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Tuesday, 2 April 2013

Private contractors responsible for contracted State obligations?

R v Applied Language Solutions [2013] EWCA Crim 326 is a recent costs decision from the UK Court of Appeal considered the obligations of a private contractor to provide court interpreters.

But more than that, in this age of contracting various functions traditionally performed directly by the government, it suggested that private contractors who willingly assume State obligations might be answerable for their discharge of those functions much as the State might, albeit only to the degree provided for in the terms of the contract.

Applied Language Solutions agreed to provide interpreters for criminal court cases. In a particular case, for reasons that don't seem to be explained in great detail, an interpreter was booked but not told personally of a revised time for a case, and the case was adjourned. (It turned out the interpreter was in fact in the court house at the correct time and available, but not in the required court room.)

The court made a costs order against Applied Language Solutions. That required a finding of serious misconduct by Applied Language Solutions, within the terms of the Prosecution of Offences Act 1958 c 23, s 19B . It appealed.

On appeal, the Court of Appeal held:

  • 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 [13].
  • 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, at [14].
  • 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, at [35].
  • 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, at [39].
  • In the present case, there was no serious misconduct on the evidence before the judge, at [44].
When concluding there was no serious misconduct in this case, and so quashing the costs order, the Court said:

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.
It's pretty rare in my experience for interpreters to not attend courts here when booked. (The problem can sometimes be availability, but I've always found that once confirmed, they attend as and when required.)

But I wonder if the bigger issue from this case is the fact that the contractor was liable to meet the State's obligations in the same manner the State would have been. If this were the case here, it would seem that contractors can be held to account by the Courts when they don't provide State services, as long as those services are within the terms of their contract. Would this overcome claims of commercial-in-confidence 'privilege'?

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