How should evidence be taken from witnesses who do not speak English fluently?

A witness statement must be in the witness's own language, which has been defined as any language in which the witness is sufficiently fluent to give oral evidence (and is not limited to the witness's first or native language). Where a witness statement is in a foreign language, the party wishing to rely on it must have it translated and file that translation, along with the foreign language witness statement, with the court. In addition, the translator must sign the original statement and must certify that the translation is accurate.

But what if the solicitor or legal representative drafting the witness statement happen to speak the same language as the witness (who is not fluent in English)? That was the issue that arose in Correia v Williams.

In this case, the witness was a Portuguese speaker who was not particularly proficient in English. He gave his statement in Portuguese to his solicitor, who also spoke Portuguese. The solicitor took notes in English and then put together the witness statement in English. That was held to breach the rules: the statement should have been in Portuguese. Nor would it have been sufficient for the solicitor to have translated the statement from English back to Portuguese for the witness to check: that would be a double translation and effectively would be asking the witness leading questions.

As a result, it was held that this witness's evidence would not be heard at all, as it would have been unfair to admit this evidence because of the difficulties which the other side would have faced in cross-examination.