R v Rodica Gheorghe

For special preparation claims based on excess prosecution evidence, the court must first determine a reliable total count of the relevant pages and then assess the time reasonably spent reviewing the excess. Electronic material served only in digital form is not automatically counted. Its inclusion depends on the nature of the material and all relevant circumstances, including whether it is of central importance to the case.

Relevance and duplication may therefore affect the page count. An electronic item cannot simply be equated with a page, and a time-per-page calculation is not a proper assessment method. The advocate bears the burden of providing sufficiently particular information, including an adequate work log, to support the claim.

The appellant represented the defendant in a lengthy Crown Court prosecution involving modern slavery, controlling prostitution, human trafficking and related proceeds. Following conviction, he claimed 206 hours’ special preparation under paragraph 17 of Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013.

The determining officer allowed 120 hours after reducing the claimed electronic page count for blank and duplicated material and allowing less time for material considered irrelevant. The appellant appealed under regulation 29, arguing that the claim should be assessed by reference to the data as supplied in XRY format and that no relevance test should be applied. The central issues were how electronic evidence should be counted and how the reasonable preparation time should be established.

1. The appeal was dismissed. The determining officer had not erred in principle by assessing the electronic evidence by reference to relevance, duplication and a reasonable page count.
2. Under paragraph 17(1)(b) of Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013, the assessment required two stages: establishing the total number of pages of prosecution evidence, then allowing reasonable time for reviewing pages exceeding 30,000. A time-per-page calculation could not replace that assessment.
3. Electronic evidence served on disc is excluded from the page count unless the appropriate officer decides that inclusion is appropriate, having regard to the nature of the document and other relevant circumstances. Whether the evidence is of central importance to the case is a key criterion: Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB).
4. Relevance was therefore material to the page-count exercise. Duplication could also be excluded or discounted, depending on its nature and extent. The expression blindingly obvious, used in R v Everett, was not a legal test; the relevant question was whether the duplication could reasonably be identified without the kind of thorough analysis required in that case.
5. The XRY item count could not simply be treated as a page count. PDF was accepted in principle as the least unreliable format for deriving a PPE count, although conversion from electronic formats could be problematic. The very substantial number of blank pages and discrepancies between XRY and PDF counts provided sound reasons not to adopt the appellant’s figure.
6. The appellant had to provide the information necessary to support the claim. A more detailed work log identifying the particular files examined and briefly indicating their contents would have enabled a more reliable assessment. The material supplied did not provide a sufficient basis for increasing the allowance made by the determining officer.

1. High Court (Senior Court Costs Office) — Appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 dismissed.