R v Besard Gaxha

For criminal legal aid remuneration, the fact that electronic evidence requires page-by-page analysis does not mean that every page qualifies as prosecution evidence for remuneration purposes. The appropriate allowance must reflect the relevance and importance of the material, and may be assessed by identifying relevant categories or applying a reasonable percentage. Material capable of swift dismissal may be excluded. Evidence relevant to attribution may justify a higher allowance, but its significance must be balanced against the case as a whole.

The appellant solicitor appealed against a redetermination of a trial fee claim based on electronic evidence served in criminal proceedings. The claim was initially made on the basis of 10,000 pages of prosecution evidence but was assessed at 1,399 pages.

Following concessions and further negotiations, the dispute concerned the appropriate allowances for Files & Media, General information, Network information, Event Log and Installed Apps, and Web-related data. The central issue was the extent to which those electronic materials qualified as prosecution evidence for remuneration under the Criminal Legal Aid (Remuneration) Regulations 2013.

1. The appeal succeeded to the extent of the respondent’s concessions. The respondent was ordered to pay the appellant’s costs of the appeal, together with £1,000 and the court fee.

2. Under paragraph 1 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, electronic documents may be included in prosecution evidence, subject to the statutory conditions. The fact that material requires page-by-page analysis does not automatically justify remuneration for all pages.

3. For Files & Media, the court rejected the appellant’s proposed starting point of the whole relevant section. Although some material was capable of assisting with attribution, much of the material consisted of stock or technically irrelevant images that could be dismissed quickly. The respondent’s allowance of 35 pages was endorsed.

4. For General information, Network information, Event Log and Installed Apps, a percentage approach was appropriate. Balancing the importance of attribution against the nature of the material, the court allowed 10 per cent, producing an allowance of 77 pages.

5. For Web-related data, cookies and bookmarks were not shown to be relevant. The pages of web history were sufficiently relevant, and an additional 88 pages were allowed over the respondent’s latest proposal.

The appeal was against a redetermination by the determining officer of the appellant’s criminal legal aid remuneration claim. The judgment does not give a separate citation for that decision.