R v James Donnelly

For the purposes of the Advocate’s Graduated Fees Scheme, documentary material digitally uploaded with a prosecution statement may constitute attached annexes or exhibits. The requirement is construed practically in light of modern criminal practice. The relevant question is whether a sufficient correlation exists between the documents and the statement. Specific citation and reliance in the statement, together with simultaneous upload to the appropriate section of the Digital Case System, may establish that correlation. A technically imperfect request for written reasons does not prevent an appeal under regulation 29 where the parties clearly treated the later reasons as a redetermination decision capable of appeal.

Counsel appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Legal Aid Agency’s assessment of an Advocate’s Graduated Fees Scheme claim. Following a Proceeds of Crime Act 2002 hearing, the prosecution served a statement under section 16, together with 304 pages of documentary material uploaded to the Digital Case System. The Agency counted only the 10 pages of the statement as evidence.

The issues were whether the appeal right had been triggered despite the absence of formal written reasons, and whether the additional documents fell within paragraph 14(3) of Part 5 of Schedule 1 as evidence for the confiscation hearing.

1. Appeal jurisdiction. The appeal right under regulation 29(1) was properly triggered. Although the correspondence concerning the request for written reasons was technically confused, the appellant intended to request reasons and the Legal Aid Agency treated the e-mail of 21 February 2023 as giving reasons on redetermination. The appeal therefore proceeded properly.
2. Meaning of evidence. Paragraph 14(3)(a) of Part 5 of Schedule 1 includes the statement of information served under section 16 of the Proceeds of Crime Act 2002 and any attached annexes and exhibits. Those words must be construed practically in light of evolving criminal practice and digital service.
3. Documents need not be physically appended to the statement in traditional paginated form. Where relevant material is uploaded as separate files, the requirement concerning attached annexes and exhibits is satisfied if a relevant correlation can be established between the material and the section 16 statement.
4. That correlation existed here. The documents were specifically cited and relied upon in the statement and were uploaded to the POCA section of the Digital Case System at the same time as the statement. They therefore satisfied the definition of evidence in paragraph 14(3).
5. The appeal was allowed. The appellant was entitled to repayment of the £100 appeal fee and additional assessed costs of £500, plus any applicable VAT.

This was an appeal to the Senior Courts Costs Office under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 from the Legal Aid Agency’s redetermination of an Advocate’s Graduated Fees Scheme claim. The appeal was allowed.