R v Walker

Electronic prosecution evidence is included in the pages of prosecution evidence for graduated-fee purposes only where the appropriate officer considers that inclusion appropriate, having regard to the nature of the document and the relevant circumstances. The evidence must be important to the prosecution’s case, rather than merely important to the defence. The threshold recognises both the risk that electronic material may distort the economic balance of the scheme and the relative ease with which it can be searched. Material principally directed to establishing a defendant’s reasonable excuse, rather than proving the prosecution’s case, will generally not satisfy the threshold.

Altaf Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against a determining officer’s decision to disallow electronic spreadsheets containing forensic downloads from the pages of prosecution evidence used in calculating a litigator’s graduated fee.

The prosecution relied on a streamlined forensic report identifying the presence of CCleaner and signs of deleted internet usage on two devices. The defence obtained expert assistance and reviewed extensive electronic material. The central issue was whether that material had been served or was to be treated as served, and whether it was sufficiently important to qualify as electronic pages of prosecution evidence under Schedule 2.

1. Appeal dismissed. The determining officer’s allowance of only the paper prosecution documents, including the streamlined forensic report, was upheld.
2. Although the spreadsheets had not been formally served, the defence was entitled, applying the guidance in Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB), to inspect the downloads to establish whether the facts summarised in the streamlined forensic report were proved. That did not determine whether the material qualified as pages of prosecution evidence for remuneration purposes.
3. Schedule 2, paragraph 1(5) of the Criminal Legal Aid (Remuneration) Regulations 2013 requires a threshold assessment. The appropriate officer must consider the nature of the electronic document and any other relevant circumstances. The importance must relate to the prosecution’s case. The threshold also protects the economic balance of the graduated-fee scheme and recognises that electronic evidence may be searched more readily than paper evidence.
4. Here, the prosecution’s case rested on evidence that CCleaner was installed on the devices and demonstrated signs of deletion of internet usage. The extensive downloads were principally relevant to the defence arguments that the software was ineffective or had been installed by the defendant’s brother, thereby supporting a reasonable excuse. Those matters were for the defence to establish and did not make the downloads important prosecution evidence.
5. The spreadsheets therefore did not satisfy the statutory threshold and no allowance was payable for them as pages of prosecution evidence.

The appeal was brought from the determining officer’s decision under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. The High Court (Senior Court Costs Office) dismissed the appeal and upheld the determining officer’s decision.