Costs Appeal on Electronic Evidence Inclusion: R v Allen Case Examines Regulations on Pages of Prosecution Evidence Count

Citation: [2023] EWHC 3125 (SCCO)
Judgment on

Introduction

The case of R v Allen deals with a costs appeal in which the applicant, represented by Riley Hayes (Solicitors), seeks an extension of time to file an appeal regarding payment calculations under the Criminal Legal Aid (Remuneration) Regulations 2013. The determinations hinge on the nature of Pages of Prosecution Evidence (PPE) and the applicability of Regulations relating to the inclusion of electronic evidence within the PPE count. This article examines the decision of the Costs Judge Leonard as reflected in the [2023] EWHC 3125 (SCCO) judgment.

Key Facts

The applicant represented the defendant, Kane Allen, who was indicted on two counts of possession of Class A controlled drugs with intent to supply. Subsequent to the criminal proceedings, the applicant disputed the payment received from the Legal Aid Agency (LAA), challenging the calculated number of PPE. While the applicant claimed remuneration based on 10,000 PPE totaling £89,975.11, only 240 pages were allowed by the Determining Officer, amounting to £3,864.24. The applicant sought to appeal the LAA’s decision but missed the regulatory deadline for filing the notice of appeal, warranting the need for an extension under Regulation 31.

Several legal principles inform the judgment of Costs Judge Leonard:

  1. Timeliness and Extension of Deadlines: Regulation 31 underscores that deadlines may be extended for good reason or in exceptional circumstances. The applicant’s delayed submission did not satisfy the ‘good reason’ standard due to its vague explanation about liaising with counsel.

  2. Inclusion of Electronic Evidence in PPE: Costs Judge Leonard engages with two pertinent cases that provide guidance on when electronic evidence can be included within the PPE count:

    • In Lord Chancellor v Edward Hayes LLP & Anor [2017] EWHC 138 (QB), the court determined that where key prosecution evidence is extracted from electronic data, the entirety of that data should normally be included within the PPE count.
    • Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB) emphasized that material may be included within the PPE count even if it has not been formally served, so long as it has been pivotal to the case. The formal designation as ‘unused material’ is not necessarily determinative.
  3. Maximization of PPE Count: The number of PPE pages is vital in calculating the Graduated Fee due to solicitors. Pages of PPE encompass witness statements, exhibits, and interview records that form part of the served prosecution documents or any notice of additional evidence, up to a prescribed maximum.

Outcomes

Costs Judge Leonard ultimately concluded that exceptional circumstances justified the extension of the time limit for the applicant’s notice of appeal. The exceptional element rested on the unique nature of the case, in which the prosecution relied on excerpts from electronic evidence, yet the Determining Officer declined to include any of the broader electronic data in the PPE count. This exclusion appeared inconsistent with precedents that would typically lead to the inclusion of such data within the PPE count, particularly Hayes and SVS. As a result, Judge Leonard granted the extension and listed the appeal for a full hearing.

Conclusion

In R v Allen, the decision to grant an extension for filing an appeal under Regulation 31 of the Criminal Legal Aid (Remuneration) Regulations 2013 reflects a nuanced interpretation of legal principles concerning PPE and the inclusivity of electronic evidence in costs appeals. The Costs Judge’s engagement with existing case law, namely Lord Chancellor v Edward Hayes LLP & Anor and Lord Chancellor v SVS Solicitors, provided the basis for finding exceptional circumstances. This judgment underscores the significance of the criteria for including electronic evidence within the PPE count, with implications for the remuneration of legal representatives under the Criminal Legal Aid scheme.

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