THE KIMATHI DECISION 2: TRANSLATORS ON TRIAL: ALSO A LOOK AT THE GUIDANCE ON TRANSLATING WITNESS STATEMENTS

This is the second in the series that looks at the decision in Kimathi & Ors v The Foreign And Commonwealth Office [2018] EWHC 2066 (QB).  Here we look at issues relating to the translators.  It shows the way in which the translation process, in itself, can become highly contentious.   Before looking at the issues that arose in the  Kimathi case it is worthwhile looking at the guidance given in the rules and in earlier cases.

THE CASE

The action concerns a large number of claims brought for assault, battery and negligence relating to detention in Kenya in the 1950s. There are over 40,000 claimants. There are 25 test claimants.   Mr Justice Stewart was deciding one of the test cases (“TC34”) and the issue of whether the court should exercise its discretion under Section 33 of the Limitation Act 1980.  This was decided as part of the trial process and not as a preliminary issue. One matter in issue was the evidence gathering process and the question of the accuracy of the translations retained on behalf of the claimants.

A REMINDER OF KEY PRINCIPLES IN RELATION TO THE TRANSLATION OF WITNESS STATEMENTS

Before looking at the judgment in detail it is worthwhile looking at the guidance given in relation to the use of witness evidence that requires translation.

GUIDANCE IN PRACTICE DIRECTION 32

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.

GUIDANCE IN THE CIVIL CASES

The courts have considered the issue of the best language for a statement to be drafted in on several occasions. in  Force India Formula One Team v 1 Malaysia Racing Team Sdn Bhd and others [2012] EWHC 616 (Ch) Arnold J. observed:-

1. All of these witnesses signed witness statements in English. Many of their statements contained statements to the effect that the witness had some knowledge of English, that the witness had been interviewed by Italian-speaking lawyers who had drafted the statement in English based on his answers and that the witness considered that his knowledge of English was sufficient to allow him to give the statement in English, but might require the assistance of an interpreter to give evidence in court. A smaller number said that the statement had been translated into Italian for him (as I understand it, orally) before he signed it. In the event, all of these witnesses except Mr Crosetta, Mr Migeot and Mr Neira gave their evidence through interpreters. While I appreciate that many people can read English with greater proficiency than they can speak it, particularly in the context of cross-examination, it does not necessarily follow that it is appropriate for them to make witness statements in English, particularly in a highly technical case involving many points of detail such as this one. It was clear that at least one of the witnesses had not correctly understood part of his statement when he signed it, and I suspect that this problem may have been more widespread. In my judgment the correct course would have been for the witnesses other than Mr Crosetta, Mr Migeot and Mr Neira to make their statements in Italian, and for the statements then to have been translated in English.

GUIDANCE FROM THE FAMILY DIVISION

In NN -v- ZZ(1)GA(2) IZ(3)  [2013] EWHC 2261 (Fam) Peter Jackson J considered the question of witness statements in the virtually identically worded Practice Direction in the Family Procedure Rules. It is difficult to envisage different principles applying in civil proceedings.

60. At my invitation , counsel made submissions about the way in which evidence from witnesses who do not speak English should be prepared. In the light of those submissions, I record the following basic principles:

(1) An affidavit or statement by a non-English-speaking witness must be prepared in the witness’s own language before being translated into English. This is implicit from Practice Direction 22A of the Family Procedure Rules 2010, paragraph 8.2 of which states that:

Where the affidavit/statement is in a foreign language –

(a) the party wishing to rely on it must –

(i) have it translated; and

(ii) must file the foreign language affidavit/statement with the court; and

(b) the translator must sign the translation to certify that it is accurate.

(2) There must be clarity about the process by which a statement has been created. In all cases, the statement should contain an explanation of the process by which it has been taken: for example, face-to-face, over the telephone, by Skype or based on a document written in the witness’s own language.

(3) If a solicitor has been instructed by the litigant, s/he should be fully involved in the process and should not subcontract it to the client.

(4) If presented with a statement in English from a witness who cannot read or speak English, the solicitor should question its provenance and not simply use the document as a proof of evidence.

