Interpreting criminal justice: a preliminary look at language, law and crime in Ireland

• Author: Kate Waterhouse
• Position: B.A. Applied Languages (DCU), LL.M. International Human Rights Law (NUIG), Ph.D. Candidate, School of Social Work and Social Policy and National Policy Impacts Research Programme, Trinity Immigration Initiative, Trinity College Dublin. Supervisor Dr. Eoin O'Sullivan
• Pages: 42-75

Judicial Studies Institute Journal [2009:2

42

INTERPRETING CRIMINAL JUSTICE:

A PRELIMINARY LOOK AT LANGUAGE,

LAW AND CRIME IN IRELAND

KATE WATERHOUSE*

INTRODUCTION

Language, law and crime are connected in basic ways: law

exists through words and is made possible by language, which is

a basic human characteristic; crime is part of the human

condition, and communication constitutes a vital part of the

criminal process, which is made up of language events from

beginning to end. Some of these events include encounters with

the police, testimony at trial, legislation making specific speech

acts illegal and so on.1

The language and behaviour used by professionals within

the criminal justice system is not always easy to understand for

the average layperson, partly because such people have spent

entire working lives “immersed in the complexities of the law”,2

but also because the language of law is a product of tradition and

uses grammatical features and archaic expressions that are far

removed from the English of everyday life. Lawyers and judges

usually spend large amounts of time engaged in linguistic analysis

like interpreting legislation, and thus tend to be excellent

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* B.A. Applied Languages (DCU), LL.M. International Human Rights Law

(NUIG), Ph.D. Candidate, School of Social Work and Social Policy and

National Policy Impacts Research Programme, Trinity Immigration Initiative,

Trinity College Dublin. Supervisor Dr. Eoin O’Sullivan. Contact

waterhok@tcd.ie.

1 See e.g. Solan and Tiersma, Speaking of Crime: the Language of Criminal

Justice (University of Chicago Press, 2005); Tiersma, “The Judge as Linguist”

(1993) 27 Loyola of Los Angeles Law Review 269, Storey, “The Linguistic

Rights of Non-English Speaking Suspects, Witnesses, Victims and

Defendants” in Kibbee (ed.), Language Legislation and Linguistic Rights (John

Benjamins Publishing Company, 1998).

2 Mikkelson, Introduction to Court Interpreting (Manchester, 2000), p.106.

2009] Language, Law and Crime in Ireland 43

language users.3 In fact language is sometimes considered the

primary manipulative tool of a lawyer, and one that can be used in

the courtroom as a weapon to achieve desired ends; to suggest,

mislead, annoy or obtain an advantage over less sophisticated

users of language.4 Sophisticated use of language does not,

however, correspond to understanding the mechanics underlying

language or its function in particular situations and cultures.5

For Tiersma, this may partly explain why courts can possess

“surprising linguistic acumen”, while at the same time exhibiting

“woeful disregard for how language operates in real life

situations”, and why judgments on language issues tend to be

inconsistent.6

Linguistic and socio-cultural barriers are even more

difficult to penetrate for those with a different language and

culture from that of the criminal justice system; Goodrich

considers that legal doctrine takes an “explicitly exclusory stance

... toward all other linguistic communities and usages”.7

The Supreme Court in the US has described as “meaningless”,8

“incomprehensible ritual”,9 “invective against an insensible

object”,10 “guarantee[d] confusion”11 and “Kafka-like”12 the

application of criminal justice to those without fluency in English,

yet interpreters are increasingly needed in the courtroom;

multiculturalism, modern communication, and international

borders increasingly being crossed by criminals, prohibited

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3 Tiersma, “The Judge as Linguist” (n.1 above).

4 Eades, “Evidence Given in Unequivocal Terms: Gaining Consent of

Aboriginal Young People in Court”, in Cotterill (ed.), Language in the Legal

Process (Palgrave Macmillan, 2002).

5 Solan and Tiersma, Speaking of Crime (n. 1 above).

6 Tiersma, “The Judge as Linguist” (n. 1 above).

7 Goodrich, Legal discourse: studies in linguistics, rhetoric and legal analysis

(Macmillan, 1987), pp. 435-6.

8 State v. Fa’afiti, 54 Haw. 637, 513 P.2d 697 (1973).

9 United States v. Carrion, 488 F.2d 12, 14 (1st Cir.1973), cert. denied, 416

U.S. 907 (1974).

10 State v. Rios, 12 Ariz. 143, 144 539 P.2d 900, 901 (1975).

11 United States v. Mayans, 17 F.3d 1174, 1179-80 (9th Cir. 1994).

12 United States v. Desist, 384 F.2d 889, 901-02 (2d Cir.1967), aff’d, 394 U.S.

244 (1969). In Kafka’s The Trial, Josef K, an innocent man, is arrested, tried,

charged and punished without understanding the procedures involved or how

to defend himself.

Judicial Studies Institute Journal [2009:2

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substances and people (immigrants, refugees, tourists), combine

to create a space where crimes can be committed and justice

systems need to react in an increasing range of languages.13

A. Introduction to Interpreting in Ireland

“Come, come – English. Swear him to know whether he does not

understand English. Can you speak English, fellow?”

“Not a word, plase your honour.”14

Taken from the Irish novel The Collegians, the scene is an

early 19th century Irish court in which Phil Naughten, an Irish

speaker, effectively feigns ignorance of English and frustrates the

court with his halting words and simple demeanour, a reflection

of what seems to have been a reality in Irish courts.

In documenting the murder trial of five members of a family in

Maamtrasna, Co. Mayo, Waldron describes how one of the key

witnesses used the “well-known ploy in courtrooms” of not

answering when asked if he spoke English. According to Waldron

“[m]any non-English speakers could understand it adequately, but

to think out their replies while the interpreter was translating, they

feigned total ignorance”.15

In Hickey’s exploration of Irish-speaking peasants in the

colonial courtroom, she identifies two contrasting portrayals; one,

as above, the devious local, familiar with the language, law and

procedure of the courtroom but pleading ignorance. The other is

the downtrodden peasant of Irish nationalist history and literature,

oppressed by laws of which he was ignorant, and suffering the

“crippling handicap” of lacking fluency in the English

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13 Storey, “The Linguistic Rights of Non-English Speaking Suspects,

tives on Language Legislation (Benjamin Publishers, 1998).

and hanged for the murder, though many still believe

Witnesses, Victims and Defendants” in Kibbee (ed.), Legal and Linguistic

Perspec

14 Griffin, The Collegians, A Tale of Garrowen (Dublin: James Duffy, 1857),

p. 403.

15 Myles Joyce was tried

him to be innocent: Waldron, Maamtrasna: The Murders and the Mystery

(Edmund Burke, 1992).