R v Hajer
| Jurisdiction | England & Wales |
| Judge | Rowley |
| Judgment Date | 12 December 2022 |
| Neutral Citation | [2022] EWHC 3350 (SCCO) |
| Docket Number | Case No: T20210032 |
[2022] EWHC 3350 (SCCO)
COSTS JUDGE Rowley
Case No: T20210032
SCCO Reference: SC-2022-CRI-000083
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Judgment on Appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013
Thomas More Building
Royal Courts of Justice
London, WC2A 2LL
Appellant: Asghar & Co Solicitors
The appeal has been dismissed for the reasons set out below.
COSTS JUDGE Rowley
This is an appeal by Asghar and Co solicitors against the classification of offence used by the determining officer in calculating the Litigators Graduated Fee in accordance with the Criminal Legal Aid (Remuneration) Regulations 2013.
The solicitors were instructed on behalf of Alan Hajer under a representation order dated 24 January 2020. Mr Hajer faced a single count indictment concerning the possession of articles for use in frauds contrary to section 6(1) of the Fraud Act 2006. The particulars of the offence referred to him possessing a quantity of images purporting to be data pages from passports.
I have been provided with the prosecution opening note which describes the relevant events. A Syrian woman named Heva Mohammed arrived at Heathrow airport on 3 January 2018 and claimed asylum upon arrival. She said that she had been provided with a passport by an agent which she had destroyed on the agent's instructions. A damaged Bulgarian passport in a different name was found on board the aircraft and Ms Mohammed confirmed that it was the passport she had been given. The passport was subsequently determined to be counterfeit.
Mr Hajer arrived at Heathrow on the same aeroplane from Germany as Ms Mohammed. He was arrested on suspicion of being concerned in the production of counterfeit passports. His boarding pass and passport were seized as well as two phones and an iPad. Those digital devices were analysed and a photograph resembling Ms Mohammed was found on the iPad. Moreover, according to the Prosecution's Opening Note:
“Additionally, HAJER's iPhone 5S was found to contain 20 identity cards, citizen cards and biodata passport pages belonging to Austrian, Belgian, French, German, Luxembourgish, Dutch, and Portuguese nationals. These were analysed by a forgery expert and found to be counterfeit.”
The opening note also sets out numerous messages from one of the phones which the prosecution obviously intended to rely upon to demonstrate the involvement on the part of Mr Hajer in some fraudulent activity.
The opening note concludes that the prosecution did not need to prove that Mr Hajer intended the articles to be used for a specific fraud and that a general intention to use them fraudulently would be enough. The prosecution's case was that the admissions of Ms Mohammed, with her photograph on Mr Hajer's iPad, coupled with the identity documents found on the phone and the text messages were sufficient to demonstrate that the crime had been committed.
In fact, the prosecution ultimately did not open the case but offered no evidence. One of the ramifications of this is that there is no information directly provided by the prosecution as to the value of the fraudulent activity.
The importance of this is that the remuneration of the solicitors depends upon the determining officer, and therefore a costs judge on the appeal, coming to some conclusion as to the value of the fraud. This is so because the calculation of the graduated fee depends upon classifying the offence within the table of offences set out at Part 7 of Schedule 1 of the 2013 Regulations. As the italicised rubric makes clear:
“The following offences are in Class G if the value involved exceeds £30,000, Class K if the value exceeds £100,000 and in Class F otherwise”
The classification has simplified since the regulations were originally drafted in that the updated figures for the three classes of offence now make no distinction between Class F and Class G. As such, there is no relevance to demonstrating that the fraud was worth more than £30,000 rather than less than £30,000. The only relevant threshold is that of £100,000.
The Litigators Graduated Fee Scheme is set out in Schedule 2 of the 2013 Regulations. At paragraph 3(1)(c) in that schedule, it is made clear that if the fee is based upon an offence which falls into a class that is dependent upon the value exceeding the stated limit, then the value must be presumed by the determining officer not to exceed that limit unless the litigator proves otherwise to the satisfaction of the determining officer.
In their appellant's notice, the solicitors make reference to the opening note and its recording of the 20 false ID cards found on Mr Hajer's phone. It also refers to the messages set out in the opening note and describes that as indicating widescale people smuggling. Indeed, the appellant's notice contends that the accompanying documentation to the opening note suggests that Mr Hajer was involved in people trafficking of at least 60 individuals. On that basis the value of the fraud was easily well over £100,000. The solicitors had asked the...
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