R v Kola

Electronic prosecution evidence counts towards pages of prosecution evidence only where it has been served and the determining officer considers it sufficiently important, having regard to the nature of the document and relevant circumstances. The importance of electronic material must be addressed specifically; a general assertion that it required careful consideration is insufficient. An electronic download may be divided into important and less important material. Communications may qualify while technical data or timeline entries may not. Material not counted as prosecution evidence may instead be remunerated as special preparation.

GSG Law Ltd appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s allowance of 3,141 pages of prosecution evidence for the litigators’ graduated fee. The solicitors accepted that the served evidence totalled 5,591 pages, including a 5,116-page telephone download from a device allegedly used in the drug conspiracy. The appeal concerned whether the whole download should count as prosecution evidence, rather than only the communications material allowed by the determining officer.

1. The appeal was dismissed.
2. There is a two-stage requirement for electronic evidence to count as pages of prosecution evidence. It must first have been served by the prosecution. It must then be sufficiently important to justify inclusion as if it were paper evidence.
3. Under paragraph 1(5) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, the determining officer, and on appeal the Costs Judge, has a discretion whether to include electronically served documentary or pictorial exhibits which never existed in paper form. The discretion requires consideration of the nature of the document and other relevant circumstances.
4. The solicitors bore the practical onus of explaining why the whole telephone download was sufficiently important. A general statement that the download required careful consideration did not establish that every part warranted the same scrutiny as paper evidence. An extraction report can be divided, with communications such as messages, chats and calls included while technical data or timeline entries are excluded where appropriate.
5. The solicitors remained required to review all served evidence. Material not sufficiently important to count as prosecution evidence could be remunerated, where appropriate, as special preparation. The determining officer had reasonably allowed the communications material and there was no justification for interfering with the assessment.

• Senior Courts Costs Office: the determining officer allowed 3,141 pages of prosecution evidence. The appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 was dismissed by Costs Judge Rowley.