R v Hajer

For a value-dependent graduated fee classification, the litigator must rebut the regulatory presumption that the value did not exceed the relevant threshold. The applicable standard is the balance of probabilities, assessed by a common-sense evaluation of the evidence. The valuation must relate to the offence charged. Where the indictment alleges possession of articles for fraudulent use in broad terms, the court should not assume that the articles formed part of a particular larger criminal enterprise merely because surrounding evidence suggests that possibility. In the absence of reliable evidence connecting the articles to a fraud exceeding the threshold, the lower classification applies.

Asghar & Co Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. The appeal concerned the classification used to calculate the Litigators Graduated Fee for representing Alan Hajer.

Mr Hajer had been indicted on one count under section 6(1) of the Fraud Act 2006, concerning possession of images purporting to be passport data pages for fraudulent use. The prosecution alleged wider fraudulent activity and possible people trafficking but ultimately offered no evidence. The issue was whether the material established a fraud value exceeding £100,000 for the purposes of Part 7 of Schedule 1 and Schedule 2 of the 2013 Regulations.

1. Appeal dismissed. The classification of the offence for graduated-fee purposes was not shown to fall within the higher value category.
2. Under paragraph 3(1)(c) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, where the fee depends on the value exceeding a stated limit, the value is presumed not to exceed that limit unless the litigator proves otherwise to the satisfaction of the determining officer. The judge treated the applicable standard as proof on the balance of probabilities.
3. The assessment requires a common-sense approach. The court must evaluate the evidence bearing on the value of the criminal activity and its connection with the offence charged. A potential value may sometimes be inferred even where no loss has occurred, but the inference must be grounded in the alleged criminal activity.
4. The indictment alleged possession of passport data pages for fraudulent use in broad terms. The possible uses of such documents extended beyond people trafficking. The messages were inconclusive as to the number of persons involved, and several appeared to concern the same individuals.
5. The absence of specific people-trafficking charges, the prosecution’s failure to provide a valuation, and the failure to proceed with the case weakened the proposed comparison with trafficking fees. The images were therefore valued essentially by themselves. On the evidence, their value was well below £100,000, so the regulatory presumption was not rebutted.

This was an appeal to the High Court under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s offence classification. The appeal was dismissed.