Regina v Spence

Lamb & Meerabux Solicitor (‘the Appellants’) appeal against the decision of the Determining Officer at the Legal Aid Agency (‘the Respondent’) to reduce the number of pages of prosecution evidence (‘PPE’) forming part of its Litigator’s Graduated Fee Scheme (‘LGFS’) claim. The issue on appeal is whether the total PPE count should be 9756, as claimed, or 3798, as allowed.

The Appellants represented Mr Philip Spence (‘the Defendant’) who appeared with a number of co-defendants at Woolwich Crown Court on an indictment alleging money laundering arising from a drug supply operation. He was convicted following trial.

The prosecution relied on electronic datum downloaded from mobile phones recovered from the defendants. This digital material was uploaded by the CPS to the Digital Case System (‘the CDCS system’). The relevant datum appears at J(g), (h) and (i) [MAE7]. It seems to be common ground between the parties that the page count recorded by the CDCS totals 9756. It is also common ground that all the digital datum is considered relevant to the PPE count. The limited but important issue on this appeal is whether the Determining Officer should in these circumstances simply accept the CDCS count, or whether he/she was entitled to reduce the count having identified pages which are apparently ‘blank’ or ‘duplicates’.

Paragraph 1 of Schedule 2 to the 2013 Regulations provides (where relevant) as follows:

“1.

Interpretation

…

(2)

For the purposes of this Schedule, the number of pages of prosecution evidence served on the court must be determined in accordance with sub-paragraphs (3) to (5).

(3)

The number of pages of prosecution evidence includes all –

(a)

witness statements;

(b)

documentary and pictorial exhibits;

(c)

records of interviews with the assisted person; and

(d)

records of interviews with other defendants,

which form part of the committal or served prosecution documents or which are included in any notice of additional evidence.

(4)

Subject to sub-paragraph (5), a document served by the prosecution in electronic form is included in the number of pages of prosecution evidence.

(5)

A documentary or pictorial exhibit which –

(a)

has been served by the prosecution in electronic form; and

(b)

has never existed in paper form,

is not included within the number of pages of prosecution evidence unless the appropriate officer decides that it would be appropriate to include it in the pages of prosecution evidence taking in account the nature of the document and any other relevant circumstances”.

Authoritative guidance was given in PPE cases by Mr Justices Holroyde in Lord Chancellor v. SVS Solicitors ]2017] EWHC 1045 (QB). The parties refer specifically to para. 50(i) to (xi).

The Respondents’ case is set out in Written Reasons dated 26^th October 2021 and in Submissions drafted by Mr Jonathan Orde, a Barrister employed at the Government Legal Department, dated 27^th April and 5^th May 2022. The Appellants’ case is set out in Grounds of Appeal appended to the Appellants’ Notice and in Submissions drafted by Mr Martin McCarthy, Counsel, dated 22^nd November 2021 and 3^rd May 2022. Mr Orde and Mr McCarthy attended the oral hearing on 24^th April 2022. The parties’ second written submissions were filed (with the permission of the court) after the hearing.

The Respondent, in summary, submits that it is incumbent on the Determining Officer, when exercising the discretion at para. 1(5) of Schedule 2 to the 2013 Regulations, to identify and exclude from the PPE count pages which are blank or which appear to duplicate other pages in the relevant datum. As such, the issue is not so much relevance, but whether blank or duplicate pages properly exist as a ‘page of prosecution evidence’. Mr Orde refers to various cases (para. 20-27 of his first written submission), but essentially reliance is placed on the guidance at para. 50(ix) of Lord Chancellor v. SVS (ibid), where Holroyde J emphasised the importance of the Determining Officer’s discretionary consideration as “an important and valuable control mechanism which ensures that public funds are not expended inappropriately”. Mr Orde’s analysis suggests that file J(i) contains about 2,279 blank pages. This corresponds to a smaller reduction than was applied by the DO. With regard to ‘duplicate’ pages, Mr Orde submits that solicitors should only be paid for reviewing electronic evidence as PPE once.

The Appellants, in summary, submit that where relevance is conceded, the Determining Officer should accept and endorse the page count recorded formally by the prosecution on the CDCS system. Mr McCarthy refers to the decision of Costs Judge Rowley in R v. Jankis [2020] SC-2020-CRI-000107. The relevant part of his determination is set out at paras. 20-23:

Mr McCarthy also relies on my decision in R v. Dafallah [2020] SC-2020-CRI-000044. In that case, where the relevant datum comprised an Excel schedule uploaded to the Digital Case System, recording thereby a formal page count. Recognising, inevitably, that not every one of the pages counted might necessarily include substantive to relevant datum, I concluded (at para. 13) that:

Mr Orde, for the Respondent, submits that this reason is incorrect, “because if applied generally it would have the effect of trumping the determining officer’s statutory duty under para 1(5) to assess electronic evidence”.

Turning to the question of duplicate pages, Mr McCarthy relies on my decision in R v. Everett & Others [2019] SC-2019-CRI-000038. In that case, I concluded that any duplication was only apparent after “relatively detailed analysis” of the datum, I concluded (at para. 14) that “it is only fair to concede this analysis in the PPE count (i.e. the number recorded on the DCS system), notwithstanding the fact (albeit with hindsight) of some considerable duplication”.

The discretionary power of the DO to include to exclude datum from the PPE count at para. 1(5) of Schedule 2 is, as Holroyde J stated, an important and valuable control mechanism which ensures that public funds are not expended inappropriately. This function, it seems to me, is carried out properly by a (sometimes broad) consideration of the substantive relevance and importance of the electronic datum to the prosecution’s case. I do not see that this function extends to an (often ad hoc) assessment of whether a page is technically ‘blank’ or constitutes a ‘duplicate’ of another page. Varied use of the Excel and/or PDF format, in circumstances where material is often converted from the former to the latter, does not lend itself easily to an accurate assessment of blank pages. The process is never “blindingly obvious”, as was submitted by the Respondent’s advocate in R v. Everett (ibid), and it almost invariably produces contradictory conclusions, notwithstanding the amount of time and effort expended on the process. This is illustrated vividly in this case, where Mr Orde’s calculations differ markedly from those of the Determining Officer. As such, the issue is whether, when substantive relevance is conceded, the PPE count should be based on the total recorded formally by the prosecution in the CDS system, or whether it should be subject to further reduction on the basis of an analysis of blank and/or duplicate pages, a process which seems to me to be invariably inconsistent and subject to variation or dispute, notwithstanding the time expended on the process. It is quite clear to me as the court has found consistently in Jankis, Dafallah and Everett (ibid), that the preferable course is for the PPE count to rely on the total recorded in the CDCS system. The prosecution ultimately control the upload of digital datum to this system and can edit out any pages, blank, duplicate or otherwise, if they consider it reasonable and proportionate to do so. The DO still performs the core function, the important safeguard of assessment by reference to relevance and substantive importance to the prosecution case, so the function of para. 1(5) is in no way compromised by this approach. Again, however, where substantive relevance is either conceded or assessed by this criteria, so that all digital datum is considered relevant for inclusion in the PPE count, there should not be a further deduction for what the DO considers to be either ‘blank’ or ‘duplicate’ pages. To entertain this process would be to invite repeated streams of inconsistency and dispute in cases assessed under the LGFS. It is in no way unreasonable or unjust to adopt the formal page count in the CDCS system for the purposes of counting the PPE in LGFS claims.

This appeal is allowed and I direct that the Appellants’ LGFS claim should be paid by reference to 9756 PPE.

The Appellants’ appeal has succeeded and I award costs of £1000 (+ VAT) in addition to the £100 paid to lodge the appeal.