R v Odetunde

For electronic evidence to count as Pages of Crown Evidence under the Litigators’ Graduated Fee Scheme, it must have genuine probative value and be of central importance to the case. Evidence does not qualify merely because it was served, reviewed by the defence, or might have assisted the defence. Nor does the absence of incriminating or exculpatory material within a data set, without more, make the data centrally important. The solicitor claiming the fee bears the burden of identifying relevant material and providing a sensible approximation of the qualifying pages. Electronic material that fails this test may nevertheless support a special preparation claim.

Yates Ardern Solicitors represented Hannah Odetunde in Crown Court proceedings concerning an alleged acquisition of criminal property. The Crown served a mobile-phone download report running to about 74,500 PDF pages. The Appellant claimed the maximum 10,000-page PPE count, including 20,818 pages of photographs. The Determining Officer allowed only 285 PPE and excluded the download report.

On an appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013, the Lord Chancellor conceded a further 472 pages relating to contacts, text messages and call logs. The central issue was whether the photographic material had sufficient evidential significance to be included in the PPE count.

1. Outcome. The appeal succeeded only to the limited extent conceded: an additional 472 PPE were allowed. The Appellant also received £500 for the appeal costs, together with the £100 already paid on appeal.
2. Under paragraph 1(5) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, electronic documentary or pictorial exhibits that never existed in paper form may be included in the PPE count only where the appropriate officer considers that appropriate. The governing consideration is whether the evidence is of central importance to the trial, rather than merely helpful or important to the defence.
3. The solicitor claiming payment must identify relevant images from the served evidence and calculate a sensible approximation of the number of qualifying images. The Appellant had not shown that the photographs were sufficiently significant. The prosecution case depended on communications and the movement of funds through bank accounts, and the Crown relied on no photographic evidence.
4. The court rejected the submission that the complete absence of relevant material within a data set could itself make that data centrally important. Electronic evidence must have some probative value. The absence of material on which the prosecution could rely, however helpful that absence might be to the defence, did not justify inclusion in the PPE count.
5. The review of the download report could have had some value as preparation, but the fact that the defence considered it necessary to inspect the material did not satisfy the PPE test. A possible special preparation claim was a separate question.

The appeal was brought to the High Court under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Determining Officer’s assessment of 285 PPE. The High Court increased the count by the conceded 472 PPE and awarded £500 appeal costs.