for the Claimants
Neil Block QC & Mathew Gullick (instructed by the Government Legal Department) for the Defendant
Hearing date: 14 November 2016
Judgment
Mr Justice Stewart :
Introduction
This is the judgment in respect of the Defendant’s application dated 29 September 2016. The application is:
“That the translators whose names are listed at Exhibit AJR5/1 be required to attend court on a date to be fixed by the court for cross-examination.”
In support of the application is the fifth witness statement of Andrew Robertson, a senior lawyer at the Government Legal Department. That statement is also dated 29 September 2016.
The Schedule to AJR5/1 contains the names of 11 translators who have translated the witness statements of the Claimants, in particular the Test Claimants, in this action. 24 of the 26 Test Claimants gave evidence in person or by video link in summer 2016. The interpreters for the oral evidence were not the translators of the witness statements.
As of Right?
The Defendant’s primary position is that it is entitled to cross-examine the translators. There does not appear to be any direct authority on this.
CPR 32 PD23.2 provides:
“23.2 Where the court has directed that a witness statement in a foreign language is to be filed:
(1) the party wishing to rely on it must –
(a) have it translated, and
(b) file the foreign language witness statement with the court, and
(2) the translator must make and file with the court an affidavit verifying the translation and exhibiting both the translation and a copy of the foreign language witness statement.”
In respect of witnesses the general rule is clear: namely that, at trial, the evidence of a witness is to be proven by oral evidence given in public, see CPR Rule 32.2(1)(a). It is of note, however, that even in respect of witnesses of fact, the court may give directions “identifying witnesses who may be called or whose evidence may be read” (Rule 32.2(3)(b)). The court therefore can control how evidence is to be given such that there is no absolute entitlement to cross-examine a witness. (See the notes to White Book 2016 Vol I at 32.2.3.1).
There is no express provision in the CPR relating to affidavits at trial. Rule 32.5 requires a party who has served a witness statement, and wishes to rely at trial on the evidence of the witness who made the statement to call the witness to give oral evidence, unless the court orders otherwise or he puts in the statement as hearsay evidence. Rule 32.7 permits a party to apply to the court for permission to cross-examine a person giving evidence “at a hearing other than the trial” – such evidence may be in a statement of case, an affidavit, witness statement, a witness summary or an application notice.
The Defendant relies upon CPR 32.2(1). The Defendant says that the general rule there stated
“…is that any fact which needs to be proved by the evidence of witnesses is to be proved –
(a) at trial, by their oral evidence given in public”
It says that facts such as the experience and qualifications of the translators, and indeed whether they are “the translators” referred to in CPR 32 PD 23.2(2) and the Court’s Order must be so proved. I do not accept this for the following reasons:
The requirement in Rule 32.5 refers to the use at trial of witness statements which have been served and requires a party who has served a witness statement, and who wishes to rely at trial on the evidence of the witness, to call the witness to give oral evidence (subject to exceptions). The practice direction specifically requires a translator to file an affidavit verifying a witness statement. It does not require or permit a translator to file a witness statement.
Historically, written witness statements were not served and/or used as evidence in chief. This began in the mid 1980s and was incorporated into the Civil Procedure Rules. Prior to then, evidence in chief of a foreign language witness was oral and interpreted into English live in court by an interpreter. The new procedure permitted, as here, a witness statement translated by one translator and a different person being the court interpreter. It was not, in my judgment, ever intended by the CPR that every translator who had provided a proper form affidavit would attend court pursuant to Rule 32.2(1) so as to “re-prove” the written translation.
Nor do I find that in the wording of Rule 32.2. “Any fact which needs to be proved by the evidence of witnesses” is not to be interpreted at including such matters as are provided for in 32PD 23.2. In any event, the Defendant did not object to the translated evidence being given by the Test Claimants, and did not raise this particular issue till after all their evidence had been completed.
I reject the Defendant’s submission that Rule 32.7 which permits a party to apply to the Court for permission to cross-examine the person giving the evidence “at a hearing other than the trial” is of any assistance. There is no inference from Rule 32.7 that Rule 32.5 would extend to the makers of verifying affidavits under CPR 32 PD 23.2.
Accordingly, I find that there is no entitlement of the Defendant to cross-examine the translators, nor even an entitlement so to do but subject to the court’s control.
