The right to a fair trial and the right to interpreting A critical evaluation of the use of chuchotage in court interpreting

The right to a fair trial for defendants in the criminal process is internationally recognised as a fundamental human right that, among others, includes the right of defendants to have the free assistance of an interpreter if they cannot understand or speak the language used in court. The failure to provide the required interpreting service or a deficiency in the service provided can be raised as grounds of appeal for potentially denying or compromising defendants' right to a fair trial. This article discusses the limitations of chuchotage, a mode of interpreting commonly used in domestic courts. These limitations potentially compromise interpreting accuracy, and, specifically, the absence of a record of the interpretation can spell problems for appellate courts dealing with appeals advanced on the ground of the deficient interpreting provided in this mode. This study reviews four such appeals in Hong Kong and reveals inconsistencies in the appellate courts' rulings and the reasoning behind their decisions. This study argues that these inconsistencies can lead to problems with implementing the principle of stare decisis, while at the same time sending confusing messages about the standard of interpreting required to safeguard a defendant's right to a fair trial and about the future use of chuchotage in court.