Ireland's District Court: Language, immigration and consequences for justice

Ireland’s District Court

Ireland’s District Court

Language, immigration and consequences for justice

KATE WATERHOUSE

Manchester University Press

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distributed in the United States exclusively

by Palgrave Macmillan

Copyright © Kate Waterhouse 2014

The right of Kate Waterhouse to be identified as the author of this work has been asserted by her in accordance with the Copyright, Designs and Patents Act 1988.

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Contents

List of tables and figures

Preface

Acknowledgements

Abbreviations

Guide to extracts from District Court field notes and interviews

Introduction

Part I:  The Irish District Court: its role, function and day-to-day operation

1  Introducing the District Court

2  Barristers, bench warrants and bail bonds

Part II:  Immigration and the Irish District Court: changing context, new challenges

3  LEP immigrants in Irish courts

Part III:  Processing LEP defendants: bilingual cases in the Irish District Court

4  Interpreting District Court proceedings for non-Irish defendants

5  The case of the immigrant: dynamics and discourse

Conclusion

Appendix A: Methodology

Appendix B: Participants

Appendix C: Glossaries of District Court language and jargon

Appendix D: Vignette: unrepresented French defendant

Appendix E: Vignette: dismissal of Polish interpreter

Bibliography

Index

List of tables and figures

Tables

1  Types of offences dealt with by the District Court

2  Sentences of imprisonment by court

3  Committals to Irish prisons

4  Cases processed by the District Court: summary, indictable, sent forward

5  Cost of court language services

6  Committals of non-Irish offenders to Irish prisons

Figures

1  Communication structure in the District Court

2  Communication through Competent Interpreter

3  Communication through LEP/Selective Interpreter

Preface

This book originated in a PhD research thesis carried out in the School of Social Work and Social Policy in Trinity College Dublin under the supervision of Dr. Eoin O’Sullivan, and within the context of the then Trinity Immigration Initiative (TII); it was financed in part by a Trinity College studentship and in part by the TII. The field research period spanned 2009 and 2010 and involved eighteen semi-structured interviews with solicitors, barristers and interpreters, as well as seven months (or a total of forty-five days, or 183.5 hours) sitting as a fascinated observer in a number of District Courts: one, a busy city centre court in Dublin; the second, a custody court outside Dublin city centre; and the third, which appears in the text collectively as a ‘rural court’, a set of three courts in medium to large towns outside of Dublin, between which the same judge moved on different days. A total of twelve judges and a vast number of defendants and cases, probably in excess of a thousand, were observed.

The research, which began as part of a wider immigration project, initially aimed to observe how the cases of immigrants with few or no English-language skills (Limited English-proficient, or LEP) were dealt with by the Irish District Court on the basis that rising numbers of LEP defendants were being processed by the justice system; that the District Court was inevitably dealing with the vast majority of them; and that while language and interpreting issues were being identified as a major issue in Irish courts (and have proven historically and theoretically to be of great import), nothing was known about the new reality of enforced contact between court and LEP immigrant or the implications for justice and the justice system of how both sides reacted and interacted. As observations began, however, and the structure of District Court proceedings meant also being present for hundreds of non-LEP cases, it quickly became apparent that not only were such cases extremely interesting per se in terms of understanding the structure and nature of proceedings in the District Court, but that the question of how LEP defendants were processed, and any analysis of how interpreting facilitated that process, was intrinsically linked to the basic structure and discourse of the generic District Court case and to the characteristics and dynamics of the District Court itself.

The result is an original decriptive analysis of the language, discourse and procedure of the District Court as well as an analysis of the significant changes made to the caseload and processing of the District Court by the advent of the LEP defendant, and the implications of those changes for justice.

Acknowledgements

It is difficult to express and impossible to quantify the degree of support I have been given in completing this book. The funding and support of Trinity College and the Trinity Immigration Initiative, and the additional support and opportunities afforded by the School of Social Work and Social Policy and its heads – first Prof. Robbie Gilligan and then Dr. Eoin O’Sullivan – have been far-reaching and are much appreciated. For the other hats of supervisor, mentor and supporter that he has worn in this process, I owe Eoin further debts of sincere gratitude. For their enthusiasm, support and invaluable feedback as my PhD examiners, I sincerely thank Prof. Ivana Bacik and Prof. Donncha O’Connell. Thanks for further financial support go to Westmeath County Council and to the Polish Embassy for providing a wonderful scholarship to study in Warsaw. Many, many people facilitated and took part (often unknowingly) in the research process that has led to this book, and I would like to express my appreciation of the help and support provided by the Irish Courts Service, the President of the District Court and the President’s Office, the registrars who took time out of their busy day to help me, and the judges, court staff, court participants and all of the research participants who gave so generously of their time, expertise and experience. For the support, belief and unfailing encouragement of my friends and family, I cannot thank them enough; I will not forget the calls, the coffees, the lunches and the Lemsips that somehow materialised when needed. Particular appreciation and recognition is due for the support and contributions of Niall MacGiollabhuí, Natalie Woodward and Alana Smith, and, as ever, deepest thanks to Tom Waterhouse for being both a rock and a brick. Finally, I would like to thank Manchester University Press most sincerely for their support.

