No: 2005/4221/A2 
Neutral Citation Number: [2006] EWCA Crim 1826
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Friday, 7 July 2006
 
B E F O R E:
MR JUSTICE McCOMBE 
 
MR JUSTICE GROSS 

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R E G I N A 

-v- 

AGRON AHMATI 
 
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MR H KEITH appeared on behalf of the HOME OFFICE
MR N METHOLD appeared on behalf of the CROWN
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J U D G M E N T 
1.	MR JUSTICE MCCOMBE:  This court has heard today submissions made by Mr Keith of counsel on behalf of the Home Office following a direction by this court, at the hearing of an appeal in March of this year, that the Secretary of State for the Home Department should show cause as to why the Department should not be liable for the costs incurred or thrown away, however one characterises them, on the appeal heard by the court on that occasion.
2.	The circumstances of appeal itself are set out in a judgment of this court delivered by my Lord, Gross J, on 24th March 2006.  On that occasion the court allowed an appeal by the defendant against an order of recommendation for deportation which had been made in the Crown Court following the conviction of the appellant in respect of charges of deception for which he was given a sentence of nine months' imprisonment.
3.	The problem that arose at an early stage in the appeal proceedings was as to the appropriateness of the making of a recommendation for deportation because of the asserted marriage by the appellant, Mr Ahmati, to a Portuguese lady.  This would have made him a spouse of a citizen of the European Union and giving rise to an immigration status different from that that might have been thought at the Crown court.
4.	The events thereafter were described by my Lord in giving judgment on the appeal as lamentable.  The problem that arose was that this court was endeavouring to find out from the Home Office what the true nationality and immigration status of the appellant was.  Those attempts most regrettably drew a blank.  The events of the months from September 2005 have been most helpfully investigated by Miss Mandie Campbell, the Director of the Criminal Casework Team at the Immigration and Nationality Directorate of the Home Office, and this court is grateful to her for having taken the trouble to investigate what she realistically and understandably recognises was a failure of administration on the part of the Department concerned.  We acknowledge with gratitude Miss Campbell's work and if nothing else has occurred in this case it has enabled both this court and no doubt the Department to consider how requests for information from the criminal courts to government departments may be dealt with in the future.  Whatever else may occur hereafter we would urge the Department to be in touch with the Registrar of Criminal Appeals to consider making appropriate liaison arrangements between it and the court for any such similar problems that arise hereafter.  The court is heavily reliant on government departments of all characters to provide information when requested.  
5.	It is now sufficient by way of background to quote the helpful witness statement of Miss Campbell, in paragraphs 11 and following, in relation to the attempt by the court to obtain information:  
"11.  It appears that the first letter from the Criminal Appeal Office, dated 7th September 2005, was received by the IND [that is the Immigration and Nationality Directorate] and acted upon.  As the letter did not state the Home Office reference number for Mr Ahmati (it naturally stated only the CA number), an Administrative Officer ('AO') wrote to the Criminal Appeal Office, and the Norwich Combined Court Centre seeking further details of the case.  Further details, including the Home Office reference number, were received from Norwich and the Criminal Appeal Office on 12th September and 19th September respectively [a period of 5 and 12 days since the request].  
12.  On 4th October, the Criminal Appeal Office sent a further letter.  On 7th October 2005 another AO [administrative officer] placed a note in the Home Office asking that the file be reviewed by a CCT caseworker (an Executive Officer ('EO')).  
13.  The caseworker to whom the file was automatically assigned on 10th October had, however, been away on scheduled sick leave from 21st September.  Because no arrangements were in place for the file to be examined in her absence, the AO's minute was not acted upon.  
14.  By the time the caseworker had returned to her duties on 27th October, a further letter had been sent to the IND by the CAO (that of 19th October).  However, neither the letter of 4th October nor that of 19th October had yet been tracked to the correct file.  
15.  On her return the caseworker had sifted the file in accordance with instructions on establishing a new system of case allocation.  This process requires EO caseworkers to sift their files into a general 'EO Allocation Queue' from where they would be allocated to caseworkers according to release dates.  However, in sifting her cases she had simply failed to notice the original letter from the Criminal Appeal Office dated 7th September or the file entry from the AO.  
16.  In addition, it appears the caseworker failed to act upon a file entry which recorded that a telephone call had been received from the Royal Courts of Justice on 7th November.  
17.  In interview, the caseworker stated that she was unable to recall the specific file and could only assume that she had missed the file note from the AO and the correspondence from the Criminal Appeal Office due to pressure of work.  She told the investigating officer that she had had over 100 live cases at the time, and the overriding priority had been to concentrate on release dates.  
18.  On 24th November the file was passed to a different caseworker, who was responsible for the file until 22nd March.  By this time, the letters of 4th October and 19th October had been placed on the file.  In addition, further letters from the Criminal Appeal Office were received on 11th and 15th November.  Regrettably, none of them were acted upon.  
19.  When interviewed on 18th April 2006, the caseworker stated that she could not recall the particular file, and had no memory of any correspondence from the Courts service.  Although the correspondence on the file showed that she had responded to urgent requests from HMP Norwich on 24th November and 1st December in relation to Mr Ahmati's release date on 5th December, she stated the sheer pressure of her caseload had left her with no time to read the file thoroughly, and that the priority of dealing with deportation and the necessary accompanying notices had meant that all other issues were treated as secondary.  
20.  As a result, no action was taken to contact the Court of Appeal until 23rd March when the Court itself contacted a more senior officer in the IND directly."  
6.	It is in those circumstances that we have had to consider whether it is appropriate to make a costs order against the Department.
7.	We have received a most helpful skeleton argument from Mr Keith of counsel, setting out the relevant statutory provisions which are to be found in section 19B of the Prosecution of Offences Act 1985, empowering the Court of Appeal to make such an order if:
