Ahmati, R. v

For a third-party costs order under Prosecution of Offences Act 1985, serious misconduct sets a higher threshold than conduct that is merely improper, unreasonable or negligent for wasted-costs purposes. It nevertheless includes a deliberate or negligent failure to perform public duties to a proper standard.

Seriousness depends on the responsibilities of the office-holder, the public interests served, and the nature and extent of the departure from those responsibilities. A public department’s sustained failure to answer the court’s requests for material information may satisfy that test. An order should be confined to costs caused or thrown away by the misconduct. Mitigation, apology and corrective measures remain relevant to discretion but need not prevent an order.

On an earlier hearing in March 2006, the court allowed Mr Ahmati’s appeal against a recommendation for deportation made after his conviction for deception. The appeal had been complicated because the Home Office repeatedly failed to provide the court with requested information concerning his nationality and immigration status.

The court directed the Secretary of State to show cause why the Home Office should not meet costs incurred or thrown away. The Home Office accepted administrative failings but submitted that they did not amount to serious misconduct and that an appeal hearing would in any event have been necessary. The issues were whether the failures met the statutory threshold and whether a third-party costs order was appropriate.

1. The court made a third-party costs order of £750 against the Home Office. Its failure over several months to respond to the Criminal Appeal Office’s and the court’s requests for information was serious misconduct for section 19B of the Prosecution of Offences Act 1985.

2. The phrase serious misconduct imposed a higher threshold than the standard of conduct in section 19A(3)(a), which concerns wasted costs by legal representatives. However, misconduct included a deliberate or negligent failure to attend to duties or a failure to meet the proper standard expected in doing so.

3. The seriousness of such conduct had to be assessed in context. The court adopted the comparable considerations identified in Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381: the responsibilities of the office and office-holder, the importance of the public objects served, and the nature and extent of the departure from those responsibilities. A major government department was required to provide prompt and reliable information when requested by the courts. The repeated administrative failures met that standard of seriousness.

4. An appeal hearing would probably still have been required. Nevertheless, the absence of accurate information caused more extensive preparation and inquiry at the hearing, so some costs were wasted. The court accepted that the wasted costs were about £750.

5. The failures were not deliberate, were not intended to prejudice justice, and were followed by an open apology and corrective measures. Those matters did not make an order inappropriate. The Home Office was ordered to pay £500 to the Crown solicitors and £250 to the defendant’s solicitors within 14 days.

• Court of Appeal (Criminal Division): Following its earlier allowance of the defendant’s appeal against a recommendation for deportation, the court determined the consequential show-cause application and made a third-party costs order against the Home Office under section 19B of the Prosecution of Offences Act 1985.