Opinion
Communicating Rights to Non-Native Speakers of English
2nd Dec 2015
Communicating rights to people whose first language is a language other than English can raise significant questions – including whether there has been sufficient understanding of these rights. New Guidelines for Communicating Rights to Non-Native Speakers of English provide assistance in ensuring that non-native speakers of English understand their rights when they encounter the criminal justice system. The Guidelines are also helpful to consider for individuals generally seeking redress or legal assistance.
The 2014 Western Australian case of an Aboriginal speaker of Pintupi charged with murder has highlighted problems for non-native speakers of English in understanding the right to silence in police interviews. In a pre-trial hearing in this case, Justice Stephen Hall ruled that the suspect’s confession to murder was not voluntary because he did not understand the right to silence, and he should have been provided with an interpreter.
In September this year, the Chief Justice of Western Australia told ABC News that this is not an isolated problem, and the lack of interpreters, which can affect all stages of the criminal justice system, may result in innocent people being sent to prison.
Questions which arise for police in interviewing non-native speakers of English, and for lawyers in defending such suspects include:
- Does the suspect speak “enough English” to understand?
- How can the rights be made more comprehensible?
- When is an interpreter required?
- How can a suspect’s understanding be assessed?
New Guidelines
These are questions addressed by the international Communication of Rights Group (CoRG) in its recently released document titled Guidelines for Communicating Rights to Non-Native Speakers of English in Australia, England and Wales, and the USA.
The group comprises 21 linguists, psychologists, lawyers and interpreters in these three countries. Drawing on linguistic and psychological research, as well as our collective experience of working with specific cases, CoRG’s guidelines document has set out seven recommendations (summarised below). An appendix provides references to studies of comprehension of rights by native speakers and non-native speakers.
While current research shows that even native speakers of English do not always understand the rights delivered to them, the focus of these Guidelines is on non-native speakers. Even if they can maintain a conversation in English, non-native speakers may not have sufficient proficiency to understand legal terms, complex sentences, or English spoken at fast conversational rates.
Recommendations 1 and 2: the wording of the caution
The first two recommendations are about the wording of a caution.
#1: Use Standardized version in Plain English (Clear English). This recommendation gives guidance on the drafting of a Plain English version, providing examples of linguistic features to avoid, and others to use wherever possible. Any such drafting should involve consultation with police officers, defence lawyers, and experts in linguistics.
#2: Develop standardized statements of rights in other languages. In Australia, the Northern Territory is leading the way with a project doing this for the 18 most commonly used NT Aboriginal languages. (This is a joint project of the Northern Territory Police and the Aboriginal Interpreter Service.)
Recommendations 3-7: communicating the caution
While attention to the actual words and sentence structures used in communicating the rights is essential, it is not enough. The remaining 5 recommendations deal with the communication of the rights:
#3: Inform suspects about access to an interpreter at the beginning of the interview.
#4: Present each right individually, clearly, at a slow pace and repeat if necessary.
#5: Do not determine understanding by using Yes or No questions.
Positive answers to yes/no questions, such as Do you understand English? do not constitute evidence of language proficiency sufficient to understand legal rights/cautions. Further, the same is true about the use of questions, such as Do you understand?, after delivery of each right. There are many reasons why suspects may say yes, regardless of whether they actually understand their rights.
#6: Adopt an in-your-own-words requirement.
After each right has been presented, police officers should ask suspects to explain in their own words their understanding of that right and of the risks of waiving this right, as explained by the police officer. If suspects have difficulties restating the rights in their own words in English (e.g. if they repeat the words that have just been read to them or if they remain silent), the interview should be terminated until a professional interpreter, with expertise in legal interpreting, is brought in. This should be done even if a suspect had earlier declined the offer of interpreting services.
#7: Video-record the interview.
Relevance to civil proceedings
While the Guidelines have been framed with the criminal justice system in mind, the Guidelines are also of utility to practitioners providing advice or obtaining instructions from clients for civil matters.
Taking it from here
The Communication of Rights Group hopes that the recommendations will result in moves to better protect the rights of non-native speakers of English. And it is expected that most of the recommendations are also relevant to some extent to native speakers.
There is no copyright on the Guidelines document, and CoRG welcomes its dissemination to any interested people or organisations.
Diana Eades is an Adjunct Professor in Linguistics at the University of New England. She has been researching the use of English by, to and about Aboriginal people in the legal process for more than 25 years, and is actively involved in the application of research as expert witness and in judicial and legal education. Together with Professor Aneta Pavlenko of Temple University, USA, Diana convenes the Communication of Rights Group.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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