Therefore the court has a power to accede to the Defendant’s application under its general powers of management and in particular Rule 3.1(2)(m) which empowers the court to “(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective…” It is therefore by reference to the principles of managing the case and furthering the overriding objective that I must decide this application.
Background
The purpose of the application is summarised by Mr Robertson (paragraph 5) as:
“So that the Defendant and the court can understand the process by which the documents were created and make judgment as to the reliability and accuracy of the documents in portraying the true account of the witness.”
At a CMC in December 2014 it became apparent that the procedure for taking the witnesses’ evidence had been that the lead solicitors prepared English statements first, checked the accuracy of the document by reading the English version back to the witness in the witness’s own language and then corrected errors in the English version. As no native language statement had been taken from the witness, the Defendant agreed that checking the accuracy of the statement with the witness and producing a native version statement and correcting any errors in the English version was the most appropriate way to proceed. The lead solicitors confirmed that that was what they were to do and have since confirmed that that is what they did.
On 19 May 2016 the Defendant made an application, supported by the third witness statement of Mr Robertson, to adjourn generally the hearing of the Test Claimants’ evidence due to be heard 14 June – 22 July 2016, pending further order and further directions for the filing of evidence by the lead solicitors. That application was dismissed by order dated 27 May 2016. A number of the concerns raised by the Defendant in that application are repeated in the present application and Mr Robertson’s third witness statement dated 19 May 2016 is relied upon. There was no formal ruling or judgment by the court in the May 2016 application. The application commenced and after discussion between the Bench and Bar the Defendant agreed that the application would be dismissed.
In Mr Robertson’s third witness statement he submitted that the court could not have confidence as to the proficiency and experience of the translators, nor that:
The English translations of the Claimant Kikuyu/Meru witness statements are accurate translations of those statements.
Those English translations were actually prepared by the translators who have signed the verifying affidavit.
A written account has ever been taken correctly from any of the Test Claimants in their own language and recorded in that language (rather than being simultaneously translated by the person recording it into English) and
The Test Claimants’ evidence has not been tainted from the outset (and potentially, irremediably so) by the widespread if not total use of pro-forma English language questionnaires containing leading questions and suggesting the identity of the perpetrators during interviews by the lead solicitors’ caseworkers.
(Paragraph 6)
Mr Robertson’s third witness statement goes into great detail about the Defendant’s concerns in relation to witness statements and translations. In skeletal form and in chronological order they are:
July – October 2015: a translator’s affidavit attested to reading a statement to a witness at a time when the witness had died. This was subsequently explained as an error. That witness statement is no longer relied upon by the Claimants.
October – December 2015: The Defendant says that it noticed in responses to the Part 18 Request for Test Claimants 20 and 28 that some answers that appeared in the Kikuyu version were missing from the English translation. The Defendant obtained another translation (not through Wolfestone Translations Limited (“Wolfestone” – see below). The Defendant says that this analysis showed material discrepancies in the two versions which could not be explained by different translation approaches.
February 2016: When preparing the individual defences for Test Claimants 7 and 16 the Defendant says that English-only witness statements had been served in March 2015. In September/October 2015 statements were served in both English and Kikuyu together with translators’ affidavits verifying the translations. When preparing the defences it is said that it was noticed that there were material differences between the two English versions, and that the Kikuyu versions were closer in form to the earlier rather than the later English statements which they said they were translating.
March – April 2016:
The Defendant then engaged Wolfestone. On 24 March 2016 Wolfestone reported in respect of the witness statements of Test Claimants 7 and 16. The Defendant said that this confirms what they had suspected, namely that the earlier English translations were closer to the Kikuyu than the subsequent translations served with the Kikuyu originals.
The Defendant then sent the 24 remaining Test Case Claimant witness statements to Wolfestone. (Test Claimant 11 died in August 2013 and did not prepare a Kikuyu witness statement prior to his death). The Wolfestone translation of the Kikuyu witness statement into English apparently contained similar discrepancies to those for Test Claimants 7 and 16. The Defendant then sent the Claimants’ English translations to Wolfestone who:
accepted that they had made some mistakes;
accepted that some differences of translation were equally correct or valid and could be used interchangeably;
said that in other instances the Wolfestone translation was more accurate and reliable than the English translation provided by the lead solicitors.
