Legal translator and interpreter Yelena McCafferty discusses new guidance for judges about acceptable terminology and working with interpreters.
In July 2024 I picked up a story about the Judicial College updating its Equal Treatment Bench Book which aims to inform, assist and guide judges. If the name is anything to go by, I felt the document was bound to cover language issues. And indeed it does so extensively, exploring inclusivity, cultural communication, language barriers as well as jargon and legalese. The guide also places a special emphasis on effective communication as an underlying principle of the entire legal process: ensuring that everyone involved understands and is understood.
With this in mind, the Bench Book makes it clear that inclusive language is not just a preference, but a core judicial duty. For this reason judges are advised to simplify their language to ensure that all participants, including those from different cultural or linguistic backgrounds, understand the proceedings. This goes hand in hand with the principle of avoiding bias.
The book has a whole section on acceptable terminology as it acknowledges that in a legal process it will sometimes be relevant to identify or describe a person’s identity without being discriminatory. As linguists, we know better than anyone that language is constantly evolving, so it's particularly useful that the guide sets out a whole list of terms which are and aren’t currently acceptable. For instance, the term “black” is generally acceptable, but should be used as an adjective, e.g. “a black person”, while the terms “non-white” and “coloured” should be avoided all together.
In addition, saying “Jewish person” or “Jewish people” is preferred to “a Jew” or “Jews”. “Person seeking asylum” should be used instead of “asylum seeker” as it sounds more humane, and only if this term is factually correct when characterising a particular individual.
There is also a non-exhaustive disability glossary. The following replacements should be used instead of negative expressions:
· “has”, “experiences” (a condition), not “suffers from”;
· “episodes”, not “attacks” (as in “epileptic attacks; migraine attacks”);
· “wheelchair user”, not “wheelchair-bound”, “confined to a wheelchair” or “in a wheelchair”
· “blind people”, “people who are visually impaired” or “partially sighted”, not “the blind”;
· “deaf people” or “people with hearing loss” rather than “the deaf”.
The book advises judges to avoid legal jargon when addressing litigants, particularly those who aren’t represented by a legal professional or have limited proficiency in English. Simplifying language helps to ensure that all parties fully understand the proceedings; let’s be clear here: such technical terms as “disclosure”, “directions”, “application for permission to apply” can be confusing for the uninitiated. This is particularly important as we, interpreters, are supposed to maintain the same language register in the target language. Simpler discourse will result in simpler interpretation, and the document takes note of that: “judges need to be skilful in clarifying meaning between cultures, adjusting their own mode of talk as necessary to ensure that the chances of accurate interpretation are maximised”. The book also draws the attention to the fact that specific jurisdictions or chambers may use technical terms that are unfamiliar to even a trained and experienced interpreter. Judges are encouraged to tell the interpreter to intervene if there is a term that they struggle with. (We can only interpret concepts we understand.)
In fact, the Bench Book provides a three-page guidance on the use of interpreters in legal proceedings. It acknowledges that judges aren’t involved in making arrangements for interpreters, but they are sometimes required to make a decision about whether an interpreter is necessary. If nobody suitable is immediately available, and the party assures everyone that they can manage in English, it may be tempting to continue. However, judges are encouraged to exercise caution about such reassurances. The guidance points out that being able to communicate in English when shopping or working is not the same as standing in a witness box, giving evidence and being cross-examined. It’s the judge’s responsibility to ensure that the proceedings are fair, and they are within their right to adjourn the case if they have come to the conclusion that an interpreter is required to resolve any language difficulties. It won’t surprise anyone if at the end of proceedings legal teams say their client lost against another non-English litigant simply after relying on their English skills too much and refusing to appoint an interpreter.
I have also read some media reports of judges berating defendants for failing to learn English after living in the UK for years. The book addresses this issue: judges should not assume that simply because someone has lived in the UK for many years, they do not require an interpreter. Everyone has different language needs, and judges need to be aware of this.
