History and Development of the Welsh Language in the Courts
From the Darkness of the Past To The Present Day
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FOR centuries the Welsh language was exiled from the Courts of Law and the battle to secure the right to speak Welsh in court has been a long one.
TODAY, everyone has the right to use the Welsh language in every court in Wales - in the Magistrates’ court, the county court or the Crown court.
SOMETIMES, depending on the particular circumstances, a case may be heard exclusively through the medium of Welsh. If the transactions of the court need translating because, for instance, a party to the case is non-Welsh speaking, the court will provide a translator free of charge.
TODAY, the language is part of the everyday work of the Court Service. Bilingual leaflets and forms are available to everyone in every court throughout Wales. Examples of these are to be seen in this exhibition.
During his term as Presiding Judge of the Wales and Chester Circuit the Honourable Mr Justice Thomas played a leading role in raising an awareness of the Welsh Language within the Administration of Justice in Wales. It is due to his vision that the Standing Committee for the Welsh Language was set up in 1999, a body which plays an important part in the further development of the Welsh Language within the Wales and Chester Circuit.
Hywel was born towards the end of the 9th century. He inherited half of the kingdom of Seisyllwng upon the death of his father, Cadell. Through his marriage to Elen, daughter of Llywarch Hen (Llywarch the Old), he became king of Deheubarth (the Southern portion) by 904. When Idwal Foel (Idwal the Bald) was killed in battle against the English in 942, Hywel also became king of North Wales. The law books of the middle ages indicate that during this period Hywel concentrated on ending the system of old and various Celtic laws which were traditionally in force at that time. The law books state that he called upon representatives from all parts of the country to attend at the “White House on the Taff” in Dyfed, and according to the wisdom of those elders present, some of the old laws were retained; others, he improved; the remainder, he deleted - and replaced with new laws. This meeting laid the foundation of the Welsh Laws, which remained in force until the Act
of Union in 1536.
The Statute of Rhuddlan 1284
Following his overthrow of Wales, Edward I drew up the Statute of Rhuddlan (1284). This Statute established a system of courts which remained in force for 25 years. Although legislation was drawn up for the punishment of the Welsh people, the language itself was not declared illegal.
In the higher courts, where a Magistrate presided, translators were used each and every time a monoglot Welshman was brought before the court. In the lower courts, cases were by and large conducted through the medium of Welsh. Records, however, were kept in Latin, until it became superseded by French during the 14th and 15th centuries. French, in turn, was superseded by the English language during the 15th and 16th centuries.
Although some court records and land deeds were kept through the medium of Welsh, as well as Latin, most legal and quasi-legal documents were drawn up in Latin or in English.
The Act of Union 1536
Legislation affecting Laws in Wales
English was formally established as the language of law and government. The preamble to the 1536 Act referred to the Welsh language and its existence, but went on to state that the intention of the Act was “utterly to extirpate and singular the sinister usage’s and customs differing from those in use in England.”
English was the language of the courts and of affidavits, of summonses and sentences; and only if he had a knowledge of English could a Welshman be appointed to any position.
Section 17 of the Act of Union
“Also be it enacted of the Authority aforesaid, that all Justices, Commissioners, Sheriffs, Coroners, Escheators, Stewards and their Lieutenants, and all other Officers and Ministers of the Law, shall proclaim and keep the Sessions Courts, Hundreds, Leets, Sheriffs Courts, and all other Courts in the English Tongue; and all Oaths of Officers, Juries and Inquests, and all other Affidavits, Verdicts and Wagers of Law, to be given and done in the English Tongue; and also that from henceforth no Person or Persons that use the Welsh Speech or Language shall have or enjoy any manner, office or Fees within this Realm of England, Wales or other the King’s Dominion, upon Pain of forfeiting the same offices or Fees, unless he or they use and exercise the English or Language.”
The case of Rex - v - Athos (Father and Son) 1723 : A request by the Solicitor General that a re-trial be held in Herefordshire of a Pembrokeshire case where a father and son were found not guilty on a charge of murder. The request was refused, but the Court stated :-
“It was very disappointed to have justice done in Wales by a jury of Welshmen, for they are all to one another, and therefore would rather acquaint a criminal than have the scandal that one of their or relations should be hanged; and think to try a man in Wales for murder was like trying a man in Scotland for high Treason, those being crimes not much regarded in those respective places.”
1789 The Courts of Great Session
The Welsh language was used in the law courts during the fifteenth and eighteenth centuries, translators being employed whenever necessary. It would appear that linguistic misunderstandings often resulted in injustices during this period.