In short, the third witness statement highlighted alleged serious discrepancies between English and Kikuyu/Meru text and questioned the evidence-taking process of the Claimants’ witness statements. Mr Robertson emphasised the Defendant’s reliance on the English text of the Claimants’ evidence to prepare the case and its own evidence. At paragraphs 138 and 139 he questioned the proficiency and experience of the lead solicitors’ translators and the sources of the English translations served. He said this:
“138. Many of the verifying affidavits served with the witness statements in May – October 2015 do not adequately or at all account for the qualifications in Kikuyu/Meru or English of the persons conducting that verification. For example, in the affidavit dated 13 April 2015 verifying witness statement of …. (TC21) and the accompanying translation, the person verifying the translation simply asserts in relation to her knowledge of English that she is “proficient in the English language and can read/write the same. English is one of the two National languages of Kenya”. The affidavit contains no detail as to the level of the translators’ proficiency in English or whether this is supported by any professional qualification, accreditation or even experience as a translator in Kikuyu and English.
139. Further, the persons verifying the translations merely “declare” that the translations they exhibit are accurate and do not say that they themselves have created the translations by translating the witness statements or Part 18 Responses from the original Kikuyu/Meru into the exhibited and verified English translations.”
Finally, in paragraphs 154 – 155 of his third witness statement Mr Robertson said that the Defendant considered it imperative that the issues were raised before the court prior to the oral evidence of the Test Claimants; that in the light of the potential significant prejudice the Defendant did not see how the Test Claimants’ oral evidence could be permitted to proceed, at least until the court and the Defendant received a full explanation as to precisely how the Kikuyu/Meru language statements and English translations came to be created and approved by the Test Claimants.
Events Since May 2016
Apart from the Test Claimants’ oral evidence given in June/July 2016, the Defendant has completed the process of obtaining its own translations of the remaining Test Claimants’ Part 18 Replies from Wolfestone. In addition to the matters set out in the third statement, Mr Robertson in his fifth statement (paragraph 18) summarises these concerns:
A lack of information regarding the qualifications and experience of the translators.
Inaccuracies in the affidavits signed by the translators.
English text included in Kikuyu versions of the documents.
Paragraphs of text included in the Kikuyu versions of the document but not in the English translations.
Text in the English translations which does not appear in the Kikuyu document.
Interpretation of particular words and phrases in a way detrimental to the Defendant’s case.
Mr Robertson also says that the cross-examination of the Test Claimants in June/July 2015 further heightened the Defendant’s concern.
Mr Robertson (paragraphs 9 – 12) says:
It is important to understand the origin of the Test Claimants’ written evidence and the way the translations came to be prepared.
It is also important to understand whether the translators have the relevant skills and experience to produce accurate translations (or if they did not prepare the translations to comment on the accuracy of such translations).
The discrepancies between the translations obtained by the Defendant and those served by the Claimants necessitate cross-examination of the translators to try to resolve the problems with the translations, otherwise neither the Defendant nor the court can be satisfied of the accuracy of the Claimants’ evidence.
I should add that by Order of 9 September 2016, evidence from a number of corroborative witnesses was allowed (and further evidence disallowed). This evidence is to be given on behalf of the Claimants. The Defendant is in the process of obtaining translations from Wolfestone of this evidence.
I now turn to the detail of the Defendant’s concerns.
The Defendant’s First Point: Who created the documents?
In paragraph 139 of Mr Robertson’s third statement he said that the person verifying the translations merely declared that the translations exhibited were accurate and did not say that they themselves created the translations by translating the witness statements or Part 18 Responses from the native language into the English translation.
By letter dated 6 May 2016 the Defendants wrote to the Claimants’ solicitors asking if “the verifying translator themselves prepared the exhibited English translation of the Kikuyu/Meru witness statement or Part 18 Response? Or did they verify as accurate a document in English which had been prepared by someone else?” On 20 May 2016 Mr Cosgrove-Gibson, a solicitor employed by Tandem Law (the lead solicitors), in his 11th witness statement, paragraph 7 said:
“…word versions of the Test Case Claimant’s individual witness statements were sent to Miller & Co [these are the lead solicitors’ Kenyan agents]to be translated into Kikuyu. An appointment was then made to see the each Test Claimant individually. When a Test Case Claimant attended an appointment in line with CPR an authorised person was present. This was usually a qualified solicitor from Tandem Law. There were usually two translators in the room at any given time. One translator would read the Kikuyu statement back to the Test Claimant who would either affirm the contents or make further clarification. Simultaneously the translators would check that the Kikuyu version matched the English version.
