R v Makinson

For special preparation under Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013, payment may be allowed for reasonable time spent reading prosecution evidence exceeding the applicable page threshold. Electronic search and filtering tools may have limited value where the work requires contextual attribution of communications and evidential material. Cross-referencing other evidence is ordinarily separate from reading the excess pages. It may nevertheless fall within the reading exercise where, on the facts, it is inseparable from understanding the material. A reasonable allowance may be tested by considering the time claimed per page, although the fee is not calculated by a fixed rate per page.

The appellant, a defence advocate, appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against a Determining Officer’s allowance of 120 hours for special preparation. The claim concerned 26,445 pages of prosecution evidence exceeding the 30,000-page cap. The underlying prosecution involved extensive EncroChat material, multiple defendants and allegations of large-scale drug supply, firearms offences and violence. The issues were whether electronic filtering and search facilities should reduce the reasonable reading time, and whether time spent cross-referencing other evidence was within paragraph 17(3) of Schedule 1.

1. The appeal was allowed. The appropriate allowance for special preparation was increased from 120 to 300 hours, with the additional payment and costs stated in the order.

2. The court accepted that electronic filtering and search facilities had limited value in this case. The relevant task was not merely locating names or numbers. It required contextual analysis to attribute EncroChat handles to particular individuals at particular times.

3. Under paragraph 17(3) of Schedule 1, the permitted time is time reasonably spent reading the excess prosecution evidence. Following the approach taken in R v Swaby, cross-referencing other evidence is ordinarily a separate exercise. The court also recognised the reasoning in R v Khaliq that, on particular facts, cross-referencing may be an inseparable part of reading and may therefore fall within paragraph 17(3).

4. On the evidence, much of the appellant’s cross-referencing was directed to assessing evidential significance and was separate from reading. Only 29 recorded hours involved any cross-checking, and those hours were not exclusively devoted to it. The court therefore assessed the reasonable reading time by extracting a reliable figure from the worklog, while excluding cross-checking and other non-qualifying work.

5. The resulting 300 hours represented substantially less than one minute per page for the excess PPE. That calculation was used as a sense-check of reasonableness, not as a page-based fee formula. The court considered the allowance reasonable and directed payment accordingly.

The appellant appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 from the Determining Officer’s allowance of 120 hours. The High Court (Senior Court Costs Office) allowed the appeal and increased the allowance to 300 hours.