What happens if a party or a witness was given an interpreter, but switches between languages as they search for the best way to put their point across? The document states that they shouldn’t be stopped from doing this. Nor should anyone think that arranging an interpreter was unnecessary if the person does speak entirely in English during the hearing. The interpreter is there in case communications break down. I can say with confidence that interpreters on hand don’t just sit idly if not used: they follow the entire discourse and take notes, in the event they are asked to repeat what was said in another language.
It’s heartening to see the book mention that “an interpreter has a difficult job”. It rightly points out that no languages work in an identical way due to differences in grammatical structures, vocabulary, the meaning of certain abstract concepts. I once had a conversation with a colleague asking for advice as to how to react when a court party complains that not every word is translated. I repeated to her what my university tutor once said: “Interpreters don’t translate words, they interpret meanings”. And it’s fantastic to read this in the Bench Book: “The interpreter’s job is to transfer as near as possible the meaning of what is said by each side, not merely to translate words and phrases literally, which can create a false impression”. Most of us will agree that an interpreter is an actor to a certain extent, and some find it difficult to convey the emotion the person is expressing indirectly when addressing the court. The guidance points out that interpreters aren’t expected to act it out in the sense as we know it, but can indicate the emotion through the tone of their voice and pauses.
Basic practical arrangements in a court hearing include ensuring that the interpreter speaks the correct language/dialect and that the parties understand each other. When explaining court procedures to all participants, judges should also clarify the ground rules on how the interpreter will work and that his/her role is impartial. The book describes interpreting as “a taxing job” so judges should consider requests for breaks and allow sufficient recovery time.
The section then goes on to explain how to communicate through an interpreter, i.e. addressing the witness/participant directly, and in my experience the judiciary are quite good at that, compared to other settings interpreters work in. The document also advises to pause every two or three sentences and ensure that every sentence is complete. (Again, the authors have a good understanding of linguistic intricacies: the word order varies in different languages and interpreters need to hear the entire sentence before they can interpret it.) To prevent the witness from feeling excluded, judges are advised not to tell the interpreter not to bother with interpreting something that they do not consider important.
Remote hearings pose specific difficulties, and the guide makes an excellent point of it: time-lapses caused by broadband speeds, fewer non-verbal cues to aid understanding, no separate channel to allow simultaneous interpreting. Judges are advised to agree the protocol with the interpreter beforehand as to how they should indicate if they would like to speak, as well as instruct everyone to speak in smaller portions, pausing for the interpreter to do their job.
Informal interpreters also get a mention in the guide as it’s not uncommon for litigants to use their relatives as intermediaries to communicate with others in day-to-day situations. Judges are advised to be sympathetic to allowing a litigant to be accompanied by such a person as they can provide psychological reassurance in addition to language support. This is one issue which does prove problematic for accredited interpreters - we often flag up potential biases and confidentiality issues that can easily crop up in these situations. Our hands are tied, however. A different official government guidance on getting an interpreter at a civil or family court or tribunal says one isn’t entitled to have an interpreter automatically, and one of the conditions that have to be satisfied is having no friend or family member who the judge says can act in this capacity.
Overall, it’s great to see that documents such as the Equal Treatment Bench Book are published and available to everyone. They give us reassurance of the fair and transparent court process. They also detail best practices, even though they may not be followed in real life on every occasion. In a way this guidance may also give some of us, especially early-career interpreters, confidence to ask the court for those rest breaks when they are needed, to speak out when we are unsure of something, and to adjust our language as appropriate. We can only try to do everything by the book.
A version of this article appeared in the January-February 2025 issue of the Bulletin, the magazine published by the Institute of Translation and Interpreting, Pages 16-17.
[Tip: if you require a Russian interpreter for court in the UK, get in touch with us on 0207 043 6940 or email enquiry@talkrussian.com. We can also recommend interpreters for other languages.]