R v Munemo
| Jurisdiction | England & Wales |
| Judge | Leonard |
| Judgment Date | 27 June 2023 |
| Neutral Citation | [2023] EWHC 1636 (SCCO) |
| Court | Senior Courts |
| Docket Number | Case No: T20217088 |
[2023] EWHC 1636 (SCCO)
COSTS JUDGE Leonard
Case No: T20217088
SCCO Reference: SC-2022-CRI-000066
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Thomas More Building
Royal Courts of Justice
London, WC2A 2LL
Appellant: Bhandal Law (Solicitors)
The appeal has been successful for the reasons set out below.
The appropriate additional payment, to which should be added the £100 paid on appeal, should accordingly be made to the Applicant.
Judgment on Appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013
COSTS JUDGE Leonard
This appeal concerns payment to defence solicitors under the Litigators' Graduated Fee Scheme set out at Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013. The Representation Order was made on 15 June 2021 and the 2013 Regulations apply as in effect on that date.
The graduated fee due to the Appellant is calculated, along with other factors, by reference to the number of served Pages of Prosecution Evidence (“PPE”), subject to an overall “cap” which is, for present purposes,10,000 pages.
The Regulations
The relevant provisions of Schedule 2 for calculating the PPE count are at paragraph 1, (2)-(5) to the 2013 Regulations. Those paragraphs explain how, for payment purposes, the number of pages of PPE is to be calculated:
“(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 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 into account the nature of the document and any other relevant circumstances…”
The Authorities
The parties have made reference to a number of judicial authorities and non-binding Costs Judge decisions. It may help to put this appeal in context if I refer at this stage to the authorities I believe to be most pertinent for present purposes.
PPE appeals concerning electronic evidence have tended to turn upon either or both of two issues. The first is whether evidence which an appellant wishes to include within the PPE count should properly be considered as “served” evidence, or as unused material. Served evidence is, broadly speaking (and subject to the guidance of Holroyde J referred to below) evidence upon which the Prosecution relies. Unused material must be disclosed by the Prosecution under the provisions of the Criminal Procedure and Investigations Act 1996 because it might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused.
Served evidence may be included within the PPE count: unused material will not.
The judgment of Holroyde J (as he then was) in Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB) established that although service by the Prosecution upon the Defence is a prerequisite for inclusion of evidence within the PPE count, formal service is not. Evidence which justifies inclusion within the PPE count may properly be treated as “served” even if, for example, it was simply be handed over on a disc in court.
Because of the way in which the issues arose and were argued in Lord Chancellor v SVS Solicitors, Holroyde J's judgment did not distinguish between service of evidence (formal or informal) and the inclusion of that evidence within the PPE count. For the purposes of that particular case, served evidence and PPE were effectively treated as the same thing.
It must be borne in mind that, by virtue of paragraph 1(5) of Schedule 2 to the 2013 Regulations, served electronic evidence which has never existed in paper form may still be excluded from the PPE count if the Determining Officer considers that appropriate.
Holroyde J's guidance is however still crucial in determining how that discretion should be exercised. At paragraph 50(viii) of his judgment he identified the key criterion: whether the evidence was of central importance to the trial (and not merely helpful or even important to the defence).
At paragraph 50(vii) Holroyde J explained that where the prosecution seeks to rely on only part of the electronic data recovered from a particular source, issues may arise as to whether all of the data should be included in the PPE count. The resolution of such issues will depend on the circumstances of the particular case, and on whether the data which have been exhibited can only fairly be considered in the light of the totality of the data.
This guidance built upon paragraph 47 of his judgment, in which Holroyde J observed (again, equating service with inclusion within the PPE count):
“It will of course sometimes be possible for the prosecution to sub-divide an exhibit and serve only the part of it on which they rely as relevant to, and supportive of, their case: if a filing cabinet is seized by the police, but found to contain only one file which is relevant to the case, that one file may be exhibited and the remaining files treated as unused material; and the same may apply where the police seize an electronic database rather than a physical filing cabinet. Sub-division of this kind may be proper in relation to the data recovered from, or relevant to, a mobile phone: if for example one particular platform was used by a suspect solely to communicate with his young children, on matters of no conceivable relevance to the criminal case, it may be proper to exclude that part of the data from the served exhibit and to treat it as unused material. But it seems to me that such situations will not arise very often, because even in the example I have given, fairness may demand that the whole of the data be served, for example in order to enable the defence to see what other use the defendant was making of his phone around the times of calls which are important to the prosecution case. The key point, as it seems to me, is that if the prosecution do wish to rely on a sub-set of the data obtained from a particular source, it will often be necessary for all of the data from that source to be exhibited so that the parts on which the prosecution rely can fairly be seen in their proper context…”
Holroyde J also mentioned the observations of the Senior Costs Judge in R v Jalibaghodelehzi [2014] 4 Costs L 781, in which (referring to similar provisions in the Criminal Defence Service (Funding) Order 2007) the Costs Judge said, at paragraph 11:
“The Funding Order requires the Agency to consider whether it is appropriate to include evidence which has only ever existed electronically “taking into account the nature of the document and any other relevant circumstances”. Had it been intended to limit those circumstances only to the issue of whether the evidence would previously have been served in paper format, the Funding Order could easily so have provided. It seems to me that the more obvious intention of the Funding Order is that documents which are served electronically and have never existed in paper form should be treated as pages of prosecution evidence if they require a similar degree of consideration to evidence served on paper. So in a case where, for example, thousands of pages of raw telephone data have been served and the task of the defence lawyers is simply to see whether their client's mobile phone number appears anywhere (a task more easily done by electronic search), it would be difficult to conclude that the pages should be treated as part of the page count. Where however the evidence served electronically is an important part of the prosecution case, it would be difficult to conclude that the pages should not be treated as part of the page count.”
Since Lord Chancellor v SVS Solicitors was decided, the exclusion from the PPE count of parts of the served electronic evidence has become more commonplace than Holroyde J may have had in mind. That is largely because telephone download reports are commonly served in both spreadsheet and PDF format. The PDF format mimics presentation on paper, lends itself readily to a page count and is usually conveniently and clearly divided into sections, many of which are self-evidently irrelevant and can properly be excluded from the PPE count.
In Lord Chancellor v Edward Hayes LLP & Anor [2017] EWHC 138 (QB) Mrs Justice Nicola Davies DBE (as she then was) concluded that, given the importance to the prosecution in that particular case of text messages, it was incumbent upon the defence team to look at all the underlying data from which the prosecution had extracted samples upon which it relied. The defence needed to test the veracity of text messages, to assess the context in which they were sent, to extrapolate any data that was relevant to the messages relied on by the Crown, and to check the accuracy of the data finally relied on by the Crown. The underlying data should accordingly (although never formally served) be included within the PPE count.
Hayes in my view indicates that where key prosecution evidence is extracted from a particular category of electronic data, one would normally expect all of the electronic evidence in that category...
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