(5) The witness should be spoken to wherever possible, using an interpreter, and a draft statement should be prepared in the native language for them to read and sign. If the solicitor is fluent in the foreign language then it is permissible for him/her to act in the role of the interpreter. However, this must be made clear either within the body of the statement or in a separate affidavit.

(6) A litigant in person should where possible use a certified interpreter when preparing a witness statement.

(7) If the witness cannot read or write in their own native language, the interpreter must carefully read the statement to the witness in his/her own language and set this out in the translator’sjurat or affidavit, using the words provided by Annexes 1 or 2 to the Practice Direction.

(8) Once the statement has been completed and signed in the native language, it should be translated by a certified translator who should then either sign a juratconfirming the translation or provide a short affidavit confirming that s/he has faithfully translated the statement.

(9) If a witness is to give live evidence either in person or by video-link, a copy of the original statement in the witness’s own language and the English translation should be provided to them well in advance of the hearing.

(10) If a statement has been obtained and prepared abroad in compliance with the relevant country’s laws, a certified translation of that statement must be filed together with the original document.

1. In this case, these basic steps were not observed. As a result, some time was needlessly spent exploring the process by which the statements had been taken, and the court’s task in assessing the witnesses’ evidence was made more difficult, to their disadvantage and that of the party calling them.”

THE JUDGMENT IN KIMATHI ON THE TRANSLATORS

The guidance in NN suggests that the statement should be prepared in the witnesses native language and only translated into English after it is perfected. In Kimathi the practice seems to have been reversed, with the English language statement first.  Mr Justice Stewart referred back to an earlier judgment where he had refused the defendant’s application that the translators be cross-examined.  Instead the translators were ordered to file witness statements.  Some of the translators made statements, others could not be found.

Translators

1. 1. On 24 November 2016 I handed down the translators’ judgment. In this I refused the Defendant’s application to require the translators utilised by the Claimants for witness statements and Part 18 responses provided by the TCs, to attend court for cross-examination. The reason for the application was “so that the Defendant and the court can understand the process by which documents were created and make judgment as to the reliability and accuracy of the documents in portraying the true account of the witness.”

   2. An important part of the background, not just in relation to translators, but also to the taking of witness statements with which I will deal subsequently in this judgment, is set out at [12] of the translators’ judgment. It states:

“12 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.”

1. 1. The Defendant had themselves obtained translations of the Kikuyu version of the TCs’ witness statements and Part 18 responses from Wolfestone Translation Limited (“Wolfestone”).

   2. In outline there were six major concerns raised by the Defendant. I shall summarise these and what I said about them in the judgment. Full details appear at paragraphs 23-44 of the translators’ judgment.

      1. The first point was who created the documents? The Defendant said that the person verifying the translations 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. My response to this was that, while it is correct that CPR 32PD 23.2 requires the translator to make and file an affidavit, this could properly be addressed by a witness statement/affidavit from the translators.

   3. The Defendant’s second point was that there were spelling/grammatical errors in the verifying affidavits. The Defendant gave examples and said that they caused concern in terms of the translators’ ability accurately to translate. My response to this was that in such a vast mass of translation, the errors could not possibly, by themselves, merit the cross-examination of the translators and that the Defendant could make submissions in closing its case.

   4. The Defendant’s third point was that there was a lack of information regarding the translators’ qualifications and experience. I referred to CPR 32PD 4.1 and said that the requirements of the Practice Direction could be fulfilled ex post facto. I added that information about the translators’ experience or qualifications was not required by the CPR or the Practice Direction, but should in this case be provided.

   5. The Defendant’s fourth point was that there were discrepancies in the Part 18 responses. My response was that some of the discrepancies appeared to be of relatively little import; also, discrepancies could have been put to the Claimants when they gave their evidence. I said that matters were capable of being dealt with by the Claimant and/or the court interpreter. Some had been so dealt with. I added “further, or alternatively, they are matters for comment/submission in due course.”

