Justice CommitteeWritten evidence from Geoffrey Buckingham

Last Friday (12 October 2012) I attended the Central Criminal Court and Aylesbury Crown Court in Amersham, after which I compiled a brief report. This may assist the Committee as to the continued failures of Capita TI in providing interpreters, and I attach a copy (annex).

There appears to be a widely held view that “things are getting better”. The evidence may contradict this, and the continued failure to use qualified, experienced, vetted Registered Public Service Interpreters can only perpetuate the problems faced by Justice and HMCTS. It is our view that the FWA should be terminated.

October 2012


The Crown Court at Aylesbury Daily List for Monday 10 September 2012

Court 2
T20120259 TRAN Dung V
*Early guilty plea scheme*

The Crown Court at Aylesbury Daily List for Friday 5 October 2012

Court 3
09:30 am
For Application
T20120154 CUSUTURA Dumitru
No parties save for ALS and interpreter to attend.

T20120259 TRAN Dung V
No parties save for ALS and interpreter to attend

Notes on two hearings

1. Central Criminal Court Friday 12 October 2012 at Old Bailey, Court 16, heard by HHJ Joseph QC, U20120828 re costs. Miss McKinnon of Counsel represented ALS/Capita.

The case relates to an application by defence Counsel for a third party wasted costs against ALS/Capita following the failure of ALS/Capita to provide an interpreter. Counsel for ALS states in defence of her client that the fault for the delay is to be ascribed to the list office of the Court

The matter was adjourned after a brief discussion where her ladyship stated she wished to see the original booking form with dates and times clearly indicated. ALS/Capita had created a report as a one off to assist the Court, but her ladyship was insistent and gave ALS/Capita one week to obtain the original record with any accompanying notes made at the time.

Case adjourned.

2. Crown Court at Aylesbury, Friday 12 October, sitting at Amersham, heard by HHJ F Sheridan, for Application, T20120154 CUSUTURA Dumitru and T20120259 TRAN Dung V and NGUYEN Chinh . Mr Sebastian Sayer of Counsel represented ALS/Capita.

Hearing commenced at 15.01.57.

In the first case, the Judge commenced by indicating that the ruling was lengthy due to public interest in CJS interpreting, and it is an important decision for a number of people, relating to a hearing, namely a PCMH which had been unable to go ahead due to the failure of ALS to supply an interpreter. The sum in question was £194 plus VAT, a total of £232.80. At that hearing the Judge directed the advocate to apply for wasted costs and the Interpreters’ Service, ALS, had been given notice that they should prepare a defence as to why they should not pay wasted costs.

The judge proceeded to a narrative, starting with the booking of an interpreter on 14 August 2012. He stated that there existed a procedure whereby ALS could decline in the event of a real problem where they were unable to provide, so that in the event that ALS cannot provide an interpreter within sufficient time limits, they have to give the court reasonable notice. This procedure gives time for a hearing to be vacated or find an interpreter from an alternative source. He noted that every delay is against the interests of justice and increases costs.

At 10.49 on the Saturday morning before the hearing, when the Court office is closed and there is no time to take the case out of the list, the interpreter cancelled.

On Sunday 9 September 2012 at 14.00 an automated email was sent to the Court saying that the jobs were unassigned and that the company would continue trying to assign the job “unless you cancel”.

On Monday 10 September 2012 at 10am, both Prosecution and Defence attended but there was no interpreter. The case was called and wasted costs were incurred.

The judge proceeded to consider submissions made on behalf of the company. Amongst these were an explanation that the company had made 123 attempts to fill the job, but Romanian was one of the 5 most difficult languages to fill, where ALS only has 56 Romanian interpreters registered with them in England and Wales.

The Judge went on to consider these submissions. He stated he was not concerned by the contractual position between ALS and the government and could not comment on it. Breaches are for others to deal with, he said. The fact that the company had engaged Counsel showed they took the matter seriously. He stated that “the failure is down to ALS and they should not retain a contract which is too difficult for them.” He stated that the suggestion made by Counsel in submissions that “courts should check” was “impertinent” and simply unacceptable. There is no obligation for the court to check if an interpreter has been assigned. Courts are closed at the weekend and we all know this. The judge also stated that if the procedure provided by the contract gave the opportunity for the courts to find interpreters directly then the contract “is totally redundant”, and “there is little point in having ALS”. To say, as Counsel had, that this was frustrating “is an understatement”, giving the example of transport and escort costs of £2,000 in the case of two defendants in custody in order for them to be produced at Court for a hearing, as it was in this case.

The judge went on to define serious misconduct, and found that “serious misconduct is proven”. He found that the submission made by Counsel that no costs had been incurred was “impertinent”, and that it was “incredible it could even be argued”. There was, he said “absolutely no merit in that submission” that the fee structure of the Legal Services Commission should allow for failures of ALS. He went on to say that Justice “may like to look at this contract again”, given that a Crown Court trial cost is £12,500 minimum per day and it is the taxpayers who pay for this, and “some people may think the middle man is unnecessary”. He stated “ALS didn’t act in time, and the way they dealt with it represents serious misconduct”. He said, “you can’t give notice to a Court on a Sunday, and still hold to a promise to deliver”. This is absolutely preposterous and he cannot sanction this conduct. He noted that other submissions were “irrelevant”, and invited the National Audit Office to consider whether “the contract was even viable”. In their email, ALS explained that it does not employ interpreters, they are self-employed and ALS cannot force interpreters to work. However, ALS holds the government contract, he said. Although it wasn’t ALS’ fault that they did not have enough interpreters, but “if they didn’t they should say so”. The courts may as well book interpreters directly; “Justice delayed is justice denied”, he added.

In summary the judge restated that Counsel should not suffer financial loss due to ALS failure and confirmed a third party costs order against them in the sum of £137, saying they were fortunate that no court time had been lost.

In the case of Tran and Nguyen, the judge stated that he found the interpreter, Miss Wilson, who sent an email saying that “she was busy on that day” and gave no proper notice that she was not attending , guilty of misconduct and she had accepted liability to Counsel’s costs. However the order made that day (previous Friday) was reduced due to her low level of means.

This is one of the first few wasted cost orders for failing to provide an interpreter and the first cost order against an interpreter, who normally offered prompt and efficient service. The figure is a contribution, not the full cost.

These are examples of why wasted costs need to be reviewed. The failure of ALS to supply interpreters may incur colossal costs if a case is privately funded. There is no reason as to why a Barrister should pay just because there is no interpreter—it would not be fair. ALS has a duty to deliver and an interpreter a duty to attend when booked.

Prepared 5th February 2013