Korean man who claimed interpreter ‘impeded’ his understanding of rape trial loses appeal against conviction

Lord Carloway

A Korean man found guilty of rape who claimed that he did not receive a fair trial because the interpreter at the trial “impeded” his ability to understand the proceedings has failed in an appeal against his conviction.

The Criminal Appeal Court refused the appeal after ruling that the appellant had not suffered any prejudice as a result of his alleged lack of understanding.

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Bracadale, heard that the appellant San Lee was sentenced to four years and six months imprisonment in July 2014 after being convicted of rape following at trial at the High Court in Edinburgh.

The note of appeal raised the issue of whether the appellant had a fair trial in circumstances in which, having initially stated that he did not want an interpreter at all and then changing his mind, the interpreter impeded rather than improved his understanding of the proceedings.

The note also contended that the trial judge erred in her directions on “reasonable belief”.

The appellant, who came to the UK from Korea at the age of 14 with no English because of a desire to become a professional footballer, complained that the interpreter “had not been properly qualified” as he did not possess the Diploma in Public Service Interpreting.

It was argued that the standard of his interpretation had fallen below “acceptable standards” and “failed to provide an adequate procedural safeguard”.

The appellant maintained that he could not understand the court proceedings at the preliminary hearing as the interpreter would “miss out a lot and was very slow”.

He formed the view that his interpreter was from the South East of South Korea as he had a “very strong accent” and sometimes the appellant did not know what the interpreter was saying in Korean.

The appellant had raised his concerns with his counsel and the matter was discussed with the judge, but the appellant was not able to follow the discussion between his counsel and the judge and the interpreter’s attempts to explain it to him were unsuccessful.

During the trial the appellant became angry because of the standard of interpretation and told the interpreter that he was mumbling and going around in circles and that he needed him to talk faster.

In support of the ground of appeal two reports and an affidavit from Professor Isabelle Perez, a Professorial Fellow in Languages and Intercultural Studies in the School of Management and Languages at Heriot-Watt University, were produced, which concluded that the interpreter was “not sufficiently qualified”.

Given his limited competence in English, the unknown quality of the Korean interpretation and the unfamiliar technical legal content of the output, it was said that the appellant’s ability to understand what was being said had been “impaired” and the trial judge had not followed the recommendations contained in chapter 5 of the Equal Treatment Bench Book.

However, the appeal judges observed that the interpreter did have the Certificate in Public Service Interpreting from the Glasgow Interpreting Service, which was the predecessor of the DPSI and in any event, the interpreter had 10 years’ interpreting experience.

The booking form, which the Scottish Courts and Tribunal Service and its contractor Global Language Services Ltd use, specified the interpreter’s qualifications correctly and did not suggest that he did “not fully meet the requirements sought”.

“There is nothing to demonstrate that the interpreter did not possess the necessary skills and qualifications or that he was anything other than efficient and professional in the service which he provided,” Lord Carloway added.

Delivering the opinion of the court, the Lord Justice General said: “For the court to entertain a complaint of this kind, it must be satisfied that the appellant might have been prejudiced by his lack of understanding. There is nothing substantial to indicate that this appellant might have suffered prejudice. Although the court has the primary obligation to ensure the fairness of the trial proceedings, the conduct of the defence is essentially a matter between an accused and his representatives.

“If there had been any continuing difficulty with the interpreter, the appellant could have drawn that to the court’s attention, through his representatives. On the basis that the minute of 25 June 2014 records that any issue with the interpretation would be re-visited at lunchtime ‘if need be’, in the absence of any further complaint, the judge was entitled to assume that any issue had resolved itself and that there was no ongoing difficulty.”

In relation to the second ground of appeal, the court observed that there was an error in the judge’s use of “reasonable” in the impugned direction, but the appeal court concluded that this was “clearly a linguistic slip”.

Lord Carloway continued: “The tenor of the charge, however, would have been clear to the jury; viz. that, if they considered that the appellant believed that the complainer had consented, they required to acquit if that belief was reasonable (or had a reasonable doubt about that).

“There is a more significant misdirection, which is not strictly raised in the appeal, where the judge directs the jury that, if the appellant reasonably believed that the complainer was capable of consenting, they should acquit.

“It is not clear why, having given the jury clear directions on the requirements for proof of rape, the judge engaged in this curious frolic. However, if anything, it favoured the appellant and no miscarriage of justice can be seen to have occurred.”