Abbreviations

Guide to extracts from District Court field notes and interviews

Chapters 2, 4 and 5 are based directly on interviews and ethnographic research carried out in a number of Irish District Courts in 2009 and 2010 (Appendix A (Methodology); Appendix B (Participants)). All citations are from interviews or court observations.

Interviews

The eighteen interviewees are anonymised as follows:

Interpreters: Svetlana, Anna, Marta, Mihai, Belén, Molly, Stella, Jevgenius and Ewa

Barristers: Aoife, Eleanor and James

Solicitors: Matthew, Gerard, Thomas, Gwen, Stephen and Mark

District Court field notes

The courts and judges are referred to as follows.

The first, a Dublin city centre criminal court, is called City Centre Court and is abbreviated as ‘CitC’. The relevant judges from this court are anonymised as N, R, T, U, V, W and X.

The second, a custody court outside Dublin city centre, is called Custody Court and is abbreviated as ‘CusC’. The relevant judges from this court are anonymised as O, P, Q and S.

The third, a set of three courts in medium to large towns outside of Dublin between which the same judge moves on different days, is collectively called Rural Court and is abbreviated as ‘RC’. The relevant judges from this court are anonymised as Y and Z.

Where standard or common phrases and terms are quoted, the court/judge is not distinguished. Notes, quotations and dialogue from court were recorded by hand during proceedings and are not taken from transcripts. Text which represents the essence of what was said, rather than being a verbatim (or as close to that as possible) transcription, is denoted by square brackets.

In the course of observations for this study, oaths rather than affirmations were observed, such that the term ‘oath’ is used here throughout. However, there are undoubtedly circumstances in court where an affirmation rather than an oath is administered.

Introduction

Years ago, we had trouble here in the city from other sailors who came from his part of the world. They did a great deal of damage, stayed for a considerable time and caused a lot of upset to the people of Dublin. I want him to understand that this kind of behaviour cannot be allowed to happen again. (Kotsonouris 2011:132)

Such was the message that a District Court judge urged the consular official from the Norwegian Embassy to explain – presumably in the Norwegian tongue – to a crew member from a Norwegian ship recently docked in Dublin, who was up before that judge on charges of being drunk and disorderly. Kotsonouris (2011:132) goes on to reveal: ‘The startled official was obliged to enlighten his compatriot on the Viking invasion of a thousand years before, still a sensitive issue in Court No. 6 of the Bridewell!’

Those unfamiliar with the Irish District Court might be tempted to shrug this off as folktale, fable or fantasy, having in their minds an image of the grandeur and solemnity of the formidable arm of justice that is the courts system. Yet, while there is something of pageantry and formality in the archaic forms of address, the occasional barrister in robes and the incidental interpreter addressing the judge as ‘Your Majesty’, the District Court is fundamentally a world of incomprehensible, organised chaos where those accused of stealing rabbits and misplacing chinchillas rub shoulders with murder suspects and TV licence renegades, and where judges mysteriously ask for directions, solicitors request dates and defendants are promised books.

This book aims to unravel the mystery and the chaos. It examines the institution of the District Court, dissecting its procedure and the language that both forms the basis of and facilitates the court’s heavy workload. It sets out in particular to capture an important change in the District Court over the last twenty years: the advent of the immigrant or the Limited English-Proficient (LEP) defendant. These defendants can bring an element of humour, like the Polish defendant on drunk driving charges who suggested he had ‘eaten too many apples’; they sometimes create confusion, like the French defendant who insisted that his occupation was ‘pestry chefffff’ or the ‘Polish’ defendant that did not speak any Polish; and they may just as easily become confused, like the silent defendant sent off by the judge to ‘write to Santy’ or the fluent English speaker from Pakistan whose case was inexplicably remanded for an Urdu interpreter. The interpreter that appears might remain bafflingly silent, they may unobtrusively interpret proceedings, or they might get deeply involved, like the Romanian interpreter that challenged the Garda expert witness or the interpreter – a former priest – who tried to convince a client to confess to murder.

