R v Mohammed Ismail

For the purposes of calculating prosecution evidence pages under the Criminal Legal Aid (Remuneration) Regulations 2013, electronically served pictorial material which has never existed in paper form may be included where the appropriate officer considers that appropriate. The decision requires an evaluative assessment of the material and the circumstances of the case. A PDF page count may be preferred where images are displayed accessibly and consistently. A proportionate allowance may be made for relevant images rather than counting every electronically extracted image in full. On the facts, a 10% allowance was fair and reasonable.

Bradford Law Solicitors and Mr Fuad Arshad appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against determinations by the Legal Aid Agency concerning prosecution evidence pages in claims under the Litigator’s Graduated Fees Scheme and the Advocate’s Graduated Fees Scheme.

The dispute concerned electronic data extracted from the defendant’s mobile telephone, particularly 9,102 images. The Determining Officer counted 1,138 PDF pages of images and allowed 10 per cent of that total. The appellants contended for a substantially higher count and allowance. The central questions were the appropriate total page count and the proportion of images to be included in the prosecution evidence count.

1. The appeals were dismissed. The Determining Officer’s allowance of 843 prosecution evidence pages, including 114 pages representing 10 per cent of the image pages, was upheld.

2. Paragraph 1 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013 includes electronically served documents within the prosecution evidence count. A documentary or pictorial exhibit served electronically which never existed in paper form is excluded unless the appropriate officer considers inclusion appropriate, having regard to the nature of the document and other relevant circumstances.

3. For the image count, the PDF version of the extraction report was preferred. It displayed the images accessibly, with eight or nine images per page, and produced a total of 1,138 pages. The appellants’ alternative PDF and Excel counts were not accepted.

4. Images were a relevant category of electronic data because the prosecution relied on more than 100 images in support of its case concerning the defendant’s role in an organised criminal group. Relevance did not require every extracted image to be counted in full. Applying the control mechanism discussed in Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB) and the approach approved in R v Carter [2020] SC-2020-CRI-000100, a 10 per cent allowance was fair and reasonable in the circumstances.

• High Court (Senior Court Costs Office): appeals under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 dismissed.
• Legal Aid Agency Determining Officer: allowed 843 prosecution evidence pages, including a 10 per cent allowance for electronically extracted images.