Arora Lodhi Heath Solicitors v The Lord Chancellor

For remuneration purposes, electronic evidence miscategorised as unused material may properly be treated as used where the factual reality is that the prosecution relied on it and it was of central importance to the case. Where the material claimed is a specifically identified and limited part of a larger electronic download, the full amount of that identified material may be allowed. Offence classification must reflect the harm suffered and the closest applicable category in the relevant banding table.

The solicitors appealed against a redetermination of their criminal legal aid remuneration following the prosecution of a defendant for domestic abuse, including controlling or coercive behaviour and assaults occasioning actual bodily harm.

The appeal concerned whether 2,564 pages of WhatsApp messages, extracted from a larger mobile-phone download and exhibited to the investigating officer’s witness statement, constituted prosecution evidence for remuneration purposes. It also concerned the appropriate offence classification. The respondent contended that the material was unused and disputed the proposed classification.

1. Electronic evidence. The claim concerned only the WhatsApp messages between the defendant and the complainant which the investigating officer had identified as relevant, rather than the entire phone download or all messages. The exhibit was specifically identified, limited in scope and exhibited to the witness statement of the officer in charge of the investigation.
2. The prosecution had relied on the exhibit. Although it may have been miscategorised as unused material, the factual reality was that it was used and of central importance to the case. The fact that the advocate had already been remunerated on the basis that it was unused material did not alter that conclusion.
3. The 2,564 pages in the exhibit were therefore allowed for consideration, in addition to the 226 pages already allowed. PPE was allowed in the total amount of 2,790 pages.
4. Offence classification. The evidence showed serious psychological and physical abuse, including genuine fear for the complainant’s life and concern for the safety of her children. On consideration of the offence-banding tables, Table B category 3 contained examples reflecting, or bearing close resemblance to, the harm suffered. Table B therefore applied.
5. The appeal was allowed on the remuneration issues. The appellant was awarded £500 plus the appeal fee for costs.

• Senior Courts Costs Office: Appeal against a redetermination of criminal legal aid remuneration. The judgment does not state the citation of the decision appealed from.