Issues of language and language barriers in the Irish courtroom have a lengthy history. Following and almost identical to the 1731 Courts of Justice Act in England, the Administration of Justice (Language) Act (Ireland) 1737 made English the language of law and the administration of justice, replacing French and Latin on the basis that ‘many and great mischiefs do frequently happen to the subjects of this kingdom from the proceedings in courts of justice being in an unknown language; those who are summoned and impleaded having no knowledge or understanding of what is alleged for or against them’. The Acts aimed ‘[t]o remedy those great mischiefs, and to protect the lives and fortunes of the subjects of this kingdom more effectually than heretofore from the peril of being ensnared, and brought into danger’ by ensuring that henceforth ‘all proceedings … which concern the law and administration of justice, shall be in the English tongue and language, and not in Latin or French, or any other tongue or language whatsoever’.

While great mischiefs may well have been avoided where English was also the tongue of those appearing in courts, the Irish Act was not necessarily designed or destined to avoid the same in the Irish courtroom. On the contrary, some accounts from the nineteenth century suggest that the ‘foreign’ English tongue was a source of very great mischief indeed.

‘Come, come – English. Swear him to know whether he does not understand English. Can you speak English, fellow?’ ‘Not a word, plase your honour’

The scene is a fictional nineteenth-century court in which an Irish speaker, Phil Naughten, feigns ignorance of English and frustrates the court with his halting words and simple demeanour (Griffin, 1979:379–80), but non-fiction accounts present the same theme. Waldron (1993), for example, in documenting an infamous murder trial that took place in Maamtrasna on the Galway/Mayo border, describes a key witness who ‘would not answer when asked did he speak English – a well-known ploy in courtrooms. Many non-English speakers could understand it adequately, but to think out their replies while the interpreter was translating, they feigned total ignorance.’

Hickey (1999), who analysed these and other examples, found two opposing stereotypes of those using Irish language interpreters in courts under British rule, the first being fearless, manipulative peasants with a passion for the court and an innate understanding of how to exploit the system: ‘extrovert’ witnesses who avoided direct answers in a ‘whelter of rhetoric and skilful wordplay’, and ‘introvert’ witnesses – as above – who said nothing or very little as ‘[i]gnorance of law and language was easily feigned and could form a most effective, if less entertaining, barrier between the court and the truth’ (Hickey, 1999:94). The second stereotype was that of the downtrodden peasant, oppressed by laws of which he or she was ignorant and suffering the ‘crippling handicap’ of lacking fluency in the English language.

Indeed, there is evidence of judicial attitudes that correspond to both stereotypes. A study of Mayo petty sessions from the nineteenth century showed that magistrates, tiring of ploys that involved feigning ignorance of English, used interpreters grudgingly, if at all, to hear prosecutions in Irish after the early 1830s (MacCabe, 1985). Ní Dhonnachadha (2000) found that interpreters were present at a great number of important trials throughout Irish history, and that judges traditionally viewed them as rogues who would not obey their oath, though they did not consider them to have any outright effect on proceedings. In the Irish case of R. v Burke, on the other hand, where the necessity of an interpreter for a key defence witness was challenged on the basis of their having spoken to two other witnesses and sung a song in English, the leading judgment showed sensitivity to the difficulties of communicating through a language that is not one’s own, and acknowledged that a few words in a language does not a fluent speaker make:

I apprehend it is perfectly possible that the witness was actuated by an honest motive in wishing to be examined in Irish. He may have wished to express himself in the language which he knew best, in which he could most clearly express his thoughts, … and certainly if every lady who sings an Italian song is to be taken on that account to have a perfect knowledge of the Italian language, I can only say that a great number of ladies may very easily find themselves placed in a very unpleasant position indeed. (R. v Burke, 1858)

More than 150 years later, the situation of the LEP defendant in the Irish court presents issues not dissimilar to some of those discussed. This book traces the rise of such defendants through a number of years of sustained immigration and looks at the development of services designed to respond to that rise. Set in the District Court, which deals with the vast majority of LEP (and Irish) defendants, it provides an account and an analysis of how the District Court processes those defendants, and how this new defendant profile has impacted on the court. It is hoped in so doing to fill an existing void in what we know about how the District Court functions in practice, and specifically about its procedure in dealing with non-Irish defendants.

