R v Phillip Ali

For the Litigator’s Graduated Fees Scheme, prosecution evidence includes served evidence and exhibits, including material served electronically. Informal service may suffice where the material was in substance served as evidence, although unused material cannot be counted merely because it assisted the defence.

Electronic documentary or pictorial exhibits which never existed in paper form are subject to a discretionary assessment under Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013. The assessment must be case-specific and account for the nature and relevance of the material. A percentage allowance may be reasonable, but it must not be arbitrary or unjustifiably low.

Solicitors representing a defendant prosecuted with four co-defendants for offences under the Animal Welfare Act 2006 claimed 4,485 pages of prosecution evidence under the Litigator’s Graduated Fees Scheme. The Determining Officer allowed 1,289 pages, including 240 pages of images downloaded from the defendant’s mobile phone.

On an appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013, the solicitors challenged the page count, principally concerning images and installed applications. The central issue was whether the allowance for electronic material properly reflected its evidential relevance and the applicable provisions of Schedule 2.

1. Appeal allowed in part. The LGFS claim was directed to be recalculated by reference to 1,850 pages of prosecution evidence. The appellants were awarded £1,500 plus any VAT, in addition to the £100 paid on lodging the appeal.
2. Following the guidance in Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB), the starting point is that served evidence and exhibits may count as prosecution evidence, whereas material disclosed only as unused material cannot be included. Service need not always be formal, but the substance and status of the material must be assessed.
3. Under paragraph 1(5) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, an electronic documentary or pictorial exhibit which never existed in paper form may be included only if the appropriate officer considers that inclusion appropriate, having regard to the nature of the document and other relevant circumstances.
4. The Determining Officer’s assessment of call logs, contacts, locations, web history and images was broadly reasonable. However, on the particular facts, the image page count appeared conservative and the 10 per cent allowance was too low. The images had both specific and general relevance to the prosecution case, including issues concerning the defendant’s alleged role in organised dog fighting and the geographical basis of his defence.
5. The allowance for installed applications was also probably too low. Doing the best possible assessment on the available evidence, the appropriate total was 1,850 pages.

High Court (Senior Court Costs Office): On appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013, the Costs Judge varied the Determining Officer’s assessment and ordered recalculation by reference to 1,850 pages.