R v Jeanette Carr

For the Litigator’s Graduated Fees Scheme, electronically served prosecution material that never existed in paper form is not automatically included in the prosecution evidence page count. Inclusion depends on the appropriate officer’s assessment of the document’s nature and any other relevant circumstances.

The discretion is an important control on expenditure of public funds. A determining officer may include relevant categories of electronic material while excluding voluminous material, such as images, audio, video, web history, cookies and application data, where it lacks sufficient relevance to the issues in the prosecution. An appellate court will uphold the assessment where it was correctly conducted and falls within the Regulations.

Yates Ardern Solicitors represented a defendant charged with seven co-defendants on two conspiracy charges involving the supply of Class A drugs. The solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Legal Aid Agency determining officer’s reduction of the prosecution evidence page count for their Litigator’s Graduated Fees Scheme claim.

The parties agreed that 2,358 pages comprised witness statements, exhibits and SFR material. The dispute concerned 13,348 pages of electronic data downloaded from two mobile phones. The appellants claimed that all the data should count, subject to the regulatory cap; the determining officer allowed 527 pages. The central issue was whether the wider categories of electronic data had sufficient relevance to qualify under Schedule 2.

1. Appeal dismissed. The determining officer correctly assessed the electronic data under paragraph 1(5) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013. The resulting prosecution evidence page count was 2,885.
2. Paragraph 1(5) creates a discretionary assessment for documentary or pictorial exhibits served electronically which never existed in paper form. Such material is excluded unless the appropriate officer considers inclusion appropriate, having regard to the nature of the document and any other relevant circumstances.
3. The discretion operates as an important control mechanism ensuring that public funds are not expended inappropriately. It does not require every item of electronic data served by the prosecution to be counted.
4. The determining officer was entitled to include categories reflecting the Crown’s focus on communications and usage, including call logs, device users, emails, instant messages and searches. She was entitled to exclude other categories, including large volumes of images, audio and video, web history, cookies and application data, where the material lacked sufficient relevance to establish telephone usage or otherwise assist the issues in the prosecution.
5. The appellants’ submission that the phone evidence was generally pivotal did not establish sufficient relevance for all disputed categories. The court was also satisfied that the WhatsApp pages had been included in the count, so that issue did not require determination.

The guidance in Lord Chancellor v SVS Solicitors was applied. On the facts, the determining officer’s assessment was correct and the appeal was dismissed.

• High Court (Senior Court Costs Office): Appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 dismissed.
• Legal Aid Agency: The determining officer allowed 527 pages of electronic data in the prosecution evidence count and assessed the total at 2,885 pages.