Mackrell Marsh & Co Solicitors v The Lord Chancellor

For the purposes of calculating prosecution evidence pages under the Criminal Legal Aid (Remuneration) Regulations 2013, electronic material served by the prosecution is not automatically counted in full. A documentary or pictorial exhibit that has only ever existed electronically falls within the determining officer’s or costs judge’s discretion. That discretion requires a qualitative assessment of the material and the relevant circumstances, including its importance, relevance, the work required, and the extent to which it featured in the case. A broad and sensible approximation is permissible where electronic downloads contain substantial irrelevant material. An appellant seeking an increased allowance must identify and establish the material requiring close consideration. Work undertaken in reviewing remaining electronic material may instead be addressed through a special preparation fee.

The solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determination of the prosecution evidence pages allowed for a Crown Court case involving firearms and drugs offences.

Two mobile telephones had been downloaded into PDF handset reports. The determining officer allowed 3,529 pages, including 307 pages representing 5 per cent of the images. The solicitors sought a further 6,164 pages for the image sections, contending that photographs of drugs, packaging, weapons, cash and the defendant were relevant.

The central issue was whether the allowance for electronic pictorial material should be increased under paragraph 1(5) of Schedule 2 to the Regulations.

1. Appeal dismissed. The determining officer had applied the correct approach under paragraph 1(5) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013. The fact that material was served did not, by itself, require it to be included as prosecution evidence pages.
2. Material served electronically which had never existed in paper form may be included only if the appropriate officer or costs judge considers that appropriate, having regard to the nature of the document and other relevant circumstances. The assessment is qualitative. Relevant considerations include whether the material would previously have been printed and served, its importance and relevance to the case, the amount and nature of the work required, who undertook it, and the extent to which it featured in the prosecution case.
3. The downloaded material was not required to be treated as one integral whole. The determining officer was entitled to adopt a broad approach where the downloads contained pre-installed images, thumbnails, personal photographs and screenshots with little or no evidential value. Such an approach necessarily involves a sensible approximation and may produce some rough justice.
4. The prosecution had relied materially on some telephone images, but the solicitors had already received credit for material extracted and exhibited in statements. The relevant images identified on appeal represented only a small proportion of the image sections. The solicitors had the burden of establishing that a substantially larger amount required close consideration. They had not demonstrated sufficient further relevant material to justify increasing the allowance.
5. The 5 per cent allowance was within the bounds of a reasonable and sensible approximation. The court therefore refused to increase it, while indicating that the work of generally reviewing the electronic material could appropriately support an application for a special preparation fee.

The appeal was brought to the Senior Courts Costs Office under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s assessment. The High Court dismissed the appeal and left the allowance unchanged.