R v Herve Mpanzu

For electronic prosecution evidence under the graduated fee scheme, an A1-sized page should be counted by reference to its mathematically equivalent number of A4 pages where upscaling is required. Assessment should not be reduced by subjective judgments about font size, legibility or the ease with which data might be reviewed.

Blank pages, and pages containing unusable data, may be excluded. That limited discretion does not justify routine manipulation of otherwise relevant electronic material or a document-by-document assessment resembling taxation. Cell site downloads served in their entirety should generally be treated as potentially relevant unless shown otherwise.

CG Law appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the number of prosecution evidence pages allowed in calculating the graduated fee for representing Herve Mpanzu.

The determining officer allowed 6,641 electronic pages, applying an approach under which an A1-sized page counted as four A4 pages. The solicitors contended that each A1 page should count as eight A4 pages. The appeal also raised the extent to which the determining officer could exclude or manipulate electronic material on the basis that it was blank, unusable, irrelevant or difficult to review.

1. Appeal allowed. The additional prosecution evidence pages up to the 10,000-page cap were to be allowed. Costs of £1,250 exclusive of VAT, together with the £100 paid on appeal, were awarded.
2. The appeal was formally against the determining officer’s reasons, but regulation 29 permitted representations addressing the public interest. The court therefore considered the alternative case advanced by the Legal Aid Agency.
3. The determining officer’s reliance on legibility and the practical ease of reviewing data was misplaced. The relevant question was the number of A4 pages into which the evidence would mathematically translate. The fact that data could be manipulated into a different format did not alter the page calculation.
4. The scheme required a balance between avoiding overpayment and avoiding underpayment. It remained intended to operate in a generally simple and mechanistic way, rather than through repeated assessments of time spent or an ex post facto taxation.
5. Blank pages should always be disallowed, with estimation permitted where necessary. The same applied to pages containing data that was unusable because it had become detached or could not itself be used. That did not justify removing selected columns or estimating the proportion of an otherwise relevant spreadsheet.
6. The rough and ready approach in R v Sereika was useful for categories such as mobile-phone images where most material was irrelevant, but it was confined to that type of case. Cell site downloads served in their entirety were presumptively potentially relevant unless demonstrated otherwise. An entry marked “N/A” could not automatically be treated as equivalent to a blank page.
7. The appropriate method was therefore to use the mathematically equivalent number of A4 pages for differently sized electronic evidence, while refraining from additional manipulation of PDF or similar data beyond excluding blank or genuinely unusable pages.

High Court (Senior Courts Costs Office): Appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 allowed. The determining officer’s page allowance was displaced and additional payment ordered.