Annex N: Live-link interpretation (para 13.12)

1. EU Directive 2010/64 (see paragraph 13.1), Article 2(6) provides “Where appropriate, communication technology such as videoconferencing, telephone or the Internet may be used, unless the physical presence of the interpreter is required in order to safeguard the fairness of the proceedings.” This Article permits, but does not require the use of a live-link, and the following provisions of this Annex determine whether the use of a live-link is appropriate in any particular case.

2. Decisions in accordance with this Annex that the physical presence of the interpreter is not required and to permit live-link interpretation, must be made on a case by case basis. Each decision must take account of the age, gender and vulnerability of the suspect, the nature and circumstances of the offence and the investigation and the impact on the suspect according to the particular purpose(s) for which the suspect requires the assistance of an interpreter and the time(s) when that assistance is required (see Note N1). For this reason, the custody officer in the case of a detained suspect, or in the case of a suspect who has not been arrested, the interviewer (subject to paragraph 13.1(b)), must consider whether the ability of the particular suspect, to communicate confidently and effectively for the purpose in question (see paragraph 3) is likely to be adversely affected or otherwise undermined or limited if the interpreter is not physically present and live-link interpretation is used. Although a suspect for whom an appropriate adult is required may be more likely to be adversely affected as described, it is important to note that a person who does not require an appropriate adult may also be adversely impacted by the use of live-link interpretation.

3. Examples of purposes referred to in paragraph 2 include:

(a) understanding and appreciating their position having regard to any information given to them, or sought from them, in accordance with this or any other Code of Practice which, in particular, include:

the caution (see paragraphs C10.1 and 10.12).

the special warning (see paragraphs 10.10 to 10.12).

information about the offence (see paragraphs 10.3, 11.1A and Note 11ZA).

the grounds and reasons for detention (see paragraphs 13.10 and 13.10A).

the translation of essential documents (see paragraph 13.10B and Annex M).

their rights and entitlements (see paragraph 3.12 and C3.21(b)).

intimate and non-intimate searches of detained persons at police stations.

provisions and procedures to which Code D (Identification) applies concerning, for example, eye-witness identification, taking fingerprints, samples and photographs.

(b) understanding and seeking clarification from the interviewer of questions asked during an interview conducted and recorded in accordance with Code E or Code F and of anything else that is said by the interviewer and answering the questions.

(c) consulting privately with their solicitor and (if applicable) the appropriate adult (see paragraphs 3.18, 13.2A, 13.6 and 13.9):

(i) to help decide whether to answer questions put to them during interview; and

(ii) about any other matter concerning their detention and treatment whilst in custody.

(d) communicating with practitioners and others who have some formal responsibility for, or an interest in, the health and welfare of the suspect. Particular examples include appropriate healthcare professionals (see section 9 of this Code), Independent Custody Visitors and drug arrest referral workers.

4. If the custody officer or the interviewer (subject to paragraph 13.1(b)) is satisfied that for a particular purpose as described in paragraphs 2 and 3 above, the live-link interpretation would not adversely affect or otherwise undermine or limit the suspect’s ability to communicate confidently and effectively for that purpose, they must so inform the suspect, their solicitor and (if applicable) the appropriate adult. At the same time, the operation of live- link interpretation must be explained and demonstrated to them, they must be advised of the chief officer’s obligations concerning the security of live-link communications under paragraph 13.13 (see Note N2) and they must be asked if they wish to make representations that live- link interpretation should not be used or if they require more information about the operation of the arrangements. They must also be told that at any time live-link interpretation is in use, they may make representations to the custody officer or the interviewer that its operation should cease and that the physical presence of an interpreter should be arranged.

5. If:

(i) representations are made that live-link interpretation should not be used, or that at any time live-link interpretation is in use, its operation should cease and the physical presence of an interpreter arranged; and

(ii) the custody officer or interviewer (subject to paragraph 13.1(b)) is unable to allay the concerns raised;

then live-link interpretation may not be used, or (as the case may be) continue to be used, unless authorised in writing by an officer of the rank of inspector or above, in accordance with paragraph 6.

