R v Mohammed Ikhlaq

For electronic prosecution evidence, the page count for a graduated criminal legal aid fee must reflect material sufficiently important to require the litigator’s concentration as paper PPE would. A determining officer may exclude technical metadata, duplicative material and material below that threshold. Where image evidence is partly relevant, a proportionate estimate may be used, but a standard percentage must not be applied mechanically. The percentage must reflect the images’ importance to the issues in the particular case.

Harewood Law appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. The determining officer had calculated the litigator’s fee using 4,680 pages of prosecution evidence rather than the 10,000 pages claimed.

The dispute concerned the format of a mobile-phone extraction and the relevance of different categories of electronic material, including messages, web and location data, technical metadata, audio and video material, and images. The central issues were whether the PDF version should be used for the page count and whether only 5% of the images should be included.

1. Appeal partly allowed. The determining officer’s calculation was upheld in principle, but the appropriate page count was increased to 6,000 pages. The appeal costs were allowed, together with the additional sums stated on the cover sheet.
2. The PDF version of the telephone extraction was the proper basis for calculating PPE. The fact that the solicitors had used the UFED format for convenience did not establish prejudice. The PDF replicated the paper page and had been created from the same original material.
3. The electronic PPE provisions require a threshold of importance. Material must require the same concentration by the litigator as paper PPE. Relevant communications, web and location data could therefore be included, while technical metadata, duplicative timelines, and audio or video recordings could be excluded. Time spent reviewing material below the threshold might instead support a claim for special preparation.
4. The determining officer’s treatment of most categories was a proper exercise of discretion. However, the image evidence had been assessed too narrowly. The images were relevant to several strands of the defence, including alleged use of the phone by others, transactions during the defendant’s hospitalisation, legitimate vehicle and property dealings, and criminal-lifestyle evidence.
5. The broad proportional approach described in R v Sereika was not confined by the overall number of images. A percentage estimate could be used as rough justice, but the uniform adoption of 5% was inappropriate on these facts. Approximately 30% of the images should be treated as sufficiently important to constitute PPE.

• Senior Courts Costs Office: The determining officer calculated the fee using 4,680 pages of prosecution evidence.
• High Court (Senior Court Costs Office): The appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 succeeded in part. The determining officer was directed to recalculate the graduated fee using 6,000 pages.