R v Hussain

For the Litigators’ Graduated Fee Scheme, electronically served evidence that never existed in paper form may be included in the Pages of Prosecution Evidence count only where the circumstances justify its inclusion. The central question is whether the material was central to the trial, rather than merely helpful or important to the defence.

Where a prosecution relies on extracts from a category of electronic data, the starting point may be that the underlying data in that category should be included. The assessment remains case-specific. A sensible approximation may be used where most material requires little or no consideration, including large bodies of largely irrelevant images. A solicitor’s professional duty to review evidence does not itself determine the PPE count.

Shafi Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Determining Officer’s calculation of the PPE count for representing the Defendant in a murder and conspiracy trial.

The claim sought payment on the basis of 10,000 pages. The Determining Officer allowed 6,835 pages, including 300 pages representing 5% of a 6,000-page body of electronic images. The appeal concerned whether a substantially larger proportion of the image data should have been counted, having regard to the defence team’s need to examine it.

1. The appeal was dismissed. The short extension of time required for the appeal was granted.

2. Under paragraph 1(5) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, electronic evidence which never existed in paper form may be excluded from the PPE count where the Determining Officer considers exclusion appropriate. The relevant control is whether the evidence was of central importance to the trial, not merely helpful or important to the defence.

3. Where the prosecution relies on extracts from a category of electronic data, the starting point is that all data in that category may be included where it is necessary to test the reliability, context and completeness of the prosecution evidence. That approach, drawn from Lord Chancellor v Edward Hayes LLP & Anor, remains subject to the circumstances of the particular case.

4. The assessment may use a sensible approximation. In a large body of image data containing a small proportion of relevant material, an appropriate percentage may be allowed where most images are innocuous, standard or pre-installed and require little or no consideration. That approach was consistent with R v Sereika and The Lord Chancellor v Lam & Meerbux Solicitors.

5. The need for defence solicitors to review all material in order to discharge their professional duties does not establish that all of it forms part of the PPE count. Evidence, or the absence of evidence, useful for testing or advancing the defence may fall outside the count if it was not central to the prosecution case.

6. The Determining Officer’s allowance of 300 pages, representing 5% of the image data, was reasonable. The material relied on at the appeal hearing did not justify a higher allowance.

The appeal was brought under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Determining Officer’s PPE calculation. The High Court dismissed the appeal.