R v Adam Khan

For the purposes of the Litigator’s Graduated Fees Scheme, prosecution evidence may include material served electronically, subject to the specific rules and discretion in Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013.

The relevant question is whether the material was served as evidence or exhibits, formally or informally, and whether its inclusion is justified by the circumstances of the case. Material disclosed only as unused material is excluded unless the available evidence shows that it was in reality served. Where electronic exhibits fall within the statutory exception, inclusion remains discretionary. The assessment is fact-sensitive and may include material relied on in relation to co-defendants where it was relevant to the assisted person’s case.

Eldwick Law appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Legal Aid Agency’s determination of its Litigator’s Graduated Fees Scheme claim. The Agency allowed 2,541 pages of prosecution evidence in proceedings arising from a shooting involving the defendant and two co-defendants.

The appellants contended that further electronic material concerning the defendant’s and co-defendants’ mobile phones was relevant to the prosecution’s joint-enterprise and bad-character or cross-admissibility case. The central issue was whether the total PPE count should be 10,000, subject to the statutory cap, or 2,541.

1. Appeal allowed in part. The LGFS claim was directed to be recalculated by reference to 3,443 pages of prosecution evidence. The appellants were awarded £300 plus any VAT payable in costs, in addition to the £100 appeal fee.
2. Paragraph 1 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013 includes witness statements, documentary and pictorial exhibits, and specified interview records. Documents served electronically are included, subject to the exception for documentary or pictorial exhibits that have never existed in paper form.
3. The court applied the guidance in Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB). Formal service is preferable, but informal service may suffice. Material disclosed only as unused material cannot be counted unless the evidence shows that it was in reality served as evidence or exhibits. Whether material was served and whether an electronic exhibit should be included are case-specific questions.
4. The additional mobile-phone material had to be assessed by reference to its relevance to the prosecution case, including the alleged joint enterprise and the evidential use made of material from co-defendants’ phones. The court allowed 7 pages of MMS, 700 pages of SMS, 120 pages of text messages and 75 pages for relevant material from co-defendants’ phones. It allowed nothing for videos, audio, uncharacterised data or images from the defendant’s phone.

The judgment does not state any earlier appellate decision. This was an appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against a Legal Aid Agency determining officer’s decision.