Being arrested or questioned by the police can be stressful and challenging for anyone.
For those with English as their second language, their dealings with the police can be even more complex.
The language barrier may mean that they aren’t fully aware of the reasons for their arrest or questioning, or they don’t have a full understanding of their rights, even if they have been explained to them.
People who have English as a second language (ESL) are defined as vulnerable by the Criminal Procedure Act 1986, and have the right to have an interpreter present during their dealings with police.
A recent research paper from the Australian Institute of Criminology highlighted a number of challenges for people from non-English speaking backgrounds who have been involved with the police either as suspects or witnesses.
What are the main difficulties faced by people from an ESL background?
The research paper focused on a number of issues that can potentially affect suspects from a non-English speaking background, even if they have a relatively solid understanding of English.
Every day English conversation is very different from legal communication, and much of the terminology used by police in questioning and in the legal system as a whole can be confusing or have different meanings in other contexts.
This can lead to misunderstandings and misinformation, and police may assume that as the person they are interviewing appears reasonably competent in the English language, they fully understand what they are being asked or told.
Suspects who are being questioned could find themselves unfairly charged with a criminal offence due to a simple language misunderstanding.
If they don’t understand the terminology used, it might be difficult for them to give an accurate answer, which may lead to false accusations and evidence that could be used against them at a later date.
A suspect who appears to have a strong grasp of English can still be vulnerable to misunderstandings and misinterpretation, and this could have a significant impact on the outcome of their case.
Although police are required to advise those arrested of their rights, without a complete understanding of English, it’s likely that the person being arrested may not realise what they are entitled to, and this may lead to them being taken advantage of.
Suspects or witnesses may not be aware that they aren’t required to answer questions, or that they can contact a defence lawyer before being interviewed, and this could lead to them being disadvantaged and unfairly charged.
Although those from an ESL background have the right to have an interpreter present, figures from the AIC research paper show that interpreters are not as widely used as they should be, with only five out of the 262 interviews with non-English speaking persons having an interpreter present.
The paper noted that an interpreter would have been of benefit to a number of the other non-English speakers that were observed as part of the study.
Why might police be reluctant to use an interpreter?
If a person falls into the category of a vulnerable person, there are certain rights they have above and beyond those of other suspects.
Suspects who are from a non-English speaking background have the right to have an interpreter present during any questioning.
This right is not just for those who police determine are unable to answer questions, but for anyone who falls into the category of being from a non-English speaking background, and is more comfortable communicating in their own language.
In practice, interpreters are only generally used for extreme cases where the person being questioned has difficulty with basic English.
The AIC report highlights this and gives a few reasons why interpreters are underutilised by police when questioning vulnerable suspects.
These reasons include budgetary considerations, concerns that the interpreter might advocate for the suspect or try to offer them advice, and practical reasons such as availability.
Although there may be interpreters available in metropolitan areas, it can be difficult to access the right interpreters for those arrested or questioned in regional and remote areas.
It can be even more difficult to find a suitable interpreter for some less common language groups, especially as a number of languages have different regional dialects.
What about support people?
As a vulnerable person, someone from a non-English speaking background is entitled to have a support person present for them during an interview.
Unfortunately, if the support person is also from a non-English speaking background, this doesn’t alleviate the problem of miscommunication or lack of understanding.
Even if the support person has a stronger grasp of English than the person being questioned, there could still be problems understanding legal terminology.
If you are from a non-English speaking background and are dealing with the police, it’s important to understand your rights and the questions that are being asked of you.
Where possible, you should ask for an interpreter, and it is also highly advisable for you to seek the advice of a lawyer as soon as you can.
An experienced criminal lawyer can help ensure that you are being questioned fairly, and that you understand all the implications of the answers you give.