Therefore the affidavits would only be signed by the translator who had read the Kikuyu version to the Test Claimant.”
The Defendant says that this explanation is unclear and that it is entitled to know whether the translators themselves prepared each of the exhibited documents or whether they have verified the accuracy of documents prepared in whole or in part by somebody else. If so, who prepared each document, how and when?
It is correct that CPR 32 PD 23.2 requires the translator to make and file the requisite affidavit. I do not consider that this first point alone merits the calling of the translators for cross-examination, having regard to the overriding objective. This can properly be addressed by a witness statement/affidavit from the translators. This is particularly the case given that:-
everybody has the Kikuyu/Meru versions of the documents;
the Defendant has had its own translation;
the Defendant has had the opportunity to cross-examine the Claimants.
The Defendant’s Second Point: Spelling/grammatical errors in the verifying affidavits.
The three examples of what the Defendants say are basic grammatical spelling and other areas are set out in Mr Robertson’s fifth witness statement. These are:
Verifying affidavits contain the following statement “On the same English is one of the two national languages of Kenya.” This is not a single error. It is said to occur in three examples of affidavits signed by Gathoni Waweru and in affidavits signed by Ann Njeri Kamau twice for Test Claimant 24 and by Bernard Muchiri Kariuki twice for Test Claimant 23.
A number of affidavits refer to the Test Claimant having made “his mark in my presence” when the Test Claimant is female. Examples are given of Gathoni Waweru making this error and of Jason Kibe making the same error for four of the Test Claimants.
Several affidavits contain the same basic spelling error which has not been corrected by the translators. For example in three affidavits verified by Gathoni Waweru and two by Bernard Muchiri Kariuki it is said that the Test Claimant “ca read/write”.
The Defendant says that such errors as are set out above causes concern in terms of the translators’ ability accurately to translate for the purposes of the proceedings and the Defendant wishes to explore this in cross-examination.
In such a vast mass of translation, these errors could not possibly, by themselves, merit the cross-examination of the translators. The English language versions are perfectly comprehensible. The Defendant can make submissions in closing its case. Further I repeat (a) – (c) in paragraph 26 above.
The Defendant’s Third Point: Lack of information regarding the translators’ qualifications and experience
In dealing with the requirements of the body of an affidavit CPR 32 PD 4.1 says:
“4.1…the affidavit should be expressed in the first person and the deponent should:
(1) commence “I (full name) of (address) state on oath ……”,
(2) if giving evidence in his professional, business or other occupational capacity, give the address at which he works in (1) above, the position he holds and the name of his firm or employer,
(3) give his occupation or, if he has none, his description…”
The Defendant says there is non-compliance with the requirements of the practice direction in that:
The translators have not given their occupations, the name of their firm or, if they are employed, the name of their employer.
Almost all verifying affidavits fail to specify the translators’ profession or employment. A few give the description “translator” but no details are given of the firm/employer.
A PO Box is given as the address, whereas the practice direction requires a person to “give the address at which he works” if they are giving evidence in a professional business or other occupational capacity.
The Defendant says it is therefore unable to identify the professional status of the translators. Further, there is no information about the translators’ experience/qualifications. In letters dated 6 May 2016 and 17 May 2016 the Defendant asked the lead solicitors for details of the professional qualifications and experience of the translators, but have not received a response. The Defendant therefore wishes to ask the translators about their experience and qualifications in cross-examination.
As to this third point:-
the requirements of the practice direction can be essentially fulfilled ex post facto. These requirements are those in Paragraph 4.1(2) and (3). Information about the translators’ experience or qualifications is not required by the CPR or the practice direction, but should in this case be provided.
calling the translators to be cross-examined is not just/proportionate to deal with these matters.
The Defendant’s Fourth Point: Discrepancies in the Part 18 Responses
First the Defendant says that in a significant portion of the Part 18 Responses the Kikuyu version contains English text, whereas the Test Claimants generally do not speak or understand English. There has been correspondence between the parties on this on 16 June 2016 and 21 June 2016 (two letters on that date; Claimant to Defendant and Defendant to Claimant). The Claimants’ response was “…in some of the Part 18 Responses, we have replied to confirm “the rest is an argument of law and the Claimant can’t assist”. This is of course an objection to the point raised in the Part 18 Request, see CPR 18 PD 41(1).”
