England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SHEFFIELD
HIS HONOUR JUDGE KELSON QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/03/2013

President of the Queen's Bench Division :

1. Although the sum in issue in this appeal was only £23.25, it raised an important point as to the circumstances in which a court could exercise its power to make a third party costs order where a private contractor has been given the responsibility of performing duties hitherto performed by the State.

The background facts

2. The appellant, now known as Capita Translation and Interpreting Limited, has an agreement with the Ministry of Justice in relation to the provision of interpreters, including interpreters for criminal proceedings. At 3.21 p.m. on 12 April 2012 the appellant received from Her Majesty's Courts and Tribunals Service (HMCTS) on behalf of the Crown Court at Sheffield, a booking through a portal established under the agreement for a Slovak interpreter to attend the Sheffield Crown Court on 27 April 2012 at 10.30 a.m. for a sentence hearing.
3. The appellant at 4.42 p.m. that day contacted a Slovak interpreter to attend on 27 April.
4. On the day before the sentencing hearing, at about 2.41 p.m. on 26 April 2012, the appellant was requested by HMCTS to arrange that the interpreter attend earlier, as the hearing had been re-scheduled for 9.45 a.m. That request was made by telephone. The employee of the appellant who received the call then e-mailed the "Relationship Co-ordinator Team" to amend the booking to comply with the court's request. The Relationship Co-ordinator Team was the wrong department within the appellant. The request should have been sent to the "Interpreting Administration Team"; the employee was told at 2.59 p.m. to re-send her e-mail to that team. However, she did not do so. In the result no-one told the interpreter.
5. On the day of the sentencing hearing it appears the interpreter did not attend the court where the hearing was listed at 9.45 a.m. At 10 a.m. on 27 April 2012 a complaint was made by HMCTS on behalf of the Crown Court at Sheffield through the portal. However HMCTS did not ring the appellant to find out what had happened. Instead, at 10.11 a.m., the sentencing hearing was adjourned. The interpreter arrived in court very shortly afterwards, expecting the hearing to start at 10.30 a.m. It subsequently transpired that he/she had been present in the court building since before 9.45 a.m.
6. In due course the judge who was to hear the sentencing appeal, His Honour Judge Kelson QC, directed that he would consider making an order under s.19B of the Prosecution of Offences Act 1985 requiring the appellant to pay the costs that had been thrown away by the prosecution.

The power to make a Third Party Costs Order

7. S.19B provides as follows:

"(1) The Lord Chancellor may by regulations make provision empowering magistrates' courts, the Crown Court and the Court of Appeal to make a third party costs order if the condition in subsection (3) is satisfied.

(2) A "third party costs order" is an order as to the payment of costs incurred by a party to criminal proceedings by a person who is not a party to those proceedings ("the third party").

(3) The condition is that—

(a) there has been serious misconduct (whether or not constituting a contempt of court) by the third party, and

(b) the court considers it appropriate, having regard to that misconduct, to make a third party costs order against him.

(4) Regulations made under this section may, in particular—

(a) specify types of misconduct in respect of which a third party costs order may not be made;

(b) allow the making of a third party costs order at any time;

(c) make provision for any other order as to costs which has been made in respect of the proceedings to be varied on, or taken account of in, the making of a third party costs order;

(d) make provision for account to be taken of any third party costs order in the making of any other order as to costs in respect of the proceedings.

(5) Regulations made under this section in relation to magistrates' courts must provide that the third party may appeal to the Crown Court against a third party costs order made by a magistrates' court.

(6) Regulations made under this section in relation to the Crown Court must provide that the third party may appeal to the Court of Appeal against a third party costs order made by the Crown Court."

8. The procedure is set out in paragraphs 4.7.1 to 4.7.8 of the Consolidated Criminal Practice Direction.

Judge Kelson's decision

9. The appellant was notified in accordance with the provisions of the Consolidated Criminal Practice Direction that the Crown Court was considering making such an Order.
10. After the submission of written argument, the matter came on before Judge Kelson on 17 August 2012. After hearing oral argument, he concluded that the appellant had won a contract under which it accepted responsibility as a "go-between" between the courts and interpreters. He found that the appellant did not do its job properly as a result of negligence on its part. He concluded that the appellant had a major responsibility and that courts must not find their time wasted. Negligence of the kind shown in this case had to constitute serious misconduct. However, there might have been some force in the contention made on behalf of the appellant that HMCTS should have telephoned the appellant when it found an interpreter was not present. Applying the discretion he had under paragraph 3(f) of the Costs in Criminal Cases (General) Regulations 1986 (the Regulations), he ordered that the appellant pay half of counsel for the prosecution's fee for the hearing of £46.50, namely £23.25.

