R v Ghabbari

Material supplied by the prosecution may qualify as unused material even where the prosecution relies on extracts from it as served evidence. The remaining material does not fall outside the remuneration scheme merely because its status was not formally recorded or because it was supplied in a different format. Formal disclosure under the Criminal Procedure and Investigations Act 1996 is not a prerequisite to remuneration. An additional fee under paragraph 17A of Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013 depends on reasonable hours being established by reliable supporting evidence. A substantially inaccurate or unsupported worklog may justify limiting the claim despite the scale of the material.

The appellant, counsel for a defendant prosecuted for conspiracy to assist unlawful immigration, appealed against the Legal Aid Agency Determining Officer’s refusal of remuneration for reviewing a 71,711-page mobile-phone download report.

The prosecution had relied on extracts from the report as bad-character evidence but had supplied the full report to the defence. The Determining Officer treated the report as outside paragraph 17A of Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013, alternatively allowing only 24 hours. The central issues were whether the non-served material was unused material and, if so, what additional payment was reasonable.

1. The appeal was allowed in principle. The portions of the download report that were not served evidence could qualify as unused material. The report had been supplied in circumstances indicating disclosure by the prosecution pursuant to its statutory obligations.
2. The fact that extracts were relied upon as served evidence did not prevent the remainder of the report being treated as unused material. It was also permissible, depending on the circumstances, to treat the whole report as served evidence for special preparation purposes. The Determining Officer’s conclusion that the non-served material fell entirely outside Schedule 1 was wrong.
3. The court applied the guidance discussed in Lord Chancellor v Edward Hayes LLP & Anor [2017] EWHC 138 (QB) and Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB). Material-status guidance is directed to deciding whether material is served evidence or unused material. It is not a basis for disregarding the material altogether. Formal disclosure under the Criminal Procedure and Investigations Act 1996 is not an essential condition of a claim for consideration of unused material.
4. The amount claimed was not established. The worklog recorded a page-by-page review at an implausibly constant rate, contained descriptions inconsistent with the report, and did not record the cross-referencing and analysis later asserted in submissions. Much of the material was plainly irrelevant or capable of rapid review.
5. Applying the reasonableness requirement in paragraph 17A, the court allowed the 24 hours conceded by the Determining Officer. The appellant therefore succeeded only to the extent that the claim was recognised in principle. No appeal costs were awarded beyond the £100 appeal fee.

• Legal Aid Agency: The Determining Officer refused the claim on the basis that the download report was not unused material, alternatively allowing 24 hours.
• High Court (Senior Court Costs Office): The appeal was allowed in principle, but only 24 hours were allowed on the evidence. The appeal fee was awarded; no further appeal costs were ordered.