The Defendant’s complaint is that there are outstanding matters in this regard namely:
There are occasions in which the Defendant’s Part 18 questions on factual matters appear wholly or partly in English and some of the Claimants’ answers to those factual questions appear in English. Two examples of the latter are Test Claimant 39’s response to question 428 is in English, namely “schedule to be provided. I was unable to work after the Emergency due to injuries”, and Test Claimant 19 response to question 157(d) is partly in Kikuyu and partly in English. The English part of the reply is “…was beaten at various times whilst working. He was beaten by various home guards…”
Sometimes the objection that the Defendant’s questions raise arguments of law has been translated into the Claimant’s own language in respect of certain of the Part 18 Responses but not others. So for Test Claimant 23 there is no English text in the Kikuyu responses, but in the English translation the Claimant says in response to certain questions “the rest (of the question) is an argument of law and the Claimant cannot assist.”
Sometimes the Part 18 question is not translated but the response objecting to the question is translated. An example given is Test Claimant 13 where the question seeks identification and source for specific human rights obligations. The question is in English in the Kikuyu but the response is in Kikuyu.
Sometimes the legal objection appears in the English translation but not in the Kikuyu or Meru text (according to the Defendant’s Wolfestone translation).
Secondly, the Defendant says that there is inaccurate translation of questions, such that a number of the questions asked by the Defendant have been translated into Kikuyu/Meru in a way which changes significantly (and in a way prejudicial to the Defendant) the meaning of the question. Basing themselves on the Wolfestone translation which the Defendant has received, the following examples are given:
Test Claimant 22 – question 199b – the Defendant’s question is “What were they wearing, and with what distinguishing features? Please provide any other information that will assist in identifying these persons.” According to Wolfestone the question as recorded in Kikuyu includes these words “For example the clothes they wore, what colour were they, what type of clothes were they, did they wear caps, what did the caps look like. Was there anything different about the clothes they wore, like badges or crowns?” Test Claimant 22 responds by referring to headgear and badges. The Defendant says it is concerned that this was suggested to her by the Kikuyu text and, is further concerned that there was no indication in the English translation that additional details were added to the Defendant’s Part 18 question when translated to the Claimant. There is a similar point in relation to questions 199d, 199h, 201d and 201e in the same Part 18 Responses. Thus, submits the Defendant, the English document provided is not an accurate translation of the Kikuyu text, as claimed in the verifying affidavit. The Defendant says it would not have known of this if independent translations had not been obtained.
Question 39c as put by the Defendant, and as it appears in English in the Kikuyu text is “By whom? Please provide any other information that will assist in identifying this person.” However Wolfestone’s translation of the Kikuyu text of the question is “Who told you? What did the person who told you look like?” The Defendant submits that this narrower question does not give the opportunity to the Claimant to provide the range of information sought by the Defendant.
Thirdly, in respect of the Part 18 Responses, the Defendant refers to text which is in the Kikuyu document but not in the English translation and vice versa. Examples given are:
Test Claimant 28: Request 296a – the word “icokio” in the Kikuyu is followed by 10 words whereas the English version has no response; request 295f – the Kikuyu response is one word “ndiui”. The English translation is 23 words; request 298a – the English question is in seven parts and takes up sixteen lines. The Kikuyu is a six word question.
Test Claimant 9’s response to question 28c has a reference to her having been “bitten” by the police. Subsequently in paragraph 19 of the individual reply this was described as “a typographical/translation error for which the Claimant is not responsible”. The Defendant points out that in the Kikuyu text of the Part 18 Response there is no reference to question 28c, question 28d or question 28e. The English translation served by the lead solicitors contains answers to all three questions including the one referred to at 28c above.
Test Claimant 21: The recorded response in the English translation to question 182g is “I was beaten so badly by the time to (sic) got to Githunguri my whole body had turned white because the moisture had been beaten out of my skin.” Wolfestone’s translation is that there is no such sentence. Further the court interpreter on 22 June 2016 confirmed that the statement was not present in the Kikuyu reply.
The Defendant says that they want to cross-examine because the translators have sworn that their translations are accurate but they are not so. The Defendant wants an explanation of this.