The appeal to this court

11. Exercising its rights under Regulation 3(h) of the Regulations and the provisions of the Consolidated Practice Direction, the appellant brought an appeal against the Order of the judge. The principal contention in the appeal was that the judge had been wrong in finding there had been serious misconduct.

The approach to a finding of serious misconduct

12. What constituted serious misconduct for the purposes of s.19B was considered in this court by McCombe J and Gross J (as they both then were) in R v Ahmati [2006] EWCA Crim 1826. After pointing out that there was no statutory definition of the term serious misconduct, the court concluded:

"Misconduct in this context would include deliberate or negligent failure to attend to one's duties or falling below a proper standard in that regard."

The court, after referring to an observation of Sir Anthony Mason in Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381, considered it had to bear in mind the nature of the person whose misconduct was in question. In that case the misconduct was that of the Home Office. The court made clear it did not need to dwell upon the importance which all courts placed on receiving prompt and reliable information where it was required from Government departments.

13. It is clear that the provision of an interpreter for a witness or a defendant in a criminal case is an obligation of the State which is regarded as an integral part of its obligations to provide a fair and just system of criminal justice. At common law, the position of defendants has been clear since at least 1915 – see R v Lee Kun [1916] 1 KB 337; Kunnath v The State (1993) 98 Cr App R 455; it is now established that there is a similar position under Article 6 of the ECHR (see Luedicke v Germany (1980) 2 EHRR 149; Kamasinski v Austria (1991) 13 EHRR 36; Cuscani v UK [2002] ECHR 625 (24 September 2002). Directive 2010/64/EU sets out further provisions in respect of this right of a defendant. The position of witnesses is set out in R v Sharma [2006] EWCA Crim 16 at paragraph 11.
14. If a private company takes on the discharge of an obligation of the State, it assumes the responsibility to do so in accordance with the terms it has agreed.
15. It therefore became important, in our view, to examine the role played by the appellant in the provision of the State's obligation to provide interpreter services, not only to determine the extent of its responsibility for providing interpreter services on behalf of the State as an essential part of the system of justice upon which the courts were bound to rely, but also to determine what its obligations were for the purpose of seeing whether there had been a deliberate or negligent failure to perform those obligations. It seemed to us clear that we could not determine whether there was misconduct without knowing the nature of the obligations it had undertaken. As we have set out at paragraph 10, Judge Kelson's decision had proceeded on the basis that the appellants were a "go-between".
16. When, at the first hearing on 28 February, we asked for information about the contractual obligations, we had to adjourn the matter briefly to allow a copy of the agreement to be provided to the court. When the agreement was provided, it turned out to be a document of some 177 pages in length and, after discussion with counsel, it became apparent that it would have been unfair to the appellant to determine the scope and scale of the obligations undertaken by it without giving it an opportunity to develop the argument as to these matters. We therefore adjourned the hearing.
17. We notified the Ministry of Justice and HMCTS of the issues and invited them to attend. We regret to record that no-one attended to assist the court.

The scope of the obligation

(a) The terms of the agreement

18. The agreement is an agreement between the appellant and the Secretary of State for Justice through the Director-General of Finance, for the provision of language services to the Ministry of Justice and other bodies including HMCTS.
19. It is said to be a "Framework Agreement". It includes what appear to have been a number of separate documents collated into the agreement in sections; it therefore provides at page 5 for "an order of precedence" in case of conflict between the provisions in the different sections.
20. The second section of the agreement is entitled "Particular Conditions". It ranks second in the order of precedence. At page 11, it provides at paragraphs 1.8 and 1.9:

"1.8 The Contractor will provide the Service 24 hours per day, 365 days per year and will provide a single dedicated phone number which must be manned at all times. Calls to this number should be answered within 20 seconds.