"(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."  
There is no statutory definition of the term "serious misconduct".  
8.	In his submissions in writing and orally this morning, Mr Keith has argued that serious misconduct denotes conduct that is not merely wrongful according to the consensus of administrative or judicial opinion, but conduct that amounts to grave impropriety, whether deliberate or reckless.  
9.	In the context of those submissions, Mr Keith has addressed to us various passages appearing in the cases of the Director of Public Prosecutions v Denning [1991] 2 QB 532; Ridehalgh v Horsefield [1994] Ch. 205; and Attorney General's Reference No 3 of 2003 [2004] EWCA Crim. 868.  Mr Keith, rightly in our view, invites us to consider the contrast between the phrase "serious misconduct" as it appears in section 19B of the 1985 Act, with the phrase "improper, unreasonable or negligent" conduct that appears in sections 19A(3)(a) of the same Act concerning wasted legal costs orders against legal representatives.  Mr Keith submits to us that clearly Parliament intended a higher threshold of liability in such cases than in the cases of wasted costs orders against legal representatives in delaying or otherwise protracting appeal proceedings.
10.	That submission we accept.  However, Mr Keith was nonetheless constrained to concede, as we think also rightly, that 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.  As we say, we consider that concession was rightly made.  
11.	Given that as being the litmus test of what is "misconduct", we think that it must be entirely clear that this case was "misconduct" and indeed it was "serious".  We were referred to the Attorney General's Reference (to which we have already referred) which involved a case of misconduct in a public office.  Mr Keith sought to gain comfort from the description of the tort of misconduct in a public office in this context, which of course he accepts involves a degree of wilful or intentional misconduct.  However, we do consider it important, in considering the question of misconduct, to refer to the Hong Kong decision in Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 (quoted by the Court of Appeal) where in the judgment of the court, referring to English and Australian authorities on misfeasance in a public office, Sir Anthony Mason considered what was or was not "serious misconduct".  At paragraph 86 he said this:
"The second qualification which I attach to the elements of the offence stated in the previous paragraph is that the misconduct complained of must be serious misconduct.  Whether it is serious misconduct in this context is to be determined having regard to the responsibilities of the office and the office holder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities."  
We consider that similar questions will obviously arise in relation to this legislation and we have to bear in mind the nature of the person whose misconduct is in question.  Here it is a major government department and we need not dwell upon the importance which all courts place on receiving prompt and reliable information where it is required from government departments.
12.	For those reasons we consider that the conduct in this case was "serious misconduct" within the statutory definition.  
13.	Two other points have arisen for argument.  Mr Keith asks us to consider, even if we were against him, as we are, on the first point, to what extent the conduct in question caused the parties to the proceedings to incur costs.  He rightly points out to us that an appeal hearing was in all probability inevitable in this case because the matter could not be dealt with administratively, either under section 20 or section 31A of the Criminal Appeal Act 1968, or in any other manner, and accordingly attendance in a court was inevitable.  He equally, however, recognises that the preparation of the appeal was rendered more extensive, and the enquiry into the matter when the matter was called on was more extensive because of the inability of either court or the parties to obtain, prior to the hearing, any accurate information from the Department.  
14.	In the circumstances we are confident that some costs were indeed thrown away or wasted by the failure of the Home Office to respond to the queries made.  The total costs of the appeal for the Crown and defence are in a figure of some £1,500.  In argument the question was ventilated of how much cost was in fact thrown away and this court is prepared to accept Mr Keith's submission that the costs thrown away in all probability amounted to a sum in the region of £750.  If, in our discretion, we make an order for payment of costs, it would be that the Department is to pay the sum of £500 to the Crown solicitors (no doubt the CPS relevant department) and £250 to the solicitors for the defendants for appropriate application in discharge of the liabilities incurred.  
15.	The question finally arises whether in our discretion we should make the order that we were inclined to require the Home Office to show cause against when we heard the appeal.  In his written argument, Mr Keith has submitted that there are six factors that we should bear in mind in that regard.  They are these.  First, the fact that the failings were not deliberate.  Secondly, there was no intention to prejudice the interests of justice.  Thirdly, the mitigating factors advanced by the two case workers concerned, namely the overwhelming pressure of their case loads.  Fourthly, this was a case concerning unnecessary delay to the hearing of an appeal rather than one in which the absence of the impugned conduct could have allowed the entire appeal process to be obviated (we have dealt with that under the causation head).  Fifthly, the sincere and open apology.  Sixthly, the fact that concrete measures have been put in place to reduce the risk of recurrence.
16.	We think that those matters are entirely right to be put before the court for our consideration.  In our view, however, even noting those matters, they do not persuade us that it is wrong to make an order for costs of the nature that we indicate.  
17.	We would therefore make an order for payment by the Home Office of a total sum of £750 by way of a third party costs order under section 19B of the 1985 Act to be apportioned in the manner we have indicated and to be paid within 14 days.  
18.	We repeat our gratitude to the official who attended before this court in March in a very difficult situation, having picked up a file at short notice and helpfully tried to guide this court as to a proper way to proceed.  Secondly, we repeat our thanks to Miss Campbell for her full investigation.  Thirdly, we thank Mr Keith for his helpful and succinct submissions.  We hope that Miss Campbell will take back to her office the suggestion, which we shall certainly pass on to the relevant quarter here, that there be liaison between this court and the Home Office for identifying a suitable officer to whom requests of this nature may be directed in the future.  We would also wish to thank Mr Methold for the Crown who has also attended and addressed short succinct submissions on the material matters.