The book is organised into three parts. The first comprises Chapters 1 and 2 and is concerned with the role, function and day-to-day operation of the District Court. Chapter 1 introduces the Irish District Court as the lowest yet busiest court in the ordinary courts system, examining the type of crime it deals with and the extent of its criminal jurisdiction in terms of offences and sanctions. It then moves on to look at the nature of proceedings, how offences are processed and at the characteristics of some of the main participants (notably the prosecution, judges and defendants). Finally, it explores the legal process in terms of legal language and courtroom discourse on the basis that the District Court is a predominantly verbal arena. Chapter 2 then goes on to provide an original description of discourse and procedure in the Irish District Court based on a research study involving seven months of ethnographic observation of a vast number of cases in several different courts, and on a series of interviews with solicitors, barristers and interpreters – though the interpreter accounts mainly apply to the third part of the book. Further in this chapter, an account is provided of the type of language used in court and how language use differs among participants, and the typical or generic District Court case is broken down into its constituent parts in a detailed examination of how the characteristics of District Court language can impact on and be observed in different aspects of procedure.

The second part, which consists solely of Chapter 3, sets the scene for the changing context resulting from the impact of immigration on the Irish District Court. Here, a discussion of how the need for language services in the Irish courts system grew, and was responded to, moves into a more theoretical dialogue on the role of interpreters in the criminal process and the basis on which LEP defendants have recourse to interpreters in that process. Consideration is given to how the need for interpreters is balanced against other demands of justice and procedure; and consideration is also given to how the developing interpreting system in Ireland has been evaluated in terms of quality and satisfaction.

In the third and final part of the book, which is made up of Chapters 4 and 5, an account is provided of the practical impact of immigration on the District Court. This section is also based on the research study and involved observation of over 370 LEP cases and detailed interviews with interpreters and legal professionals. Chapter 4 looks at the operation of the District Court in cases involving LEP defendants. It considers how and when interpreters are provided, evaluates the interpreter’s role in court and creates an original typology of District Court interpreters, which classifies how and the extent to which interpreters variously interact in and with the interpreted case. Chapter 5 describes in detail how interpreting has been incorporated into, become a feature of and impacted on District Court proceedings, and how the characteristics and dynamics of District Court proceedings impact on the interpreted criminal case in unprecedented ways. It also provides a modified description of the generic District Court case described in Chapter 2, detailing how the interpreted case can differ both linguistically and substantively.

The book concludes with a discussion of where theory, practice and reality meet, ultimately considering how the District Court has altered as an institution and how this is affected by and responds to the need and ability of LEP defendants to access justice in Ireland’s District Court.

PART I

The Irish District Court: its role, function and day-to-day operation

1

Introducing the District Court

Within the court itself, no room. Three hard benches, and the unlucky ones line the walls. It gets too hot, too cold, too stuffy, too noisy, too quiet. Even the gardai¹ don’t know how to use the microphones. The Justice is irritated. Justice is flawed. The solicitor arrives late. Justice is delayed. The lists are long and the bailsmen have to come back the next day. People don’t know what to do and other people are too busy to help them. Tempers flare, spirits flag, and the long hopeless grind grinds on.

McCafferty (1981:3–4), above, describes her experience of the Irish District Court where she sat as a journalist for ten years. Her often critical accounts portray the ‘astonishing parade’ of characters she witnessed; the diverse nature of the court’s proceedings, from the trite and trivial and occasionally uproarious, to the frustratingly imperfect and sometimes heart-breaking; and the busy and informal nature of a forum where personal lives are laid bare to the sometimes sympathetic, occasionally curious and often cynical ear of the District Court judge. As a retired District Court judge, Kotsonouris’ (2011) account from the other side of the bench also emphasises the variety of characters that play a role in the District courtroom, the often informal nature of proceedings, and the court’s mixed jurisdiction of humorous incidents that catch the eye and those that involve ‘drama, fury and despair’ (2011:64). Though few descriptive accounts of proceedings in the District Court exist, in those mentioned above judge and journalist identify common features that characterise the court: its busy and somewhat informal nature, the wide variety of people and cases processed by it and its capacity to invoke a wide range of reactions, from amusement, humour, surprise and curiosity to frustration, anger, distress and hopelessness.

The District Court, in exercising its criminal jurisdiction, is the setting for this book and for the study on which it is based. This opening chapter therefore seeks to provide