1.9 The Contractor will ensure that they have an appropriate communication system between themselves and the Interpreter/ Translator to enable the individual to carry out their duties within the agreed response times."

21. The definition of Service is set out in the third section of the agreement, "General Terms and Conditions" which ranks third in precedence. It provides at page 22, condition 1.1:

"Services means the services to be supplied as detailed in the Specification Schedule."

Because of the provision of condition 1.2(a) (page 22) the word Services can be read as meaning Service. Condition 3.13 (page 26) provides that the appellant should be subject to the provisions of the Schedules. Under condition 11.5 (page 31) payment may be reduced if the contractor either fails to provide services or provides them inadequately, without prejudice to any other rights or remedies.

22. The Services Schedule is part of the fourth section of the agreement. It defines Services at page 68 in the same terms:

"The services to be supplied as detailed in the Specification Schedule."

Clause A2 of the Services Schedule (page 69) provides that the appellant as the contractor must supply the services as set out in the Specification and Tender. It also provides:

"The Contractor shall perform the Services in accordance with all applicable Service Levels referred to in the Specification or Tender."

23. The Specification provides at page 102:

"The overarching deliverable from this work, which the Contractor must ensure in the provision of the Services, shall be:

1. Ensuring an interpreter/translator of the appropriate agreed standard (qualifications, experience and vetting) is provided for each individual assignment."

The Specification goes on to provide for robust procedures to deal with poor quality interpretation/translation and inappropriate behaviour, for continuing training and other such matters. Under the heading "Additional Requirements", paragraph 26 of the Specification (at page 105) provides:

"All booking management, payments, account management, quality, skills and service levels shall be controlled by the Contractor."

24. The fifth section of the agreement is the "Tender Response". This provides at page 115:

"Our understanding is that the Authority is seeking a national prime contractor with a single point of contact available 24/7/365, that will provide all language services including telephone and face-to-face interpreting, written translation and transcribing plus language services for the deaf and deafblind.

The demand for these services is unpredictable and often requires a linguist to attend urgently.

This prime contractor will deliver economies of scale, provide substantial cost and time savings, introduce better processes and use their expertise and experience coupled with technology and innovation to produce a service that is significantly superior to the current provision. The Authority has outlined 13 key points that must be delivered, all of which we have addressed in this executive summary and throughout our response.

……

Applied Language Solutions offers a single access point 24/7/365 for all language services, a simple booking process, a guarantee of the highest quality interpretation ….."

It also goes on to provide at page 117:

"Moreover, staff will no longer have to call interpreters themselves, often phoning several linguists with no success. Our service will offer a single point of contact and there will be nothing else for the staff member to do. The savings in staff time will therefore be very significant.

Staff making a booking through our online portal will have instant access to their management information at any time. However, we will supply extensive management information each month by default and on an ad hoc basis when requested or through the schedule reporting system at no charge.

Our very experienced Business Development team will provide support to collaborative partners on all issues of contract or account management. This team is lead by our Public Services Director who will also be the lead for the overarching management of this contract. He has over twenty years experience in delivering major public sector contracts."

(b) An absolute obligation to provide interpreters

25. Judge Kelson was apparently told on the basis of what counsel had been told by the appellant that the agreement was essentially one where the appellant acted as a "go-between", in other words a booking facility. It is clear, however, that the obligations of the appellant are much more than that. The appellant is bound to provide 24 hours a day, 365 days a year an interpreter or translator of the appropriate agreed standard for each individual assignment.
26. It was contended that this was not an absolute obligation but one under which the appellant was only bound to provide that service on 98% of occasions when interpreters were booked. As we understand it the argument was that the Monitoring Schedule (part of the fourth section of the agreement) identified in Section 2, Clause J5 (page 99) as one of the Key Performance Indicators (KPI):

"Evidence that 98% of all assignments requested were fulfilled (excluding cancellation by collaborative partner)."

It therefore followed that the obligation was only an obligation for 98% of bookings.

