R v Andrew Dempsey

Evidence originally provided as unused material may count as prosecution evidence for graduated-fee purposes where it is sufficiently pivotal to the prosecution’s case. Material used only to challenge the defendant’s case does not satisfy that requirement. Electronic material must also meet the applicable importance threshold before it is remunerated as prosecution evidence. The determining officer’s reasoning may be flawed without requiring the appeal to succeed where the fee calculation is nevertheless correct.

Mackrell Marsh & Co appealed under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. The determining officer allowed 109 pages of prosecution evidence but rejected the solicitors’ claim that 6,450 pages of telephone-download material should be included in the graduated fee.

The material had initially been provided as unused evidence. The prosecution later relied on extracts and statements referring to telephone data to challenge the defendant’s account. The prosecution offered no evidence on the third day of trial. The central issue was whether the electronic material had become served and sufficiently pivotal to the prosecution’s case to constitute prosecution evidence for remuneration purposes.

1. The appeal was dismissed. The determining officer’s fee calculation was upheld, although the determining officer’s stated reasoning could not be upheld.
2. There was no basis for treating an earlier assessment of related material in an advocate’s claim as binding on the later assessment of the litigator’s claim. Fees should preferably be calculated on a consistent factual basis, but each claim may be reconsidered on its own merits.
3. Documents initially provided as unused material may be treated as served material where they are sufficiently pivotal to the case, applying the guidance in Lord Chancellor v SVS solicitors [2017] EWHC 1045 (QB).
4. The relevant question is whether the material was pivotal to the prosecution’s case. Material introduced in response to the defence statement and used to undermine the defendant’s account does not thereby become pivotal prosecution evidence.
5. Prosecution evidence means evidence served by the Crown as material sufficient to assist in convicting the defendant. It does not include material serving only as a response to the defendant’s case. Similar considerations applied to the additional threshold for electronic prosecution evidence.
6. Although the determining officer had applied an incorrect reason for excluding the electronic material, the solicitors had not shown that the material met the applicable tests. The same fee calculation therefore remained appropriate.

1. High Court (Senior Court Costs Office): appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 dismissed; the determining officer’s fee calculation upheld.