R v Steven Jarrold

Under the Litigator’s Graduated Fees Scheme, electronic evidence may count as prosecution evidence where it was reasonably necessary for the defence to consider it as a potential source of compromising evidence, even if the prosecution did not rely on it and the suspected material did not exist.

For documentary or pictorial electronic exhibits that never existed in paper form, the appropriate officer may make a reasonable percentage allowance under Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013. Where applying a percentage to video evidence would be artificial, the whole electronic file may be allowed on the facts.

Parlby Somerville Ltd appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Legal Aid Agency’s reduction of prosecution evidence pages in an LGFS claim.

The claim concerned electronic material recovered from the defendant’s phone in a prosecution for sexual assault. The material included image and video files. The determining officer initially allowed only a limited number of pages, and the Legal Aid Agency later conceded a further allowance for images.

The issues were whether the image and video files formed part of the prosecution evidence count and, if so, the appropriate number of pages.

1. Appeal allowed in part. The LGFS claim was directed to be recalculated by reference to 739 prosecution evidence pages, comprising 374 pages already allowed or conceded and 365 pages of video evidence.
2. Paragraph 1 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013 includes electronic documents, subject to the discretion concerning documentary or pictorial exhibits that were served electronically and never existed in paper form. That discretion operates as an important control mechanism for public expenditure.
3. The court applied the approach in Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB). A potential reference to a prejudicial photograph made it reasonable for the solicitors to consider the image files. Although no such image existed and the prosecution relied on no photographic evidence, a 10 per cent allowance was reasonable in the circumstances.
4. The video files were also relevant. The complainant had initially referred to a video, making it reasonable for the solicitors to consider the file as a potential source of compromising evidence. No video existed and the prosecution did not rely on video evidence, but applying a percentage allowance to the video material would have been difficult and artificial. The whole 365-page video file was therefore allowed.
5. The appeal fee of £100 was ordered to be returned, together with additional costs of £250 plus any VAT payable.

• High Court (Senior Courts Costs Office): Appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 allowed in part. The determining officer’s assessment was varied and the claim was remitted for recalculation by reference to 739 pages.
• Legal Aid Agency determining officer: Allowed 201 pages of prosecution evidence. The Legal Aid Agency later conceded a further 173 pages of electronic evidence, making 374 pages before the appeal decision.