R v Allen

An extension of time under Criminal Legal Aid (Remuneration) Regulations 2013, regulation 31 may be granted where there is either good reason for the delay or exceptional circumstances. The absence of good reason does not prevent an extension where the case has an exceptional feature warranting relief.

In assessing pages of prosecution evidence, formal service is not the exclusive criterion. Electronic evidence disclosed as unused material may nevertheless qualify where, viewed in substance, it was served or was central to the prosecution case. The prosecution’s classification is important but not conclusive. Where relied-on evidence is extracted from a wider category of electronic data, the wider data, or an appropriate proportion of it, may require inclusion.

Riley Hayes (Solicitors), representing Kane Allen in Crown Court proceedings, sought an extension of time to appeal a Legal Aid Agency Determining Officer’s decision under regulations 28 and 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. The appeal notice was filed about six months late after written reasons had been received.

The underlying dispute concerned whether extensive mobile-phone and other electronic data should count as pages of prosecution evidence under Schedule 2, rather than being treated solely as unused material or special preparation. The issue before the Costs Judge was whether the delay should be excused under regulation 31.

1. Extension granted. Although the applicant’s explanation, principally counsel’s workload and the need for consultation, did not amount to good reason for a six-month delay, the case contained exceptional circumstances within regulation 31.
2. The relevant statutory scheme gives 21 days for the steps leading to an appeal. Regulation 31 permits an extension where there is good reason and, where the representative failed without good reason, in exceptional circumstances. The court treated those as alternative bases for relief.
3. The underlying appeal raised an unusual and potentially important issue. The prosecution had relied on extracts from telephone downloads, call records, cell-site data and messaging, while no allowance had been made for the wider electronic data from which those extracts were taken.
4. That approach appeared inconsistent with Lord Chancellor v Edward Hayes LLP & Anor [2017] EWHC 138 (QB) and Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB). Under the guidance in SVS, formal service is not essential. The prosecution’s view that material is unused may be decisive, but is not necessarily so. Material central to the trial may be treated as served for PPE purposes.
5. Hayes did not establish that every item of electronic data must be included whenever a report extracted from part of it is relied upon. Ordinarily, however, the whole category, or an appropriate proportion, may be included where key prosecution evidence was extracted from it, as recognised also in The Lord Chancellor v Lam & Meerbux Solicitors [2023] EWHC 1186 (KB).
6. The apparent possibility that the Determining Officer had relied exclusively on the prosecution’s classification, without applying those principles, made the case exceptional. The court expressly did not prejudge the merits of the substantive PPE appeal. The appeal was listed for a full hearing, with any fee reduction under regulation 31(2) to be considered then.

First-instance decision on an application for an extension of time to file an appeal at the Senior Courts Costs Office. The substantive costs appeal remained to be heard.