R v Christian Dorot

In assessing prosecution evidence for a graduated criminal legal aid fee, electronic evidence must be counted by a broad and sensible approximation rather than by treating every digital item as equivalent to a separate page. Where mobile-phone evidence is central to the case and the defence raises a specific issue about who used the phone, a determining officer may allow a proportion of image pages reflecting their potential relevance. A PDF page containing multiple thumbnail images may properly be treated as one page where that most closely reflects the historical A4-page basis of the scheme. The assessment remains fact-sensitive, and the solicitor must establish the relevance and extent of the evidence requiring consideration.

Harewood Law Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the number of prosecution evidence pages allowed when calculating the fee payable under the Litigators Graduated Fee Scheme.

Christian Dorot faced serious charges and the prosecution’s case centred on evidence recovered from a mobile phone. The determining officer allowed 2,662 pages, including 450 pages for images, representing 10% of 4,500 image pages. The appeal concerned both the appropriate percentage and whether each PDF page containing approximately 10 thumbnail images, or each individual image, should count as a page.

1. Appeal allowed. The appropriate additional payment was ordered, together with £600 exclusive of VAT for costs and the £100 paid on appeal.
2. The approach in R v Sereika was materially relevant. A determining officer or costs judge may use a broad percentage approximation where only a proportion of images is likely to be genuinely relevant, particularly because it is artificial to require detailed identification of every image. The assessment involves sensible approximation in the nature of rough justice: Re Eastwood, [1974] 3 WLR 454 at 458.
3. The defence raised a specific positive case that the defendant lacked access to the phone for several hours each working day. That justified allowing more images than in Sereika, because enquiries could be made about when images were created and who was using the phone at particular times.
4. That consideration did not justify treating all images as relevant. Many images might have been preloaded or collected automatically, and examples supporting the defendant’s account would probably be supportive rather than determinative. The court therefore allowed 25% of the 4,500 image pages.
5. For page-count purposes, a PDF page containing 10 thumbnail images was the appropriate equivalent of a full page. The graduated fee schemes seek an essentially A4-page equivalent, despite the artificiality created by digital evidence. The image evidence was therefore assessed at 1,125 pages rather than 450.

The appeal was brought under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s assessment, following redetermination. The Senior Costs Judge allowed the appeal and increased the image evidence allowance.