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HMCS Wales

Magistrates' Courts Protocol for Listing Cases where the Welsh Language is used

Her Majesty's Courts Service has adopted the principle that in the conduct of public business and the administration of justice in Wales it will treat the English and Welsh languages on a basis of equality.

The following guidance should be followed when the court is informed that a party or any of the witnesses wishes to use Welsh during any part of the proceedings. It should be noted that in accordance with Section 22(1) of the Welsh Language Act 1993

“In any legal proceedings in Wales the Welsh language may be spoken by any party, witness or other person who desires to use it, subject in the case of proceedings in a court other than a magistrates' court to such prior notice as may be required by rules of court; and any necessary provision for interpretation shall be made accordingly.”

There is no obligation for an individual to give prior notice in the Magistrates' Court before exercising rights under the Welsh Language Act 1993.

The use of the language by the individual follows the choice of that individual.  The important factor is his or her choice rather than any difficulty with his or her understanding. Accordingly, the individual who wishes to use Welsh in the proceedings, has the right to do so and should not be required to justify or limit the extent to which he does so. The fact that the individual is bilingual and is competent in English does not affect or limit his right to use the Welsh language. Having regard to the principle of equality, it is essential that the use of Welsh does not result in any disadvantage to any of the parties or the witnesses by reason of delay in listing or deficiencies in the arrangements made for interpretation. This Protocol applies to all proceedings conducted in the Magistrates' Courts including civil, family, fines enforcement and any specialist panel hearings.

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Protocol to be followed:  

1. When information is received that the Welsh language will be used in any case, arrangements should be made where possible for that case to proceed without adjournment
2. It will not always be possible to proceed without an adjournment and therefore parties should be encouraged to take advantage of opportunities to give notice, for example:
   
   • Every defendant, applicant or party to proceedings must be informed of their right to use Welsh or English at the earliest opportunity and should be invited to give prior notice of that choice to the court;
   • Every case management, pre-trial review or trial fixing hearing should establish the language choice of defendants, parties and witnesses;
   • At the first hearing in the family proceedings court, the clerk shall ascertain whether any party wishes to use Welsh in the proceedings. It is particularly important to ascertain the first language of any child who is the subject of the proceedings and where appropriate, ensure that a bilingual Guardian is appointed to act for the child.
3. When a case has to be adjourned the chairman of the bench or District Judge should carefully explain the reasons for that adjournment.
4. When prior notice is not given and the court is not constituted of bilingual magistrates and a bilingual legal adviser, consideration should be given to the possibility of making emergency arrangements to allow the case to proceed without adjournment where those arrangements are reasonably practicable under the circumstances and the parties agree. Examples are provided at Annexe A.  It will be entirely a matter for the individual court in every case and these examples are neither exclusive nor binding on any individual court and the decision taken should be announced in open court.
5. When prior notice is received arrangements should be made without exception in all trials for the bench or Judge to be bilingual and it is also good practice to arrange for the legal adviser to be bilingual.  However, when such trials are complex or relate to serious allegations the Justices' Clerk should also arrange for the legal adviser to be bilingual.
6. When prior notice is received in any other type of case' appropriate arrangements should be made for the bench to be bilingual noting, that where evidence is not given the bench could be constituted of only two magistrates. Depending on the type of hearing it may also be acceptable to undertake some of the arrangements outlined in Annex A or arrange for translators to be appointed.  It is entirely a matter for the individual court, as outlined in paragraph 4, to take that decision.
7. Where a translator is not required in cases where Welsh is used, the chairman may decide to pronounce the decision of the court in both Welsh and English if that is necessary for the benefit of other individuals, not party to the proceedings, who may be present in court who are not bilingual e.g. the press.
8. Interpreters
   When any individual chooses to testify in Welsh any questions, put in English, must be translated into Welsh for his benefit. When there is a need for translation into English and Welsh, it is essential to have two interpreters present. Even in those cases when the case only requires translation into one language (e.g. when both advocates speak Welsh), two interpreters are required for any hearing when the interpreter would have to translate for any length of time so that the interpreters have regular and frequent breaks without delaying or extending the length of the hearing unnecessarily.
9. Only interpreters on the approved list may be used.  In certain exceptional cases when there are child witnesses or issues of unusual complexity for example, and it would be desirable to have especially skilled and experienced interpreters, the Welsh Language Unit should be consulted as to the choice of interpreter.
10. The interpreters should be given every assistance in preparing for the hearing and allowed access to, or be given copies of, the witness statements and copies of the summons/ charge before the hearing to allow them time to prepare and to note any unusual or specialist terminology which may be used during the hearing.
11. The court must ensure that bilingual copies of all oaths /affirmations are available in the courtroom.
12. Translation Equipment
    In most hearings in Magistrates' Courts interpreters will bring their own translation equipment, but this needs to be clarified when commissioning their services.  If the court's equipment is to be used by the translator, then it must be tested at least 7 days before the hearing to allow time to obtain any additional equipment or, if necessary, the services of an engineer. In particular, the court must ensure that there are sufficient headsets for all involved in the case.  There must be a special enclosed headset capable of taking two channels for witnesses who will be questioned by an English speaking advocate or on video link.
13. Special care and planning needs to be put in place where translation is a consideration in special measures cases and where necessary the Welsh Language Unit can be contacted.

The Honourable Mr Justice Roderick Evans

The Honourable Mr Justice Nigel Davis

November 2007

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ANNEX A

1. In a case where evidence is not given and the facts are simple, straightforward and relatively minor e.g. drunk and disorderly or speeding and only the chairman is bilingual matters can proceed with the chairman translating in court or in the retiring room before sentencing.
2. When more than one court is sitting it may be possible to retire to arrange for the benches to be reconstituted to allow a bilingual bench to be formed.
3. In a case where all the parties are bilingual with the exception of the prosecutor or probation officer it may be possible to use the legal adviser to inform or assist those officers.
4. Where the court is constituted of magistrates and a legal adviser with only one magistrate who is bilingual then it may be possible for that individual to take the plea or deal with other preliminary matters before adjourning the case.
5. Where the bench is not bilingual but the legal adviser is bilingual it is possible for pre-trial arrangements to be made with the legal adviser acting as a translator for the bench or the legal adviser can deal with all matters himself where they are within his or her judicial delegated powers.
6. In all cases where purely administrative decisions are being taken a bilingual magistrate can pronounce the decision of the court in both languages where neither the legal adviser nor the other magistrates are bilingual.
7. In contrast where decisions of substance are to be taken e.g bail, sentence or trial where the bench consists of two bilingual magistrates and a third member who is not bilingual that third member could stand down to avoid adjourning the case.