Thomas Roberts Llwynrhudol, in “Yr Iaith Gymraeg yn y Llysoedd” (The Welsh Language in the Courts), having attended a trial held at the Great Session in Caernarfon, complained of the following :
“It is not inappropriate for me to state my full belief that (the Jury) either misunderstood, or perpetrated a great injustice to the one who lost his case; but I do not doubt that it was a mistake the men made, and that being due to their ignorance of the English language; for the Judge speaks the English language, and also the Counsellors; and the witnesses give evidence in Welsh. Most certainly they have a translator, he being under oath to convey the words of the witnesses to the best of his ability; yet, as everyone who understands both Welsh and English knows, it is very difficult to translate so that the meaning of the words have their rightful effect upon the Jurors in each language.”
“THE TIMES EDITORIAL” 8 September 1866
“The Welsh language is the curse of Wales. Its prevalence and the ignorance of English have excluded and even now exclude the Welsh people from the civilisation, the improvement, and the material prosperity of their English neighbours. Their antiquated and semi-barbarous language, in short, shrouds them in darkness. If Wales and the Welsh are ever thoroughly to share in the material prosperity, and in spite of Mr Arnold, we will add, the culture and morality of England, they must forget their isolated language, and learn to speak English and nothing else... For all purposes, Welsh is a dead language.”
1872
As a result of a controversy over an appointment of a non welsh speaking lawyer to be the Judge of the mid Wales County Court Circuit, Osborne Morgan Q.C. raised the question on the floor of the HOUSE OF Commons on the 8th March 1872 making it clear that this was not a claim of Wales for the Welsh or any step towards Home Rule, but a necessary qualification for doing justice in Wales. In the course of the debate Osborne Morgan referred to a circuit story about that very distinguished judge Parke B who;
had been explaining with great lucidity the law in an ejectment case when he was interrupted by the foreman of the jury, who called out in Welsh – Tell that old gentleman to cut his speech short – we hav’nt understood a word he has been saying, and we settled yesterday who was to have the property over a glass of claret at the Mostyn Arms.
The House passed a resolution;
in the opinion of this house, it is desirable, in the interests of the due administration of Justice, that the Judge of a county Court District in which the Welsh language is generally spoken should so far as the limits of selection allow, be able to speak and understand that language.
1927
In 1927, the Departmental Committee on Welsh in Education and Life undoubtedly at the instigation of Lleufer Thomas , as one of its members, called for the repeal of the Language Clause of the Act of union and provision for oaths to be taken in Welsh in a manner of equal statutory authority with the English forms and for interpreters at the expense of the state . Consideration was given to trying to alter the report to delete these recommendations, but the view of the President of the Board of Education expressed to the Lord Chancellor was that:
Any alteration in the Report of this kind would be sure to leak out and the matter would then excite a great deal more attention and controversy than it would if the Report is published as it stands. I hope, therefore, that you will be willing to let matters take their course
1933 R - v - Thomas
- An Appeal from the Meirioneth Quarter Session
The appellant was found guilty at the Meirioneth Quarter Sessions of having stolen a number of sheep. He was sentenced to 12 months imprisonment but appealed on the grounds that two jurors had not understood the Judge’s summing up or the speeches. The appeal was rejected, although the sentence was reduced. In rejecting the appeal, Lord Hewart P.U., stated that everyone who served on a jury in Wales must understand English well enough to appreciate the evidence presented, as they had taken the oath in English. Objections could not be made against a juror once sentence had been passed.
1936
Clement Davies and Thomas Artemus Jones played prominent roles in bringing changes to the standing of the Welsh language in the courts.
The publication of the evidence of those two distinguished Welsh judges to the Royal Commission under the chairmanship of Earl Peel had an immediate effect.
A National Committee was formed, a National Petition prepared calling for English and Welsh to be placed on an equal footing in the courts, that there be a Welsh Circuit including Monmouthshire, that the judges and officials should be bilingual and the jurisdiction of the County Courts should be extended in Wales. This was presented to the Peel Commission and impressive evidence given in support, the Welsh Parliamentary Party though ardently advocating the parochial view that a Judge needed to visit each of the existing towns, broadly supported the Petition.