Again, I do not accept that the Overriding Objective calls for the cross-examination of the translators as a result of this fourth point. In summary:-
some of the discrepancies, e.g. those summarised in paragraph 35 appear to be of relatively little import;
discrepancies could have been put to the Claimants when they gave their evidence.
To the extent that this was done the court could be addressed on the basis that it is the oral response which should prevail. To the extent that it was not done, the Defendant cannot use this as a basis for an application to cross-examine the interpreters. The same goes for the matters in paragraph 37 above. In particular:
matters were capable of being dealt with by the Claimant and/or Court interpreter. Some were so dealt with – see the third bullet point in paragraph 37
further, or alternatively, they are matters for comment/submission in due course.
The Defendant’s Fifth Point: The meaning of particular words or phrases
Two specific examples are given in relation to different interpretations of Kikuyu words or phrases in translation. These are:
“Njoni”: In the English translations of the Claimants’ statements and Part 18 Responses, the word is translated as “British Military”, “British Officer” or “British Soldiers”. Test Claimants were asked about what they meant by “njoni”. Answers given were: white persons wearing “police caps” on their heads, Scottish soldiers, white persons and black persons employed by the British Government, white men “who were beating us” (but excluding black people). The Defendant seeks to be able to ask the translators questions as to why they used the different translations of the word “njoni” and whether the specific translation of “njoni” attributed in each instance was confirmed by them with the relevant Test Claimant and, if not, why not?
“Muthigari”: In the written evidence of Test Claimant 17 this is translated to mean “police officer”. In cross-examination Mr Matheri (TC17) said that it was a “prison guard” who assaulted him. The court interpreter directly translated Muthigari as “those who guard us” and as not necessarily meaning a police officer. Further, Test Claimant 23, in her witness statement at paragraph 21, refers to beating by a home guard. In cross-examination she said that she meant a prison officer.
The Defendant wants to ask the translators why they have translated “Muthigari” to mean prison officer and/or home guard when it may have had another meaning. The Defendant also wants to question whether this specific English translation by the translators of the written evidence was accurate at the time and confirmed as such.
I do not see what, of substance, cross-examination of the translators would add on this point. The differences of meaning have been explored with the TCs and with the court interpreter. Final submissions can address the weight I give to this.
The Defendant’s Sixth Point: Cross-examination of Test Claimants
During the hearing of the Defendant’s May 2016 application, I suggested that the points then made by Mr Robertson on behalf of the Defendant could be subject of cross-examination of the Test Claimants. It seems to me that this was a sensible approach and one which to some extent the Defendant adopted. In the light of that experience, however, the Defendant submits that the results are still unsatisfactory. They give examples in relation to two Test Claimants:
Test Claimant 22: in paragraph 22 of her Kikuyu statement the word “njoni” appears with the words “British Officers” in English next to it. She was not able to explain this.
Test Claimant 25: in paragraph 41 of his witness statement there is reference to British Soldiers visiting Embakasi. Mr Njoki denied saying that British Soldiers visited the camp and he did not know why that was in his witness statement.
Further, in relation to Test Claimant 25, there were instances where the English translation of the statement contained text not present in the Kikuyu versions. This text alleged that British Government Officials visited Mara River Camp by air and the Claimant seeing detainees at Embakasi beaten indiscriminately whilst working. The court interpreter confirmed that this text was not in the Kikuyu version. It was not appropriate to ask the Test Claimant himself about discrepancies in the English version. The Defendant says that there has been no explanation of this from the Claimants’ solicitors, despite the fact that it was raised in May 2016 and acknowledged by those solicitors. At that stage they said that they were seeking the reason for the interpretations. No reason has been forthcoming and the Defendant asked the court to infer that the translator is unable or unwilling to provide an explanation.
As to iii above, this should be dealt with by the Claimants’ solicitors as promised. Subject to that, I repeat what I said in paragraph 42 above. I do not see, what, of substance, cross-examination of the interpreters would add on this sixth point.
Summary
The Defendant seeks to cross-examine 11 translators, estimating that they will be able to deal with 2 translators a day amounting therefore to some 6 days of court time. They say it is proportionate to allow this amount of time, given the seriousness of their concerns regarding the translations.
