Regina v Fraser

Under the Criminal Legal Aid (Remuneration) Regulations 2013, electronic evidence counts as prosecution evidence pages only to the extent that it is sufficiently important to be treated as equivalent to paper evidence. The fact that solicitors had to examine all material does not require all of it to be included in the page count. A determining officer may assess the importance of electronic material by reference to its nature and the relevant circumstances, including whether it can be navigated efficiently and how much of it is genuinely relevant. A broad percentage approach may be appropriate for large collections of largely irrelevant images. Material excluded from the page count may remain claimable as special preparation.

DJMS Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the allowance of 77 pages of electronic evidence when calculating the graduated fee for representing Simon Fraser.

Mr Fraser faced two counts concerning possession of offensive weapons. His defence relied on photographs and videos extracted from his mobile telephone, said to show that the items were used as props in TikTok performances. The extraction report ran to 1,691 pages and included thousands of images and videos. The determining officer allowed 32 pages of paper evidence and 77 pages of electronic evidence. The central issue was whether the whole electronic collection, or a larger proportion of it, should count as prosecution evidence pages.

1. The appeal was dismissed. The determining officer had properly considered whether the electronic evidence was sufficiently important to be treated as equivalent to paper evidence. Evidence that solicitors needed to examine all material did not determine the page count, since material not qualifying as prosecution evidence pages could be remunerated as special preparation.

2. The argument based on R v King did not apply. That case concerned an unusual PDF without bookmarks or other navigational methods, requiring review from the first page to the last. The extraction report here was bookmarked, so its potentially important elements could be identified and reviewed efficiently. The court therefore distinguished the approach in R v King.

3. Moving sound and images, including videos, did not count as prosecution evidence pages, following the principle identified in Lord Chancellor v McLarty & Co Solicitors [2011] EWHC 3182 (QB). The trial judge’s confirmation that the material had been served and relied upon did not determine its treatment under the Regulations.

4. The approach in R v Sereika was applicable. Where electronic images are central in principle but most of a large collection is irrelevant, the determining officer may adopt a broad percentage assessment. Such an assessment necessarily involves sensible approximation in the nature of costs assessment, as illustrated by In re Eastwood [1974] 3 WLR 454.

5. The 5 per cent allowance was reasonable. The report contained numerous irrelevant images, and thumbnail views were sufficient to identify most of them. The allowance represented 77 pages, equivalent to 466 images, which exceeded the solicitors’ asserted high-water mark of approximately 200 relevant images. The remaining work could be claimed as special preparation, provided any application was made promptly.

High Court (Senior Court Costs Office): appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 dismissed.