R v Emeh

For the Litigators’ Graduated Fee Scheme, formal service is strong evidence that material is prosecution evidence, but it is not invariably a prerequisite for inclusion in the pages of prosecution evidence count. Material disclosed as unused may nevertheless qualify where, in reality, it formed part of the evidence served or relied upon at trial. The determining officer must assess the status of the material in light of all available information. The prosecution’s initial classification is important, but it is not decisive. Where the prosecution extracts summaries or other evidence from underlying electronic data of central importance to the case, the underlying data may also fall within the PPE count.

The appeal concerned the calculation of a defence solicitor’s graduated fee under Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013. The Appellant represented a defendant prosecuted for conspiracy to supply and export controlled drugs. The prosecution relied on evidence referring to bank statements and mobile-phone data, but treated the underlying material as unused disclosure rather than served evidence.

The Determining Officer allowed a PPE count of 1,244 pages and refused to include a further 1,450 pages. The central issues were whether the material was served evidence despite its classification as unused, and whether underlying electronic material from which prosecution summaries were extracted should be included.

1. The appeal was allowed in full. The PPE count used to calculate the Appellant’s graduated fee was increased by 1,450 pages. An additional payment was directed, together with £500 plus VAT for costs and the £100 paid on appeal.

2. Paragraph 1 of Schedule 2 distinguishes unused material from Crown evidence for fee purposes. The statutory provisions identify the material included in the PPE count, including witness statements, exhibits and interview records forming part of the served prosecution documents or a notice of additional evidence. Electronic documents are included subject to the exclusion and discretion in paragraph 1(5).

3. Following the guidance in Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB), formal service is preferred but is not an absolute prerequisite. Service may be informal, and the determining officer or Costs Judge must decide the status of disputed material in light of all available information. The prosecution’s initial view is an important, often decisive, consideration, but cannot automatically determine the issue.

4. The Determining Officer therefore erred by treating the prosecution’s classification of the 1,450 pages as unused as decisive. That approach failed to apply the governing guidance and overlooked the fact that the prosecution had agreed that the material should be served.

5. The 21-page witness statement of DC Jackson had to be included because the Regulations expressly required its inclusion. The bank statements and mobile-phone data underlying the summaries put to the jury were of central importance to the prosecution case. Applying Lord Chancellor v Edward Hayes LLP & Anor [2017] EWHC 138 (QB), all of the underlying evidence from which the prosecution extracted those summaries was included in the PPE count.

1. High Court (Senior Court Costs Office): the appeal under regulation 29 was allowed in full, and the PPE count was increased by 1,450 pages.

2. Determining Officer: allowed a PPE count of 1,244 pages and refused to include the disputed material.