   6. The Defendant’s fifth point was as to the meaning of particular words or phrases. Two specific examples were given. The first was the translation of “njoni”. This word had been translated as “British military”, “British officer” or “British soldiers”. The Test Claimants had been asked what they meant by the word and had given a variety of answers. The second example was the word “muthigari”. The issue here was whether it meant “police officer” or a “prison guard” or a “guard” or “home guard” or “prison officer”. I was of the view that cross-examination of the translators would not add anything of substance on this point. I said “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.”

   7. The Defendant’s sixth point dealt with certain specific matters which had been the subject of cross-examination of the Test Claimants. Examples were given in respect of TC22 and TC25. My decision on this was as given in relation to the Defendant’s fifth point and for the same reasons.

   8. The order I made following the translators’ judgment is dated 24 November 2016. I ordered affidavits or witness statements from the translators for the Test Claimants to cover the following:

“(1) The details required by CPR 32PD 4.1(1) to (4) as pertained at the time of creating their first such affidavit (indicating whether those details have subsequently varied and if so, how)

(2) The qualifications and experience of each translator at the time of creating their first such affidavit, and thereafter if advised

(3) Setting out whether the translator (1) created and/or (2) modified each of:

(i) the English language document, and

(ii) the Kikuyu/Meru document

exhibited to each of the relevant affidavits; if so, when and if not, who if anyone (to the best of their knowledge) created and/or modified those documents

(4) Setting out the process by which the content and accuracy of each set of documents exhibited thereto was verified with each Claimant…”^[26]

1. 1. Six translators provided witness statements in January/February 2017.

Experience

1. 1. All six witness statements contained the statement “I am also proficient in the English language and can read, write and understand the same. English is a recognised, official language of Kenya and I use this language socially.” In respect of the individual experience:

i) Gathoni Waweru states:

“At the time of me creating my first affidavit I was educated to college level and attained a certificate in computer packages. Throughout the course of my studies lectures were delivered in English. I have therefore applied my knowledge of this language to a high standard culminating in the achievement of my qualification as listed above.

…

16 In addition to my role at Miller & Co Advocates, I have previously undertaken work which has required me to utilise my bilingual skills to complete the task in hand. For example, I have worked for Johari Productions, translating scripts from English into Kikuyu for the Kikuyu audience.”

ii) Jason Kibe Kimotho:

“7 At the time of me creating my first affidavit I was educated to university standard having attained a BSc in media science at Moi University. Throughout the course of my studies lectures were delivered in the English and Kiswahili languages. I have therefore applied my knowledge of these languages to a high standard culminating in the achievement of my qualification as listed above.

…

16 In addition to my role at Miller & Co Advocates, I have previously undertaken work which has required me to utilise my bilingual skills to complete the task in hand. For example, translating documents, recordings, and survey questions from Kiswahili to English and vice versa. Most of these works are from an online working platform Elance… where I worked as a freelance translator (written). I have also translated orally in campus (Moi University) where some Americans were involved in a programme that aimed to instil computer skills to the local community and students. I was part of the team involved in teaching. Translation took place when the Americans needed to talk to the locals, where some had difficulties understanding English.”

iii) Bernard Muchiri Kariuki:

“7 At the time of me creating my first affidavit I was educated to secondary standard having attained a Kenya certificate of secondary education at Sacred Heart High School. Throughout the course of my studies, lectures were delivered in the Kiswahili and English languages. I have therefore applied my knowledge of these languages to a high standard culminating in the achievement of my qualifications as listed above.”

iv) Joseph Kamau Kiiru:

“At the time of me creating my first affidavit I was educated to university standard having attained a bachelor of laws (LLB) at Duomo Kenyatta University of Agriculture and Technology. Throughout the course of my studies, lectures were delivered in the English language. I have therefore applied my knowledge of this language to a high standard culminating in the achievement of my qualifications as listed above.”

v) Ann Njeri Kamau:

“At the time of me creating my first affidavit I was educated to university standard having attained a diploma in mass communication at the Mombasa Polytechnic University. I was also a licensed emergency medical technician 1. Throughout the course of my studies, lectures were delivered in the Kiswahili and English languages. I have therefore applied my knowledge of these languages to a high standard culminating in the achievement of my qualifications as listed above.

