R v Umi Noor

When calculating prosecution evidence pages for digitally served images, a court should adopt a nuanced, percentage-based approach. Digital images that never existed in paper form are excluded unless the appropriate officer considers inclusion appropriate, having regard to the nature of the material and the relevant circumstances. A PDF extraction report may remain the sound starting point, even where an Excel version is needed to open particular images. The additional work caused by defective links or inaccessible images may justify a higher percentage allowance or special preparation. A blanket approach equating each image or fixed groups of thumbnails to paper pages is inappropriate.

Clifford Johnston Solicitors appealed against the Determining Officer’s redetermination of prosecution evidence pages used to calculate criminal legal aid remuneration in two indictments arising from drug and money-laundering allegations. The appeals concerned whether image data from a smartphone should be counted using the PDF or Excel version of an extraction report, and what percentage of images should be allowed.

The Defendant had pleaded guilty but disputed the prosecution’s allegation that she had a leading role, so a Newton hearing was required. The central issue was the appropriate page allowance for digitally served image evidence under the Criminal Legal Aid (Remuneration) Regulations 2013.

1. Outcome. The appeals succeeded to a limited extent. The Appellant was awarded an additional payment, together with the £100 already paid on each appeal, and costs of £1,300 in total.
2. The relevant provisions of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013 require prosecution evidence pages to include specified documentary and pictorial material. Digital documentary or pictorial exhibits that never existed in paper form are not included unless the appropriate officer decides that inclusion is appropriate, taking account of the document’s nature and other relevant circumstances.
3. The court preferred the percentage approach adopted in R v Sereika to the general approach expressed in R v Mooney, insofar as the claim concerned images. A PDF report was an appropriate starting point because most thumbnails could be deciphered and used to dismiss irrelevant images quickly. It was not appropriate automatically to treat one image as one page or a fixed number of thumbnails as one page.
4. The Appellant reasonably needed to consult the Excel version to open particular images because the PDF links were broken. That additional inconvenience had to be reflected in remuneration. The appropriate allowance was 10 per cent of the image pages in the PDF extraction report. The increased percentage was treated as replacing any separate special-preparation claim for the same work.
5. The image evidence was not pivotal compared with calls, messages, cell-site data and financial evidence. The point-of-principle argument that all image pages should be allowed therefore failed. The Determining Officer had not been shown to have erred in allowing timeline evidence, which was not itself under appeal.

• Senior Courts Costs Office: The Determining Officer allowed 1,817 pages for each indictment, increased to 1,822 on redetermination for one claim. The appeals against the page allowances succeeded only to the extent that the image allowance was increased to 10 per cent.