R v Munemo

For the Litigators’ Graduated Fee Scheme, electronic prosecution evidence may count as Pages of Prosecution Evidence where it was served and formed part of the prosecution case. Formal service is not essential. Under Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, evidence that never existed in paper form may nevertheless be excluded if the appropriate officer considers that appropriate.

The relevant inquiry includes the evidence’s central importance, the need to examine the material in context, and the practical burden imposed by its format. A broad-brush or sensible approximation may be used for spreadsheets, but a page-count exercise must not exclude material which requires substantial consideration. Where key images are accessible only through laborious spreadsheet links, the entire relevant data section may properly be included.

Bhandal Law represented Raphael Munemo in a Crown Court fraud trial. The prosecution relied heavily on telephone download evidence, including spreadsheet material containing links to images, financial documents and other data. The full download reports were initially disclosed as unused material but were later directed to be served.

The Appellant claimed the maximum 10,000-page PPE count. The Determining Officer allowed 4,520 pages, including 3,228 pages of electronic evidence, but limited the telephone evidence principally to call, messaging, contact and location data. The appeal under regulation 29 concerned the proper PPE allowance for the served download reports.

1. Appeal allowed. An appropriate additional payment was ordered, together with the £100 already paid on appeal.
2. Evidence may be included in the PPE count when it forms part of the served prosecution case. Formal service is unnecessary where the evidence has in substance been provided to the defence. Unused material does not count.
3. Under paragraph 1(5) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, electronic evidence which never existed in paper form can still be excluded, but the discretion must be exercised having regard to the nature of the document and the relevant circumstances. The central importance of the evidence to the trial is the key criterion.
4. Where the prosecution extracts key evidence from a category of electronic data, the usual expectation is that the whole category will be included where the extracted material cannot fairly be understood without its wider context. The percentage approach used for large bodies of largely irrelevant images was unsuitable where every spreadsheet link had to be checked individually.
5. Spreadsheet evidence does not permit a reliable mechanical page count. A determining officer or Costs Judge may use a broad-brush or sensible approximation, removing blank or data-free pages where appropriate. The assessment must nevertheless reflect the work reasonably required to examine the evidence.
6. Here, the images worksheet in JCG/3 contained 3,902 lines of image data and required line-by-line examination. The whole relevant spreadsheet section should therefore be counted. Adding that section alone took the PPE count above the 10,000-page cap.

The appeal was brought to the High Court (Senior Courts Costs Office) under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Determining Officer’s PPE assessment. The appeal succeeded.