Criminal law – Order to pay – Defendant failing to provide interpreter at rescheduled time
R v Applied Language Solutions Ltd: Court of Appeal, Criminal Division: 25 March 2013
The defendant company had an agreement with the Ministry of Justice in relation to the provision of interpreters, including interpreters for criminal proceedings. On 12 April 2012, the defendant received a request from HM Courts & Tribunals Service (HMCTS) for a Slovak interpreter to attend a Crown court on 27 April for a sentencing hearing. On the same day as the request from HMCTS, the defendant contacted an interpreter to attend.
On 26 April, HMCTS requested the interpreter to attend earlier than originally booked. The interpreter was not told of the rescheduled time. At the sentencing hearing, the interpreter did not attend at the rescheduled time. HMCTS did not call the defendant and, subsequently, the hearing was adjourned. The judge directed that he would consider making an order under section 19B of the Prosecution of Offences Act 1985 (the 1985 act) requiring the defendant to pay the prosecution’s fee for the hearing. The defendant was notified of the judge’s consideration.
In August 2012, the judge, after hearing oral argument, concluded that the defendant had won a contract under which it accepted responsibility as a ‘go-between’ between the courts and interpreters. He found that the defendant had not done its job properly as a result of negligence on its part and negligence of the kind shown in the case had constituted serious misconduct. The judge ordered that the defendant pay £23.25 of the prosecution’s fee for the adjourned hearing after applying the discretion he had had under paragraph 3(f) of the Costs in Criminal Cases (General) Regulations 1986, SI 1986/1335. The defendant appealed. It contended that the judge had been wrong in finding that there had been serious misconduct. The appeal would be allowed. It was established law that the definition of misconduct for the purposes of section 19B of the 1985 act included deliberate or negligent failure to attend to one’s duties or falling below a proper standard in that regard (see  of the judgment).
It was important to examine the role played by the defendant 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 had been bound to rely, but also to determine what its obligation had been for the purpose of seeing whether there had been a deliberate or negligent failure to perform those obligations. It could not be determined whether there had been misconduct without knowing the nature of the obligations it had undertaken.
The obligations of the defendant had been much more than acting as a ‘go-between’. It was bound to provide 24 hours a day, 365 days a year an interpreter or translator of the appropriate agreed standard for each individual assignment unless there was a force majeure that affected the defendant. If there was no force majeure on which the interpreter could rely the defendant had failed to discharge its obligation. It was clear that a single failure on its own and of the kind that occurred on 27 April could not, viewed in isolation, have amounted to serious misconduct.
A case of serious misconduct might have arisen if there had been before the court considering making an order under section 19B of the act evidence that the non-attendance had occurred in circumstances where there had been a failure to remedy a defect administrative systems which had caused non-attendance in the past. Equally, the failure of a particular interpreter to attend where there had been evidence that there had been similar failures in the past might have constituted serious misconduct for which the defendant had been responsible. It would always be open to a court to ask the defendant to attend, to provide the explanation and, if appropriate, to provide the necessary disclosure. In the present case, there had been no evidence that the failure had been anything other than an isolated failure and there had been no serious misconduct on the evidence before the judge (see , , , , , ,  of the judgment). The order would be quashed (see  of the judgment). R v Ahmati  All ER (D) 131 (Oct) applied.
Per curiam: a court should not generally, in the future, consider making an order under section 19B of the 1985 act without clear evidence of serious misconduct unless there were unusual circumstances which justified the making of an order (see  of the judgment).
Ian Wade QC and Laura Marshall (instructed by Freeth Cartwright Solicitors, Nottingham) for the defendant.