Louise McDougall v. Her Majesty’s Advocate [2015] HCJAC 88

Note of appeal against conviction:- On 28 January 2015, at Dundee Sheriff Court, the
appellant was convicted after trial on indictment of three charges, namely:- (1) a
contravention of section 38 of the Criminal Justice and Licensing (Scotland) Act 2010;
(2) an assault to severe injury and permanent disfigurement; and (3) an attempt to
pervert the course of justice. The complainer in the case was profoundly deaf and
had no speech. The complainer has been assisted and supported for 17 years by a
specialist interpreter trained and qualified in “minimal sign language”, Jennifer
Ramsay. Jennifer Ramsay had interpreted and translated the complainer’s police
statement when his complaint was initially made to the police. The Crown had
intended to use her to interpret and translate the complainer’s
evidence. In advance of trial a compatibility minute was lodged which contended
that in interpreting the evidence in the trial, there was a real risk that the
interpretation would be influenced by her knowledge of the complainer and her
knowledge of the complainer’s earlier police statement all of which may influence
her translation and interpretation and potentially limit the jury’s ability to assess the
complainer’s credibility and reliability. It was also contended that
confusion might arise if, for example, the prior police statement had to be put to the complainer
and the interpreter may also require to give evidence at a later stage in the trial, all
of which, when taken together, would make it inappropriate for Jennifer Ramsay to act
as court sign interpreter and translater, and an alternative interpreter should be
appointed. On 13 January 2015 a hearing on the minute was held in advance of the
trial and the sheriff refused the compatibility minute. The sheriff stated that she did
not think there was a real risk of prejudice to the appellant, however, she considered
there was a real risk to the interests of justice if the complainer’s evidence was not
properly interpreted and that required Jennifer Ramsay. Here it was submitted on
behalf of the appellant that the sheriff had erred and a different interpreter ought
to have been instructed. It was submitted that using Jennifer Ramsay led to a real
risk of apparent bias and the impression to an objective bystander was likely to be
one of partiality, indeed, trial counsel had indicated to counsel instructed for the
appeal hearing that the impression he had during his cross-examination of the
complainer, was that she was siding with the complainer and was sympathetic to
him. It was also submitted that the sheriff’s dismissal of the submission regarding
the interpreter appearing on the list of witnesses and it being unlikely that she
would be called as a witness was incorrect particularly in light of the position of the appellant
that it was only the interpreter, and not the police, who could comment on whether
what the complainer said in evidence was the same as what he had initially stated to
the police through the interpreter. It was submitted on behalf of the appellant that there
was a significant risk of prejudice to the appellant which was not outweighed by any
risk to the interests of justice. Reference was made to the “Guidelines for
Interpreters” as laid down by the Police and Criminal Evidence Act 1984. On behalf
of the Crown it was submitted that even if there had been a procedural irregularity no
miscarriage of justice resulted and the sheriff was entitled to make the decision she
had. Here the court decided that the minute should not have been repelled by the
sheriff, allowed the appeal and refused a Crown motion for authority for a fresh
prosecution. The court noted that whilst it may have been convenient for Jennifer
Ramsay to be appointed as the interpreter for the trial she was by no means the only
interpreter available and the key question was whether there was a significant risk of
prejudice to the appellant and in the present case the issue was not whether she
was intentionally biased towards the complainer but rather whether a fair minded
and informed observer might conclude that there was a significant risk of partiality
and in the present case the court considered that there was. In addition the court
considered that the issue of the interpreter also being a Crown witness was a
substantive issue as the police witnesses at the interview could not have spoken to
the accuracy of the interpretation provided by the interpreter at that time. The court
here endorsed the “Guidelines for Interpreters” as laid down by the Police and
Criminal Evidence Act 1984. The court refused the motion for authority for a fresh
prosecution on the basis that the Crown were not without fault in relation to the
appointment and use of the interpreter at the trial and also the length of time the appellant
had spent in custody.