R v Blake Aghedo Tromby

In determining pages of prosecution evidence for a Litigator’s Graduated Fee Scheme claim, the determining officer must assess electronic evidence item by item under paragraph 1(5) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013. Electronic documents are not automatically included merely because they were served or because the defence had a professional obligation to consider them. The discretion under paragraph 1(5) is an important control on expenditure from public funds. The approach in Lord Chancellor v SVS Solicitors provides the relevant guidance, and a broad reliance on R v Furniss cannot displace that approach.

Ashcott Solicitors appealed under regulation 29 against the Legal Aid Agency determining officer’s reduction of the prosecution-evidence page count in a graduated-fee claim. The solicitors represented a defendant charged with numerous robbery, theft, conspiracy and related offences. The prosecution served substantial electronic data downloaded from mobile telephones.

The determining officer allowed relevant calls, messages, contacts, locations, emails and passwords, but excluded categories including images, audio, applications and technical metadata. The issue was whether the appropriate count was 10,000 pages, as claimed, or 3,756 pages, as allowed.

1. The appeal was dismissed. The determining officer had correctly assessed the electronic data and the resulting prosecution-evidence count of 3,756 pages was appropriate.
2. Paragraph 1(5) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013 confers a discretion to include documentary or pictorial exhibits served electronically which never existed in paper form, having regard to the nature of the document and other relevant circumstances.
3. The discretion must be exercised through careful, item-specific consideration of the electronic material. The approach was consistent with the guidance of Holroyde J in Lord Chancellor v SVS Solicitors, particularly the guidance at paragraph 50. The discretion is an important control mechanism ensuring that public funds are not expended inappropriately.
4. The fact that material was served by the prosecution, or that the defence was professionally obliged to consider it, did not justify including every page in the count. The broad reliance on R v Furniss was unpersuasive, as the relevant jurisprudence had developed since that decision.
5. Images were not shown to warrant inclusion. Other categories, including audio and, on the facts, technical metadata, were properly excluded. Any possibly relevant pages omitted were de minimis in the context of the volume considered.

• High Court (Senior Court Costs Office): appeal under regulation 29 dismissed. The court upheld the determining officer’s decision allowing 3,756 pages of prosecution evidence.