USING TRANSLATORS: COURT HEARINGS AND WITNESS STATEMENTS: WHERE CAN IT ALL GO WRONG

In  Alam v Alam & Anor [2023] EWHC 1460 (Ch) the Court had to deal with issues relating to translators and witness statements.  There were several issues in relation to the use of translators.  The evidence of one witness was excluded altogether.

“… the irregularities in connection with the preparation and admission of Mr Rafiq’s witness statement have tainted his testimony and I cannot safely rely on his evidence as an accurate and reliable account.  I have thus excluded his evidence altogether from consideration”

THE CASE

HHJ Halliwell (sitting as a High Court Judge) was giving judgment in a complex commercial/family dispute.  Most of the witnesses had given evidence via interpreters.  The evidence of one witness, however, went badly awry.

THE WITNESS

There were major problems with the evidence of Mr Rafiq.

(xviii)      Mr Rafiq
  1. Mr Rafiq was called to give evidence as a long standing family acquaintance.  He is elderly, at least 87 years of age. When cross examined, it soon emerged there were substantial irregularities in connection with the preparation of his witness statement. 
  2. On the basis that Mr Rafiq does not speak or understand English, a signed witness from him, in Urdu, was filed at court together with an English translation supported by the translator’s certificate that the translation was accurate with a view to satisfying the procedural requirements of Practice Direction 32 Paras 18.1 and 23.2.  The English translation was accompanied by a certificate of compliance with these requirements together with Practice Directions 57AC and the Statement of Best Practice in the Appendix to PD 57AC.  However, there was no certificate under PD 22 Para 3A.1, applicable where a statement of truth is signed by a person who is unable to read the document other than by reason of language alone.
  3. Mr Rafiq speaks Punjabi according to a Pakistani dialect.  This shares the same script as Urdu.  However, in cross examination, it emerged that he does not speak Urdu and is not able to read and understand the Urdu script.  He was thus able to read neither his signed copy of the witness statement nor, of course, the English translation. His witness statement had been prepared following a process in which Mr Rafiq provided his account of events, in Punjabi, using Adil as a translator, to a solicitor who does not speak Punjabi. It appears the witness statement was initially prepared in English then translated into Urdu.  It was then translated back into English. This was then certified as a valid translation.
  4. Owing to the irregularities in this process, Mr Rafiq was called to give evidence twice so as to obtain clarification, on the second occasion, about the process of preparation and Mr Rafiq’s understanding of the evidence.  On the first occasion, he appeared confused about the process of preparation suggesting, at one point, that Pervez’s solicitor had read out the statement to him in Urdu.  On the second occasion, inconsistencies in his testimony soon emerged which are at least potentially explicable by the process in which his statement had been prepared.  For example, when answering questions from Mr Croxford it emerged that, contrary to Paragraph 6.1 of his witness statement, Arshad’s youngest son is not married to his grand-daughter, rather he is married to the daughter of Mr Rafiq’s nephew.  When it was then put to Mr Rafiq that this was because he had “just accepted whatever’s been read to you or put in front of you and been prepared to accept that as your evidence”, he replied in the affirmative (Day 37/27/1-4).
  5. In my judgment, the irregularities in connection with the preparation and admission of Mr Rafiq’s witness statement have tainted his testimony and I cannot safely rely on his evidence as an accurate and reliable account.  I have thus excluded his evidence altogether from consideration