R v Martins

Electronic prosecution material does not count automatically as prosecution evidence for fee purposes merely because it was served or read. Material that has never existed in paper form falls within the determining officer’s discretion. The assessment requires a qualitative evaluation of its relevance, importance, nature and the degree of consideration reasonably required. A rough and ready proportionate assessment is permissible. Material requiring only cursory checking will generally not count as prosecution evidence. Where electronic material is not included in the page count, it may instead attract a special preparation fee for reasonable time actually spent considering it.

Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the assessment of prosecution evidence pages used to calculate their remuneration for representing a defendant in Crown Court proceedings. The prosecution had served a large electronic download from the defendant’s telephone, including a poem relied on at trial and extensive web-history material. The determining officer initially allowed 144 pages, later allowing a further 22 pages for the poem and a special preparation fee. The central issue was whether further electronic material, including the web-history data, should count as prosecution evidence.

1. The appeal succeeded to the limited extent that a further 22 pages had already been conceded and allowed. The court rejected the further claim for inclusion of the extensive web-history material in the prosecution evidence page count.

2. Paragraphs 1(2) to 1(5) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013 distinguish between material served electronically and documentary or pictorial exhibits which have never existed in paper form. Service is necessary but not sufficient. The latter material is included only if the appropriate officer considers that inclusion appropriate, having regard to the nature of the document and other relevant circumstances.

3. The discretion is an important control against inappropriate expenditure of public funds. The relevant assessment is qualitative. Relevant considerations include whether the material would previously have been printed and served, its importance and relevance to the case, the amount and nature of the work required, who performed it, and the extent to which it featured in the prosecution case. The solicitor seeking a higher assessment bears the burden of establishing that the material was relevant and required close consideration.

4. The court may make a sensible approximation and allow only a proportion of an electronic exhibit. Material that required no more than checking or browsing, rather than reasonably close consideration, should not generally count as prosecution evidence.

5. The web-history material had been checked for the possible source of the poem and videos, but nothing relevant had been found. The work was cursory and did not justify inclusion as prosecution evidence. The appellants could claim a special preparation fee under paragraph 20 of Schedule 2 for reasonable time spent considering material excluded from the page count. The parties were invited to agree the time within four weeks. No order as to costs would be made unless an alternative direction was requested within seven days.

The judgment describes an appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 from a determining officer’s assessment. The Senior Courts Costs Office allowed the additional 22 pages conceded before the hearing, but refused further inclusion of the web-history material and permitted a possible special preparation fee.