I – ASSESSMENT OF INTERPRETATION NEEDS A. THE ISSUE Any case in which a possible issue surrounding language assistance arises begins with a key question: is the suspect or accused person in need of such assistance? Fair Trials’ discussions with practitioners in the LEAP network have revealed a number of concerns about the manner in which such assessments are carried out, particularly at the police station when police are operating under time constraints. The following points arose: - The absence of any formalised system for assessing interpretation needs, with the result that instead informal mechanisms are adopted such as police asking questions such as ‘do you understand Italian?’ and proceeding on that basis; - The absence of systems for identifying a person’s real mother tongue; and - The absence of mechanisms for ensuring availability of interpretation for lawyer/client consultations, particularly when the client was being held in a police cell. The problem is the absence of adequate systems for assessing and responding to the precise interpretation need: what language does the person actually speak? Do they understand the interlocutor in the specific context? do they understand the language of the proceedings to the extent required in the context (e.g. in order to be able to answer detailed factual questions)? This is the subject of this section. B. THE ECHR BASELINE There is limited case-law concerning this question, but the ECtHR has, nevertheless, made some statements which provide guidance, in broad terms, on how such assessments should be carried out: 1. A presumption in favour of interpretation if requested In Brozicek v. Italy,15 the ECtHR considered whether the failure to provide language assistance when it was requested had violated Article 6(3)(e). In finding that it did, the ECtHR stated: ‘41. (…) On receipt of this request, the Italian judicial authorities should have taken steps to comply with it so as to ensure observance of the requirements of [Article 6(3)(a)], unless they were in a position to establish that the applicant in fact had sufficient knowledge of Italian (…) (emphasis added).16 Fair Trials reads this case as establishing a (quite natural) presumption in favour of interpretation which must be rebutted by the authorities of the state. However, since a person may not be aware of their right to interpretation and translation, a request is only a starting point. Further case-law describes factors which will normally be relevant for the purpose of assessing interpretation needs. 15 16 Brozicek v. Italy, App. no. 10964/84 (Judgment of 19 December 1989). Paragraph. 41. 15