R v Stanley Cave

Under the Litigator’s Graduated Fees Scheme, electronic documentary or pictorial exhibits which have never existed in paper form are not automatically included in prosecution evidence page counts. The appropriate officer or Costs Judge has a discretion under the Criminal Legal Aid (Remuneration) Regulations 2013 to include them, having regard to the nature of the material and all relevant circumstances.

Where a digital collection contains both relevant and plainly irrelevant images, the assessment may include a reasonable proportion rather than the whole collection or none of it. The assessment is necessarily fact-sensitive and should reflect the extent to which the prosecution relied on the material.

Virdee Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against a Legal Aid Agency determination under the Litigator’s Graduated Fees Scheme.

The claim concerned 4,971 pages of images extracted from a mobile telephone seized from the defendant. The determining officer included 10 per cent of the images in the prosecution evidence page count, having concluded that many were irrelevant, although the prosecution had relied on a significant number at trial. The central issue was the proper assessment of the electronic image material under paragraph 1 of Schedule 2.

1. The appeal was allowed in part. The determining officer’s assessment was too conservative, but it would also be unreasonable to include the entire photographic collection because much of it was plainly irrelevant.
2. Paragraph 1(5) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013 gives the appropriate officer, and on appeal the Costs Judge, a discretion to include an electronic documentary or pictorial exhibit which has never existed in paper form. The discretion requires consideration of the nature of the document and any other relevant circumstances.
3. The guidance in Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB), including the recognition that the discretion is an important control on expenditure of public funds, was applied. The assessment remains case-specific.
4. On the evidence available on a paper appeal, the prosecution had relied on approximately 188 images, materially more than the determining officer had understood. Nevertheless, the collection included recognisably irrelevant material such as images of family, friends, celebrities, commercial content, icons and emojis.
5. Doing the best possible on the available material, 50 per cent of the 4,971 images or photographs was included in the prosecution evidence page count. The £100 paid on lodging the appeal was to be returned. No other costs were claimed or assessed.

1. High Court (Senior Court Costs Office): On an appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013, the assessment was varied so that 50 per cent of the relevant images or photographs was included in the prosecution evidence page count.
2. Legal Aid Agency: The Determining Officer had allowed 10 per cent of the 4,971 pages of images.