R v Campbell & Sobers

For the purposes of the Litigators’ Graduated Fee Scheme, served electronic evidence that has never existed in paper form is excluded from the PPE count unless the determining officer considers inclusion appropriate. The relevant question is whether the material has sufficient importance to the prosecution case, particularly whether it is of central importance to the trial, rather than merely helpful or important to the defence.

A percentage allowance may be appropriate for a relevant subset of images where including all images would be unjustified. That approach should not be applied indiscriminately to electronic data divided into discrete categories, most of which are plainly irrelevant. Defence work in reviewing material outside the PPE count may instead be considered under the special preparation provisions.

Ashcott Solicitors represented Everton Campbell and Mary Sobers in Crown Court proceedings concerning possession of controlled drugs with intent to supply. The prosecution relied on evidence from three mobile telephones, including electronic download data from two personal phones.

The determining officer assessed 7,086 pages of prosecution evidence, including a 10 per cent allowance for images from the personal phones. The solicitors claimed payment on the basis of a 10,000-page PPE count and appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013.

The central issue was whether a greater proportion of the electronic download data, particularly images, should have been included in the PPE count.

1. The appeal was dismissed. The determining officer had already included material which satisfied the applicable test, including call logs, contacts, emails, messaging data and 10 per cent of the images.

2. Under paragraph 1(5) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, electronic evidence which had never existed in paper form was not included unless the officer considered inclusion appropriate. The assessment was case-specific. The material had to be of central importance to the trial, rather than merely helpful or important to the defence. Where only part of data from a source was relied on, the question was also whether the exhibited material could fairly be considered without the totality of the data. The approach reflected the guidance in Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB).

3. The percentage-based approach used in R v Sereika, R v Barrass, R v Mucktar Khan and R v Gyamfi was appropriate where a proportion of images was relevant but inclusion of all images would be unjustified. It could not be extended across a body of data divided into discrete categories, most of which were plainly of no real relevance.

4. The downloaded images were predominantly personal photographs, memes, logos, screenshots and other irrelevant material. The prosecution had not relied significantly on images from the two personal phones. The 10 per cent allowance was therefore reasonable. The asserted relevance of data concerning the transfer of one phone between users had not been adequately quantified and did not establish central importance.

5. The fact that the defence had to review a particular body of data did not itself justify inclusion in the PPE count. Work falling outside the count could potentially be considered as a special preparation claim under paragraph 20 of Schedule 2.

• Senior Courts Costs Office, High Court: Appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 dismissed.
• Determining officer: PPE count assessed at 7,086 pages, including a 10 per cent allowance for images.