R v Douglas Philip Cox

A hearing may constitute a trial for graduated-fee purposes even where no jury has been sworn, provided substantial case management has begun in a meaningful sense. The assessment turns on the particular facts, including contested applications and substantive decisions affecting the admissible evidence and the course of the case.

For prosecution evidence served electronically, the relevant material may be included in the page count. The discretion to include electronic exhibits that never existed in paper form is an important control on public expenditure. Irrelevant material should be excluded, while a reasonable proportion of mixed or broadly relevant material may be allowed.

Burrell Jenkins Solicitors appealed determinations by the Legal Aid Agency concerning litigator’s and advocate’s graduated fees for representing Douglas Cox. The appeals concerned whether a hearing at which contested applications were argued, but no jury was empanelled or sworn and no evidence was called, should be assessed as a trial or a cracked trial.

They also concerned the proper page count for extensive electronic material downloaded from mobile phones, including calls, messages, images, web history and text. The appeals were determined on paper under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013.

1. Trial or cracked trial. The appeal on classification of the 1 December 2020 hearing succeeded. Whether a trial has begun is fact-sensitive. The absence of a sworn jury, prosecution opening or evidence is not conclusive. A trial may begin during a comparatively short hearing where substantial case management has occurred in a meaningful sense.
2. The hearing involved a contested application to exclude mobile-phone evidence, which was determined against the defendant and materially affected the prosecution case and subsequent pleas. A disputed bad-character application was also addressed, and the parties engaged in substantive discussion concerning the telephone-evidence schedules. Taken together, those matters amounted to substantial case management. The fee was therefore to be assessed as a trial.
3. Page count. The appeal succeeded in part. Electronic telephone material had been served in the manner contemplated by Lord Chancellor v Ian Henery Solicitors Ltd [2011] EWHC 3246 (QB), and the prosecution relied on calls, chats and messages extracted from it. That material was properly included in the PPE count.
4. The assessment of images was too conservative. Because the images were a potential source of prosecution or defence evidence, 10 per cent of the total images was allowed, while web history, text and the balance of the images were excluded. The discretion under paragraph 1(5) of Schedule 2 was an important control mechanism and service by the Crown alone did not make material includable.
5. The revised counts were 701 for LGFS and 713 for AGFS. The appeals were successful in part. The two £100 appeal payments were to be returned, with no additional costs award.

The judgment records an appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 from determinations by the Legal Aid Agency’s Determining Officer. The appeals were allowed in part and the revised PPE counts and additional payments were directed.