R v Nikolla

Where an original electronic download and a translated or annotated version contain the same pages and messages, the original is not automatically payable as additional prosecution evidence under the Litigators Graduated Fee Scheme. The question is whether the second document adds substantive utility, rather than whether human effort was involved in producing it. A document that merely requires an initial review and checking for differences may instead be remunerated through special preparation. An expanded transcript may justify counting both versions, but that principle does not apply where the document has not been literally expanded.

Fahrenheit Law appealed under Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s calculation of prosecution evidence pages for work undertaken for Thanas Nikolla.

The prosecution had served an original Albanian phone download and a version containing the prosecution’s translations. Both comprised 556 pages. The determining officer allowed the translated version but treated the original as a duplicate. The central issue was whether the original should also count as prosecution evidence, or whether the work involved in checking it was properly remunerated as special preparation.

1. The appeal was dismissed. The determining officer was entitled to exclude the original phone download from the prosecution evidence page count.

2. The translated version was, save for the brief translations, the same document as the original. It contained the same page and message structure, and the translations fitted within the existing space. The original therefore added no utility for taking instructions or understanding the evidence, since both the Albanian messages and the proposed translations could be viewed in the translated version.

3. The case was materially different from R v Brazier, where an expanded transcript justified counting both the fullest transcript and the version in the committal bundle. Here, the identical page count and the embedded translations meant that there had been no literal expansion.

4. The original remained a served document which the defence was entitled to consider. Any further checking to establish whether it differed from the translated version should be claimed as special preparation. It did not require the increased focus referred to in R v Jalibaghodelezhi sufficient to promote the electronic evidence formally into prosecution evidence pages.

5. If a claim for special preparation were made, it should be determined in light of this decision, notwithstanding any issue as to lateness.

High Court (Senior Courts Costs Office): appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 dismissed. The determining officer’s treatment of the original phone download as a duplicate was upheld.