R v Ngoc Nguyen Minh

For the purposes of the Litigators’ Graduated Fee Scheme, served electronic evidence that has never existed in paper form is not automatically included in the Pages of Prosecution Evidence count. The determining officer must exercise the discretion under Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013.

The central question is whether the material was of central importance to the trial, having regard to the nature of the document and the relevant circumstances. Where key prosecution evidence is extracted from a particular category of electronic data, the whole category will generally be included. Irrelevant metadata and other material need not be counted. A reasonable percentage allowance may be made for image data.

Drummond Solicitors Limited represented the defendant in Crown Court proceedings concerning two charges of supplying Class A drugs. The solicitors claimed the maximum graduated fee, based on a Pages of Prosecution Evidence count of 10,000.

The determining officer assessed the count at 2,108, including selected categories of electronic data from two mobile-phone download reports and 5% of the image data. The solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013, contending that the entire download reports should have been counted.

The central issue was whether all, or only selected categories, of the served electronic evidence had sufficient importance to justify inclusion in the PPE count.

The appeal was dismissed.

1. Paragraph 1(5) of Schedule 2 establishes a starting point that a documentary or pictorial exhibit served electronically, which has never existed in paper form, is excluded unless the determining officer considers inclusion appropriate. That discretion is an important control against inappropriate expenditure of public funds.

2. The relevant test is not whether the defence team needed to review the material, or whether it was potentially helpful. The question is whether the material was of central importance to the trial, assessed in light of the nature of the document and other relevant circumstances.

3. Where the prosecution extracts key evidence from a particular category of electronic data, fairness will generally require all data in that category to be included, because the extracted material may need to be tested in its proper context. That principle does not require inclusion of every category in a download report.

4. The determining officer was entitled to include pertinent categories, including location data, while excluding most device information, metadata and other material with no real evidential value. The allowance of 5% for images was consistent with established practice. The appellant bore the burden of demonstrating why a higher allowance was justified, but its general insistence that all data should count did not do so.

The assessed PPE count of 2,108 was therefore upheld.

1. High Court (Senior Court Costs Office) — appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 dismissed.
2. Determining Officer — assessed the PPE count at 2,108. The judgment gives no separate citation for that assessment.