…

16 In addition to my role at Miller & Co Advocates, I had previously undertaken work which has required me to utilise my bilingual skills to complete the task in hand. For example, I am a TV host on Inooro TV which is a Kikuyu station. I have also been an actor in local play productions that were done in my mother tongue, Kikuyu.”

vi) Hiram Thume Kimotho:

“At the time of me creating my first affidavit I was educated to diploma level having attained a diploma in performing arts. Throughout the course of my studies, lectures were delivered in English. I have therefore applied my knowledge of this language to a high standard culminating in the achievement of my qualifications as listed above.

…

16 In addition to my role at Miller & Co Advocates, I have previously undertaken work which has required me to utilise my bilingual skills to complete the task in hand. For example, I have worked for Masafa arts production (theatre group) translating, writing and directing film scripts from English to Kikuyu languages and vice versa and also worked with Inooro television which is a Kikuyu television station. I am also an actor, and I perform in three languages; Kikuyu, English and Kiswahili.”

1. 1. I have set out in full the experience. It is worthy of note that:

(a) None had legal translation experience

(b) Three had some translation experience

(c) None had an English language qualification or a qualification in translation.

Evidence of preparation of translations

1. 1. All the six witness statements contain the following paragraphs:

“9 The main purpose of my role was to translate the contents of witness statements and part 18 responses from the English language into the Kikuyu language, and vice versa, to attest the accuracy of those translations. I would also act as an interpreter during the course of the Test Claimants interviews, which would entail providing an accurate and truthful translation of the Test Claimants recollection of events arising out of the state of emergency.

…

11 Due to the passage of time I am unable to recall every document that I created or modified.

12 Also due to the passage of time I am unable to state on oath exactly when I created the documents attached to each of my affidavits and if they were not created by me who was responsible for creating or modifying those documents attached to my previous affidavit.^[27]

13 Where I have signed an affidavit, I can confirm that I was present during the interview and accompanied by a UK lawyer when the Test Claimant confirmed the accuracy of the document they were signing by thumb printing the document after this had been read to them line by line in their native language. Any corrections that were required such as spelling or alterations were made whilst the Claimant was present as part of the interview process and read again to the Claimant before they thumb printed the same.

14 At the time of conducting the translation process with the Claimant I had access to the original English statement and a translated Kikuyu version of this document which I read out to the Claimant from the Kikuyu version in order to verify the contents as being correct. The translated Kikuyu version of the statement was translated from English by a member of Miller & Co Advocates translation team. I was involved in this process of converting the documents from English into Kikuyu. A Kikuyu statement that I verified with the Claimant may not necessarily have originally been translated from English into Kikuyu by me.

15 Part 18 responses to the questions were prepared entirely on the basis of information provided by the Test Claimants during the course of their respective interviews, which were subsequently approved by the Test Claimants on the date of their thumb print as found in the part 18 responses.”^[28]

1. 1. Four of the six translators “specifically recall creating or modifying Test Claimants’ documents^[29].” This is a small percentage of the overall documents. As to the rest, it is not clear that any translator actually created that document. This is because of the sentences in the witness statements which say that the translated Kikuyu version of the statement was translated from English by a member of the Miller & Co Advocates translation team. The evidence from the individual translators is then that they were involved in the process of converting the documents from English into Kikuyu, and “a Kikuyu statement that I verify with a Claimant may not necessarily have been translated from English into Kikuyu by me.”

   2. The other two translators specifically stated that they “did not create any of the original translated documents” and “only read the documents out to the Claimants”.

   3. There remain two translators who did not file witness statements. Mary Kathome Riungu could not be traced and Lawrence Murage Mwiga agreed to attend Miller & Co, the lead solicitors’ agents’ offices in Nairobi. He then failed to turn up and could not thereafter be traced^[30]. There is no detail of their qualifications and experience, or any other information in respect of the translations they are said to have carried out.