27. We cannot accept this argument.

i) We have set out at paragraph 22 above Clause A2 of the Services Schedule; under it the appellant was obliged to perform the services in accordance with the applicable Service Levels referred to in the Specification or Tender. However there is no reference to the Service Levels in the Specification or the Tender Request.

ii) Clause A11.1 of the Services Schedule (page 76) provides that if Services do not meet the Service Levels the appellant was automatically bound to credit the Ministry of Justice with Service Credits as calculated in accordance with the agreement. The Finance Schedule (the sixth section in the order of precedence) provides (at page 173) as follows:

"Service Credits

KEY PERFORMANCE INDICATORS

Fulfilment of all assignments 98%

(excluding cancellation by collaborative partner)

For every % outside of the 98% a 10% charge will be credited to that collaborative partner at month end against the combined unfilled bookings 1^st hour value.

An example of this would be if 4 bookings were unfilled out of 100 (96%) then a 10% credit of the first hour's value on 2 bookings would be paid. 2 bookings at £31 = £62 = £6.20 credit.

On time delivery of all assignments 98%

For every % outside of the 98% a 10% charge will be credited to that collaborative partner at month end against the combined late bookings 1^st hour value.

An example of this would be if 3 bookings were unfilled out of 100 (97%) then a 10% credit of the first hour's value on 1 booking would be paid. 1 booking at £31. 10% of £31 = £3.10 credit.

Emergency or same day bookings would be excluded from this service credit."

iii) Although there is a reference to Service Credits, the 98% refers to the KPI at Clause J5 which is in the Monitoring Schedule. This Schedule deals with performance management meetings between the appellant, the Ministry of Justice and its associated departments. It does not in any way refer to Service Levels.

28. As we have set out at paragraph 13, the provision of an interpreter where either a witness or a defendant does not speak English (or Welsh), is essential. Without one a case cannot proceed. It seems to us inconceivable that the Ministry of Justice would have entered into a contract where the obligation set out in paragraph 1.8 (page 11) of the Particular Conditions of the agreement (to which we have referred at paragraph 20) was framed in any terms other than an absolute obligation. It is simply no use to a court having an interpreter there on 98% of occasions when interpreters are required, because if an interpreter is required justice cannot be done without one and a case cannot proceed. An interpreter is required on 100% of such occasions.
29. This must have been understood and known both to the appellant and the Ministry of Justice and was an essential part of the factual matrix against which the agreement must be interpreted.
30. Therefore taking into account the factual matrix and "order of precedence" of the sections of the agreement and construing the agreement in a purposive manner, it is clear that interpreters would have been required on each occasion and the obligation was to provide interpreters on each such occasion, subject to force majeure which we consider at paragraph 32. There might be some financial adjustment of the kind set out in the Service Credits to which we have referred at paragraph 27ii) above, but that was simply an adjustment of moneys due. It did not in any way affect the obligation to provide interpreters on each occasion.

(c) Liquidated damages and Force Majeure

31. In the third section of the agreement - General Terms and Conditions – there are two clauses to which it is necessary to refer. First there is a liquidated damages clause, Clause 34 (page 51), under which the appellant is obliged to indemnify the Ministry of Justice up to £1 million for claims and there are general exclusions of liability. Although these terms may affect the position of HMCTS and the Ministry of Justice, it would be inappropriate for us to express any view upon them as we are only concerned with delineating the obligation of the appellant.
32. There is a force majeure clause, Clause 42 (page 63-64), but it has no effect on the obligations under the contract unless there is force majeure. Clause 42.2 provides:

"Any failure or delay by the Contractor in performing its obligations under the Contract which results from any failure or delay by an agent, sub-contractor or supplier shall be regarded as due to Force Majeure only if that agent, sub-contractor or supplier is itself impeded by Force Majeure from complying with an obligation to the Contractor."

This makes it clear that any non-performance resulting from a failure by an interpreter to attend is not excused unless that interpreter's failure is caused by force majeure. There is no suggestion that a force majeure event arose in this case.

(d) Conclusion

33. It therefore follows, in our view, that the appellant has undertaken far more than a booking facility. It is bound to provide interpreters on each occasion unless there is a force majeure that affects the appellant. A failure by an interpreter to attend does not avail the appellant unless that interpreter was prevented by force majeure; if there is no force majeure on which the interpreter can rely the appellant has failed to discharge its obligation.

