Regina v Bailey

For the purposes of the Litigator’s Graduated Fee Scheme, electronic prosecution material is not automatically counted as pages of prosecution evidence. The relevant question is whether it was served evidence or exhibits and, where Criminal Legal Aid (Remuneration) Regulations 2013, Schedule 2, paragraph 1(5) applies, whether inclusion is appropriate having regard to the nature of the material and the relevant circumstances.

The assessment requires a case-specific evaluation. Material may be relevant even where only part of a large electronic dataset was relied upon. A broad-brush assessment may be necessary, but it must allow fairly for material central to understanding or testing the prosecution case, including metadata where its reliability is in issue.

JD Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against a Determining Officer’s assessment of their LGFS claim. The claim concerned prosecution evidence obtained from mobile telephones, including calls, chats, location data, images and technical metadata.

The Determining Officer allowed 2,361 pages of prosecution evidence but excluded most of the disputed electronic material. The solicitors challenged the exclusion of 6,826 pages, arguing that metadata and the full image dataset were relevant to the prosecution’s reconstruction of events and to testing the reliability of that evidence. The central issue was the appropriate number of pages of prosecution evidence.

1. Appeal allowed in part. The LGFS claim was to be assessed by reference to 5,250 pages of prosecution evidence. The appellant was awarded £500 plus VAT for the appeal costs, in addition to the £100 appeal fee.
2. Schedule 2, paragraph 1 of the Criminal Legal Aid (Remuneration) Regulations 2013 includes served witness statements, documentary and pictorial exhibits, interview records and qualifying electronic documents. Under paragraph 1(5), an electronic documentary or pictorial exhibit which never existed in paper form is included only if the appropriate officer considers that inclusion is appropriate, taking account of the document’s nature and other relevant circumstances.
3. The guidance in Lord Chancellor v. SVS Solicitors [2017] EWHC 1045 (QB) was applied. The assessment is case-specific. Not all material downloaded from a telephone should be included, but relevant electronic material may qualify even where the prosecution relied on only part of the dataset.
4. This was an atypical case in which telephone metadata was relevant to the exercise of the paragraph 1(5) discretion. The metadata assisted in establishing when files were created, opened or modified and in testing alleged corruptions in the handsets. The image material also required a greater allowance than the 5 per cent adopted by the Determining Officer.
5. A degree of generalisation and a broad-brush approach may be necessary when assessing large electronic datasets. That approach must nevertheless make sufficient allowance for material relevant to the prosecution case and its reliability. On the evidence available, up to 50 per cent of the electronic material should be included.

• Senior Courts Costs Office: The Determining Officer reduced the claimed pages of prosecution evidence to 2,361.
• High Court (Senior Court Costs Office): On appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013, the appeal was allowed in part and the claim was directed to be assessed by reference to 5,250 pages.