R v Chen

Under the Advocates Graduated Fee Scheme, electronic prosecution evidence is not counted merely because it was served on the defence. Documentary or pictorial material served electronically and never existing in paper form must first satisfy the importance threshold in Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013. Material failing that test may, at most, support a claim for special preparation. In assessing whether the page threshold for a higher band is met, the court may adopt a broad approach rather than undertake an unnecessary precise count. Images that are largely irrelevant, and standard download material that duplicates other evidence, need not be treated as prosecution evidence.

Counsel appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s calculation of his fee under band 6.4 of the Advocates Graduated Fee Scheme. The underlying prosecution concerned alleged dealing with criminal property, with substantial electronic material downloaded from the defendant’s phone.

The determining officer counted 899 pages of prosecution evidence, including permitted categories of telephone data and 5% of the downloaded images. Counsel argued that the electronic download should produce at least 10,000 pages, qualifying the case for band 6.2. The central issue was whether sufficient electronic material satisfied the statutory definition of prosecution evidence.

1. Appeal dismissed. The fee was correctly calculated by reference to band 6.4.
2. Paper evidence is counted in its entirety, but electronic documentary or pictorial exhibits which never existed in paper form are excluded unless the appropriate officer decides that inclusion is appropriate, having regard to the nature of the document and other relevant circumstances. Service on the defence does not itself establish that the material is prosecution evidence for banding purposes.
3. The Lord Chancellor v Edward Hayes & Nick Wrack [2017] EWHC 138 (QB) concerned the extent of material required to be served and did not remove the separate importance threshold. The Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB) emphasised the value of that control mechanism.
4. The 5% allowance for images was not shown to be wrong. The images were largely irrelevant, including ordinary emojis and other material requiring no substantive consideration. The court also regarded the 2,628-page timeline as essentially duplicative and ordinarily disallowable.
5. The banding thresholds of 10,000 and 20,000 pages are broad thresholds intended to avoid the need for exact page counts. Even allowing for that broad approach, the download did not contain enough sufficiently important material to reach 10,000 pages, including the 899 pages already allowed.

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