The Peel Commission report published in January 1936 recommended that there be one Welsh Circuit without divisions. More significant, however, for the longer term were the Peel Commissions’ recommendation that court officials should be bilingual and their hope that in time a bilingual High Court Judge would be appointed. Whilst the recommendations were being considered, further problems emerged, for example, as a consequence of the Privy Council decision that a verdict would be quashed if a juror could not understand the language of the trial, jurors who could not understand the English oath were asked to step aside. Then in October 1936 Saunders Lewis and two colleagues were tried at Caernarfon Assizes for arson at the RAF bombing school on the Lleyn peninsula; the jury disagreed, the trial was moved to the Old Bailey by the Lord Chief justice where convictions were duly obtained. There can be no doubt that this trial brought about a realization for the need for change.
Administration of Justice Act 1938
The Administration of Justice Act 1938 made provisions as regards the appointment of Chairpersons and Deputy Chairpersons with legal qualifications to the courts of Quarter Session where the Lord Chancellor should consider, where practicable, the benefits of appointing a person who could speak the Welsh language.
Courts of Wales Act 1942
This Act conferred the right upon any party or witness to use the Welsh language in any court in Wales where a person feels him- or herself to be under a disadvantage because his or her first language is Welsh.
Professor Ifor Williams FBA, Professor of Welsh at Bangor played a prominent part in developing welsh terminology. An illustration of the approach of Professor Williams and his team of linguists and lawyers of high distinction can be found in their consideration of the word felony; consideration was given to the use of the term “ Drwg- weithred” (evil deed), but it was thought that this was inadequate for a word that had borne a distinct legal meaning for centuries. At the suggestion of Professor Williams a Welsh form of “ ffeloni” which met with approval of the three Judges - Judges Samuel, Clark Williams and Ernest Evans. Professor Williams explained to the Lord Chancellor’s Department:
The fact that the English word is borrowed from the French justifies borrowing it for the purpose of the Welsh Language also. Welsh people use ffelwn for a whitlow and it is interesting to not hat the following is given in the pocket Oxford Dictionary: “Felon: One who has committed a felony: small abscess, especially near the nail
1963
The Council of Wales and Monmouth published “A Report on the Welsh Language Today”. The Council recommended that the Welsh Language should be afforded official status, including the right to use the language in any court in Wales.
The Hughes Parry Committee to clarify the general status of the Welsh Language and to consider whether changes should be made in the law. It was resolved that “a clear and definite statement should be made by means of legislation of a general scope and nature that each and every action and all writing or things done in the Welsh language within Wales and Monmouth should carry the same legal force and validity as if that were done in English.”
The Welsh Language Act 1967
Two years after the Hughes Parry Committee Report was published, Parliament approved the Welsh Language Act 1967.
This legislation conferred an absolute and untrammelled right to use the Welsh Language in the courts. Nevertheless, there was no provision for equal validity, no right to issue a summons in Welsh and no duty to publish Welsh versions of English forms. In addition, English was to remain the language of court records.
1970 Morris et al - v - The Crown Office
A small group of protesters who were students at Aberystwyth and members of Cymdeithas yr Iaith Gymraeg (The Welsh Language Society - an organisation which operates non-violent methods of deliberate law-breaking in order to secure a greater status for the Welsh language) were sentenced to 3 months’ imprisonment for interrupting court proceedings in England.
Lord Denning stated, on appeal :
“The appellants are no ordinary criminals. There is no violence, dishonesty or vice in them. On the contrary
there is much we should applaud. They wish to do all they can to preserve the Welsh Language. Well they may be
proud of it ... On high authority it should be equal in Wales with English.” (1081)
The Jurors Act 1974
(2) Under section 10 of the Jurors’ Act 1974 and section 25 of the Criminal Justice Act 1972 - it was stipulated that jurors should understand English but there is no requirement that they should understand Welsh in respect to cases involving the Welsh language in Wales. Witnesses faced a choice : to ignore their rights under the 1967 Act and give their evidence in English, or depend upon a translator which could often be unsatisfactory and nuances could be lost.
The Welsh Language Act 1993
The Welsh Language Board was established.
Certain public institutions are duty-bound to prepare a Welsh Language scheme. the right exists to use the Welsh Language in cases heard in the magistrates’ courts, and it may be used in any other court on condition that sufficient prior notice is given to the court. Provisions have been made for using Welsh Language documents in court. the oath has the same legal effect in Welsh as it does in English.
Translators’ fees are paid from the same fund as court expenses.
The Government of Wales Act 1998
The Welsh Language was accorded greater Status and respect under this Act.
From now on, Subordinate legislation will be drafted in both Welsh and English with equal validity in both languages, and this will lead to considerably greater use of the Welsh language in the Courts.