   4. Apart from the concerns which appear in the above analysis of the six translators’ statements, and the fact that there is no statement or any information from the other two translators, the court takes account of those to which I have made reference in the translators’ judgment.^[31] In addition, the process of obtaining evidence before the translators became involved in the formal witness statements and Part 18 replies reduces confidence in these documents.

TC34 translation

1. 1. As far as translation of the key TC34 documents is concerned:

• His first and main witness statement is dated 27 October 2014. It is in English. It is thumb printed by TC34 and contains two declarations by the case worker^[32]. There is also an endorsement “I Freddie Cosgrove-Gibson solicitor was present throughout throughout (sic) taking of this statement and signature 27/10/2014.” This accords with how Mr Myerson QC told the court on 10 December 2014 the first witness statement for each of the Test Claimants had been taken. There was no Kikuyu translation “because what happened was those claimants were seen, the interpreter was there, the statement was written in English and read back to them being translated by the person who had translated it into English.”

• There is then an affidavit from Lawrence Murage dated 10 April 2015. He says he is proficient in the English language. He also says that he read the witness statement attached. This is in Kikuyu. He states that TC34 appeared to understand the documents and approved its content as accurate and the declaration of truth and the consequences of making a false declaration. He made his mark in the presence of Mr Murage. Mr Murage says that the English translation of the document (the original statement of 27 October 2014) is a faithful translation from the Kikuyu language.

• On the same day, 10 April 2015, the Part 18 responses were prepared. Here there is a Kikuyu version and an English version of the same date. The translator is again Mr Murage.

• There is a supplemental statement from TC34 dated 30 March 2016. This is in English and Kikuyu. The translator is Jason Kibe Kimotho.

1. 2. It will be recalled that Mr Murage was one of the translators who failed to respond to further attempts to communicate with him and from whom there is no witness statement complying with the court order.

      1. The Defendant prepared a schedule^[33] to TC34’s closing submissions. This set out 17 differences between the translation of the Part 18 response served by the Claimant and the Wolfestone translation obtained by the Defendant.

   3. The Defendant chose to highlight two particular differences. They are these:

i) In paragraph 22 of the AIPOC it states: “on arrival at the Mackinnon Road camp, the claimant was questioned by a British officer and an African regarding the whereabouts of some guns.” The Part 18 question asks for details about the British officer. The Part 18 response records:

“The claimant cannot state in any more detail a description of the uniform. All he can say is that they were white and spoke English. The claimant does not know his name…”

The Wolfestone translation is slightly different but, the Defendant says crucially, does not contain the statement “all he can say is that they were white and spoke English.” The Defendant says that this reference to skin colour and language are highly material additions to the Claimant’s translation given the liability issues in the case.

ii) Paragraph 32 of the AIPOC alleges that whilst at Gikuni camp a man hit him with the butt of a gun asking him why he did not stand up. The Part 18 request asked for details of the man and the recorded response is “it was a Home Guard. He cannot remember his name.” The Wolfestone translation is “he was a guard and the claimant cannot remember the name. No. The claimant does not have any other information apart from what he said before. The claimant does not know whether they had been employed by the British government, the rest is an argument of law.” The Defendant says that given the identity and employment status of alleged perpetrators are material issues in the case, the Claimant’s translation contains a material addition, i.e. the “Home Guard”, and a material omission, namely ignorance as to employment status.

Conclusions as to translations in TC34’s case

1. I have carefully considered the two material differences and also read the remaining differences in the schedule relating to TC34’s Part 18 responses. Although I can see some merit in the Defendant’s concerns, as to pure translation matters, these do not weigh heavily on my mind. The two referred to are of some relevance, but many are much less so. The second one is mentioned later in this judgment when I come to the Gikuni core allegation. In any event, the Defendant has had the relevant documents translated by Wolfestone and, if necessary, any benefit of doubt might, depending on the circumstances, be given to the Defendant on these translation issues. In summary, in TC34’s case, I do not consider the discrete matter of translation of witness statement and Part 18 response from the Kikuyu to English (both of which we have) to be an outstanding matter of real significance.