R v CLAUDIA WINKLER

When electronically served prosecution material has never existed in paper form, it is not automatically counted as prosecution evidence for remuneration purposes. The determining officer must exercise the discretion under the Criminal Legal Aid (Remuneration) Regulations 2013, considering the nature of the material and all relevant circumstances.

The assessment should be practical and broad-brush, without hindsight. Material forming part of the prosecution’s evidential case, and surrounding data needed to test whether a relied-on summary is fair, may properly be included. Irrelevant, duplicative or incomprehensible metadata may instead be compensated, where appropriate, as special preparation. A claim for every served electronic page is therefore not justified merely because the material had to be checked.

Harris & Co, solicitors, appealed against the determining officer’s assessment of prosecution evidence pages for a criminal legal aid litigator’s fee. The claim concerned electronic telephone data served on eight discs in XRY format and subsequently converted to PDF.

The respondent had allowed 7,077 pages, including paper evidence and communications data, and conceded a further 72 pages. The appellant sought additional pages up to the 10,000-page cap, arguing that the whole electronic dataset required consideration because it was important to attribution, association and the defence case.

The central issue was whether the disputed electronic material should count as prosecution evidence under Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, or whether some of the work should instead be remunerated as special preparation.

1. Appeal allowed in part. The determining officer was directed to allow a further 50 pages of prosecution evidence, representing photographs requiring substantive consideration. The appellant was awarded £500 for the appeal, inclusive of the £100 appeal fee.
2. Under paragraph 1(5) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, electronic documentary or pictorial exhibits which never existed in paper form are included only if the determining officer considers that appropriate, having regard to the nature of the document and other relevant circumstances. Service alone is insufficient.
3. The discretion must be exercised without hindsight and by a practical, broad-brush assessment. Downloaded telephone material may be subdivided. Communications data and surrounding material from the same source may require inclusion where it is used to establish attribution or association, or to test whether the prosecution’s selected evidence presents a fair summary.
4. Conversely, duplicative extraction reports, indecipherable metadata and material of limited or no substantive relevance need not be counted as prosecution evidence merely because it was checked. Work involved in skimming such material may be dealt with by a special preparation fee under paragraph 20 of Schedule 2.
5. The authorities relied on by the appellant were fact-sensitive and did not require the whole dataset to be allowed. The present case was distinguishable because the relevant communications had already been included and the electronic material was not an unexplained mass of thousands of pages. A further 50 pages of photographs was nevertheless appropriate because some images could bear on the defendant’s lifestyle, legitimate business and the co-defendant’s alleged drug-dealing lifestyle.

The judgment does not state the citation of the determining officer’s decision. The appeal was brought to the Senior Courts Costs Office against the assessment of prosecution evidence pages for remuneration under the Criminal Legal Aid (Remuneration) Regulations 2013.