The concession on duty

34. The appellant did not accept that the court should consider the obligations that it owed to the Ministry of Justice under the agreement as forming a basis for considering its conduct in relation to its responsibility for the provision of interpreters.
35. The appellant's contention was, as advanced by Mr Ian Wade QC on the resumed hearing, that if the courts required an interpreter and ordered one for a particular day, then it was the duty of the appellant to provide the interpreter in terms of the request made by the court. As this concession was made after we had put the analysis of the agreement (which we have set out above) to him it follows that the provisions of the agreement and the concession made arrive at the same result – namely the conduct of the appellant was to be considered in the light of the responsibility to discharge the State's obligation to provide an interpreter in criminal proceedings; a simple failure by the interpreter to attend was a failure for which the appellant was responsible.
36. We therefore turn to the question in issue in the appeal as to whether the failure to provide the interpreter on 27 April 2012 amounted to serious misconduct within the terms of s.19B.

Serious misconduct under s.19B

37. Although the Secretary of State is entitled to make regulations specifying the types of misconduct in respect of which a third party costs order may not be made, no such regulations have been made.
38. It is clear, in our view, that a single failure on its own and of the kind that occurred on 27 April 2012 cannot viewed in isolation amount to serious misconduct. The case is similar to an unreported matter that came before this court where the interpreter did not attend at this court at a revised time because of a failure in the appellant's administration; on that occasion it was not the fault of the interpreter who came at the time originally booked but the appellant had not updated its booking record to record a changed time and the interpreter did not know of the change. That emerged in the explanation given by the appellant to the court on that occasion.
39. In the present case, as in the earlier case before this court, there was no evidence that the failure was anything other than an isolated failure. There was no evidence of a number of other previous failures by the interpreter in question or failures in the appellant's system.
40. However, we would observe that a case of serious misconduct might arise if there was before the court considering making an order under s.19B, evidence that the non-attendance occurred in circumstances where there had been a failure to remedy a defect in the appellant's administrative systems which had caused non-attendance in the past. Equally the failure of a particular interpreter to attend where there was evidence that there had been similar failures in the past might constitute serious misconduct for which the appellant was responsible.
41. We have reached that conclusion in the light of the following:

i) Courts have to alter times not to suit judges but to suit advocates and witnesses in cases to ensure that trials which are in progress proceed on time. Judge Kelson plainly altered the timing of the case to accommodate counsel so as not to interfere with the progress of a part heard trial. In such a case it is essential that the strict obligations under the agreement are complied with by the appellant.

ii) The Crown Prosecution Service and, on many occasions, those instructed on behalf of the defence are paid out of the public purse. If a case cannot proceed then this has an effect on funds available to the CPS and to the Legal Services Commission who fund much of the defence work. The CPS lawyer and the defence lawyer will have lost the time that they could otherwise have spent. The loss to the public purse is real.

iii) Having efficient systems and good and reliable interpreters is expensive. A contractor cannot be allowed to maximise its profit or reduce its loss in the context of court proceedings by not having in place the best systems and the best interpreters. It cannot transfer its costs of failing to do so to the CPS or the defence.

iv) As the appellant is providing an integral part of the State's obligations, then it must discharge that obligation for the reasons we have set out.

v) Taking, therefore, this wider public interest into account, a court is entitled to view successive non-attendance of an individual interpreter or successive failures in systems as amounting to serious misconduct, thus rendering the appellant liable for the costs thereby incurred to the CPS and the defence.

42. We are very grateful to Mr Ian Wade QC, who appeared, as we have said, on behalf of the appellant, for making it clear that the appellant is determined to discharge the duty with which it had been entrusted by the Ministry of Justice. The appellant states through him that it will therefore assist the court on any occasion where an interpreter does not attend by providing the reasons to the court and, if the court considers it appropriate, by giving full disclosure in respect of any failure of systems or any other previous failures by that interpreter.
43. In any future case, therefore, it will always be open to a court to ask the appellant to attend, to provide the explanation and, if appropriate, to provide the necessary disclosure. A court should not generally, in the future, consider making an order under s.19B without clear evidence of serious misconduct in the sense we have described in paragraph 40 above, unless there are unusual circumstances which justify the making of an order.

Conclusion

44. In the present case, there was no serious misconduct on the evidence before the judge. This appeal is allowed and the order quashed.