Lord Chancellor v Edward Hayes LLP & Anor

Electronic material may be included in pages of prosecution evidence under the Criminal Legal Aid (Remuneration) Regulations 2013 where, despite informal service and the absence of a formal notice, it was in fact additional prosecution evidence served on the defence and the court.

For electronic material which has never existed in paper form, the statutory discretion must be exercised by considering its nature and all relevant circumstances. Inclusion is appropriate where defence representatives must examine the complete underlying data to test the accuracy, context and significance of material relied on by the prosecution.

The Lord Chancellor appealed, under the Criminal Legal Aid (Remuneration) Regulations 2013, from Costs Judge Rowley’s decision allowing the respondents’ claims for graduated fees.

The respondents had acted as solicitor and initially instructed counsel for a defendant tried for immigration and fraud offences. The prosecution supplied a disc containing a complete download from the defendant’s mobile telephone. Extracted text-message schedules formed a central part of the prosecution case. The Legal Aid Agency excluded the 4,325 pages on the disc from the pages of prosecution evidence.

The central issues were whether the download had been served as prosecution evidence despite the lack of a Notice of Additional Evidence, and whether its electronic form made it appropriate to include it in the page count.

1. Appeal dismissed. The Costs Judge was entitled to treat the complete mobile-telephone download as pages of prosecution evidence.

2. The court found that the disc was additional prosecution evidence. It had been supplied directly to defence counsel, first at court and then urgently by the police, because the defence required it before agreeing the admission of the extracted text-message evidence. The trial judge had approved that course. Although the service was not accompanied by a formal notice and was administratively irregular, the material was served on both defence counsel and the court. It therefore fell within Schedule 1, paragraph 1(2) and (3) of the Criminal Legal Aid (Remuneration) Regulations 2013.

3. Under Schedule 1, paragraph 1(5), the appropriate officer had a discretion to include electronically served material which had never existed in paper form. It was appropriate to exercise that discretion here. The extracted text messages were central to the prosecution case, and the defence had to examine the whole download to test their accuracy, veracity and context, and to identify any relevant communications. The court rejected the suggestion that the surrounding material could realistically be treated as irrelevant merely because the prosecution had extracted selected messages.

4. The court also rejected the alleged double-counting. The extracted schedules were not exact copies of pages in the original download. Their use required checking against the underlying electronic material and represented additional work.

5. The Costs Judge had addressed service in substance. His failure expressly to cite each statutory sub-paragraph did not disclose an error. The separate contention that he lacked a discretionary power was not pursued and was inconsistent with Schedule 1, paragraph 1(5).

• High Court (Queen’s Bench Division): The statutory appeal was dismissed in [2017] EWHC 138 (QB).
• Costs Judge: Costs Judge Rowley allowed the respondents’ appeals against the redeterminations on 25 April 2016.