The Defendant relies upon the importance of the translation process and the used of certified translators as emphasised by Peter Jackson J in NN v ZZ [2013] EWHC 2261 (Fam), [2016] 4 WLR 9 at paragraphs 56 – 60 and paragraph 14 of the judgment in Re ABC & F (Children) [2015] EWHC 3663 (Fam) where Sir Peter Singer said:
“Without clarity concerning the provenance of such a statement it is a far more difficult task to assess what weight can be given to it and, in particular, what may be the reasons why on examination it proves to be short on accuracy.”
Finally, the Defendant points to the decision of the Court of Appeal in Northern Ireland in R v Foronda [2014] NICA 17 at paragraph 15 where, in relation to interpreters, it is said:
“Interpreters must be suitably qualified and expert for, otherwise, there would be a real possibility of inaccuracy creeping into the translation of questions and answers which, in turn, might lead to a jury hearing an answer which neither reflected the actual question nor the actual answer. An interpreter should be suitably qualified and aware of his/her responsibilities to ensure accuracy and objectivity in the provision of interpretation services.”
I return to the stated purpose of the application, namely
“So that the Defendant and the Court can understand the process by which the documents were created and make judgment as to the reliability and accuracy of the documents in portraying the true account of the witness.”
I have, as I have dealt in the judgment with the six points made by the Defendant, given brief reasons why I am not persuaded that it is just and/or proportionate to accede to this application. Those reasons will now be supplemental and amplified.
First, taking the points cumulatively, as well as individually, the exercise of my discretion in giving effect to the Overriding Objective is still against allowing the application.
Secondly, some of the points were explored with the Test Claimants and/or with the Court interpreter. The Defendant was free to ask any relevant translation question in this manner. To the extent that this was not done, but could have been, that is not a reason for calling the interpreters for cross-examination. In paragraphs 65 – 69 of Mr Robertson’s Fifth witness statement he says that the Test Claimants were unable to assist with the discrepancies such that the appropriate way is to call the translators. He gives certain examples, with which I now deal:-
Test Claimant 22 was not able to explain why in paragraph 22 of her Kikuyu statement the word ‘njoni’ appears with the words ‘British officers’ in English next to it. Yet the important question is what she meant by ‘njoni’. Any Test Claimant could be asked that. The fact that one interpretation of ‘njoni’ appears in statements did not inhibit the Defendant from establishing the meaning which a witness themself attributed to the word. The result of these questions is set out in paragraph 59 of Mr Robertson’s statement and will presumably be used in final submissions.
Test Claimant 25’s statement referred to British soldiers visiting Embakasi. He denied saying this and said he did not understand why it was included in his statement. The Defendant does not suggest this is not in the Kikuyu statement. Therefore I question why this is said to be a translation issue. Again this seeming inconsistency can be used by the Defendant in final submissions.
Text detrimental to the Defendant in the English version but not in the Kikuyu was elicited during the cross-examination of Test Claimant 25. That clearly was not a matter for the witness, but it is a submission point which the Defendant may make of what they will. It does not merit calling the translator.
Thirdly, I am unconvinced that calling the translators would in any way properly further the overriding objective in that:-
I do not accept that it is likely to assist the Court in making a judgment as to the reliability of a witness whose oral evidence I have had the opportunity of hearing with the benefit of a separate court interpreter.
Exploration with the Claimants’ translators of matters:-
on the Defendant’s suggestion would take about a week and a half (11 Translators – half a day each)
might lead to a much greater expenditure of court time: the Claimants point to the fact that when Wolfestone translated Test Claimant witness statements, Mr Robertson prepared a schedule (AJR 19) where Wolfestone commented on translation issues. This schedule runs to 55 pages. Sometimes Wolfestone stick with their own translators, sometimes they indicate they were in error, sometimes either version is said to be acceptable. The Claimants have indicated that if their translators are to be cross-examined on these sorts of issues, that may well require the Wolfestone translators to give evidence and be cross-examined. The Defendant says that they do not seek a battle of translators or translations, but there is a real risk that this may follow.
of course time taken is only one factor, but in my judgment any benefit accruing to the court from hearing translators is not a proportionate benefit in terms of time and cost.
Finally, I add that if I am wrong on the question as to whether CPR 32.2(1) applies with full force to the translators, in any event, in the circumstances obtaining, it is right that I exercise my discretion in accordance with the overriding objective to order otherwise, pursuant to CPR 32.2(2)(b) (or CPR 32.5(1)).