6. Authority may be given if the officer is satisfied that for the purpose(s) in question at the time an interpreter is required, live-link interpretation is necessary and justified. In making this decision, the officer must have regard to:

(a) the circumstances of the suspect;

(b) the nature and seriousness of the offence;

(c) the requirements of the investigation, including its likely impact on both the suspect and any victim(s);

(d) the representations made by the suspect, their solicitor and (if applicable) the appropriate adult that live-link interpretation should not be used (see paragraph 5);

(e) the availability of a suitable interpreter to be physically present compared with the availability of a suitable interpreter for live-link interpretation (see Note N3); and

(f) the risk if the interpreter is not physically present, evidence obtained using link interpretation might be excluded in subsequent criminal proceedings; and

(g) the likely impact on the suspect and the investigation of any consequential delay to arrange for the interpreter to be physically present with the suspect.

7. For the purposes of Code E and live-link interpretation, there is no requirement to make a visual recording which shows the interpreter as viewed by the suspect and others present at the interview. The audio recording required by that Code is sufficient. However, the authorising officer, in consultation with the officer in charge of the investigation, may direct that the interview is conducted and recorded in accordance with Code F. This will require the visual record to show the live-link interpretation arrangements and the interpreter as seen and experienced by the suspect during the interview. This should be considered if it appears that the admissibility of interview evidence might be challenged because the interpreter was not physically present or if the suspect, solicitor or appropriate adult make representations that Code F should be applied.

8. A record must be made of the actions, decisions, authorisations and outcomes arising from the requirements of this Annex. This includes representations made in accordance with paragraphs 4 and 7.

9. The following modification shall apply for the purposes of live-link interpretation:

For the third sentence, substitute: “A clear legible copy of the complete record shall be sent without delay via the live-link to the interviewer. The interviewer, after confirming with the suspect that the copy is legible and complete, shall allow the suspect to read the record, or have the record read to them by the interpreter and to sign the copy as correct or indicate the respects in which they consider it inaccurate. The interviewer is responsible for ensuring that that the signed copy and the original record made by the interpreter are retained with the case papers for use in evidence if required and must advise the interpreter of their obligation to keep the original record securely for that purpose.”;

For sub-paragraph (b), substitute: “A clear legible copy of the complete statement shall be sent without delay via the live-link to the interviewer. The interviewer, after confirming with the suspect that the copy is legible and complete, shall invite the suspect to sign it. The interviewer is responsible for ensuring that that the signed copy and the original record made by the interpreter are retained with the case papers for use in evidence if required and must advise the interpreter of their obligation to keep the original record securely for that purpose.”;

After the first sentence, insert: “A clear legible copy of the certified record must be sent without delay via the live-link to the interviewer. The interviewer is responsible for ensuring that the original certified record and the copy are retained with the case papers for use as evidence if required and must advise the interpreter of their obligation to keep the original record securely for that purpose.”

At the beginning of each paragraph, insert: “Before the interview commences, the operation of live-link interpretation shall be explained and demonstrated to the suspect, their solicitor and appropriate adult, unless it has been previously explained and demonstrated (see Code C Annex N paragraph 4).”

After the third sentence, insert, “If live-link interpretation has been used, the interviewer should ask the interpreter to observe the removal and sealing of the master recording and to confirm in writing that they have seen it sealed and signed by the interviewer. A clear legible copy of the confirmation signed by the interpreter must be sent via the live- link to the interviewer. The interviewer is responsible for ensuring that the original confirmation and the copy are retained with the case papers for use in evidence if required and must advise the interpreter of their obligation to keep the original confirmation securely for that purpose.”

Note: By virtue of paragraphs 2.1 and 2.3 of Code F, this applies when a visually recording to which Code F applies is made.

N1 For purposes other than an interview, audio-only live-link interpretation, for example by telephone (see Code C paragraph 13.12(b)) may provide an appropriate option until an interpreter is physically present or audio-visual live-link interpretation becomes available. A particular example would be the initial action required when a detained suspect arrives at a police station to inform them of, and to explain, the reasons for their arrest and detention and their various rights and entitlements. Another example would be to inform the suspect by telephone, that an interpreter they will be able to see and hear is being arranged. In these circumstances, telephone live-link interpretation may help to allay the suspect’s concerns and contribute to the completion of the risk assessment (see Code C paragraph 3.6).

N2 The explanation and demonstration of live-link interpretation is intended to help the suspect, solicitor and appropriate adult make an informed decision and to allay any concerns they may have.

N3 Factors affecting availability of a suitable interpreter will include the location of the police station and the language and type of interpretation (oral or sign language) required.