Alexander Johnson v The Lord Chancellor

Duplication does not automatically exclude electronic material from prosecution evidence for remuneration purposes. The court must consider whether reviewing the material in its proper chronological and evidential context was necessary to advance the defendant’s case.

Where duplicated timeline material requires additional historical review, that work may be remunerated as special preparation rather than as prosecution evidence pages. A percentage allowance for image evidence may remain appropriate where thumbnails permit easy review, most images are irrelevant or duplicated, and the relevant images are readily identifiable. An allowance exceeding 5% requires evidence that the images were of central importance to the case.

Alexander Johnson solicitors appealed against a determining officer’s assessment of the number of prosecution evidence pages allowed for calculating the appropriate criminal legal aid fee under the Criminal Legal Aid (Remuneration) Regulations 2013.

The underlying prosecution initially involved a conspiracy to commit fraud by false representation. On the first day of trial, the prosecution accepted that charge could not be proved and obtained leave to add a money laundering count, to which the defendant pleaded guilty. The appeal concerned allowances for a mobile-phone extraction report, principally its timeline and images sections. The respondent conceded the notes section.

1. The appeal succeeded to the limited extent of the respondent’s concession. The appellant was entitled to remuneration for an additional 90 pages in the notes section, together with the £100 appeal payment.

2. Under paragraph 1 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, electronic documentary and pictorial exhibits may be included in prosecution evidence pages. Duplication is relevant, but it does not create an automatic rule excluding duplicated material. The question is whether consideration of the material in its proper context and chronology was important and reasonable.

3. The claim for 1,852 timeline pages was refused. The timeline duplicated material already allowed, and the explanation advanced did not justify remuneration of the entire timeline as prosecution evidence. Any necessary review of historical contact beyond the material already allowed could instead be claimed as special preparation.

4. The 5% allowance for images was upheld. The images could be reviewed with relative ease from thumbnails. Most were irrelevant to the fraud conspiracy, relevant financial images were readily identifiable, and many images were duplicated. The evidence was not sufficiently central to justify an allowance exceeding 5%.

5. No further prosecution evidence page allowances were made for the timeline or images sections.

• Senior Courts Costs Office: The determining officer assessed the prosecution evidence page allowance. Alexander Johnson solicitors appealed against that redetermination.
• High Court (Senior Court Costs Office): The appeal succeeded only in respect of the conceded notes section. The timeline and images allowances were otherwise upheld.