Regina v Spence

Where electronic prosecution evidence is substantively relevant and included in the prosecution’s digital case-system upload, the formal system page count should ordinarily determine the pages of prosecution evidence for a Litigator’s Graduated Fee Scheme claim. The determining officer’s statutory discretion remains an important safeguard. It permits assessment of substantive relevance and importance, but does not extend to an ad hoc reduction for pages considered technically blank or duplicative. Such analysis is inherently inconsistent and dispute-prone. The prosecution can remove pages before upload where that is reasonable and proportionate.

Solicitors representing a defendant convicted after a money-laundering trial appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. The prosecution evidence included electronic data downloaded from mobile phones and uploaded to the Digital Case System. The prosecution’s recorded count was 9,756 pages, but the Determining Officer allowed 3,798 after deductions for apparently blank or duplicate pages.

The central issue was whether, where the electronic data was accepted as relevant, the Determining Officer could reduce the formal Digital Case System count by analysing blank and duplicate pages.

1. The appeal was allowed. The Litigator’s Graduated Fee Scheme claim was directed to be paid by reference to 9,756 pages of prosecution evidence. The Appellants were awarded £1,000 plus VAT for costs, in addition to the £100 appeal fee.
2. Paragraph 1(5) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013 gives the Determining Officer an important control mechanism. Its proper function is to assess the substantive relevance and importance of electronic data to the prosecution case.
3. That discretion does not ordinarily authorise an ad hoc technical assessment of whether individual pages are blank or duplicate pages. Conversion between Excel and PDF formats makes that exercise difficult, inconsistent and liable to dispute.
4. Where substantive relevance is conceded or established, the preferable course is to rely on the total page count formally recorded by the prosecution in the Digital Case System. That approach does not compromise the Determining Officer’s core relevance safeguard. The prosecution controls the upload and can remove blank or duplicate material where it considers that reasonable and proportionate.
5. The approach was consistent with the court’s earlier decisions in R v Jankis, R v Dafallah and R v Everett & Others, which favoured reliance on the digital case-system count in the relevant circumstances.

The appeal was brought under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Determining Officer’s reduction of the claimed page count. The High Court (Senior Court Costs Office) allowed the appeal and directed payment by reference to 9,756 pages.